Monday, December 5, 2016

Legal News & Knowledge: Fall/Winter 2016 Edition

2016 Fall-Winter Newsletter SqSection Topics:

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FLSA/Wage & Hour

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USDOL Appeals Last Week's Exemption Ruling

By Caroline Brown
 
The U.S. Department of Labor has filed its notice to appeal last week's preliminary injunction that prevented the salary-related changes in the federal Fair Labor Standards Act's "white collar" exemptions from taking effect today...

Full Article
 



Court blocks DOL overtime rule: The fuller story

By Robin Shea
 
The new regulations that would have more than doubled the salary threshold for Administrative, Executive, and Professional exemptions from the minimum wage and overtime requirements of the Fair Labor Standards Act -- due to take effect on Thursday, December 1 -- have been preliminarily enjoined nationwide by a federal court in Texas...

Full Article
 



Will You Be Paying Back-Overtime in 2017?

By Carole VanSickle Ellis
 
...The ruling has been blocked for now. But if the Department of Labor opts to fight the injunction, employers could owe back-overtime to eligible employees starting from the original date of implementation...

Full Article
 



California jury awards $54M to Wal-Mart drivers for unpaid minimum wages

By Pamela Wolf, J.D.
 
A class of 800-plus Wal-Mart truck drivers had much to be thankful for on Thanksgiving Eve when a jury returned a verdict awarding $54,604,181 in unpaid wages...The jury found the retail giant intentionally failed to pay the drivers the full minimum wage required under California law for these activities...

Full Article
 



Ignoring employee's overtime won't make it go away

By Kate McGovern Tornone
 
When an employee works overtime, an employer can't ignore those hours. Even if an employee fails to report the hours, an employer may be liable for back pay and damages if it "should have known" the employee was working overtime, a recent case illustrates...

Full Article
 


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Labor & Employment Law

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Big Labor Attacks Idaho's Right to Work Law

By Skip Sperry, Esq.
 
A big labor case filed in Idaho's federal district court continues to progress...The complaint alleges that Idaho's Right to Work ("RTW") statute is unconstitutional based upon the 5th Amendment prohibition against takings of private property for public use without paying just compensation...

Full Article
 



Fed. Ct.: Sexual Orientation Discrimination is Prohibited Under Title VII

By Philip Miles
 
The EEOC scored a victory in one of its recent sexual orientation discrimination cases. The Western District of Pennsylvania denied a motion to dismiss the claim in EEOC v. Scott Medical Health Center (opinion here)...

Full Article
 



Clicking your way to enforceability: Court enforces 'clickwrap' noncompete

By Elijah Yip
 
ADP, a business outsourcing company, sued two former employees to enforce noncompete, nondisclosure, and nonsolicitation provisions in a restrictive covenant. The employees had enrolled electronically in ADP's stock award program...

Full Article
 



NLRB finds Employer Handbook violates NLRA - Again!

By Daniel J. Burnick
 
The National Labor Relations Board continues to focus on Employer Handbooks that contain policies and procedures that violate the National Labor Relations Act. The National Law Review reported on an Administrative Law Judge's decision finding three provisions of an employer handbook illegal...

Full Article
 



New Statistics From CHRO Show Continued Rise in Discrimination Complaints

By Daniel Schwartz
 
...The trend of increasing numbers of discrimination complaints being filed that we have seen in Connecticut since 2012 (when just 1838 complaints were filed) is showing no signs of abating...

Full Article
 


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FMLA & ADA Issues

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Has Illinois Taken Leave Of Its Senses?

By David G. Lubben, Esq.
 
Leave program managers have a tough job. The federal FMLA is complex and has hundreds of pages of detailed regulations. New state laws from Illinois will make the leave administrator's job even tougher in this State...

Full Article
 



Recent Federal Court Decision Requires Employees to Shoulder Some of the Burden of Disability Accommodations

By Steven Jados
 
...the recent decision in Dillard v. City of Austin, Texas, from the U.S. Court of Appeals for the Fifth Circuit, may help employers handle situations when employees cause a breakdown in the interactive process...

Full Article
 



Can an Employer Require That an Employee Submit FMLA Certification from a Specialist to Support the Need for FMLA Leave?

By Jeff Nowak
 
When it comes to FMLA medical certification, my clients have many complaints. One beef, in particular, is vague medical information they receive on a certification completed by the employee's primary care physician. This is particularly true where the employee's mental health is at issue...

Full Article
 



Employee fired while on FMLA leave: Why it was OK

By Charlie Plumb
 
Don't get me wrong: Firing an employee while they are on a Family and Medical Leave Act (FMLA) absence is dicey. But...there are circumstances when an employer should terminate the employee while on leave and can win a lawsuit brought by the fired employee...

Full Article
 



No safe harbor, but employer's 'voluntary' wellness program did not violate ADA

By Lorene D. Park, J.D.
 
In the EEOC's suit claiming an employer's wellness program and related health risk assessment violated the ADA prohibition against medical exams and disability-related inquiries, the agency was denied summary judgment, but the employer's motion was granted in part.

Full Article
 


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Immigration Law

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New I-9 Form: Very Different, Many Quirks, Required for Use by January 22, 2017

By Robert Divine
 
USCIS finally has published the new Form I-9 that has been in the works for a few years and that all U.S. employers will be required to use in onboarding new hires as of January 22, 2017, although they can choose to use it for new hires before then.

Full Article
 



I-9 Compliance for Employers: Significantly Increased Fines for Employers

By John R. LaBar, Esq.
 
...While many employers may view completion of the I-9 as merely as paperwork hassle, incomplete forms and mistakes made during the completion of the form may result in significant fines for employers...

Full Article
 



Long-Awaited Employment-Based Immigration Rule Published by USCIS

By Adam J. Rosser and Courtland C. Witherup
 
The Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers rule was published in the Federal Register...

Full Article
 



Reminder: USCIS Fee Increase Effective December 23, 2016

By Meredith K. Stewart
 
Any employer anticipating submission of an immigration application or petition should consider filing prior to December 23, 2016, to avoid higher USCIS filing fees...

Full Article
 



Cap-Exempt H-1B Employment Clarified by DHS

By Susan J. Cohen
 
In light of the general unavailability of H-1B visas due to the limited and inadequate H-1B visa quota, it is more important than ever that U.S. employers and highly skilled foreign nationals be able to take maximum advantage of exemptions from the quota...

Full Article
 


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Workers' Compensation

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Medicinal Marijuana and Workers' Compensation

By Joseph D. Birdsall, Esq.
 
...Attitudes towards recreational and medicinal use are softening; state laws decriminalizing medical and/or recreational marijuana use are spreading. Yet, the federal government's position is that both medical and recreational marijuana use are illegal under the Controlled Substances Act...

Full Article
 



OSHA delays enforcement of limitations on post-accident drug testing

By Paige Hoster Good
 
The OSHA memorandum boils down to this: Not all post-accident drug testing will be considered retaliatory or unlawful. OSHA must make a fact-specific inquiry to determine if an employer has violated the new rule...

Full Article
 



39% drop in pure premium rate since 2011

By Jeffrey Kaufman
 
Crain's Detroit Business is reporting the pure premium rate will drop by an average of 9.3% in 2017. Michigan employers have now seen a 39% drop since 2011 workers' compensation reforms were passed.

Full Article
 



Has the Other Shoe Dropped? New Report Signals Feds Are Losing Patience with State Workers' Compensation Programs

By Thomas A. Robinson
 
On October 5, 2016, the U.S. Department of Labor released a widely anticipated report on the adequacy of state-based workers' compensation programs. While the 41-page report does not go as far as to call for a federalization of state workers' compensation programs, it is replete with criticism of the nation's state systems...

Full Article
 



PTSD Poses a Long-Term Health Risk for Workers

By Howard Ankin
 
Traumatic events can cause severe psychological damage that can persist for years, even decades after the event transpired.

Full Article
 


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Real Estate & Property Management

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AirBnB and Other Short Term Guest Situations Under California Law

By Eric Olson, Esq.
 
Short term rentals, whether arranged through services such as AirBnB or similar services or privately, such as through craigslist have become an issue with landlords...

Full Article
 



DOJ Settles Familial Status Fair Housing Act Case for $25,000

By Scott M. Badami
 
Late last month, the U.S. Department of Justice (DOJ) announced that it settled another familial status Fair Housing Act (FHA) case pending against seven Michigan apartment complexes. The lawsuit, filed in November 2015, asserted that the defendants discriminated against families with children...

Full Article
 



Property Management of Residents with Pets

By Marc Courtenay
 
There appears to be more people in the U.S. who live with a pet than ever before. The U.S. Department of Housing and Urban Development (HUD) is carefully looking into this topic as it pertains to renters...

Full Article
 



What Should a Landlord Do If the Tenant Wants to Have a "Companion Animal?"

By Timothy H. Baland, Esq.
 
I am often asked what a landlord should do is a tenant wants to have a companion animal. The short answer is that the landlord needs to be very careful. After all, the landlord does not want to violate and be subject to the civil penalties of the Americans with Disability Act and the Fair Housing Act...

Full Article
 



A Look Into the Growth of the Renter Population

By Guy Lyman
 
...with the changing dynamics of renting vs. home ownership, why hasn't the government shifted incentives and programs to help renters--many of whom now simply can't hope to get a decent loan even if they decide that owning a home is the right option...

Full Article
 


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