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Trump Administration DOL Issues First Substantive Guidance on Independent Contractors

Littler Mendelson, P.C. • July 18, 2018
The Wage and Hour Division of the Department of Labor (DOL) issued a Field Assistance Bulletin (FAB) on Friday, July 13, 2018, titled “Determining Whether Nurse or Caregiver Registries Are Employers of the Caregiver.”1 Although this FAB focuses on the caregiver registry industry, it provides the new administration's first substantive guidance on independent contractor classification.

The Ninth Circuit Holds Plaintiff Lacked Standing for an Alleged Violation of the FCRA's "Pre-Adverse Action" Notice Provision

Littler Mendelson, P.C. • July 18, 2018
Nationwide class action claims against employers under the federal Fair Credit Reporting Act (FCRA) are more common now than ever before. On July 13, 2018, the U.S. Court of Appeals for the Ninth Circuit issued an opinion, Dutta v. State Farm, addressing an important procedural issue in FCRA cases: constitutional standing. Standing is a legal rule that addresses whether a person has been adversely affected by some action resulting in a right to assert the claim at issue, and a person without standing cannot continue a lawsuit in federal court. The standing issue is being litigated in courts across the country based on the U.S. Supreme Court’s ruling in another FCRA case, Robins v. Spokeo, Inc. In Dutta, the Ninth Circuit ruled for the employer, State Farm, and affirmed summary judgment on the ground that the plaintiff lacked standing to assert his claim for violation of the “pre-adverse action” notice provision in the FCRA.

DOL Formally Rescinds Revised Persuader Rule

FordHarrison LLP • July 18, 2018
Executive Summary: The Department of Labor (DOL) has rescinded the revised version of its “persuader rule,” which had gone into effect in April 2016. The now-rescinded rule had substantially narrowed the advice exemption to the Labor Management Reporting and Disclosure Act (LMRDA). The Final Rule rescinding the revised rule was published in the Federal Register today (July 18, 2018) and is available here. With this rescission, the DOL will return to its traditional interpretation of the persuader rule.

States Look for New Angle to Fight No-Poach Agreements

Fisher Phillips • July 18, 2018
Attorneys general in ten states and the District of Columbia have recently launched an investigation into the employment practices of eight fast-food franchises. The group sent a joint letter to the companies requesting information on the companies’ use of restrictive covenants including “‘employee non-competition,’ 'no solicitation,' 'no poach,' 'no hire,' or 'no switching' agreements (collectively referred to as ‘No Poach Agreements’).”

Back to Basics: FLSA Coverage Quick Quiz

Fisher Phillips • July 18, 2018
It's that time of year when families (yes, already) are making back-to-school preparations for the upcoming school year, and employers (ideally, already) are evaluating potential pay and policy changes for the upcoming calendar year. For a student who is a little rusty, this is the time to cram with one of those summer workbooks. For an employer that is a little rusty, cramming the FLSA's numerous nuances is just not possible. Nonetheless, when tackling a complex FLSA issue, oftentimes the best approach is to get back to the basics.

Antitrust Director Signals Heightened Focus On Deterring No-Poach Agreements In Healthcare Industry

Jackson Lewis P.C. • July 18, 2018
As we have reported in previous articles, the Department of Justice’s Antitrust Division has repeatedly reaffirmed its intent to criminally prosecute companies that restrict labor market competition through the use of unlawful no-poach and wage-fixing agreements.

USCIS Adjudicators Given the Go-Ahead to Deny Cases Without First Issuing a Request for Evidence

Ogletree Deakins • July 18, 2018
Effective September 11, 2018, adjudicators for U.S. Citizenship and Immigration Services (USCIS) will have the authority to deny any application or petition that is incomplete or lacks sufficient evidence without first issuing a request for evidence (RFE) or notice of intent to deny (NOID). The new guidelines are a reversal of the current policy, which requires that an RFE be issued unless there is “no possibility” that the deficiency can be remedied. Depending on the vigor with which it is enforced, this policy shift may eliminate the opportunity for petitioners and applicants to correct simple errors, like missing documents, or to beef-up documentation in support of an applicant’s eligibility, before the case is denied.

EEOC Fights to Keep #MeToo Movement Alive

Nexsen Pruet • July 18, 2018
The Equal Employment Opportunity Commission (EEOC) sometimes chooses to file a lawsuit against an employer, on an employee’s behalf, after investigation of a charge of discrimination. Typically, the EEOC chooses to litigate only a very small percentage of all charges filed. In this past June alone, however, the commission filed eight lawsuits alleging sexual harassment against employers, thus perpetuating the #MeToo movement.

Supreme Court Clarifies FLSA Exemption for Sales, Service Advisors, Partsmen, and Mechanics

Nexsen Pruet • July 18, 2018
The U.S. Supreme Court recently gave relief to automotive, tractor, and aircraft dealerships, clarifying that service advisors are – like salesmen, partsmen, and mechanics – exempt from payment of overtime under the Fair Labor Standards Act (FLSA).

80/20 Tip Credit Rule Is Target of Restaurant Group Lawsuit

XpertHR • July 18, 2018
The restaurant industry is hoping to overturn a federal policy that prohibits employers from claiming a minimum wage tip credit for employees who spend more than 20% of their time performing duties that do not directly produce tips, such as washing dishes or making coffee.

NLRB Expands Its Alternative Dispute Resolution Program

Jackson Lewis P.C. • July 17, 2018
The National Labor Relations Board has announced it will begin a pilot program to encourage parties to use its Alternative Dispute Resolution program.

Should Public Employers Consider Issuing a Janus Notice Where a Checkoff Clause is Contained in a CBA?

Ogletree Deakins • July 17, 2018
As of the Supreme Court’s recent decision in Janus v. American Federation of State, County, and Municipal Employees, Council 31, state laws requiring public sector collective bargaining agreements to contain agency shop clauses that compel the discharge of employees for refusing to provide financial support to unions are deemed to violate the First Amendment.

An Epic Checklist: What to Consider When Adopting Class Action Waivers in Employment Arbitration Agreements

Ogletree Deakins • July 17, 2018
In Epic Systems Corporation v. Lewis, the Supreme Court of the United States held that class action waiver in an employment arbitration agreement are enforceable. Yet, arbitration agreements containing such waivers may still be challenged on a variety of grounds. The law in this area is often unsettled or unclear and changes frequently. The following checklist identifies key issues employers may want to consider when adopting a class action waiver in an employment arbitration agreement. In adopting a class action waiver in an employment arbitration agreement, an employer may want to consider the following:

Rule 23 Amendments Awaiting Congressional Review

Jackson Lewis P.C. • July 16, 2018
The final amendments to the Federal Civil Rules of Procedure, including amendments to Rule 23 class actions, are waiting for approval from Congress. The primary changes to Rule 23 affect the class action notice and settlement processes. The amendments acknowledge advancements in technology and the popularity of social media, while formalizing procedural and substantive notice and approval requirements already being employed in some federal courts.

Call Me, Maybe? Court Rules that Phone Call to OSHA Constitutes Filing of Whistleblower Complaint

Fisher Phillips • July 16, 2018
It might sound crazy, but the Occupational Safety and Health Administration (OSHA) may now be receiving whistleblower complaints over the phone. This follows a recent ruling from a federal court in Wisconsin, which made it easier for employees to file whistleblower complaints against their employers.

#MeToo at Home and Abroad

Littler Mendelson, P.C. • July 16, 2018
The news that Harvey Weinstein was indicted on July 2 on additional criminal charges, one of which (predatory sexual assault) carries a maximum sentence of life in prison, makes clear that the #MeToo movement and its influence on the workplace and our culture will not abate any time soon.

EEOC Releases Charge Statistics For Fiscal Year 2017

Brody and Associates, LLC • July 15, 2018
The EEOC has released its charge statistics for fiscal 2017! In total, approximately 85,000 charges were filed across the country. Of those, 6,696 alleged sexual harassment. This is interesting in light of the #MeToo movement that began with the Harvey Weinstein scandal in the last part of 2017. It will be interesting to see if there will be a rise in sex-based claims in fiscal year 2018 as a result of the unprecedented movement.

Beltway Buzz, July 13, 2018

Ogletree Deakins • July 15, 2018
Always a Bridesmaid . . . Well, the Buzz waited patiently for an important call on Monday night, but we were passed over (again). Instead, President Trump nominated Brett Kavanaugh—currently a judge on the U.S. Court of Appeals for the District of Columbia Circuit—to replace Justice Anthony Kennedy on the Supreme Court of the United States. Hera S. Arsen has the details. And if a judge is best evaluated on his or her dissents, another interesting examination of Kavanaugh’s record is this list of his dissents (notice the first case in particular, dealing with “alter egos” under the National Labor Relations Act). Some other thoughts on the nomination:

Restaurant Industry Association Files Suit Challenging “80/20” Rule

Jackson Lewis P.C. • July 15, 2018
The Restaurant Law Center, a public policy affiliate of the National Restaurant Association, has filed suit against the Department of Labor and its Wage and Hour Division, seeking to declare unlawful the DOL’s 2012 revision to its Field Operations Handbook, purporting to establish, through sub-regulatory guidance, the “80/20” tip credit rule or “20% Rule.” Restaurant Law Center v. U.S. Dept. of Labor, No. 18-cv-567 (W.D. Tex. July 6, 2018). The 80/20 Rule seeks to limit the availability of the tip credit when tipped employees spend more than 20% of their time performing allegedly non-tip generating duties. One of several problems in applying such a rule is identifying what is, and what is not, an allegedly “tip-generating” duty.

You’ve Discovered A Mistake in Your Plan Administration – Now What?

Jackson Lewis P.C. • July 15, 2018
Occasionally qualified plan administrators discover that their plans have incurred an operational error. The Internal Revenue Service (“IRS”) recognizes that it needs the help of plan administrators to police the administration of qualified plans and has correspondingly published guidance to help plan administrators take appropriate corrective action where necessary.

Could the World Cup Produce a GOAALLLL in Your Workplace?

XpertHR • July 15, 2018
Did World Cup fever infiltrate your office this summer?

Technological Advancements Complicate Confidentiality

Goldberg Segalla LLP • July 13, 2018
The increase in connectivity has greatly improved an attorney’s ability to represent her clients. From searching a party on social media, to quickly parsing through online materials, saves hours and hours of time. Furthermore, attorneys can leverage professional organization memberships to seek input from thousands of other practitioners on legal questions or strategic decisions. Thus, an attorney can investigate deeper than ever before and easily liaise with other practitioners. But, this cuts both ways. Attorneys must be aware that technological advances also mean that her own clients and experts are vulnerable, and they must take steps to protect confidential information as necessary.

A Review of the Supreme Court’s 2017-2018 Term

Franczek Radelet P.C • July 13, 2018
The United States Supreme Court concluded its 2017-2018 term with a bang, issuing decisions in several highly publicized cases impacting labor and employment, including Epic Systems Corp. v. Lewis and Janus v. AFSCME. This term marked the first full term for Justice Gorsuch after last year’s dramatic appointment battles. Not surprisingly, with the addition of Justice Gorsuch to the Court, many of the labor and employment decisions this term were employer friendly.

What Am I Doing Wrong?? Common FMLA Mistakes (July 13, 2018)

Jackson Lewis P.C. • July 13, 2018
“What did I do wrong?” and “Am I doing this correctly?” are frequent questions from clients regarding FMLA administration. This is the sixteenth in a series highlighting some of the more common mistakes employers can inadvertently make regarding FMLA administration.

Fitness Industry Legal Update - Summer 2018

Jackson Lewis P.C. • July 11, 2018
Social media can be a great way for companies in the fitness industry to build and engage their communities. The hazards of social media as to employees, companies, and privacy, however, should not be ignored. This is especially true if social media is key to a business’s marketing or employee-recruitment goals. In this issue, we cover three common hazards fitness industry employers may face when it comes to social media.

Mechanical Managers: Replacing Human Managers With Programming In The Gig Economy

Fisher Phillips • July 11, 2018
Although legal tests for determining employment status have taken center stage with numerous recent high-profile cases, lurking in the background is a question that may also have implications beyond the gig economy space: what happens if and when traditional “manager” roles are filled by automated systems?

Will SCOTUS Justice Kavanaugh Treat Employers Well? The Magic 8-Ball Says: “You May Rely On It”

Fisher Phillips • July 11, 2018
Late yesterday, President Trump selected Judge Brett Kavanaugh to fill the vacant seat on the Supreme Court (SCOTUS) bench. Assuming he is confirmed by the Senate, Justice Kavanaugh would solidify the pro-business bloc of Justices on the Court, seemingly creating an impenetrable five-Justice majority of conservative jurists. The question on the mind of employers: how would Justice Kavanaugh treat workplace law cases that come before the Supreme Court? To answer that question, we once again turn to the Magic 8-Ball.

The FLSA After 80 Years, Part III: The Tip Credit Is Here To Stay

Ogletree Deakins • July 11, 2018
It is quite common in the hospitality industry for employers to pay tipped employees a cash wage that is less than the required minimum wage. This practice is permissible under the Fair Labor Standards Act’s (FLSA) tip credit provisions. The philosophy underlying the tip credit is that the tipped employees are receiving compensation in the form of tips from customers, thereby relieving the employer of some of the burden associated with paying the full minimum wage.

6 Degrees of Brett Kavanaugh: Fast Facts About the Newest SCOTUS Nominee

Ogletree Deakins • July 11, 2018
On July 9, 2018, President Trump announced his nominee to be the next justice of the Supreme Court of the United States, replacing Justice Anthony M. Kennedy, who, on the last day of the October 2017 term, announced that he would retire from the Court. Long known as a Washington insider, Brett Kavanaugh, 53, currently serves as a judge on the U.S. Court of Appeals for the District of Columbia Circuit.

Association Health Plans — Are They Really an Option to Consider?

Jackson Lewis P.C. • July 11, 2018
As discussed during our recent webinar, the finalized DOL regulations for qualifying “association health plans” will likely create new opportunities for sole proprietors and other primarily small businesses and other trade groups to band together in a coordinated manner to purchase more affordable health insurance as a “single employer” in 2019 and beyond.

Brett Kavanaugh Nominated to U.S. Supreme Court

Jackson Lewis P.C. • July 10, 2018
In the wake of Justice Anthony Kennedy’s retirement, President Donald Trump was presented with the rare opportunity to make his second U.S. Supreme Court nomination in as many years, nominating the Honorable Brett M. Kavanaugh to succeed Justice Kennedy. If confirmed by the Senate, Judge Kavanaugh would bring more than a dozen years of judicial experience to the position.

You’re Gonna Need a Warrant for That....

Jackson Lewis P.C. • July 10, 2018
On June 22, 2018, in Carpenter v. United States, the United States Supreme Court decided that the federal government would need a warrant in order to obtain historical location data from cellular service providers, based on cell tower “pings.”

A Closer Look at Trump's Latest SCOTUS Nominee: Brett Kavanaugh

Littler Mendelson, P.C. • July 10, 2018
On July 9, 2018, President Trump nominated Judge Brett M. Kavanaugh to potentially fill the impending U.S. Supreme Court vacancy created by Justice Anthony Kennedy’s retirement, which takes effect on July 31, 2018. Judge Kavanaugh currently sits on the U.S. Court of Appeals for the D.C. Circuit. He has consistently demonstrated conservative legal reasoning as an appellate judge and is likely to bring that perspective to the Supreme Court, if confirmed.

2018 Midyear Minimum Wage Increases

Ogletree Deakins • July 10, 2018
On July 1, 2018, a number of states’ and localities’ minimum wage increases went into effect. The chart below summarizes state and locality mid-2018 minimum wage increases—as well as Delaware’s impending minimum wage increase, which will occur on October 1, 2018—along with the related change in maximum tip credit and minimum cash wage for tipped employees.

Changes to Retirement Plan Loan Rollover Distribution Rules May Necessitate Updates to Your Special Tax Notices

Ogletree Deakins • July 10, 2018
On January 1, 2018, modifications to the rollover distribution rules for certain retirement plan participants with defaulted plan loans went into effect. As a result of a provision in the Tax Cuts and Jobs Act, the rollover distribution rules are now more relaxed for rollovers of defaulted loans resulting from plan terminations or a participant’s failure to repay a loan upon severance from employment. These changes impact several provisions in the “safe harbor” model tax notices for eligible rollover distributions that were published by the Internal Revenue Service (IRS) in 2009 and updated in 2014.

Eleventh Circuit Ruling Sends Warning to Businesses: ADA Website Accessibility Claims May Not Be "One and Done"

Goldberg Segalla LLP • July 10, 2018
Businesses expecting claims for alleged violations of the Americans with Disabilities Act (ADA) to be "one and done" should exercise caution, as a recent decision from the U.S. Court of Appeals for the Eleventh Circuit makes clear. According to the court's ruling, businesses that address, settle, and remediate website accessibility issues to avoid future lawsuits may still face claims — even if the business is in the process of ensuring compliance.

Is Your Institution Doing Enough to Reduce Disruptive Physician Behavior?

Jackson Lewis P.C. • July 10, 2018
Disruptive physicians are staple characters on television shows about the medical field. Some of the most recent T.V. doctors of this vein that come to mind are Dr. Gregory House of House and Dr. Perry Cox of Scrubs. While Dr. House and Dr. Cox present entertaining caricatures of disruptive physician behavior (“DPB”), in “real life” DPB has long presented many significant workplace challenges for health care institutions.

Supreme Court Nominee Kavanaugh's Past Rulings Signal Employer-Friendly Approach

XpertHR • July 10, 2018
Brett Kavanaugh will likely maintain the pro-employer approach of Supreme Court Justice Anthony Kennedy, whose impending vacancy he has been nominated to fill, should he be confirmed by the Senate.

Supreme Court Year in Review: Union Agency Fees, Travel Restrictions, and the Retirement of Justice Kennedy

Littler Mendelson, P.C. • July 09, 2018
The U.S. Supreme Court closed out its most recent term, which began in October 2017, with a number of high-profile and ground-breaking decisions. Yet aside from the typical court fanfare, perhaps the most significant news from the latest Supreme Court term is the retirement of Justice Anthony Kennedy. Justice Kennedy has often provided the deciding vote in a Supreme Court that is largely split along party lines. Justice Kennedy cast the swing vote and wrote the majority opinion in Citizens United, for example, siding with the other conservative Justices and removing election spending limits for corporations and unions.

NLRB GC: Employer Can Unilaterally Implement Decisions Made Before Union Election Victory

Jackson Lewis P.C. • July 09, 2018
An employer lawfully unilaterally implemented a stricter tardiness and absentee policy even though a union had recently won an election to represent its workers, according to a memorandum released by the National Labor Relations Board General Counsel’s Division of Advice. Cott Beverages, Inc., No. 16-CA-206068 (Div. of Advice, Apr. 26, 2018, released May 15, 2018).