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Employers Can't Use Salary History to Justify Gender Pay Gaps, 9th Circuit Rules

XpertHR • April 22, 2018
An employee's prior salary cannot justify a pay gap between men and women for performing similar work, the 9th Circuit Court of Appeals has ruled in Rizo v. Yovino.

6 Takeaways for Employers from the Starbucks Incident

XpertHR • April 22, 2018
The recent incident at a Philadelphia Starbucks holds valuable lessons for employers when it comes to managing and training a workforce. What was a bad situation quickly became a terrible one as the shop’s manager called the cops and had two black men arrested for trespassing when they were arguably waiting for a friend at the store.

EEO-1 Filing Deadline Extended

Jackson Lewis P.C. • April 22, 2018
Without much fanfare, the U.S. Equal Employment Opportunity Commission’s EEO-1 Joint Reporting Committee has extended the deadline for filing of this year’s EEO-1 Survey until June 1, 2018.

Employers Cannot Consider Prior Salary History to Justify Wage Gap under the Federal Equal Pay Act

Jackson Lewis P.C. • April 22, 2018
On April 9, 2018, the Ninth Circuit Court of Appeals issued its opinion in Rizo v. Yovino, holding that employers cannot consider an employee’s prior salary either alone or in combination with other factors to justify salary differentials between men and women for the purposes of the federal Equal Pay Act.

IRS Issues Guidance FAQs Regarding the Paid Family Leave Federal Tax Credit

Jackson Lewis P.C. • April 22, 2018
This week, the Internal Revenue Service (IRS) issued FAQ guidance regarding the employer tax credit for paid family and medical leave. As a reminder, the Tax Cuts and Jobs Act of 2017 (the Act) provides a tax credit to employers that voluntarily offer paid family and/or medical leave to employees. The FAQs clarify some of the requirements in Section 45S of the Act that an employer’s paid family and/or medical leave policy must include. The FAQs also clarify other details, such as the basis for the credit and the tax credit’s impact on an employer’s deduction for wages paid to an employee who is on a qualifying leave.

Defining Who Is Part of the FLSA Collective Action Party

Jackson Lewis P.C. • April 22, 2018
It is a party that most employers don’t believe is a lot of fun: a FLSA collective action party. In a case of first impression, the Eleventh Circuit addressed the question of whether an opt-in plaintiff is required to do anything beyond filing a written consent to become a party plaintiff in a collective action under the FLSA, 29 U.S.C. §216(b).

DOL Publishes New Fact Sheet Regarding Overtime Regulations for Higher Education Employees

Ogletree Deakins • April 22, 2018
On April 12, 2018, the U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD) issued a new fact sheet concerning “the applicability of [the white collar] exemptions [of the Fair Labor Standards Act] to jobs that are common in higher education institutions.” In contrast to other recent DOL direction, Fact Sheet #17S largely echoes previous guidance from the Obama-era DOL. Specifically, it summarizes points from the DOL’s May 2016 Guidance for Higher Education Institutions on Paying Overtime under the Fair Labor Standards Act, a publication anticipating the never-implemented DOL’s revised overtime regulations, which would have raised the salary threshold for previously-exempt employees at institutions of higher education.

OFCCP Makes FY 2018 Scheduling List Methodology Available

Ogletree Deakins • April 22, 2018
The Office of Federal Contract Compliance Programs (OFCCP) recently released its scheduling methodology for the fiscal year (FY) 2018 scheduling list. The two-page document describes the process the agency used to develop the FY 2018 Supply and Service scheduling list, from downloading information on federal contracts, consolidating the information to create a single record on each contract, and removing certain contracts (i.e., cancelled or expired contracts) from the collected data.

Beltway Buzz, April 20, 2018

Ogletree Deakins • April 22, 2018
Ring Recusal Request. On April 16, management attorney John Ring was sworn in as chair and fifth member of the National Labor Relations Board (NLRB). But before Ring even had an opportunity to learn where the coffee and bathrooms are located at 1015 Half Street, he was met with a motion to recuse himself from a pending case based on the fact that the firm where he previously worked had represented one of the parties involved. With a recusal “victory” under their belts as a result of the Hy-Brand Hijinks™, look for labor unions and their allies to play the recusal card quite often in the coming months. The Buzz predicts that this will have the effect of slowing down the Board’s policy agenda, which is the whole point, after all.

Ninth Circuit Holds "Catchall" Exception to the Equal Pay Act is Limited to "Job-Related" Factors, Excludes Consideration of Prior Salary

Littler Mendelson, P.C. • April 22, 2018
In Rizo v. Yovino,1 the U.S. Court of Appeals for the Ninth Circuit recently examined whether an employer can justify a wage differential between male and female employees by relying on prior salary. The Ninth Circuit determined that prior salary—alone or in combination with other factors—cannot justify such a wage differential because prior salary is not job-related, and perpetuates the gender-based assumptions about the value of work that the Equal Pay Act was designed to end. In reaching this conclusion, the Ninth Circuit became the first appellate court to definitively address whether and how employers may consider wage history. Other federal appellate courts that have examined this question have typically concluded that while employers may not rely on an individual’s salary history alone to support a wage differential, they may do so if prior salary is considered among other factors.2

DOL Issues New Information on its PAID Self-Audit and Self-Reporting Program

Littler Mendelson, P.C. • April 22, 2018
Last month, we reported on the U.S. Department of Labor, Wage and Hour Division’s (“WHD”) newly created Payroll Audit Independent Determination (“PAID”) Program, through which employers can proactively seek to resolve potential and actual violations of the Fair Labor Standards Act (“FLSA”). The WHD recently issued additional information on the program. While not all-encompassing, the new publication sheds more light on the program’s mechanics and the “steps” employers must take to participate.

The U.S. Supreme Court Dismisses U.S. v. Microsoft Following Passage of the CLOUD Act

Jackson Lewis P.C. • April 22, 2018
On April 17th, the U.S. Supreme Court dismissed the highly anticipated U.S. v. Microsoft, ruling that recently enacted legislation rendered the case moot. Microsoft Corp. had been in litigation with the U.S. Department of Justice (DOJ) for several years over the issue of whether Microsoft must comply with a U.S. search warrant for access to customer’s emails and other personal data within its “possession, custody or control”, regardless of whether such data is stored within the U.S. or abroad.

New York Passes New Anti-Sexual Harassment Laws

XpertHR • April 22, 2018
New York employers must comply with several new anti-sexual harassment laws that were included in the state budget signed by Governor Andrew Cuomo on April 12. The provisions range from requiring employers to hold annual training to prevent sexual harassment, and prohibiting the use of nondisclosure agreements in sexual harassment settlements, to eliminating mandatory arbitration clauses for sexual harassment claims and extending the state's human rights law to cover certain non-employees who work under contract. The provisions have various effective dates:

Massachusetts and the Ninth Circuit: Recent Ban On Using Prior Salary as Basis for Gender Pay Gap

FordHarrison LLP • April 22, 2018
Executive Summary: The federal Equal Pay Act already imposes limitations on employers when it comes to compensating employees of the opposite sex for equal work. With a recent legislative change in Massachusetts and a decision earlier this month out of the Ninth Circuit, however, several jurisdictions now prohibit the use of prior salary as a justification for any pay differential between men and women.
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