Insights Archive - Ogletree Deakins

Failure to Provide Employee With Adequate Pumping Breaks and Accommodations Led to $1.5 Million Verdict

In March 2010, as part of the passage of the Affordable Care Act, the Fair Labor Standards Act (FLSA) was amended to require most employers to provide nonexempt employees “reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk”; and “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.”

Christine Bestor Townsend Milwaukee Author

Stacy M. Bunck Kansas City Author

Is Telecommuting a Reasonable Accommodation in Ohio?

In the recently issued decision in McDaniel v. Wilkie, the U.S. District Court for the Northern District of Ohio considered whether telecommuting constitutes a reasonable accommodation under the Americans with Disabilities Act (ADA).

Natalie M. Stevens Cleveland Author

New Jersey Expands Family Leave Laws

On February 19, 2019, New Jersey Governor Phil Murphy signed legislation that amends and significantly expands New Jersey’s existing Family Leave Act (NJFLA) and Family Leave Insurance law (NJFLI).

Michael Nacchio Morristown Author

Mark Diana Morristown Author

Michigan Attorney General Asked to Issue Formal Opinion on the Constitutionality of the “Adopt and Amend” Process Used to Enact Paid Medical Leave and Minimum Wage Laws

Employers in Michigan have been on a roller coaster ride over the last several months regarding new paid sick leave and minimum wage requirements.

Lori K. Adamcheski Detroit (Metro) Author

The Practical NLRB Advisor: Winter 2019

Ogletree Deakins’ Traditional Labor Relations Practice Group is pleased to announce the publication of the winter 2019 issue of the Practical NLRB Advisor.

Eric C. Stuart Morristown Author

C. Thomas Davis Nashville Author

Personal Data: French Data Protection Authority Levies €50 Million Fine

On January 21, 2019, a select panel of the French data protection authority, CNIL, which has the power to impose sanctions, fined a major technological services provider €50 million following its failure to comply with the obligations provided for in the General Data Protection Regulation (GDPR).

Cécile Martin Paris Author

USCIS Resumes Premium Processing for All H-1B Petitions Filed on or Before December 21, 2018

Beginning February 19, 2019, U.S. Citizenship and Immigration Services (USCIS) will resume premium processing for all categories of H-1B petitions that were filed on or before December 21, 2018.

Melissa Manna Raleigh Author

Stephen H. Smalley Raleigh Author

Section 503–Focused Review Letters Anticipated to Be Issued Soon

In August 2018, the Office of Federal Contract Compliance Programs (OFCCP) issued Directive 2018-04, which notified contractors that it was “in the process of implementing a comprehensive initiative that seeks to ensure compliance with equal employment opportunity and anti-discrimination regulations.”

Laura R. Garger Stamford
Birmingham Author

T. Scott Kelly Birmingham Author

Illinois’s Valentine’s Day Gift to Employees: A $15 Minimum Wage

On February 14, 2019, the Illinois legislature passed Senate Bill 0001 (SB0001), which amends the Illinois Minimum Wage Law and the Illinois Income Tax Act.

Jennifer L. Colvin Chicago Author

Joseph T. Charron Chicago Author

California Bill Proposes Three-Year Statute of Limitations for Employment Claims

California Assembly Bill 9 (AB 9), sponsored by Assembly Members Eloise Reyes, Laura Friedman, and Marie Waldron, would expand employee protections related to harassment and discrimination in the workplace.

Karen F. Tynan Sacramento Author

Paul M. Smith Sacramento Author

Beltway Buzz, February 15, 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

Through the Veil: OFCCP’s Transparency Results in Even Minor Contractor Violations Being Published by the Agency

Recently, the Office of Federal Contract Compliance Programs (OFCCP) began posting in its Freedom of Information Act (FOIA) Library links to conciliation agreements between the agency and federal contractors that contain only material technical violations.

Lauren B. Hicks Atlanta Author

Leigh M. Nason Columbia Author

The “Fake President” Fraud: What It Is and How Multinational Companies Can Protect Themselves

Have you heard of the “fake president” fraud? Despite the name, it has nothing to do with politics; it is a worldwide financial scam that has affected hundreds of multinational companies, especially companies in Europe.

Rebecca L. Marks Boston Author

This Valentine’s Day, Fall in Love With These Hiring Practices

The hiring process can be one of the most stressful steps of any employment relationship. As the employer, you are opening your doors to somebody who is hopefully going to contribute to your company’s success. Moreover, hiring is a process that requires both time and money. Thus, employers often want to expedite the hiring process.

Jesse R. Dill Milwaukee Author

California Court of Appeal Identifies Triggers for Reporting Time Pay Obligation

In a ruling that will have a significant impact on the retail and restaurant industries, among others in California, the California Court of Appeal ruled that a retail employer’s call-in scheduling policy—in which employees were required to call the employer in advance of a shift to find out if they needed to show up for

Jennifer L. Katz Los Angeles Author

Jill L. Schubert Sacramento Author

South Carolina Court of Appeals Weighs in on South Carolina’s Political Opinions Statute, Approves Discharge of Employee for Excessive Personal Use of Company Phone and Laptop

In Owens v. Crabtree, Opinion No. 5616 (January 16, 2019), the South Carolina Court of Appeals held that a company’s termination of an employee for using company devices, on company time, to oppose a local building project that the company had a financial stake in was valid and did not violate public policy.

Stephen R. Woods Greenville Author

M. Brooks Miller Greenville Author

California Court of Appeal Finds That In-Home Caregivers May Be Employees of Placement Agencies

In Duffey v. Tender Heart Home Care Agency, LLC, the California Court of Appeal for the First District addressed whether an in-home caregiver was an independent contractor or employee.

Alexander M. Chemers Los Angeles Author

Jared L. Palmer San Francisco Author

Texas Workforce Commission Issues Proposed Rules Excluding Certain Gig Workers From the Definition of “Employment” Under Texas Unemployment Laws

The issue of whether workers who utilize online digital platforms to obtain business and deliver services to third parties are employees or independent contractors has already been subject to much debate and litigation. In the growing gig economy, questions surrounding these issues can create uncertainty for both businesses and gig workers.

Tiffany Cox Stacy San Antonio Author

Lawrence D. Smith San Antonio Author

Third Circuit Rules That FAAAA Does Not Preempt New Jersey’s ABC Test for Determining Independent Contractor Status

On January 29, 2019, the Third Circuit Court of Appeals concluded that the Federal Aviation Administration Authorization Act of 1994 (FAAAA) does not preempt New Jersey’s ABC test for determining whether a worker is an independent contractor or employee.

Alexander M. Chemers Los Angeles Author

Ryan T. Warden Morristown Author

New Jersey’s Minimum Wage to Reach at Least $15 by 2024

New Jersey has joined the ranks of California, Massachusetts, New York, and the District of Columbia in requiring a phased increase of the minimum wage to $15 an hour as a result of a bill (A-15/S-15) signed into law by Governor Phil Murphy on Monday, February 4, 2019.

Ryan T. Warden Morristown Author

Michael Nacchio Morristown Author

Arizona Law Prohibiting Municipalities From Enacting Employee Benefits Ordinances Held Unconstitutional

The Arizona Court of Appeals, Division One, has ruled that the Arizona State Legislature overstepped its authority in 2016, when it prohibited Arizona cities and other municipalities from enacting their own employee benefits ordinances.

Tibor Nagy Jr. Tucson
Phoenix Author

Beltway Buzz, February 8, 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

A Back-to-School Progress Report

This is an update to our article, Back to School for ERISA Fiduciary Claims: How to Prepare for This Trend in University Litigation, which was published on August 22, 2017.

Robert S. Ellerbrock, III Birmingham Author

Morgan Pike Epperson Birmingham Author

E-Verify Resumes Operations and Provides Instructions for Employers

On January 28, 2019, E-Verify resumed operations after being offline for more than a month due to the government shutdown. The program, which allows participating employers to electronically confirm the work eligibility of new hires, was temporarily suspended as a result of the government shutdown. During that time, employers were unable to access their E-Verify accounts and were unable to comply with the program’s regular deadlines, resulting in a backlog of matters that must now be processed.

Melissa Manna Raleigh Author

Massachusetts Supreme Judicial Court Holds Denial of Lateral Transfer May Constitute Adverse Employment Action

On January 29, 2019, the Massachusetts Supreme Judicial Court issued a decision that addressed for the first time whether an employer’s failure to grant an employee’s lateral transfer request could support an employment discrimination claim in the matter of Yee v. Massachusetts State Police, SJC-12485.

Alexandra R. Hassell Boston Author

Second Verse, Same as the First: Ninth Circuit Weighs in Again on Background Check Disclosures, Raising the Compliance Bar Even Higher

The disclosure requirement of the federal Fair Credit Reporting Act (FCRA) remains one of the most contentious and expensive litigation areas for employers. The case law from various federal district courts has been a mixed bag, leaving employers to question what it means to provide a “clear and conspicuous” disclosure in a writing that “consists solely” of the disclosure.

Jennifer P. Woodruff Greenville Author

Stephen R. Woods Greenville Author

Looking Back to Look Forward: Healthcare Developments in Labor and Employment Law

The year 2018 was a busy one for healthcare employers. Below are some of the key developments from 2018 and issues that employers should be on the lookout for in 2019.

Robert R. Niccolini Washington D.C. Author

Ajente Kamalanathan Washington D.C. Author

Overbroad Geographic Restriction Dooms Covenant Not to Compete

Texas law allows for the enforcement of covenants not to compete that impose reasonable restrictions on competition.

Lawrence D. Smith San Antonio Author

IRS Notice Offers Good News for State Colleges and Universities (at Least for Now)

In January 2019, the Internal Revenue Service (IRS) issued Notice 2019-09, which provides interim guidance for Section 4960 of the Internal Revenue Code of 1986.

Robert S. Ellerbrock, III Birmingham Author

Taylor Bracewell Atlanta Author

Changes to H-4 Work Authorization Rule Could Be on the Horizon

The Department of Homeland Security (DHS) is expected to advance its plan to rescind the H-4 employment authorization document (EAD) program before a March 18, 2019, deadline imposed by the U.S. Court of Appeals for the D.C. Circuit in Save Jobs USA v. DHS, a lawsuit challenging the legality of the H-4 EAD rule.

Melissa Manna Raleigh Author

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