White House announced the nomination of Judge Ketanji Brown Jackson to Supreme Court: Judge Jackson, following Justice Stephen Breyer’s upcoming retirement, is being nominated to take his place, with President Biden calling her “one of our nation’s brightest legal minds.” Judge Jackson graduated magna cum laude from Harvard University, where she also went on to attend law school, serve as editor of the Harvard Law Review, and graduate cum laude. Judge Jackson was also Justice Breyer’s law clerk, and she also served as a law clerk for judges on the First Circuit and in the U.S. District Court for the District of Massachusetts. Judge Jackson currently serves on the U.S. Court of Appeals for the D.C. Circuit and prior to that she was a judge on the U.S. District Court for the District of Columbia for eight years. Before that, she served as Vice Chair of the U.S. Sentencing Commission. Judge Brown has also worked as Of Counsel at Morrison & Foerster LLP, Assistant Federal Public Defender in the appeals division of the Office of the Public Defender for the District of Columbia, Assistant Special Counsel at the Sentencing Commission, and as an associate in two law firms. Judge Jackson is highly qualified for the new position, and a little known fact about her, she is the sister-in-law to former House Speaker Paul Ryan (she is married to Ryan’s wife’s brother). Her employment law rulings are mixed but fair. Judge Brown, as the 116th Supreme Court Justice, is eminently qualified for the role.
Daylight Savings starts March 13th: Set your clocks forward one hour Sunday morning, March 13th. Daylight Saving Time was first proposed by George Vernon Hudson in 1895, and its use in the U.S. was first mandated during World War I. It was subsequently used on and off for years by various countries and U.S. states. Since the 1970s; however, it has mostly remained in effect in the U.S. and Europe. The salaries of exempt employees are not affected by Daylight Savings Time. As for non-exempt employees, employers will have to decide whether to pay those employees who are at work when the clock is set forward for this “lost” hour. They do not have to be paid for it since they did not actually work it. The employer may also have to decide whether the lost hour, if paid, will count toward overtime or not (it does not have to). However, an employer must also determine if the hour counts towards leave accrual. To get a copy of a poster, click here.
We used to have summer hours: Belgium is offering employees in the country the right to negotiate for a four-day workweek, as a global re-evaluation of work-life balance sparked by the COVID-19 pandemic continues. The change, part of a package of labor-law reforms proposed by the federal government, will allow employees to work more hours per day to forgo a fifth workday. Employers can refuse to grant employees’ requests for a shortened workweek, but must give “solid reasons for any refusal,” said Pierre-Yves Dermagne, Belgium’s deputy prime minister and minister of the economy. A number of companies in Belgium have already moved ahead with a four-day workweek, but the proposed modifications to the labor laws would open that possibility to all workers, Mr. Dermagne said. Would this work here in the U.S.? The question would be how to implement this scheme in factory situations, especially with the worker shortage. Source: The Wall Street Journal 2/16/22
Protecting an employer from ERISA contractor misclassification claims: Lawsuits are popping up where longtime contractors are seeking ERISA benefits by stating that they are misclassified and are actually employees. Under ERISA, civil actions may only be brought by plan participants, beneficiaries, or the Secretary of Labor. ERISA defines a “participant” as “any employee or former employee of an employer . . . who is or may become eligible to receive a benefit of any type from an employee benefit plan which covers employees of such employer . . . or whose beneficiaries may be eligible to receive any such benefit.” Companies should check their plans to make sure the plan eligibility language protects specifically against misclassification claims. For example, “It is expressly intended that individuals who are not treated as common law employees by the Employer or a Controlled Group member for purposes of its payroll records are to be excluded from participation in the Plan, even if a court or administrative agency determines that such individuals are common law employees and not independent contractors.” This language may protect against such claims. Source: Baker Hostetler 2/21/22
Is it worth testing for cannabis? In addition to medical cannabis being legal in 37 states, recreational cannabis is now legal in 18 states and the District of Columbia. A number of jurisdictions have banned testing of it. New York City prohibits all employers from requiring employment candidates to submit to testing for THC. Most recently, Philadelphia enacted a similar law effective January 1, 2022, prohibiting employers from requiring job applicants to submit to cannabis testing. At the state level, Nevada has prohibited pre-employment cannabis testing since January 2020. Besides bans, what other risks are there to testing? In states like Illinois, employers risk discriminating against recreational cannabis users because cannabis is now a "lawful product" under Illinois law. So, with all these factors in mind, is testing for cannabis even worth it? The answer is not a "one-size-fits-all" issue. The decision will depend on a number of factors including some exceptions to statutory prohibitions on testing listed above, laws requiring drug testing for certain jobs, and position-specific questions surrounding job duties (e.g., desk job versus operating heavy machinery). Still, what many employers may have considered as a best practice for years is one that should be reconsidered in light of these rapid developments. Source: Foley & Lardner 2/14/22
Women’s soccer settles equal pay lawsuit: U.S. women soccer stars, including Megan Rapinoe and Alex Morgan, have reached a $24 million settlement with the U.S. Soccer Federation following a lawsuit over unequal pay with men’s team players. It is a landmark settlement, years after a group of five U.S. Women’s National Team players filed an Equal Employment Opportunity Commission complaint over inequality in pay and treatment. According to the terms of the settlement, U.S. Soccer will pay men and women at an equal rate in the future in all friendlies and tournaments, including the World Cup. About time. Now pro basketball. Source: NBC News 2/22/22
A new recruitment channel – those wanting to get out of gang ties: Long Beach City College and the University of Southern California are launching a new program focused on increasing college access for young people who have been associated with gangs. The goal of the program, which will start this summer, is to help up to 300 prospective college students with gang connections enroll and succeed at Long Beach City College, offering them a series of supports over the course of three years to guide them from enrollment to a certificate or degree or enable them to transfer to a four-year university. The program will help participants, ages 16 through 24, through the enrollment process, provide them with career advising and specialized mental health counseling, assign coaches to mentor them, connect them to campus resources, and help them secure internship opportunities. The goal is also to create relationships across racial and ethnic groups in the Long Beach area to build bridges between communities sometimes alienated from each other by gang violence. Long Beach is home to multiple racial and ethnic enclaves, including sizable Black, Latino, Samoan, Cambodian, and Filipino communities. Source: Inside Higher Ed 2/21/22