On Friday, December 20, 2019, President Trump signed into law the Setting Every Community Up for Retirement Act of 2019 (the “SECURE Act”) as part of a spending bill to fund the government through September 30, 2020 (H.R. 1865, the “Further Consolidated Appropriations Act of 2020”). The SECURE Act, which is undoubtedly the most significant pension reform in over 13 years, includes almost 30 provisions aimed at increasing coverage of American workers in employer-sponsored plans, modifying distribution rules, easing administrative requirements for safe harbor 401(k) plans, and more. Most notably, many of the new law’s provisions became effective on January 1, 2020.
Archives for 2020
Latest Set of DOL Opinion Letters Clarify FLSA Salary Basis and Overtime Calculations, Government Agency FMLA Coverage
Getting the new year off to a quick start, the United States Department of Labor issued three Opinion Letters on January 7, 2020. These letters concern the salary basis test and overtime calculations under the Fair Labor Standards Act (FLSA), and government agency eligibility determinations under the Family and Medical Leave Act (FMLA). While the FLSA overtime and FMLA eligibility letters provide straightforward answers to more technical questions, employers would be wise to temper the broad sweep of the FLSA salary basis letter with a caveat or two.
Third Circuit Limits Ability to Certify Wage/Hour Class Actions – Making “Off-the-Clock” Matters Difficult to Certify and Likely Increasing Litigation of Wage/Hour Claims Against New Jersey Employers in State Courts
On Christmas Eve, the Third Circuit issued a decision restricting certification of wage/hour classes for off-the-clock cases and increasing the threshold for other wage/hour matters. See Ferreras v. American Airlines, Inc. (Dec. 24, 2019). While this decision may reduce the number of wage/hour class actions certified in the Third Circuit (which covers Pennsylvania, New Jersey, Delaware, and the Virgin Islands), it is predicted to cause an increase in the number of wage/hour class action filings in New Jersey state courts. As discussed in our previous legal alert, the recently enacted New Jersey Wage Theft Act by itself will undoubtedly spark an increase in New Jersey state court filings because of the significant increase in damages and lower burden of proof compared to the federal Fair Labor Standards Act (FLSA). The Third Circuit’s decision will likely result in even more state court wage/hour class action filings.
Marijuana in the Workplace
For many years, employers in the Carolinas have prohibited drugs in the workplace and tested applicants and employees for illegal substances, such as marijuana. Recently, Congress and many states have enacted new laws regarding marijuana, covering everything from cultivation to consumption, for both medical and recreational reasons. Many states have legalized marijuana, while others have taken a more conservative approach and allowed the use of cannabidiol (CBD) products derived from industrial hemp. Employers in the Carolinas must consider how the recent changes in the law will impact them and recognize that more changes are likely—including the possibility that medical marijuana may soon become legal. To learn more about marijuana in the workplace, read this this article in S.C. Lawyer magazine.
California Supreme Court Hears Oral Argument on Whether a Settling Employee is an “Aggrieved Employee” for Purposes of Proceeding with a Claim under the Private Attorneys General Act
In Kim v. Reins International California, Inc. 18 Cal.App.5th 1052 (2017), the California Court of Appeal for the Second Appellate District held an employee-plaintiff that settled and dismissed his individual claims was no longer an “aggrieved employee” for purposes of standing to bring a claim for civil penalties under the Private Attorneys General Act (“PAGA”).
What Will AI Mean for the Practice of Law?
Associate Matt Scherer, member of Littler’s Robotics, AI and Automation Practice Group and Data Analytics team, and Andrew Arruda, founder of Ross Intelligence, discuss how AI is being used in the practice of law, such as in legal research and contract review.
NLRB Returns to Time-Honored Standard for Post-Arbitral Deferral
The National Labor Relations Board recently overturned a decision issued in 2014 and returned to its time-honored standard for post-arbitral deferral in unfair labor practice cases alleging discipline or discharge in violation of Sections 8(a)(1) and (3) of the National Labor Relations Act (NLRA).
Brief Reprieve for Truck Drivers from Assembly Bill 5
The California Trucking Association (“Association”) challenges Assembly Bill 5 (“AB 5”) by arguing the Federal Aviation Administration Authorization Act (“FAAAA”) of 1994 preempts state laws “relating to a price, route or service of any motor carrier”. After the California Supreme Court decided Dynamex Operations West, Inc. v. Superior Court (“Dynamex”) in 2018, Governor Newsom signed into law, California State Assembly Bill 5, which clarified the Dynamex independent contractor test and codified the test into law.
Guidance on New York’s Ban on Salary Inquiries Issued
New York state has issued guidance on its new law barring employers’ direct and indirect inquiries about an employee’s salary history that became effective on January 6, 2020. For New York City employers, the law must be read in conjunction with similar legislation already in effect.
Will Your Fiscal Intermediary Be Chosen to Participate in New York’s CDPAP?
Executive Summary. The New York State Department of Health (DOH) recently issued a Request for Offers (RFO) from eligible entities who want to continue or first commence participating as Fiscal Intermediaries (FIs) under the New York Consumer Directed Personal Assistance Program (CDPAP). Because offers are due no later than February 18, 2020, the required format for offers is highly detailed and technical, and the RFO states that it is the DOH’s intent “to award the fewest number of contracts that preserve statewide access and consumer choice,” you will have to distinguish yourself from others in order to be selected. If you would like our assistance, based on our 25 years’ experience in educating, training and representing FIs, please give us a call.
How Might Virginia’s New Legislative Trifecta Affect Employers in the Commonwealth in 2020?
In the November 2019 election Virginia gained a Democratic “trifecta”—both legislative chambers and the governorship are now controlled by one political party. It has been over two decades since Democratic lawmakers constituted the majority in the Commonwealth. What will this mean for Virginia employers during the coming year?
Tipping in New Jersey: Proposed Regulations to Affect All Employers Utilizing Tip Credits
The New Jersey Department of Labor (NJDOL) has proposed regulations revising the current definition of “wages” to expressly exclude “any gratuities received” by a tipped employee from the employer’s obligations under the state’s hourly minimum wage requirement.
Cal/OSHA Shows Concern After Increase in Work-Related Fatalities
On December 18, 2019, Cal/OSHA issued a news release outlining California’s fatal workplace injury data for 2018. Each year California, in conjunction with the U.S. Bureau of Labor Statistics, conducts a Census of Fatal Occupational Injuries (“CFOI”). Cal/OSHA uses the data from the CFOI to help inform its enforcement and education priorities.
The Case that Sparked the CCPA Gets an FTC Final Order
Recently, the U.S. Federal Trade Commission issued an important opinion, concluding that Cambridge Analytica, LLC, the data analytics and consulting company, engaged in “deceptive practices to harvest personal information” of tens of millions social media users, by way of using their data from a company developed app, GSRapp, for voter profiling purposes without the users’ knowledge or consent. In addition, the FTC found that Cambridge Analytica engaged in deceptive practices connected to their EU-US Privacy Shield (“Privacy Shield”) framework participation.
Non-Compete Commences From Termination, Not Judgement, Louisiana Appellate Court Holds
An employee’s termination date – that is, the date the employee quits or is fired – may be critical to determining when his non-competition obligations expire. Under Louisiana law, a non-competition agreement “not to exceed a period of two years from termination of employment.” La. R.S. 23:921(C).