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

Drawing the Line on Leave Policies for Employees With Disabilities

Employment_186440912Within the past three months, the U.S. Equal Employment Opportunity Commission (EEOC) has secured nearly $9 million from companies that have committed violations of the Americans with Disabilities Act (ADA) by discriminating against and firing employees with disabilities who requested medical leave or exhausted their allotted medical leave to address those disabilities.

For example, on June 17, 2016, the EEOC announced that three integrated Nevada-based car dealerships will pay $50,000 for firing an employee with multiple sclerosis who requested medical leave for the diagnosis and treatment of her disability. According to the EEOC, about three months after Shara Rynearson was hired as a commissioned salesperson, she notified her supervisor of certain symptoms — including sudden vision changes, facial numbness and balance loss — that caused her to go to the emergency room in October 2010. Later, she showed her employer her hospital discharge papers, which included a diagnosis predicting multiple sclerosis. She also advised her employer that she could not work until after a medical appointment scheduled for early November to confirm the diagnosis. Instead of allowing Rynearson to take medical leave for the diagnosis and treatment of her disability, the company allegedly fired her on November 5, 2010.

In a different case, on May 13, 2016, the EEOC entered into an agreement with a home-improvement, appliance and hardware giant to pay $8.6 million for the firing three employees with disabilities and failing to provide reasonable accommodations to them when their medical leaves of absence exceeded the company’s 180-day (and subsequent 240-day) maximum leave policy between 2007 and 2010. The EEOC argued that the company’s automatic termination of employees who exceeded an arbitrary time limit on medical leaves of absence was unreasonable and a violation of the ADA. In fact, federal courts have consistently held that requests for extended leave can be a reasonable accommodation for a disability under the ADA, depending on the circumstances, and that automatic termination policies whereby an employer denies a request for such leave based on the employee having already been out a certain amount of time are unlawful. Continue Reading

Pregnancy Protections Under NYC Law – Not Limited to Just “Pregnancy”

As most NYC employers have probably heard by now, in May of this year, New York City released guidance that defines violations of pregnancy protections under the NYC Human Rights Law, and provides clear(er) examples of when and how employers should make accommodations for employees based on pregnancy, childbirth or a related medical condition. The new guidance clarifies that employers not only have to accommodate pregnant workers, but also must follow some rather nuanced requirements not limited to just pregnancy.

Some of these requirements include:

  1. Employers must accommodate reasonable requests for things like minor changes in work schedules; adjustments in uniform requirements or dress codes; allowing for drinking, snacking and bathroom breaks; allowing employees to eat at their desks; providing seating; arranging for light duty or desk duty assignment; transferring workers to other available positions that are less strenuous or hazardous; and allowing for unpaid leave to recover from childbirth.
  2. Employees who are breastfeeding are also entitled to reasonable accommodations, such as a clean, sanitary and private space (other than a bathroom) to express milk along with a refrigerator to store the milk.
  3. Employees undergoing fertility treatment are also entitled to reasonable accommodations, such as a more flexible schedule to attend fertility appointments.
  4. Employees who have had abortions or miscarriages are also entitled to reasonable accommodations, such as additional unpaid leave to recover from a procedure.
  5. Employers are required to initiate and engage in a “cooperative dialogue” (as defined by the law) with employees when the employer is on notice that an employee is in need of an accommodation based on pregnancy, childbirth or a related medical condition. The cooperative dialogue is ongoing until (1) a reasonable accommodation is reached or (2) the employer reasonably arrives at the conclusion that (a) there is no accommodation available that will not cause an undue hardship to the employer or (b) no accommodation exists that will allow the employee to perform the essential requisites of the job. Once a conclusion is reached, an employer should promptly notify the employee in writing of the determination. Failure to do so may result in a violation of the law.
  6. Employers may not require an employee to provide medical confirmation of pregnancy, childbirth or related medical condition, except when (1) an employee is requesting time away from work, including for medical appointments, other than the presumptive six-to-eight-week period following childbirth for recovery from childbirth, and may do so only if the employer requests verification from other employees requesting leave-related accommodations for reasons other than pregnancy, childbirth or related medical condition, or (2) an employee is requesting to work from home, either on an intermittent basis or a longer-term basis.
  7. Employers may not retaliate against employees for requesting reasonable accommodations for pregnancy, childbirth or a related medical condition.

Continue Reading

NLRB Makes Up More New Rules on Joint Employment

Remember that kid in elementary school who, whenever you were winning at some made-up playground game, would change the rules in the middle? “Kids can be so unfair,” your parent might have said, trying to console you. “But when you get older, there are laws and rules, and they’re written down. Everyone knows what the rules are, and everyone has to play by those rules.

Fast-forward to adulthood and the business world. The law is written down. When there are ambiguities, the courts rule. Their decisions can be relied upon. The American economy requires predictability. Businesses know the rules and can operate within the bounds of those rules.

And then there’s labor law. Hahahahaha!

The National Labor Relations Board doesn’t care about your rules and predictability. The NLRB has expressed its frustration with the composition of the modern workforce and the increasing use of staffing agencies and contingent workers. The NLRB believes that these arrangements – a cornerstone of the modern economy – decrease unionization. “But who cares what the NLRB thinks about contingent workers?” you might say. “The rules are the rules, and the 21st-century economy requires the flexibility that a contingent workforce allows.  Continue Reading