Third Circuit Refuses to Give Progressive a (Rest) Break on Compensable Flex Time Policy?

On October 13, 2017, the US Court of Appeals for the Third Circuit ruled in a precedential decision that employers are obligated by the Fair Labor Standards Act (FLSA) to pay their employees for breaks of 20 minutes or less, even if they are logged off their computers and free from any work-related duties. The case is Secretary, United States Department of Labor v. American Future Systems Inc., No. 16-2685 (3d Cir. 2017). Continue Reading

California Latest State to Adopt No-Ask Law

On October 12, 2017, California Governor Jerry Brown signed a salary privacy law prohibiting California employers from seeking or relying on salary history information, including compensation and benefits, about an applicant for employment. Agents of the employer, such as recruiters, are also prohibited from seeking for this information. Further, upon reasonable request, employers must provide an applicant with the pay scale for the position for which they are applying. The law does not define “pay scale.” This law applies to all public and private-sector California employers of any size. This law goes into effect January 1st, 2018.

California’s is the latest of several newly-adopted state and local laws to join the trend of banning such inquiries. A similar law took effect in Oregon and New York City and five other jurisdictions (Delaware, Massachusetts, Philadelphia, Puerto Rico, San Francisco) either have already implemented or are in various stages of phasing in bans of their own in the near future. The goal is to narrow the gender pay gap with proponents arguing that prior salary can perpetuate gender discrimination.

Employers in the above jurisdictions should check all internal processes- applications, screening and interview practices, to ensure compliance. Employers may replace their salary history questions by asking applicants salary expectations- how much they would like to be paid, which gives employers information without violating the law.

Revised Modern Slavery Guidance – limited help for baffled businesses

We weren’t very nice on this blog about the original Government Guidance on the Modern Slavery Act, largely because it really wasn’t very good. It lacked detail where structure would have been helpful, regularly confused aspiration with legal requirement and contained altogether too many uses of the word “remediation” for a document singing the praises of writing in simple language.

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Mental Health Day – one-off or catalyst for change?

Today is the 25th annual Mental Health Day, a fact which has passed with little fanfare.  It’s not clear if this is a sign of progress (i.e. mental health is now so engrained in the workplace that there’s less need to publicise World Mental Health Day), or something else.

The theme of World Mental Health Day 2017 is ‘Workplace Wellbeing’.  This seems particularly apt to me, having spent two days last week chairing plenary sessions on stress and mental health in the workplace as part of our bi-annual EMEA Clinic.  These sessions involved HR professionals and General Counsel, sharing best practice and key concerns and problems, and to me they demonstrated that these remain very live issues.

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Looking into disciplinary investigations – EAT’s lessons on when enough is enough

It is a basic plank of a fair disciplinary dismissal that it be preceded by a reasonable investigation.  But what is that, exactly?  How much detail must you include in your enquiry, how many witnesses must you grill, how far back do you have to go, how far must you challenge or test the evidence you accrue?

In NHS24 –v– Pillar last month the Employment Appeal Tribunal considered the detail question, but on the unusual premise that the investigation report contained too much of it, rather than not enough.  In particular, said Ms Pillar, the investigation report had been unreasonable because it had included reference to two previous incidents of conduct similar to that which had led to her dismissal for gross misconduct, but neither of which had been made the subject of disciplinary action at the time.  As a result, she contended that those incidents were effectively “spent” or waived and so should not have featured in the investigation report.  Potentially a nice argument, but immediately and obviously undermined by her concession that in fact those previous incidents were relevant material for the employer to have in mind when considering what to do about the third and most recent incident.

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Supreme Court Weighs Validity of Employer Class Action Waivers; Justices’ Questions Suggest A Close Decision Ahead

Yesterday marked the first day of the United States Supreme Court’s new term, and the first case heard (Epic Systems Corp. v. Lewis) was one of interest to employers around the country.  In several cases consolidated before the Court on appeal, the National Labor Relations Board (“NLRB”) found employer arbitration agreements that included waivers of an employee’s right to bring a legal claim as part of a class or collective action are invalid under the National Labor Relations Act (“NLRA”). Continue Reading

US Supreme Court to Hear Challenge to Public-Sector Union Fees

On September 28, 2017, the US Supreme Court agreed to hear a challenge to the so-called “fair share” fees public employee unions collect from non-members. The justices agreed to hear a case brought by non-union government employees in Illinois that targets fees that their state and many others compel such workers to pay to unions in lieu of dues to fund collective bargaining and other organized labor activities. Continue Reading

Ninth Circuit Refuses to Defer to DOL’s Interpretative Guidance on FLSA Tip Credit Regulation

The Fair Labor Standards Act (“FLSA”) provides that employers ordinarily must pay their non-exempt employees at least the federal minimum hourly wage of $7.25.  However, employers may pay “tipped employees” as little as $2.13 per hour if they regularly earn more than $30 per month in tips, and then make up the difference between the tipped employee’s lower hourly rate and the federal minimum wage via a “tip credit” made up of the tips earned by their tipped employees.  (Note that applicable state laws may require a higher hourly rate, even when applying the tip credit.)  Continue Reading

Senate Confirms William Emanuel as NLRB Board Member

On September 25, 2017, the U.S. Senate voted 49-47 to confirm William Emanuel to serve as a member of the National Labor Relations Board (NLRB) through August 2021.  Once sworn in, Mr. Emanuel will join fellow recently-confirmed Member Marvin Kaplan, along with current NLRB Chairman Philip Miscimarra, to form a three member Republican majority on the NLRB – its first in ten years.  Along with the October 2017 departure of current NLRB General Counsel Richard Griffin and his replacement with anticipated nominee Peter Robb (also a Republican), assuming he is confirmed, the installation of Members Emanuel and Kaplan is expected to pave the way for a shift from the pro-labor, pro-employee bias the agency has been accused of showing over the past years under the Obama Administration to more unbiased and impartial (and likely more business-friendly) decision-making.

The addition of Member Emanuel won’t be the last change in the NLRB’s composition this year.  Chairman Miscimarra recently announced that he will not seek another term as NLRB Chairman, and instead will leave the agency when his current term expires in December 2017.  His departure will allow President Trump to nominate another Republican as a Board Member, as well as to designate either Member Kaplan or Member Emanuel as the new NLRB Chairman, or to designate Chairman Miscimarra’s replacement – currently rumored to be John Ring, a management-side employment lawyer in private practice – to be the new chairman.

Seventh Circuit Explains: The ADA Is Not A “Medical Leave” Statute

On September 20, 2017, the Seventh Circuit in Severson v. Heartland Woodcraft, Inc. held that a long-term leave of absence is not a reasonable accommodation under the Americans with Disabilities Act (“ADA”).  As we all know, the ADA prohibits employers from discriminating against “qualified individuals” with disabilities, defining such individuals as applicants or employees who, with or without reasonable accommodation, can perform the essential functions of the job.  Reaffirming its precedent in Byrne v. Avon Prods., Inc., the Seventh Circuit held that long-term leaves of absence are not reasonable accommodations because they do not allow employees to perform their job’s essential functions, but instead “excuse[] [] not working.”  Continue Reading

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