“Scabby the Rat” Deflated When The Seventh Circuit Moves His Cheese (US)

Most business owners would shudder at the thought of rats being on their premises, but one rat is particularly unwelcome to employers – “Scabby the Rat.” This red-eyed, rather vicious looking rat-shaped balloon (sometimes as tall as 25 feet) has become a symbol used by labor unions across the country to publicize that they have a dispute with an employer.

No stranger to the courts, Scabby has been the subject of many legal challenges from the business and property owner communities. Nonetheless, in 2011, the National Labor Relations Board held that labor unions’ use of Scabby during strikes and protests is permissible. Other cases have firmly held that unions’ deployment of Scabby in labor disputes is a form of speech protected by the First Amendment. Continue Reading

Extension of IR35 to private sector, Part 3 – just a question of self-control (UK)

By David Whincup on February 20, 2019 Posted in Contractor, Contracts, Employment Status, Tax

So you have identified your individual contractor and you want to agree terms of engagement with his personal services company which give you the best possible chance of avoiding direct liability under IR35 when it changes in 2020. Here are some preliminary tips:

Department of Labor Says Employers Are Not Required to Pay Tipped Employees the Full Minimum Wage for Non-Tipped Activities (US)

By Melissa Legault and Laura Lawless Robertson on February 19, 2019 Posted in Agency, Compensation, Department of Labor, Employment Policies, Fair Labor Standards Act, Hours, News, Pay, Policies, Regulation, Wage and Hour, Wages, Wages

Under the Fair Labor Standards Act (“FLSA”), employers are required to pay non-exempt employees a minimum hourly wage of $7.25. However, employers with “tipped employees” are able to pay such employees a cash wage of $2.13 per hour and take a “tip credit” toward their minimum wage obligation to make up the difference between the cash wage and the federal minimum wage. Importantly, the FLSA differentiates between tipped employees who perform “dual tasks,” such as incidental duties that do not produce tips, and employees who have a “dual job,” meaning they are employed by the same employer to do both a tipped job and a non-tipped job. The U.S. Department of Labor’s Wage and Hour Division (“WHD”), charged with enforcing the FLSA, recently changed its position on when employers must pay employees with “dual tasks” the full minimum wage for time spent on non-tipped activities. Continue Reading

Valentine’s Day – a retrospective guide for employers (UK)

By David Whincup on February 18, 2019 Posted in Disciplinary, Harassment, Sex Discrimination

So did Valentine’s Day bring you everything you expected from it? Cards? Roses? Notice of Early Conciliation?

US Supreme Court to Reconsider Key Agency Deference Standard

By Daniel Pasternak on February 15, 2019 Posted in Agency, Department of Labor, EEOC, Employment, Fair Labor Standards Act, Legislation, News, Recent Cases, Regulation

Supreme Court Building Our 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

By Hannah Field on February 14, 2019 Posted in Employee Welfare, Health & Safety, Mental Health

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.

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

By David Whincup on February 12, 2019 Posted in Contractor, Contracts, Employment, Tax

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.

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

By Melissa Legault and Daniel Pasternak on February 11, 2019 Posted in Benefits, Employment Law, Legislation, Litigation, News, Recent Cases

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)

By Daniel Pasternak on February 6, 2019 Posted in Collective Bargaining, News, NLRB, Unions

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)

By David Whincup on February 5, 2019 Posted in Disability Discrimination, Employee Welfare, Recent Cases

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.