Sixth Circuit Considers Whether Comparator Info is Discoverable in a Failure to Promote Case

In Jones v. Johnson, No. 18-2252 (January 9, 2020), the Sixth Circuit Court of Appeals considered the discoverability of comparator information in a case involving an allegation that an employer failed to promote an employee. The court reversed a district court’s decision in favor of an employer on the grounds that it had improperly limited the scope of discovery.

California’s AB 5 Enjoined as to Motor Carriers; Federal Court Enters Preliminary Injunction on FAAAA Preemption Claim

On January 16, 2020, the U.S. District Court for the Southern District of California entered an order granting a preliminary injunction requested by the California Trucking Association (CTA), which was represented by Ogletree Deakins shareholders Robert R. Roginson, Alexander M. Chemers, and Spencer C. Skeen, in a matter challenging Assembly Bill (AB) 5 as to motor carriers operating in California.

The NLRB’s Revised Representation Case Procedures, Part I: The New Pre-Election Procedures

On December 18, 2019, the NLRB published final rules changing and clarifying many of the representation case procedures established in the 2014 amendments. The rules, which will take effect April 16, 2020, state unequivocally that “the Board is not rescinding the 2014 Amendments in their entirety.” Rather, the 2019 rules address issues of fairness and statutory compliance the 2014 amendments altered or did not address.

Congress Looks to Secure Your Retirement Under the SECURE Act

In late December, Congress passed and President Donald Trump signed into law the Setting Every Community Up for Retirement Enhancement (SECURE) Act, the most sweeping retirement legislation since the Pension Protection Act of 2006. The Act, whose enabling legislation was included as part of a large government funding bill, contains many significant changes affecting employers and participants. Several provisions are effective immediately or retroactively, and others go into effect beginning in 2021.

USCIS to Begin Accepting Electronic Registrations on March 1, 2020

U.S. Citizenship and Immigration Services (USCIS) recently announced that it would begin accepting electronic registrations for H-1B candidates subject to the annual quota for fiscal year (FY) 2021 on March 1, 2020. The registration period will run through at least March 20, 2020. USCIS intends to notify selected registrants no later than March 31, 2020.

New Year, New Legislative Session Greets Florida Employers

Florida’s 2020 legislative session convened today in Tallahassee. This session will be one to watch, as over 20 workplace-related bills have already been filed, covering such topics as discrimination and retaliation, minimum wage and overtime pay, pre-employment verification and background screening, reemployment assistance, tax credits and refunds, job relocation, job protections for medical marijuana users, paid family leave, and heat illness prevention.

Department of Labor Issues Final Joint-Employer Regulation

On January 12, 2020, the Department of Labor’s Wage and Hour Division released the final changes to its joint-employer regulation under the Fair Labor Standards Act (FLSA). Originally proposed in April 2019, the updated regulation provides a clear, bright-line standard that is intended to clarify the circumstances in which a business entity may be determined to be a joint employer of another entity’s employees.

U.S. Senate Confirms OSHRC Nominees

On January 9, 2020, the U.S. Senate confirmed by voice vote both of President Donald Trump’s nominees to the Occupational Safety and Health Review Commission (OSHRC). Cynthia L. Attwood was first to be confirmed, followed shortly thereafter by Amanda Wood Laihow. The confirmations come as no surprise, as the U.S. Senate Committee on Health, Education, Labor and Pensions unanimously approved both candidates on December 3, 2019.

New Year Brings New Opinion Letters From DOL’s Wage and Hour Division

On January 7, 2020, the U.S. Department of Labor’s Wage and Hour Division (WHD) issued three opinion letters, two of which concerned the Fair Labor Standards Act (FLSA). (The other dealt with the Family and Medical Leave Act of 1993.) These opinion letters are the first of the new year and a new decade.

U.S.-Iran Tensions Raise Concerns for International Travel

On January 4, 2020, U.S. Customs and Border Patrol (CBP) detained and questioned more than 60 individuals of Iranian descent at a Washington State border crossing as they attempted to return to the United States from Canada. According to news reports, CBP officers questioned a number of the travelers about their families, military backgrounds, and ties to Iran.

Arbitration Decisions Matter: The NLRB Reverts to Prior Standards on Deferral to Arbitration and Pre-Arbitration Settlements

Arbitration is a strongly favored federal policy and generally can be relied on to resolve even statutory discrimination claims. This is not a novel concept in federal jurisprudence from the Supreme Court of the United States down (although California and the Obama-era National Labor Relations Board (NLRB) have and had a different view).

New York State to End Subminimum Wage for Miscellaneous Industries

On December 31, 2019, Governor Andrew M. Cuomo announced that he had directed the New York State Department of Labor (NYSDOL) to eliminate the subminimum wage for tipped workers of all employers covered by the Minimum Wage Order for Miscellaneous Industries and Occupations. The governor’s announcement came on the heels of a recently released NYSDOL report that found that wage underpayment in the tip system disproportionately affected women, minorities, and immigrants. Employers that fall under this wage order include nail salons, hair salons, car washes, parking garages, tow truck companies, pet groomers, and tour guide agencies. The order impacts over 70,000 employees in New York.

OSHA Doubles Down on National Emphasis Program on Amputations in Manufacturing Industries

The Occupational Safety and Health Administration (OSHA) recently released an updated National Emphasis Program (NEP) to focus enforcement efforts on amputation hazards in manufacturing industries. It replaces the previous NEP, released in August 2015, which had expired on September 30, 2019. The new NEP will expire on December 10, 2024.

. . . 3, 2, 1 Happy New Year! Countdown to 2020’s 10 New California Employment Laws

As 2019 winds down, employers operating in California will not want to forget that January 1, 2020, rings in several new California laws affecting the workplace. Here’s a New Year’s Eve countdown of 10 important new California employment laws taking effect in 2020 and actions employers can take before the ball falls in Times Square.

New USCIS Policy Guidance Alters Criminal Sentence Evaluation, Clarifies Definition of “Good Moral Character”

U.S. Citizenship and Immigration Services (USCIS) recently adopted new policy guidance altering the way immigration officers evaluate criminal sentences and make good moral character determinations. These changes may impact a foreign national’s eligibility for certain immigration benefits, including admissibility as a visa holder, permanent resident, or naturalized citizen.