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ten most recent federal employment law articles Ten Most Recent Federal Articles

Equal Pay Act Claim Requires Show of Pay Disparity “Based on Sex” as Part of Prima Facie Case, Court Holds

Jackson Lewis P.C. • September 20, 2018
Departing from other federal appeals courts, the U.S. Court of Appeals for the Federal Circuit has held that Equal Pay Act plaintiffs must establish that the pay differential between similarly situated employees is “historically or presently based on sex” to make out a prima facie case.

Full 9th Circuit Approves "20% Rule" for Tipped Employees

Littler Mendelson, P.C. • September 20, 2018
Many years ago, the U.S. Department of Labor (DOL) issued guidance known as the "20% Rule" or "80/20 Rule," which provides that, where tipped employees spend in excess of 20% of their workweek on non-tip-earning tasks, no tip credit may be taken for the time spent in such duties. The 20% Rule has been the subject of much litigation in courts across the country. In September 2017, a three-judge panel of the Ninth Circuit Court of Appeals rejected the DOL’s guidance, finding that it was not entitled to any deference.1 A year later, on September 18, 2018, the full Ninth Circuit reversed the earlier three-judge panel decision, and held that the DOL guidance was entitled to deference,2 meaning that the 20% Rule is alive and well (at least in the Ninth Circuit).

Answers to Frequently Asked Questions on the NLRB’s New Joint Employment NPRM

Ogletree Deakins • September 20, 2018
On September 14, 2018, the National Labor Relations Board (NLRB) published a notice of proposed rulemaking (NPRM) in the Federal Register addressing how it will determine whether an employer is a joint employer of another entity’s employees. The NPRM presents the potential for a welcome change for employers, many of which have struggled with the strict joint employment standard imposed over the last few years. Here are answers to some frequently asked questions about the NPRM and its practical impacts on employers below.

Breaking News: OFCCP Releases Compliance Transparency and Ombud Service Directives

Jackson Lewis P.C. • September 19, 2018
There is no rest for the weary at OFCCP. Continuing the steady flow of Directives and proposals as well as audits coming out of Washington D.C., the Agency has released two additional directives in furtherance of the Administration’s commitment to transparency and certainty.

Service Animals and the ADA - Part IV

FordHarrison LLP • September 19, 2018
The Americans With Disabilities Act (ADA) requires covered entities to make "reasonable modifications" in their policies, practices, or procedures when necessary to accommodate people with disabilities. Many individuals with disabilities use a service animal to conduct their daily life activities. Thus, businesses that have a "no pets" policy generally must modify the policy to allow “service animals” into their facilities.

Employees in Multiple States: Keeping track of changing laws and policies

Nexsen Pruet • September 19, 2018
Many employers based in the Carolinas have employees across the country, meaning they must keep up to speed on legal developments affecting employers in the states where they have workers.

Department of Education has Drafted Long-Awaited Title IX Regulations on Sexual Misconduct

Jackson Lewis P.C. • September 19, 2018
The Department of Education (DOE) reportedly has drafted proposed Title IX regulations on sexual misconduct on college and university campuses. Although the Department has yet to officially publish the proposed regulations, on August 29, 2018, The New York Times reported on the unofficial draft. The draft, which subsequently began to circulate on the internet, provides a preview of what the official proposed regulations may include.

OFCCP’s Proposed Directive Encourages Contractors to Consider FAAPs as an Alternative to Establishment-Based AAPs

Ogletree Deakins • September 18, 2018
On September 11, 2018, the Office of Federal Contract Compliance Programs (OFCCP) published a notice in the Federal Register and a draft of a revised directive to “establish policies and procedures for requesting and maintaining FAAP Agreements.” The revised directive and notice suggest that OFCCP is seeking to increase functional affirmative action program (FAAP) participation. In fact, OFCCP has stated that FAAPs may offer a solution for today’s workforce and “encourages all contractors who need to develop an affirmative action program (AAP) to consider using a FAAP.” But contractors may want to carefully consider whether a FAAP agreement with OFCCP is right for them.

Settling Plaintiff May Still Have Standing And Adequacy To Pursue Class Action and PAGA Claims

Jackson Lewis P.C. • September 18, 2018
A California federal judge recently certified a class of at least 843 Cinemark workers who allege Cinemark, a movie theater chain, failed to properly list overtime rates on employee wage statements, notwithstanding the fact that the purported class representative, Silken Brown, had settled her individual claim during the pending litigation. In opposing class certification, Cinemark raised challenges to Brown’s typicality as to the class and adequacy to represent the class as a result of Brown’s individual settlement.

Out With the Old: Be Sure to Use the "New" FMLA Forms

Goldberg Segalla LLP • September 18, 2018
The U.S. Department of Labor (DOL) announced its release of "new" model Family and Medical Leave Act (FMLA) notice and certification forms (available on the DOL website).