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Department of Labor Moves One Step Closer to Allowing Employers More Flexibility in Their Tip Pooling Practices

Nexsen Pruet • December 15, 2017
The U.S. Department of Labor (DOL) published a notice of proposed rulemaking (NPRM) in the December 5, 2017 edition of the Federal Register, with a proposal to rescind its 2011 regulations on tip pooling. The NPRM appears to be, at least in part, a response to efforts by the hospitality industry – particularly the restaurant industry – to press for change to the strict rules on tip sharing.

New NLRB General Counsel Signals Policy Shift

Nexsen Pruet • December 15, 2017
Peter Robb, the newly appointed general counsel for the National Labor Relations Board (NLRB), issued a memorandum on December 1, 2017 that suggests he may revisit some of the NLRB’s policy decisions rendered under the Obama administration. A few areas of interest in his relatively brief memorandum are highlighted below.

Labor Board Overrules Unworkable Joint-Employer Test

Fisher Phillips • December 15, 2017
The newly constituted National Labor Relations Board announced that a troublesome joint-employer test adopted in 2015 would be immediately scrapped, instead reaffirming its prior reasonable standard for determining joint-employer status. Starting at once, the Board will follow the traditional common law principles requiring a finding of direct and immediate control in order to find that two entities are joint employers.

New Sheriff(s) In Town: The NLRB Issues New Test For Workplace Rules

Fisher Phillips • December 15, 2017
The National Labor Relations Board just relieved employers of a great deal of uncertainty surrounding seemingly innocuous workplace rules and handbooks. The newly constituted NLRB issued its first round of significant decisions this week, taking square-aim at controversial doctrines developed during the past eight years. One target in its sights: the Board’s interpretation of Lutheran Heritage, the seminal 2004 decision involving workplace civility rules.

NLRB Overrules Browning-Ferris Joint Employer Standard, Reinstates Former Test

Jackson Lewis P.C. • December 15, 2017
The National Labor Relations Board has overruled, 3-2, Browning-Ferris Industries, 362 NLRB No. 186 (2015) and returned to the pre–Browning Ferris standard that governed joint-employer liability. Hy-Brand Industrial Contractors Ltd., 365 No. 156 (December 14, 2017).

Guide for Individuals Traveling Outside of U.S. During Holiday Season

Jackson Lewis P.C. • December 15, 2017
Extreme vetting, strict scrutiny, travel warnings, and the latest travel ban have made travel abroad more worrisome than ever this holiday season.

EEOC Releases Draft Strategic Plans for FY 2018-2022

XpertHR • December 15, 2017
The Equal Employment Opportunity Commission (EEOC) will focus on aligning its resources to improve discrimination prevention and public education about the discrimination laws, according to a draft of its Strategic Plan for Fiscal Years 2018-2022. The strategic plan is open for public comment until January 8, 2018.

Recent NLRB Actions Signal the Winds of Change Are Blowing: The NLRB Requests Information on Controversial “Quickie Election” Rules and Issues Its First Reversal of Obama-Era Policy

Franczek Radelet P.C • December 14, 2017
Because the National Labor Relations Board (NLRB) is made up of members appointed by the President, Board law shifts as administrations change. Recently, the U.S. Senate confirmed two Republicans to the Board, resulting in a Republican majority on the Board for the first time in ten years, and a new NLRB General Counsel, management-side labor lawyer Peter Robb. Swift changes followed, and more are likely.

Federal Court Permits Former Employees’ Data Breach Claims to Move Forward

Jackson Lewis P.C. • December 14, 2017
A data breach occurs in which an outside individual obtains your company’s employees’ W-2 forms including social security numbers, addresses, and salary information. As a result, your company notifies all affected employees, explains what occurred, and offers a complimentary two-year membership to a service that helps detect misuse of personal information. Is your company liable for negligence and breach of contract?

The Trump Board Signals Changes to Come

FordHarrison LLP • December 14, 2017
Executive Summary: In the past two weeks, the National Labor Relations Board (NLRB) has made three important announcements that signal likely changes to come under the Trump administration.

eLABORate: Majority Republican NLRB Reasserts Exclusive Authority to Settle Labor Cases

Phelps Dunbar LLP • December 14, 2017
As the National Labor Relations Board shifts to a Republican majority, a ruling this week constitutes the first of what many expect will be a series of reversals to Obama-era workplace policies.

DHS Announces Termination of Certain Countries' Temporary Protected Status Designation

Littler Mendelson, P.C. • December 14, 2017
The Secretary of the U.S. Department of Homeland Security has the authority to grant Temporary Protected Status (TPS) to eligible foreign-born individuals who are unable to return home for certain safety-related reasons. TPS may be designated to a foreign country when there are circumstances in the country preventing it from adequately handling the return of its nationals. Reasons include ongoing armed conflict, environmental disasters, and other extraordinary and temporary conditions. During a designated period, individuals who are eligible for TPS may apply for temporary employment and travel authorization.

“Honey, I Shrunk the Unions!” The Shift Towards Micro-Unions in the Gig Economy

Fisher Phillips • December 14, 2017
As union membership in the private sector continues to dwindle (down to 6.4% in 2016), the American labor movement finds itself at a crossroads with the momentous, non-union gig economy. Just as the economy has evolved juristically over time, organized labor will also be forced to reinvent itself to maintain any form of relevancy. One way this is being done is through micro-unions.

Steps to Determining Availability of Qualified Minority and Female Job Candidates

Ogletree Deakins • December 14, 2017
As part of a statistical analysis for an affirmative action program for minorities and females, contractors must estimate external availability in order to determine utilization and annual placement goals. Contractors are required to “use the most current and discrete statistical information available,” which includes census data from local job services and data from colleges and training institutions, in their external availability analyses. So how do you find the appropriate availability data for a reasonable recruitment area and a particular job title?

Hold On! — Democratic Senators Challenge New Labor Board GC’s Plans

Jackson Lewis P.C. • December 14, 2017
Senator Patty Murray (D-Wash.), Ranking Member, Committee on Health, Education, Labor and Pensions, and Senator Elizabeth Warren (D-Mass.) have written to new NLRB General Counsel Peter B. Robb “to express serious concerns regarding Memorandum 18-02, which [Robb] issued to National Labor Relations Board [] Regional Directors on December 1, 2017.” For more on NLRB General Counsel Memo 18-02, see our article, New Labor Board General Counsel Issues Plans for Reversing Course. The Senators made a number of detailed requests for information and documents regarding Robb’s decision making and thought process and requested that he provide a response by December 22.

ALERT- Plaintiff’s Bar Currently Targeting Online Hiring Practices: What Your Company Needs to Know

Jackson Lewis P.C. • December 14, 2017
The latest target of the plaintiff’s overly-aggressive tactics—a company’s use of recruitment ads in hiring employees. All industries and all forms of advertising are potentially coming under attack, including social media platforms and websites dedicated to employee recruiting. Specifically, the plaintiff’s bar has repeatedly targeted certain advertisements on social media sites that encourage individuals to apply for jobs at their company, using information obtained from user profiles.

It’s Time to be Thinking about your 2018 EEO-1 Reports

Jackson Lewis P.C. • December 14, 2017
Now that you’ve successfully filed your 2017 VETS-4212 reports, it’s time to focus on EEO-1 reporting. Most employers are not accustomed to focusing on EEO-1 reporting going into a new year, but following the filing reprieve in 2017, employers need to make sure they are prepared to file in 2018.

eLABORate: Supreme Court Declines to Decide if Title VII Protects Against Sexual Orientation Discrimination

Phelps Dunbar LLP • December 13, 2017
This morning the United States Supreme Court declined to review a case that would have resolved a circuit split over whether Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits employment discrimination on the basis of sexual orientation. As written, Title VII protects against sexual discrimination in employment, but courts across the country have taken different positions as to whether that protection extends to sexual orientation or sexual identity.

Exempt Employee Pay Minimums Will Increase in 2018 in Various States

Littler Mendelson, P.C. • December 13, 2017
As employers wait to see whether – and to what extent – the U.S. Department of Labor will revise the minimum amount they must pay to executive, administrative, and professionals for exemption from the Fair Labor Standards Act’s (FLSA) minimum wage and overtime requirements, state-law rates for these employees are scheduled to increase in 2018 (and on New Year’s Eve in New York).

Holiday P-A-R-T-I-E-S Protocol: Walking the Fine Line Between Fun and Fiasco

Littler Mendelson, P.C. • December 13, 2017
The end of the year brings many reasons to celebrate, and most employers intend to make merry by hosting a holiday party of some sort. This occasion presents an opportunity for employers to foster team spirit and express appreciation for the hard work performed by staff all year. In turn, employees appreciate the chance to interact with their coworkers outside the hectic workday.

Labor Board To Scrap Quickie Election Rule? Public Comment Requested

Fisher Phillips • December 13, 2017
In the clearest sign yet that the National Labor Relations Board is ready to shift away from the strong pro-union stance that had been taken for the previous eight years, the agency today announced that it will seek public comment on the possible revision to the representation election regulations – often known as the “quickie election” rule.

OFCCP Updates Its Key Personnel; Quietly Announces New Director

Ogletree Deakins • December 13, 2017
According to an update on the website of the Office of Federal Contract Compliance Programs (OFCCP), there has been a shift in some “key personnel.” According to the changes, Ondray T. Harris will be the new OFCCP director. Harris was previously a senior adviser at the U.S. Department of Labor’s (DOL) Employment and Training Administration and the director of the Department of Justice from 2007 to 2010.

Do Job Descriptions Really Matter in an OFCCP Compliance Review?

Ogletree Deakins • December 13, 2017
The Office of Federal Contract Compliance Programs (OFCCP) does not require that employers create written job descriptions for positions within their companies; however, well-written job descriptions can play a vital role before and during an OFCCP compliance review.

Beyond Base-Pay: EEOC Settlement Targets Sales Representative Commissions

Jackson Lewis P.C. • December 13, 2017
For some workers, the bulk of their income is commissions or other incentive-based pay, not their salary or base wage. For years, the Equal Employment Opportunity Commission, sales employees, and class action plaintiff attorneys have been interested in fair pay for sales workers and, in particular, pay discrimination involving female sales workers. A recent EEOC settlement demonstrates the need for employers to separately analyze all components of incentive-based workers’ pay.

Reminder: Electronic submission due December 15th

Jackson Lewis P.C. • December 13, 2017
Employers covered by the recordkeeping requirements in Section 1904 are reminded that Friday, December 15th is the DEADLINE to electronically submit their 2016 300A. This requirement applies to establishments with 250 or more employees and to establishments in certain high-risk industries with 20 or more but less than 250 employees.

Labor Board Asks: Retain, Modify, or Rescind ‘Quickie Election’ Rules?

Jackson Lewis P.C. • December 13, 2017
A Request for Information regarding the “Quickie Election” representation regulations (at 29 CFR parts 101 and 102) will be published on December 13, 2017, the National Labor Relations Board has announced. The RFI will seek input on the 2014 amendments to representation case procedures that reduced the opportunities for employers to communicate with their employees about union issues between the filing of a representation petition and the NLRB-conducted election.

Breaking News: New OFCCP Director Identified

Jackson Lewis P.C. • December 13, 2017
The U.S. Department of Labor has quietly identified a new Director of the Office of Federal Contract Compliance Programs. An industry news outlet is reporting DOL has confirmed Ondray T. Harris will be the new head of the agency. A new update to OFCCP’s website lists him as the Director of the Agency. Interim Director Tom Dowd is listed as the Deputy Director.

Title VII Coverage of Sexual Orientation Left Unresolved by Supreme Court

XpertHR • December 13, 2017
The US Supreme Court has declined to hear a case that could have settled the question of whether Title VII of the Civil Rights Act of 1964 protects employees from discrimination based on sexual orientation.

Top 3 Holiday and Year-End Gift-Giving Tips for Employers

XpertHR • December 13, 2017
During the holidays, many employers opt to give gifts to employees and host parties as a gesture of good will, a reward for achievements during the past year, or a morale booster to encourage continued good performance in the year ahead. But did you know that those well-meaning efforts to lift your staff’s spirits could easily end up dampening everyone’s festivities by unintentionally costing them extra in taxable wages?

The Top 15 HR Compliance Issues of 2018 – Are You Ready?

XpertHR • December 13, 2017
As 2018 draws near, employers need to take a long hard look at their workforce and gear up for the challenges that lie ahead. To get a pulse on what the top HR and employment issues are in the workplace for 2018 and the ways in which technology, society and culture converge and impact employers and their workforces, XpertHR recently conducted a survey of approximately 1,000 respondents from a wide range of industries including small, medium and large employers.

U.S. Supreme Court Allows Travel Ban to Go into Full Effect

Littler Mendelson, P.C. • December 11, 2017
On December 4, 2017 the U.S. Supreme Court stayed the restraining orders against President Trump’s travel ban.1 The stay means that the September 24, 2017 presidential proclamation restricting travel into the U.S. from eight countries has gone into full effect until a decision is rendered on pending appeals. That order barred citizens of Chad, Iran, Libya, Somalia, Syria, and Yemen who lack a “credible claim of a bona fide relationship with a person or entity in the United States” from entering the U.S. Oral arguments on the cases challenging the travel restriction were scheduled for December 6, 2017 in the U.S. Court of Appeals for the Ninth Circuit and December 8, 2017 in the Fourth Circuit.

8 For ‘18: 8 Things for Employers to Look For from OSHA and MSHA in 2018

Fisher Phillips • December 11, 2017
It’s that time of year again: for employers to celebrate the successes of the prior year and make plans and resolutions for the new one. But OSHA and MSHA are making New Year’s resolutions, too, and employers are well-advised to consider what actions these agencies may take in 2018 that could affect their businesses.

Beltway Buzz, December 8, 2017

Ogletree Deakins • December 11, 2017
Another hectic week here in D.C. has us feeling like we’re living in a glass case of emotion. Here’s why:

DOL’s Tip of the Hat to Back-of-the-House Employees: New NPRM to Rescind 2011 Regs

Ogletree Deakins • December 11, 2017
In response to significant pressure from the hospitality industry—specifically, the restaurant industry—as well as increasing litigation and changes to reduce or eliminate the use of tip credits at the state level, the U.S. Department of Labor (DOL) published a notice of proposed rulemaking (NPRM) in the December 5, 2017, edition of the Federal Register, in which it proposes to rescind its 2011 regulations concerning tip pooling.

Explanation of the DOL's Proposed Rules on Tips

Franczek Radelet P.C • December 11, 2017
There’s been plenty of press this week regarding the U.S. Department of Labor’s proposed rules governing employer treatment of tips. Commentators are debating whether the proposed changes are a sensible return to the four corners of the Fair Labor Standards Act or a cash-grab for the restaurant industry at the expense of workers. We’ll leave the economic and political analysis to others, but we do think that it’s important for employers to understand exactly what the proposal is, and is not.

Toll Road Ahead: Fourth Circuit Rules Mixed-Fleet Interstate Truck Drivers May Be Entitled to Overtime Pay

Jackson Lewis P.C. • December 11, 2017
Despite the overtime exemption provided by the Motor Carrier Act, interstate trucking employers who operate “mixed fleets” – those with vehicles both over and under 10,000 pounds – may owe overtime pay to drivers of the smaller vehicles, the Fourth Circuit Court of Appeals recently ruled. Schilling v. Schmidt Baking Co., 2017 U.S. App. LEXIS 23257 (4th Cir. Nov. 17, 2017). The Fourth Circuit has jurisdiction over Maryland, North Carolina, South Carolina, Virginia and West Virginia.

PHMSA Raises Random Drug Testing Rate to 50% for 2018

Jackson Lewis P.C. • December 11, 2017
The U.S. Department of Transportation’s Pipeline and Hazardous Materials Safety Administration announced December 8, 2017 that during calendar year 2018, the minimum random drug testing rate will be increased to 50%.

Tax-Exempts and Public Companies Beware – Major Changes to Executive Compensation Tax Rules Loom

Jackson Lewis P.C. • December 08, 2017
On December 2, 2017, the U.S. Senate passed its version of the Tax Cuts and Jobs Act (the “Senate Bill”).

Senate Bill Introduced to Protect Personally Identifiable Information

Jackson Lewis P.C. • December 08, 2017
Primarily motivated by the several recent massive data breaches, Senate Democrats recently introduced a bill geared toward protecting Americans’ personal information against cyber attacks and to ensure timely notification and protection when data is breached.

Could Congress Ban Arbitration Of Sex Discrimination And Harassment Claims?

Fisher Phillips • December 08, 2017
A bipartisan group of federal legislators has turned their attention to the sweeping revelations of sexual harassment in the American workplace by introducing a bill that would prevent employers from forcing claims of sex discrimination or harassment into arbitration. If passed and signed into law, this legislation could have a profound impact on employment policies and practices, not to mention litigation that results from workplace conflicts. What do employers need to know about the Ending Forced Arbitration of Sexual Harassment Act?