In Ramirez v. State of N.M. Children, Youth and Families Department, filed on April 14, 2016, the New Mexico Supreme Court ruled that a New Mexico National Guard member could assert a claim against the state as the employer under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). The ruling reversed the decision of the New Mexico Court of Appeals, which had held that state employers were immune to such suits, and reinstated the trial court’s judgment and award in favor of the employee. The decision in Ramirez impacts New Mexico State employers, which the New Mexico Supreme Court determined can be held liable under USERRA.
Minimum Wage Increases in New York: What Employers Should Know
On April 4, 2016, New York Governor Andrew Cuomo executed sweeping legislation as part of the 2016-17 state budget, implementing a complicated and staggered set of minimum wage increases, and creating a system of paid family leave benefits.1 This Insight describes the schedule and details of the minimum wage increases to be implemented commencing December 31, 2016, and continuing each year until 2021.
Equal Pay Efforts Falter at the Federal Level, Gain Traction Elsewhere
Earlier this week, Senators Patty Murray (D-WA) and Deb Fischer (R-NE) attempted to force passage of two pay-related bills. The promotion of rival legislation was likely a symbolic nod to Equal Pay Day, commemorated on April 12. While both efforts predictably failed, this does not mean the push for equal pay is a dead issue. To the contrary, recent efforts by federal agencies and state legislatures indicate this issue will remain active in the months ahead.
Obesity Alone as a Disability? Slim Chance, Says Eighth Circuit
A memorable scene from the dark comedy “In Bruges” features a clash between a disgraced Irish assassin, played by Colin Farrell, and three portly American tourists after Farrell’s character warns them not to climb the narrow stairway to the belfry of Bruges’ iconic medieval tower. As the Americans nonetheless proceed toward the tower, he dismissively shrugs, uttering “it’s Americans, isn’t it?”
Emerging Accessibility Issues under Title III of the ADA
Title III of the Americans with Disabilities Act (ADA) requires employers in a wide range of industries to ensure public accommodations, i.e. make their sites, goods and services accessible to individuals with disabilities.
Labor & Employment Issues Facing the Healthcare Industry
Public discourse on “healthcare” has focused primarily on health insurance and the significant changes made by the Affordable Care Act. But what about the providers of healthcare—the doctors, nurses, hospitals, pharmaceutical and medical device companies, home care agencies—that make up the industry itself? As the healthcare landscape shifts, so do the risks and challenges healthcare industry employers face.
NLRA Protections for Derogatory Statements and Four-Letter Words Attacking a Company and its Managers
More and more employers, union and non-union alike, are getting ensnared in efforts by the National Labor Relations Board (NLRB or “Board”) to aggressively expand employee rights under the National Labor Relations Act (“Act”), to the detriment of employers. While employees have the express right under Section 7 of the Act “to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” such as discussing their terms and conditions of employment or lodging complaints about the workplace, the NLRB continues to condone bad behavior as “protected behavior” so long as it is tangentially related to concerted activity under the Act.
Department of Labor Issues Final Fiduciary Rule
The Department of Labor (DOL) has issued a final rule to re-define who is rendered a “fiduciary” of an employee benefit plan under the Employee Retirement Income Security Act (ERISA) by providing investment advice to a plan or its participants or beneficiaries. More than five years in the making, issuance of a final rule to address conflicts-of-interest in retirement advice has been a priority for the White House and DOL to advance its “middle-class economics” agenda in the face of criticism in Congress and by a number of stakeholders. According to a DOL fact sheet, “this final rulemaking fulfills the Department’s mission to protect, educate, and empower retirement investors as they face important choices in saving for retirement in their IRAs and employee benefit plans.”
DHS Issues STEM OPT Final Rule
The U.S. Department of Homeland Security (“DHS”) recently issued its long-awaited F–1 nonimmigrant student visa regulations on optional practical training (“OPT”) for certain students with degrees in science, technology, engineering, or mathematics (“STEM”) from U.S. institutions of higher education. The final rule allows such F–1 STEM students who have elected to pursue 12 months of OPT in the United States to extend the OPT period by 24 months (also known as STEM OPT extension). This 24-month extension effectively replaces the 17-month STEM OPT extension previously available to certain STEM students, whereby the STEM OPT Employment Authorization Document (“EAD”) issued will be valid for 24 months instead of 17 months.
Big Data, Artificial Intelligence and Analytics in the Workplace, Part 1
The ROI on using big data makes a clear case for the growing use of Big Data in organizations. Human Resource departments are using data analytics to improve the process of selecting and hiring employees and to create a more objective method for conducting performance evaluations. Companies can also leverage information modeling to help make promotion decisions, predict which employees are most likely to leave the company and test the impact of new employment policies. In the first episode of Littler’s Big Data Initiative podcast, Dr. Zev Eigen, Littler’s Global Director of Data Analytics, discusses the risks and rewards inherent in collecting and analyzing data. He outlines the broad and exciting opportunities presented by predictive modeling, and how data science can augment human intelligence. Future episodes will feature special guests and further explore ways professionals within both the HR and legal space can better understand and anticipate “predictably irrational” human behavior.
IRS Requests Comments on New Compliance Questions in Form 5500
The IRS added new compliance questions to the 2015 IRS Form 5500/5500-SF, which is the annual report filed by retirement plans with the Department of Labor and the IRS. The Form 5500 instructions, however, specifically provide that plan sponsors should not complete these questions for the 2015 plan year filing. Last week, the IRS invited comments on several of the new questions. In its request for comments, the IRS has also proposed to modify some of the questions from their original form, or delete them entirely.
Workplace Policy Institute Insider Report — April 2016
This month’s edition of Littler’s Workplace Policy Institute Insider Report includes articles on the Administration’s push to finalize rules before the November elections, legislative and litigation steps to thwart those efforts, and state bills and ordinances that have advanced in recent weeks. The Report contains the following sections:
Paid Family Leave Becomes Law in New York Through an Insurance-Style Scheme. Will Other States Follow?
Could this be a game-changer when it comes to paid family and sick leave?
OSHA Continues to Turn Up the Volume on Whistleblowing
Rushing to put final rules in place before the current Administration’s term ends, on March 17, 2016, the Occupational Safety and Health Administration (OSHA) published its final rule for implementing the whistleblower protections under Section 1057 of the Dodd-Frank Wall Street Reform and Consumer Financial Protection Act of 2010 (CFPA). The day before, OSHA published its interim final rule and request for comments on its proposed procedures for handling whistleblower retaliation complaints under Section 31307 of the Moving Ahead for Progress in the 21st Century Act (MAP-21), applicable to automotive industry manufacturers, suppliers and dealers. Both sets of rules establish procedures and timeframes for OSHA’s handling of whistleblower retaliation complaints under each statute, as well as identify the available legal and equitable remedies for whistleblowers who prevail.
The Corporate Human Rights Benchmark Ranks Large Companies’ Human Rights Performance
In 2011, the United Nations adopted the UN Guiding Principles on Business and Human Rights (“UN Guiding Principles”), which provide non-binding guidelines on how employers should conduct their business activities to provide appropriate respect for internationally recognized human rights. Recently, various organizations – including national governments, international organizations, workers’ organizations, and non-profit entities – have all attempted to transform the “soft law” nature of the UN Guiding Principles into hard laws that may have real consequences for employers.1 To support this, several initiatives have arisen to facilitate corporate human rights reporting and measurement in connection with the UN Guiding Principles.2