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H-1B Premium Processing Update: It’s On! Again! Mostly

U.S. Citizenship and Immigration Services (USCIS) recently announced the reinstatement of premium processing service for H-1B nonimmigrant petitions, with an exception.  Premium processing permits an employer to pay an extra fee (currently $1410) to receive expedited processing for certain employment-based petitions. If requested, USCIS guarantees 15 calendar day processing or it will refund the premium … Continue Reading

DOL Opinion Letter Clarifies Employer Responsibilities Regarding FMLA Leave Designation (US)

On March 14, 2019, the U.S. Department of Labor (“DOL”), Wage and Hour Division, released an opinion letter, FMLA2019-1-A, stating that employers cannot delay the designation of FMLA-qualifying leave or designate more than 12 weeks of leave (or 26 weeks of military caregiver leave) as FMLA leave.… Continue Reading

Federal Judge Reinstates EEO-1 Pay Data Collection Requirement – Impact on Employers Still Unclear (US)

On March 4, 2019, a federal court issued an order lifting the stay implemented by the White House Office of Management and Budget (“OMB”) regarding the pay data collection component of the EEO-1 report, holding that the OMB failed to demonstrate good cause for the stay. As we previously reported here, in 2016, the U.S. … Continue Reading

State Law Round-Up: Minimum Wage Hikes (IL, NJ, CA, NM); Michigan Paid Sick Leave; New York Employee Rights, New Jersey Leave and Benefits Expansion (US)

Minimum Wage Updates On January 17, 2019, New Jersey’s governor and state legislators agreed to a deal that will raise the state’s minimum wage to $15.00 by 2024. The current minimum wage in New Jersey is $8.85 an hour.  Under the new law, the state’s minimum wage will increase to $10.00 an hour on July … Continue Reading

Déjà Vu All Over Again: U.S. Department of Labor Previews New(-ish) FLSA Overtime Exemption Requirements (Again)

For years – spanning two Presidential administrations – employers have been awaiting long-anticipated updates to the overtime exemption regulations to the Fair Labor Standards Act (FLSA).  Since 2004, to be exempt from the FLSA’s overtime compensation requirements under the so-called “white collar” exemptions (e.g., executive, administrative, professional employees), employees must be paid on a salary … Continue Reading

“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 … Continue Reading

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

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 … Continue Reading

US Supreme Court to Reconsider Key Agency Deference Standard

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 … Continue Reading

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 … 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.  … Continue Reading

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 … 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 … Continue Reading

NLRB Reinstates Prior Test Determining Whether Workers Are Independent Contractors (US)

On January 25, 2019, the National Labor Relations Board returned in yet another area to a standard that existed before the “Obama Board.” In SuperShuttle DFW, Inc., the Board vacated the test it had adopted five years ago to determine whether a worker is an independent contractor or an employee for the purposes of the … Continue Reading

Two Recent Decisions Highlight Procedural Pitfalls in Employment Litigation (US)

Would-be plaintiffs in two employment decisions – one from the Fifth Circuit, one from the Ninth Circuit – were recently reminded that, no matter how solid the facts of their case, they can still lose on a technicality. The first case, Lee v. Venetian Casino Resort, LLC, considered whether a plaintiff’s Title VII claim was … Continue Reading

NLRB Issues Important Decision Narrowing What Constitutes “Protected Concerted Activity” (US)

Majority Rules That Skycap’s Complaint About Bad Tipping Was Not Protected Concerted Activity The National Labor Relations Board (“NLRB” or “Board”) kicked off 2019 with an important decision that significantly narrowed the standard for when an individual employee’s conduct will be found to be “protected concerted activity” under the National Labor Relations Act (“NLRA” or … Continue Reading

US Supreme Court Unanimously Rules in Favor of Workers, Holding Trucking Company’s Arbitration Agreement Exempt From Federal Arbitration Act

On January 15, 2019, the United States Supreme Court held in New Prime Inc. v. Oliveira that a trucking company could not compel its drivers, which it classified as independent contractors, to arbitrate their wage and hour claims against the company because Congress intended to exempt all interstate transportation workers from the Federal Arbitration Act … Continue Reading

Ninth and Eleventh Circuits: Reporting To Work Impaired, Failing Drug Test, And Failing To Request Accommodation Doom Employees’ ADA Discrimination Lawsuits

As most readers of this blog are aware, the Americans with Disabilities Act (“ADA”) and analogous state laws prohibit employers from discriminating against qualified employees (and applicants) based on known physical or mental disabilities, and also require employers to provide those employees with reasonable accommodations for their disabilities.  Although broad in their protections, these laws … Continue Reading

Supreme Court Upholds Parties’ Right To Contract In First Arbitration-Related Decision Of Term (US)

As the Supreme Court’s October 2018 term opened, we wrote about three significant cases on its docket involving arbitration, each of which are likely to have an impact on the arbitration of employment-related claims.  The Court issued its decision in the first of those cases on January 8, 2019.  In his first opinion since joining … Continue Reading

Uncertainty Remains As DC Circuit Weighs In On NLRA Joint Employer Standard (US)

Much attention over the past few years has been given to the ongoing saga concerning the standard applied by National Labor Relations Board (“NLRB” or “Board”) to determine when two unrelated business entities share sufficient control over a group of employees such that they may be deemed “joint employers” under the National Labor Relations Act … Continue Reading

Unionized Employers: NLRB Removes Key Hurdles for Deferring ULP Charges to Arbitration (US)

The National Labor Relations Board recently issued more good news for unionized employers. In a guidance memorandum last week, the Board’s General Counsel announced an updated approach that will help employers avoid litigating unfair labor practice charges filed by unions or union-represented employees who have filed grievances regarding the same underlying dispute.… Continue Reading

NLRB Issues New Strategic Plan and Provides More Time for Comment On Proposed Joint-Employer Rule (US)

On December 7, 2018, the National Labor Relations Board (“NLRB”) issued its 2019-2022 Strategic Plan, which focuses on four primary goals.  First, the Board targets a 20% decrease, collectively, in the time required to resolve unfair labor practice charges from filing to resolution.  This collective decrease is to be accomplished through incremental decreases of 5% … Continue Reading

Healthcare Worker’s Vaccine Refusal Not Immunized by Americans with Disabilities Act (US)

On December 7, 2018, a three-judge panel of the U.S. Court of Appeals for the Eighth Circuit unanimously held in Hustvet v. Allina Health System that an employer did not unlawfully terminate an employee who refused to receive a rubella vaccination.  The plaintiff, a healthcare specialist working with potentially vulnerable patients, requested an accommodation exempting … Continue Reading
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