Insights Archive - Ogletree Deakins

Don’t Slip Up: When Are California Employers Required to Pay for Employees’ Shoes?

A hot-button issue in California is whether an employer is required to pay for or reimburse an employee for shoes that are required as a condition of employment. A recent ruling by the California Court of Appeal highlights the complexity of the issue and lack of concrete guidance on a critical question: whether California workplace safety law requires an employer to pay for nonspecialty safety shoes, such as generic steel-toe boots, that the employer allows the employee to wear off the jobsite.

Karen F. Tynan Sacramento Author

Robert C. Rodriguez Sacramento Author

Beltway Buzz, July 19, 2019

The Beltway Buzz is a weekly update summarizing labor and employment news from inside the Beltway and clarifying how what’s happening in Washington, D.C. could impact your business.

James J. Plunkett Washington D.C. Author

Pittsburgh’s Paid Sick Days Act Is Now on Course to Take Effect

After a lengthy journey through the Pennsylvania legal system, the City of Pittsburgh’s Paid Sick Days Act is now on course to go into effect. The Act was signed by the Pittsburgh mayor in 2015, but its implementation was delayed due to legal challenges.

Jennifer G. Betts Pittsburgh Author

Substance, Not Form, Determines Whether Employee Meals Have Noncompensatory Business Reason, IRS Warns

In a technical advice memorandum (TAM 201903017) released on January 18, 2019, the Internal Revenue Service (IRS) provided guidance on whether employer-provided meals and snacks are includable in employee income and subject to employment tax. The memorandum, which cites a number of IRS rulings on this topic, serves as a forewarning to employers of the limitations of providing free meals to employees.

Michael K. Mahoney Morristown Author

Alexandra L. Orsini Washington D.C. Author

August 2019 Visa Bulletin Shows Extensive Retrogression Across Employment-Based Categories

The August 2019 Visa Bulletin, released by the U.S. Department of State earlier this month, shows substantial retrogression affecting employment-based categories worldwide. The State Department expects the retrogression to be short lived and anticipates that the final action dates should return to those listed in the July 2019 Visa Bulletin by the start of fiscal year 2020 in October 2019.

Melissa Manna Raleigh Author

NLRB Explains When Granting Benefits to Nonunion Employees and Withholding the Same From Union Workers Can Be Lawful

On May 7, 2019, the National Labor Relations Board issued a decision that will be welcomed by employers desiring to maintain differences in the benefits provided to their union and nonunion employees.

Bernard J. Bobber Milwaukee Author

Jesse R. Dill Milwaukee Author

New HRA Rules: What Employers Need to Know

Starting in 2020, employers will be able to offer health reimbursement arrangements (HRAs) that work in conjunction with individual coverage or Medicare without running afoul of the Affordable Care Act’s (ACA) market reform rules.

Timothy J. Stanton Chicago Author

Hillary M. Sizer Chicago Author

Eighth Circuit Holds Independent Agreements for Attorneys’ Fees in FLSA Settlements Are Not Subject to Judicial Review

Last month, in Barbee v. Big River Steel, LLC, No. 18-2255 (June 20, 2019), the United States Court of Appeals for the Eighth Circuit held that an independent agreement for attorneys’ fees in connection with a Fair Labor Standards Act (FLSA) settlement does not require court approval—without intimating any position on the current circuit split as to whether FLSA settlements in general require judicial approval.

Monica L. Lacks Cleveland Author

Texas Legislative Roundup: New Laws Impacting Employers

The Texas Legislature’s 86th session adjourned on May 27, 2019, and there is little likelihood that the governor will call a special session. The legislature primarily focused on educational reforms this year. Regarding employment matters, most observers expected the legislature to adopt laws preempting any attempt by municipalities to pass paid sick leave laws. While the legislature failed to pass any such law, they did pass other laws impacting the employer-employee relationship.

Tiffany Cox Stacy San Antonio Author

Lawrence D. Smith San Antonio Author

Beltway Buzz, July 12, 2019

The Beltway Buzz is a weekly update summarizing labor and employment news from inside the Beltway and clarifying how what’s happening in Washington, D.C. could impact your business.

James J. Plunkett Washington D.C. Author

Bill to Exclude California Employees from CCPA Passes Senate Committee With Changes

On July 9, 2019, the California Senate Judiciary Committee passed Assembly Bill 25 (AB 25), but only after certain changes were made to quell opposition to the bill by labor groups. The bill was originally drafted to exclude employees and job applicants from the definition of “consumer” under the California Consumer Privacy Act of 2018 (CCPA).

Sean Paisan Orange County Author

Congress Considers Removing Country Caps for Employment-Based Immigrant Visas and Proposes Changes to H-1B Visa Program

On July 10, 2019, the U.S. House of Representatives passed H.R. 1044, the Fairness for High-Skilled Immigrants Act of 2019, by a vote of 365 to 65. The bill is intended to reduce lengthy immigrant visa (green card) wait times by eliminating per-country caps for employment-based green cards. In addition, senators have reportedly reached an agreement on a version of a companion bill (S. 386) in the U.S. Senate that presently includes an amendment imposing tighter restrictions on recruitment and creating new reporting requirements for H-1B visa sponsors.

Tieranny L. Cutler Raleigh Author

Marissa E. Cwik Raleigh Author

Andrea C. Davis Atlanta Author

Melissa Manna Raleigh Author

EEOC Has Released EEO-1 Component 2 Upload File Specifications

The U.S. Equal Employment Opportunity Commission (EEOC) has released its Upload File Specifications for the 2017 and 2018 EEO-1 Component 2 reports. Given the number of data items required in the Component 2 reporting, the EEOC has designed a narrower file layout with the goal of making it easier for filers to create upload files.

Kiosha H. Dickey Columbia Author

New York Enacts Tougher Laws on Pay Equity and Salary History Inquiries

As we previously reported, the New York State Senate and Assembly recently passed Senate Bill 5248A and Senate Bill 6549. Governor Andrew Cuomo signed both bills, and both became law on July 10, 2019.

Simone R.D. Francis St. Thomas
New York City Author

Shabri Sharma New York City Author

State-Law Ramifications of the Supreme Court’s Decision in Fort Bend County, Texas v. Davis: Massachusetts and Rhode Island as Case Studies

In Fort Bend County, Texas v. Davis, the Supreme Court of the United States held that the requirement in Title VII of the Civil Rights Act that an employee file a charge of discrimination with the Equal Employment Opportunity Commission before commencing an action in court is not jurisdictional.

Francesco A. DeLuca Boston Author

Lisa Stephanian Burton Boston Author

Separating the Good From the Bad: UK Supreme Court Clarifies “Blue Pencil” Test in Restraint of Trade Cases

On July 3, 2019, in a long-awaited judgment the Supreme Court of the United Kingdom clarified the correct approach to deciding whether words can be severed from a post-employment covenant to leave an employee bound by the remainder of the covenant.

Justin T. Tarka London Author

Taking Vacation While on Medical Leave: Massachusetts Court Rules on Liquidated Damages Under the FMLA

On June 5, 2019, the Massachusetts Supreme Judicial Court (SJC) issued a decision emphasizing that an employer’s well-designed and thorough internal investigations made prior to a termination decision can provide a strong defense to claims, but less carefully conducted investigations do not.

Lisa Stephanian Burton Boston Author

Mark H. Burak Boston Author

Supreme Court Rules on FOIA and the Protection of Sensitive Company Information

A recent Supreme Court case determined that private commercial and financial information that is transmitted to the federal government under an assurance of privacy is considered “confidential” and not subject to disclosure under the Freedom of Information Act (FOIA). The decision could provide some valuable safeguards for employers concerned about protecting sensitive data from public disclosure.

James J. Plunkett Washington D.C. Author

Oregon Enacts Sweeping #MeToo Law

On June 11, 2019, Governor Kate Brown signed into law the Oregon Workplace Fairness Act (SB 726), which will significantly impact all Oregon employers. The Act addresses concerns of the #MeToo movement by imposing strict requirements on how Oregon employers respond to complaints of harassment and discrimination. The legislation also significantly increases the statute of limitations within which an employee may assert a claim of discrimination, from one year to five years.

James M. Barrett Portland (OR) Author

Paul E. Cirner Portland (OR) Author

New York Poised to Enact Tougher Laws on Pay Equity and Salary History Inquiries

Continuing the trend of substantial and expansive legislative changes in employment law, the New York State Senate and Assembly have passed Senate Bill 5248A and Senate Bill 6549. The first bill, S5248A, will prohibit wage differentials based on any protected class and will take effect 90 days after being signed by Governor Andrew Cuomo. The second, S6549, will prohibit private sector employers from asking for wage or salary history as a requirement for a job interview, job application, job offer, or promotion and will take effect 180 days after being signed by Governor Cuomo. The governor is expected to sign the bills into law.

Simone R.D. Francis St. Thomas
New York City Author

Shabri Sharma New York City Author

FAA Preempts New York’s Prohibition on Arbitration of Sexual Harassment Suits

In response to the #MeToo movement, a number of states have adopted legislation addressing sexual harassment claims. These include Maryland, New Jersey, New York, and Washington. Some of these state statutes attempt to ban or restrict arbitration for sexual harassment claims.

Joseph B. Cartafalsa New York City Author

Christopher C. Murray Indianapolis Author

Maine Expands Antidiscrimination Law and Restricts Noncompete Agreements

Lawmakers in Maine closed out the 2019 legislative session with a flurry of activity. Legislators passed more than 500 bills this year, including 50 on the final day, with many targeting the state’s employment laws.

Steven Silver Portland (ME) Author

EEOC Provides Guidance on EEO-1 Component 2 Filing

On July 1, 2019, the Equal Employment Opportunity Commission (EEOC) updated the Component 2 filing site with answers to frequently asked questions (FAQs) and other materials to assist filers with the submission of Component 2 data. Here are a few highlights from the new materials.

Kiosha H. Dickey Columbia Author

James A. Patton, Jr. Birmingham Author

Colorado Becomes 13th State to Pass “Ban the Box” Legislation

On May 28, 2019, Colorado governor Jared Polis signed into law the Colorado Chance to Compete Act (House Bill 19-1025), more commonly known as “ban the box” legislation. The recently signed Act is another example of pro-employee legislative change that has taken place since the Democrats gained control of the state legislature in 2018.

Austin E. Smith Denver Author

Chelsea Hutchison Denver Author

Jennifer P. Woodruff Greenville Author

Supreme Court Keeps Auer, but Dilutes Its Power

On June 26, 2019, in Kisor v. Wilkie, the Supreme Court of the United States declined to overrule its prior decisions in Auer v. Robbins, 519 U.S. 452 (1997) and Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945). These cases introduced the practice of judicial deference to a federal agency’s interpretation of an ambiguous regulation. Many courts and scholars criticize Auer deference for various reasons and believed that the Supreme Court’s decision in Kisor would overrule Auer. Instead, the Court upheld the longstanding precedent, but imposed new “guidance” on when to apply Auer deference.

John F. Martin Washington D.C. Author

Gwendolyn K. Nightengale Washington D.C. Author

Time’s Up: Connecticut Employers to Prepare for New Sexual Harassment Training and Protections

On June 18, 2019, Governor Ned Lamont signed into law Connecticut’s new sexual harassment prevention legislation, known as the Time’s Up Act. The law significantly broadens sexual harassment training requirements, extending them to all employers in the state, and toughens penalties for noncompliance. The law also enhances protections for employees who complain about sexual harassment in the workplace.

Kelly M. Cardin Stamford
New York City Author

Marc L. Zaken Stamford Author

Supreme Court to Hear DACA Appeal

The Supreme Court of the United States has agreed to hear the appeals over the termination of the Deferred Action for Childhood Arrivals (DACA) program during its next term. In its order, the Court consolidated three pending DACA appeals and granted one hour for oral argument. The Court is expected to decide, once and for all, whether the Trump administration can end the DACA program.

Melissa Manna Raleigh Author

Oregon Governor Signs Sweeping Union Rights Law Affecting Public Employers

On June 20, 2019, Oregon governor Kate Brown signed House Bill (HB) 2016 into law. The legislation brings sweeping changes for public sector employers and unions in an effort to increase unions’ direct access to represented employees at the workplace.

Ursula A. Kienbaum Portland (OR) Author

A Welcome Expansion: IRS Resuscitates Determination Letter Program

Beginning September 1, 2019, employers that sponsor cash balance plans and certain merged plans can sleep easier. Revenue Procedure 2019-20, issued by the Internal Revenue Service (IRS) on May 1, 2019, opens the IRS’s determination letter program for individually designed “statutory hybrid plans” and certain “merged plans.” Plan sponsors will recall that beginning January 1, 2017, the IRS’s determination letter program for individually designed plans was significantly curtailed by Revenue Procedure 2016-37. Revenue Procedure 2016-37 provided that plan sponsors of individually designed plans could seek a determination letter from the IRS only for initial plan qualification, plan terminations, or other circumstances to be provided by the IRS at a later time.

David S. Rosner Washington D.C. Author

Christopher C. Guthrie Atlanta Author

Beltway Buzz, June 28, 2019

The Beltway Buzz is a weekly update summarizing labor and employment news from inside the Beltway and clarifying how what’s happening in Washington, D.C. could impact your business.

James J. Plunkett Washington D.C. Author

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