US Supreme Court to Reconsider Key Agency Deference Standard

Supreme Court BuildingOur colleague Brent Owen at the FrESH Law Blog (which covers perspectives on Environmental, Safety, and Health law) authored the post below addressing the US Supreme Court’s upcoming decision in Kisor v. Wilkie, which will address the Auer standard of deference that is applied by the courts to administrative agencies’ interpretations of their regulations.  Although Kisor involves the Department of Veterans Affairs, the ruling is anticipated to have broad implications for agency action, including agencies that regulate employment matters, such as the Department of Labor and the Equal Employment Opportunity Commission.  Accordingly, employers should be keeping an eye on this case – we’ll be doing the same and will update you when the Court rules.

US Supreme Court to Reconsider Key Agency Deference Standard

Often called the fourth branch of government, administrative agencies implement the labyrinth of federal regulations governing people and companies in the United States. Administrative agencies play a particularly important role in regulating environmental, health, and safety in the United States. Those administrative agencies may soon face greater scrutiny from federal courts in their interpretation of their own regulations. This development could give businesses—particularly those in highly regulated industries—more opportunities to challenge, limit, or at least better anticipate their regulatory burden. Continue Reading

Time to talk? Time to listen too

Last week it would have been difficult to miss the statistics: mental health affects 1 in 4 of us. In reality, it affects far more indirectly. Many people will have been affected by the mental health of a colleague, a friend or a family member. In addition, anyone with experience of mental health problems will know that conditions such as anxiety and depression affect everyone differently. What helps one person won’t necessarily be an appropriate form of support for another.

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Extension of IR35 to Private Sector, Part 2 – keeping the right company

The proposed extension of IR35 in April 2020 will make private sector businesses liable to deduct tax on payments to individual contractors operating through personal service companies if the individual would be deemed their employee if it were not for the PSC.

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Arizona Court of Appeals Strikes Down Law Restricting Local Governments From Requiring Private Employers To Provide Benefits That Exceed State Law Requirements (US)

In 2006, Arizona voters approved a ballot measure which resulted in the passage of the Arizona Minimum Wage Act and established a state-wide minimum wage (currently $11.00/hour).  This law also permitted individual Arizona counties, cities, and towns to regulate both the minimum wage and the employee benefits to be provided by private employers located within their geographic boundaries.  That meant that local governments could establish a minimum wage higher (but not lower) than the statewide minimum wage to apply in their specific jurisdiction, as well as require employers to provide more generous employee benefits than state law requires. Continue Reading

Former NLRB Chairman Pearce Withdraws From Consideration for Open Board Seat (US)

Former National Labor Relations Board (“NLRB” or “Board”) two-term Chairman and Member Mark Gaston Pearce announced on February 6, 2019 that he would not seek renomination to the Board.  Mr. Pearce – a former union-side lawyer who was appointed by President Obama – served until the end of his second term on August 27, 2018.  To the surprise of many, given his active role in deciding many union- and employee-friendly decisions, including the now infamous Browning Ferris decision expanding joint employer liability (the history of which we have blogged about here and here), the day after his term expired, President Trump nominated Mr. Pearce to an open Board seat.  At the time of his term expiration and renomination – and at present – four of the five seats are filled, three by Republicans John F. Ring (Chairman), William J. Emanuel, and Marvin E. Kaplan, and one by Democrat Lauren McFerran. Continue Reading

The earth is doomed, and other reasons not to send an employee on leave (UK)

The New South Wales Civil and Administrative Tribunal in Australia last year awarded an employee AU$20,000 in compensation for pain and suffering where her employer forced her onto “personal leave” for assumed mental illness based on her discussion of conspiracy theories in the workplace. Though an Australian case, it contains valid lessons for UK employers too.

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Webinar: De-coding the Complex Indian Employment Landscape

Squire Patton Boggs presents a webinar intended to de-code India’s complex employment landscape. There are a multitude of employment laws to be taken into account, some of which date back to the early part of the last century. As one of the world’s fastest-growing economies over recent years, India’s employment legislation has needed to adapt to the global economy and we have seen a number of legislative changes, with more on the horizon.

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H-1B Update: DHS Publishes Final Rule Amending Application Process for upcoming H-1B Lottery (US)

The United States Department of Homeland Security (“DHS”) issued a press release on January 30, 2019, announcing revisions to the H1-B visa program, which were made in direct response to President Trump’s April 17, 2017 “Buy American and Hire American” Executive Order (the “Order”). As we discussed in our previous blog post about the then-proposed changes, the final rule includes swapping the order of case selection under the H-1B “lottery” and implementation of a new electronic case registration and selection system, among other technical changes. Continue Reading

Older, Wiser, and Out of Luck: Seventh Circuit Decision Limits Job Applicants’ Right to File Age Discrimination Claims (US)

On January 23, 2019, the Seventh Circuit Court of Appeals (which hears appeals from the federal district courts in and for Illinois, Indiana, and Wisconsin) issued an en banc decision in Dale E. Kleber v. CareFusion Corporation, a case in which the court wrestled with whether applicants for employment may successfully pursue disparate impact claims under the Age Discrimination in Employment Act (ADEA), the federal law that prohibits discrimination in employment on the basis of age.

Mr. Kleber, an attorney, applied for a position as in-house counsel with CareFusion. The job posting stated that the company sought applicants with “3 to 7 years (no more than 7 years) of relevant legal experience.” Mr. Kleber, age 58, had far more experience than the position called for and applied for the position notwithstanding the “experience cap.” CareFusion did not extend an interview to Mr. Kleber, and instead hired a 29-year old applicant who met but did not exceed the experience sought. Mr. Kleber filed suit, alleging that CareFusion’s experience cap had a disparate impact on older, qualified workers like himself. Continue Reading