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80/20 Tip Credit Rule Is Target of Restaurant Group Lawsuit

XpertHR • July 18, 2018
The restaurant industry is hoping to overturn a federal policy that prohibits employers from claiming a minimum wage tip credit for employees who spend more than 20% of their time performing duties that do not directly produce tips, such as washing dishes or making coffee.

Supreme Court Clarifies FLSA Exemption for Sales, Service Advisors, Partsmen, and Mechanics

Nexsen Pruet • July 18, 2018
The U.S. Supreme Court recently gave relief to automotive, tractor, and aircraft dealerships, clarifying that service advisors are – like salesmen, partsmen, and mechanics – exempt from payment of overtime under the Fair Labor Standards Act (FLSA).

EEOC Fights to Keep #MeToo Movement Alive

Nexsen Pruet • July 18, 2018
The Equal Employment Opportunity Commission (EEOC) sometimes chooses to file a lawsuit against an employer, on an employee’s behalf, after investigation of a charge of discrimination. Typically, the EEOC chooses to litigate only a very small percentage of all charges filed. In this past June alone, however, the commission filed eight lawsuits alleging sexual harassment against employers, thus perpetuating the #MeToo movement.

USCIS Adjudicators Given the Go-Ahead to Deny Cases Without First Issuing a Request for Evidence

Ogletree Deakins • July 18, 2018
Effective September 11, 2018, adjudicators for U.S. Citizenship and Immigration Services (USCIS) will have the authority to deny any application or petition that is incomplete or lacks sufficient evidence without first issuing a request for evidence (RFE) or notice of intent to deny (NOID). The new guidelines are a reversal of the current policy, which requires that an RFE be issued unless there is “no possibility” that the deficiency can be remedied. Depending on the vigor with which it is enforced, this policy shift may eliminate the opportunity for petitioners and applicants to correct simple errors, like missing documents, or to beef-up documentation in support of an applicant’s eligibility, before the case is denied.

Antitrust Director Signals Heightened Focus On Deterring No-Poach Agreements In Healthcare Industry

Jackson Lewis P.C. • July 18, 2018
As we have reported in previous articles, the Department of Justice’s Antitrust Division has repeatedly reaffirmed its intent to criminally prosecute companies that restrict labor market competition through the use of unlawful no-poach and wage-fixing agreements.

Back to Basics: FLSA Coverage Quick Quiz

Fisher Phillips • July 18, 2018
It's that time of year when families (yes, already) are making back-to-school preparations for the upcoming school year, and employers (ideally, already) are evaluating potential pay and policy changes for the upcoming calendar year. For a student who is a little rusty, this is the time to cram with one of those summer workbooks. For an employer that is a little rusty, cramming the FLSA's numerous nuances is just not possible. Nonetheless, when tackling a complex FLSA issue, oftentimes the best approach is to get back to the basics.

States Look for New Angle to Fight No-Poach Agreements

Fisher Phillips • July 18, 2018
Attorneys general in ten states and the District of Columbia have recently launched an investigation into the employment practices of eight fast-food franchises. The group sent a joint letter to the companies requesting information on the companies’ use of restrictive covenants including “‘employee non-competition,’ 'no solicitation,' 'no poach,' 'no hire,' or 'no switching' agreements (collectively referred to as ‘No Poach Agreements’).”

DOL Formally Rescinds Revised Persuader Rule

FordHarrison LLP • July 18, 2018
Executive Summary: The Department of Labor (DOL) has rescinded the revised version of its “persuader rule,” which had gone into effect in April 2016. The now-rescinded rule had substantially narrowed the advice exemption to the Labor Management Reporting and Disclosure Act (LMRDA). The Final Rule rescinding the revised rule was published in the Federal Register today (July 18, 2018) and is available here. With this rescission, the DOL will return to its traditional interpretation of the persuader rule.

The Ninth Circuit Holds Plaintiff Lacked Standing for an Alleged Violation of the FCRA's "Pre-Adverse Action" Notice Provision

Littler Mendelson, P.C. • July 18, 2018
Nationwide class action claims against employers under the federal Fair Credit Reporting Act (FCRA) are more common now than ever before. On July 13, 2018, the U.S. Court of Appeals for the Ninth Circuit issued an opinion, Dutta v. State Farm, addressing an important procedural issue in FCRA cases: constitutional standing. Standing is a legal rule that addresses whether a person has been adversely affected by some action resulting in a right to assert the claim at issue, and a person without standing cannot continue a lawsuit in federal court. The standing issue is being litigated in courts across the country based on the U.S. Supreme Court’s ruling in another FCRA case, Robins v. Spokeo, Inc. In Dutta, the Ninth Circuit ruled for the employer, State Farm, and affirmed summary judgment on the ground that the plaintiff lacked standing to assert his claim for violation of the “pre-adverse action” notice provision in the FCRA.

Trump Administration DOL Issues First Substantive Guidance on Independent Contractors

Littler Mendelson, P.C. • July 18, 2018
The Wage and Hour Division of the Department of Labor (DOL) issued a Field Assistance Bulletin (FAB) on Friday, July 13, 2018, titled “Determining Whether Nurse or Caregiver Registries Are Employers of the Caregiver.”1 Although this FAB focuses on the caregiver registry industry, it provides the new administration's first substantive guidance on independent contractor classification.

Pending California Legislation Alert! Senate Bill 937 Seeks to Require California Employers to Provide Lactation Facilities in the Workplace

Jackson Lewis P.C. • July 18, 2018
If passed, California Senate Bill 937: Lactation Accommodation, will require employers to provide a lactation room, or location, in close proximity to the employee’s work space, and it must include prescribed features such as access to a sink and refrigerator. SB 937 also would deem denial of reasonable break time or adequate space to express milk a failure to provide a rest period in accordance with state law.

Federal Court Preliminarily Enjoins California Immigrant Worker Protection Act Employer Penalties

Ogletree Deakins • July 18, 2018
On July 4, 2018, Judge John Mendez of the United States District Court for the Eastern District of California preliminarily enjoined California from enforcing some provisions of Assembly Bill 450 (AB 450), known as the “Immigrant Worker Protection Act.” The judge did so in response to the federal Department of Justice’s (DOJ) challenge to AB 450, Senate Bill 54 (the California Sanctuary State Law), and Assembly Bill 103, which directs the state attorney general to review and report on detention facilities housing noncitizens within California for civil violations of federal immigration laws. The court did not sustain the DOJ’s challenges to the other two statutes.

New California Law Protects Victims, Witnesses, and Employers From Damages to Alleged Sexual Harassers’ Reputations

Ogletree Deakins • July 18, 2018
On July 9, 2018, California Governor Jerry Brown signed Assembly Bill 2770 (AB 2770) into law. The new statute amends California Civil Code Section 47, which designates certain communications as “privileged,” meaning that individuals cannot be liable for defamation (including libel and slander) based on those communications.

Federal Court Both Affirms and Invalidates Enforceability of California's Immigrant Worker Protection Act

FordHarrison LLP • July 18, 2018
Introduction: Last February, we provided an overview of California's Immigrant Worker Protection Act, AB 450. The law, which took effect on January 1, 2018, was a response to anticipated increases in federal immigration enforcement efforts under the Trump administration and was aimed at providing workers some protections from federal immigration enforcement actions in the workplace. AB 450 regulates three things: (1) the level of workplace access employers are permitted to give immigration enforcement officials, (2) notice to employees about immigration enforcement efforts, and (3) reverification of an employee’s employment eligibility.

Puerto Rico: New Act Extends the List of Authorized Deductions to Non-Exempt Employees' Wages

Littler Mendelson, P.C. • July 18, 2018
The Governor of Puerto Rico recently signed into law Act No. 115, extending the list of authorized payroll deductions under Act 17-1931 (“Act 17”). As a general rule, deductions from non-exempt employees’ wages in Puerto Rico are prohibited unless specifically authorized by Article 5 of Act 17.

Chicago Considers Fair Workweek Ordinance

Littler Mendelson, P.C. • July 18, 2018
The Chicago City Council currently has before it a proposed ordinance entitled the “Chicago Fair Workweek Ordinance,” which, if passed, would severely limit Chicago employers’ ability to change employees’ posted schedules, and would otherwise encumber employers in employee scheduling.
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