EverythingPeople This Week!

24

Apr

2018

OFCCP Releases Audit Scheduling List Process

Author: Anthony Kaylin

Last week was a fairly newsworthy week at the Office of Federal Contract Compliance Programs (OFCCP).  For federal contractors who long had to deal with the secrecy and “gotcha” attitude of the prior administration, the new administration is a sigh of relief.  

17

Apr

2018

U.S. Department of Justice Continues its Anti-Poaching Agreement Position

Author: Michael Burns

In January the U.S. Department of Justice (DOJ) announced it would pursue anti-poaching agreements as a violation of antitrust law.  The Assistant Attorney General for the Antitrust Division made it official last week by issuing an announcement about its case against several companies in violation of the law.  The DOJ announced it had filed a complaint against Knorr-Bremse AG, Westinghouse Air Brake Technologies Corporation, and Faiveley Transport for conspiring to not compete for...

17

Apr

2018

When is Travel Time Work Time Under FLSA?

Author: Anthony Kaylin

Calculating time worked for non-exempt employees who travel for their job is a challenge for many employers.  On April 12, the U.S. Department of Labor Wage and Hour Division issued an opinion letter that tackles this question.

 

10

Apr

2018

U.S. Supreme Court Holds Auto Dealership Service Advisors Are Exempt

Author: Michael Burns

On Monday, April 2, the U.S. Supreme Court (SCOTUS) issued a 5-4 decision ruling that an auto dealership’s service advisors that greeted and advised customers on their auto service needs were covered under the Fair Labor Standards Act (FLSA) special exemption addressing auto dealership personnel. This decision overturned a Ninth Circuit Court of Appeals ruling in 2016 that these service providers were not covered by the FLSA’s exemption and were eligible for overtime. At a...

10

Apr

2018

Salary Speaks Louder Than Gender

Author: Keisha Ward

We’ve discussed impending changes in the way salaries are approached in today’s market.  It is understood that many states are banning and have banned the practice of using salary history as a factor during salary negotiations. On Monday, a federal appeals court ruled that salary history cannot be considered as a factor to justify wage inequalities between men and women.  To put it plainly, employers can no longer justify paying a man more than a woman based on what she...

27

Mar

2018

McDonald's Corporation Moves to Settle with NLRB

Author: Michael Burns

Since 2012, McDonald’s Corporation and the NLRB have been embroiled in the question of what joint employment is. The question is over whether the McDonald’s Corporation as a franchisor could be held responsible for allegedly wrongful employment practices of its franchisees.

13

Mar

2018

DOL PAID Program Announced – A Way Out for Non-Compliant Employers?

Author: Michael Burns

Last week the U.S. Department of Labor (DOL) announced the rollout of a “new” pilot program called the Payroll Audit Independent Determination (PAID) program. This program offers employers a process to self-report wage and hour violations with the DOL to clear them up without being exposed to as many potential damages and monetary penalties.

13

Mar

2018

6th Circuit Recognizes Gender Identity Discrimination

Author: Anthony Kaylin

Following the leads of the U.S. 2nd Circuit and 7th Circuit Court of Appeals, the 6th Circuit Court of Appeals (which includes Michigan) continues the expansion of the definition of “sex” under Title VII and recognizes that discrimination on the basis of transgender and transitioning status or gender identity is discrimination on the basis of sex. 

6

Mar

2018

Be Aware of Salary Increase Caps When Promoting Employees

Author: Anthony Kaylin

When promoting an employee to a new position, what pay should be established?  Many employers have policies such as “up to 14% from previous base when promoting, including merit.”  A policy like that becomes especially problematic when the employee being promoted from one position to another is not even close to the pay range of other employees in the same title.  

27

Feb

2018

Second U.S. Circuit Says Title VII Covers Sexual Orientation

Author: Anthony Kaylin

In a case decided Monday by the U.S. 2nd Circuit Court of Appeals, the full court in an en banc hearing definitively decided that Title VII of the Civil Rights Act of 1964 covers sexual orientation as a protected class.  What makes this case extremely interesting is that the EEOC and U.S. Department of Justice both filed briefs taking diametrically opposing positions.

13

Feb

2018

Pay Discrimination Cases - Equal Pay Act vs. Title VII

Author: Michael Burns

Most federal gender pay discrimination cases are brought under Title VII of the Civil Rights Act of 1964. The other applicable law that was intended to address pay discrimination, the federal Equal Pay Act (EPA), was enacted before Title VII and was more narrow-focused.

6

Feb

2018

Are You Prepared for an ICE Visit?

Author: Anthony Kaylin

ICE enforcement is ramping up.  On January 10th ICE announced a new three-prong approach to conduct worksite enforcement: (1) compliance through I-9 inspections, civil fines, and referrals for debarment; (2) enforcement through the arrest of employers knowingly employing undocumented workers and the unauthorized workers; and (3) outreach, through the ICE Mutual Agreement between Government and Employers (IMAGE) program, to instill a culture of compliance and accountability.  Are you...

30

Jan

2018

US Department of Justice Continues its Pursuit of Naked No Hire or Poach Agreements

Author: Michael Burns

“Naked” no poach agreements – what are they? Naked wage-fixing or no-poaching agreements among employers, whether entered into directly or through a third-party, are illegal under the antitrust laws.  That means that if the agreement is separate from or not reasonably necessary to a larger legitimate collaboration between the employers, the agreement is deemed illegal without any inquiry into its competitive effect.

30

Jan

2018

Association Health Plans: Potential Solution to Rising Health Care Costs for Small Employers?

Author: Anthony Kaylin

Since the passage of the Affordable Care Act (ACA), the requirements of the ACA have profoundly impacted small employer plans (under 50 employees) by raising costs at a faster rate than large employer plans.  

23

Jan

2018

European Union’s New Data Privacy Law Becomes Effective May 25th. Are You Prepared?

Author: Anthony Kaylin

On May 25, 2018, the European Union’s (EU’s) General Data Protection Regulation (GDPR) goes into effect.  This new regulation expands provisions for data collection, retention, and access rights for European based employees and are much more restrictive than in the past. The GDPR was initially adopted in April 2016, and the regulation and directive were published at that time. It replaces the 1995 data protection directive.  The following is a brief...

16

Jan

2018

Paid Family Leave Credit Under the New Tax Law

Author: Anthony Kaylin

The paid family leave credit under the new tax law is another provision that has many holes that need filling.  Under the law, employers would have to provide at least two weeks of leave and compensate their workers at a minimum of 50% of their regular earnings. The tax credit would range from 12.5% to 25% of the cost of each hour of paid leave, depending on how much of a worker’s regular earnings the benefit replaces. The credit starts at 12.5% of the benefit’s costs if...

16

Jan

2018

DOL Unpaid Intern Definition is Loosened for Employers

Author: Michael Burns

In 2010 the U.S. Department of Labor (DOL) issued Fact Sheet # 71 narrowing the definition of what qualified as an unpaid internship. The definition, or more technically speaking…the six-part test, defined a true unpaid internship very narrowly. The 2010 Fact Sheet stated that in order for a for-profit company to engage a true unpaid intern, the job the person was doing had to mirror the type of instruction received in class, and the employer could “derive no immediate...

9

Jan

2018

The New Tax Law’s Impact on Sexual Harassment Settlements and the Law of Unintended Consequences

Author: Anthony Kaylin

As the #MeToo stories and the stories of non-disclosure or confidentiality agreements protecting problem CEOs and other employees became widely publicized, Congress felt it was time to make a stand that penalizes companies using these types of agreements to settle cases, especially since the perpetrator was less likely to be disciplined or terminated.  In the past, under Section 162 of Internal Revenue Code ordinary and reasonable business expenses under these types of agreements...

2

Jan

2018

Update: How the New Tax Law Will Impact HR

Author: Anthony Kaylin

Now that the tax law was passed and signed by President Trump, it has many implications for HR.  The new law has mixed-results for HR programs.

2

Jan

2018

Using Facebook Job Ads May Enable Age Discrimination

Author: Kristen Cifolelli

Employers who use Facebook job ads to help with their recruiting practices need to be cautious in how they use this approach to reach applicants.  A recent federal court lawsuit filed in San Francisco charges 13 companies including Amazon, T-Mobile, and Cox Communications, Inc. with using Facebook’s ad targeting tools to exclude older Americans from job opportunities.  

19

Dec

2017

Three Surprise Rulings That Will Have a Big Impact on Employers in 2018

Author: Anthony Kaylin

Surprising all pundits including ASE, the National Labor Relations Board (NLRB or Board) came out with three decisions last week that were not expected until 2018. 

19

Dec

2017

What Employers Must Do to Defeat a Sexual Harassment Lawsuit

Author: Michael Burns

Despite decades of experience trying to address sexual harassment in the workplace, the recent wave of workplace harassment complaints all over the media have put employers back on their heels.  Supervisors and managers must know how to respond to a situation of harassment as well as the complaint. 

12

Dec

2017

Year-End HR Compliance Check List

Author: Kristen Cifolelli

It’s hard to believe, but 2017 is rapidly winding down and the HR professional’s work never stops!  The end of the year is often a good time to perform a review of HR processes to ensure compliance with key employment laws and to better systematize your operations for the coming year. Examining the efficiencies of the HR department can be tedious work, but it is one of the easiest ways to reduce risk and HR cost.

12

Dec

2017

How a Case Over a Wedding Cake Could Affect Employers

Author: Anthony Kaylin

Last week the U.S. Supreme Court heard arguments concerning a Colorado baker who was willing to sell a same sex couple a wedding cake, but had refused to design it to the couple’s specifications because of religious beliefs.  The baker, Jack Phillips, the owner of Masterpiece Cakes, in court records stated that he "gladly serves people from all walks of life, including individuals of all races, faiths, and sexual orientations. But he cannot design custom cakes that express ideas or...

5

Dec

2017

More Developments on Non-compete and Other Employer Agreements

Author: Michael Burns

In our article in last week’s EPTW This Week!, “Non-solicitation and Confidentiality Agreements Tested by Social Media,” the aspect of too restrictive non-compete agreements in the face of employee social media use was reviewed. Judicial and legislative activity in the areas of employee non-competition, non-solicitation, non-poaching, and confidentiality agreements has increased significantly in the last few years.
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