Trump Names Fast Food CEO As Labor Secretary

labor law developmentsPresident-elect Donald J. Trump on Thursday named Andrew F. Puzder, chief executive of the company that operates the fast food outlets Hardee’s and Carl’s Jr. to be the DOL’s new secretary of labor.

As widely reported by The New York Times, The Wall Street Journal and other major media outlets, Mr. Puzder is a critic of the Affordable Care Act, has argued against raising the federal minimum wage, and is against the variety of executive orders that the Obama Administration passed, including the Overtime Pay Rule that is currently under appeal.

Additionally, and relating directly to employers’ pockets – it is unlikely that employers will see a hike in the federal minimum wage in this administration, and it is likely that, if confirmed, Mr. Puzder will not fight to enforce the Obama administration’s new Fair Labor Standards Act exemption rule, which was supposed to go into effect December 1, 2016, and would have raised the minimum salary threshold to be considered an exempt employee.  In general, it appears, Mr. Puzder’s appointment could result in a more flexible approach to the federal laws and regulations than employers experienced under the current administration.  This flexible approach could ultimately lead to fewer lawsuits and fines directed at employers who are attempting in good faith to follow the rules and regulations.


Navigating Through the Smoke: The Intersection of Marijuana Legalization and Employment Law

LaborPublic approval for medical and recreational marijuana is at an all-time high. In November 2016, four states voted to legalize recreational marijuana: California, Nevada, Massachusetts and Maine (although, at the time of this posting, the vote in Maine is subject to a recount). These states join Alaska, Colorado, the District of Columbia, Oregon and Washington, which previously legalized recreational use. When these changes take effect, it is estimated that one in five Americans will have access to entirely legal marijuana.

In addition, four states voted to allow or expand medical marijuana use. Those states are Florida, North Dakota, Arkansas and Montana. A total of 42 states now permit medical marijuana in some capacity.

Given the changing landscape, employers may wonder what their rights are when an employee is legally using recreational marijuana or using medicinal marijuana to treat a disability under the Americans with Disabilities Act (ADA) or a serious medical condition under the Family and Medical Leave Act (FMLA). Continue Reading

EEOC Issues New Enforcement Guidance On National Origin Discrimination

Discrimination underlined with red markerOn Nov. 21, 2016, the United States Equal Employment Opportunity Commission (EEOC) issued updated enforcement guidance on national origin discrimination for the first time in 14 years. Some may speculate whether this has anything to do with increased ethnic tensions in the wake of the presidential campaign and election results. Some also recognize that in 2015 alone, approximately 11 percent of the 89,385 private sector charges filed with the EEOC alleged national origin discrimination, claiming a wide variety of Title VII violations, including unlawful failure to hire, termination, language-related issues and harassment. Regardless of the reasoning, its issuance may have widespread implications for employers who fail to vigorously enforce their anti-discrimination and harassment policies.

Among other things, the EEOC’s lengthy guidance addresses topics such as the definition of national origin discrimination, related unlawful employment decisions, related harassment, language-related issues and citizenship status. It offers various examples of what is lawful versus unlawful among these various topics, and also provides guidance to employers with regard to permissible practices.

So, what is national origin discrimination? According to the new guidance, it is “discrimination because an individual (or his or her ancestors) is or perceived to be from a certain place or has the physical, cultural, or linguistic characteristics of a particular national origin group.” In unpacking that definition, the EEOC explains that a “certain place” may mean a country, like Russia, a former country, like Yugoslavia, or somewhere that is associated with an ethnic group, but is not a country, like Tibet. Furthermore, a “national origin group” is a “group of people who share a common language, culture, ancestry, and/or other social characteristics,” like Hispanics. Importantly, the EEOC noted that it is possible for someone from the same ethnic or national origin group to discriminate against or harass someone in his or her same group. Likewise, it is also possible for an American to suffer national origin discrimination. Further, one may also suffer from discrimination based on his or her association with a person of a particular national origin. Continue Reading

Texas Judge Halts December 1 Implementation of Department of Labor’s “Overtime Final Rule”



As anticipated, the Department of Labor has filed its Notice of Appeal with the Fifth Circuit Court of Appeals, asserting that Judge Mazzant’s Nov. 22, 2016, Order enjoining the enforcement of the Department of Labor’s Final Overtime Rule “rests on an error of law and should be reversed.” The DOL has also requested that the court enter an expedited briefing schedule for the appeal that would require all briefing to be completed by Feb. 7, 2017, with oral argument to be scheduled for the first available date thereafter.

Giving the court a preview of its opening brief, the DOL declared that the District Court’s ruling directly contravened the Fifth Circuit’s prior ruling in Wirtz v. Mississippi Publishers Corp., 364 F.2d 603 (5th Cir. 1966), which found that the DOL had “broad latitude to ‘define and delimit’ the meaning of the term ‘bona fide executive … capacity.’” The DOL also asserted that the updated salary level under the Final Rule is commensurate with salary levels that the DOL has set over the past 75 years, explaining that the original ratio between the minimum salary level and minimum wage is roughly the same under the Overtime Final Rule (3.15) as it was under the 1938 regulations (3.0).

The DOL has requested that the Court issue a ruling on the expedited schedule by December 8, 2016. Plaintiffs/Appellees, consisting of a group of 21 states led by Texas and Nevada, oppose the expedited scheduling and have indicated their preference to wait until after the District Court has ruled on the motion for summary judgment currently pending in a companion case brought by the U.S. Chamber of Commerce and over 50 other national and Texas business groups on September 20, 2016. Continue Reading

Nationwide Permanent Injunction Bars Implementation of DOL’s “Persuader Rule”

LaborAs we explained in our client alert and blog posting on June 30, 2016, a Texas federal court on June 27 enjoined the United States Department of Labor (DOL) from implementing its new interpretation of the “Persuader Rule.” In a sweeping 86-page rebuff to DOL, the court opined that the DOL’s new interpretation of the “Advice Exemption in Section 203(c) of the Labor-Management Reporting and Disclosure Act” (“New Rule” for short) is “defective to its core,” and thus it preliminarily enjoined implementation of the New Rule nationwide.

On Nov. 16, this same federal court converted its June ruling to a permanent nationwide injunction that prevents implementation of the New Rule. Senior Judge Sam R. Cummings also granted the motion for summary judgment by Texas, nine other states and various business groups. This decision is critically important to employers because it preserves their right to confidential legal representation without government interference. Prior to this decision, the DOL’s New Rule (totaling 127 pages) and its significant reporting obligations were set to take effect on July 1, 2016.

By way of background, the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA, or the Act) has long contained provisions requiring persons engaged in persuading employees concerning the exercise of their rights to organize and engage in collective bargaining pursuant to an agreement or arrangement with the employees’ employer to report the details of those agreements and arrangements. These provisions are known as the “Persuader Rule.” Traditionally, a person engaged in reportable persuader activity only if he or she had direct contact with employees. The work of labor consultants, including law firms, that had no direct contact with employees but assisted employers in advising them on how to run their union avoidance campaigns was considered exempt from reporting under the “advice exemption” found in Section 203(c) of the LMRDA.


USCIS Publishes Long-Awaited High-Skilled Immigration Rule

empThe United States Citizenship and Immigration Services (USCIS) has published its long-awaited “High-Skilled Nonimmigrant Workers” regulation today, Nov. 18, 2016. This regulation was proposed on Dec. 31, 2015. It will become effective 60 days from today (on Jan. 17, 2017). Among other things, the regulation does the following:

It creates a 60-day grace period for E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN workers whose employment has terminated (so long as their authorized validity period has not ended). Individuals will be entitled to this grace period for each authorized validity period the individual receives.

It creates an additional 10-day grace period for E-1, E-2, E-3, L-1 and TN workers to enter the U.S. before their authorized employment begins and to leave the U.S. after the end of their authorized employment validity period. Similar grace periods are already available for H-1B, O and P nonimmigrants.


DOL Mandates Paid Sick Leave for Employees of Federal Contractors

bigstock-The-words-Compliance-Rules-R-46050379Just a year after President Obama signed Executive Order 13706, Establishing Paid Sick Leave for Federal Contractors, the Department of Labor (DOL) announced its final rule mandating that federal contractors provide paid sick leave to employees who work “on or in connection with” federal contracts. The rule applies to new and renewed contracts with the federal government that are solicited and awarded on or after Jan. 1, 2017 (the rule contains a few narrow exclusions).

The rule explains that employees perform work “on” a covered contract when their work is directly related to the specific services called for by the contract (e.g., technicians wiring a public building). And employees perform work “in connection with” a covered contract when their work is not directly related to the services called for by the contract but is necessary to the performance of the contract (e.g., a security guard monitoring a construction worksite where covered work is being done).

The final rule permits eligible employees to take paid sick leave (1) for an employee’s incidents of physical or mental illness; (2) for the care of a sick family member; (3) for an employee’s visits to health care providers, including for preventive care; and (4) for an employee to take a family member to a medical appointment. The rule also permits paid sick leave to be taken for medical reasons or to obtain other services related to domestic violence, sexual assault and stalking. Continue Reading

New Seattle Ordinance Restricts Scheduling Practices

Seattle Skyline and Mount Rainier at SunsetMany of us are familiar with the lyrics of Dolly Parton: “Workin’ 9 to 5, what a way to make a livin’…” A predictable work schedule, however, is not so universal in the retail and food services businesses. For many employers in these industries, work schedules are often issued on short notice as a result of fluctuating customer demands. Laws that require more predictability in scheduling, according to employee advocates, promote economic equality by allowing employees to have more stability in planning budgets and arranging for child care, schooling and a second job. A recent ordinance passed in Seattle, which goes into effect July 1, 2017, aims to balance these two interests by establishing secure scheduling requirements for covered retail and food-service establishments.

Covered employers

The ordinance covers retail and food services establishments (defined broadly to include, for example, caterers, mobile food services, bars, limited-service restaurants, cafeterias, buffets, and snack and nonalcoholic beverage bars) that employ 500 or more employees worldwide. For full-service restaurants, there must also be at least 40 locations worldwide. Continue Reading

Transgender Issues in the Law and in the Workplace


UPDATE: On Friday, October 28, 2016, the Supreme Court granted certiorari in the Fourth Circuit case arising out of Virginia, which was discussed in our Sept. 21, 2016 blog post.  The Fourth Circuit case related to a high school student’s ability to use the bathroom of the sex with which he identifies.  In August, the Court also stayed the Fourth Circuit’s order requiring the school to permit the student to use his preferred restroom pending resolution of the case.  Whether or not the Court’s decision to stay the Fourth Circuit’s order shows the Court’s hand remains to be seen.  Either way, a decision on this matter will have a profound effect on transgender rights and potentially employment law, as well, depending on whether the Court narrows its decision to discrimination in the context of Title IX (see our discussion of Title IX here).

Visibility of transgender persons has been heightened lately. Caitlyn Jenner received an ESPY award for her bravery in discussing trans issues, there are story lines in popular television shows like “Orange Is the New Black” highlighting transgender persons and their related struggles with civil rights, and the press has reported on boycotts related to gender-appropriate restrooms. Perhaps because of this increased visibility, people are now hotly debating what transgenderism means in the context of civil rights and privacy rights and how those rights affect employers. These are important issues that affect not only transgender persons all over the country but also employers.

On the issue of civil rights, Title VII of the Civil Rights Act (Title VII), the federal law that protects employees from discrimination, specifically names “sex” (typically referred to as one’s biological birth sex) as a category of people that should be protected against discrimination in the workplace, but does not specifically include protection for an individual’s “gender identity” (the sex with which a person identifies rather than the person’s birth sex). However, some courts have held that discrimination based on gender identity is discrimination based on sex stereotyping (which the Supreme Court has recognized as discrimination based on sex), and, thus, it is not permissible under federal law. To date, the First, Sixth, Ninth, and Eleventh Circuits and some district courts in other circuits have used this theory to hold that discrimination against transgender persons is not permissible. Likewise, several agencies, including the Equal Employment Opportunity Commission (EEOC), have issued guidance providing that discrimination based on gender identity is prohibited under the sex classification of Title VII. In addition, 21 states and the District of Columbia prohibit discrimination based on gender identity, and several municipalities have enacted legislation to protect gender identity.

The issue of privacy includes transgender persons’ access to restrooms and locker rooms that are consistent with their gender identity. Proponents of laws or policies that require individuals to use a restroom or changing area that correlates to their birth sex argue that cisgender persons (those whose sense of personal identity corresponds with the gender assigned to them at birth) have an expectation of privacy that requires others using restrooms or changing rooms to be of the same birth sex. Continue Reading

Pokémon – A Wake-up Call to Employers on the Importance of Electronic Use Policies

Cell phonesAs my 11-year-old begs to borrow my mobile device to catch a Pokémon, I become one more Generation X member unwittingly joining the millions of millennials participating in an augmented reality game. For employers, Pokémon demonstrated that an app can rapidly gain enormous popularity, resulting in significant portions of the workforce downloading the app on mobile devices before employers know the app’s effect on data privacy or the presence of objective content.

Like the time allotted before a Pokémon despawns, an employer’s reaction time to the next augmented reality game will be limited. Employers, however, should not panic. The electronic use policies for employer-owned devices, and bring your own device (BYOD) policies for employee-owned devices, which have been recommended for years, provide the template for an employer’s response and an employee’s obligations. Employers who have not implemented electronic use and BYOD policies should not wait any longer. Unless the policies are clearly communicated to employees, compliance will be limited. The Pokémon phenomenon is a great opportunity to recirculate your electronic use and BYOD policies, reminding employees about their mobile device restrictions.

An electronic use policy can prohibit all unapproved downloads to employer-owned devices. A BYOD policy can require written authorization from employees that use of their personal device may be limited as long as the device has access to employer networks, including limitations on downloads that are not preapproved by the employer. Technology that allows an employer to remotely disconnect network access or even execute a remote wipe of content on an employee- or employer-owned device, assuming prior written authorization from the employee for this action, also can help protect employers from downloads that compromise company information. Continue Reading