Monday, July 11, 2016

Federal Court Blocks DOL's New Persuader Rule

by Amanda S. Smith, Esq.

On March 23, 2016, the U.S. Department of Labor (DOL) issued the final version of its "Persuader Rule." According to the DOL, the Persuader Rule "realigns the [DOL's] regulations with the text of a law passed by Congress, the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA)."

The rule requires employers, third-party lawyers and other labor consultants (collectively referred to as "consultants") to disclose to the DOL any arrangement to persuade employees directly (consultants talking to workers) or indirectly (consultants scripting what managers and supervisors say to workers) concerning the right to organize or bargain collectively.

Read More
Thursday, October 15, 2015

Is Anyone Still Using Unpaid Interns?

by Jonathan T. Hyman, Esq.

I've been cautioning about the use of unpaid interns almost as long as my blog has been a blog (here, here, and here, for example). Last month, the 11th Circuit, in Schumann v. Collier Anesthesia [pdf], became the third federal appellate court to cast aside the DOL's six-factor internship analysis for a stricter "primary beneficiary" test (joining the 6th Circuit and 2nd Circuit).

In Schumann, the court questioned the employer's use of unpaid student registered nurse anesthetists participating in a clinic program as part of their master's degree curriculum.

Read More
Monday, October 12, 2015

Businesses Lose as the NLRB Crafts a Solution in Search of a Problem

by Christopher J. Lalak, Esq.

Marking a sea change in labor law and a departure from decades of settled precedent, the National Labor Relations Board (NLRB) formulated a new joint employer standard in their August 27, 2015, Browning-Ferris Industries of California, Inc. decision.

For the past three decades, whether a joint employer relationship existed turned on the "single employer" test, that is, whether "two nominally separate entities are part of a single integrated enterprise so that, for all purposes, there is in fact a 'single employer.'"[1] Under the settled framework, an entity could only be found to be a joint employer if it exercised actual control over the terms and conditions of employment of another entity's employees.

This recent decision injects a great deal of uncertainty into an area of labor law which was, up until now, quite predictable.

Read More
Thursday, September 24, 2015

5 Ways Collective Bargaining May Impact Workers' Comp Claims

by James D. Hamilton, Esq.

As much as many of us might hate to admit it, we all have a tendency to become creatures of habit when we become comfortable. There is no place this is more evident than in our professional lives.

Specifically, for professionals handling workers' compensation claims, we are no different. When we have performed our particular job for a certain period of time and have become comfortable in our knowledge of the subject matter and our duties as claims professionals, legal counsel, or human resource professionals, we form habits that we repeat over and over and over again.

This behavior certainly has its advantages. We create efficiencies that allow us to perform our jobs faster, handle and resolve claims more quickly and even handle more claims. It also creates consistency which is always a good thing.

Read More
Monday, September 21, 2015

Six Options for Complying with New DOL FLSA Salary Rules

by Ron Flowers, Esq.

It is rare for an employee's salary to double with one raise, yet, under the Department of Labor's proposed rule, employers will need to double some employees' salaries to continue to pay them salaries without overtime.

By now, everyone has heard of the Department of Labor's proposed rule increasing the required weekly salary to $970 per week, or $50,440.00 annually, for employees to be exempt from the Fair Labor Standards Act's (FLSA's) overtime provisions under most of the "white collar" exemptions.

The proposed rule was published in the Federal Register on July 6, 2015, and the 60-day comment period expired on September 4, 2015. Although more than 250,000 comments were submitted to the DOL, the final rule is anticipated to closely resemble the proposed rule. The Administration is expected to act fairly quickly finalizing the rule, so employers can expect the final rule to be published and the changes to be implemented in early to middle 2016.

Read More
Thursday, September 3, 2015

Putting Together the Puzzle on Off-Duty Emails and Overtime

by Jonathan T. Hyman, Esq.

Employers, I can see the writing on the wall, and it’s not looking good for your continued reliance on your non-exempt employees using their smartphones off-the-clock.

In the past few months, this issue has picked up a ton of momentum.

First, the Wall Street Journal ran an article entitled, "Can You Sue the Boss for Making You Answer Late-Night Email?"

Then, the Wage & Hour Litigation Blog reported that the Department of Labor’s Wage & Hour Division announced a request for information regarding "the use of technology, including portable electronic devices, by employees away from the workplace and outside of scheduled work hours outside of scheduled work outside of scheduled work hours."

Read More
Tuesday, April 7, 2015

SCOTUS Clarifies Law on Treatment of Pregnancy Related Disabilities

by Andrew M. Hendrick, Esq.

In a decision issued on March 25, 2015, Young v. United Parcel Service, Inc., 575 U.S. ___ (2015), the U.S. Supreme Court clarified the law on the treatment of pregnant employees with pregnancy-related disabilities.


The Pregnancy Discrimination Act

Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment based on sex. The Pregnancy Discrimination Act (PDA) amended Title VII to provide that discrimination based on sex includes discrimination "on the basis of pregnancy, childbirth, or related medical conditions."

Read More
Monday, December 29, 2014

Supreme Court Says Time Spent in Security Checks Is Not Compensable

by Adair Buckner, Esq.

Security Check Time Case Decided

The U.S. Supreme Court just issued a unanimous decision in Integrity Staffing Solutions, Inc. v Busk et al. (Dec. 9, 2014), which was widely called "the security check case". Warehouse workers had sued Integrity Staffing for uncompensated time they were required to spend in security screenings lasting up to 25 minutes at the end of their shifts while assigned to work in Amazon warehouses. The Supreme Court ruled employees do not have to be paid for time spent waiting for and actually undergoing security checks.

Read More
Monday, December 15, 2014

EEOC Challenges Severance Agreements

by Adair Buckner, Esq.

Employers frequently will use a "Severance Agreement and Release" when terminating an employee as a means to head off possible post-termination legal claims. Such agreements always have been subject to stringent requirements to be valid and enforceable. In a number of different cases recently, the EEOC has challenged what have been standard release of claims provisions and other terms in such agreements, saying they violate the Age Discrimination in Employment Act (ADEA) and Title VII.

Read More
Monday, September 22, 2014

Six Surprising Ways Smartphones Can Get Your Business in Hot Water

by Jeff Calabrese, Esq.

From the C-suite to the mailroom, smartphones have become a ubiquitous part of our work life. Smartphones (and other mobile devices) are actually fully networked computers with portals to your company's servers and data, as well as employees' personal activity. The benefits of these veritable Swiss Army knives of technology are obvious. But there are other, less-appreciated employment risks that businesses should consider.

Read More