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 L. 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...