In The Workplace: Latest Need-to-Know Employment Law News

Keeping track of the latest developments in labor and employment law can be challenging for employers and HR managers.

What to know? Health care reforms, revisions to the Family and Medical Leave Act, judicial interpretations of the Fair Labor Standards Act, to be sure. But also textual harassment, workplace investigations, internships, working interviews, and much more. From employment lawyers and law firms on JD Supra:

Textual Harassment Could CRE8 Liability For Employers (Pepper Hamilton LLP):

“With the increased use of smartphones in the workplace, the traditional notion of quid pro quo sexual harassment has been expanded to include ‘text’ harassment that takes place via social media and text message. A recent study showed people are likely to be more candid over text message than they are in person, which means that, at some point, most employers will be confronted with the issue of text harassment.” Read on>>

Recordkeeping Part I (Looper Reed & McGraw, P.C.):

“The Equal Pay Act is applicable to virtually all employers and has the same requirements as the FLSA, but also requires records be kept for two years which describe or explain the basis for payment of a wage differential for persons of the opposite sex, including: wage rates, job evaluations, job descriptions, merit systems, seniority systems, collective bargaining agreements, and description of practices.” Read on>>

Be a Super Sleuth—Part Three: Concluding Your Workplace Investigation (Ogletree, Deakins, Nash, Smoak & Stewart, P.C.):

“Although we have emphasized the importance of how to conduct an effective workplace investigation, it is equally important that a company remember to conclude an investigation in a prompt and appropriate manner (without sacrificing thoroughness). This may sometimes mean that remedial or corrective action need be taken. Other times an investigation is inconclusive and no further action is warranted. Regardless, it is imperative that a company consider the information it obtained during the course of the investigation and determine an appropriate, reasoned course of action in light of what was learned.” Read on>>

The Wage and Hour Movement Against Internship Programs (Poyner Spruill LLP):

“Lawsuits brought by interns are potentially becoming the next big trend in wage and hour litigation… [A]lthough it may be tempting for employers to tap into the large pool of unemployed or underemployed college students or recent college graduates who are willing to work as interns, employers should take the time to evaluate their programs to ensure that they do not run afoul of the Fair Labor Standards Act (FLSA) and its state law counterparts.” Read on>>

What’s on the Regulatory Horizon Part Two: Wage and Hour Division Tips Its Hand (Ogletree, Deakins, Nash, Smoak & Stewart, P.C.):

“The DOL’s Wage and Hour Division (WHD) has yet to offer the ‘Right to Know’ proposal, other than to generally describe it. This regulatory item is listed among the 14 items that the DOL describes as awaiting ‘Long-Term Actions.’ … The WHD characterizes right to know as an action that will protect employees and will promote transparency because it envisions the proposal as requiring employers to disclose to its workers their status either as employees or independent contractors.” Read on>>

Are “Working Interviews” Legal? (Looper Reed & McGraw, P.C.):

“The theories on pay for a working interview are all over the map. Some, like my client are lead to believe that you don’t have to pay the person for their time. Others are told that you can just issue a check without proper withholding and 1099 the payment. Wrong. Wrong. If you bring someone in for a working interview you must pay them for their time in compliance with state and federal law and make appropriate withholding.” Read on>>

California Supreme Court Issues Mixed Decision in Mixed-Motive FEHA Employment Discrimination Case (Holland & Knight LLP):

“The California Supreme Court’s recent decision in a closely watched Fair Employment and Housing Act (FEHA) case should be of interest to employers around the country, even though — or perhaps because — it does not provide an outright win for either employers or employees. The court unanimously held that under the FEHA, where a jury finds that unlawful discrimination was a ‘substantial motivating factor’ in an adverse employment action in a mixed-motive case, and where the employer proves it would have made the same decision absent such discrimination for legitimate reasons, a court may not award damages, back pay or an order of reinstatement.” Read on>>

California Supreme Court Eliminates Damages in FEHA Discrimination Cases Where Employer Proves Mixed Motive Defense (Orrick):

“[T]he Court held that, in mixed-motive cases, a plaintiff must prove that discrimination was a ‘substantial factor motivating’ the adverse employment action. The Court explicitly ruled that California’s standard jury instruction for discrimination claims, which only requires a jury to determine whether discrimination was a ‘motivating factor/reason,’ was erroneous.” Read on>>

Affordable Care Act: Preparing for 2014 (Bernstein Shur):

“Develop internal systems to track, document and report the offer of coverage to full time employees. For most employers, this will require using the IRS safe harbor look-back periods. Without this safe harbor, employers will be required to determine each employee’s eligibility on a month-to-month basis.” Read on>>

HHS Finalizes Essential Health Benefits and Related Health Plan 2014 Requirements (Ballard Spahr LLP):

“The U.S. Department of Health and Human Services has issued final regulations and a set of frequently asked questions and answers establishing standards for the provision of essential health benefits in the individual and small group insurance markets, both inside and outside of an Exchange. In large part, the final rules adopt standards set forth in the proposed regulations issued late last year, with some clarifications and additions.” Read on>>

Employers Need to Plan Now for the Next Phase of Health Care Reform (K&L Gates LLP):

“Preparing for the impact of Health Care Reform on employer-sponsored group health plans requires an understanding of the mandates and the steps to be taken to address them. The changes are substantial and complex, and implementation will require input not only from human resources, but also from finance, payroll, IT and senior leadership. Putting together the appropriate interdisciplinary team, analyzing the impact of the mandates and compliance all will take time, so an early start to the effort in 2013 is critical.” Read on>>

There’s a New Sheriff in Town (Ervin Cohen & Jessup LLP):

“Most employers know that if an employee feels as though he or she is being discriminated against or harassed in the workplace, there will be the possibility of a lawsuit. While most employers understand this dynamic, they fail to notice many of the common factors that give rise to the situation. One of these is the ‘New Sheriff in Town’ phenomenon. The phrase ‘there’s a new sheriff in town’ is an idiom used when a new authority figure takes charge. In the workplace, this can happen in a variety of ways—a sale, merger, restructuring, termination, reassignment—any event which results in new supervision for any employee.” Read on>>

Airline Industry Legal Alert: DOL Issues Final FMLA Crewmember Regulations (FordHarrison):

“At long last the Department of Labor has issued final regulations implementing the Airline Flight Crew Technical Corrections Act (AFCTCA), which established new standards for airline flight crewmembers to qualify for FMLA leave. These regulations have been released over two years after President Obama signed this legislation into law and resolve much uncertainty in the industry over how these new standards impact established FMLA programs.” Read on>>

Changes To FMLA Service Member Leave Become Effective March 8, 2013 (Looper Reed & McGraw, P.C.):

“On February 5, 2013, the Department of Labor announced the final rules for changes to the Family and Medical Leave Act (FMLA) permitted under the National Defense Authorization Act of 2010. From the time the act was passed until now, there has not been any final guidance for employers on the DOL’s position with respect to the changes to the law. Now, final rules which become effective March 8, 2013, are available to assist employers to properly handle service member leave.” Read on>>

FMLA Coverage Expanded: Employers Should Update (Choate Hall & Stewart LLP):

“Because the DOL’s new regulations and guidance have expanded the circumstances under which employees are eligible for FMLA leave, employers can expect an increase in the number of FMLA leave requests. In order to ensure that company policies are compliant with the changes to the FMLA, employers should consult with counsel for guidance in reviewing and revising any written policies, employee handbooks and internal procedures that concern FMLA leaves.” Read on>>

DOL Issues Final FMLA Regulations (Duane Morris LLP):

“The regulatory changes in the Final Rule will not take effect until 30 days after the Final Rule was published, including with respect to an eligible employee’s ability to take military caregiver leave for covered veterans and the calculation of FMLA leave for airline flight crew employees. Notably, however, other aspects of the military leave provisions, such as with respect to qualifying exigency leave and military caregiver leave to care for a current servicemember due to the aggravation of a preexisting condition, as well as the hours of service eligibility criteria for FMLA leave taken by airline flight crew employee, are already in effect.” Read on>>

Eleventh Circuit: Liquidated Damages For FLSA Retaliation Discretionary, Not Mandatory (Proskauer):

“The Eleventh Circuit joined the Sixth and Eighth Circuits in holding that liquidated damages awards for FLSA retaliation claims are discretionary, not mandatory…Though encouraging for employers, the decision does not specifically enumerate factors courts should consider in exercising discretion with respect to awarding or denying liquidated damages.” Read on>>

Immigration Alert: Immigration Reform Discussions Underway in Washington (Patton Boggs LLP):

“On February 5, the House Judiciary Committee held a full committee hearing focused on reforms needed to bring high skilled workers into the U.S. and the problems that resulted from the 1986 Immigration Reform and Control Act (IRCA). On February 12, the President referred to immigration reform as a priority in his State of the Union address and later held meetings with key stakeholders in the reform effort. On February 13, the Senate Judiciary Committee held its full committee hearing on comprehensive immigration reform, largely focused on the testimony of Homeland Security Secretary Janet Napolitano.” Read on>>

Health Care Issues Poised to Take Front and Center in the 113th Congress (K&L Gates LLP):

Health care issues dominated much of President Obama’s first term. Even after Congress passed the Patient Protection and Affordable Care Act, the Supreme Court ruling in National Federation of Independent Business v. Sebelius, along with the controversy over contraceptive benefits and persistent Republican efforts in Congress to repeal and defund the law, ensured that health care was never far from the spotlight. Congress is likely to continue aggressively tackling health care issues over the next two years.” Read on>>

Courts Aren’t Buying USDOL’s “Service Writer”, “Service Advisor” Comments (Fisher & Phillips LLP):

“In April 2011, the U.S. Labor Department disavowed its 24-year-long acknowledgment that the federal Fair Labor Standards Act’s Section 13(b)(10)(A) overtime exemption applies to automobile-dealership employees doing the typical work of service writers, service advisors, etc… USDOL said what it did despite the fact that, since the 1970s, five federal courts had looked at the same language and ruled the other way. In fact, as of April 2011, every reported court decision to consider the issue determined that dealership employees who are selling service and parts to customers are within the exemption. These courts concluded that this outcome was entirely consistent with Congress’s intent. Now, two additional rulings have continued this trend, including that these newest ones have done so notwithstanding USDOL’s comments.” Read on>>

N.Y. Legislature Introduces Protections for Victims of Domestic Violence (Sheppard Mullin Richter & Hampton LLP):

“The N.Y. State Senate and Assembly recently introduced ‘competing’ bills both targeting increased employment protections for victims of domestic violence. The bills each provide various measures of job security for employees who need to be absent from work on the basis of a domestic violence issue… The Senate bill (S2509), introduced on January 18, 2013, seeks to amend New York Labor Law by providing ninety days of unpaid leave to employees who are victims of domestic or sexual violence.” Read on>>

Employers May Not Engage In Coercive Surveillance of Unions (Barger & Wolen):

“A National Labor Relations Board (‘NLRB’) judge held that an employer had violated the prohibition against coercive surveillance in the recent case Allied Medical Transport, Inc. and Transport Workers Union of America, AFL-CIO. Allied Medical Transport, Inc. (‘AMT’) provides transportation services to disabled Florida residents who are unable to use public transportation… According to Administrative Law Judge Robert A. Ringler’s findings, company CEO Wayne Rowe parked 10 feet from the hotel’s entrance for 30 minutes and watched as employees entered the [Transport Workers Union of America] meeting.” Read on>>

Third Circuit “Clarifies” Continuing Violation Doctrine (Proskauer Rose LLP):

“The Third Circuit’s Mandel decision should brace employers for a more lenient application of the continuing violation doctrine, which could prolong otherwise untimely claims dating back a number of years. Furthermore, employers should beware that, even if an alleged discriminatory act is stale, the underlying facts may still be admissible as background evidence (and, therefore, practically speaking, may have the same effect as if the act was independently viable).” Read on>>

New Background Check Forms Required under the FCRA (Partridge Snow & Hahn LLP):

“The Fair Credit Reporting Act (‘FCRA’) provides guidelines which must be followed in order for employers to gather certain information about employees or applicants. Generally, there are two types of reports: a consumer report or an investigative consumer report. A consumer report, which provides information regarding, among other things, a person’s credit worthiness, is what most employers use. An investigative consumer report is used less often and includes information about an individual obtained through personal interviews.” Read on>>

What’s on the Regulatory Horizon Part One: The DOL’s Strategies on Wage and Hour (Ogletree, Deakins, Nash, Smoak & Stewart, P.C.):

“Late last year, the Wage and Hour Division (WHD), along with other regulatory agencies of the DOL, released its fall 2012 regulatory agenda. The agenda should have been released earlier in the year but may have been delayed until after the November 2012 elections. Regardless of the reasons for its delay, the DOL’s regulatory agenda focused on three major strategies: (1) a ‘Plan/Prevent/Protect’ compliance strategy, (2) an openness and transparency commitment, and (3) risk reduction to employees.” Read on>>

February 2013 U.S. Labor and Employment Update (Dechert LLP):

“Among the significant developments in recent months are the continued development of federal law concerning the validity of arbitration agreements containing class action waivers, the potential invalidation of all of the decisions of the National Labor Relations Board issued in 2012, decisions concerning novel issues arising under the Fair Labor Standards Act (‘FLSA’) and the Pregnancy Discrimination Act, and the Supreme Court’s grant of certiorari in a case presenting a long-standing issue concerning the compensability of time spent ‘changing clothes’ under the FLSA.” Read on>>

Find additional Labor and Employment Law updates at JD Supra>>