The Court of Appeals for the Eleventh Circuit last week adopted the Second Circuit’s “primary beneficiary” test as the appropriate test for determining whether an unpaid clinical intern was truly an “employee” within the meaning of the FLSA. Schumann v. Collier Anesthesia, P.A., 2015 U.S. App. LEXIS 16194 (11th Cir. 2015).
Split Appeals Court Decision May Set Stage for Supreme Court Review of Dodd-Frank Whistleblower Provision
A federal appeals court ruling on the Dodd-Frank Wall Street Reform and Consumer Protection Act (“DFA”) may prompt U.S. Supreme Court review as to when an employee whistleblower is entitled to the benefits of the anti-retaliation provisions of the DFA.
MSHA Proposes Proximity Detection Rule for Mobile Equipment in Underground Coal Mines
Coal haulage machines and scoops operating in working sections of underground coal mines will be required to be outfitted with proximity detection devices on a phased-in schedule if a proposed rule issued by the Mine Safety and Health Administration is finalized.
Draft DOL Policy Lists ‘Economic Realities’ as Key OSHA Test of Joint Employer Status
Many more franchisors are likely to be judged to have a joint employer relationship with franchisees, subjecting them to enforcement by the Occupational Safety and Health Administration, under a draft policy reported to be circulating within the Department of Labor (DOL).
NLRB’s New Joint Employer Standard Faces First Legislative Challenge
Two days after returning from a scheduled congressional recess, senior Republican lawmakers introduced the first legislative challenge to the NLRB’s new joint employer standard, which was handed down last month in Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (Aug. 27, 2015).
Minimum Wage for Federal Contractors to Increase to $10.15 in 2016
On February 12, 2014 President Obama signed Executive Order 13658 establishing a minimum wage for federal contractors. Effective January 1, 2015, the minimum hourly wage for workers performing work on covered contracts was $10.10. The Executive Order gave the Secretary of Labor the authority to determine the hourly rate for subsequent years.
Upcoming Amendments to the FRCP And Implications On Class Action Defense Costs
On December 15, 2015, several amendments to the Federal Rules of Civil Procedure are scheduled to take effect, including one which may assist employers to reduce the cost of defending class actions. The scope of permissible discovery under Rule 26 will no longer be defined as “reasonably calculated to lead to the discovery of admissible evidence.” Amended Rule 26(b)(1) will instead require discovery to be proportional to the needs of the case. Parties may obtain discovery that is relevant to any party’s claim or defense and proportional to the needs of the case, with consideration of the following five factors: (1) the importance of the issues at stake in the action; (2) the parties’ relative access to relevant information; (3) the parties’ resources; (4) the importance of the discovery in resolving the issues; and (5) whether the burden or expense of the proposed discovery outweighs its likely benefit.
Potential October 1 Government Shutdown: Federal Contractors’ Contingency Planning
A federal government shutdown looms as current funding expires on September 30 and government leaders disagree on funding legislation. The present shutdown threat is fueled by two primary issues set against the backdrop of presidential election posturing by both political parties. President Barack Obama has announced that he will not follow the sequestration cuts the government forced upon itself in 2013 (the last time a partial government shutdown occurred), when it failed to agree on funding. Conservative Republican leaders have vowed to link defunding of Planned Parenthood to passing spending legislation. While leaders of the Republican-controlled Congress have vowed to avoid an unpopular government shutdown, this same vow was made in 2013.
Department of Justice now needs a warrant to search cell phones with Stingray devices … with some exceptions
Sensitive employer information may be the subject of secret Government prying. With the pervasive use of smart phones in business today, and with those phones containing confidential personal and business information, law enforcement has the ability to take information from those smart phones without an employer’s knowledge.
U.S. Lawmakers Introduce Legislation to Restore Definition of ‘Joint Employer’ under National Labor Relations Act
Senator Lamar Alexander (R., TN.) chairman of the Senate Committee on Health, Education, Labor, and Pensions and Representative John Kline (R., Minn.), chairman of the House Committee on Education and the Workforce, introduced legislation to curtail the National Labor Relations Board’s expansive new standard for determining “joint employer” status set forth Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (Aug. 27, 2015).
Train Agent’s Lilly Ledbetter Argument in ADA Demotion Claim Left on Platform
A plaintiff may not salvage her untimely ADA demotion claim by alleging that the statute of limitations began anew with each paycheck pursuant to the Lilly Ledbetter Fair Pay Act, according to the Second Circuit Court of Appeals. Davis v. Bombardier Transportation Holdings (USA) Inc. (Second Circuit, July 25, 2015).
HIPAA Audits Maybe, But Audit Preparedness Definitely!
According to a Bloomberg article, the second phase of HIPAA audits by the Office for Civil Rights (OCR), originally set to commence in 2014, may be coming soon. This update came at a HIPAA conference co-hosted by OCR during which OCR Director Jocelyn Samuels said the agency was in the process of confirming contact information of those entities that would be audited. Reason for the delay – budgetary limitations and gaps in personnel.
USCIS and DOS Announce Revised Procedures for Determining Visa Availability for Applicants Waiting to File for Adjustment of Status
On September 9, 2015, US Citizenship and Immigration Services (“USCIS”) and the Department of State (“DOS”), announced new procedures for determining visa availability for applicants waiting to file adjustment of status applications. These revisions are intended to implement executive actions by President Obama.
Fuzzy Math May Be Basis For Labor Secretary’s Claim That Union Workers Earn More, Analysis Asserts
“Join the union, and you’ll make more money!”
When It Comes To Pre-Certification Class Discovery, Don’t Give Away (More Than) The Store
Many employers who are familiar with class actions know that merits-based discovery is generally impermissible before a class has been certified. As a result, these employers often push back – without much forethought – on merits-based discovery that they consider to be “invasive” during the pre-certification stage.