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Ice Raids Continue, When Will They Hit Northeast?

Brody and Associates, LLC • March 19, 2019
Immigration and Customs Enforcement (ICE) raids are continuing with the latest being a grocery store in San Diego, California and a factory in Sanford, North Carolina. In the latest raid or “Judicial Warrant Enforcement Action” as ICE refers to them, 26 employees at Zion Market, a popular Korean grocery store, were taken into custody by ICE for failure to have valid work authorization. At the same time, ICE agents executed a federal search warrant at the business.

NIST Publishes Guide to Secure an Organization’s Mobile Devices

Jackson Lewis P.C. • March 19, 2019
Just last month, the National Cybersecurity Center of Excellence (NCCoE), a part of the National Institute of Standards and Technology (NIST), published guidance for public and private companies to protect mobile devices and help prevent data breaches.

Scabby the Rat: Threatening Pest or Famous Labor Icon?

Jackson Lewis P.C. • March 19, 2019
Employers have at least one way to rid themselves of Scabby the Rat, a staple of labor union protest, following a decision from a federal appeals court upholding an ordinance enacted by the Town of Grand Chute, Wisconsin, banning anything placed on a public right-of-way that might obstruct vision or distract passing drivers. Construction & Gen. Laborers’ Union 330 v. Town of Grand Chute, No. 18-1739 (7th Cir. Feb. 14, 2019). The Seventh Circuit has jurisdiction over Illinois, Indiana, and Wisconsin.

Contractors, Your Subcontractors’ Wage and Hour Practices are Your Business

Jackson Lewis P.C. • March 19, 2019
A prime or general contractor may be held jointly and severally liable for any violations, including wage and hour violations, by its subcontractors if the contractor is found to be a joint employer with the subcontractor under applicable federal or state law.

DOL Proposes New Revisions to Overtime Exemption Rules

FordHarrison LLP • March 19, 2019
Executive Summary: The U.S. Department of Labor (DOL) recently issued its proposed overtime regulations to replace the Obama administration’s (enjoined) overtime rule. The DOL raised the minimum salary threshold requirement for workers to qualify for the Fair Labor Standards Act’s white collar exemptions to $35,308 per year (or $679 per week). The proposed rule raises the threshold from $23,660 per year (or $455 per week). For highly compensated employees, the DOL raised the salary threshold from $100,000 to $134,000. The proposed regulation would make more than one million additional workers eligible for overtime. The DOL also proposed regular increases to the threshold every four years following public comment.

EEOC Portal Opens for EEO-1 Filings With No Word on Employee Compensation

Littler Mendelson, P.C. • March 19, 2019
On March 18, 2019, the EEO-1 filing portal opened, allowing employers with 100 or more employees and covered federal contractors with 50 or more employees to begin filing EEO-1 reports. This is consistent with the schedule set by the Equal Employment Opportunity Commission (EEOC) following the partial government shutdown in early 2019, which resulted in a postponement of the EEO-1 filing from March 31, 2019 until May 31, 2019.

Dueling Paid Leave Plans Introduced In Congress

Fisher Phillips • March 19, 2019
There seems to be growing momentum in Washington, D.C. to establish a national paid leave program, but – as with most things in the nation’s capital – there seem to be differing views on how to accomplish this stated goal of both political parties. Although the White House unveiled a budget proposal on March 11 calling for the establishment of a paid parental leave program, that $750 million funding wish aims for the creation of paid leave programs at the state level that are “most appropriate for their workforce and economy.” Meanwhile, leaders from both parties have recently unveiled their own plans to create sweeping federal paid leave programs – one of which goes beyond parental leave.

Pay Equity Co-Chairs Discuss Supreme Court’s Pay Bias Ruling

Fisher Phillips • March 19, 2019
The U.S. Supreme Court took an unusual step in vacating a 2018 decision from the U.S. Court of Appeals for the Ninth Circuit because the judge who authored the opinion, and was part of the majority in the precedent-setting ruling, died before the decision was published. The high court reversed a landmark pay equity ruling that held employers could not justify wage differentials between men and women by relying on previous salary information.

EEOC Opens Portal for 2018 EEO-1 Reporting and Must Provide Guidance on Pay Data Reporting by April 3

Jackson Lewis P.C. • March 19, 2019
The U.S. District Court hearing the EEO-1 pay data reporting case has ordered EEOC to inform employers by April 3, 2019, whether they will be required to provide pay and hours worked data for the 2018 EEO-1 reporting cycle. The current deadline for 2018 EEO-1 reporting is May 31, 2019.

UPDATE: EEOC Has Until April 3 to Advise About Pay Data Reporting

Jackson Lewis P.C. • March 19, 2019
In the continually developing story of employee pay data reporting, the Judge who overturned the stay on the EEO-1 reporting obligation has granted the government until April 3 to inform employers as to whether they will be required to report pay data as part of this year’s EEO-1 reporting cycle, which opened Monday, March 18th and runs through May 31 – at least currently.

Key Takeaways From an ERISA Fiduciary Breach Ruling on Behavioral Standards of Care After a 10-Day Trial

Ogletree Deakins • March 19, 2019
Behavioral health claims administrators and plan sponsors alike may be looking more closely at their care guidelines—and how they are applied—after a federal court ruled in a California class action that a claims administrator had breached its fiduciary duty under the Employee Retirement Income Security Act of 1974 (ERISA) by applying standards of care that were more restrictive than generally accepted standards and by improperly prioritizing cost savings.

The Pendulum Keeps Swinging -- EEO-1 Pay Data Update

Ogletree Deakins • March 19, 2019
The 2018 EEO-1 Survey Site officially opened on Monday, March 18, 2019. While there was some confusion about this year’s filing requirement due to the recent court decision reinstating the pay data component, the current filing format is the same as last year, with no pay data required. The current deadline to file 2018 EEO-1 reports is May 31, 2019.

Enhancing the “Human” in “Human Resources” – How AI Can Unlock Talent and Eliminate Bias

Littler Mendelson, P.C. • March 18, 2019
In this podcast, Aaron Crews, Littler’s Chief Data Analytics Officer, discusses potential uses for AI in supporting HR decisionmaking with Athena Karp, the CEO and cofounder of HiredScore. They explore ways that technology – such as explainable algorithms – can serve employers by improving the effectiveness and transparency of processes for companies and other stakeholders, including candidates. They also address how organizations can structure, validate and verify their data and data training to prevent bias from sneaking into AI-driven analysis.

DOL Issues Three Opinion Letters Regarding Employer Designation of FMLA Leave, Bonuses to Employee Volunteers, and Compensation of Residential Janitors

Littler Mendelson, P.C. • March 18, 2019
The U.S. Department of Labor's Wage and Hour Division (WHD) issued three new opinion letters on March 14, 2019. The letters clarify diverse issues, including initiation and duration of FMLA leave, compensability of employees’ time spent on volunteer community service for which the employer offers a bonus, and compensation of residential janitors.

Employers Get A Pay Data Reporting Reprieve – But For How Long?

Fisher Phillips • March 18, 2019
Despite a recent court ruling resurrecting the requirement that employers turn over compensation information along with standard demographic figures, the EEOC this morning unveiled its 2019 EEO-1 reporting system that fails to include any request for such pay data. It appears as though employers will not have to provide information about their employees’ 2018 compensation for the time being – although you should still be prepared for this to change at a moment’s notice, and should begin preparing for such pay disclosures in the near future.

Student Loan Repayment Legislation Proposed

XpertHR • March 18, 2019
With tens of thousands of workers entering the labor market with student loan debt, Congress has introduced legislation to increase the ability of employers to provide student loan repayment benefits to their employees. The federal government estimates that there are 44 million Americans with a total student debt load of more than $1.5 trillion.

March Madness 2019: Why Employers Should Embrace It...To a Point

XpertHR • March 18, 2019
I’m always amused when employment lawyers trip over themselves each year at this time to blog about the risks of gambling and lost productivity with the always-popular NCAA basketball tournament. It’s akin to the famed quote from Casablanca when Captain Renault says in Rick’s Cafe, “I’m shocked, shocked to find that gambling is going on in here!”


Jackson Lewis P.C. • March 18, 2019
In 2008, the IRS established a voluntary correction program aimed at plan sponsors and administrators to encourage resolution of plan document or operational failures as soon as they are discovered. The Employee Plans Compliance Resolution System, or “EPCRS” as it is most often called, stresses the importance of established administrative practices and procedures to avoid Internal Revenue Code failures that may arise from a lack of such practices and procedures. EPCRS consists of three programs, Self-Correction Program (SCP), Voluntary Correction Program (VCP), and the Audit Closing Agreement Program (Audit CAP). Each of the correction principles and methodologies in EPCRS apply to all three programs.

Can an Employee Decline FMLA Leave Even though the Absence is Covered by the FMLA? According to the DOL, the Answer is an Emphatic “NO.”

Littler Mendelson, P.C. • March 17, 2019
Every one of you employs at least one of these employees — you know, the one who:

Avoiding Workplace Discrimination in the Wake of Mass Violence

Littler Mendelson, P.C. • March 17, 2019
The morning after any kind of mass violence playing on loop on every media outlet poses unique challenges to employers and managers. Not only can workplace conversations turn uncomfortable and potentially inappropriate, but trauma that is not adequately addressed can have a direct impact on workplace productivity. How can an employer respond to emotional discussions while being sensitive to employees whose racial, religious, sexual, or ethnic identity was a focus of the underlying attacks and is a subject of media attention?

Awarding Bonuses Does Not Make Volunteering Time Compensable Under FLSA, DOL Says

XpertHR • March 17, 2019
Awarding bonuses to certain employees who participate in an optional volunteer program does not mean that an employer must pay them for the time they spend volunteering, according to a new opinion letter from the US Department of Labor (DOL).

Fishing for a Lawsuit: Tips and Tricks for Personnel Files and Pre-Litigation Records Requests

Jackson Lewis P.C. • March 17, 2019
If you have ever received a pre-litigation records request, then you may already know that such a request tends to be a harbinger of a lawsuit on the horizon. Plaintiff’s lawyers regularly use Labor Code provisions to obtain pay and personnel records, before a lawsuit has been filed.

Aiming for Gender Equity One Employer at a Time

XpertHR • March 17, 2019
As we celebrate Women’s History Month this March, it has been 55 years since the passage of Title VII which banned gender discrimination (along with race, religion, color and national origin discrimination) by employers.

OSHA Requests Information for Use of Powered Industrial Trucks in Maritime, Construction and General Industry

Jackson Lewis P.C. • March 17, 2019
On March 11, 2019, OSHA issued a Request for Information (RFI) in the Federal Register seeking comments and information from stakeholders regarding the use of powered industrial trucks (PITs) for maritime (1915.120, 1917.43, 1918.65) construction, (1926.602(c), (d)), and general industries (1910.178). OSHA is considering revising current standards regarding powered industrial trucks and this information will assist the agency in determining what actions, if any, it will take in revising these standards.

DOL Opinion Letter Clarifies Designation and Use of FMLA Leave

Ogletree Deakins • March 17, 2019
On March 14, 2019, Keith Sonderling, the acting administrator of the Wage and Hour Division (WHD) of the Department of Labor (DOL) issued an opinion letter clarifying the DOL’s position on designating and taking leave under the Family and Medical Leave Act (FMLA) and placing the department at odds with the Ninth Circuit’s Escriba decision.

Beltway Buzz, March 15, 2019

Ogletree Deakins • March 17, 2019
New Shimmer’s a Floor Wax and a Dessert Topping! The Buzz couldn’t help but think of this memorable Saturday Night Live bit this week upon the release of the administration’s fiscal year (FY) 2020 budget proposal on March 11, 2019.

Was Colin Kaepernick Blackballed by the NFL?

Brody and Associates, LLC • March 14, 2019
Colin Kaepernick, a famous athlete, just settled one of the most high-profile legal actions in the sports world. Kaepernick, a star National Football League (“NFL”) quarterback, at one point took his team – the storied San Francisco 49ers franchise – to the Super Bowl (losing in a heartbreaker to the Baltimore Ravens). He has the second lowest interception percentage in NFL history, fourth best touchdown-to-interception ratio, and best ever rushing yards by a quarterback in a game and in a single postseason. But it has been years since he has been signed to an NFL contract, causing him to file a grievance against the NFL and its constituent teams alleging they blackballed him. So, what was this all about?

EEOC's Revised Pay Data Reporting Requirements Reinstated by Federal Judge

FordHarrison LLP • March 14, 2019
Executive Summary: On March 4, 2019, the U.S. District Court for the District of Columbia ruled to reinstate Obama-era revisions to the pay data reporting requirements established by the Equal Employment Opportunity Commission (EEOC), which effectively expand employers’ EEO-1 reporting requirements and obligate them to submit detailed employee pay data annually to the EEOC. This ruling will have important consequences for employers, and has raised understandable uncertainty and concern among the business community.

eLABORate: Spreading Workplace Rumors of "Sex for Promotions" Can Constitute Sexual Harassment

Phelps Dunbar LLP • March 14, 2019
In a significant decision, the United States Court of Appeals for the Fourth Circuit reversed a lower court and held that false workplace rumors that a female employee had been promoted for having sex with her boss could serve as the basis for sexual harassment and retaliation claims against an employer. The case also serves as a warning to employers of the costs involved in not effectively addressing such situations.

DOL’s Proposed Overtime Regulations: A ComplianceHR and Littler Briefing

Littler Mendelson, P.C. • March 14, 2019
On March 7, 2019, the Wage and Hour Division of the U.S. Department of Labor published the long-awaited Notice of Proposed Rulemaking (NPRM) to revise the “white collar” overtime exemption regulations to $35,308. Issued under the Fair Labor Standards Act, these regulations implement exemptions from the overtime pay requirements for executive, administrative, professional, and certain other employees. If adopted, the proposed rule would replace the final rule issued in 2016. Although comments on the NPRM are due 60 days after official publication in the Federal Register, the time to prepare for change is now.

Recent SCOTUS Case Swift-ly Comes Home To Roost For Transportation Company

Fisher Phillips • March 14, 2019
The $100 million settlement announced Monday by a transportation company to resolve a long-running misclassification claim might be the direct result of a January Supreme Court decision, and might be a troubling harbinger of things to come for many gig economy businesses. Swift Transportation paid the massive sum to a group of drivers who claimed they were improperly classified as “owner-operator” contractors when they should have been treated as employees, but only agreed to the deal after it became clear that recent legal precedent from the SCOTUS meant that they could not resolve the dispute in arbitration. What does this settlement signal for gig economy businesses in general?

DOL Proposes New Rule Raising the Salary Threshold for White-Collar Overtime Exemptions

Nexsen Pruet • March 14, 2019
Last week, the U.S. Department of Labor (DOL) issued a Notice of Proposed Rulemaking that would raise the minimum salary threshold required for workers to qualify for the overtime exemptions for executive, administrative and professional workers under the Fair Labor Standards Act (FLSA). The proposal increases the threshold for the white-collar exemptions to $35,308 per year, or $679 per week, up about $12,000 from the current level of $23,660 per year ($455 per week). If approved, the DOL estimates the new rule would take effect in January 2020, and extend overtime protections to more than 1 million workers who are not currently eligible for overtime.

WHD Issues New Opinion Letter: Compensability of Time Spent in Employer-Sponsored Community Service Program

Ogletree Deakins • March 14, 2019
On March 14, 2019, the Wage and Hour Division (WHD) of the U.S. Department of Labor (DOL) issued two new opinion letters addressing compliance under the Fair Labor Standards Act (FLSA). The first opinion letter addresses wage and recordkeeping requirements for residential janitors. The second opinion letter addresses the compensability of time spent by employees participating in an employer-sponsored community service program. This opinion letter (FLSA 2019-2) addresses whether time spent by an employee participating in an employer’s voluntary charitable program constitutes hours worked under the FLSA.

Unions Challenge MSHA’s New Workplace Exam Rule for Metal and Nonmetal Mines

Ogletree Deakins • March 14, 2019
On March 12, 2019, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit heard oral argument in United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union v. Mine Safety and Health Administration, USCA Case No. 18-1116.

Key Immigration Considerations During Mergers and Acquisitions, Part II: Green Cards

Ogletree Deakins • March 14, 2019
Part one of this two-part series outlined common considerations related to temporary work visas employers may have during the due diligence process of a merger, acquisition, or other corporate restructuring. Part two will cover key considerations for employers during a pre-close assessment of impacted foreign national workers—this time, regarding green card processing.

Transformational Artificial Intelligence: Prioritizing AI in Healthcare While Maintaining Legal Compliance

Ogletree Deakins • March 14, 2019
In February 2019, President Trump signed an executive order titled “Maintaining American Leadership in Artificial Intelligence,” also known as the American AI Initiative, that aims to increase the use of artificial intelligence (AI) nationwide.

Caring for Our Caregivers: House Subcommittee Holds Hearing on Healthcare Workplace Violence Bill

Ogletree Deakins • March 14, 2019
On February 27, 2019, the U.S. House Subcommittee on Workforce Protections held a hearing on House Resolution 1309, the Workplace Violence Prevention for Health Care and Social Service Workers Act, introduced by Representative Joe Courtney (D-CT). Courtney introduced a prior version of the bill in November 2018, House Resolution 7141, but it did not move forward. Nevertheless, this hearing indicates that the current bill might not suffer the same fate.

EEOC’s Proposed Changes May Lead to Increased Charge Activity and Subsequent Litigation

Ogletree Deakins • March 14, 2019
On February 22, 2019, the U.S. Equal Employment Opportunity Commission (EEOC) issued a notice of proposed rulemaking (NPRM) to update and amend procedural regulations to fully digitize the EEOC’s charge processing and records systems, clarify the meaning and significance of a “no cause” determination, and delegate the issuance of dismissals to lower-level EEOC employees. This NPRM triggered a 60-day public review and comment period. If the proposed rule becomes final, it could result in increased charge activity and subsequent litigation.

No Poach Agreements Continue To Cause Ire

Brody and Associates, LLC • March 13, 2019
As many employers know, there is no federal law that prohibits a company from entering into a contract with one of its employees to prevent that employee from quitting, going to a new employer and bring co-workers with him/her. In legal terms, this is usually referred to as a “no-solicitation” provision. State laws dictate the enforceability of these types of provisions generally. A similar type of provision is a “no poach” provision – but this one is between companies and it prohibits them from stealing each other’s employees. These are not so easy to enforce and might actually land a company in some very hot water.

When Does A $20 Million Settlement Feel Like A Bargain? Uber Shows You How

Fisher Phillips • March 13, 2019
When the news broke today that Uber had agreed to pay a group of drivers $20 million to settle a long-running misclassification claim, you could be forgiven for thinking that the deal sounded like a massive blow to the gig economy giant. After all, $20 million is a substantial sum – no matter how large a company is – and in most cases would be an indication that the paying party had given in to the exorbitant demands of the claimants. But this settlement is different. It resolves a claim that Uber had originally agreed to settle for $100 million – five times the amount of the final total. How did Uber get such a bargain?