LB4HR – May 2017
Welcome to Legal Briefs for HR, an update on employment issues sent to over 6000 individual HR professionals, in-house counsel and business owners plus HR and legal professional organizations (who have been given permission to republish content via their newsletters and websites). My mission is to help you stay in the know about employment issues. Anyone is welcome to join the email group . . . just reply via email that you’d like to be added to the list and you’re in! Back issues are posted at www.munckwilson.com under Media Center/Legal Briefs and you can also join the group by clicking on “Subscribe.” A big welcome to new subscribers who attended my recent speeches for Ardent Solutions and at the Texas Workforce Commission’s Texas Business Conference at the Gaylord Texan:
School’s out, but your education never ends:
1. Getting Bendy with Overtime – On May 2, the U.S. House of Representatives passed the Working Families Flexibility Act which proposes to amend the FLSA and give private sector employees the option to be paid 1.5 times their “regular rate” when they work overtime, or to bank paid time off, at that same 1.5x rate, for future use. The bill caps accrual at 160 hours and would apply only to employees who have worked at least 1000 hours in the 12-month period before agreeing to “comp time.” The White House appears poised to sign off, but the hurdle in the Senate remains. Prior versions of “comp time” have languished and died. The bill is posted at https://www.congress.gov/bill/115th-congress/house-bill/1180/text.
2. Keep it Simple – If you plan to use a third party individual, service, or website to inquire into your job applicants’ or employees’ fitness for work, you are going to be subject to the Fair Credit Reporting Act (FCRA). Do not let the name fool you. The scope of this law goes far beyond looking at a person’s credit rating or history. And the FCRA sets forth very specific rules about how employers must give notice & secure a written OK up front and how they handle the back end, when an conditional offer is withdrawn due to what they found out. When they say that the initial notice and authorization form can consist only of those two items, they mean it. Employers easily and often step into it, with the enforcing agency, by adding disclaimers and waivers to that form. And the fact that your background check vendor provided you with the offending form containing the extraneous no-no’s is no defense for you, employer. Kudos to the FTC, for explaining this concept via this blog posting: https://www.ftc.gov/news-events/blogs/business-blog/2017/04/background-checks-prospective-employees-keep-required
3. Uh, No – Since 2004, the NLRB has limited application of “Weingarten rights” to union employees. Those rights were initially established in 1975 (in a case involving a person named Weingarten, who now has more than his designated 15 minutes of fame) and gave union-represented employees in both the private and public sector the right to have their union rep present in any employer investigatory or pre-disciplinary meeting. The Board has flip-flopped several times over the years, expanding the rights to nonunion employees, and then taking them away again. At this point in time, the rights do not apply to nonunion workers and the Board has tersely declined an invitation to change its position. See https://dlbjbjzgnk95t.cloudfront.net/0920000/920769/weingarten.pdf
4. Getting Re-Oriented – On April 4, the 7th Circuit sitting en banc reversed a prior panel decision and determined (8-3) that the Title VII ban on sex discrimination encompasses claims of sexual-orientation discrimination. Hively v. Ivy Tech Community College During March, both the 2nd and the 11th Circuits found no Title VII protection for sexual orientation, but the 2nd Circuit allowed the plaintiff to re-plead the claim as discrimination based on a failure to conform to gender stereotypes (as already recognized by the U.S. Supreme Court in Price Waterhouse v. Hopkins in 1989). While there has been no further appeal filed in the Hively case, the split among the circuit courts is a good indicator this one will end up before the U.S. Supreme Court sooner or later. In the meantime, even if you are not running a business within the 7th Circuit (IL, IN, WI), sexual orientation and gender identity are widely recognized as a protected category under state law (see http://www.hrc.org/state-maps/employment to check your state’s law) and under local ordinances. Further, a bill is pending to amend federal law in the same way. The Equality Act (H.R. 2282; S. 1006) was introduced into Congress on May 2 and, if passed, will amend Title VII and Title IX to make discrimination based upon LGBTQ status unlawful.
5. Hire a Vet – The DOL created an Honoring Investments in Recruiting & Employing American Military Veterans (HIRE) Act initiative to recognize employers who recruit, retain and employ veterans and who offer charitable services in support of the veteran community. The Vets Medallion Program will announce winners annually, in connection with Veterans Day celebrations. For more info on the award and criteria for selection see https://www.dol.gov/newsroom/releases/osec/osec20170505
6. Agency Actions (Try to Keep Up) –
1. NLRB – Philip Miscimarra is no longer “Acting” Chair of the NLRB . . . he got the gig, but his current term expires December 16, 2017; the two vacant spots on the Board are likely to be filled with Republican labor lawyers, giving the Board a Republican majority; the two Democrat Board members have terms which expire in 2018 & 2019
2. DOL – Alex Acosta was confirmed by the Senate as the Secretary of Labor on April 27 and sworn in on April 28. This completes staffing of the president’s cabinet.
3. DOL/FLSA – The DOL has been granted three delays to file briefing for its appeal to the 5th Circuit, to undo the Dec. 2016 preliminary injunction which blocked an increase to the FLSA’s salary minimum for the executive, professional and administrative exemptions. Many are betting the DOL will withdraw its appeal, but maybe not. The new Secretary of Labor signaled that while the amount of proposed increase seemed too high, the current level is too low and is not indexed for inflation.
4. DOL/LMRDA – The DOL’s appeal of an injunction blocking the “persuader rule” is also being reconsidered.
5. Congressional Review Act – The CRA has now been used by the Trump administration several times to revoke executive orders or regulations from the Obama administration. The first revocation involved E.O. 13673 (aka the blacklisting rule), which mandated that federal agencies condition procurement decisions on contractors’ compliance with a host of employment-oriented laws. House Joint Resolution was signed by President Trump on March 27. The second HJR nixed the “Volks rule”, an E.O. which allowed OSHA to file citations against employers for record-keeping violations outside of the statutory six-month limitations period. The third HJR was also signed in March and nixes a regulation which blocked states from requiring a clean drug test as a condition for receiving unemployment comp benefits, unless the person worked in transportation or had a job that required them to wear a gun.
6. USCIS/H-1B Visas – The FY 2018 cap for H-1B visas was reached on May 3 and petitions not selected via the lottery method are being returned. The Trump administration’s “Hire American” executive order will result in a tightening of the parameters used to grant H-1B visas, going forward.
7. OSHA – The agency’s 2013 “Fairfax memo”, which allowed union reps to tag along during OSHA safety inspections of non-union facilities, was withdrawn on April 25. The memo had been challenged in a lawsuit filed by the National Federation of Independent Business, but the lawsuit was withdrawn after the agency withdrew the memo. In denying OSHA’s motion to dismiss, the court signaled that the memo flatly contradicted a prior legislative rule as to whether the employee rep in the walk-around inspection “must himself be an employee.”
8. EEOC – The U.S. Chamber of Commerce and a host of related business organizations asked the Office of Management & Budget to rescind its prior OK of the EEOC’s revised Standard Form 100 (aka EEO-1 Report), which proposes to add pay data to the annual exercise of submitting gender and race data on employees. The group points to President Trump’s executive order on reducing regulation and controlling regulatory costs and asserts that the EEOC did not comply with section 3517 of the Paperwork Reduction Act, which requires federal agencies minimize the burden, maximize the usefulness and protect the privacy/confidentiality of information the agency seeks from the public. The business groups contend that the time and cost of modifying employers’ HRIS systems to comply with the new report has not been adequately addressed.
7. This is a Recording – A NLRB administrative law judge ruled an employer’s policy which banned employees from recording any workplace conversations without approval from the company’s legal department violates Section 8 of the NLRA, which prohibits employers from interfering with employees’ Section 7 rights (to organize and engage in similar concerted activity related to terms and conditions of employment). The employer argued the rule was necessary to protect customers information but the judge found it to be too broad, saying there were narrower ways for the employer to protect its interests without interfering with employee rights. The judge noted other NLRB decisions stating that “protected conduct may include a number of things including recording evidence to preserve it for later use in administrative or judicial forums in employment-related actions.”
8. Calendar That – If you’d like to get out of the office and download your mind with employment law updates and practical advice, here is a collection of upcoming speeches which I would love to see YOU at:
1. May 19 & 20 – 8th Annual Hospitality Financial and Technology Professionals (HFTP) Texas Regional Education Conference at the Embassy Suites at Dallas Love Field
2. June 12 & 13 – 24th Annual University of Texas School of Law Labor and Employment Law Conference, to be held at the AT&T Conference Center on the UT campus. Yours truly is chairing this year’s conference, will speak on a topic, and can attest that the planning committee has assembled a meaty slate of topics and speakers to educate, bemuse and amuse you. Info is posted at https://utcle.org/conferences/EL17. I hope to see YOU in Austin! You can also hear me speak at the April 27
3. June 15 – Lawing Financial Fiduciary Summit at the Gaylord Texan. Agenda and registration info is posted at https://qualifiedplanadvisors.com/events/2017-fiduciary-summit-dallas/
9. Stated Differently – Here are some hot topics for you multi-state employers:
1. Alabama – A county circuit court judge ruled on May 8 that the AL workers’ compensation statute is unconstitutional. He found that the $220/week cap on benefits was below the poverty level and just north of 25% of the state’s average weekly wage. He also held that the 15% cap on attorneys’ fees fails to afford due process of the law and that any such cap should be determined by the judiciary and not the legislature. Judge Ballard’s order will take effect in 120 days, giving the state legislature time to amend the law.
2. Arizona – Effective July 1, most AZ employers will be required to offer employees paid sick time. The draft regulations for the new law were posted on the Secretary of State’s website, on May 5, and written comments will be accepted through June 5. If you would like to seen and heard, there will be a public hearing on June 5 at 9 a.m. at the Industrial Commission’s office in Phoenix, AZ. Here is a link to the SOS website – http://apps.azsos.gov/public_services/register/2017/18/contents.pdf.
3. California – Effective April 1, 2017, healthcare employers in CA are subject to new record-keeping and reporting requirements designed to protect healthcare employees from workplace violence. Workplace violence prevention planning and training elements take effect April 1, 2018. For more info, see https://www.dir.ca.gov/title8/3342.html.
4. California – The CA Supreme Court had good news for employers in a case examining the state’s “day of rest” law. The law provides that employees are to be given one day of rest in seven. The court explained that this is measured using the employer’s defined workweek (not a calendar week) and the law does not require a day of rest after six days worked, if the employee otherwise was given the opportunity for a day off in each week. Further, the employer’s duty is to advise their employees of the day of rest rule but employees are free to work a seventh day, if they choose.
5. District of Columbia – Effective March 17, employers can no longer ask about or use job applicants’ credit information to make a hiring decision (with a few exceptions, such as for positions with financial institutions where the job involves access to personal financial information). The new law is posted here: http://lims.dccouncil.us/Download/33953/B21-0244-SignedAct.pdf Penalties for violations range from $1000 to $5000 and there is a private cause of action.
6. Missouri (St. Louis) – A 2015 injunction was lifted on May 4, making the city’s $10/hour minimum wage ordinance enforceable. It applies to employees working within the city limits who work at least 20 hours per year. A bill is pending in the MO legislature, to repeal any current or future local laws mandating a minimum wage set higher than the state minimum wage, which is currently $7.70/hour.
7. New York – Effective January 1, 2018, NY will begin phasing in paid family leave for private sector employees who are  new parents following birth or adoption of a child;  caring for a sick family member; or  assisting a family a member who has been called to active military duty. The program starts by providing up to eight weeks of time off at 50% of pay in 2018 and will max out at 12 weeks of leave at 67% of pay in 2021. The program will be funded via employee payroll deductions.
8. New York – Rules regulating employers’ payment of wages to employee via payroll debit card and direct deposit, set to take effect March 7, were rescinded by the Industrial Board of Appeals in February. The NY Dep’t of Labor filed an appeal on April 24, seeking the reverse the IBA’s decision and put the rules back in play.
9. New York City – Effective May 15, the Freelance Isn’t Free Act becomes law and requires written agreements between a freelance worker and a “hiring party” for engagements valued at $800 or more. The agreement has required elements and double damages are available to the freelancer if there is no agreement provided or if not paid in a timely manner. The New York City Dep’t of Consumer Affairs provides a webpage with all the details at https://www1.nyc.gov/site/dca/about/freelance-isnt-free-act.page.
10. New York City – Effective October 31, employers in NYC may not inquire or rely upon a job applicant’s wage/salary history during the hiring process. The law was signed by Mayor Bill de Blasio on May 4.
11. Oregon – Final rules implementing the OregonSaves retirement savings program were published on April 18. OR employers who do not offer retirement plans to their employees are required to deduct from their employees’ wages and deposit the funds into the new state program. The rules and additional info can be found on the OregonSaves website at http://www.oregon.gov/retire/Pages/index.aspx.
10. For the Birds – If you like being tweeted and want breaking news on employment law changes (and the occasional random cheer for K-State), follow me on Twitter. I’m at @amross.
Until next time,
Audrey E. Mross
Labor & Employment Attorney
Munck Wilson Mandala LLP
600 Banner Place
12770 Coit Road
Dallas, TX 75251
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