It is commonly understood that employees bear the burden of proving that they are covered by the Fair Labor Standards Act (FLSA), and, to avoid minimum wage or overtime obligations, the employer bears the burden of proving that an exemption to the FLSA applies. One such exemption – common in the transport and energy industries – is the exemption under the federal Motor Carrier Act (MCA). If an employer can demonstrate that workers are covered by the MCA exemption,1 then the FLSA’s overtime requirements will not apply to those workers—with one major caveat.
USCIS and DOJ Partner to Protect U.S. Workers from Hiring Policies that Favor Foreign Visa Workers
The U.S. Department of Justice (DOJ) and the Department of Homeland Security (DHS) have partnered to establish a framework to efficiently manage and maintain information sharing to better detect and eliminate fraud, abuse, and discrimination. The goal of the framework is to protect U.S. workers from employment discrimination resulting from policies that favor foreign visa workers.
Dear Littler: Do We Have to Pay Our Summer Interns?
Dear Littler: I work in the corporate office of a national retailer. We plan to hire several local student interns to work for us this summer, primarily in accounting and marketing. We enjoy sponsoring this program, and it works out well. In fact, in the past, we have hired a handful of summer interns as full-time employees after they graduated. We intend to offer some basic training on specific job duties, along with some broader exposure to various departments and our industry. Interns will likely assist our regular staff with “real” work, under close supervision. We like our internships to be unpaid because then we can take on more students and put the funding into memorable program activities. But now I’m wondering: should we be paying these interns?
Vermont Enacts Salary History Inquiry Law
On May 11, 2018, Vermont Governor Phil Scott signed legislation restricting employers from making salary history inquiries. The new law, H. 294, effective July 1, 2018, prohibits asking a prospective, current, or former employee about or seeking information regarding his or her compensation history. For these purposes, compensation includes base compensation, bonuses, benefits, fringe benefits, and equity-based compensation. Under the new law, employers are also prohibited from requiring that a prospective employee’s current or past compensation satisfy minimum or maximum criteria for employment. If an employer discovers a prospective employee’s salary history, the employer may not determine whether to interview the prospective employee based on this information.
San Francisco Revises Paid Sick Leave Ordinance Rules
On May 7, 2018, the San Francisco Office of Labor Standards Enforcement (OLSE) published revised rules concerning the city’s generous Paid Sick Leave Ordinance (PSLO). The new rules come more than 10 years after the original groundbreaking rules were published in 2007. In the interim, a statewide paid sick leave law was created,1 effective July 2015,2 and the San Francisco ordinance was amended, effective January 2017.3 Aside from a handful of changes, the final substantive PSLO rules mirror the rules proposed in mid-March. Below we discuss the more notable new rules.
“Purloined Letters”: Management Options When a Departing Employee Puts a Business Entity at Risk by Collecting Confidential Business or Personnel Information for Use in the Employee’s Personal Litigation
The following scenario is more common—and more troubling—than ever before. A high-ranking employee who has signed an agreement to preserve the confidentiality of business plans, financial information, and trade secrets stealthily collects confidential information belonging to the employer.
Agencies Release Regulatory Roadmap for 2018 and Beyond
The latest Unified Agenda of Regulatory and Deregulatory Actions (“spring agenda”) continues this administration’s trend of adding fewer new rules and reexamining older ones. These semiannual agendas provide insight into federal agency priorities for the coming year. While the list of upcoming rules is relatively pared down compared to those issued during the prior administration, there are still a few surprises in the spring agenda. Notably, the Department of Labor (DOL) is pushing the issuance of a new proposed rule governing overtime into 2019, and the National Labor Relations Board (NLRB) is considering drafting a rule on joint employment. Some highlights of the spring agenda are discussed below.
U.S. Supreme Court Forecloses Liability of Foreign Corporations Under the Alien Tort Statute
On April 24, 2018, in a 5-4 decision, the U.S. Supreme Court held that foreign corporations cannot be sued in the United States under the Alien Tort Statute, 28 U.S.C. § 1350 (“ATS”). This case – Jesner v. Arab Bank1– appears to eliminate the ATS as a vehicle for plaintiffs to bring claims against foreign multinational companies for their employment practices overseas.
Next Time Your Employee Requests FMLA Leave, Choose Sincerity with a Touch of Empathy
When it comes to administering FMLA, I’ll admit — I have grown cynical and hardened. Like a doctor who becomes desensitized to blood and guts, I, too, have become desensitized to an employee’s antics while on FMLA leave.
USCIS Issues Changes to Off-Site Placement of STEM OPT F-1 Visa Holders
The United States Citizenship and Immigration Services (USCIS) recently made subtle changes to its eligibility definitions for companies seeking to employ STEM OPT F-1 visa holders. The subtle changes have major implications for employers, including staffing companies and companies that place employees off-site.
The Littler Annual Employer Survey 2018
Employers are feeling some regulatory relief following a year that brought several changes to workplace policy, but are also grappling with the uncertainty these shifts have created. Sweeping regulatory changes have left them to redesign policies and strategies that had only recently been updated, while simultaneously navigating a growing patchwork of employment laws as states and localities work to fill perceived policy vacuums at the federal level. Meanwhile, the cultural shift sparked by the #MeToo movement is among the many forces of change impacting the workplace and focusing greater attention on workplace behavior, company culture and equal treatment of employees of various backgrounds.
WPI State of the States: Equal Pay, Paid Leave, and Gig Economy Bills Gain Momentum
May begins the legislative homestretch for a number of states. Nearly half of the state legislatures have adjourned for the year, and another nine are expected to end their sessions by the end of the month. As a result, only about 30 new bills and ordinances were introduced in April, down from the hundreds that had flooded the legislatures since the beginning of the year. Most of the legislative activity last month focused on active consideration of these pending measures.
Dear Littler: Will These Recruiting Ideas Help Me Meet Our Diversity Goals?
Dear Littler: Our boss is really pushing for us to increase our number of diverse employees. I see his point—we are a predominantly white and male workforce, though we have more than 150 workers. My managers had a meeting to set some hiring targets and now we are evaluating some recruiting ideas. We are considering: (1) giving bonuses to managers who hire diverse candidates; (2) asking recruiters to send us only women and racial minorities; and (3) rolling out a Refer-A-Friend program with a small payment to employees who bring in diverse coworkers. What do you think? We want to choose options that will bring results.
California Announces a New Wage and Hour Independent Contractor Test
In a groundbreaking new decision, the California Supreme Court announced a significant change in independent contractor law, adopting a modified “ABC” test for determining whether an individual is an employee under the Wage Orders.1 This new independent contractor test is modeled on Massachusetts’ independent contractor statute, which has been considered the strictest in the country.
WPI Wage Watch: Minimum Wage & Overtime Updates (April Edition)
It may not have been showering minimum wage, tip, and overtime developments in April, but there was a sprinkling at the federal, state, and local levels. The U.S. Supreme Court issued a decision that will impact federal Fair Labor Standards Act (FLSA) exempt classification litigation, federal wage and hour officials have been laboring away on FLSA-related issues and programs, and state and local legislators continue to shape the labor and employment landscape across the country.