Employment & Labor Insider

Employment & Labor Insider

Legalese is not spoken here

Weekly catch-up

Posted in Elections, Immigration, Labor Relations, Politics, Protected Concerted Activity

Work card renewal for foreign workers gets easier. First, I neglected last week to include this Immigration Dispatch by Elizabeth Joiner on changes to the process for renewing Employment Authorization Cards (aka “work cards”) that should make things easier for foreign workers. Please do Hot Dog Man.flickrCC.JeleneMorrisread, and, Elizabeth, I apologize for the delay!

The January-February edition of the Executive Labor Summary is out! Our labor guru David Phippen has outdone himself (is that even possible?) with a discussion of the changes expected from the Trump Administration, the “right-to-work” trend, the employee protest strikes and protected concerted activity, a robot barista named Gordon, and an update on our old friend in San Francisco who made roughly $162,000 in overtime. Plus much more, if you can imagine that.

Speaking of employee protest strikes, the “Day Without a Woman” strike is scheduled for this Wednesday, March 8. (I plan to be a scab.) If you missed our bulletins on employee protest strikes by Mark Flora and Leigh Tyson, please do read them before you take any action against striking employees. These issues are anything but clear-cut.

What will the National Labor Relations Board do when the Republicans are back in the majority? This debut offering by Dannah Rodriguez of our Macon Office is a doozy — Dannah discusses five NLRB decisions in which Philip Miscimarra (then a Member, but now Acting Chairman) was a dissenter. Those dissents give us a pretty strong indication of what we may expect from the Board once President Trump fills the remaining two vacancies on the Board with Republicans. (Magic 8 Ball says, “Outlook is good.”)

Image Credit: From flickr, Creative Commons license, by Jelene Morris.

EEOC asks court to throw out wellness lawsuit filed by AARP

Posted in Americans with Disabilities Act, Genetic Information Non-Discrimination Act, GINA

I’ve written here and here about the lawsuit filed by the AARP against the U.S. Equal Employment Opportunity Commission, seeking to invalidate the EEOC regulations relating to wellness programs and the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act.

On Wednesday, the EEOC filed a motion asking the court to throw out the lawsuit. The EEOC argues that the AARP has no more standing to sue on behalf of its members than do Netflix, the United Airlines frequent flyer program, or Amazon — in other words, the agency says, the AARP is not a true “membership” organization in which members have a right to elect officers and influence actions taken by the organization.

The EEOC also argues that its interpretation of the ADA and GINA “voluntary” requirements, in light of the 30 percent limit for incentives under the Health Insurance Portability and Accountability Act and the Affordable Care Act, is reasonable and was adequately explained.

The AARP, of course, will have a chance to respond before the court makes a ruling.

Missouri Supreme Court reinstates St. Louis city wage

Posted in Wage-Hour

Yesterday, the Missouri Supreme Court reinstated a St. Louis city law that will hike the city’s minimum wage to $11 per hour by 2018. Originally enacted in 2015, the lawRobert Ortbals had been invalidated by a trial judge hours before it was to become effective.

As originally passed, the city’s law provided for graduated increases to the minimum wage as follows:

October 15, 2015 – $8.25 per hour
• January 1, 2016 – $9 per hour
• January 1, 2017 – $10 per hour
• January 1, 2018 – $11 per hour

Because this phase-in period never occurred, it is somewhat unclear how the city will handle the increases. According to the St. Louis Post-Dispatch, Mayor Francis Slay has indicated that his administration will work with businesses to determine a “reasonable grace period” for the new rate. The Court’s decision does not become final for at least 15 days, as the parties decide whether to pursue post-opinion motions. We will continue to monitor the city’s implementation guidance.

St. Louis.flickrCC.Joel

“$11? That’s a lot of money!”

Missouri’s statewide minimum wage is currently $7.70 an hour and subject to annual adjustments based on increases or decreases in the cost of living. Beginning January 1, 2019, the city’s minimum wage will be increased annually to track the inflation rate.

Yesterday’s ruling comes on the heels of a decision in January in which the Court ordered Kansas City to place a proposed minimum-wage increase on the ballot for voters. That proposal is now on the August 8 ballot. If approved, Kansas City’s minimum wage would increase to $10 per hour on September 1, and would gradually increase to $15 per hour by 2022.

Image Credit: Photo of St. Louis from flickr, Creative Commons license, by Joel.

Trumpdate: What’s in Ivanka’s “paid family leave” plan?

Posted in Elections, Politics

President Trump’s address to Congress last night didn’t have much on labor and employment issues, apart from the creation of jobs (which is no small thing and would be awesome if it pans out).

Ivanka Trump.flickrCC.RichGirard

Ivanka Trump

But he did mention “paid family leave,” ever so briefly.

Credit (or blame) for the concept of paid family leave goes to the President’s daughter Ivanka, herself a businesswoman and mother of two young children. The plan is still a work in progress, but here is a broad outline as it currently stands:

Moms would be entitled to six weeks of paid maternity leave, which would be financed through state unemployment systems. There has been talk that restricting the leave to mothers is unconstitutional. As I’ve said before, I disagree, because new mothers are uniquely situated in the first six weeks after the birth of a child (in other words, they’re the only ones who have an actual physical disability), which I think would eliminate any equal protection concerns. In any event, it now appears that the concept may be expanded to include fathers and LGBT parents who did not give birth to the child. If they do that, I don’t see how they couldn’t expand it further to include all adoptive parents, so be on the lookout for that, too.

Families would be entitled to a tax deduction for child care expenses. As it stands now, the deduction would be available to parents with annual income of less than $250,000, and to couples with income of less than $500,000. The less-well-heeled would be entitled to an earned income tax credit for child care. Right now, there doesn’t appear to be anything for parents whose income is so low that they don’t pay taxes, and arguably they are the most in need of help with child care expenses.

According to some reports, some Democrats have indicated a willingness to work with Ms. Trump because they generally favor paid family and medical leave, and they see Ms. Trump’s proposal as giving them a foot in the door. For the same reason, resistance is expected to come from Republicans, and also because the plan as it currently stands is estimated to cost about $500 billion over the next ten years. Ouch!

Like I said, this is a work in progress. A lot is sure to change before a plan is formally presented to Congress. We’ll keep you posted.

Image Credit: From flickr, Creative Commons license, by Rich Girard.

Queen for a day: If I ran the world, would I scrap our employment laws?

Posted in Americans with Disabilities Act, Discrimination, Employment at Will, Family and Medical Leave Act, HR, Labor Relations, Telecommuting, Wage-Hour

Walter Olson of the great Overlawyered.com sent a challenge over Twitter earlier this week:

Screen Shot 2017-02-23 at 2.45.02 PM

For those of you who don’t know Mr. Olson, he’s a libertarian.  :-)

I have to admit, I needed time to process this! I complain about these laws all the time, but would I really want to get rid of all protections for employees who want to organize, be paid a fair wage, avoid being thrown out on the street without a nickel when they are 59 years old, or need some unpaid time off so they can get their chemotherapy? No, I would not. So I would not scrap the National Labor Relations Act, the Fair Labor Standards Act, the Age Discrimination in Employment Act, or the Family and Medical Leave Act, even if I were queen – or dictator – for a day. (I don’t deal with Davis-Bacon enough to want to express an opinion on that one.)

But that’s not to say I’d be averse to changing some of these laws. If I were queen for a day and could do whatever I wanted, here’s what I might do: Continue Reading

Weekly catch-up

Posted in ConstangyTV, eLaw, Wage-Hour

ATTENTION, employers in New York! In January, Anjie Cabrera and Stephen Stecker did a comprehensive report on a number of new laws that had recently taken effect or would soon be taking effect in New York State and New York City. Among those was a New York State regulation that was Hot Dog Man.flickrCC.JeleneMorrisdue to take effect March 7, which imposed restrictions on payment of wages by direct deposit or payroll debit card. That regulation has now been revoked. Stephen has the follow-up here.

Have I mentioned lately that the February edition of ConstangyTV’s Close-Up on Workplace Law is now available? Our hostess with the mostess Leigh Tyson interviews Susan Bassford Wilson, co-chair of our e-Law Practice Group, about “Bring Your Own Device” policies, the risks associated with the policies, and what employers can do. To save you the trouble of scrolling down or following a link, I’ll give it to you here:

Hot dog image from flickr, Creative Commons license, by Jelene Morris.

Trumpdate: Tons of employment-related stuff!

Posted in Discrimination, Elections, Immigration, Politics, Wage-Hour

The employment law week in Trumpland started out a little slow, but now we’re back in business.

Acosta looking good for confirmation as Secretary of Labor. In contrast to nominee Andrew Puzder, the outlook appears good for his successor nominee Alexander Acosta. Mr. Acosta seems to have bipartisan support in the Senate, and has even been endorsed by the International Union of Operating Engineers and spoken well of by Wilma Liebman, a Democrat who served with him on the National Labor Relations Board.

Screen Shot 2017-02-23 at 12.53.01 PM

Your Trump Tweet for the week.

NLRB “short list” identified. In January, President Trump named “lone dissenter” Republican Philip Miscimarra to be Acting Chairman of the National Labor Relations Board, but there are still two vacant spots on the Board (the other two Board members are Democrats Mark Gaston Pearce and Lauren McFerran). President Trump can fill the two vacancies with Republicans, creating a 3-2 Continue Reading

“BYOD” policies – are there risks? You betcha!

Posted in ConstangyTV, Data Privacy, eLaw, Social media

The February edition of ConstangyTV’s Close-Up on Workplace Law is now available.

Host Leigh Tyson interviews Susan Bassford Wilson, co-chair of our e-Law Practice Groups about the risks associated with “Bring Your Own Device” policies and what employers can do to minimize those risks.

You can watch it on our YouTube channel. Silly me – what was I thinking? It’s right here, too:

If you haven’t already subscribed to our video series, please do so.

OFCCP issues updated “pay transparency” notices

Posted in Affirmative Action

Although the Office of Federal Contract Compliance Programs has not announced a requirement that contractors update their Pay Transparency Nondiscrimination Provision,Alyssa Peters the agency has updated its required posters and language.  Links to the new versions can be found here (formatted) and here (unformatted).

The new versions do not contain substantive changes; they merely add the regulatory citation to the end of the notice (41 C.F.R. 60-1.35(c)). But because the regulations require federal contractors to use the posting and language provided by the OFCCP, contractors should update all of their existing postings and handbook policies.

For those who may be new to the federal contracting world (or those who may have just overlooked this requirement), an explanation may be in order. The pay transparency rule prohibits contractors covered by Executive Order 11246 from discriminating or retaliating against employees for discussing, disclosing, or inquiring about their compensation.  This is not a new prohibition for employers; the National Labor Relations Act generally prohibits the same conduct in many circumstances. For contractors, however, there is the additional requirement to actually post and disseminate the prohibition—hence, the Pay Transparency Nondiscrimination Provision. Contractors must post the provision electronically or in a conspicuous place that is accessible to all employees and applicants. Contractors must also include the provision in their employee handbooks.

Again, even though there has not been a formal announcement from the OFCCP mandating the new versions, we recommend that contractors replace the old poster and handbook policy as soon as practical.

That smarts! Porn “sting” operation gets employer “stung” for retaliation

Posted in Retaliation

This should have been an open-and-shut case. For the employer, that is, not the employee.

Lufkin Industries, Inc., had an employee, William Fisher, who was a 55-year-old African-American. One day, Mr. Fisher got into a verbal tiff with his 31-year-old white supervisor, and the supervisor called him “Boy.” Mr. Fisher was offended and complained to the company’s vice president of Human Resources. After an investigation, the company determined that the supervisor did not mean “Boy” in that way, and everybody lived happily ever after.

For about a month.

Then, a white co-worker of Mr. Fisher went to the boss of the supervisor who had called Mr. Fisher “Boy” and complained to the boss about the fact that Mr. Fisher had complained about the supervisor a month earlier. Do you follow me?

Groucho Marx.flickrCC.AKRockefeller

“Well, stop following me, or I’ll have you arrested.”

In the course of the discussion between the co-worker and the boss, it came to light that Mr. Fisher allegedly sold pornographic DVDs out of his lunch box. The boss suggested that the co-worker purchase DVDs from Mr. Fisher in a type of “sting” operation. The co-worker said he wasn’t comfortable doing this, but the boss allegedly told him, “You scratch my back, and I’ll scratch yours.”

Continue Reading