New Wage and Hour Opinion Letters from the U.S. Department of Labor

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Applicable Employers under the FLSA and FMLA

EFFECTIVE

August 28, 2018

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The U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD) recently issued six opinion letters related to compliance with the Fair Labor Standards Act (FLSA) and the Family Medical Leave Act (FMLA). The opinion letters are meant to provide clarity on employee rights and employer obligations as interpreted by the DOL.

USCIS Issues Revised Final Guidance on Unlawful Presence for Students and Exchange Visitors

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All Employers

EFFECTIVE

August 9, 2018

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The U.S. Citizenship and Immigration Services (USCIS) published new guidance for individuals currently classified under student (F nonimmigrant), exchange visitor (J nonimmigrant), or vocational student (M nonimmigrant) status visas. The revised policy changes how USCIS calculates unlawful presence and how this is accrued for students and exchange visitors who fail to maintain their F, J, or M visitor status visas. Unlawful presence accrues any time a nonimmigrant remains in the U.S. beyond the expiration of their permitted stay period. Accruing more than 180 days of unlawful presence may result in a 3-year ban on entering the U.S. in the future.

Seventh Circuit: Fair Credit Reporting Act Pre-Adverse Action Requirements Are Actionable

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Employers with IL, IN, WI Employees

EFFECTIVE

August 29, 2018

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Contrary to the Ninth Circuit’s recently ruling, the Seventh Circuit Court of Appeal stated that an employer’s failure to provide a copy of an applicant’s background check report and notice of rights under the Fair Credit Reporting Act (FCRA) gives an applicant standing to sue the employer, because it amounts to an allegation of being deprived a chance to benefit. Employers are required to provide the report and notice to applicants under the FCRA so that they may have the opportunity to contest the accuracy or completeness of the information.

Ninth Circuit: The Federal Railway Labor Act Does Not Necessarily Preempt State Leave Laws

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All Employers with AK, AZ, CA, HI, ID, MT, NV, OR, WA, Guam, and Northern Mariana Islands Employees

EFFECTIVE

August 1, 2018

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(888) 378-2456

In Alaska Airlines v. Shurke, the Ninth Circuit stated that because an employee’s state law claim did not arise entirely from or require interpretation of the employee’s collective bargaining agreement (CBA), the employee’s Washington Family Care Act (WFCA) claim was not preempted.

Eleventh Circuit: Joint Employer Standard Clarified Under the FLSA and Common Law

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All Employers with AL, FL, and GA Employees

EFFECTIVE

August 2, 2018

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(888) 378-2456

In Garcia-Celestino v. Ruiz Harvesting, Inc., the Eleventh Circuit distinguished the joint employer standard under the Fair Labor Standards Act (FLSA) and common law. Each standard turns on the applicable definition of “employee” and “control,” but are not the same. There, migrant workers under the H-2A visa program filed suit against their employer and a citrus grove owner for minimum wage violations under the FLSA and for breach of their contract, which was based on federal immigration statutes and regulations. The court looked at whether or not the citrus grove owner was a joint employer.

California: New Guidance Regarding the Fair Pay Act and Salary History Inquiry Ban

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All Employers with CA Employees

EFFECTIVE

January 1, 2019

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(888) 378-2456

AB 2282, the Fair Pay Act Bill, takes effect on January 1, 2019 and clarifies California’s Fair Pay Act and salary history inquiry ban. Under California’s salary history ban, employers are prohibited from taking salary history into account when setting pay rates and are required to provide applicants with a pay scale for the position being applied to upon receipt of reasonable request. The new Bill makes clear that:

Washington, D.C.: ADA Accommodations May Be Required to Alleviate Pain While Working

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All Employers with Washington, D.C. Employees

EFFECTIVE

August 1, 2018

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(888) 378-2456

In Hill v. Associates for Renewal in Education, Inc., the D.C. Circuit Court stated that although an ADA accommodation may not be necessary for an employee to perform his job, it may be required to alleviate an employee’s pain while working. There, a teacher with a leg prosthesis and leg injury requested an accommodation for pain that occurs when walking up stairs to his classroom and standing for long periods. Initially, the request was accommodated, but later the employer withdrew the accommodations. The teacher subsequently filed a claim alleging disability discrimination and a hostile working environment based on the denial for an accommodation.

Delaware: New Sexual Harassment Protections and Training Requirements

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Employers with 4 or more DE Employees

EFFECTIVE

January 1, 2019

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(888) 378-2456

Governor Carney recently signed HB 360 implementing new sexual harassment protections and employee training requirements.

Who does the bill apply to? The bill applies to employers with 4 or more employees. It also applies to state employees, unpaid interns, applicants, joint employees, and apprentices.

What does the bill prohibit? The bill prohibits sexual harassment, including unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when (1) it is explicitly or implicitly a term or condition of employment, (2) submission or rejection of such conduct is used as a basis for employment decisions, or (3) it has the purpose or effect of unreasonably interfering with an employee’s work performance or creating an intimidating, hostile, or offensive working environment.

Illinois: New Accommodations for Lactating Mothers

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Employers with 5 or more IL Employees

EFFECTIVE

August 21, 2018

QUESTIONS?

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(888) 378-2456

Governor Rauner recently signed HB 1595 revising employer requirements for accommodating lactating mothers. Specifically, employers must now provide “reasonable break time” each time an employee needs to expresses milk for up to one year after the child’s birth, unless doing so would create an “undue hardship” on the employer. Employers have the burden to prove an undue hardship based on the nature and cost of the accommodation, overall financial resources of the facility and employer, and type of operation of the employer. Further, the employee’s break time “may” run concurrently with break time already provided, but is not required to.

Massachusetts: Significant New Limitations on Noncompete Agreements

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All Employers with MA Employees

EFFECTIVE

October 1, 2018

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(888) 378-2456

Governor Baker recently signed “An Act Relative to Economic Development in the Commonwealth” that significantly changes the way Massachusetts employers may use noncompete agreements. The following are key changes to be aware of.