EverythingPeople This Week!

16

Apr

2019

Federal Employment Legislation Introduced So Far This Year

Author: Michael Burns

With so much state law change being introduced and passed around the country and in Michigan, and until fall of last year Congress and the Executive branches being controlled by business-friendly Republicans, there was not much federal employment legislation to be concerned about. The Executive branch has been busy trying to adjust employment and labor regulations, but these adjustments have been to roll back the more onerous regulations implemented during the Obama administration.

9

Apr

2019

Does a Pay Disparity Finding Mean That Pay Discrimination Occurred?

Author: Anthony Kaylin

The hottest issue in the EEO area is pay discrimination.  In the news it is often written that women earn approximately 20 cents or more less than a male counterpart.  When it is broken down by race, the disparity grows even larger.  However, does disparity mean discrimination?

9

Apr

2019

U.S. Department of Labor Proposes 4-Factor Joint Employment Test

Author: Michael Burns

Employers that have franchise operations, engage independent contractors, or both have had the rules and protections that come with these business relationships turned on their heads in recent years. A newly proposed 4-factor test may simplify things.

2

Apr

2019

NLRB Continues to Look at Employer Policy and Rules

Author: Michael Burns

The National Labor Relations Board (NLRB) continues to review union and non-union employer policies and rules.  In an Advice Memo published last week by the NLRB, the Board’s advice division looked at two employer rules through the lens of its 2017 Boeing decision. This decision trimmed back considerably the previous NLRB’s position that if an employer’s rule could in any way infringe upon an employee’s right to engage in protected concerted activity it would...

2

Apr

2019

Will the Supreme Court Raise the Requirements of a Religious Accommodation to ADA levels?

Author: Anthony Kaylin

Religious accommodations generally do not rise to the level of a disability accommodation when reviewed by courts.  But a recent case against Walgreens indicates that standard may change. 

26

Mar

2019

OFCCP Issues New Audit Lists

Author: Anthony Kaylin

On Monday March 25, 2019, the Office of Federal Contract Compliance Programs (OFCCP) released the audit list for fiscal year 2019.  It should be noted that if a contractor was on the previous list released in September 2018 and was not audited yet, the release of the new list does not negate any audits not initiated in the previous list.  In other words, the contractor in the September may still be audited.

26

Mar

2019

USDOL Publishes FMLA Opinion Letter Clarification

Author: Michael Burns

The U.S. Department of Labor (DOL) issued an Opinion Letter clarifying how employers must go about allowing an employee to use other time off (paid or unpaid) in conjunction with the Family and Medical Leave Act (FMLA) requirements.

19

Mar

2019

Limitation of Actions Clause Can Fail if Not Done Correctly

Author: Michael Burns

Several weeks ago we wrote about how a limitation of actions agreement/clause can effectively restrict state wrongful employment actions to a much shorter period of time – normally 180 days. It is recommended a limitation of actions clause not be included in the employee handbook. They can be placed on an employment application form in its boilerplate text section normally just above the signature and date lines, or it can be a separate agreement signed at the point a job offer is made.

12

Mar

2019

More Information on the Proposed Regulation on Exemption Salary Level Test Released

Author: Michael Burns

As reported last week in an ASE breaking news update, the U.S. Department of Labor (DOL) released its long-anticipated changes to its white-collar exemption regulations. The big change was a “split the baby” approach to resolving a regulatory agency overreach by the DOL back in 2016.

12

Mar

2019

OFCCP Explains the 503 Focused Review Process

Author: Anthony Kaylin

On Friday, March 8, The Office of Federal Compliance Programs (OFCCP) opened the Section 503 Focused Review portal.  The Focused Review derives from Directive 2018-04 which states that OFCCP will direct that “a portion of future scheduling lists include focused reviews as to each of the three authorities that the Office of Federal Contract Compliance Programs enforces...

8

Mar

2019

U.S. DOL Sets Salary Level Test Threshold at $35,308/yr.

Author: Michael Burns

Late yesterday, the U.S. Department of Labor published its new proposed rule raising the Fair Labor Standards Act (FLSA) “white collar” exemption to $35,308/year or $679/week from $23,660/yr. or $455/week. The salary level test is one of three criteria that must be met to legally exempt an employee from overtime and some recordkeeping requirements.

5

Mar

2019

EEO-1 Pay reporting Requirement Back On (Temporarily?)

Author: Anthony Kaylin

On Monday a federal judge ordered the White House budget office to lift its stay of the reporting of pay with the EEO-1 tool granting summary judgment to the National Women's Law Center and the Labor Council for Latin American Advancement.  It is questionable whether the two groups have standing to bring this lawsuit.

5

Mar

2019

EEO-1 Filing Deadline May 31 – Tips for Completing Report

Author: Kristen Cifolelli

As a result of the federal government shut down, employers have two additional months to file their EEO-1 report.  The normal filing due date for the EEO-1 is March 31st, but the 2018 EEO-1 report for employers is due this year by May 31, 2019.  The tool will open up for reporting in two weeks per the EEOC.  Filing instructions will be posted soon on the EEO-1 survey website.

26

Feb

2019

Can Medicare-for-All be a Viable Solution?

Author: Anthony Kaylin

A number of Democratic contenders for president have signed on to the slogan, Medicare-for-All.  But there is confusion as to what it means and how to pay for it. 

19

Feb

2019

Developing or Integrating Your Organization’s Paid Time Off to Comply with Michigan’s New PTO Law

Author: Michael Burns

With the passage of and impending enactment date (March 29, 2019) of Michigan’s new Paid Medical Leave Act, employers that are covered are hastily reviewing their existing vacation, sick, and personal time, as well as formal Paid Time Off benefits and policies to see how far off they may be from compliance with the new law.

12

Feb

2019

The Drama Over the OFCCP $400 Million Oracle Law Suit Continues

Author: Anthony Kaylin

The long running audit of Oracle by the U.S. Department of Labor’s Office of Federal Contract Compliance (OFCCP) has turned in favor of the OFCCP.  The two areas of contention include first, that an analysis of Oracle pay data shows it shorted thousands of females, black, and Asian workers by as much as five figures relative to their white colleagues each year from 2013 through 2016.  Second, Oracle favored Asian applicants over non-Asian job applicants, particularly Hispanic...

5

Feb

2019

Retraction of Narrower Independent Contractor Definition Continues

Author: Michael Burns

Of the many Obama era labor and employment overreaches, the re-defining of joint employer and independent contractor was (and continues to be) arguably the most controversial. The National Labor Relations Board (NLRB) previously focused on union-employer relations.  But during the Obama Administration it imposed itself on the world of corporate law by reconstruing the law and using its case decision making authority to find most independent contractor relationships void.  This in...

15

Jan

2019

Keeping up on Your Fair Labor Standards Act Understanding

Author: Michael Burns

Does an Employer Have to Pay an Applicant for Interviewing for a Job? Of course not, one might say. But not so fast. Does your company use a “working interview” to select qualified employees? Some companies use this form of applicant screening. As the name suggests, a “working interview” has the applicant performing work or they have the potential employee attend training during the selection process.

8

Jan

2019

DC Appeals Court Ruling on Joint Employer Status Does Not Clear Up Much for Employers

Author: Michael Burns

Over the holidays the District of Columbia (DC) Appeals Court held that although the National Labor Relations Board (NLRB) may determine joint employer status, its test in the Browning-Ferris decision handed down in 2015 did not do the job properly.  The original Browning-Ferris decision handed down by the NLRB held that even “when two entities never have exercised joint control over essential employment terms, and given when any such joint control is not ‘direct and...

8

Jan

2019

Mistakes Managers Make That Can Trigger Lawsuits

Author: Heather Nezich

Employer law suits have increased over the years.  And whether legitimate or not, they cost employers time and money.  Many of these lawsuits are not triggered by blatant abuse of employment laws, but rather simple managerial mistakes.

14

Dec

2018

Breaking News - Governor Snyder Signs Michigan Minimum Wage and Earned Sick Time Laws

Author: Michael Burns

Late Thursday, Governor Snyder signed the Minimum Wage law (SB 1171) that takes Michigan’s minimum wage to a maximum of $12.05/hr. in 2030 and removed the future indexing of the minimum wage to inflation. He also signed the Earned Sick Time law (SB 1175) that implements paid time off for employee or family member illness, injury, domestic violence, and sexual assault. The new law applies to employers with over 50 employees.

11

Dec

2018

Amended Employee Time Off and Minimum Wage Bills Await Governor’s Signature

Author: Michael Burns

As many employers know by now, the Michigan Legislature amended the two expensive and administratively burdensome laws this month. They now go to the Governor’s desk for signature. However, Governor Snyder is being somewhat cagey in his support for passage. On Sunday’s Channel 4 show, Flashpoint, Devin Scillian asked Governor Snyder if he would be signing the laws. Governor Snyder responded he was looking at all laws passed by the lame duck Legislature for policy value...

4

Dec

2018

The Changing Landscape in OFCCP Land

Author: Anthony Kaylin

OFCCP is moving at light speed to make changes as to how it operates.  There have been a number of new directives in 2018 already, “righting the ship” from the previous administration.  Now comes three new directives for Fiscal Year 2019 (DIR 2019-01, DIR 2019-04, and DIR 2019-03).  These directives are officially changing the way OFCCP is doing business and how audits will be handled in the future. 

27

Nov

2018

Defending Equal Pay Claims Has Become More Complicated

Author: Anthony Kaylin

For employers defending an equal pay act (EPA) discrimination claim, the “factor other than sex” affirmative defense generally prevails, except when it doesn’t.  And lately, courts have been more reluctant to accept the affirmative defense. 

27

Nov

2018

Michigan’s Paid Time Off Law, Whether Repealed or Amended, Compels Employer Review of Its Paid and Other Time Off Policies

Author: Michael Burns

As covered in the November 21st issue of EPTW, Michigan employers have to monitor what paid time off benefits will be required of them going forward. Will Michigan’s GOP-led legislature repeal the Michigan’s Earned Sick Time Act entirely or just amend it in order to relieve some of its expense to smaller employers? It appears that pro-business parties may just go for amending the law down to some “reasonable” degree.
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