March 2017 – Page 2

NLRB General Counsel Issues Memo on the Supreme Court’s Pending Class Action Waiver Decision

March 6, 2017/in HR Alerts

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January 26, 2017

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The U.S. Supreme Court recently announced its intention to review the split of authority among circuit courts regarding class action waivers in arbitration agreements. In the meantime, employers have wondered whether similar cases currently in progress with the National Labor Relations Board (“NLRB”) will be suspended pending the Supreme Court’s decision. The NLRB’s general counsel issued a memo instructing regional directors on how to proceed with similar cases.

Second Circuit: Employers May Be Responsible for Determining if FMLA Leave Applies

March 6, 2017/in HR Alerts

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All Employers with NY, CT, and VT Employees

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February 9, 2017

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The Second Circuit recently stated that employers are responsible for requesting additional information from an employee in order to determine if the employee is eligible for FMLA leave.

Third Circuit: Employer’s Good Faith Belief that FMLA Leave was Misused May Defeat Retaliation Claim

March 6, 2017/in HR Alerts

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All Employers with DE, NJ and PA Employees

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January 30, 2017

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On January 30, 2017, the Third Circuit Court of Appeals stated that an employer’s good-faith belief that an employee has abused FMLA leave could potentially defeat an FMLA retaliation claim, even if the employer’s belief is ultimately incorrect. This decision aligns with several other circuit courts that have previously found such a good-faith belief could be a non-discriminatory reason for terminating an employee.

Fourth Circuit: Unique Six Factor Test to Determine Joint Employer Status

March 6, 2017/in HR Alerts

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All Employers with MD, NC, SC, VA and WV Employees

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January 25, 2017

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In Salinas v. Commercial Interiors Inc., the Fourth Circuit Court of Appeals recently established a unique six factor test for determining joint employer status that aligns with the Department of Labor’s broad interpretation of joint employer status, and rejected the more narrow “economic realities” test used in other circuit courts.

California: DFEH Affirms “100% Healed” Policies Violate Employer’s Duty to Accommodate

March 6, 2017/in HR Alerts

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All Employers with CA Employees

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February 14, 2017

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California’s Department of Fair Employment and Housing (“DFEH”) recently obtained a $290,000 settlement and reinstatement with reasonable accommodation on behalf of a high school custodian who was fired after sustaining an injury. This settlement reinforces DFEH’s position that blanket policies requiring employees to be “100% healed” before they return to work violate the employer’s duty to reasonably accommodate an employee disability.

California: Commissioned Employees Must be Specifically Paid for Rest Breaks

March 6, 2017/in HR Alerts

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All Employers with CA Employees

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February 28, 2017

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Current California wage order regulations provide non-exempt employees a minimum 10-minute rest break for every four hours worked, or major fraction thereof. These breaks must be counted as hours worked, must be paid at the employee’s hourly rate and cannot be deducted from employee wages. A

D.C.: Credit Info Banned in Employment Decisions; Upcoming, Expansive Amendment to Paid Family and Medical Leave Law

March 6, 2017/in HR Alerts

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All Employers with Washington D.C. Employees

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Spring 2017 and July 1, 2020

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Washington D.C. Mayor Muriel Bowser approved two new bills that will significantly impact employers. These bills (1) restrict employers from inquiring into or using credit history when making employment decisions and (2) expand the statewide Paid Family and Medical Leave Law.

New York: Upcoming Regulations for Direct Deposit/Debit Payroll Cards Revoked

March 6, 2017/in HR Alerts

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All Employers with NY Employees

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February 16, 2017

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New York’s strict new debit card and direct deposit wage payment regulations, originally slated to go into effect March 7, 2017, have now been invalidated by the New York State Industrial Board of Appeals (“IBA”). The IBA stated that the regulations infringed on banking regulations that set bank fees, and that the New York State Department of Labor (“NYSDOL”) had overstepped its jurisdiction in applying these rules. The IBA also pointed to numerous similar bills introduced in the New York legislature over the years, citing the bills’ failure to come to fruition as a sign that the current regulations controlling wage payments are already satisfactory.

Ohio: New Bill Limits Employer Control of Guns at Work

March 6, 2017/in HR Alerts

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All Employers with OH Employees

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March 19, 2017

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Effective March 19, 2017, Senate Bill 199 will now limit an employer’s ability to control the presence of guns at the worksite. Specifically, the Bill allows licensed gun owners to keep firearms in their own vehicles while parked on private employer property. It also allows licensed owners to bring concealed handguns into airport, institutes of higher education, and some government buildings under certain, specific conditions.

Oregon: New State OSHA Drug Testing Regulations

March 6, 2017/in HR Alerts

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All Employers with OR Employees

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May 1, 2017

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Federal OSHA’s regulations limiting automatic drug testing have been in effect for some time. Oregon’s state OSHA plan’s Administrative Order 6-2016, originally filed in November of 2016, is modeled on the federal OSHA regulation and is set to go into effect on May 1, 2017. Similar to the federal OSHA regulation, the Administrative Order is intended to improve tracking of workplace injuries and illnesses.