Lawyers wear many hats; the key is not to wear them all simultaneously. Many lawyers are well versed in areas outside of the law and can be a source of non-legal knowledge for clients. However, lawyers need to be mindful when their services extend beyond the traditional landscape of legal advice. Mixing business interests and legal advice can easily get you in hot water if the transaction goes awry. Take for example the case of Burk & Reedy, LLP v. Am. Guarantee & Liab. Ins. Co., in which a professional liability insurer denied coverage for an attorney that was involved in both the legal and business aspects of a transaction.
Articles on U.S. Labor, Employment, Benefits & Immigration Law
New FLSA Exemption Rules – Coming In July?
Over the last few months we’ve been asked on an almost daily basis when the DOL will be publishing its hotly anticipated white collar exemption rules. The short answer is still, we don’t know. A few months ago, the word was “late 2016,” which made some sense due to the extremely high volume of comments the DOL received during the 60-day public comment period.* Now, signs point to an earlier release.
Proposal Would Prohibit Government Contractors’ Confidentiality Agreements Restricting Employees’ Reporting of Alleged Fraud, Waste, or Abuse
The Federal Acquisition Regulatory Council has proposed a rule barring employers from using confidentiality agreements that restrict employees or subcontractors from reporting “waste, fraud or abuse” to the government.
Safe Harbor Resolution…Not So Fast
UPDATE: Although we previously reported that a possible Safe Harbor resolution may be imminent, Bloomberg BNA is now reporting that a European Commission official has told them there may be no deal today to replace the U.S.-EU Safe Harbor Program.
The Zika Virus: Frequently Asked Questions for Employers
The Zika virus is receiving significant press coverage, including reports that it may cause birth defects if pregnant women are exposed. Employers may wonder if they have obligations to protect or accommodate employees under state and federal law, including the Occupational Safety and Health (“OSH”) Act and the Americans with Disabilities Act (“ADA”). Following are some frequently asked questions and guidance for employers regarding the virus.
Gambling in the Workplace is Anything But a Safe Bet
So you didn’t win the Powerball jackpot? There are still plenty of opportunities to win big in the next few weeks as Super Bowl L, March Madness, and even the Oscars quickly approach. Many employees will likely be solicited by their fellow co-workers or supervisors to participate in office pools or football squares. However, employers should not allow conduct that is inappropriate, and in some states illegal, to interfere with business operations.
NLRB Regional Director Rejects Election Petition of Faculty at Religiously-Affiliated College
Colleges and universities contending that their tenured and tenure-track faculty are managerial employees who do not have the right to unionize or bargain collectively under the National Labor Relations Act should find reassurance in a recent National Labor Relations Board Regional Director’s decision declining to assert jurisdiction over a Catholic liberal arts college. Carroll College, Case 19-RC-165133 (Jan. 19, 2016).
OSHA May Have Given Up on Combustible Dust Rule before End of Obama Administration
The Occupational Safety and Health Administration may have thrown in the towel on issuing a general industry regulation for combustible dust before the end of the Obama Administration in January 2017.
EEOC Releases Proposed Rule to Collect Pay Data from Employers
On the anniversary of President Barack Obama signing the Lilly Ledbetter Fair Pay Act, the Equal Employment Opportunity Commission has announced proposed changes to its EEO-1 report, requiring employers to submit employee W-2 earnings and hours worked. All employers with at least 100 employees would be required to comply. EEOC and the Office of Federal Contract Compliance Programs (OFCCP) would jointly have access to the pay data for enforcement purposes.
EEOC Seeks Input on Proposed Pay Data Collection Requirements and Retaliation Enforcement Guidance
The Equal Employment Opportunity Commission is soliciting public comments on two proposed policy changes that could have a significant impact on employers. The agency plans to require companies with 100 or more employees to include pay data as part of their Employer Information Report (EEO-1) form submissions, and issue enforcement guidance on unlawful retaliation.
Supreme Court Rejects One Strategy for Defeating Class and Collective Actions
In recent years, one tactic for attempting to defeat wage and hour class and collective action lawsuits class action lawsuits has been to offer the named plaintiffs full relief for their individual claims in the case. Even if the offer is declined, the theory goes, the offer renders those plaintiffs’ claims moot. And under the Supreme Court’s 2013 ruling in Genesis Healthcare v. Symczyck (.pdf), if the named plaintiff’s claims become moot before a class is certified, the case goes away. No class representatives, no class, case dismissed.
Supreme Court Rebukes Ninth Circuit’s Disregard of Prudence Precedent for Employee Stock Ownership Plans
Providing a specific, stringent pleading standard for claims alleging breach of the duty of prudence against fiduciaries who manage employee stock ownership plans (ESOPs), the U.S. Supreme Court again has reversed the Ninth Circuit Court of Appeals, in Amgen Inc. v. Harris, No. 15-278 (Jan. 25, 2016), because of its failure to apply the proper pleading standard for such claims.
Navigating the Rollover as Business Start-ups (ROBS) Strategy
A former executive starts a new chapter in her life and wants to buy a franchise operation and work there. A long-time consultant tires of working for others and wants to start and manage a new stand-alone business for himself. Where can they access money to fund these new operations? From their credit cards? Off their home equity lines? From a new kick-start campaign online?
Fifth Circuit: Employer Has Right to Mandate Employee Compliance with Overtime Reporting Procedures And Is Not Liable When Employee Fails to Follow Procedures
Overtime claims based on alleged “off the clock” work often turn on the question of whether the employer has “suffered or permitted” the employee to work uncompensated hours in excess of forty in the workweek. The Court of Appeals for the Fifth Circuit has affirmed a Mississippi district court’s finding that an employer did not violate the FLSA where the Plaintiff failed to record overtime hours in contravention of employer’s timekeeping policy. Fairchild v. All Am. Check Cashing, 2016 U.S. App. LEXIS 1298 (5th Cir. Jan. 27, 2016).
A Big Yawner? DOL Issues FMLA Fact Sheet Regarding Joint Employers
Joint employer issues are all the rage right now. Recently, the National Labor Relations Board (NLRB) put the screws to McDonald’s in finding that the Company is liable “jointly” along with their franchisees for alleged labor violations. So, it’s not shocking to learn that the U.S. Department of Labor recently jumped on the bandwagon, putting in its two cents on joint employers.