EverythingPeople This Week!

12

Sep

2017

How Trump’s DACA Decision Impacts Employers

Author: Anthony Kaylin

President Trump’s decision to end the Deferred Action for Childhood Arrivals program (DACA) established by President Obama by executive order in 2012 has impact on employers.  The program now covers 787,580 people who have been approved for the program, according to the latest government figures.  To be eligible, applicants had to have arrived in the US before age 16 and have lived here since June 15, 2007. They could not have been older than 30 when the Department of Homeland...

5

Sep

2017

EEO-1 Report Due March 31, 2018 – No Pay Reporting Required

Author: Anthony Kaylin

Good news for employers!  On August 29, 2017, the Office of Management Budget’s (OMB) Office of Information and Regulatory Affairs (OIRA) announced that the pay reporting requirement of the EEO-1 will be delayed and not required in the March 31, 2018 EEO-1 reporting cycle.  This news was greeted as a sign of relief by the employer community.  The standard EEO-1 report, though, will still be required for filing on March 31, 2018.

29

Aug

2017

US Fifth Circuit Court of Appeals Issues Another Employer-Friendly Decision on Employer Policies

Author: Michael Burns

Earlier this month EPTW reported on a Fifth Circuit Court of Appeals decision in the employers favor upholding that employer’s clearly stated directions on reporting discrimination. The US Fifth Circuit issued another opinion at the end of July that also supported clearly written employer policies or rules and at the same time, pushed back at the pro-labor National Labor Relations Board (NLRB) rulings in the last few years.

8

Aug

2017

Time to Smell the Roses or Else Pay Up

Author: Anthony Kaylin

With workplaces moving more to the open floor plan, a difficult issue is raising its head more and more.  Whether its food odors like tuna, perfume, cologne, or body odor, the issue of scent allergies has grown among the workforce.  In one case, retaliation and failure to properly accommodate cost an employer $3.3 million.

1

Aug

2017

DOL Solicits Comments on the Overtime Rule

Author: Anthony Kaylin

As previously reported in the EPTW, the Trump administration was going to publish a Request for Information (RFI) on the White-Collar Overtime Exemption. It did so on July 26, 2017.  Previously, the Obama administration had published rules that would be effective December 1, 2017, that increased the exemption salary level test from $433/week up to $913/week with an escalation every three years.  This would have dramatically impacted employers.  Essentially most employees would...

25

Jul

2017

Common Mistakes Employers Make On Their Employment Applications

Author: Kristen Cifolelli

Smart employers use employment applications to gather consistent data in a uniform format about their applicants.  This allows for easier comparison of their backgrounds and skill sets in order to help make better hiring decisions.  Some of the other benefits of using applications include gathering information that an applicant wouldn’t typically include on their resume such as reasons for leaving a prior employer and gaining a signoff regarding the accuracy of the information...

25

Jul

2017

Cannot Fire Employee for Profanity Laced Facebook Post

Author: Anthony Kaylin

It's always a question to employers as to what extent off duty actions can be held against an employee.  Certain situations may be easier than others to assess, such as an employee arrested for a crime.  But what about an employee’s Facebook rantings?  

18

Jul

2017

A First: Google Beats OFCCP on Access to Records Case

Author: Anthony Kaylin

In a highly unusual victory by the employer, Google beat back the Office of Federal Contract Compliance Programs (OFCCP) attempt to force them to respond to an exhaustive data request.  The case started as a regularly scheduled compliance review of Google’s headquarters by letter dated September 20, 2015.  In the course of the audit indicators arose.  Google had a $600,000 federal contract with the General Services Administration it won in 2014.  

11

Jul

2017

U.S. DOL Walks a Fine Line as it “Walks Back” Overtime Rules

Author: Michael Burns

The US Department of Labor (DOL) is working toward rescinding its judicially enjoined overtime rules. These rules were published during the Obama Administration and dramatically increased the exemption salary level test from $433/week up to $913/week.  It was intended to reduce the number of jobs that could be classified non-exempt by employers.  

27

Jun

2017

MIOSHA Fine Maximums to Increase Under New Bill

Author: Michael Burns

The republicans, who control the Michigan State Senate, introduced legislation last Wednesday to increase MIOSHA fines to maintain parity with the federal OSHA fine maximums. Why would our business friendly legislature do this? It appears not by choice, but by necessity, if MIOSHA is to remain compliant and independent from federal OSHA oversite.

20

Jun

2017

Website Title III ADA Violation Impacts Employers

Author: Anthony Kaylin

Although seemingly far-fetched, a lawsuit which hit grocer Winn-Dixie concerning accessibility to its website should make HR take notice.  A federal trial court in Florida ruled that Winn-Dixie violated Title III of the ADA by having a website that was not useable by plaintiff Juan Carlos Gil to download coupons, order prescriptions, and find store locations.  Mr. Gil is blind and uses screen reader software to access websites.  The judge ordered injunctive relief, including a...

20

Jun

2017

Department of Labor’s “Persuader” Rules Being Rescinded

Author: Michael Burns

Under the Obama Administration’s National Labor Relations Board (NLRB) and the Department of Labor (DOL), two sets of rules intended to tip the scales in favor of labor organizing were published in 2011 – the Quickie Election Rules and the Persuader Rules.  One of them is going away.

13

Jun

2017

Do Ban-the-Box Laws Work as Intended?

Author: Chance,Susan

Ban-the-Box laws were instituted with the idea that by delaying the point in the hiring process in which an employer can ask an applicant about conviction history, the applicants would have a fair chance at gaining employment, but do the laws work? 

13

Jun

2017

Failure to Communicate Leads to FMLA Liability

Author: Anthony Kaylin

Under FMLA regulations, employers are required to provide multiple types of notices to the employee, when the employee requests FMLA leave.  One of those notices is to provide the employee with information about the amount of time available under FMLA leave.   Failure to do so could lead to unintended consequences for the employer.

13

Jun

2017

Independent Contractor Guidance Withdrawn by US Department of Labor – More Freedom or More Potential Liability?

Author: Michael Burns

Signaling the start of the Trump Administration’s rollback of employment and labor Obama era regulations, the Department of Labor announced it is withdrawing its two guidance letters that further defined the restrictions on engaging a worker as an independent contractor. 

6

Jun

2017

Employer Policy Provisions Hold Up Against FMLA Violation in Court

Author: Michael Burns

Most employer Family and Medical Leave Act (FMLA) policies restate the notice requirements and other information mandated by the FMLA posting rules. In addition, they should state any company-specific policies regarding FMLA leave.  If certain issues are not specifically addressed in the policy, it may end up in the court’s hand to decide during a law suit.

 

30

May

2017

Should OFCCP and EEOC Merge?

Author: Anthony Kaylin

The Trump administration issued its first line item budget on May 23rd.  Among the items in the budget include the merger of the Equal Employment Opportunity Commission (EEOC) and the Office of Federal Contract Compliance Programs (OFCCP) by the end of Fiscal Year 2018.  These agencies have two separate roles and separate laws they enforce, but overlap when it comes to discrimination enforcement. The EEOC investigates worker-reported violations of federal nondiscrimination statutes...

23

May

2017

Summer Vacation is Rapidly Approaching – Do You Know the Guidelines for Employing Minors?

Author: Kristen Cifolelli

As the summer rapidly approaches, many employers will supplement their seasonal workforce with minors under the age of 18.  While this is a great opportunity to give a youth the ability to learn work skills, employers need to be aware of the special requirements and their obligations for employing a minor.

9

May

2017

Best Practices for Auditing I-9 Forms

Author: Kristen Cifolelli

Immigration issues are high priority for the current administration, and the U.S. Immigration and Customs Enforcement agency (ICE) has indicated that it will be increasing their enforcement activities this year.   As a result of this intensified focus on immigration compliance, employers should be wary of potential ICE inspections of employer I-9 Employment Authorization Verification records.  In 2016, employer penalties for I-9 form infractions and paperwork errors increased...

2

May

2017

Is it Legal to Pay a Woman Less if Based on Salary History?

Author: Heather Nezich

Solely based on Federal law…yes.  A federal court ruled last week that it is legal to pay female employees less than men if it is based on past salary history.  This decision by the 9th Circuit Court of Appeals overturns a previous ruling that stated that pay differences solely on past salary history were discriminatory, based on the Equal Pay Act.

2

May

2017

Does Title IX Apply to Co-ops and Interns?

Author: Anthony Kaylin

Summer is approaching and many employers hire co-ops, interns and work study students during that time period.  When employing a student and the student is the object of harassment, the question is whether the student can seek relief under Title VII of the 1964 Civil Rights Act (Act), Title IX of the Act, or both.  A recent case from the federal Third Circuit Court of Appeals answered affirmatively that both could apply.  

2

May

2017

Federal Compensatory Time Off Legislation Introduced

Author: Michael Burns

One of the more frequent questions ASE receives from private employers is about how to practice compensatory time off. Compensatory time off is the practice of “paying” overtime worked through paid time off at some later time. ASE frequently advises that most compensatory time practices are illegal. The Fair Labor Standards Act (FLSA) requires payment to non-exempt employees (hourly and salaried) of time worked over 40 hours in a week at time and one-half pay. Therefore, if an...

18

Apr

2017

Piecework Pay, Bonus and Overtime Pay – How do They Collide?

Author: Michael Burns

Piecework pay is not a common pay practice today. In fact, ASE’s most recent Pay Administration Survey found no participants paid on a piece-rate in the Southeast Michigan area. However, in some industries this is still a pay practice.

4

Apr

2017

China’s New Compliance Requirements

Author: Anthony Kaylin

In 2016 China’s Ministry of Human Resources and Social Security (Ministry) issued a set of Measures for Evaluating Compliance and Integrity of Employers’ Labor Protection that began to be enforced on January 1, 2017.  All employers, domestic and foreign, will be graded on compliance with Chinese law using an ABC approach.  If an employer is graded a B or C, it means added inspections and evaluations, and with C grades the leader of the local unit will have to schedule...

28

Mar

2017

Anti-Trust Concerns in Hiring and Compensation

Author: Michael Burns

On the list of wrongful employment practice issues, the risk of engaging in illegal anti-trust practices is pretty far down there. But everyday, employers in competitive industries (think tech) aggressively recruit and seek to retain valuable talent through various employment policies and practices. Some employers take these practices too far. What kinds of employment practices could result in a federal anti-trust lawsuit?

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