Category: Employment policies and procedures

DOL Adopts Employer-Friendly Standard to Assess If Workers Are Interns or Employees

Stephanie Gantman Kaplan

In recent years, employers have used unpaid interns to perform many duties otherwise completed by paid employees. Determining whether to classify a worker as an unpaid intern or employee under the Fair Labor Standards Act (“FLSA”) can be tricky for employers—and getting it wrong can have, and has had, serious consequences. With the recent boom in class action litigation by interns claiming misclassification, employers have to be careful.

Earlier this month, the U.S. Department of Labor (“DOL”) announced the adoption of a new standard to determine who is an “intern” under the FLSA, opting to utilize the “primary beneficiary” analysis already used by several federal appellate courts. Continue reading “DOL Adopts Employer-Friendly Standard to Assess If Workers Are Interns or Employees”

Maryland Jumps on Bandwagon—Adopts Paid Sick and Safe Leave Law

Mark Blondman

Joining Arizona, California, Connecticut, Massachusetts, Oregon, Vermont, and Washington, the Maryland Legislature enacted legislation requiring employers in Maryland to provide paid sick and safe leave to employees by overriding Governor Hogan’s veto of the Maryland Healthy Working Families Act (“MD HWFA”). Unless the date for implementation is delayed by the Legislature, the requirements of the Act go into effect on February 12, 2018. Continue reading “Maryland Jumps on Bandwagon—Adopts Paid Sick and Safe Leave Law”

Sessions Isn’t Blowing Smoke—Marijuana Enforcement Is Back on the Books

Asima J. Ahmad

At the beginning of January, Attorney General Jeff Sessions issued a one-page memorandum rescinding the Obama-era approach to marijuana enforcement, which had largely been “hands-off” on prosecuting marijuana users and businesses that sold marijuana in states where the drug was legalized. In its January 4 memo, the Justice Department emphasized that the cultivation, distribution, and possession of marijuana remains prohibited by the Controlled Substances Act and is subject to “significant penalties.” The memo further stated that marijuana is a “dangerous drug” and that marijuana activity is a “serious crime.” The Attorney General concluded that previous nationwide guidance issued under the Obama administration specific to marijuana enforcement was “unnecessary” and “rescinded, effective immediately.” Continue reading “Sessions Isn’t Blowing Smoke—Marijuana Enforcement Is Back on the Books”

Warming Up to OSHA’s New Cold Stress Guide

Anna Svensson

Unless you spent the last month on a Caribbean island, you know that a majority of the country was in a deep freeze in late December and early January. Numerous record lows were set and some states, such as the Dakotas and Minnesota, experienced wind chills significantly below zero.

Although temperatures have returned to average in most parts of the country, winter will be with us for a few more months; and the recent freeze is likely to be repeated. The extreme temperatures serve as an important reminder that employers need to take appropriate measures to protect workers from cold stress before it causes harm. While the Occupational Safety and Health Administration (“OSHA”) does not have a specific standard that covers working in cold environments, under the Occupational Safety and Health Act of 1970, employers have a duty to protect workers from recognized hazards, including cold stress hazards. Continue reading “Warming Up to OSHA’s New Cold Stress Guide”

Just in Time for the Holidays

Anthony A. Mingione

New York State is considering new regulations that will restrict the ability of service industry employers to utilize “on-call” or “just in time” scheduling practices for shift workers. These scheduling practices are common in many industries and generally allow employers to schedule, cancel, or cut workers’ shifts with little or no advance notice.

Employees testifying before the State Department of Labor said that these practices often leave workers unable to manage child care schedules and personal engagements, and prevent them from taking second jobs. Business representatives argued they require flexibility and that employers need to have these scheduling practices available to adapt to unpredictable circumstances, such as employees not attending work, unexpected customer demands, or inclement weather. Continue reading “Just in Time for the Holidays”

The Salary Privacy Act—Stacking the Deck

Story E. Cunningham

Job interviews and salary negotiations have always been a sort of poker game. Now, in California, employers are required to show their hands, while candidates can keep their cards close to the vest.

The Salary Privacy Bill, AB 168, enacted by Gov. Jerry Brown on October 12, 2017, prohibits California employers from asking job candidates about their prior salaries, either orally or in writing, and prohibits employers from using an agent to get the information. The law applies to both public and private employers of every shape and size. Continue reading “The Salary Privacy Act—Stacking the Deck”

Trick or Treat? New York City Salary History Ban Becomes Effective October 31

Anthony A. Mingione

Earlier this year, New York City amended its Human Rights Law to make it unlawful for an employer to ask about or rely on a prospective employee’s prior salary history in making hiring decisions. The amendment bans both direct inquiries from applicants and attempts at learning applicants’ previous salaries from indirect sources, such as independent research or third party conversations.

The legislation becomes effective on October 31, 2017, so New York City employers should take advantage of the remaining time before the effective date to conform their hiring practices to the new restrictions. Continue reading “Trick or Treat? New York City Salary History Ban Becomes Effective October 31”

Seventh Circuit Rebukes EEOC—Extended Leave Is Not a Reasonable Accommodation under the ADA

Susan L. Bickley and Emery G. Richards

In a victory for employers in Illinois, Indiana, and Wisconsin, the Seventh Circuit ruled recently that the Americans with Disabilities Act (“ADA”) does not require employers to give workers extended additional leave after their allotment under the Family and Medical Leave Act (“FMLA”) runs out. The Court’s ruling in Severson v. Heartland Woodcraft, Inc. is the strongest rejection of the U.S. Equal Employment Opportunity Commission’s (“EEOC”) long-held and vigorously advocated position that long-term leaves are a required form of reasonable accommodation. Continue reading “Seventh Circuit Rebukes EEOC—Extended Leave Is Not a Reasonable Accommodation under the ADA”

The NLRB Pushes Protections for Social Media Comments to the “Outer-Bounds” of the NLRA

Thomas J. Szymanski

Enacted in 1935, the National Labor Relations Act (“NLRA”) was designed, among other things, to protect the rights of employees and employers, including protecting an employee’s right to engage in protected concerted activity in the workplace, such as complaining to other employees about her manager or terms and conditions of employment, without fear of retaliation by his or her employer. The National Labor Relations Board (“NLRB”), an independent federal agency with five members appointed by the president, enforces the NLRA and effectively controls its interpretation and application, subject to limited review by the courts. In less than a decade, the NLRB of the Obama administration extended the protections of the NLRA—in ways some would say were never contemplated by Congress—to employees’ work-related conversations conducted on social media, such as Facebook and Twitter. Those protections apply regardless of whether the employee is represented by a union or not. With this expansion of protection for social media activities, employers must carefully consider the NLRB’s decisions, or else proceed at their own peril. Continue reading “The NLRB Pushes Protections for Social Media Comments to the “Outer-Bounds” of the NLRA”

The DOL’s Overtime Rule is Dead. . . Long Live the DOL’s Overtime Rule!

Frederick G. Sandstrom

On August 31, 2017, a federal judge in the Eastern District of Texas struck down the U.S. Department of Labor’s (“DOL”) final rule that would have transformed millions of white collar jobs into non-exempt positions under the Fair Labor Standards Act (“FLSA”). The rule, issued by the DOL in response to President Obama’s mandate to the Secretary of Labor to “modernize and streamline” the existing overtime regulations, was originally scheduled to go into effect on December 1, 2016, and would have increased the minimum salary requirement for the FLSA’s white collar exemptions from $455 per week ($23,660 per year) to $913 per week ($47,476 per year). Conservative estimates were that application of the rule would have made 4.2 million employees eligible for overtime pay that previously were deemed exempt. The same federal judge had previously enjoined the rule in late November of last year, shortly before it was to go into effect. Continue reading “The DOL’s Overtime Rule is Dead. . . Long Live the DOL’s Overtime Rule!”