NLRB Continues Trend to Protect Employer Property Rights

Coming on the heels of its decision in Bexar County Performing Arts Center Foundation d/b/a Tobin Center for the Performing Arts, 368 NLRB No. 46 (2019) in which the Board rebalanced the rights of property owners versus Section 7 rights of employees during a labor dispute, the National Labor Relations Board (NLRB) recently issued another pro-employer decision.

Canada Implements Significant Reforms to Basic Federal Employment Standards

Canadian employers subject to federal regulation will want to take note of changes to the Canada Labour Code that came into force on September 1, 2019. These reforms apply to a large number of minimum employment standards with vacation, breaks, leaves of absences, and predictive scheduling impacted, among others. As a result of the far-reaching nature of the changes, they will have a significant impact on federally regulated workplaces.

Illinois Can See Clearly Now: State Legislates Workplace Transparency

Our June  2019 article “discussed four new bills targeting equity, transparency, and discrimination, including the Workplace Transparency Act (WTA), which was awaiting the signature of Governor J.B. Pritzker. As expected, Governor Pritzker signed Senate Bill 75—a sweeping piece of legislation that places new restrictions on Illinois employers and is designed to prevent harassment and discrimination in the workplace.

Texas’ Anti-SLAPP Regime Does Not Apply in Federal Diversity Cases, Says the Fifth Circuit

A recent decision from the Fifth Circuit Court of Appeals in Klocke v. Watson, No. 17-11320 (August 23, 2019), appears to have answered a perennial jurisdictional question that had split federal district courts in Texas for several years: Are motions to dismiss pursuant to the Texas Citizens Participation Act (TCPA) allowed in federal court?

Michigan Legislature Considers Package of Bills Addressing Wage Theft, Independent Contractors, and Noncompetes

On August 29, 2019, legislators from the Michigan House of Representatives announced an ambitious package of 12 bills aimed at creating new criminal and civil penalties to combat employers that fail to properly pay wages and overtime pay. The legislation would also establish enhanced protections and penalties under Michigan’s whistleblower statute and create new civil remedies against employers for overzealous enforcement of noncompete agreements and for misclassifying employees as independent contractors.

ICE Begins STEM OPT Worksite Inspections

There have been an increasing number of reports that Immigration and Customs Enforcement (ICE) has begun conducting workplace site visits for F-1 students employed pursuant to optional practical training (OPT) in the science, technology, engineering, and math (STEM) fields. While ICE has had the authority to conduct on-site inspections since 2016, it has not exercised that authority until recently. Given this new development, companies that employ STEM OPT workers are encouraged to be prepare in case ICE visits their workplaces.

Workplace Preparation for Natural Disasters in View of Hurricane Dorian

As the East Coast braces for yet another hurricane, we should contemplate the impact that natural disasters can have on employees and employers, both personally and professionally. While individuals prepare their homes and employers prepare their businesses for the physical damage, employers will benefit from also assessing the practical and legal implications surrounding the unpredictable events Mother Nature throws our way—and planning accordingly.

Minnesota DLI Issues Updated FAQ on Wage Theft, Other Employer Expectations

In late July 2019, the Minnesota Department of Labor and Industry (DLI) released an update to its FAQ on Minnesota’s new wage theft law, including 37 new questions and answers to further clarify what is expected of employers under the statute. The new FAQ provides important guidance on several key points, while at the same time leaving other important questions unanswered. The following is a summary of several of the most commonly asked questions and  DLI’s answers.

The Beginning of the End for 401(k) Class Actions? Ninth Circuit Enforces Individual Arbitration

In Dorman v. Charles Schwab Corp., No. 18-15281 (August 20, 2019), the Ninth Circuit Court of Appeals recently held that a 401(k) plan participant was required to individually arbitrate his claims regarding the plan’s fees and investment options, pursuant to the plan’s arbitration provision.

Solving a Chronic Problem: IRS Expands Preventive Care to Include Certain Chronic Conditions

On July 17, 2019, the Internal Revenue Service (IRS) and the Department of the Treasury in Notice 2019-45 announced the expansion of preventive care benefits under qualifying high-deductible health plans (HDHPs). This expansion allows individuals to retain their eligibility to make contributions to health savings accounts (HSA) when covered under HDHPs that provide for first-dollar coverage for certain chronic conditions.

2020 Drug Coupon Rule Dropped Due to Implementation Concerns

Employer plans will still be able to exclude the value of drug manufacturer coupons from annual out-of-pocket maximums, even when no generic equivalent is available, under new guidance from the Department of Labor, Department of Health and Human Services (HHS), and Department of Treasury. These exclusions, or copay accumulators, are built into many employer plans.

What the DOL Guidance on Nondiscretionary Bonuses Means for Nonexempt Employees

A common challenge for employers of hourly or nonexempt employees who receive quarterly or annual nondiscretionary bonuses is how to factor such bonuses into the employees’ regular rates of pay and calculate the appropriate overtime premiums due to those employees who work more than 40 hours in a workweek. In July 2019, the U.S. Department of Labor’s Wage and Hour Division (WHD) issued Opinion Letter FLSA2019-7, which discusses how employers may account for overtime pay as part of annual and quarterly nondiscretionary bonuses.

Just Keep Driving: Minnesota Courts Continue to Block ADA Title III “Drive-By” Suits

In early 2018, Minnesota federal courts issued two decisions dismissing so-called “drive-by” disability access lawsuits under Title III of the Americans with Disabilities Act (ADA). That trend has continued in 2019. In fact, in just the past two months, courts in Minnesota have dismissed, in whole or in part, no fewer than six Title III cases, again reminding business owners that liability is far from automatic in these lawsuits.

 

First Circuit Rules Inconsistent SSDI Statements Doom ADA Claim

In Pena v. Honeywell International, Inc., issued on July 22, 2019, the U.S. Court of Appeals for the First Circuit denied a former employee’s petition for rehearing en banc of the court’s April 26, 2019, decision addressing whether her inconsistent statements on her Social Security Disability Insurance (SSDI) benefits application and complaint precluded her from bringing a claim pursuant to the Americans with Disabilities Act (ADA).