Author: Blank Rome LLP

It’s Back!! New DOL Salary Threshold Rule Is on the Doorstep!

Jason E. Reisman

Just when you thought it was safe to go back in the water, the U.S. Department of Labor (“DOL”) reappears to address an issue that has most American employers on edge: How far will it expand the scope of who is eligible for overtime pay? After taking what seems like forever, the Trump DOL—despite the government shutdown—has apparently now completed its long-awaited revised new rule to reset the minimum salary threshold for employees subject to the Fair Labor Standards Act’s white collar exemptions.

We all remember the Obama DOL’s effort to expand overtime eligibility to four million currently-exempt employees by increasing the salary minimum by more than double, to $47,476 (which was blocked by a federal judge in Texas). The real question for now is, what has the Trump DOL decided is the “correct” new salary level? All signs point to a figure in the low to mid-$30,000s. We should find out very soon.

For now, sources are reporting that the finalized proposed new rule is about to be submitted (maybe today) to the White House’s Office of Information and Regulatory Affairs (“OIRA”) for review. This is the first step in the process before the proposed rule is released to the public for comment. Though the federal government is currently shut down, the White House is working. The last agenda issued by the DOL stated that this new rule would be released in March, so they seem to be on track for that.

So … stay tuned— “Same Bat time, same Bat channel!” More to come.

Philadelphia City Council Passes “Fair Workweek” Bill and Votes to Increase Minimum Wage for City Workers and Contractors

Andrew A. Napier

On December 6, the Philadelphia City Council passed two pieces of legislation that already are being touted as altering the landscape for workers in the city, especially those in the service industry.

“Fair Workweek” Bill

The “Fair Workweek” Bill, introduced by Councilwoman Helen Gym in June, applies to large chain businesses with more than 250 employees in the retail, food, or hospitality sectors, and at least 30 locations across the country or state (“Covered Employers”). If signed it would go into effect on January 1, 2020, and will require Covered Employers to give employees (including full-time, part-time, and seasonal and temporary workers) who work within the geographical boundaries of the City, 10 days’ advance notice of their work schedule. The amount of advance notice will increase to 14 days beginning January 1, 2021. An employee may decline, without penalty, any shift that occurs less than nine hours after the end of a shift, and if the employee agrees to work the shift, the employer must pay the employee an extra $40 per shift. Continue reading “Philadelphia City Council Passes “Fair Workweek” Bill and Votes to Increase Minimum Wage for City Workers and Contractors”

ALERT: New Jersey Raising Minimum Wage!

Thomas J. Szymanski

New Jersey’s minimum wage will increase by 25 cents, from $8.60 to $8.85 per hour, effective January 1, 2019. For non-exempt employees making the minimum wage, employers will be required to pay an overtime rate of $13.28 for every hour worked over 40 in a work week, to comply with the State’s minimum wage requirements.

Employers should be aware that one of Governor Phil Murphy’s top legislative priorities is to increase the minimum wage to $15 per hour. Although the Legislature passed a $15-an-hour minimum wage bill in 2016, which was vetoed by then-Governor Chris Christie, neither Governor Murphy nor the Legislature has communicated a path forward to get another bill on the table.

As wage payment violations carry significant penalties in New Jersey, you should contact a member of Blank Rome’s labor & employment practice group if you have any questions about compliance with New Jersey’s minimum wage increase or any other wage and hour issues.

Requesting a Background Check to Make an Employment Decision? Read This First.

Thomas J. Szymanski

The Fair Credit Reporting Act (“FCRA”) provides federally-imposed limitations on all employers who seek information from a Consumer Reporting Agency about an applicant or employee for use in making an employment decision, such as a hiring or promotion. The FCRA contains specific notice, authorization, and reporting requirements related to obtaining a Consumer Report, including credit reports and criminal background checks, and potentially taking an adverse employment action based on that information.

Requirements before you request a Consumer Report: Continue reading “Requesting a Background Check to Make an Employment Decision? Read This First.”

Workplace Safety Incentive Programs and Post-Incident Drug Testing—Still Okay under OSHA but Don’t Discourage Accident Reporting

Mark Blondman

Many employers have implemented workplace safety incentive programs in an effort to reduce time lost to injuries or illness. The programs generally reward workers for reporting near-misses or hazards and/or reward employees with a prize or bonus at the end of an injury-free period. The programs also may evaluate managers based on their work unit’s lack of injuries. Similarly, employers have implemented drug testing protocols with the same goals.

In May 2016, concerned that employers were not using incentive programs and drug testing policies to encourage safe practices but, instead, to punish employees who reported workplace safety issues, the Occupational Safety and Health Administration (“OSHA”) published a final rule prohibiting employers from retaliating against employees for reporting work-related injuries or illnesses. The final rule also suggested that it might constitute retaliation for an employer to limit post-incident and post-accident drug testing to the employee who reported an injury as a result of a workplace incident/accident and not to test all of the employees involved in the incident. Continue reading “Workplace Safety Incentive Programs and Post-Incident Drug Testing—Still Okay under OSHA but Don’t Discourage Accident Reporting”

Update on New Jersey Paid Sick Leave Act

Mark Blondman

In an earlier post, we provided a preview of the New Jersey Paid Sick Leave Act. The Act goes into effect on October 29, 2018. Last week, the Department of Labor and Workplace Development, the state agency responsible for interpreting the Act, published a “Notice of Employee Rights” under the Act and a copy of that Notice/Poster is available here. The Notice must be posted by employers in conspicuous locations in every worksite in New Jersey and must be distributed to all New Jersey employees by November 29 and at the time of hiring for all new employees hired after October 29.

The Act imposes significant obligations on employers in New Jersey. You can contact a member of Blank Rome’s labor & employment practice group if you have any questions about what needs to be in your policies.

Goodbye Uber Class Action, Hello Individual Arbitration

Natalie Alameddine and Caroline Powell Donelan

Last week, in a significant blow to claims that gig economy workers are entitled to pursue disputes on a class or collective basis, and possibly whether those workers will be able to establish that they are employees and not independent contractors, a three-judge panel of the Ninth Circuit Court of Appeals unanimously decertified a class of 240,000 Uber drivers. The decision in O’Conner v. Uber is a victory for the ride-share company, which will now be able to defend claims that it misclassified employees as independent contractors on an individual basis—one arbitration at a time.

For the past five years, there has been an ongoing and contentious dispute over whether Uber drivers (and similarly, Lyft and other ride-share drivers) are independent contractors or employees. If the workers are deemed to be employees, Uber could face hundreds of millions of dollars in alleged California labor code violations and business expense claims. To combat the possibility of having to litigate this issue on a class-wide basis, Uber entered into arbitration agreements with each driver, requiring that any driver’s claims be arbitrated and that each case had to be arbitrated individually (rather than as a class action). Continue reading “Goodbye Uber Class Action, Hello Individual Arbitration”

NY Harassment Training Deadline Extended!

Mark Blondman

As we have advised you in previous blog posts, New York State has passed legislation mandating that employers adopt an anti-harassment policy and conduct harassment training for all employees. The law requires that, by October 9, 2018, employers distribute to employees in New York State a written policy that meets certain prescribed legal standards.

Earlier this week, New York State issued a final set of employer guidance materials on sexual harassment prevention, including model training materials and Minimum Standards for Sexual Harassment Prevention Policies, a Model Sexual Harassment Prevention Policy, and a Model Complaint Form. Employers are permitted to implement the Model Policy or may develop policies on their own as long as they meet minimum legal requirements.

Most importantly, although the New York law had originally required that employers conduct harassment training for all employees by January 1, 2019, the guidance issued this week extends the deadline to October 9, 2019. Please use this additional time effectively!

OFCCP Is Staying Busy—So Should Government Contractors

Merle M. DeLancey Jr.

In February, the Office of Federal Contract Compliance Programs (“OFCCP”) sent Corporate Scheduling Announcement Letters (“CSALs”) to 1,000 contractor establishments. Shortly thereafter, in March, OFCCP mailed follow-up compliance review scheduling letters (“Scheduling letters”). On September 7, 2018, OFCCP sent a second round of CSALs to an additional 750 contractor establishments.

Further, on September 19, 2018, OFCCP issued Directive 2018-08: Transparency in OFCCP Compliance Activities. The purpose of the Directive is to “ensure transparency in all stages of OFCCP compliance activities to help contractors comply with their obligations and know what to expect during a compliance evaluation, and to protect workers from discrimination through the consistent enforcement of OFCCP legal authorities.” The Directive identifies the “Roles and Responsibilities” of OFCCP and contractors during a compliance review and the “Policies and Procedures” that will be followed. Continue reading “OFCCP Is Staying Busy—So Should Government Contractors”

Too Fat to Work Here?—Not So Fast

Scott F. Cooper

A decision this week from the Ninth Circuit Court of Appeals has further fueled the debate over whether obesity is a protected impairment under federal and state law.

In Casey Taylor et al. v. Burlington Northern Railroad Holdings Inc. et al., Case No. 16-35205 (9th Cir. Sept. 17, 2018), Burlington rejected Taylor’s application to become an electronic technician because his Body Mass Index (“BMI”) placed him in the “severely” or “morbidly” obese category. Complicating this case is that the company’s chief medical officer otherwise found Taylor qualified for the position. The company also was willing to reconsider the application if Taylor undertook additional pre-hire medical screening at his own expense. The Ninth Circuit earlier this year held that shifting pre-hire medical examination costs to an applicant is unlawful.

The Ninth Circuit certified the issue and sent it to the Supreme Court of Washington to determine its application under Washington state law. Pending that ruling, the Ninth Circuit will then resolve the issue under the federal Americans with Disabilities Act (“ADA”). How these decisions come out could have sweeping implications for employers who have acted against obese job applicants and employees. Continue reading “Too Fat to Work Here?—Not So Fast”