The issue of whether employees can be required to sign arbitration agreements that contain waivers of their right to file a class or collective action over employment-related disputes is one that has drawn much attention – and much conflict – in recent years. The Obama administration, it seemed, steadfastly opposed such waivers. Under the Trump administration, which (regardless of your politics) has had a slow and bumpy transition of federal agency leadership, the agencies do not appear to be operating from the same playbook – as evidenced by recent actions by the National Labor Relations Board, (NLRB), the Department of Justice (DOJ), and the Consumer Financial Protection Board (CFPB). Continue Reading The Government Seems Confused About Class Action Waivers
This past week, the American Civil Liberties Union announced that it was filing a charge of discrimination with the Equal Employment Opportunity Commission on behalf of a male J. P. Morgan employee because the company denies fathers paid parental leave on the same terms as mothers. Now this is an issue that has been percolating for awhile – and one that is not necessarily on the radar screens of smaller employers, many of whom may offer maternity – but not paternity – leave benefits to their employees. Continue Reading Maternity/Parental Leave Policies – A Trap for the Unwary
As we previously blogged, Shawe Rosenthal, on behalf of the Worklaw®Network, a nationwide association of independent labor and employment law firms of which we are a member, filed suit last year against the U.S. Department of Labor to block the DOL’s new interpretation of the advice exemption of the Labor Management Reporting and Disclosure Act (“LMRDA”), or the “persuader rule.” And now, on Monday, June 12, 2017, the DOL announced a Notice of Proposed Rulemaking (“NPRM”) that proposes to rescind that new persuader rule interpretation. Continue Reading We Sued the Department of Labor, and Now It Has Backtracked on the Persuader Rule
Employers rejoice! The Trump administration continues to roll back the anti-business positions asserted by various federal agencies under the Obama administration, as most recently evidenced by the Department of Labor’s June 7, 2017 withdrawal of two Administrator Interpretations on joint employment and independent contractor status. Continue Reading DOL Withdraws Guidance Documents on Joint Employment and Independent Contractor Status
As you may have heard, the Maryland General Assembly has passed a bill that requires employers with 15 or more employees to provide up to 5 days of paid sick leave and smaller employers to provide unpaid sick leave. The bill, known as the Maryland Healthy Working Families Act, now heads to the Governor’s desk. Governor Hogan has promised to veto it and the lawmakers state that they will override the veto. But politics aside, what is the actual status of this bill?
There are a number of possible scenarios regarding this bill, which we will discuss in order of likelihood. Continue Reading Maryland’s General Assembly Just Passed Paid Sick Leave – Now What?
I have previously blogged about the fact that the Family and Medical Leave Act and state counterparts don’t allow employees to take time off to care for an ill or dying pet (see my Pet Bereavement Leave? post here). Recently, however, I heard about a sick leave ordinance – in Emeryville, California – that allows employees to take time off to care for certain animals! So in addition to taking sick leave because of the illness or injury of the employee or the employee’s family member, the employee may also take this leave “to aid or care for a guide dog, signal dog, or service dog”!!! And the dog doesn’t even have to belong to the employee – it can be the family member’s dog! Continue Reading Sick Leave for Your Dog?
A few recent events provide employers a peek behind the curtain of the Trump administration’s position on whether Title VII provides protection to LGBT individuals.
First, some background. Title VII prohibits discrimination “because of sex,” among other things. In the past, the Equal Employment Opportunity Commission (the federal agency enforcing federal anti-discrimination laws) acknowledged that Title VII did not cover sexual orientation discrimination, although it did prohibit discrimination based on sex/gender stereotyping (which could overlap with sexual orientation claims to the extent the gay or lesbian employee did not conform to male or female stereotypes). Continue Reading What is the Future of Sexual Orientation and Transgender Status Under the Trump Administration?
As an employment litigator, I have repeatedly emphasized to my clients the need to get signed agreements, acknowledgements, and authorizations from employees. From a legal standpoint, these signed documents provide legal certainty (and frequently an absolute defense) to certain employee interactions and claims. For example, if an employee contends that she was unaware of the complaint procedure for a harassment claim, waving her signed acknowledgement form for the handbook that contains that procedure in front of her is a pretty stellar defense (and quite satisfying)! It’s hard for someone to repudiate their own handwritten “John Hancock.” Continue Reading Electronic Signatures v. Handwritten Signatures
As you may remember, Shawe Rosenthal joined with other law firms in Worklaw® Network in a lawsuit against the U.S. Department of Labor to block its implementation of the controversial “persuader rule” in order to protect your right to seek counsel on employment, labor and HR matters with privacy and confidentiality. Here’s a brief recap of the milestones: Continue Reading Persuader Rule Lawsuit Update
Today, December 1, 2016, the Department of Labor issued a press release announcing that it had filed an appeal to the U.S. Court of Appeals for the 5th Circuit of the emergency nationwide injunction of the new overtime rule, which had been granted last week by Judge Amos Mazzant, as discussed in our November 23 blog, “Overtime Rule Will Not Take Effect on December 1.” The preliminary injunction temporarily blocked the DOL’s new rule raising the required minimum salary level for the Fair Labor Standards Act’s white-collar exemptions from the requirement to pay overtime pay. The rule was set to go into effect on December 1st.
As discussed in our May 18, 2016 E-lert, in order to be exempt from overtime, a white-collar employee must meet three tests: (1) the salary basis test – the employee must be paid on a salary basis, not subject to reductions for fluctuations in quantity or quality of work; (2) the salary level test – the employee’s salary must currently be at least $455 per week (equaling $23,660 per year); and (3) a duties test – the employee must perform certain duties specific to the executive, administrative or professional exemption in question. There is also a highly-compensated employee exemption under which an employee must currently make at least $100,000 per year and perform at least one exempt duty.
The DOL’s revised rule would have doubled the salary requirement for white collar (executive, administrative and professional) employees from $23,660 per year ($455 per week) to $47,476 per year ($913 per week). The required minimum salary for the highly compensated employees’ exemption would also have been raised from $100,000 to $134,004. These salary levels would have been subject to automatic adjustments every three years. The new rule did not change the duties test for any of the exemptions.
The new rule was challenged by 21 states and multiple business groups, arguing that such change was unlawful. In issuing the preliminary injunction, the judge agreed, noting that the rule change “creates essentially a de facto salary-only test,” which Congress had not intended. In the press release, however, the DOL stated, “The Department’s Overtime Final Rule is the result of a comprehensive, inclusive rule-making process, and we remain confident in the legality of all aspects of the rule.”