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

Do Discharges Resulting From a Career Planning Program Amount to Group Termination Under the OWBPA?

Ogletree Deakins • July 28, 2015
In Barnes v. The Hershey Company, No. 3:12-cv-01334, Judge Charles R. Breyer of the U.S. District Court for the Northern District of California granted summary judgment to an employer on the age claims brought by several former employees who had signed waivers of their age discrimination claims when they were discharged. The issue before the court was whether the waivers complied with the Older Workers Benefit Protection Act of 1990 (OWBPA).

In Shift, Labor Board Requires Employers to Disclose Witness Statements

Jackson Lewis P.C. • July 28, 2015
Overturning a 37-year-old precedent, the National Labor Relations Board has decided that witness statements obtained by an employer during an investigation of employee misconduct and requested by a union representative no longer will enjoy special protection from disclosure. American Baptist Homes of the West d/b/a Piedmont Gardens, 362 NLRB No. 139 (June 26, 2015).

Second Circuit Adopts New 'Primary Beneficiary Test' for Determining Whether Unpaid Interns Are Employees

Schulte Roth & Zabel LLP • July 28, 2015
A recent wave of multimillion-dollar lawsuits brought against employers by unpaid interns demanding compensation for their work has resulted in settlements but no definitive word from the federal courts on when interns should be considered employees. Despite the volume of litigation in this area, the factors that federal district courts have considered to determine whether an intern must be paid have varied, leaving the issue unsettled — until this month, when the U.S. Court of Appeals for the Second Circuit ruled on the issue. On July 2, 2015, the Second Circuit in Glatt v. Fox Searchlight Pictures held that a new test — the “primary beneficiary test” — should be used to determine whether an intern must be considered an employee and thus paid.

Lawmakers in a score of states aim for work balance by statute

Nexsen Pruet • July 28, 2015
Even Nebraska and North Dakota, conservative states wary of placing restrictions on employers, enacted new protections for pregnant women in the workplace, showing that both parties are heeding the complaints of their harried constituents.

DOL’s Recent Guidance on the “Economic Realities” Test and Effects on Independent Contractor Misclassification in the Energy Industry

Ogletree Deakins • July 28, 2015
Paying hot-shot drivers by the load or mile? Contracting out repair work to vehicles or machinery? Are individuals who regularly perform work integral to your business being paid through accounts payable? Have welders that you regularly call for work? Under new guidance published by the U.S. Department of Labor (DOL), what might be considered standard or normal practices in the energy industry could expose employers to claims and the risk of significant damages under the Fair Labor Standards Act (FLSA).

USCIS Issues Final Guidance on When to File an Amended or New H-1B Petition After Matter of Simeio Solutions, LLC – But Cautions the Public: ‘Don't Rely on It'

FordHarrison LLP • July 28, 2015
Executive Summary: On July 21, 2015, USCIS issued Final Guidance for agency adjudicators regarding applying the precedent decision, Matter of Simeio Solutions, LLC. As we previously reported, Matter of Simeio radically reinterpreted the agency's H-1B regulations retroactively to require filing an amended petition whenever an H-1B temporary worker is moved to a worksite not identified in an approved or pending petition that requires a new, certified labor condition application (LCA). On May 21, 2015, USCIS issued, for notice and comment, Proposed Guidance regarding implementing Matter of Simeio – Guidance we believed to be flawed, as discussed in more extended commentary. The Final Guidance continues to raise serious concerns for employers in the business and IT consulting industry who are most threatened by the Simeio rule.

USCIS Issues Final Guidance on When to File an Amended or New H-1B Petition

Jackson Lewis P.C. • July 28, 2015
Following the decision of the Administrative Appeals Office (AAO) of USCIS, USCIS has issued a new Policy Memorandum to its employees outlining when an amended H-1B petition must be filed.

Immigration-Related Administrative Penalties on the Rise, Congressional Report Finds

XpertHR • July 28, 2015
The Congressional Research Service (CRS) has issued a report that examines annual changes and trends in immigration-related worksite enforcement, revealing an upward trend in administrative fines and penalties. Employers can expect continued, focused enforcement in this compliance area: the report concludes that federal agency enforcement may be lagging given the estimated size (8.1 million workers) of the unauthorized US labor force.

Attorneys: Don’t Hack Your Adversaries’ Files

Goldberg Segalla LLP • July 28, 2015
Professionals look for ways to gain an edge over their competition. Taking extra time to prepare, investigate claims, and anticipate an adversary’s strategy can often mean the difference between success and failure. However, professionals must ensure that their attempts to gain a tactical advantage do not run afoul of ethics rules. When professionals cross the line, they not only jeopardize their clients’ interests, but also put themselves at risk of litigation or disciplinary action. Some lines are clearer than others. For example, one firm recently learned that it is improper to hack into an adversaries’ files to gain a strategic edge.

IRS Prohibits Future Annuity-to-Lump Sum Conversions for Defined Benefit Plan Retirees Currently Receiving Benefits

Jackson Lewis P.C. • July 28, 2015
On July 9, 2015, the IRS released Notice 2015-49 (the “Notice”) informing taxpayers that the Service and the Treasury intend to amend the required minimum distribution regulations to eliminate the recent defined benefit (“DB”) plan risk management strategy of offering lump sum payments to replace annuity payments to retirees currently receiving joint and survivor, single life, or other life annuity benefit payments.