Practice Areas & Industries: Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

 





Group Profile Lawyers in this Group Offices Locations for this Group
 

Practice/Industry Group Overview

At Ogletree Deakins, we understand that our clients’ employment issues often are not isolated to one state, country or region of the world. Our International Practice Group facilitates business growth by helping to centralize our clients’ employment, human resources and compensation practices. We offer cross-border solutions to today’s key challenges arising out of managing a global workforce, as well as assistance to growing businesses involved in foreign transactions for the first time. We pride ourselves on providing practical business solutions to complex employment issues in an efficient and cost-effective manner.

Global Services

We assist our multinational clients with the full range of employment services designed to help drive consistent management practices worldwide. These include:

  • Global codes of business ethics, employment handbooks and their components, including:
    • Codes of conduct;
    • Anti-harassment, anti-bullying and anti-discrimination policies;
    • Finance and sales policies; and
    • Compliant reporting and investigation procedures compliant with the Sarbanes–Oxley Act, data privacy requirements and local laws.
  • Worldwide reductions-in-force/restructurings;
  • Global compensation plans, including sales incentive/commission and bonus plans;
  • Benefits plans, such as severance policies; and
  • Worldwide management training in ethics policy compliance, Foreign Corrupt Practices Act compliance, bullying/“moral harassment” and discrimination/ sexual harassment and investigation requirements.

Mergers and Acquisitions

We understand the interplay between global corporate transactions and domestic labor and employment protections imposed by statute, case law and contract. We facilitate cross-border transactions by:

  • Analyzing Transfers of Undertakings principles and quantifying the resulting transaction costs;
  • Advising on effective approaches to managing contractual rights and benefits in foreign employment agreements; and
  • Assisting with benefits and compensation migration, training and integration.

Managing Foreign Employment Issues

Our U.S.-headquartered clients with overseas operations face a number of challenges managing distant employees. We help clients establish initial employment relations overseas with compliant worker classifications. We also assist clients in integrating local requirements and market practices related to employment contracts with their workforce practices and culture, and we enable clients to achieve business objectives when they are under resistance from local operations. We manage foreign counsel for clients and “translate” their advice into solutions that work for clients’ businesses. We conduct works council and trade union negotiations and supervise local litigation to ensure clients receive the same passionate advocacy they expect and on which they depend from U.S. counsel.

Easing the Challenges of the Domestic Subsidiary

U.S.-based subsidiaries of foreign parents face challenges being managed from abroad and are often asked to participate in unfamiliar initiatives and benefits programs. We help U.S. domestic subsidiaries understand foreign directives and programs, quantify their impact on local cost models, and avoid unintended liability.

In addition, our diverse, multilingual team is sophisticated in the nuances of foreign cultures. We provide sound legal advice to foreign operations in U.S. labor and employment law compliance requirements.

Facilitating a Mobile Workforce

Pulling together a cross-functional team of Ogletree Deakins attorneys with experience in tax, immigration, benefits and employment laws, we assist with all aspects of moving employees among operations. From expat packages to short-term relocations, from contingent worker service agreements to establishing foreign subsidiaries, we will manage these arrangements with employees in a manner that protects clients’ interests and achieves their business objectives.

Effective. Efficient. Smart.

We understand the challenges clients face managing competing business priorities, cultural issues and corporate initiatives. Our services are structured to promote clients’ business models. We will never overstaff a discussion or make clients do the legwork to conduct multijurisdictional research. We communicate with clients efficiently and provide recommendations that clients can use.

Predictable, Cost-Effective Approach

We offer a range of billing structures designed to promote our clients’ budgeting priorities. These include fixed fee arrangements, project-based fees and blended rates.


 
 
Articles Authored by Lawyers at this office:

NYC Cares for Caregivers: New Bill Awaiting Mayor’s Signature Would Make Caregivers a Protected Class
Sonu Ray, January 18, 2016
On December 16, 2015, the New York City Council passed a bill prohibiting employers from discriminating against employees based on their actual or perceived status as a caregiver. The new law would establish caregiver status as a new protected class under the New York City Human Rights Law, and...

New Jersey Appellate Court Rules Arbitration Agreement in Employee Handbook Unenforceable
Robin Koshy,Steven J. Luckner,Evan J. Shenkman, January 18, 2016
In C.M. v. Maiden Re Insurance Services, LLC, No. L-3622-13 (App. Div. Sept. 18, 2015), the New Jersey Appellate Division held that an employee was not compelled to arbitrate her employment discrimination claims, notwithstanding her confirmed receipt of a handbook containing an arbitration...

Pay Transparency Rule to Go Into Effect on Same Day as OFCCP’s Webinar
Hera S. Arsen,Leigh M. Nason, January 18, 2016
On Monday, January 11, the Office of Federal Contract Compliance Programs’ (OFCCP) final rule on pay transparency, which prohibits federal contractors from discriminating against employees and applicants “who inquire about, discuss, or disclose their own compensation or the compensation...

New Brunswick New Jersey’s Paid Sick & Safe Leave Law Goes Into Effect
Robin Koshy,Steven J. Luckner,Evan J. Shenkman, January 15, 2016
On December 17, 2015, the City of New Brunswick passed its own paid sick leave ordinance, making it the eleventh municipality in the State of New Jersey to require paid sick leave. The ordinance becomes effective on January 6, 2016, but employees must wait until May 5, 2016 (or 120 days after they...

A New Year’s Resolution for California Employers: Fair Pay Act Compliance
Hera S. Arsen,Christopher W. Olmsted, January 11, 2016
California employers are preparing for the effects the Fair Pay Act—the new law signed by Governor Brown last October that significantly changes California’s gender equality pay law. Senate Bill 358 (SB 358), which went into effect on January 1, 2016, requires employers to pay employees...

Happy New Year from the IRS!
Ann Carr Mackey,Timothy G. Verrall, January 11, 2016
For the many employers and health care providers that have thus far been spending their holidays poring over the Affordable Care Act’s (ACA) new tax forms and their cryptic instructions in anticipation of the inaugural round of reporting under Sections 6055 and 6056 of the Internal Revenue...

How Federal Preemption Affects Local and State Labor Peace Agreements
David F. Loeffler, January 11, 2016
Unions have been largely unsuccessful in their efforts to organize employees and negotiate first contracts within the system created by the National Labor Relations Act (NLRA). Only about 7 percent of the private-sector labor force is unionized. Consequently, unions have adopted new organizing...

Minimum Wage Changes to New York’s Fast Food Industry: New Hospitality Wage Order & FAQs
Seth D. Kaufman, January 11, 2016
As we previously discussed in May and July of this year, wage and hour requirements for the fast food industry in New York State are changing starting in the new year. These changes, which go into effect on December 31, 2015, result from recommendations made by the Fast Food Wage Board, which...

Worth the Wait: Will USCIS Draft Policy Guidance Bring Greater Job Portability and Career Advancement for Foreign Workers and Their Employers in 2016?
Diane M. Rish, January 11, 2016
On November 20, 2015, the United States Citizenship and Immigration Services (USCIS) released a highly anticipated draft policy memorandum for public review and comment that provides guidance to USCIS Immigration Services Officers (ISOs) on evaluating whether one job is in “the same or a...

DHS Issues Proposed Rule for Changes to Employment of High-Skilled Foreign Workers
Jacob D. Cherry, January 08, 2016
On December 30, 2015, the U.S. Department of Homeland Security (DHS) released a notice of proposed rulemaking (NPRM) concerning employment-based visa programs for high-skilled workers. The notice is published in the December 31, 2015 Federal Register and is subject to a 60-day comment period ending...

Preparing for the Upcoming Amendments to the FLSA Overtime Regulations: A Toolkit for Retail and Hospitality Employers
Diane M. Saunders,Elizabeth S. Washko, January 08, 2016
As we have previously reported, the U.S. Department of Labor’s (DOL) proposed amendments to the Fair Labor Standards Act (FLSA), specifically as to the criteria for the Part 541 “white collar” exemptions, are projected to have an enormous impact on retail and hospitality...

Europeans Agree on New Data Privacy Laws
Simon J. McMenemy,Grant D. Petersen, January 07, 2016
After four years of debate and a year of uncertainty over the future of data transfers from the European Union (EU) to the United States, this week has seen a historic move towards finalizing new legislation to govern data privacy and protection laws in Europe. On December 15, 2015, negotiators...

Increased Criminal Enforcement for Worker Safety Violations?
Don A. Duggar,Margaret S. Lopez, January 07, 2016
In 2010, the Occupational Safety and Health Administration (OSHA) let employers know there was a new sheriff in town. Now there will be a new police force as well. On December 17, 2015, the U.S. Department of Justice (DOJ) announced the expansion of the Worker Endangerment Initiative. In its...

Massachusetts Sick Leave Law-Full Compliance Deadline Looming
Mark H. Burak,Rachel Reingold Mandel, January 07, 2016
Readers are probably aware that last year, Massachusetts voters approved a new sick leave law that went into effect on July 1, 2015. Many employers with preexisting leave policies, however, took advantage of the so-called “safe harbor” provision in the law and its implementing...

New Jersey Annual Notice Reminders With Deadlines Fast Approaching
Mark Diana,Steven J. Luckner,Jocelyn A. Merced,Evan J. Shenkman, January 07, 2016
New Jersey employers should be aware of two impending annual notice requirements. First, employers must distribute to each employee working in New Jersey a written copy of the Gender Equity Notice on or before December 31 each year and must obtain a signed acknowledgement from each employee in...

Philadelphia Goes Beyond Ban the Box
Jacqueline R. Barrett,Julie Donahue,Emily K. O'Brian, January 07, 2016
On December 15, 2015, Mayor Michael Nutter signed a bill amending Philadelphia’s “ban the box” law, formally titled the Fair Criminal Records Screening Standards Ordinance, which was enacted in 2011. With these amendments, Philadelphia’s ordinance joins New York City’s...

Revised “Persuader” Reporting Requirements Are Back
Harold P. Coxson, January 07, 2016
Don't look now, but the U.S. Department of Labor’s latest Fall 2015 Semiannual Regulatory Agenda advances the controversial proposed revisions to the "persuader activity" reporting requirements under the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA). Final regulatory...

California’s New Piece-Rate Compensation Requirements and a New Affirmative Defense Take Effect January 1, 2016
Hera S. Arsen, January 04, 2016
On October 10, 2015, California Governor Jerry Brown signed Assembly Bill 1513, which added new requirements with regard to employees who work on a piece-rate basis. The new law, which amends California Labor Code section 226.2, changes the way employers are required to pay employees paid on a...

Elizabeth Becomes the Tenth New Jersey City to Require Paid Sick Leave
Mark Diana,Steven J. Luckner,Jocelyn A. Merced,Evan J. Shenkman, January 04, 2016
On November 3, 2015, voters in the City of Elizabeth approved a paid sick leave ordinance, making it the tenth municipality in the State of New Jersey to require paid sick leave. The ordinance, which goes into effect on March 2, 2016 (120 days after voter approval) is nearly identical to sick leave...

Jersey City Expands Paid Sick Leave Ordinance to Small Businesses, Increases Penalties for Noncompliance
Mark Diana,Steven J. Luckner,Jocelyn A. Merced,Evan J. Shenkman, January 04, 2016
On October 30, 2015, the Jersey City mayor approved a change to the city’s existing paid sick leave law (Ordinance 15.145), purportedly to bring the sick leave ordinance more in line with those of other New Jersey cities that have since passed their own paid sick leave ordinances. One major...

Mexico Increases the Minimum Wage Effective January 1, 2016
Pietro Straulino-Rodriguez, January 04, 2016
On December 11, 2015, the Council of Representatives of the National Minimum Wage Commission, pursuant to a vote to determine the minimum wage held every year, unanimously decided to increase the daily minimum wage by 4.2 percent in 2016.

New Jersey Advances Bill to Ban Most Employee Credit Checks
Mark Diana,Steven J. Luckner,Jocelyn A. Merced,Evan J. Shenkman, January 04, 2016
On December 14, 2015, the New Jersey Assembly Labor Committee released another bill-A2298-seeking to prohibit most credit checks on employees. Essentially the same as prior bills that failed in the New Jersey legislature (including those we reported on in 2010 and in 2012), A2298 would prohibit...

Still No NCAA Pay for Play-9th Circuit Denies O’Bannon v. NCAA Rehearing En Banc
John Richard Carrigan, January 04, 2016
On December 16, 2015, the Ninth Circuit Court of Appeals decided that it would not rehear its earlier decision in a high-profile case on payments that can be made to student-athletes. Nearly three months earlier, a panel of the Ninth Circuit had upheld a lower court’s ruling that the...

India Eases Rules for Foreign Investment in LLPs
Diana J. Nehro, December 21, 2015
India has relaxed its rules for foreign direct investments (FDI) for limited liability partnerships (LLPs), with a recent abolishment of the requirement of regulatory approval for a foreign-invested LLP in India. This change was announced with effect just over a week ago, on November 24, 2015....

BOLI Issues Guidance on New Oregon Statewide Sick Leave Law
James M. Barrett, December 16, 2015
The Oregon Bureau of Labor and Industries (BOLI) has issued additional guidance on complying with the new Oregon statewide mandatory paid sick leave law, Senate Bill 454, OL 2015, Ch. 537, which takes effect on January 1, 2016.

Do I or Don't I?—Alcoholism and Accommodations in the Workplace
Lara C. de Leon, December 16, 2015
Any college football fan can attest that this has been quite the year for upsets. As interesting as the on-field action has been, we have seen increasing media attention and fan commentary focused on the action off the field—especially on the activities of college football coaches and players.

For California Employers, New Year Brings New Restrictions—Along With a Few Silver Linings
Christopher W. Olmsted,Keith A. Watts, December 16, 2015
In 2015, the California legislature undoubtedly took aim at employers with piecemeal legislation covering everything from cheerleaders (who are now employees by statute) to gender-based pay differentials—the latter with what is now the nation’s most aggressive “equal pay”...

Hillsborough County, Florida Passes Wage Theft Ordinance
Edmund J. McKenna, December 16, 2015
On October 21, 2015, the Hillsborough County Board of Commissioners enacted the “Hillsborough County Wage Recovery Ordinance.” By it terms, the ordinance applies to all employers within Hillsborough County and any company with an employee or independent contractor who performs work...

House Passes Bill Enhancing Security of Visa Waiver Program in Wake of Paris Terror Attacks
Diane M. Rish,Stephen H. Smalley, December 16, 2015
In the wake of the Paris terrorist attacks, the U.S. House of Representatives passed a bill on Tuesday, December 8, 2015, to tighten security measures and impose new restrictions on the Visa Waiver Program (VWP). The VWP permits citizens of 38 designated countries, mostly in Europe, to travel to...

New Pinellas County Wage Theft Ordinance Goes Into Effect January 1
Edmund J. McKenna, December 16, 2015
The commissioners of Pinellas County recently adopted a wage theft ordinance that will become effective on January 1, 2016. The ordinance provides that if any employer fails to pay wages of at least $60 due to an employee 14 days or more from the date the work was performed, the failure to pay will...

New Regulatory Agenda Contains Surprises
Harold P. Coxson, December 16, 2015
The U.S. Department of Labor’s (DOL) just-released Fall 2015 Semiannual Regulatory Agenda and Plan Statement contains several surprises for federal labor and employment rulemaking. Although the timetables are often aspirational and not met, the announced agency goals for regulatory actions...

Overview and Guidance on Final Joint Standards on Diversity and Inclusion
Nonnie L. Shivers, December 16, 2015
On June 9, 2015, several federal agencies jointly issued a policy statement on standards that companies could use to assess their diversity policies and practices, particularly for entities regulated by more than one agency. The Federal Reserve Board, Bureau of Consumer Financial Protection,...

Texas Supreme Court Vindicates Employer That Uniformly Enforced its Leave Policy
Tiffany L. Cox, December 16, 2015
On December 4, 2015, the Texas Supreme Court vacated a jury verdict in favor of a former employee who had alleged workers’ compensation retaliation, rendering judgment in favor of the employer and finding that the employee had not presented evidence that his termination had resulted from...

The DOL’s Fall 2015 Regulatory Agenda: Does it Really Shed Light on the Timing for a Final Overtime Rule?
Hera S. Arsen,Alfred B. Robinson, December 16, 2015
Approximately three months after the comment period closed on the proposal from the Obama administration and U.S. Department of Labor (DOL) to revise the Part 541 overtime regulations, the DOL issued its Fall 2015 Semiannual Regulatory Agenda that includes a statement on the timing for a final...

The Minimum Wage Battle Is Heating Up and Retail Is Fighting Back
Diane M. Saunders, December 16, 2015
Over the past two years, we have seen minimum wage hikes in states and cities (such as St. Louis, Kansas City, Los Angeles, and Emeryville) across the country as labor groups push for a universal $15 per hour minimum wage. With the presidential elections coming, organized labor is reinvigorating...

Washington Snapshot: Leadership Contests and a Push to Break Legislative Limbo in the Nation’s Capital
Harold P. Coxson, December 16, 2015
For many in the country, the term "Washington leadership" is an oxymoron, and calling someone a "Washington insider" may be an epithet rather than a compliment. The truth remains, however, that developments in Washington, D.C., especially at the federal regulatory agencies,...

CDLE’s Official Guidance on Use-It-Or-Lose-It Vacation Policies: Still Prohibited
Steven R. Reid,Austin E. Smith,Roger G. Trim, December 15, 2015
The use of so-called “use-it-or-lose-it” vacation pay policies is receiving significant attention in Colorado, both from the Colorado Department of Labor and Employment (CDLE) and from employers trying to make sense of the CDLE’s recent announcements. A typical use-it-or-lose-it...

Latest USCIS Procedural Changes Add Delays and Uncertainty to Green Card Application Filing
Jamie M. Dietz, December 15, 2015
The United States Citizenship and Immigration Services (USCIS) has again revised its procedures for determining whether foreign national applicants waiting to file their employment-based or family-sponsored preference adjustment of status applications may proceed onto the last stage of the...

Louisiana Workforce Commission Finds Employers Misclassify Workers as Independent Contractors
Andrew P. Burnside,Katherine E. Pizzini, December 15, 2015
The Louisiana Workforce Commission (LWC) is on track for a second consecutive record-setting year in identifying workers misclassified by employers as independent contractors, according to a recent announcement by the LWC. In 2014, Louisiana led the nation with the LWC finding an average of 11...

Final New Jersey Ban-the-Box Regulations Issued Today, Effective Immediately
Mark Diana,Evan J. Shenkman, December 10, 2015
The New Jersey Department of Labor and Workforce Development (NJDOL) published its long awaited, final “ban-the-box” regulations today, which take effect immediately. The final regulations, and the NJDOL’s comments to the regulations, clarify the following issues regarding New...

“Deaf Culture” Expert to Testify at Trial? Judge Allows EEOC to Test the Limits
James M. Paul, December 09, 2015
In the last couple of years, pursuant to the Americans with Disabilities Act (ADA), the U.S. Equal Employment Opportunity Commission (EEOC) has prosecuted at least 12 lawsuits on behalf of deaf or hard-of-hearing employees or job applicants. And, within the last 10 years, the U.S. Department of...

Is an Offshore Rig a Single Site of Employment Under WARN?
Jessica M. Knapp,Christopher E. Moore, December 09, 2015
A federal judge in the Eastern District of Louisiana recently issued an important ruling for oil field employers conducting layoffs. In Voisin v. Axxis Drilling, Inc. (October 21, 2015), the court held that for the purposes of the Worker Adjustment and Retraining Notification Act of 1988 (WARN...

Portland’s New Ban-the-Box Ordinance Imposes Stricter Rules Than State Law
Leah C. Lively,Kathryn P. Roberts, December 09, 2015
On November 25, 2015, the Portland City Council passed an ordinance restricting an employer’s ability to inquire regarding a job applicant’s criminal history. As of July 1, 2016, Portland employers with six or more employees will be prohibited from soliciting information regarding an...

Current Status of EU Data Transfers and Recommended Next Steps for Former Safe Harbor Companies
Simon J. McMenemy,Hendrik Muschal,Grant D. Petersen, November 27, 2015
As has been widely publicized, on October 6, 2015, the European Court of Justice (ECJ) issued its much-anticipated decision in Schrems v. Data Protection Commissioner, Case C-362/14 invalidating European Commission’s Decision 2000/520, which previously held that the Safe Harbor principles...

Fifth Circuit Upholds Injunction Against Obama's Immigration Actions
Ashley Karen Kerr, November 27, 2015
The Fifth Circuit Court of Appeals has affirmed the preliminary injunction against President Barack Obama’s executive action that would potentially have shielded approximately 4.4 million undocumented immigrants from deportation and allowed them to immediately apply for work authorization....

OSHA’s Latest Regulatory Agenda: Silica, Tree Care, Powered Industrial Trucks, Lockout/Tagout . . . and Much More
Melissa A. Bailey,John F. Martin, November 27, 2015
The U. S. Department of Labor (DOL) recently released its Fall 2015 Regulatory Agenda, its semi-annual status report of all regulatory actions underway or being contemplated by the DOL’s agencies. Included in the agenda were the Occupational Safety and Health Administration’s (OSHA)...

Pennsylvania Still Requires Separate Consideration for Restrictive Covenant Agreements
Donald D. Gamburg,L. Evan Van Gorder, November 27, 2015
In a much anticipated decision released on November 18, 2015, the Supreme Court of Pennsylvania closed the door—if it was ever open—on any arguments doing away with the separate consideration required for restrictive covenant agreements entered into after the commencement of employment....

Predictive Scheduling: A Primer for Retail and Hospitality Employers
Diane M. Saunders, November 27, 2015
One of the most closely watched issues today among retail and hospitality employers is “predictive scheduling,” or as opponents call it, “restrictive scheduling.” Predictive scheduling has become the new cause célèbre among labor activists around the country...

Texas Court Rules Religious Institutions not Exempt From all Employment-Related Claims
Lawrence D. Smith, November 27, 2015
The United States and Texas Constitutions each provide for the free exercise of religion and the separation of church and state. These constitutional prescriptions frequently bar the application of civil laws, including employment laws, to religious institutions if they require the evaluation of a...

Website Accessibility Regulations Delayed Again! (For At Least Three Years!!)
Sherry Akande Nielsen,David H. Raizman, November 27, 2015
In a surprise announcement with major repercussions for businesses and their websites, on November 19, the Department of Justice (DOJ) announced in its Fall 2015 Statement of Regulatory Priorities that it is delaying—by at least three years—its proposed regulations on the standards for...

Filing of Police Report Accusing Coworker of Stealing Deemed Protected Activity by California Court
Christopher W. Olmsted, November 26, 2015
It is generally understood that an employer may not retaliate against an employee for “whistleblowing” and alerting authorities that a business has engaged in unlawful activity. Is an employee also protected against retaliation when he or she reports a coworker to the police for...

Texas’ Open Carry Law: 3 Steps Hotels Should Take Before the New Year
John G. Harrison, November 26, 2015
The Texas statute allowing the open carrying of guns by licensed holders will become effective on January 1, 2016. Prior to this effective date, Texas hotel properties should consider following these three steps in an effort to comply with the law.

When Does Termination of the Employment Relationship Violate Public Policy? The Restatement of Employment Law Offers a New Framework
Simone R. D. Francis, November 26, 2015
In July of 2015, the American Law Institute published the first Restatement of Employment Law. The Restatement provides a new lens through which employers, employees, and courts can evaluate the common law duties affecting the employment relationship.

Everything You Need to Know About New York's New FCA Guidance
Gustavo A. Suárez,Aaron Warshaw,Stephen R. Woods, November 24, 2015
As we previously reported, New York City’s Fair Chance Act (FCA) went into effect on October 27, 2015. On November 5, 2015, the New York City Commission on Human Rights (NYCCHR or Commission) issued long-anticipated guidance on the FCA. Although the Commission’s website indicates that...

Postcards from the R-Case Edge: Insights into Supervisory Status Issues in a Proposed Unit
Matthew J. Kelley, November 24, 2015
Since the new “ambush” election rules went into effect on April 14, 2015, there have been over 1,000 petitions for elections filed with the National Labor Relations Board (NLRB). Approximately 60 of those petitions have led to pre-election representation-(R-case) hearings to determine...

The Push for Pay Transparency and Equity
Kiosha Hammond Dickey, November 24, 2015
On September 10, 2015, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) published its final rule on pay transparency, setting a trend for states to enact legislation aimed at strengthening fair pay, pay transparency, and other legal protections in the...

An Easing of Brazil’s Restrictive Labor Laws? Only Time Will Tell
Carolyn Ann Knox, November 18, 2015
Brazil’s troubled economy has been making global headlines for the past few months. After five years of growth, understood now to have largely been fueled by China’s seemingly insatiable hunger for commodities, the economy has ground to a halt and is declining to negative growth for...

California Court Rules That Employee’s Occasional Performance of Nonexempt Duties Does Not Negate Exempt Status.
Carmine Joseph Pearl, November 18, 2015
In an unpublished opinion, Abarca v. JK Residential Services, Inc.., No. B256488 (June 26, 2015), the California Court of Appeal, Second Appellate District, recently affirmed a trial court order rejecting a residential property manager’s misclassification and overtime claims.

Coffee and Tipping Do Not Mix: Fifth Circuit Rejects Behind-the-Scenes Baristas’ Tip Pooling Arrangement
Mark A. McNitzky, November 18, 2015
In Montano v. Montrose Restaurant Associates., Inc., 800 F.3d 186 (5th Cir. Aug. 28, 2015), the Fifth Circuit Court of Appeals reversed and remanded a decision of the Southern District of Texas in which the trial court had granted summary judgment in favor of a restaurant. The issue was whether it...

Get Ready for Monday-Morning Quarterbacking: OSHA Releases Compliance Guidance and Will Soon Finalize Electronic Recordkeeping Proposal
Melissa A. Bailey, November 18, 2015
The Occupational Safety and Health Administration (OSHA) recently sent its proposal to amend the recordkeeping regulation, 29 CFR Part 1904, to the Office of Information and Regulatory Affairs (OIRA)—a necessary step in the process of finalizing the proposal. OSHA proposes requiring some...

New ACA Reporting: Frequently Asked Questions About Form 1095-C
Stephanie Alden Smithey,Timothy G. Verrall, November 18, 2015
For many employers, the employer mandate under the Affordable Care Act (ACA) is already a reality. Having now worked out some of the administrative kinks associated with providing the health plan coverage required by the mandate, employers face a new and daunting challenge: detailed reporting to...

“Click Here To Organize”— NLRB now Accepts E-Signatures on Authorization Cards
Timothy C. Kamin, November 17, 2015
The National Labor Relations Board (NLRB) has made union organizing by email and social media a reality. The NLRB’s General Counsel issued Memorandum 15-08 on September 1, 2015, stating that, “[e]ffective immediately, parties may submit electronic signatures in support of a showing of...

Transgender Issues in the Workplace: Navigating a Changing Legal Landscape
Kelly S. Hughes,Nonnie L. Shivers, November 17, 2015
Legislation prohibiting discrimination on the basis of gender identity is popping up all around the country. From California’s Senate Bill 703 prohibiting state agencies from entering into certain contracts with contractors that discriminate between employees on the basis of gender identity...

Labor Provisions of the Just-Released Trans-Pacific Partnership (TPP) Trade Agreement
Harold P. Coxson, November 13, 2015
This morning, the Obama administration released the text of the Trans-Pacific Partnership (TPP) trade agreement, setting up a bitter debate over its provisions next year. Foremost among the opponents of TPP, organized labor will closely review TPP’s “Chapter 19 ¿ Labour.”...

New York’s Wage Deduction Law in Effect for Three More Years
Brian Jeffrey Gershengorn,Sonu Ray, November 13, 2015
On October 26, 2015, New York Governor Andrew Cuomo signed State Assembly bill A07594, extending the expiration period of 2012 amendments to New York Labor Law §193, which had permitted employers to make deductions from employee wages in circumstances otherwise deemed impermissible by the New...

Consent Decree Sheds Light on the EEOC’s Interpretation of its Background Check Guidance
James R. Silvers, November 10, 2015
On September 8, 2015, BMW Manufacturing Co., LLC and the U.S. Equal Employment Opportunity Commission (EEOC) entered into a consent decree ending the EEOC’s disparate impact lawsuit over BMW’s use of criminal background checks in employment. The consent decree requires BMW to pay $1.6...

Illinois Court Leaves Former Employer Without Remedy After Invalidating Its Overly Broad Restrictive Covenants
Carol A. Poplawski, November 10, 2015
Just days before Halloween, the Illinois Appellate Court sent a scary message to employers: We will not enforce or judicially modify your overly broad restrictive covenants! In AssuredPartners, Inc. v. Schmitt, No. 13 CH 19264 (October 26, 2015), the Illinois Appellate Court affirmed a circuit...

Is Your Workplace Violence Plan Ready? 5 Essential Elements of a Comprehensive Plan
Dennis A. Davis,Luther Wright, November 10, 2015
According to the U.S. Department of Justice, one out of every six violent crimes occurs in the workplace. These crimes include assaults, rapes, robberies, and-on rare occasions-homicides. Employees, customers, and third-party individuals are increasingly acting out in ways that devastatingly alter...

Per Diems and the Regular Rate of Pay: What to Know for Your Overtime Calculation
Andrew P. Burnside,Jacob C. Credeur, November 10, 2015
The United States District Court for the Northern District of Oklahoma in Sharp v. CGG Land (U.S.) Inc., No. 14-cv-0614 (October 19, 2015), recently ruled in favor of an employer that had excluded per diem payments from a regular rate calculation under the Fair Labor Standards Act (FLSA). The...

President Obama Signs the 2015 Budget Act Increasing OSHA Penalties
Melissa A. Bailey,Shontell D. Powell, November 10, 2015
President Obama signed the Bipartisan Budget Act of 2015 into law yesterday. The deal was negotiated quickly to avoid a default on the nation’s debt. Perhaps as a result, it includes a surprise for those with an interest in occupational safety and health: penalties imposed by the Occupational...

D.C. Commuter Benefits Are Almost Here: Employers Must Comply by January 1
Vicki M. Nielsen, November 09, 2015
Employers with 20 or more employees working in the District of Columbia have fewer than 90 days to comply with a new law that requires them to offer commuter benefits to employees by January 1, 2016. Washington, D.C. is one of several cities and regions that have recently passed mandatory commuter...

Trial Court’s Dismissal of Sexual-Orientation Discrimination Claim Was Proper Says Divided Missouri Court of Appeals
Andrew L. Metcalf,Eric A. Todd, November 09, 2015
In Pittman v. Cook Paper Recycling Corp., WD 77973 (Mo. App. W.D. Oct. 27, 2015) a divided panel of the Missouri Court of Appeals for the Western District affirmed the dismissal of an employee’s claim of discrimination based on sexual orientation under the Missouri Human Rights Act (MHRA)....

California Court Upholds a Reduction of Attorneys’ Fees but Reverses a Reduction of Costs
Jill V. Cartwright, November 05, 2015
In a recent, unpublished opinion Myres v. San Francisco Housing Authority, a California Court of Appeal reversed a trial court’s order reducing the amount of costs a plaintiff had claimed as a result of limited success at trial.

New Speaker, New Agenda—Old Problems?
Harold P. Coxson, November 05, 2015
It has been quite an eventful few weeks in Washington, D.C., with actions taken that perhaps will give rise to a brighter future on Capitol Hill. House Speaker John Boehner (R-OH) resigned effective October 31 amid persistent attacks from the conservative House Republican Freedom Caucus.

California Court Deems Truck Drivers Employees, Not Independent Contractors
Christopher W. Olmsted, November 02, 2015
Companies that classify workers as independent contractors are facing increasing scrutiny in court and before administrative agencies. A recent unpublished California Court of Appeal decision in a case titled Garcia v. Seacon Logix, Inc. highlights the factors considered by a court in determining...

Contingency Planning for the Upcoming H-1B Season
Sara E. Herbek,Miguel A. Manna, November 02, 2015
The H-1B non-immigrant visa allows foreign workers in certain occupations to legally live and work in the United States for a U.S. employer. In recent years, a growing number of foreign workers have applied for H-1B visas, resulting in a “cap” on the number of visas that are awarded...

New York City Issues Fair Chance Act Notice Form for Criminal Background Checks
Gustavo A. Suarez,Aaron Warshaw,Stephen R. Woods, November 02, 2015
As we previously reported in July and June, New York City recently passed the Fair Chance Act (FCA), which becomes effective on Tuesday, October 27, 2015, and is applicable to criminal background checks.

New York Expands Discrimination Protections Against Workplace Gender Bias
Michael R. Marra,A. Sonu Ray, November 02, 2015
On October 21, 2015, New York Governor Andrew Cuomo signed into law a number of bills, which cumulatively expand protections against gender discrimination, sexual harassment, domestic violence, and human trafficking. This comprehensive legislation, which grew out of the governor’s call for a...

New York State Department of Labor Publishes Revised Proposed Regulations Governing Use of Payroll Debit Cards
Stephanie L. Aranyos,A. Sonu Ray, November 02, 2015
On October 28, 2015, the New York State Department of Labor (NYSDOL) published revised proposed regulations modifying its draft regulations (which were initially published on May 27, 2015) governing permissible methods of wage payment, including the use of payroll debit cards (also referred to as...

NLRB Makes a Mess of the Burns Successorship Analysis and Worker Retention Laws
Seth D. Kaufman, October 29, 2015
New York City’s Displaced Building Service Workers Protection Act (DBSWPA) is one of numerous local worker retention laws, which apply to various industries in jurisdictions across the country, such as Los Angeles, San Francisco, Providence, Rhode Island, Washington D.C., and Philadelphia....

The Schrems Saga Continues: Israeli Law, Information and Technology Authority Revokes Transfer Authorizations
Simon J. McMenemy,Hendrik Muschal,Grant D. Petersen, October 29, 2015
Citing the European Court of Justice’s (ECJ) October 6, 2015 decision in Schrems v. Data Protection Commissioner, which invalidated the EU Commission’s Safe Harbor decision, the Israeli Law, Information and Technology Authority (ILITA) announced, on October 19, 2015, that it was...

Can a Prevailing Plaintiff Recover Expert Fees? The Second Circuit Says “No”
A. Sonu Ray, October 28, 2015
The Second Circuit Court of Appeals recently ruled that expert witness fees are not recoverable under the Fair Labor Standards Act (FLSA). In Gortat v. Capala Brothers, Inc., No. 14-3304-cv (July 29, 2015), the Second Circuit ruled in a class action case filed by five former employees who sought...

Eighth Circuit Rejects OSHA’s Interpretation of Guarding Standard in Worker Fatality Appeal
Donelle R. Buratto, October 27, 2015
On October 13, 2015, the Eighth Circuit Court of Appeals ruled in favor of Loren Cook in an 8-4 en banc decision in the carefully-watched machine guarding case of Perez v. Loren Cook Company, Eighth Circuit Court of Appeals, No. 13-1310 (October 13, 2015).

St. Louis Minimum Wage Hike Struck Down at the 11th Hour
Joseph Charron,William M. Lawson,Robert W. Stewart, October 26, 2015
Hours before a St. Louis ordinance increasing the city’s minimum wage was set to take effect, St. Louis Circuit Court Judge Steven Ohmer struck down the ordinance. The ordinance, which was passed on August 28, with an effective date of October 15, would have increased the city’s minimum...

Top 10 Workplace Investigation Mistakes: Part II
Patricia Chavarria Perez, October 26, 2015
In part one of this two-part series, we covered five of the most common mistakes that employers make while conducting workplace investigations, including poor complaint mechanisms, ignoring employee complaints, failing to adequately plan an investigation, and failing to be objective while...

U.S. Diversity Visa Lottery Offers Alternative Immigration Path for Employees Subject to Backlogs
Ann Louise Brown,Rebecca L. Sigmund, October 26, 2015
The U.S. Department of State opened the Diversity Visa (DV) lottery registration for FY 2017 at noon eastern standard time (EST) on October 1, 2015. It will close on Tuesday, November 3, 2015, at noon (EST). The DV program allows individuals from countries with historically low rates of immigration...

Update on STEM OPT Work Permit Extension: Administrative Process for Regulation Is Underway
Ashley Karen Kerr,Bernhard Mueller, October 26, 2015
In response to Judge Ellen Segal Huvelle’s ruling in Washington Alliance of Technology Workers v. U.S. Department of Homeland Security et al., No. 14-529 (August 12, 2015) that vacated the previous regulations on STEM Optional Practical Training (OPT) work permit extension, on October 2,...

DHS Proposes New STEM OPT Extension Rules
Miguel A. Manna,Caroline Tang, October 23, 2015
On October 16, 2015, the Department of Homeland Security (DHS) released a notice of proposed rulemaking (NPRM) concerning new rules for extending the Optional Practical Training (OPT) program for international students with degrees in science, technology, engineering, and mathematics (STEM). The...

Florida’s Minimum Wage Likely to Remain Unchanged on January 1, 2016
Edmund J. McKenna, October 23, 2015
On November 2, 2004, Florida voters approved a constitutional amendment that created Florida’s minimum wage. The minimum wage applies to all employees in the state covered by the federal minimum wage. Florida law requires a new minimum wage calculation on September 30 of each year, based on...

The Fallout from the Schrems Decision Continues
Simon J. McMenemy,Hendrik Muschal,Grant D. Petersen, October 23, 2015
On October 14, 2015, the data protection commissioner from the German state of Schleswig-Holstein issued a position paper declaring that the use of model contract clauses by U.S. companies and European employees’ consent to transfer their personal data to the United States are invalid. This...

Top 10 Workplace Investigation Mistakes: Part I
Patricia Chavarria Perez, October 22, 2015
Resolving conflict in the workplace is a key issue for employers. Legal requirements have continued to expand in terms of what courts expect employers to do in order to prevent and correct wrongful behavior. In response, employers have increased mechanisms through which employees can lodge...

California Governor Signs Gender Wage Equality Law
Christopher W. Olmsted, October 20, 2015
The California Fair Pay Act (FPA), a state law that codifies the principle that an employee is entitled to equal pay for equal work without regard to gender, has been amended with the passage of Senate Bill 358 (SB 358), which Governor Jerry Brown signed yesterday.

California’s Gender Identity Legislation: New Protections for Transgender Employees Working with State Agencies
Hera S. Arsen, October 20, 2015
On October 7, 2015, Governor Jerry Brown signed Senate Bill 703 (SB 703), protecting transgender employees whose employers engage in business with state agencies. Specifically, the bill expands on the state’s pre-existing discrimination laws by prohibiting “a state agency from entering...

Chief Justice Denial of Stay Request Clears Way for New FLSA Regulations Affecting Home Care Agencies to Go Into Effect October 13, 2015
Robert R. Roginson,Carolyn E. Sieve, October 20, 2015
On October 6, 2015, Chief Justice John Roberts of the Supreme Court of the United States summarily denied the emergency stay application filed by the association plaintiffs in Home Care Association of America v. Weil. In the absence of a stay, the new U.S. Department of Labor’s (DOL)...

European Court of Justice Invalidates European Commission’s Safe Harbor Decision
Simon J. McMenemy,Hendrik Muschal,Grant D. Petersen, October 20, 2015
On October 6, 2015, the European Court of Justice (ECJ) issued its much-anticipated decision in Schrems v. Data Protection Commissioner, Case C-362/14. The case considered the viability of the U.S.-EU Safe Harbor Framework, which has been applied to permit U.S. companies to transfer personal data...

Everything You Need to Know About St. Louis’s Minimum Wage Law
William M. Lawson,Robert W. Stewart, October 20, 2015
On August 28, 2015, the city of St. Louis passed a law to raise its minimum wage. The minimum wage increase will start at $8.25 per hour and will increase to $11.00 per hour by 2018. Beginning on January 1, 2019, the minimum wage will increase annually on January 1 of each year on a percentage...

Mexico Supreme Court Issues Guidance on Outsourcing
Pietro Straulino-Rodriguez, October 20, 2015
The Second Chamber of the Supreme Court of Justice of the Nation in Mexico recently issued guidance establishing that outsourcing does not violate the constitutional principles of legal certainty and freedom.

New California Law Allows Employers to Correct Wage Statements to Avoid Litigation-Review Your Wage Statements Now
Douglas J. Farmer,Michael Darrell Thomas, October 20, 2015
On October 2, 2015, Governor Jerry Brown signed into law Assembly Bill 1506 (AB 1506). The new law amends the California Private Attorneys General Act (PAGA) to allow employers the right to “cure” certain commonly litigated defects in employee wage statements within 33 days of notice by...

New Maine Social Media Privacy Law Takes Effect October 15, 2015
David P. Mason, October 20, 2015
Maine has become the latest state to restrict employers’ ability to access social media accounts of employees and applicants. A new Maine statute, which will go into effect on October 15, 2015, prohibits a broad range of employer conduct.

OFCCP Publishes Final Rule to Promote Pay Transparency
Alec Hillbo, October 20, 2015
On September 10, 2015, the Office of Federal Contract Compliance Programs (OFCCP) published its final rule on pay transparency. The purpose of the rule is to prohibit “pay secrecy policies” to make it “possible for workers and job applicants to share information about their pay...

USCIS Will Begin Accepting Cap-Subject H-1B Petitions for Fiscal Year 2017 on April 1, 2016
Katherine C. MacIlwaine, October 20, 2015
The filing period for new H-1B petitions to be counted against the annual H-1B quota (or H-1B cap) for Fiscal Year (FY) 2017 will begin on Friday, April 1, 2016. Cap-subject H-1B petitions will have an employment start date of October 1, 2016 or later. In preparation for the opening of the FY 2017...

Is the Safe Harbor Framework Still Safe?
Simon J. McMenemy,Grant D. Petersen, October 15, 2015
On October 6, 2015, the European Court of Justice (ECJ) will issue its decision in Schrems v. Data Protection Commissioner, Case C-362/14, which may invalidate the U.S.-EU Safe Harbor Framework. The Safe Harbor Framework permits U.S. companies to transfer personal data regarding their employees and...

Is the Six-Factor Test Still Good? Eleventh Circuit Endorses Modified Intern Test
Kristy G. Offitt, October 13, 2015
A recent decision by the Eleventh Circuit Court of Appeals appears to reject the U.S. Department of Labor’s oft-recited six-factor test, which is used to determine whether interns are actually functioning as employees. In Schumann v. Collier Anesthesia, P.A., et al, No. 14-13169 (September...

Creating an Inclusive Law Firm Culture: A Strategy and a Story, Too
Michelle P. Wimes, October 06, 2015
In recent years, much has been written about the importance of creating diverse, inclusive workplaces to ensure the best possible business results. As with any other successful initiatives spearheaded by an organization, law firm inclusion requires a well thought-out strategic plan implemented by...

NCAA Play for Pay? Ninth Circuit Rules Antitrust Rule of Reason Does Not Require Payments for ‘Name, Image, or Likeness’
John Richard Carrigan, October 06, 2015
On September 30, 2015, the Ninth Circuit Court of Appeals upheld a lower court’s ruling that the amateurism rules of the National Collegiate Athletic Association (NCAA) violate federal antitrust laws. The Ninth Circuit panel considering the NCAA’s appeal rejected one dramatic change...

OFCCP Issues Infographics on Jurisdictional Thresholds and Protected Veteran Status
Christopher J. Near, October 06, 2015
The Office of Federal Contract Compliance Programs (OFCCP) recently added two infographics to the collection of federal contractor resources available on its website. These new resources concerning jurisdictional thresholds and protected veteran status are being offered as part of OFCCP’s...

Do Your Employees Have the Right to a Union Rep During a Drug Test?
Michael Clarkson, September 28, 2015
On August 27, 2015, a three-member panel of the National Labor Relations Board (NLRB) issued Manhattan Beer Distributors, LLC and Joe Garcia Diaz, (29-CA-115694) finding that an employer had unlawfully denied an employee his right to the physical presence of a union representative during a...

EB Filing Dates Pushed Back in Revised October 2015 Visa Bulletin
Ann Louise Brown,Rebecca L. Sigmund, September 28, 2015
On September 25, 2015, the U.S. Department of State (DOS) issued a revised Visa Bulletin for October 2015 that supersedes the original Bulletin dated September 9, 2015. In the current Bulletin, the dates for certain categories on the “Dates for Filing of Employment-Based Visa...

A Potential Federal Government Shutdown: The Immigration Implications for Employers
Charles Edward Gillman,Ceridwen J. Koski, September 25, 2015
Congress has until September 30, 2015 to reach an agreement on the 2016 Fiscal Year federal budget. If an agreement to fund the federal government is not reached, immigration processes are expected to be impacted as they were in the shutdown that occurred in October of 2013. Some federal agencies...

Identity-Protection Services You Receive After a Data Breach: Taxable or Not?
Jeanne Ellen Floyd,Vicki M. Nielsen, September 25, 2015
Data breaches and the identity fraud that may result from breaches can wreak personal and professional havoc. Recent large-scale data breaches have affected major retailers and companies, financial institutions, health insurers, and government agencies and have demonstrated that all forms of...

Employers’ Bundle of Joy: The Rhode Island General Assembly Passes Mandatory Reasonable Accommodation Law for Pregnant and Nursing Women
Todd M. Torres, September 24, 2015
On June 25, 2015, the Rhode Island General Assembly passed and Governor Gina M. Raimondo signed legislation making it an unlawful employment practice under the state’s Fair Employment Practices Act for an employer to refuse to reasonably accommodate an employee’s or prospective...

State Employment Laws That Every Virginia Employer Should Know
Tevis Marshall, September 24, 2015
Keeping track of the latest changes to federal employment laws, such as the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA), and the Fair Labor Standards Act (FLSA), to name just a few, is hard enough. But employers sometimes forget that there are also specific state...

The Affordable Care Act: What’s Ahead?
Penny C. Wofford, September 24, 2015
More than five years after its enactment, the Affordable Care Act (ACA) continues to be one of the top concerns for employers, and rightly so: the ACA is one of the most comprehensive laws impacting employee benefits since the Employee Retirement Income Security Act of 1974.

The Latest OFCCP News: VEVRAA Coverage, Outreach Poster, and Approaching Deadlines
Gretchen W. Ewalt,Patrick Lawler, September 24, 2015
On July 2, 2015, the Federal Acquisition Regulatory Council amended the jurisdictional threshold for coverage under the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA). Currently, a contractor with a single contract valued at $100,000 or more annually meets the threshold for the...

White House Report Offers Roadmap for Modernizing & Streamlining the U.S. Immigration System
Diane M. Rish, September 24, 2015
On July 15, 2015, in an action that sought to confront a number of the U.S. legal immigration system’s lingering problems, the White House issued a report entitled “Modernizing & Streamlining Our Legal Immigration System for the 21st Century.”

No Credit, No Problem: NYC’s New Guidance Further Limits Employer Credit Checks
Gustavo A. Suárez,Aaron Warshaw, September 23, 2015
As we previously reported, New York City recently passed a law prohibiting employers from requesting or using an individual’s credit history in making employment decisions. On September 3, 2015—the same day that the new law went into effect—the New York City Commission on Human...

Steep Fines Underscore Value of I-9 Compliance
Katherine C. MacIlwaine, September 23, 2015
A recent ruling by the Office of the Chief Administrative Hearing Officer (which has jurisdiction over cases arising under the Immigration and Nationality Act) underscores the importance of employers revisiting their internal policies and procedures for verifying employees’ ability to legally...

Home Health Care Agencies, DOL Continue to Wrangle Over FLSA Regs Effective Date
Robert R. Roginson,Carolyn E. Sieve, September 21, 2015
As we previously reported, on August 21, 2015, the United States Court of Appeals for the D.C. Circuit in Home Care Association of America v. Weil reinstated the U.S. Department of Labor’s (DOL) regulations extending the federal minimum wage and overtime requirements for home health care...

Accommodations Legalese: 5 Key Terms Every Employer Should Know
Patricia Chavarria Perez, September 18, 2015
It’s true in other areas of employment law as well, but in the world of disability discrimination law there are numerous phrases that have taken on special meaning and become true terms of art. Even those who are well-versed in other areas of employment law and HR often find it difficult to...

New IRS Qualified Plan Corrections Guidance
Christina M. Crockett,David S. Rosner, September 15, 2015
The Internal Revenue Service (IRS) issued two rounds of guidance modifying the Employee Plans Compliance Resolution System (EPCRS). The IRS guidance gives employers greater flexibility in correcting relatively common operational errors such as benefit plan overpayments, missed deferrals, and...

Second Circuit Refines Title VII Pleading Standard
P. Kramer Rice, September 15, 2015
The Second Circuit Court of Appeals recently remanded a former employee’s racial discrimination lawsuit brought under Title VII of the Civil Rights Act of 1964. In Littlejohn v. City of New York, No. 14-1395 (August 3, 2015), the court held that the “plausibility” standard for...

FAQs on the SEC’s Proposed Clawback Rule
John A. Morrison,Vicki M. Nielsen,Karen Trapnell Shriver, September 14, 2015
On July 1, 2015, the U.S. Securities and Exchange Commission (SEC) proposed a rule directing national securities exchanges and associations to establish listing standards that require public companies to adopt and enforce a written executive compensation clawback policy. In particular, the rule...

OSHA Testing Joint Enterprise Theory in Wake of NLRB Ruling
John F. Martin, September 11, 2015
Around the same time the National Labor Relations Board (NLRB) issued its controversial and precedent-shattering decision in Browning-Ferris Industries of California, Inc. d/b/a BFI Newby Island Recyclery, a franchise industry group revealed that the Occupational Safety and Health Administration...

President Obama Orders Federal Contractors to Provide Paid Sick Leave
Dara L. DeHaven,James J. Murphy, September 11, 2015
On Labor Day, President Obama announced a new Executive Order that will require federal contractors to provide employees with paid sick leave. The new order, anticipated to apply to new federal contracts entered into on or after January 1, 2017, will require covered federal contractors and...

Second Circuit Expands Protections for Internal Whistleblowers
Margaret Hutchins Campbell, September 11, 2015
As we forecast in our August 2015 post, “The SEC’s Interpretative Guidance on Internal Whistleblowing Under the Dodd-Frank Act,” a federal court of appeals today issued a decision in line with the U.S. Securities and Exchange Commission’s (SEC) interpretation that the...

Important Changes to the U.S. Department of State’s Visa Bulletin
Charles Edward Gillman, September 10, 2015
On September 9, 2015, the U.S. Department of State (DOS) and United States Citizenship and Immigration Services announced important changes impacting certain individuals in the permanent residence (“green card”) process. This change will allow some individuals to file the last step of...

A Reminder for Retailers: Risks Associated With Hiring Third-Party Workers
Michael R. Marra, September 09, 2015
As the retail sector grapples with the many challenges of a perpetually evolving economy and an increasingly mobile, independent, and dynamic workforce, it has become common practice for retailers to engage third parties to provide specialized, non-core services. Whether engaged through staffing...

New Jersey Arbitration Agreement Declared Invalid Without Express Waiver of Employee’s “Right to a Trial”
Mark Diana, September 04, 2015
Many employers have turned to mandatory employment arbitration agreements as a way to control the cost, duration, and publicity of employment litigation. New Jersey courts will enforce properly drafted agreements that require employees to arbitrate their employment-related claims, including...

Unanticipated Retrogression of Visa Numbers for China and India in September 2015
Ann Louise Brown,Rebecca L. Sigmund, September 04, 2015
The U.S. Department of State recently released its September 2015 Visa Bulletin, reflecting a significant retrogression for China and India in the employment-based Second Preference category (EB-2). The EB-2 category for mainland China and India retrogressed to January 1, 2006. This is a...

Advertising Requirements in PERM-A Survey of BALCA’s Application of 20 CFR § 656.17(f)(7)
John T. Combs,Ceridwen J. Koski, September 03, 2015
The U.S. Department of Labor’s (DOL) permanent labor certification (PERM) program requires employers to conduct specific recruiting activities to test the labor market before filing an application. The regulation at 20 CFR § 656.17(f) sets forth the advertising requirements, which also...

At Will? What’s That?
Rebecca Marks, September 02, 2015
Did you know that employees in most countries outside the United States have a contractual right to continued employment, whether or not they have written contract? If an employer does not provide an employee with a written contract, rights will be implied at law to the advantage of the employee...

The NLRB Goes Back to Church (Schools), Gets Entangled
John Richard Carrigan,James C. Pennington, September 02, 2015
In our June 2015 blog post, “NLRB Moves to Assert Jurisdiction Over Religious Educational Institutions,” we reported that Regional Directors of the National Labor Relations Board (NLRB) were beginning to exercise jurisdiction over religiously-affiliated colleges and...

California Minimum Wage Bill Stalls in Legislature
Christopher W. Olmsted, September 01, 2015
A controversial bill to increase California’s minimum wage has failed to pass in the state legislature. The bill would have phased in a $3.00 per hour increase to the minimum wage rate and also would have imposed annual cost of living increases.

Federal Court Upholds Louisiana Ban on Project Labor Agreements
Andrew P. Burnside, September 01, 2015
A federal court in the Eastern District of Louisiana recently ruled that Louisiana’s ban on project labor agreements on public works projects was neither unconstitutional nor preempted by the National Labor Relations Act (NLRA). In Southeast Louisiana Building and Construction Trades Council...

Louisiana Federal Court Cautions Against Seeking Enforcement of Invalid Noncompete Agreements
Andrew P. Burnside, September 01, 2015
In what should serve as a cautionary tale to employers with noncompete agreements, a federal court in the Eastern District of Louisiana allowed an unfair trade practices claim to survive against an employer that attempted to enforce an allegedly invalid noncompete agreement.

Louisiana Legislature Ensures Franchisees Are the Sole Employers of Their Workers
Katherine E. Pizzini, September 01, 2015
The Louisiana legislature recently passed Act 404 of the 2015 legislative session, clarifying that in most circumstances franchisees are the sole employers of their employees. The bill was signed by Governor Bobby Jindal on July 1, 2015, and went into effect on August 1, 2015.

Louisiana Supreme Court Reaffirms At-Will Employment Doctrine
Katherine E. Pizzini, September 01, 2015
In Read v. Willwoods Community, 2014-C-1475 (La. 2015), the Supreme Court of Louisiana overturned a jury verdict awarding damages to a plaintiff who claimed that his employer breached a verbal contract to employ him for a term of five years. The plaintiff argued that during his interview the...

NLRB Finds Joint Employer Status Can Exist Merely Based on Indirect or Potential Control
Mark G. Kisicki,Elizabeth M. Townsend, September 01, 2015
Overturning decades of precedent, the National Labor Relations Board (NLRB), on August 27, 2015, issued its long-awaited decision in Browning-Ferris Industries of California, Inc. d/b/a BFI Newby Island Recyclery, 362 NLRB No. 186 (August 27, 2015). The decision establishes a new standard for...

Red Flags for Homebuilders Related to DOL's Latest Guidance on Independent Contractors
Jessica M. Knapp,Charles E. McDonald,Ted D. Meyer, September 01, 2015
On July 15, 2015, the U.S. Department of Labor (DOL) issued an “Administrator’s Interpretation” (AI 2015-1) providing guidance on whether workers are employees or independent contractors under the Fair Labor Standards Act (FLSA). The Wage and Hour Division of the Department of...

Your Compliance Toolbox: 7 Tips for a Successful Interactive Process
Patricia Chavarria Perez, September 01, 2015
Dealing with issues related to accommodation requests at work can be a daunting task—even for the most seasoned HR or legal professional. The path to a successful interactive process and a meaningful analysis of an accommodation request is fraught with landmines at every turn. Though...

Indiana Employment Law Update: 5 Changes to Laws You Should Know
Brian L. McDermott,Robert F. Seidler, August 27, 2015
A number of significant changes to Indiana employment law took effect on July 1, 2015. These changes affected employer’s obligations in areas such as hiring, wages, discrimination, and termination. If employers have not already done so, they should review and revise their policies and...

Changes to Obligations for Filing H-1B Amendment Petitions Under Matter of Simeio Solutions, LLC
Vanessa Olivar,Stephen H. Smalley, August 25, 2015
As of August 19, 2015, full enforcement of a recent Administrative Appeals Office (AAO) decision in Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015) will commence.

New “Living Wage Ordinance” for New Orleans City Contractors Goes Into Effect on January 1, 2016
Jacob C. Credeur, August 25, 2015
On August 17, 2015, New Orleans Mayor Mitch Landrieu signed a new ordinance that will require all city contractors to pay a minimum wage of $10.55 per hour to employees. The New Orleans City Council unanimously passed by the law, Ordinance Calendar No. 30,550on August 6, 2015. Known unofficially as...

Federal Appeals Court Reinstates New Federal Minimum Wage and Overtime Requirements for Home Health Care Workers Employed By Third-Party Employers
Robert R. Roginson,Carolyn E. Sieve, August 24, 2015
The United States Court of Appeals for the D.C. Circuit in Home Care Association of America v. Weil reinstated the U.S. Department of Labor’s regulations extending the federal minimum wage and overtime requirements for home health care workers employed by third-party employers. Today’s...

Inability to Work Under A Particular Supervisor Is Not a Disability in California
Christopher W. Olmsted, August 24, 2015
In response to standard negative performance feedback from a supervisor, an employee takes a leave of absence due to stress and submits a medical note stating that the employee must be transferred to another department as an accommodation. Under California law, must a company grant such an...

Senate Majority Leader Introduces Bill That Would Dramatically Curtail New Jersey Employers’ Ability to Alter Work Schedules
Christopher G. Elko,Steven J. Luckner,Evan J. Shenkman, August 24, 2015
On May 19, 2015, New Jersey Senate Majority Leader Loretta Weinberg introduced a bill (S2933) as part of a package of legislation seeking to dramatically regulate the scheduling and compensation of employees in New Jersey. The bill, entitled the “New Jersey Schedules That Work Act,”...

USCIS Final Guidance on L-1B Adjudications Offers Some Comfort—But No Cure—for Employer Concerns
Whitney Larson,Jordan C. Mendez, August 24, 2015
On August 17, 2015, U.S. Citizenship and Immigration Services (USCIS) released a policy memorandum aiming to clarify the standard required for L-1B specialized knowledge visas. The memorandum notably begins by reminding adjudicating officers that the L-1B visa category, which allows for the...

Update on Local Paid Sick Leave Ordinances
Christopher G. Elko,Steven J. Luckner,Evan J. Shenkman, August 24, 2015
In the recently decided matter of New Jersey Business and Industry Association, et al v. City of Trenton (L-467-15, April 16, 2015), the court held that Trenton’s paid sick leave ordinance applies only to employers based in Trenton, and not to employers “whose employees have to come to...

Does the “No-Rehire” Provision in Your Settlement Agreement Restrain the Lawful Practice of a Profession?
Daniel J. Kanter, August 20, 2015
When resolving an employment dispute, employers often wish to include a “no-rehire” provision in the settlement agreement. In a typical no-rehire clause, the parties agree that they wish to resolve their dispute and sever any relationship they may have now or in the future. The employee...

Missouri Appellate Court Enforces Delegation Clause, Holds Arbitrator Has Authority to Decide Whether Claims Are Arbitrable
Andrew L. Metcalf,Erin E. Williams, August 20, 2015
This year, Missouri courts have issued several decisions interpreting arbitration agreements between employers and employees. While some of these agreements have been enforced, others have been struck down. The Missouri Court of Appeals invalidated two employment arbitration agreements in January...

Missouri School Boards, Cities, and Counties: Consider Enacting Ordinance Providing for Secret Ballot Union Elections for Certain Employees
Meredith A. Lopez,Robert W. Stewart, August 19, 2015
Article I, Section 29 of the Missouri Constitution gives employees “the right to organize and to bargain collectively through representatives of their own choosing.” For most public sector employees, Chapter 105 of the Missouri Revised Statutes (RSMo) includes a procedure by which...

California Amends FEHA, Protecting Accommodation Requests
Christopher W. Olmsted, August 18, 2015
On July 16, 2015, California’s Governor Jerry Brown signed a bill amending the California Fair Employment and Housing Act (FEHA), adding protections for workers who request accommodations for disabilities or religious beliefs.

California Court of Appeal Rules in Favor of Public Entity Employer: No Forum Shopping for California Public Entity Employees
Sarah A. Williams, August 18, 2015
In a recent unpublished case, the California Court of Appeal ruled a public civil service commission decision on a worker’s employment claims precluded him from relitigating his claims in a civil action. According to the state appellate court, the suit brought by a discharged worker who filed...

Court Finds STEM OPT Extension Rule to Be Deficient: Vacatur Stayed Temporarily to Allow DHS to Cure
Ann Louise Brown,Rebecca L. Sigmund, August 17, 2015
On August 12, 2015, in Washington Alliance of Technology Workers v. U.S. Department of Homeland Security et al., No. 14-529 (August 12, 2015), Judge Ellen Segal Huvelle of the U.S. District Court for the District of Columbia vacated the 2008 Department of Homeland Security (DHS) rule extending...

Hawaii Enacts New Restrictions on Noncompete and Nonsolicitation Agreements for Employees of Technology Businesses
Patricia Haim, August 17, 2015
A new Hawaii law prohibits and makes void noncompete and nonsolicit clauses in the employment contracts of “technology business” employees if the contracts are entered into on or after the law’s effective date of July 1, 2015. The new law does not affect noncompete and nonsolicit...

Alcoholism and the ADA: The DOs and DON’Ts of Alcohol Testing in the Workplace
Michael Clarkson,M. Tae Phillips, August 14, 2015
The Americans with Disabilities Act of 1990, as amended (ADA) considers alcoholism to be a “disability.” Individuals who suffer from alcoholism are entitled to the protections of the ADA just as those with significant mental illnesses or those confined to wheelchairs are. Thus,...

Striking a Balance: Alabama’s Newly-Amended Restrictive Covenant Statute
James A. Patton, August 14, 2015
When Alabama Governor Robert Bentley signed House Bill 352 into law on June 11, 2015, he repealed Alabama’s bare bones restrictive covenant statute and replaced it with a detailed codification of much of Alabama’s restrictive covenant case law. The new statute, which will become...

Play for Pay? Not Today, Says the Ninth Circuit in the Latest NCAA Ruling
Lisa Karen Atkins,John Richard Carrigan, August 13, 2015
Whether the amateurism rules of the National Collegiate Athletic Association (NCAA) violate federal antitrust laws remains an active issue before the Ninth Circuit Court of Appeals. But the dramatic changes ordered by U.S. District Judge Claudia Wilken to take effect for scholarship offers made...

The SEC’s Interpretative Guidance on Internal Whistleblowing Under the Dodd-Frank Act
Margaret Hutchins Campbell,Jesse C. Ferrantella, August 12, 2015
On August 4, 2015, the U.S. Securities and Exchange Commission (SEC) issued an interpretive rule stating that whistleblowers who report misconduct internally-not just those who report to the SEC-are protected by the anti-retaliation provisions of the Dodd-Frank Wall Street Reform and Consumer...

Is Everyone Disabled? Temporary Disabilities and the Ever-Expanding Definition of “Disability"
Katherine (Kathy) Dudley Helms, August 07, 2015
Following the amendments to the Americans with Disabilities Act (ADA)—the ADA Amendments Act of 2008 (ADAAA)—employers were told to refrain from asking employees whether they were disabled. The employer community took this instruction with a grain of salt, knowing that although the...

It’s Time to Work Overtime on Your Comments to the DOL
Steven F. Pockrass, August 07, 2015
Time is not on your side if you are an employer who has yet to address the U. S. Department of Labor’s proposed revisions to the Fair Labor Standards Act’s white collar overtime regulations.

Lessons from Deflategate: 5 Ways to Avoid Workplace Investigation Fumbles
Michael Clarkson,Patricia Chavarria Perez, August 07, 2015
Over the years, the topic of workplace investigations has gained increasing importance in the HR and employment law world. Now, with investigations routinely making headlines, they have become a part of our popular culture as well. Most recently, the investigation conducted and conclusions reached...

OSHA Proposes New Rules to “Clarify” Recordkeeping Obligations
John F. Martin, August 07, 2015
On July 29, the Occupational Safety and Health Administration (OSHA) published in the Federal Register a proposed rule to “clarify” employers’ recordkeeping obligations under 29 C.F.R. Part 1904. Comments are due by September 28.

Proposed Expansion of E-Verify Services and Obligations Could Add New Burdens for Employers
Sara E. Herbek, August 07, 2015
U.S. Citizenship and Immigration Services (USCIS) recently announced its intention to expand not only its E-Verify communication services but also implement new obligations for employers that participate in the E-Verify program (either voluntarily as a federal contractor or as required by state...

Rhode Island Enacts Legislation Authorizing the Use of Electronic Pay Cards
Todd M. Torres, August 07, 2015
On July 10, 2015, the Rhode Island General Assembly sent Governor Gina Raimondo a compromise measure (House Bill 5590/Senate Bill 351) that would allow Rhode Island employers—for the first time in the state’s history—to pay wages via electronic pay cards. The measure became law on...

USCIS Issues Final Guidance on Recent AAO Decision in Simeio
Ann Louise Brown,Rebecca L. Sigmund, August 07, 2015
On Tuesday, July 21, 2015, U.S. Citizenship and Immigration Services (USCIS) issued its final guidance on the recent Administrative Appeals Office (AAO) decision in Matter of Simeio Solutions, LLC. Under Simeio, employers must file an amended H-1B petition, along with an updated Labor Condition...

West Virginia Amends State Rule Verifying Legal Employment Status of Workers
Caroline Tang, August 07, 2015
On July 1, 2015, a new legislative rule amending the procedures required for West Virginia employers to verify the legal employment status of their workers went into effect in West Virginia. Pursuant to section 21-1B-4 of the West Virginia Code, all employers are required to keep “records of...

MSHA Workplace Examination “Clarification” Places Enforcement Target Squarely on Operators
William K. Doran, August 04, 2015
Over the years, the Mine Safety Health Administration (MSHA) has tried on two different occasions to overhaul the workplace examination standard at 30 CFR §56/57.18002 by issuing program policy letters. The agency’s primary goal in each of those efforts was to expand the recordkeeping...

Miners & Marijuana
Michael T. Heenan, August 04, 2015
As in other industries, mining companies must contend with employees and contractors using or being under the influence of illegal drugs in the workplace. Marijuana is one of the most prominent substances detected in drug screens of job applicants. Mine operators have routinely made blanket...

Who’s That Knocking at Your Door? USCIS Plans House Calls to Retrieve Erroneous EADs
Ann Louise Brown,Rebecca L. Sigmund, August 04, 2015
U.S. Citizenship and Immigration Services (USCIS) is taking extreme measures to get back all the three-year Employment Authorization Document (EAD) cards erroneously issued to Deferred Action for Childhood Arrivals (DACA) recipients. On February 16, 2015, the Fifth Circuit Court of Appeals, in...

Independent Contractor or Employee: DOL’s Latest Guidance on Employee Status
Margaret Santen Hanrahan,Brittni Alecia Pitts, August 03, 2015
On July 15, 2015, the U.S. Department of Labor (DOL) issued guidance on determining whether a worker is an independent contractor in the form of an “Administrator’s Interpretation.” Describing independent contractor misclassification as resulting in an “uneven playing field...

“Common Sense” Shows The Value of a Well-Written Dissent: Southern New England Telephone Company v. NLRB
Harold P. Coxson, July 31, 2015
It must be frustrating to be in the minority of an administrative adjudicatory body and to constantly be forced to write dissenting opinions, as was the case for former National Labor Relations Board (NLRB) member Brian E. Hayes (now an Ogletree Deakins shareholder). But if anyone doubted the value...

Another One Bites The Dust: Missouri Court Refuses to Enforce Arbitration Agreement Due to Unilateral and Retroactive Modification Clause
Andrew L. Metcalf,James M. Paul, July 31, 2015
Arbitration agreements have been a roller coaster for Missouri employers. Recently, in State ex rel. Hewitt v. Kerr, the Missouri Supreme Court enforced such an agreement, sending an employee’s discrimination lawsuit to arbitration. But overall, courts in Missouri have restricted the...

DOL’s Recent Guidance on the “Economic Realities” Test and Effects on Independent Contractor Misclassification in the Energy Industry
Ron Chapman,Matthew M. McCluer,Christopher E. Moore, July 31, 2015
Paying hot-shot drivers by the load or mile? Contracting out repair work to vehicles or machinery? Are individuals who regularly perform work integral to your business being paid through accounts payable? Have welders that you regularly call for work? Under new guidance published by the U.S....

Do Discharges Resulting From a Career Planning Program Amount to Group Termination Under the OWBPA?
Michael O. Eckard,Gretchen W. Ewalt, July 31, 2015
In Barnes v. The Hershey Company, No. 3:12-cv-01334, Judge Charles R. Breyer of the U.S. District Court for the Northern District of California granted summary judgment to an employer on the age claims brought by several former employees who had signed waivers of their age discrimination claims...

Here We Go Again—The Robert C. Byrd Mine Safety Protection Act
Dinah L. Choi,Gwendolyn K. Nightengale, July 31, 2015
For the fourth time since the Upper Big Branch coal mine explosion in April 2010, a Congressional bill proposes to further amend the Federal Mine Safety and Health Act of 1977. The Robert C. Byrd Mine Safety Protection Act was first introduced on December 3, 2010, and again on April 15, 2011, and...

New York Bill Follows California’s Lead to Recognize Professional Cheerleaders as Employees
Dino A. Bovell, July 31, 2015
It’s official—professional cheerleaders are now recognized as employees under California law. On July 15, 2015, California Governor Jerry Brown signed a bill that requires all California-based professional sports teams to pay their cheerleaders the minimum wage. As employees,...

New York Wage Board Recommends Minimum Wage of $15 per Hour for Fast Food Workers
Aaron Warshaw, July 31, 2015
As we previously reported, New York Governor Andrew M. Cuomo recently appointed a Wage Board to make recommendations on increasing the minimum wage for New York State fast food employees. Throughout the recent public meeting process, fast food employers have roundly criticized any proposed minimum...

Quest for “Living Wage” Results in Minimum Wage Increases in Kansas City, Missouri
Adam T. Pankratz, July 31, 2015
After months of heated debate, Kansas City, Missouri’s City Council voted to incrementally increase the minimum wage in Kansas City, Missouri over time from the current state-mandated $7.65 per hour to $13.00 per hour in 2020. The first incremental increase takes effect on August 24, 2015,...

The First 100 Days of Ambush Elections: Impact on the Retail and Hospitality Sectors
Diane M. Saunders, July 31, 2015
The National Labor Relations Board (NLRB) implemented its “ambush” or “quickie” election rules on April 14, 2015. An analysis of available NLRB data on representation election (RC) petitions filed since the effective date of the new rules yields some interesting information...

U.S. Embassy in London to Be Temporarily Closed August 7 and 10
Lowell Sachs, July 31, 2015
The Bureau of Consular Affairs of the United States Department of State has announced that the Embassy of the United States of America in London will be closed from Friday, August 7, 2015 through Monday, August 10, 2015. Specific reasons for the closure have not yet been made public. As a result of...

Employees Now Have Greater Rights to Work Overtime in Wisconsin
Timothy G. Costello, July 28, 2015
According to a Wisconsin state law, employers are required to provide a consecutive 24-hour rest period every 7 days for employees in factory and mercantile workplaces. As a result of the budget bill recently signed by Governor Scott Walker, Wisconsin employers will no longer be required to obtain...

Fifth Circuit Hears Arguments on the Proposed Reversal of the Block on Executive Actions
Rebecca L. Sigmund, July 28, 2015
A three-judge panel in the Fifth Circuit Court of Appeals, hearing arguments in State of Texas v. United States of America, questioned the attorneys for the U.S. Department of Justice and 26 states about whether the block on President Barack Obama’s recent executive actions on immigration...

President Obama Signs Trade Measures
Harold P. Coxson, July 28, 2015
It was not easily accomplished, but on June 29, 2015, President Obama signed into law a series of trade measures, including Trade Promotion Authority (TPA), providing the administration with rules governing the negotiation of international trade agreements. With the passage of TPA or...

Retailers Should Review I-9 Processes in Light of Recent DOJ Settlement
Rebecca L. Sigmund, July 28, 2015
Late last month, the U.S. Department of Justice (DOJ) reached a settlement agreement with a large clothing retailer to resolve claims that the company discriminated against a non-U.S. citizen in violation of the federal immigration laws. The agreement requires the payment of substantial back pay...

New York City Enacts “Ban the Box” Legislation
Aaron Warshaw, July 23, 2015
As we previously reported, the New York City Council recently passed the Fair Chance Act (Intro No. 318-A, 2014) that—among other requirements—prevents employers from inquiring about job applicants’ criminal arrests and convictions prior to hire. As expected, on June 29, 2015, New...

City of Chicago Increases Minimum Wage
Daniel O. Canales, July 16, 2015
Effective January 1, 2015, the City of Chicago increased the minimum wage within its city limits to $10.00 per hour worked for non-tipped employees and to $5.45 per hour worked for tipped employees.

Restroom Rights-The New Challenge for Texas Employers
Robert E. Bettac, July 16, 2015
Time was when an employer’s only preoccupation with restrooms was whether the cleaning crew was keeping them stocked with soap, towels, and toilet paper. Enter the new reality: federal agencies and LGBT rights groups are contending that transgender employees should be given the right to...

A Call to Action: The Comment Period on the new Proposed Overtime Regulations Begins
Robert A. Jones, July 15, 2015
On Monday July 6, 2015 the Obama Administration and U.S. Department of Labor (DOL or Department) published their proposal to revise the Part 541 overtime exemption regulations in the Federal Register, beginning the required 60-day comment period.

California Governor Signs Paid Sick Leave Amendment-Effective Immediately
Christopher W. Olmsted,Robert R. Roginson, July 15, 2015
California Governor Brown signed legislation on July 13, 2015 that aims to clarify and improve California’s new paid sick leave law that requires employers to offer employees 3 days or 24 hours of paid sick leave per year as of July 1, 2015. The amendments are effective immediately.

Employees Permitted To Openly Discuss Wages in Connecticut
William C. Ruggiero,John G. Stretton, July 15, 2015
On July 2, 2015, Governor Dannel P. Malloy signed into law Public Act No. 15-196, entitled An Act Concerning Pay Equity and Fairness (the Act). The Act is effective as of July 1, 2015 and limits an employer’s ability to discourage employees from having open discussions about their wages.

IRS Notice 2015-43 Addresses Expatriate Health Coverage
Christina M. Crockett, July 15, 2015
New guidance from the Internal Revenue Service (IRS) leaves in place the limited Affordable Care Act (ACA) exemptions set out in the Expatriate Health Coverage Clarification Act of 2014 (EHCCA). IRS Notice 2015-43 (Notice) permits a good faith interpretation of the EHCCA exemptions and attempts to...

New 2015-2016 Employment Laws for Oregon Businesses
Sean M. Driscoll, July 15, 2015
The 2015 Oregon legislature has adjourned, but not before handing Oregon businesses a number of significant new employment laws. Below is a brief summary of the new legislation, all of which Governor Kate Brown has signed, that Oregon businesses should consider as they head into the third and...

Should Employers Be Allowed to Count Nondiscretionary Bonuses Toward the FLSA’s Minimum Salary Threshold? The DOL Wants Your Comments
Steven F. Pockrass, July 15, 2015
As we reported last week in “A Call to Action: The Comment Period on the new Proposed Overtime Regulations Begins,” employers have a limited window of opportunity to submit comments in response to the proposed revisions to the white collar overtime regulations that the U.S. Department...

The CFRA Amendments: How to Prepare Your Organization
Kathryn B. Gray,Patricia Chavarria Perez, July 15, 2015
On March 4, 2015, the California Fair Employment and Housing Council approved updates to the California Family Rights Act (CFRA) regulations. These updates, which took effect on July 1, 2015, clarify certain CFRA provisions and align the CFRA more closely with the federal Family and Medical Leave...

A New Internship Standard-The Second Circuit’s Seven-Factor Test and What it Means for Your Company
Brian Jeffrey Gershengorn,Seth D. Kaufman, July 14, 2015
On July 2, 2015, the Second Circuit Court of Appeals issued a decision regarding the employment status of unpaid interns that should prove helpful to employers. In Glatt v. Fox Searchlight Pictures, Inc., Nos. 13-4478 and 13-4481, the Second Circuit overturned a decision by the U.S. District Court...

Connecticut Court Rules Urine Drug Testing Restrictions Do Not Apply to Hair Drug Testing
Michael Clarkson, July 14, 2015
On May 22, 2015, in an unpublished decision, Judge Andrew W. Roraback of the Connecticut Superior Court (Waterbury Judicial District) found that Connecticut’s statutory restrictions on urine-based drug testing did not apply to hair follicle-based drug testing. In the case, the plaintiff,...

The Proposed Overtime Regulations: What They Say, What They Mean, and What To Do Now
Maria Greco Danaher, July 14, 2015
The U.S. Department of Labor (DOL) issued its long-awaited proposed rule that would change the federal regulations of the Fair Labor Standards Act’s (FLSA) overtime provisions in a June 30, 2015 Notice of Proposed Rulemaking (NPRM), and the firestorm of praise and criticism has begun.

DOL’s Part 541 Proposal: Next Steps
Alfred B. Robinson, July 13, 2015
Now that the Obama Administration and U.S. Department of Labor (DOL or Department) have released its proposal to revise the Part 541 overtime regulations, it is important to understand what may be next and when we can expect developments with this regulatory proposal.

Indiana Wage Law Amendments Become Effective on July 1, 2015
Bonnie L. Martin,Steven F. Pockrass, July 10, 2015
Two significant changes to Indiana’s wage laws will become effective on Wednesday, July 1, 2015. First, liquidated damages will no longer be mandatory when an employer violates Indiana’s Wage Payment or Wage Claims statutes. Instead, a court must find that the employer was not acting in...

In Fresenius, the NLRB Admits It Was Wrong . . . Sort Of!
Harold P. Coxson, July 07, 2015
On June 24, 2015, the National Labor Relations Board (NLRB) issued a new decision involving allegations that an employer had unlawfully discharged an employee who had scrawled sexually-oriented obscenities and threatening statements on the face of union literature. In Fresenius USA Manufacturing,...

The Increased Cost of Tax (Non) Compliance and the New Trade Preferences Extension Act
Preston R. Burch, July 07, 2015
On June 29, 2015, President Obama signed into law the Trade Preferences Extension Act of 2015. Neatly tucked away in the “Offsets” provision of the Act are sizeable increases in the dollar amounts of the penalties under Internal Revenue Code sections 6721 and 6722. The new provisions...

The People Have Spoken, and It’s Time to Start Smokin’. . . Or Just Say No
Sean M. Driscoll, July 07, 2015
It’s July 1, 2015, and Oregon law now allows adults to lawfully use marijuana for both medical and recreational purposes. Many employers have already faced questions from employees about the impact of the state’s new marijuana law, and many more will face such questions in the coming...

The Proposed Overtime Regulations: Are Your White Collar Employees Still Exempt?
Hera S. Arsen,Steven F. Pockrass,Alfred B. Robinson, July 07, 2015
On June 30, 2015, the U.S. Department of Labor (DOL) announced its long-awaited proposed rule that would revise the regulations concerning the white collar exemption contained in section 13(a)(1) of the Fair Labor Standards Act (FLSA). According to the announcement, the proposed rule would...

Your Rx for Complying with California’s Newly Effective Paid Sick Leave Law
Hera S. Arsen, July 07, 2015
The Healthy Workplaces, Healthy Families Act of 2014, which Governor Jerry Brown signed on September 10, 2014, goes into effect today, July 1, 2015. The Act requires California employers to provide employees with one hour of paid sick leave for every 30 hours worked. Below is a round-up of some...

The Same-Sex Marriage Ruling: Key Employee Benefits Take-Aways
Jeanne Ellen Floyd,Ann Carr Mackey,Stephen A. Riga, July 06, 2015
Last Friday, the Supreme Court of the United States issued its highly-anticipated decision in the case of Obergefell v. Hodges, ruling that all 50 states must license marriages between two people of the same sex and must recognize a same-sex marriage lawfully licensed and performed out-of-state.

Massachusetts Attorney General Issues Final Earned Sick Leave Regulations With Substantial Revisions
Mark H. Burak,Rachel Reingold Mandel,David P. Mason, July 03, 2015
As many of you are aware, the July 1, 2015 effective date of the Massachusetts earned sick leave law is looming. In summary, the new law provides that employers of 11 or more employees must provide their Massachusetts employees with job-protected paid sick leave accrued at a rate of 1 hour for...

Supreme Court Once Again Saves the ACA: Rules Yes on Tax Credits For Purchasers From a Federal Exchange
Hera S. Arsen,Timothy G. Verrall, July 03, 2015
On June 25, 2015, the Supreme Court of the United States ruled that tax credits are available to individuals in states that have a federal Exchange under Section 1321 of the Affordable Care Act (the Act or the ACA). In a 6-to-3 ruling, the majority opinion declined to treat the issue as merely a...

NLRB Moves to Assert Jurisdiction Over Religious Educational Institutions
Lisa Karen Atkins,John Richard Carrigan,James C. Pennington, July 01, 2015
Before December of 2014, religious colleges and universities could generally assume that under the National Labor Relations Board’s (NLRB) “substantial religious character” test, the NLRB would decline to assert jurisdiction over them because of their religious missions. The...

School’s Out For Summer, But Not For Administrators: California’s “Yes Means Yes” Legislation Becomes Effective on July 1, 2015
Tracy A. Warren,Sarah A. Williams, July 01, 2015
On July 1, 2015, California colleges, universities, and postsecondary schools are required to bolster their compliance with new state laws regarding policies concerning sexual assault, domestic violence, dating violence, and stalking. This new law requires, among other things, that Cal Grant Fund...

The Obama Administration’s Proposed “Labor Violation” Reporting Duties Present Challenges for Federal Contractors
Dara L. DeHaven,W. Gregory Mott,Alfred B. Robinson, July 01, 2015
President Obama’s July 2014 Fair Pay and Safe Workplaces Executive Order 13673 mandates that federal contracting agencies collect information concerning a potential prime contractor’s 3-year violation history with respect to 14 federal labor, employment, wage payment, and safety laws...

The Same-Sex Marriage Ruling: Key Employment Law Take-Aways
Nonnie L. Shivers, July 01, 2015
On June 26, 2015, the Supreme Court of the United States answered the two questions it posed in the consolidated same-sex case, Obergefell v. Hodges, No. 14-556 (June 26, 2015). The consolidated case arose from challenges to Michigan, Kentucky, Ohio, and Tennessee state laws that continued to ban...

Rhode Island Raises Minimum Wage Again: Now $9.60 per Hour
Andrew E. Silvia,Todd M. Torres, June 26, 2015
On June 22, 2015, Rhode Island Governor Gina Raimondo signed into law another increase to the state’s minimum wage. This marks the fourth straight year that Rhode Island has raised its minimum wage. Effective January 1, 2016, the minimum wage will be $9.60 per hour.

“Ambush” Election Challenge Fails in Federal Court
Hera S. Arsen, June 24, 2015
A federal judge in Texas recently ruled in favor of the National Labor Relations Board (NLRB) in a case challenging the Board’s “ambush” election rules. The lawsuit, Associated Builders and Contractors of Texas, Inc. v. National Labor Relations Board, No. 1:15-cv-00026 (June 1,...

New Amendment to the Federal Labor Law in Mexico Raises Minimum Age for Employment
Rodolfo Giles Salgado,Pietro Straulino-Rodriguez, June 24, 2015
On June 12, 2015, a new amendment to the Federal Labor Law (FLL) was published in the Official Gazette, increasing the minimum age for employment from 14- to 15-years-old.

New York Federal Courts Increasingly Scrutinize Excessive Attorneys’ Fees in Wage and Hour Class and Collective Actions
Seth D. Kaufman, June 24, 2015
In what is becoming oft-cited language, U.S. District Judge William H. Pauley III of the Southern District of New York recently stated regarding the Fair Labor Standards Act that,

Ninth Circuit Holds No Status Quo Obligation During First Contract Negotiations Under Railway Labor Act
Todd C. Duffield, June 24, 2015
On June 8, 2015, in International Brotherhood of Teamsters, Airlines Division v. Allegiant Air, LLC, No. 14-16465 (June 8, 2015), the Ninth Circuit Court of Appeals ruled that under the Railway Labor Act (RLA), employers are not precluded from unilaterally changing working conditions during...

OFCCP Files Suit Against Federal Subcontractor Staffing Agency for Alleged Discrimination and Harassment
Janet Q. Lewis, June 24, 2015
In a complaint filed on June 17, 2015, OFCCP alleges that a staffing agency that supplies laborers to work for federal prime construction contractors at the prime contractors’ construction sites, permitted the prime contractors’ supervisors to harass the staffing agency’s Hispanic...

Oregon Legislature Mandates Sick Leave for All Employees
Sean M. Driscoll, June 24, 2015
On June 12, 2015, Oregon became the fourth state in the country to pass a statewide mandatory sick leave bill. Provided it is signed by Governor Kate Brown (which is virtually certain), the new law will require all Oregon employers to provide employees with up to 40 hours of legally protected sick...

Oregon Legislature Votes to “Ban the Box”
Sean M. Driscoll, June 24, 2015
Oregon will soon join the ranks of states with “ban the box” legislation. Provided House Bill (HB) 3025 is signed by Governor Kate Brown (which is virtually certain), the new law will regulate when Oregon employers can ask applicants to disclose criminal convictions. The effective date...

Oregon Tightens Restrictions on Noncompetition Agreements
Sean M. Driscoll, June 24, 2015
Oregon strictly regulates the use of noncompetition agreements by statute, generally limiting them to (a) exempt employees earning more than the median income for a family of four (approximately $74,000 currently), and (b) conditioning enforceability on a “bona fide advancement” or an...

Colorado Supreme Court Affirms Right to Discharge Medical Marijuana User Who Tested Positive in Violation of Zero Tolerance Policy
Raul Chacon,Austin E. Smith, June 19, 2015
Today, the Colorado Supreme Court issued its long-awaited opinion in Coats v. Dish Network, No. 13SC394 (June 15, 2015). The court held that Colorado’s lawful off-duty conduct statute does not prohibit employers from discharging employees who choose to use marijuana for medical purposes...

Massachusetts Attorney General Issues Revised “Safe Harbor” Delaying Full Implementation of New Earned Sick Time Law and Required Posting
David P. Mason, June 19, 2015
On June 10, 2015, the Massachusetts Attorney General’s Office (AGO) issued two important new documents for employers concerning implementation of the new earned sick time law that goes into effect on July 1, 2015. The AGO has held public hearings and listening sessions concerning the proposed...

New York City Moves to “Ban the Box” on Criminal Background Checks in Job Applications
Sonu Ray,Aaron Warshaw,Stephen R. Woods, June 19, 2015
On June 10, 2015, the New York City Council passed the Fair Chance Act (Intro No. 318-A, 2014) by a vote of 45-to-5. The legislation prevents employers from inquiring about job applicants’ criminal arrests and convictions prior to hire. Employers will be permitted to make such inquiries after...

“Fair Pay and Safe Workplaces” Guidance Explains Broad Labor Reporting Requirements for Federal Contractors
Harold P. Coxson,Dara L. DeHaven,Leigh M. Nason,Alfred B. Robinson, June 18, 2015
Today, the U.S. Department of Labor (DOL) published proposed guidance addressing the controversial Fair Pay and Safe Workplaces Executive Order 13673, which President Obama signed on July 31, 2014 (80 Fed. Reg. 30574 (May 28, 2015)). The Federal Acquisition Regulatory (FAR) Council also issued...

Despite Fewer Citations Issued Since 2008, the Percentage of “Significant and Substantial” Citations Is Holding Steady
Margaret S. Lopez, June 18, 2015
The Mine Safety and Health Administration (MSHA) recently released mining industry and enforcement data that reflects noteworthy changes the industry has experienced over the last six years. Of particular significance in the data from an enforcement perspective is the fact that, while the overall...

Massachusetts Supreme Judicial Court Issues Two Significant Opinions for Employers
Rachel Reingold Mandel,Diane M. Saunders,Andrew E. Silvia, June 18, 2015
In April 2015, the Supreme Judicial Court of Massachusetts issued two important decisions providing guidance for employers on the scope of Massachusetts’s wage and hour laws. In one decision, the Court held that employers may institute no-tipping policies in the Commonwealth without violating...

Fifth Circuit Finds Settlement Agreement Did Not Release Employees’ FLSA Claims
Tiffany L. Cox, June 17, 2015
In Bodle v. TXL Mortgage Corp., No. 14-20224 (June 1, 2015), the Fifth Circuit Court of Appeals held that a generic, broad-form settlement release between an employer and two of its former employees did not bar those employees’ subsequent lawsuit under the Fair Labor Standards Act (FLSA) for...

AAO Guidance Clarifies That Worker Mobility May Come at a Cost
Miguel A. Manna,Lowell Sachs, June 16, 2015
In a move likely to elicit equal parts appreciation and exasperation among the employer community, U.S. Citizenship and Immigration Services (USCIS) issued guidance on the need to file an amended H-1B petition when there is a change in worksite locations. The guidance, which was issued on May 21,...

California Employers Take the Heat . . . of new Revised Heat Illness Standards
Hera S. Arsen, June 16, 2015
On April 7, 2015, the California Department of Industrial Relations (DIR) and the state safety and health agency announced that the current heat illness prevention regulation has been amended. The Office of Administrative Law approved the state Occupational Safety & Health Standards...

FY 2016 H-1B Cap Petition Not Selected: What Are the Options?
Sara E. Herbek,Lowell Sachs, June 16, 2015
Most “new” H-1B petitions must be counted against an annual H-1B cap. This limit, or “cap,” administered by the U.S. Citizenship and Immigration Services (USCIS), is currently set at 65,000 plus an additional 20,000 reserved for those who hold an advanced degree from a U.S....

Hang Up After Hours? The Spring 2015 Regulatory Agenda Tackles This and Other Overtime Issues
Alfred B. Robinson, June 16, 2015
On Thursday, May 21, 2015, the White House, through its executive branch and other federal agencies, issued the Spring 2015 edition of the Semiannual Regulatory Agenda. Published twice a year, the agencies’ regulatory agendas provide an outlook on regulatory activity, identify agency...

Missouri Supreme Court “Calls an Audible,” Upholds Arbitration Agreement
Andrew L. Metcalf,James M. Paul, June 16, 2015
In recent years, Missouri courts have seemed reluctant to enforce arbitration agreements entered into between employers and employees. But in a recent decision, the Missouri Supreme Court reversed that trend and compelled arbitration of an employee’s age-discrimination claim. The...

New Texas “Open Carry” Legislation On Its Way to Becoming Law
Stephen J. Quezada, June 16, 2015
The Texas House of Representatives recently passed legislation (H.B. 910) that will allow holders of a concealed handgun license to carry holstered handguns in plain view. The Texas Senate passed its version of the “open carry” law (S.B. 17) in April 2015. The bills will proceed to...

Ninth Circuit Extends ERISA Deadline, Revives Untimely Appeal
Sean P. Nalty, June 16, 2015
Last week, the Ninth Circuit Court of Appeals issued its opinion in LeGras v. AETNA Life Insurance Company, No. 12-56541 (May 28, 2015), holding that the 180-day period to appeal a denial of a long-term disability claim was extended to the following Monday because the last day to submit the appeal...

OSC “Pattern and Practice” Investigations to Continue
Jacob D. Cherry, June 16, 2015
Over the past few years, the number of employer investigations—and perhaps more noteworthy, the amount of the penalties assessed—by the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) has steadily increased. All indications suggest that this trend...

OSHA Issues Guidance on Restroom Access for Transgender Employees
John F. Martin, June 16, 2015
On June 1, 2015, the Occupational Safety and Health Administration (OSHA) announced its publication of new guidance on best practices regarding transgender employees’ bathroom access. The announcement comes after the National Center for Transgender Equality formed an alliance with OSHA and...

Pending California Bill May Cure Sick Pay Law
Christopher W. Olmsted, June 16, 2015
Mere weeks before sick pay becomes mandatory in California, the state legislature is racing to cure what is ailing employers. Beginning on July 1, 2015, the Healthy Workplaces, Healthy Families Act of 2014 (HWHFA) will obligate employers in California to offer sick pay to employees in nearly every...

Projected Impact of the Upcoming Overtime Rules On Retail and Hospitality
Diane M. Saunders, June 16, 2015
As we await the issuance of new federal overtime regulations, employers in the retail and hospitality industries may be interested in the recent National Retail Federation (NRF) report, “Rethinking Overtime.” The NRF report includes the results of a study conducted by Oxford Economics...

Retaliation in the Fourth Circuit: Recent Decision Creates New Challenges for Employers
Tevis Marshall, June 16, 2015
In May 2015, the Fourth Circuit Court of Appeals (which has jurisdiction over federal courts in Maryland, West Virginia, Virginia, North Carolina, and South Carolina) issued an opinion with negative consequences for employers facing claims of retaliation. In Foster v. University of Maryland-Eastern...

Supreme Court Rules Employer’s Motive (Not Knowledge) Decides Disparate-Treatment Claims
Hera S. Arsen, June 16, 2015
On June 1, 2015, the Supreme Court of the United States decided whether an employer’s obligations under Title VII of the Civil Rights Act of 1964 are triggered only when an applicant has informed the employer of his or her need for an accommodation of a religious practice. In an 8-to-1...

The New Highest Minimum Wage in the Country: Emeryville Expected to Reach $16 Per Hour by 2020
Hera S. Arsen,Brooke S. Purcell, June 16, 2015
As of this week’s vote, the small California city of Emeryville, which is located in San Francisco’s Bay Area, is slated to have one of the highest minimum wage rates in the country. As expected, on June 2, 2015, the Emeryville City Council voted unanimously in favor of a minimum wage...

Tips for Lawfully Hiring Teenagers for Summer Jobs in California
Christopher W. Olmsted, June 16, 2015
Summer is almost here and many teenagers will be hitting the workforce to earn a few extra dollars. Companies that hire teenagers should be aware that state and federal law restricts the employment of minors or “child labor.”

Yet Another Municipal-Level Paid Sick Leave Measure Passes in California
Hera S. Arsen,Brooke S. Purcell, June 16, 2015
In addition to implementing a minimum wage rate increase, the ordinance that the Emeryville City Council unanimously approved on June 2, 2015 will provide paid sick leave to employees in Emeryville—over and above what is already provided to employees under state law. The “Minimum Wage,...

Uniforms, Dress Codes, and the FLSA
Elizabeth S. Washko, June 08, 2015
The Fair Labor Standards Act (FLSA) does not prohibit employers from requiring employees to follow a particular dress code or wear a designated uniform. However, it does prohibit employers from requiring employees to pay for uniforms, if such costs would cause an employee’s pay to drop below...

Fifth Circuit Rejects Obama Administration’s Effort to Free Executive Actions From Injunction
Lowell Sachs, June 02, 2015
On May 26, 2015 a three judge panel for the Fifth Circuit Court of Appeals rejected a request by the Obama administration to lift an injunction currently blocking aspects of President Obama’s executive action on immigration. The injunction, imposed by U.S. District Judge Andrew Hanen on...

Rhode Island and Federal Officials Agree to Cooperate in Investigating Independent Contractor Misclassification
Todd M. Torres, June 02, 2015
On May 7, 2015, the Wage and Hour Division (WHD) of the U.S. Department of Labor (DOL) and the Rhode Island Department of Labor and Training (RI-DLT) entered into a Memorandum of Understanding (MOU) in which they agreed to share information on independent contractor misclassification and coordinate...

Should Employers Guess Their Applicants’ Religion? SCOTUS Expected to Face Accommodations Issues Head On
Hera S. Arsen, June 02, 2015
The Supreme Court of the United States is poised to decide a case that should clarify employers’ obligations to provide applicants with accommodations for their religious practices. Simply put, the question is whether applicants must notify companies of any religious beliefs that would...

Changes to Insurance Requirements for J-1 Visa Exchange Programs
Maria Fernanda Gandarez,Matthew Kolodziej, June 01, 2015
In October of 2014, the U.S. Department of State revised Subpart A of the exchange visitor regulations. Changes to the reporting and English language proficiency requirements for exchange programs went into effect on January 5, 2015. Another major change that went into effect on May 15, 2015,...

Temporary Suspension of USCIS ‘Premium Processing’ for H-1B Extensions
Jacquelyn P. Maroney,Caroline Tang, June 01, 2015
On May 19, 2015, U.S. Citizenship and Immigration Services (USCIS) announced a temporary suspension of its “premium processing” program as it relates to H-1B extensions in the United States. The suspension will be in effect from May 26, 2015, until July 27, 2015. Premium processing is...

Ten Tips To Comply With California’s Upcoming Sick Pay Mandate
Christopher W. Olmsted, June 01, 2015
Mandatory sick pay is coming to California in less than 60 days. Beginning July 1, 2015, the Healthy Workplaces, Healthy Families Act of 2014 (HWHFA) will obligate employers in California to offer sick pay to nearly every category of employee. The minimum obligation is to provide sick pay at the...

Massachusetts AG Announces Safe Harbor Delaying Full Implementation of New Earned Sick Time Law for Some Employers
David P. Mason, May 29, 2015
On May 18, 2015, the Massachusetts Attorney General’s Office (AGO) held the first of several public hearings on proposed regulations concerning implementation of the new earned sick time law passed by Massachusetts voters in November 2014. At that hearing, Attorney General Maura Healey stated...

Set It and Forget It? Not so Fast, Says the Supreme Court in Tibble
Preston R. Burch,Timothy G. Verrall, May 29, 2015
On May 18, 2015, the Supreme Court of the United States rendered a much anticipated (by ERISA attorneys, at least) decision in Tibble v. Edison International, clarifying a relatively narrow but still significant issue involving fiduciary responsibilities and retirement plan investments. Tibble v....

$15 Per Hour Minimum Wage? Los Angeles and Emeryville Give Seattle a Run for the Money
Hera S. Arsen, May 27, 2015
On May 19, 2015, the Los Angeles City Council voted, 14-to-1, to raise the minimum wage to $15.00 per hour in increments over the next five years. As a result, the city council will draft a proposal to raise the wage rate from $9.00 per hour to $15.00 per hour by 2020. For businesses with 25 or...

California Supreme Court Agrees to Consider Whether California Health Care Workers Can Lawfully Waive a Second Lunch Period
Hera S. Arsen,Robert R. Roginson, May 27, 2015
This week, the California Supreme Court agreed to review the decision in Gerard v. Orange Coast Memorial Center, No. G048039 (February 10, 2015), where the California Court of Appeal partially invalidated the Industrial Welfare Commission (IWC) wage order provision that allows employees in the...

Captain of the Cheerleading Team: An Employee Too?
Dawn M. Knepper, May 27, 2015
On April 21, 2015, California’s legislature advanced a bill that would require professional sports teams based in California to classify their cheerleaders as employees and pay them a minimum wage. The state assembly’s Committee on Arts, Entertainment, Sports, Tourism and Internet Media...

USCIS Publishes Long-Awaited Filing Guidance for H-4 EAD Applications
Caroline Tang, May 27, 2015
On May 20, 2015, U.S. Citizenship and Immigration Services (USCIS) published long-awaited information to help eligible H-4 dependent spouses apply for employment authorization documents (commonly known as “EAD cards”) under the Employment Authorization for Certain H-4 Dependent Spouses...

EEOC’S Proposed Wellness Program Regulations Offer Guidance on Confidentiality of Employee Medical Information
John G. Stretton, May 15, 2015
On April 20, 2015, the U.S. Equal Employment Opportunity Commission (EEOC) published a much-anticipated proposed rule that seeks to amend the EEOC’s prior regulations with respect to employer “wellness programs” and address the implications of such programs under the Americans...

FICA Tax Student Exemption Resolution: Fifth Circuit Decision About Refunds of FICA Taxes Paid by Medical Residents Stands
Jeanne Ellen Floyd,Vicki M. Nielsen, May 15, 2015
FICA taxes, which fund the Social Security program, are not levied on state employees unless a state voluntarily opts in to the program. A state opts in by executing an agreement, commonly referred to as a “section 218 agreement,” with the Social Security Administration. In section 218...

Governor Cuomo Seeks to Increase New York Minimum Wage for Fast Food Workers
P. Kramer Rice, May 15, 2015
On May 7, 2015, Governor Andrew M. Cuomo announced the empanelling of a New York State Wage Board directed to investigate and make recommendations on increasing the minimum wage in the fast food industry. Both Governor Cuomo and Acting New York Commissioner of Labor Mario J. Musolino have stated...

Philadelphia Releases Sick Leave Poster
Paul Lancaster Adams,Julie Donahue, May 15, 2015
On May 13, 2015, Philadelphia’s paid sick leave ordinance, formally entitled “Promoting Healthy Families and Workplaces,” becomes effective. In addition to the key provisions of the ordinance requiring certain employers to provide employees with up to 40 hours of paid sick leave...

Wisconsin Supreme Court Holds That Continued Employment Constitutes Adequate Consideration for Restrictive Covenants
Mark A. Johnson, May 15, 2015
The Wisconsin Supreme Court recently issued a decision holding that continued employment is adequate consideration for restrictive covenants. In Runzheimer International, Ltd. v. Friedlen, et al., No. 2013AP1392 (April 30, 2015), the state’s highest court held that an employer’s...

You’ve Got Mail: EEOC Rolls Out Online Charge System
David J. Harris, May 15, 2015
The U.S. Equal Employment Opportunity Commission (EEOC) has taken its first steps towards moving to an all-digital charge system. On Wednesday, May 6, 2015, the agency announced that 11 of its 53 field offices would begin a pilot program called “Act Digital.” The new online system will...

Automobile Service Advisers Are Not Exempt Under the FLSA—At Least Not According to the Ninth Circuit
Seth E. Ort, May 13, 2015
Navarro v. Encino Motorcars, LLC, No. 13-55323 (March 24, 2015): The plaintiffs in Navarro v. Encino Motorcars, LLC were “service advisors” at a Mercedes Benz dealership. The main duties of service advisors are to evaluate the repair needs of customers’ vehicles and then to...

California Confectioner Defeats Worker’s Age Discrimination Claim
Christopher W. Olmsted, May 13, 2015
Armenta v. Morris National, Inc., No. B255575 (March 27, 2015): Discrimination claims often ensue after a reduction in force (RIF) because laid off employees second-guess management’s selection process. However, as seen in a recent unpublished California Court of Appeal decision, a systematic...

California Court Finds Arbitration Agreement Did Not Unlawfully Limit Judicial Review
Carmine Joseph Pearl, May 13, 2015
Valdez v. Santa Lucia Preserve Co., No. H040685 (March 23, 2015): In an unpublished opinion, the California Court of Appeal for the Sixth Appellate District overturned a trial court’s ruling denying an employer’s motion to compel arbitration. In applying California’s Armendariz...

California Court of Appeal Reminds Employers About the Importance of Thorough Harassment Investigations
Jaclyn A. Simi, May 13, 2015
Dawson v. Country Club of Rancho Bernardo, No. D064654 (March 23, 2015): In an unpublished opinion, a California Court of Appeal reversed an order granting summary judgment in favor of the employer, Country Club of Rancho Bernardo, in a food and beverage manager’s sexual harassment case...

California Employer Successful in Arbitration Policy Dispute
Serafin Tagarao, May 13, 2015
Serafin v. Balco Properties Ltd., LLC, No. A141358 (March 16, 2015): The California Court of Appeal for the First Appellate District recently upheld an arbitration award in favor of an employer despite the employee’s arguments that (1) she never entered into a binding agreement to arbitrate...

Caltrans Liable for Failure to Properly Address Employee’s Requests for Accommodation
Nisha Verma, May 13, 2015
Kamali v. California Department of Transportation, No. B247756 (March 17, 2015): In an unpublished opinion, the California Court of Appeal recently upheld a jury’s verdict finding the California Department of Transportation (Caltrans) liable for failure to provide a reasonable accommodation...

DOL “Springs” Its Part 541 Proposal for Review
Alfred B. Robinson, May 13, 2015
On Tuesday, May 5, 2015, the U.S. Department of Labor (DOL) announced that it had sent its draft proposed part 541 overtime regulations to the Office of the Information and Regulatory Affairs (OIRA) at the Office of Management and Budget for review. President Obama signed a presidential memorandum...

Justices Give Courts Authority to Review EEOC Conciliation Efforts
Hera S. Arsen, May 13, 2015
On April 29, 2015, the Supreme Court of the United States decided whether¿and the extent to which¿courts may review efforts made by the U.S. Equal Employment Opportunity Commission (EEOC) to resolve discrimination claims with an employer before filing suit. The Court decided that courts may review...

New Legislation Promises More Investigations by the New York City Commission on Human Rights
Aaron Warshaw, May 13, 2015
On April 20, 2015, New York City Mayor Bill de Blasio signed two new bills into law that authorize the New York City Commission on Human Rights to increase the number of employment discrimination investigations.

New York City Passes Bill Prohibiting Employers From Requesting or Using Credit History in Employment Decisions
Evan B. Citron, May 13, 2015
On April 16, 2015, the New York City Council passed a bill to amend the New York City Human Rights Law (NYCHRL) to prohibit employers from requesting or using an individual’s credit history in making employment decisions. The bill (Intro. No. 261-A, 2014) would make it an unlawful...

New York Court of Appeals Applies Federal Impact Analysis Under State Law
, May 13, 2015
Margerum v. City of Buffalo, 24 N.Y.3d 721 (N.Y. Feb. 17, 2015): The New York Court of Appeals held that, where an employer has allegedly engaged in intentional discrimination to avoid or remedy an unintentional disparate impact, liability under the New York State Human Rights Law (NYSHRL) should...

Ninth Circuit Overturns Summary Judgment Issued in Favor of Employer in Retaliation Case
Jill V. Cartwright, May 13, 2015
Lukov v. Schindler Elevator Corp., No. 12-17695 (February 24, 2015): In an unpublished decision, the Ninth Circuit recently overturned summary judgment granted to an employer on the plaintiff’s retaliation claims. William Lukov worked as an elevator mechanic for Schindler Elevator...

OSHA Announces Final Rule for Confined Spaces in Construction
John F. Martin,Shontell D. Powell, May 13, 2015
On May 1, 2015, Dr. David Michaels, the head of the Occupational Safety and Health Administration (OSHA), and Deputy Secretary of Labor Christopher P. Lu announced the issuance of OSHA’s long-awaited Confined Spaces in Construction standard. Prior to issuing this new standard, OSHA had one...

When is a Background Search not a Background Search?
Maria Greco Danaher, May 13, 2015
The Fair Credit Reporting Act (FCRA) was enacted to insure that consumer reporting agencies act with “fairness, impartiality, and respect for the consumer’s right to privacy.” But one federal court held recently that LinkedIn’s search technology does not make that site a...

A Single "Hitler" Comment Is Insufficient for a Title VII Retaliation Claim in the Fifth Circuit
Hera S. Arsen, May 01, 2015
The Fifth Circuit Court of Appeals recently affirmed a judgment against a City of Houston employee who claimed that he was demoted for reporting another employee’s racially offensive comment made during a workplace meeting. According to the federal appellate court, the worker had not engaged...

Employers’ Demand for H-1B Visas Quickly Exceeds USCIS Cap ... Again
Lowell Sachs, May 01, 2015
As in recent years, the strong demand for H-1B visas for scientists, engineers, computer programmers, and other foreign workers in so-called “specialty occupations” again led employers in the United States to file petitions in such great quantity that they quickly exceeded the number...

SEC Brings First Enforcement Action Targeting Language Contained in Confidentiality Agreements
Margaret Hutchins Campbell,Jesse C. Ferrantella, May 01, 2015
As we reported in a previous post, “SEC Investigating Companies’ Employment Contracts That Restrict Whistleblowing,” the U.S. Securities and Exchange Commission (SEC) has been vocal about its concerns regarding the effects of confidentiality provisions on the agency’s...

Spring: A Time for Change in UK Employment and Data Protection Law
Pia Padfield, May 01, 2015
Spring is always a time for new beginnings: the end of the financial year and the start of a new one, government election season, and time to advance clocks forward for daylight saving time. In the United Kingdom, spring also heralds new changes in employment and data protection laws. Below are...

The WARN Act An "Employment Loss" by any Other Name Would Smell
David Lee Zwisler, May 01, 2015
The federal Worker Adjustment and Retraining Notification Act of 1988 (WARN Act) requires covered employers to provide affected workers 60 calendar days’ notice prior to a plant closing or a mass layoff that results in an employment loss. Whether a reduction in workers constitutes a...

Three Tips on Avoiding Summer Internship Headaches
Diane M. Saunders, May 01, 2015
Spring is here and retailers across the country are considering hiring summer interns in areas such as finance, communications, marketing, merchandising, production, and public relations. Internships serve a valuable training role for students interested in retail careers, and they provide an...

Two-Year Preapproved Defined Contribution Plan Window is Still Open
Christina M. Crockett, May 01, 2015
Retirement plan vendors sponsoring defined contribution plan documents approved by the Internal Revenue Service (IRS) have begun issuing packages containing the new IRS-approved version of those documents-reflecting the Pension Protection Act and other required regulatory updates-to employers that...

AAO Decision Clarifies Requirement to File Amended H-1B Petitions for Worksite Changes
Jacob D. Cherry, April 30, 2015
On April 9, 2015, U.S. Citizenship and Immigration Services (USCIS) issued a precedential decision concerning an employer’s obligation to file an amended H-1B petition in certain scenarios involving a change in worksite. The decision by the Administrative Appeals Office (AAO)-USCIS’s...

City of St. Petersburg, Florida Passes Wage Theft Ordinance
Edmund J. McKenna, April 30, 2015
Under the new City of St. Petersburg “wage theft” ordinance, an employer commits wage theft when the employer fails to pay wages, or a portion of wages, due to an employee within a “reasonable time” (typically 14 business days) from the date on which that employee performed...

Decisions Raise Bar on Waiver of Arbitration Agreements Under Texas Law
Lawrence D. Smith, April 30, 2015
While employers may enter into arbitration agreements with employees relatively easily, ensuring the enforcement of arbitration agreements can be a different matter. For this reason, employers are rightfully cautious to avoid taking any steps in litigation that a trial court might consider to be a...

Employers Between a Rock and a Hard Place: Another Puzzling “Status Quo” Case Decided On Other Grounds
Matthew J. Kelley, April 30, 2015
The National Labor Relations Board (Board) recently decided a case previously remanded back to it by the District of Columbia Circuit Court of Appeals. The Board’s decision in Arc Bridges, Inc., 362 NLRB No. 56, March 31, 2015, circumvents a now common problem for employers by relying on...

Employers Can Decide That Physical Presence at the Workplace is an Essential Function
Kelly S. Hughes, April 30, 2015
On April 10, 2015, the Sixth Circuit Court of Appeals issued its long-awaited en banc decision in Equal Employment Opportunity Commission v. Ford Motor Company following a vacated panel decision from April 2014 in which a divided panel had reversed a district court’s summary judgment award in...

FY 2016 H-1B Cap Lottery Selection Completed, Premium Processing Timeline Begins April 27, 2015
Jamey E. Ayers, April 30, 2015
On April 14, 2015, the U.S. Citizenship and Immigration Services (USCIS) announced that on April 27, 2015, it will begin reviewing cases filed with a request for premium processing. USCIS previously confirmed completion of the random selection “lottery” process for approximately 233,000...

Getting with the (Wellness) Program: EEOC Proposes New ADA Regulations for Wellness Programs
Jeanne Ellen Floyd,Ruth Anne Collins Michels, April 30, 2015
For some time, employers have faced uncertainty about the status of their wellness programs under the Americans with Disabilities Act (ADA). While the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and the Affordable Care Act (ACA) have allowed employers to provide financial...

IRS Traded in Your Chevy for a “Cadillac (ac-ac-ac-ac-ac) Tax”: Agency Issues First Guidance on the Implementation Code Section 4980I
Patricia L. Beaty,Taylor Bracewell, April 30, 2015
On February 23, 2015, the Internal Revenue Service (IRS) issued the first piece of guidance that discusses the excise tax, better known as the “Cadillac Tax,” imposed by Section 4980I of the Internal Revenue Code of 1986, as amended, on employers that offer high-cost health coverage....

Massachusetts Attorney General Issues Proposed Regulations on Implementation of New Earned Sick Time Law
David P. Mason, April 30, 2015
As we detailed in November 2014, Massachusetts voters last fall approved a new law mandating that employers provide earned sick time to their employees. Under the new law, employers with 11 or more employees must provide paid sick leave for workers and smaller employers must provide unpaid sick...

NLRB's New "Ambush Election" Rules Go Into Effect: Is Your Organization Ready?
Harold P. Coxson,C. Thomas Davis,Eric C. Stuart, April 30, 2015
On April 14, 2015, after a four-year battle, the National Labor Relations Board’s (NLRB) final “ambush election” rules, which will dramatically shorten the time between requests for a vote and a union election, go into effect. The controversial new rules will significantly alter...

New Law Restricts Employer Access to Employee Social Media Accounts, Including Through “Friend Requests”
John G. Stretton, April 30, 2015
On March 23, 2015, Virginia Governor Terry McAuliffe signed a new law, H.B. 2081, that restricts the ability of employers in Virginia to access the social media accounts of current and prospective employees-making Virginia the nineteenth state to enact such legislation. The other 18 states include...

New Massachusetts Minimum Wage Regulations Contain Significant Changes
Diane M. Saunders, April 30, 2015
While the January 2015 increases in the Massachusetts minimum wage for regular and tipped employees have received considerable attention and publicity, the Massachusetts Department of Labor Standards (DLS) also issued new minimum wage regulations to little fanfare. The new regulations have been...

Noncompete Law in France-Payment of a Noncompete is Required During Garden Leave
Rebecca Marks, April 30, 2015
In France, a valid noncompete clause in an employment contract must provide for the payment of financial compensation to the departing employee, as long as the employee remains bound by and complies with the clause’s terms and conditions. But when must the payment of compensation commence?...

OFCCP Drops the Annual Veterans Hiring Benchmark to 7 Percent
Leigh M. Nason, April 30, 2015
On April 21, 2015, the Office of Federal Contract Compliance Programs (OFCCP) announced that it had updated the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) Benchmark Database on its website. The VEVRAA Benchmark Database is one of two databases that the OFCCP launched in March...

OSHA Announces Request for Information on Communication Tower Safety
John F. Martin, April 30, 2015
On April 15, the Occupational Safety and Health Administration (OSHA) published in the Federal Register a Request for Information (RFI) on Communication Tower Safety. The agency requests that the communication tower industry and the general public send in comments and information by June 15, 2015,...

Oil Field Employers Post-McMaster: Still Searching for Clarity on the TCA’s Impact on the Motor Carrier Act Exemption
Jennifer G. Betts, April 30, 2015
In McMaster v. Eastern Armored Services, Inc., No. 14-1010 (March 11, 2015), the Third Circuit Court of Appeals issued one of the first federal appellate court opinions discussing the SAFETEA-LU Technical Corrections Act of 2008 (TCA). The TCA is an uncodified amendment to the Fair Labor...

Overtime Changes Threaten the Exempt Status of Retail and Hospitality Managers
Diane M. Saunders, April 30, 2015
The National Retail Federation’s (NRF) Committee on Employment Law held its spring meeting last week, and one of the hottest topics on the minds of the attendees concerned the impact that the U.S. Department of Labor’s proposed changes to the overtime regulations would have on retail...

The New Wave of Data Breach Settlements
Madi Bakker,Ashley Prickett Cuttino, April 30, 2015
4.8 million. 10 million. 15 million. 25 million. Before 2014, these large numbers were likely to represent the number of individuals affected by a data breach. Today, they are the dollar figures that companies must spend to put a breach in the past-and that’s just the cost of settlement....

USCIS Receives Record Number of H-1B Work Visa Requests
Jamey E. Ayers, April 30, 2015
On April 13, 2015, U.S. Citizenship and Immigration Service (USCIS) released the H-1B “cap” count, indicating that during the filing period it had received nearly 233,000 petitions for H-1B work visas. This means that U.S. employers filed approximately 233,000 petitions during the...

EEOC has Defined "Ability to Interact with Others" as a Major Life Activity, Making Social Anxiety Disorder A Disability under the ADA
Maria Greco Danaher, April 27, 2015
An employee who was fired after asking to be reassigned to a role with less direct personal interaction as an accommodation for her social anxiety disorder has been allowed by the Fourth Circuit Court of Appeals to take her case to a jury. Jacobs v. N.C. Administrative Office of the Courts, No....

Third Circuit Finds Motor Carrier Exemption to Overtime Inapplicable to Truck driver under The "Small Vehicle Exception"
Robin Koshy,Steven J. Luckner,Evan J. Shenkman, April 27, 2015
On March 11, 2015, the Third Circuit Court of Appeals affirmed that the motor carrier exemption to the overtime requirements of the Fair Labor Standards Act (FLSA) did not apply to a truck driver who operated vehicles lighter than 10,000 pounds, even though she spent more than half her time...

Third Circuit Holds Option to Convert Terminated Employees Into Independent Contractors Sufficient Consideration to Support Release
Robin Koshy,Steven J. Luckner,Evan J. Shenkman, April 27, 2015
In connection with a wholesale reclassification of certain sales agents from employees to independent contractors, Allstate Insurance Company terminated the employees and offered them the opportunity to work as independent contractors in exchange for the execution of a release of all claims arising...

How Retailers Are Responding to the New “Ambush Election” Rules With Employee Engagement Strategies
Diane M. Saunders, April 24, 2015
On April 14, 2015, the National Labor Relations Board’s “ambush election” rules went into effect, making it easier for unions to organize in the retail setting and beyond. The next day, demonstrations against retailers and hospitality employers took place throughout the country,...

New Fiduciary Regulations Require Retirement Investment Advisers to Act in Clients’ Best Interests
Preston R. Burch, April 24, 2015
On April 14, 2015, the U.S. Department of Labor (DOL) issued new proposed regulations that changed the definition of “fiduciary investment advice” as currently found in DOL Regulation 2510.3-21(c). These proposed rules also formally withdraw the prior proposed regulations issued in...

Employers Obtain Relief From Oppressive and Risky Michigan Wage Garnishments
Martin C. Brook, April 23, 2015
A wage garnishment is a court order that assists plaintiffs with the collection of judgments. Such an order requires an entity to withhold money (i.e., wages) owed to a judgment debtor and divert it to a judgment creditor in order to satisfy the judgment debt. An order for a wage garnishment is...

Implied Rights in Whistleblower Policies: What DC’s Latest Ruling Means for Employers
John S. Bolesta,Jenna Mennona, April 23, 2015
On March 18, 2015, the U.S. District Court for the District of Columbia ruled on a motion to dismiss in a case that will have potentially serious consequences for D.C. employers that include written whistleblower and other anti-retaliation policies in their employee handbooks.

NLRB General Counsel Issues Memorandum Providing Justification for Employer Rule Decisions
Donald D. Gamburg, April 01, 2015
Over the past several years, the National Labor Relations Board (NLRB) has aggressively redefined the landscape for employer rules contained in employee handbooks, employee policies, and/or employment agreements. Even though these decisions purportedly follow the standards established in the...

OFCCP’s Proposed Sex Bias Rules Continue Focus on Compensation, Pregnancy Accommodation, and Gender Identity
A. Craig Cleland,Dara L. DeHaven, April 01, 2015
On January 28, 2015, the Office of Federal Contract Compliance Programs (OFCCP) issued a Notice of Proposed Rulemaking (NPRM) to replace the current sex discrimination guidelines. This updated rule is intended to reflect legislative changes that have occurred since the guidelines were implemented...

Proposed Wisconsin Legislation Would Make It Easier for Employers to Enforce Restrictive Covenants
Mark A. Johnson, April 01, 2015
The Wisconsin legislature may soon dramatically change the law that governs restrictive covenants, making them easier to enforce.

Tennessee Poised to Prohibit Employers From Disciplining Employees With Firearms in Vehicles
William Rutchow, April 01, 2015
On March 23, 2015, the Tennessee General Assembly voted overwhelmingly to end confusion surrounding Tennessee’s “Guns in Trunks” law. Tennessee has historically allowed property owners to prohibit firearms anywhere on their property—making it a crime for even a person with a...

Will Employers Have an Affirmative Defense in EEOC Litigation? A Look at the Supreme Court’s Upcoming Decision
Hera S. Arsen, Ph.D., March 25, 2015
In the coming months, the Supreme Court of the United States will determine the level of judicial review, if any, that will be applied to employers’ pre-litigation negotiations with the U.S. Equal Employment Opportunity Commission (EEOC) in discrimination cases. In Mach Mining, L.L.C. v....

Amendments to D.C. Accrued Sick and Safe Leave Act Creates New Hurdles for Employers
, March 24, 2015
The District of Columbia’s Accrued Sick and Safe Leave Act of 2008 (ASSLA), which requires employers to provide paid leave to employees for their own or a family member’s illness as well as in certain other situations, was amended by the Council of the District of Columbia in 2013 and...

D.C. Joins the “Ban the Box” Trend and Enacts the Fair Criminal Record Screening Amendment Act of 2014
John S. Bolesta,Amanda N. Pickens, March 24, 2015
The primary initiative of the “Ban the Box” nationwide campaign is to persuade employers to remove the “check box” asking applicants if they have a criminal record from their hiring applications. The purpose of the initiative is to enable former offenders to display their...

EEOC FY 2014 Statistics Are Here: What Do They Mean for Employers?
Evan J. Shenkman,Evan J. Shenkman, March 24, 2015
The U.S. Equal Employment Opportunity Commission (EEOC) just released its fiscal year (FY) 2014 enforcement and litigation statistical report for the private sector. Presented annually, the report always contains some nuggets for employers and employment attorneys, and this year’s is no...

Fifth Circuit Declines to Clarify When an Employment Action is “Adverse” Enough to Support a Discrimination Claim
Robert E. Bettac, March 24, 2015
When presented with an employment discrimination claim, one of the early questions any agency or court must answer is whether the claimant has suffered an “adverse employment action.” Simply stated, even if a discriminatory motive can be shown, is the harm suffered by the claimant...

Further Delay to the EU Data Protection Regulation
Simon J. McMenemy, March 24, 2015
It is a day to celebrate and raise awareness of the importance of protecting personal data, a fundamental right for everyone in the EU.

Information Flow & Employee Engagement: Interview With Amy Haran of USANA
Jathan Janove, March 24, 2015
Amy Haran is Executive Director of Communications of USANA Health Sciences. Recently profiled in Utah Business magazine’s “Forty under 40,” she oversees communications for USANA’s 300,000 independent distributors and 1,300 employees around the world.

NLRB General Counsel Issues Aggressive Immigration Initiative-Employers Now Face Extraordinary Penalties
Bernhard Mueller,Eric C. Stuart, March 24, 2015
On February 27, 2015, National Labor Relations Board (NLRB) General Counsel Richard F. Griffin, Jr. injected the NLRB into the national debate regarding border security, the rights of undocumented workers and their families, and the appropriate use of taxpayer funds. In cases in which employee...

New Requirements for Companies Hiring Foreign Workers Under Canada’s International Mobility Program
Bernhard Mueller, March 24, 2015
On February 11, 2015, Citizenship and Immigration Canada (CIC) issued amended regulations meant to enhance accountability for employers that hire foreign workers under the International Mobility Program (IMP), that is, those hiring foreign nationals who are exempt from the Labour Market Impact...

Recent Illinois Federal Court Rulings Cloud Fifield’s Bright-Line Test
Kwabena A. Appenteng,Tobias E. Schlueter, March 24, 2015
Two recent rulings in the Northern District of Illinois, Eastern Division and the Central District of Illinois, Peoria Division, have further blurred the “bright line” two-year consideration rule established by the Illinois First District Court of Appeals in Fifield v. Premier Dealer...

Revisiting Rochow: The Sixth Circuit Rejects Earlier $3.8 Million Equitable Award in Recent En Banc Decision
Violet H. Borowski,Mark E. Schmidtke, March 24, 2015
Just over a year ago, a panel decision by the Sixth Circuit Court of Appeals in Rochow v. Life Insurance Company of North America, 737 F.3d 415 made big news when the court upheld the district court’s award of $3.8 million in equitable relief on a theory of unjust enrichment and held that an...

SEC Investigating Companies’ Employment Contracts That Restrict Whistleblowing
Margaret Hutchins Campbell,Jesse C. Ferrantella, March 24, 2015
The U.S. Securities and Exchange Commission (SEC) may soon be investigating the agreements companies make with their employees. According to a February 25, 2015 Wall Street Journal report, the SEC has sent requests to several companies asking for years of employment contracts, nondisclosure...

State Department to Resume J-1 Visa Program Sponsor Site Visits
Maria Fernanda Gandarez,Matthew Kolodziej, March 24, 2015
The U.S. Department of State (DOS) has informed the sponsors of J-1 intern and trainee programs that it will perform site visits to many J-1 Intern and Trainee host organizations in 2015. Some employers have reported that such visits have occurred as early as February. Program participants and host...

Supreme Court Eliminates Notice-and-Comments for Some Agency Interpretations
Hera S. Arsen,John Gerak,Kelly L. Hamilton, March 24, 2015
On March 9, 2015, the Supreme Court of the United States ruled that the Paralyzed Veterans doctrine, which requires an agency to use the notice-and-comment procedures of the Administrative Procedure Act (APA) when issuing a new interpretation of a regulation that deviates significantly from a...

The D.C. Wage Theft Law’s Next Steps: DOES Issues Notice and Template
, March 24, 2015
The District of Columbia’s Wage Theft Prevention Amendment Act of 2014 (2014 WTPAA) went into effect on February 26, 2015, after completing congressional review. In an effort to promote compliance with the 2014 WTPAA, the D.C. Department of Employment Services (DOES) released some guidance...

Turning Metrics Into Money: An Interview With Solange Charas, Ph.D.
Jathan Janove, March 24, 2015
Solange Charas, Ph.D. is chief executive officer (CEO) of Charas Consulting, Inc. In her career, she has served as a chief human resources officer (CHRO) and corporate board director, her research has been published in Harvard Business Review and The Corporate Board magazine, and she has appeared...

King v. Burwell: What to Expect From the Supreme Court Argument
Thomas M. Christina, March 23, 2015
On Wednesday, March 4, 2015, the Supreme Court of the United States will hear argument in King v. Burwell, a case involving premium tax credits under the Affordable Care Act (ACA). Among its many provisions, the ACA includes one that authorizes a refundable federal income tax credit to assist...

A WARN Act Roundup: Jury Trial Rights, the Unforeseen Business Circumstances Defense, and the Single Employer Rule
Michael R. Marra,Melissa Jill Osipoff, March 23, 2015
Towards the end of 2014, three federal courts explored developing issues under the federal Worker Adjustment and Retraining Notification Act of 1988 (WARN Act), 29 U.S.C. §§ 2101-2109 et. seq. Below is a summary of three notable cases that employers may find helpful if contemplating a...

California Labor Commissioner Revises Sick Pay Notice Obligation
Christopher W. Olmsted, March 23, 2015
As the July 1, 2015 deadline for employers to implement California’s new paid sick leave law approaches, employers are finding a number of ambiguities in the law that make it challenging to implement. The Office of the Labor Commissioner seems to be facing the same challenges, because it...

Changing MSHA Penalties: What’s on the Horizon for Mine Operators?
Michael T. Heenan, March 23, 2015
The Mine Safety and Health Administration (MSHA) is in the process of reviewing proposed new civil penalty regulations following multiple hearings in which stakeholders offered their comments. Civil penalties for safety violations within the mining industry have generated much consternation and...

DHS Funding Hangs In Balance While Congress Squares Off Over Executive Action on Immigration
Justin Coffey,Lowell Sachs, March 23, 2015
A chess match continues to be fought in Congress over the fate of President Obama’s executive action on immigration. The standoff is over disagreement as to whether President Obama exceeded his constitutional authority by attempting to bypass Congress and put into effect a collection of...

French Terminations: What Happens if You Miss the End of the Probationary Period?
Rebecca Marks, March 23, 2015
You know that sinking feeling: you have a new employee in France who is not working out, and the manager has left it until the last minute to let you know. What happens if the required termination notice period will now extend beyond the end of the employee’s trial period? Does that...

New District of Columbia Pregnancy Accommodation Statute to Become Effective on March 3, 2015
Christopher E. Humber,Jenna N. Mennona, March 23, 2015
Barring adverse congressional review, the District of Columbia’s Protecting Pregnant Workers Fairness Act of 2014 (PPWFA) will become effective on March 3, 2015. The new statute gives pregnant workers significantly broader protection than they have under current federal and District of...

Same-Sex Spouses to be Covered by FMLA as of March 27, 2015
Amanda C. Couture, March 23, 2015
On February 25, 2015, the U.S. Department of Labor (DOL) finalized a new rule (which was published in the Federal Register) expanding protections under the Family and Medical Leave Act (FMLA) for same-sex married couples.

The District of Columbia Council Passes Its Own Wage Theft Prevention Amendment Act
Joleen Okun,Alfred B. Robinson, March 23, 2015
The Council of the District of Columbia passed the Wage Theft Prevention Amendment Act (WTPAA) of 2014 which then mayor Vincent C. Gray signed in September 2014. Pursuant to the District of Columbia Home Rule Act, this legislation is now under congressional review. This review process is beneficial...

What Will Be the Fate of Your (Facially Neutral) Light-Duty Policies After Young v. UPS?
Hera Arsen, March 23, 2015
With its forthcoming decision in Young v. United Parcel Service, Inc., the Supreme Court of the United States is expected to bring some much-needed clarity to the issue of what the Pregnancy Discrimination Act (PDA), 42 U.S.C. §2000e(k), requires of employers. The case involves the legality of...

Government, Businesses Prioritize Cybersecurity Spending
Rebecca J. Bennett, March 20, 2015
If spending is a good indicator of shifting priorities for both business and government, then cybersecurity is quickly becoming priority number one.

If You’re Serious About Your Strategic Plan . . . Don’t Make the “People” Mistake: Interview with Bob Briggs
Jathan Janove, March 20, 2015
Bob Briggs is the president and chief executive officer (CEO) of PeopleWorks International, an international business performance consultancy. For the past 35 years he has consulted on organizational change and strategic planning from small businesses to Fortune 50 giants.

Tread Carefully When Implementing a Reduction in Force
Jacob C. Credeur, March 20, 2015
With recent price drops in the oil and gas industry it is likely that reductions in force (RIFs) are looming on the horizon. But employers need to tread carefully when implementing any RIF, as it can raise thorny issues under both state and federal law. In addition, an often overlooked aspect of...

What’s Ahead in 2015 for Retailers in Labor and Employment Law? Part II
Julie Donahue, March 20, 2015
The recent Ogletree Deakins webinar, “What’s Ahead in 2015 for Retailers in Labor and Employment Law,” featured leaders in the retail industry and labor and employment attorneys—Randel K. Johnson, senior vice president of the U.S. Chamber of Commerce; Kelly Kolb, vice...

2014—A Record-Setting Year for Whistleblowers
Margaret Hutchins Campbell,Jesse C. Ferrantella, March 19, 2015
2014 was a record-breaking year for whistleblowers, including both the U.S. Department of Justice’s prosecution of cases under the False Claims Act (FCA) and the U.S. Securities and Exchange Commission’s prosecution of cases under the Dodd-Frank Wall Street Reform and Consumer...

A WARN Case Study: Are Workers on Layoff “Employees” and the Hidden Dangers of Exposing Controlled Groups to Liability
Stanley G. Schroeder, March 19, 2015
Last week the U.S. District Court in Cleveland issued a decision that, once again reminds us in two ways how devilishly tricky the Worker Adjustment and Retraining Notification (WARN) Act can be when determining what is a covered employer and who is liable for a violation of the Act. Blough v....

Congress Clarifies the Expatriate Health Coverage Exemption
Christina M. Crockett, March 19, 2015
For expatriate health plans issued or renewed on or after July 1, 2015, the Expatriate Health Coverage Clarification Act of 2014 (EHCCA) provides an exemption from various Affordable Care Act (ACA) provisions. Last December, Congress enacted the EHCCA as Division M of the Consolidated and Further...

Effective Inclement Weather Policies—Top 10 Factors to Consider
Diane M. Saunders, March 19, 2015
Here in Boston we are still busy digging out from the recent snowstorm that shut down much of Massachusetts. Other parts of the Northeast and of the country are also facing blizzards, ice and rain storms this winter, but the weather disturbances don’t stop with winter. Indeed, every year...

Federal Judge Grants Preliminary Injunction to Block Executive Action on Immigration While Related Regulations Proceed
Lowell Sachs,Stephen H. Smalley, March 19, 2015
On February 16, 2015, Judge Andrew S. Hanen of the U.S. District Court for the Southern District of Texas ordered a temporary injunction to halt key portions of President Obama’s recent executive action on immigration. Specifically, the order blocks the implementation of the new Deferred...

Honored in the Breach: Employer Action Items for an Insurer Data Breach
Stephen A. Riga,Danielle Y. Vanderzanden,Timothy G. Verrall, March 19, 2015
This morning, Anthem Blue Cross and Blue Shield, one of the largest health insurers in the country, notified its policyholders, members, and business partners that it was recently the target of an external cyber attack that appears to have comprised the confidentiality of medical and other personal...

It’s Time to Post the OSHA 300A Annual Summary of Illnesses and Injuries
John C. Artz,John F. Martin, March 19, 2015
The Occupational Safety and Health Administration’s (OSHA) Form 300A, which lists a summary of the total number of job-related injuries and illnesses that occurred during 2014 at each workplace, must be posted between February 1 and April 30, 2015. Place it in a conspicuous location where...

OFCCP’s Proposed Sex Bias Rules Continue Agency’s Focus on Compensation, Gender Identity, and Pregnancy Accommodation
Dara L. DeHaven, March 19, 2015
On January 28, 2015, the Office of Federal Contract Compliance Programs (OFCCP) issued a Notice of Proposed Rulemaking (NPRM) to replace the current sex discrimination guidelines. This updated rule is intended to reflect legislative changes that have occurred since the guidelines were implemented...

OSHA’s New Reporting Rules Are in Effect—What Will OSHA Do With the Data?
Melissa A. Bailey, March 19, 2015
On January 1, 2015, the Occupational Safety and Health Administration’s (OSHA) revised regulation for reporting work-related injuries went into effect.

Supervisor’s Knowledge of Unreported Overtime May Lead to Liability Under the FLSA
Maria Greco Danaher, March 19, 2015
The Fair Labor Standards Act (FLSA) requires employers to pay nonexempt employees at least one-and-one-half times the employees’ regular hourly wage for every hour worked in excess of 40 hours in one week. Courts regularly have noted that the goal of the FLSA is to counteract the inequality...

Teen Posing as Physician Raises Security Concerns for Healthcare Employers
Dee Anna D. Hays, March 19, 2015
On January 13, 2015, a hospital in West Palm Beach, Florida discovered that an unidentified juvenile had been walking its halls dressed as a physician, wearing a lab coat with the hospital’s logo and a stethoscope. According to the Sun Sentinel, a patient reportedly told the hospital’s...

Textual Feelings in the Workplace
Donald D. Gamburg, March 19, 2015
For those romantics out there, February means Valentine’s Day! And, with Valentine’s Day comes overtures of romantic feelings (assuming the best of intentions) for your significant other or for those with whom you want to take the next step. For decades, these overtures were typically...

The Private Sector’s Role in the New Face of Homeland Security
Madi Bakker,Ashley Prickett Cuttino, March 19, 2015
The Obama administration recently announced the creation of the Cyber Threat Intelligence Integration Center (CTIIC), a new governmental agency created to prevent cyber threats by analyzing and integrating digital intelligence collected through government and non-government sources. The agency is...

Virgin Islands Supreme Court Issues Important Decision for Employers
Simone R. D. Francis, March 19, 2015
On February 6, 2015, the Supreme Court of the Virgin Islands issued a decision that addresses several aspects of territorial laws prohibiting discrimination and limiting the permissible reasons for discharging employees. Rennie v. Hess Oil Virgin Islands Corp., No. 2014-0028 (V.I. Feb. 6, 2015)....

What if the West Coast Ports Shut Down by Lockout or Strike? Is it Time to Invoke Taft-Hartley?
Harold P. Coxson, March 19, 2015
Since the expiration of a labor contract in July 2014, negotiations for a new contract have dragged on between management representatives of the Pacific Maritime Association (PMA)—a multi-employer bargaining association representing terminal operators, stevedores, and shipping...

What’s Ahead in 2015 for Retailers in Labor and Employment Law? Part I
Julie Donahue, March 19, 2015
The recent Ogletree Deakins webinar, “What’s Ahead in 2015 for Retailers in Labor and Employment Law,” featured leaders in the retail industry and labor and employment attorneys—Randel K. Johnson, senior vice president of the U.S. Chamber of Commerce; Kelly Kolb, vice...

What’s Ahead in 2015 for Retailers in Labor and Employment Law? Part III
Julie Donahue, March 19, 2015
The recent Ogletree Deakins webinar, “What’s Ahead in 2015 for Retailers in Labor and Employment Law,” featured leaders in the retail industry and labor and employment attorneys—Randel K. Johnson, senior vice president of the U.S. Chamber of Commerce; Kelly Kolb, vice...

Will Companies Voluntarily Share Data Regarding Cyber Security at the President’s Request?
Ashley Prickett Cuttino, March 19, 2015
On Friday February 13, 2015, President Obama spoke at the White House Summit on Cybersecurity and Consumer Protection at Stanford University. After his address, President Obama signed an executive order, Promoting Private Sector Cybersecurity Information Sharing, that will encourage private...

Delegation: Ask Permission, Beg Forgiveness, or Practice “Per-Giveness”?
Jathan Janove, March 16, 2015
As a boss, have you ever been frustrated by employees who either (a) kept you in the dark or (b) sought your approval for everything?

#SOTU2015: Employment, Immigration, Cyber Safety, and Education in a New Era
Hera S. Arsen, March 10, 2015
On the evening of January 20, 2015, President Obama delivered his sixth State of the Union address in the chamber of the U.S. House of Representatives with Supreme Court justices, members of Congress, the president’s cabinet, and special guests in attendance. The speech comes in the midst of...

A Commitment to Diversity in Practice Versus in Theory-Interview of Mel Jones, Skanska
Jathan Janove, March 03, 2015
Mel Jones is Northwest Diversity Manager for Skanska USA, a multibillion dollar international building and development company. Before joining Skanska, Jones was a civil engineer and owned his own engineering design company. As an African American business owner, Jones experienced the...

Amendments to Illinois's Eavesdropping Statute Signed Into Law
Kwabena A. Appenteng, March 03, 2015
On December 30, 2014, Illinois Governor Pat Quinn signed Senate Bill 1342 into law, amending the Eavesdropping Article of the Illinois Criminal Code (720 ILCS 5/14) that was struck down by the Illinois Supreme Court last year as unconstitutional. (Our April 2014 blog post, “Illinois Supreme...

Bipartisan I-Squared Act Introduced to Reform Business Immigration System
Maria Fernanda Gandarez,Matthew Kolodziej, March 03, 2015
On January 13, 2015, Senators Hatch (R-Utah), Klobuchar (D-Minn.), Rubio (R-Fla.), Coons (D-Del.), Flake (R-Ariz.), and Blumenthal (D-Conn.) introduced the Immigration Innovation (“I-Squared”) Act of 2015, a major immigration reform bill addressing the high-skilled and science,...

City of Chicago Expands "Ban the Box" Law to Smaller Employers and City Agencies
Colleen G. DeRosa, March 03, 2015
Effective January 1, 2015, the City of Chicago expanded the coverage of Illinois’s “ban the box” law within city limits. The amended Human Rights Ordinance, Section 2-160-010 of the Municipal Code of Chicago, effectively makes Illinois’s Job Opportunities for Qualified...

Court Stays New FLSA Companionship Regulation From Going Into Effect
Robert R. Roginson,Carolyn E. Sieve, March 03, 2015
The court in Home Care Association of America v. Weil dealt another setback to the U.S. Department of Labor’s (DOL) amendments to the Fair Labor Standards Act’s (FLSA) regulations affecting home health care businesses. On December 31, 2014, the court issued an order temporarily staying...

Employee's Failure to Participate in Interactive Process Dooms ADA Claim
Maria Greco Danaher, March 03, 2015
A diabetic employee who quit her job in response to her employer’s rejection of her suggested “reasonable accommodation” cannot support claims under the Americans with Disabilities Act (ADA), according to the First Circuit Court of Appeals, because she failed to participate in the...

Feb. 2 Deadline Looming to Implement Retroactive Increase in 2014 Mass Transit Benefit Limits
Vicki M. Nielsen, March 03, 2015
Affected employers must move quickly to take advantage of a special administrative procedure regarding a retroactive increase in excludable transit benefits enacted on December 19, 2014, under the Tax Increase Prevention Act of 2014 (TIPA). Because affected Internal Revenue Service (IRS)...

Fifth Circuit Adopts Standard in Disability Cases That Will Make it Harder for Employers to Obtain Summary Judgment
Lawrence D. Smith, March 03, 2015
In Equal Employment Opportunity Commission v. LHC Group Inc., the Fifth Circuit Court of Appeals evaluated a trial court’s grant of summary judgment to an employer on an employee’s disability discrimination claims. In reaching its decision on the disability discrimination claim related...

Immigration Spotlight: Global Immigration Alert (Colombia): New TP-15 Nonimmigrant Visa Category to Benefit Non-Mercosur Dependents in Colombia
, March 03, 2015
Effective immediately, family members of Argentinians, Bolivians, Brazilians, Chileans, Ecuadorians, Paraguayans, Peruvians, and Uruguayans (“Mercosur nationals” with the exception of Venezuelans) are eligible applicants for dependent status under Colombia’s new TP-15 visa...

Independent Contractor . . . or Not? DOL and Wisconsin DWD Team Up to Reduce Employee Misclassification
Keith E. Kopplin, March 03, 2015
On January 20, 2015, the U.S. Department of Labor (DOL) announced that Wisconsin had become the latest state to join the “Misclassification Initiative,” which is designed to protect the rights of employees “by preventing their misclassification as independent contractors or other...

Mandatory Retirement Plans in Illinois
Karen N. Brandon,Aimee E. Dreiss, March 03, 2015
Is Illinois the precursor to mandatory retirement savings programs across the country the way that Massachusetts was for mandatory health care? Illinois has become the first state to require that private-sector employers offer their employees retirement benefits. The Illinois Secure Choice Savings...

Martial Arts & Legal Ethics
Jathan Janove, March 03, 2015
Years ago, I studied Karate. Karate is defensive. My Sensei used to say, “The best fight is the one you avoid.” Yet we were drilled endlessly on block-strike techniques. The attack comes; you block it; and then you strike your attacker. In real life, this can mean injuring or even...

Misclassification Initiatives Spread As Florida Signs Formal Pact with DOL
William J. Cantrell,Margaret Santen Hanrahan, March 03, 2015
On January 13, 2015, the U.S. Department of Labor’s (DOL) Wage and Hour Division and the Florida Department of Revenue’s General Tax Administration (FDOR) entered into a memorandum of understanding (MOU) in which they agreed to share information on independent contractor...

New Jersey “Ban the Box” Regulations Are on the Way
Mark Diana,Christopher G. Elko, March 03, 2015
On February 25, 2015, the New Jersey Department of Labor and Workforce Development (NJDOL) published draft proposed regulations to implement the New Jersey Opportunity to Compete Act, otherwise known as the “ban the box” law. The Act, which restricts when in the hiring process an...

New Jersey Supreme Court Reshapes Sexual Harassment Claims
Carmen J. DiMaria,Mark Diana,Thomas J. Rattay, March 03, 2015
On February 11, 2015, the New Jersey Supreme Court issued a landmark ruling that will reshape hostile work environment sexual harassment cases brought under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -49 (LAD). The court’s decision in Aguas v. State of New Jersey (A-35-13,...

New Year’s Resolution for Missouri Employers: Arbitration Agreements In Light of Jimenez v. Cintas Corporation
Andrew L. Metcalf,R. Lance Witcher, March 03, 2015
Still looking for a New Year’s resolution? The Missouri Court of Appeals rang in 2015 by refusing to enforce an arbitration agreement between an employer and an employee. The decision continues the robust trend in Missouri of restricting the enforceability of arbitration clauses. If your...

New Year's Resolutions for the California HR Manager
Christopher W. Olmsted, March 03, 2015
So what’s it going to be for 2015? Get up and run three miles every morning? Finally pay off those credit cards? Learn to speak French? Before you finish the list of New Year’s resolutions, consider adding a few on the human resources front. Below are a few recommendations for HR...

OFCCP Posts Two New FAQs on Veteran Self-Identification and the VETS-4212 Form
Hera S. Arsen,Leigh M. Nason, March 03, 2015
On October 27, 2014, a new reporting form for veterans, the VETS 4212 reporting form, replaced the VETS-100A and VETS-100 Forms. In response to inquiries about contractors’ new requirements as a result of this chance, on January 20, the Office of Federal Contract Compliance Programs (OFCCP)...

PAGA Representative Claims Remain Alive After SCOTUS Denies Iskanian Review
Hera S. Arsen, March 03, 2015
This morning, the Supreme Court of the United States declined review of a state supreme court case that has sparked widespread flux in the landscape of class action arbitration waivers in California. In Iskanian v. CLS Transportation Los Angeles, LLC, S204032 (June 23, 2014), the Supreme Court of...

Philadelphia Mayor Signs New "Promoting Healthy Families and Workplaces" Ordinance
Richard W. Diaz,Julie Donahue, March 03, 2015
On February 12, 2015, Philadelphia Mayor Michael Nutter signed legislation requiring certain employers in the city of Philadelphia to provide up to five days of paid sick leave each calendar year to their employees. The ordinance, titled “Promoting Healthy Families and Workplaces,” goes...

President Obama Proposes Legislation Requiring Businesses to Notify Customers of Data Security Breaches Within 30 Days
Andrew E. Silvia, March 03, 2015
In a speech given before the Federal Trade Commission (FTC) on Monday, January 12, President Obama proposed federal legislation that would impose a nationwide standard on companies that experience a data security breach. The proposed Personal Data Notification and Protection Act would require...

Second Circuit Finds Highly Individualized Damages Inquiry Won’t Spoil Rule 23 Class Wage Claims
P. Kramer Rice, March 03, 2015
Roach v. T.L. Cannon Corp., No. 13-3070-cv (2d Cir. Feb. 10, 2015): The Second Circuit Court of Appeals recently vacated and remanded the U.S. District Court for the Northern District of New York’s decision denying class certification to a group of restaurant workers alleging wage violations....

Softening of Cuba Sanctions Opens the Way for Some Travel and Trade
Lowell Sachs,Stephen H. Smalley, March 03, 2015
As part of a broader, ongoing effort to forge closer relations with Cuba, the Obama administration has enacted a new set of regulations intended to facilitate certain forms of authorized travel to Cuba. The regulations, which were published on January 16, 2015, in the Federal Register, also loosen...

Supreme Court Delineates Federal Whistleblower Protections in TSA Disclosure Case
Hera S. Arsen, March 03, 2015
On January 21, 2015, the Supreme Court of the United States decided whether a federal air marshal, who publicly disclosed that the Transportation Security Administration (TSA) had decided to cut costs by removing air marshals from certain flights, was entitled to whistleblower protection. According...

Supreme Court Rejects Analysis of Duration of Retiree Benefits As Contrary to Contract Law
Hera S. Arsen, March 03, 2015
On January 26, 2015, the Supreme Court of the United States resolved a long-standing dispute between the Sixth Circuit Court of Appeals and the remainder of the federal judiciary in a case concerning the extent to which retiree health care benefits provided for in a collective bargaining agreement...

Ten New Year's Resolutions Retail Employers Should Consider Making in 2015
Diane M. Saunders, March 03, 2015
Now that the busy 2014 holiday shopping season is over and the new year has begun, it’s a good time for retail employers to take a breath and think about 2015—what’s coming, what issues they should be watching, and what should be on their “to do” lists for the new...

The Cyber Security State of the Union: Obama Commits “to Protect a Free and Open Internet”
Danielle Y. Vanderzanden, March 03, 2015
In last week’s State of the Union address, President Barack Obama continued his ongoing push for nationwide privacy legislation to “better meet the evolving threat of cyber-attacks, combat identity theft, and protect our children’s information.” Recognizing the real threats...

The Immigration State of the Union: Obama Declares "We've Got a System to Fix"
Maria Fernanda Gandarez,Matthew Kolodziej,Lowell Sachs, March 03, 2015
On January 20, 2015, President Obama addressed the nation in the annual State of the Union address. Among the many topics that the president touched upon in his speech was immigration. After more sweeping immigration reform bills died in the U.S. House of Representatives last year, the president...

Virgin Islands Supreme Court Addresses Wrongful Discharge Act and Other Statutory Causes of Action
Simone R. D. Francis, March 03, 2015
In a unanimous decision, the Supreme Court of the Virgin Islands held that the Wrongful Discharge Act (WDA) provides a remedy not only when an individual is discharged or resigns under circumstances that are alleged to constitute a constructive discharge, but also when the individual is demoted...

Court Vacates DOL’s Regulations Mandating Minimum Wage and Overtime Payments to Home Health Care Employees
Robert R. Roginson,Carolyn E. Sieve, February 26, 2015
Just as many home health care agencies were gearing up for a major change to their businesses, a federal judge in Washington D.C. struck down the new U.S. Department of Labor (DOL) regulation extending the federal overtime and minimum wage requirements to home care workers employed by third-party...

Minimum Wage Hikes Hit 21 States
Michelle R. Maslowski, February 26, 2015
Raising the minimum wage was certainly a hot topic in 2014 (even more so than in 2013). The issue sparked employees in several industries across the country to organize high-profile protests, asserting that minimum wages are not sufficient and a raise in the wage floor is due. President Obama...

Missouri Minimum Wage Increases Effective January 1, 2015
James M. Paul, February 26, 2015
The Missouri Department of Labor and Industrial Relations announced an increase to Missouri’s minimum wage, effective January 1, 2015. Missouri’s minimum wage has now increased to $7.65 per hour. This 15-cent increase over the 2014 minimum wage of $7.50 per hour is based on an increase...

Alaska Voters Approve Measure Legalizing Marijuana for Adult Recreational Use
Sarah J. Evans, February 25, 2015
On November 4, 2014, Alaska voters approved a ballot initiative legalizing the recreational use of marijuana for adults aged 21 and over. With passage of the measure, Alaska joined Washington, Oregon, Colorado, and the District of Columbia as jurisdictions where recreational marijuana use is...

CBP Designates Preferred Ports of Entry for First-Time Canadian TN and L-1 Applicants
Brian D. Bumgardner, February 25, 2015
U.S. Customs and Border Protection (CBP) is the agency charged with overseeing and facilitating international travel and trade across the borders of the United States. The CBP’s mandate includes responsibility over determining when a traveler, such as a returning U.S. citizen, lawful...

Final Rule Extending Work Authorization to H-4 Dependent Spouses Expected Soon
Lowell Sachs, February 25, 2015
In his recent State of the Union address, President Obama made clear that he would veto efforts by the Republican-controlled Congress to undo some of the work that the administration has advanced on a number of pivotal issues. One issue that President Obama referenced by name was immigration....

Germany’s First National Minimum Wage Law Will Take Effect on January 1, 2015
Yvonne Schmidt,Sachka Stefanova-Behlert, February 25, 2015
On January 1, 2015, Germany’s Minimum Wage Law, or Mindestlohngesetz, will take effect. Under this first-ever national minimum wage law, almost any employee in Germany—including contract employees, as well as employees of employers based outside the country regardless of the choice of...

NLRB Eviscerates Standards for Deferral to Arbitration and Settlement
David Lee Zwisler, February 25, 2015
The foundation of the relationship between an employer and a union is the collective bargaining agreement negotiated by the parties. Central to those agreements are dispute resolution processes that allow for expedited procedures to resolve conflicts. Disputes between employers and unions are...

OSHA: Kinesiology Tape is “Medical Treatment” for Recordkeeping Purposes
John F. Martin, February 25, 2015
You have probably seen kinesiology tape, also known as KT Tape or Kinesio Tape: those bright, neon-colored tape strips worn by runners, cyclists, athletes, triathletes, and folks at the gym.

SCOTUS Rules CAFA Removal Notices Need Contain Only a Plausible Allegation That Amount in Controversy is Satisfied
Hera S. Arsen,Rafael G. Nendel-Flores, February 25, 2015
On December 15, 2014, the Supreme Court of the United States decided a critical issue regarding Class Action Fairness Act of 2005 (CAFA) removals. Specifically, the Supreme Court settled a controversy surrounding what information a removing defendant must provide regarding the CAFA amount in...

SCOTUS Rules CAFA Removal Notices Need Contain Only a Plausible Allegation That Amount in Controversy is Satisfied
Hera S. Arsen,Rafael G. Nendel-Flores, February 25, 2015
On December 15, 2014, the Supreme Court of the United States decided a critical issue regarding Class Action Fairness Act of 2005 (CAFA) removals. Specifically, the Supreme Court settled a controversy surrounding what information a removing defendant must provide regarding the CAFA amount in...

Tennessee OSHA Adopts new Federal Rules on Injury Reporting
William Rutchow, February 25, 2015
In a recent blog post, John Martin, a shareholder in Washington, D.C. and a member of the firm’s Workplace Safety and Health Practice Group, discussed the federal Occupational Safety and Health Administration’s (OSHA) announcement of a new rule that significantly changes an...

What Do Employers Need to Know in the Wake of the Latest Data Breach?
Rebecca J. Bennett, February 25, 2015
Sony Pictures Entertainment, Inc. is the latest high-profile business victim of data theft. The consequences have been significant. In response to threats of violence, Sony has reconsidered its range of options for the release and distribution of its feature film The Interview. Also last week,...

California School Teacher’s Claim That She Was Fired Due to a Computer Error Proceeds
Hera S. Arsen, February 23, 2015
Rommel v. Los Angeles Unified School District, No. B253405 (December 5, 2014): In a recent unpublished ruling, the California Court of Appeal reversed a trial court’s judgment in favor of a school district and against a teacher who claimed that she was fired while on disability leave as a...

California Supreme Court Lets Arbitration Award Stand, Dodges “Honest Belief” Defense
Ameneh K. Ernst, February 23, 2015
Richey v. Autonation, Inc., No. S207536 (January 29, 2015): On January 29, 2015, the California Supreme Court issued a decision holding that an employee who is on medical leave does not have a greater right to reinstatement or to other benefits and conditions of employment than if he or she had...

DOL Clarifies When an Employer’s LCA Wage Obligations Cease to Terminated Workers Who Obtain Subsequent Approved H-1B Employment
Andrew Drozdowski, February 23, 2015
On December 22, 2014, the U.S. Department of Labor’s (DOL) Administrative Review Board (ARB) issued an important Final Order and Decision clarifying precisely when an H-1B employer’s Labor Condition Application (LCA) back pay obligations to a laid-off employee cease under the...

Employer May Obtain Judicial Review of California Unemployment Insurance Appeals Board Decision
Jennifer L. Santa Maria, February 23, 2015
West Hollywood Community Health and Fitness Center v. California Unemployment Insurance Appeals Board, No. B248641 (December 5, 2014): A California Court of Appeal recently reversed a trial court’s dismissal of a writ of mandate. The court found that an employer may obtain judicial review of...

Exotic Dancers’ Class Action Employment Suit Stays Alive in California
Ameneh K. Ernst, February 23, 2015
Salazar v. Victory Entertainment, Inc., No. B249888 (December 15, 2014): In a recent decision, a California Court of Appeal revived a class action lawsuit brought by a group of exotic dancers who claimed that they were misclassified as independent contractors. The three-judge panel reversed a trial...

Missouri Court of Appeals Further Restricts Arbitration Agreements
Andrew L. Metcalf,R. Lance Witcher, February 23, 2015
The Missouri Court of Appeals rang in the New Year by issuing an opinion that continues the trend in Missouri of restricting the enforceability of arbitration clauses. In light of this decision, employers should revisit their arbitration agreements to determine whether they are still enforceable...

The Price is Wrong: California Court OKs a New Trial in Game Show Model’s Pregnancy Bias Case
Hera S. Arsen, February 23, 2015
Cochran v. FremantleMedia North America, Inc., No. B247541 (December 11, 2014): In a recent unpublished ruling, the California Court of Appeal affirmed a trial court’s order granting a new trial in a case brought by a game show model who was not rehired by the show after giving birth and who...