Category Archives: Human Resources/ Employer Matters

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So, What Exactly is the Interactive Process?

Interactive
Most employers are well aware that the Americans with Disabilities Act (and similar state laws) require employers to engage in the “interactive process” when an employee requests a disability accommodation. But in actual day-to-day practice, human resources professionals and others tasked with fulfilling this obligation often find themselves stumped. “Interactive process” is a vague term, … Continue reading this entry

Time for a 401(k) Plan Spring Cleaning?

Spring
Now that spring is in the air, it might be a good time to dust off your 401(k) plan document and do a quick checkup. This post walks through five issues we recommend considering as you jump into your spring cleaning:… Continue reading this entry

Bashful Bladders Bring Problems for Employers

Bladders
The ever-evolving legal landscape surrounding marijuana legalization has in recent years continued to cloud the waters with respect to workplace drug testing programs. However, beyond the complex issue of whether employers must provide accommodations for medical users in states where marijuana is legal, employers must also remain vigilant in evaluating whether their drug testing policies … Continue reading this entry

EEOC Proposes Extending Pay Data Submission Deadline to September 30

EEOC
As we recently reported, federal Judge Tanya Chutkan of the U.S. District Court for the District of Columbia recently ordered the EEOC to move forward with stalled Obama-era requirements that employers who are required to file annual EEO-1 reports provide certain pay data with those reports. At the time of our last article, it was … Continue reading this entry

DOL at it Again: New Proposed Rules Published to Clarify Regular Rate

Proposed
On March 28, 2019, the U.S. Department of Labor (DOL) announced a new proposed rule that would clarify that certain payments and benefits provided by employers do not factor in to employees’ “regular rate,” which is used to calculate overtime pay. This latest announcement is on top of a flurry of recent activity from DOL … Continue reading this entry

Extortion vs. Settlement Negotiations

Extortion
The criminal complaint filed against Michael Avenatti is an interesting reminder that the line between extortion and settlement negotiations is a thin one. In a federal court complaint filed in the Southern District of New York, the government accuses Avenatti of extortion by threatening to publicly release, through a press conference and otherwise, damaging information … Continue reading this entry

DOL Publishes Guidance On H-1B Requirements

DOL
On March 15, 2019, the Wage and Hour Division of the U.S. Department of Labor (DOL) issued a Field Assistance Bulletin (Bulletin) for all DOL District Directors providing guidance on how U.S. petitioners of H-1B visas must comply with mandatory posting requirements related to petitioners’ H-1B petitions. See Bulletin here. H-1B employment visa petitions are … Continue reading this entry

New Excise Tax Reporting Obligation For Tax-Exempt Entities

Tax
Attention tax-exempt entity employers: Starting with tax filings this year (for your taxable year that began in 2018), you will need to make a special report to the IRS and pay an excise tax if you provided certain current or former highly compensated employees more than $1 million in compensation or paid part of a … Continue reading this entry

DOL Issues New FMLA, FLSA Guidance to Employers

DOL
Last week, the Department of Labor (DOL) Wage and Hour Division (WHD) issued its first three opinion letters of 2019 concerning the Family Medical Leave Act (FMLA) and Fair Labor Standards Act (FLSA). These opinion letters are a helpful tool for employers to understand their rights and responsibilities under the law. Employers may even rely … Continue reading this entry

Employers’ Diversity Data and Initiatives: Trade Secret or Open Book?

diversity
As many companies prepare to submit their annual “EEO-1” reports to the Equal Employment Opportunity Commission revealing their workforce statistics by race and gender for their U.S.-based employees by EEO job category, they face the increasing possibility that this information will become public. The decision last week by a federal district court vacating the administrative … Continue reading this entry

Summary Plan Descriptions: You Gotta Have Them, So Make the Most of Them

summary
Administrators of plans subject to ERISA (including plans sponsored by for-profit and nonprofit businesses and organizations[1]) must provide participants and beneficiaries with summary plan descriptions (“SPDs”) describing “the most important facts they need to know about their retirement and health benefit plans including plan rules, financial information, and documents on the operation and management of … Continue reading this entry

DOL Issues Notice of Proposed Rulemaking to Increase Salary Thresholds

Proposed
On March 7, 2019, the Department of Labor (DOL) issued a Notice of Proposed Rulemaking (NPRM) that would increase the minimum salaried basis threshold required to be paid to employees under the white collar exemptions (e.g., executive, administrative, and professional). Under current regulations, to avoid paying overtime, employers must pay employees at least $455/week ($23,660/year) … Continue reading this entry

Employer Still Wins – Even Though Job Eliminated and Work from Home Request is Denied

eliminated
Dealing with leave issues is a familiar situation to human resources and employment law professionals – but there can be happy endings for employers, even when there is a sympathetic story involved, in addition to legal rights under Family and Medical Leave Act (FMLA) and the Americans With Disabilities Act (ADA). Recently, a federal appeals … Continue reading this entry

Employers Face Hurdles in Enforcing Non-Competes Against Lower-Wage Workers

non-competes
Employers requiring lower-wage employees to sign and abide by non-competition and non-solicitation of clients provisions may want to find another mechanism to protect business goodwill and confidential information. Courts across the country are refusing to enforce non-competes against lower-wage employees and now states are taking action to preclude these agreements. In 2015, Sen. Elizabeth Warren … Continue reading this entry

Website Accessibility Issues for Employers

Accessibility
A recent trend in suits filed under the Americans with Disabilities Act of 1990 (ADA) and the Rehabilitation Act of 1973 (Rehabilitation Act) includes claims for website accessibility. A number of entities have received complaints on behalf of visually impaired individuals, claiming that the entity’s web presence is not equally accessible to the visually impaired. … Continue reading this entry

Two Department of Labor Agencies Announce Recent Developments: EEOC and OFCCP

OFCCP
OFCCP Audit Scheduling Letters Available Online – On Friday, February 22, 2019, the Office of Federal Contract Compliance Programs (OFCCP) announced that it is on schedule to post its next set of Corporate Scheduling Announcement Lists (CSALs) in the department’s FOIA Library next month (around mid- to late-March). As a reminder to our readers who … Continue reading this entry

“Stand-Alone” REALLY Does Mean Stand-Alone - Ninth Circuit Court of Appeals Interprets the FCRA

Ninth
On January 29, 2019, the U.S Court of Appeals for the Ninth Circuit (covering a number of states and territories bordering the Pacific Ocean) issued a far-reaching opinion that will likely impact the hiring process of prospective employers who conduct background checks on applicants. In the case at issue, Desiree Gilberg (Gilberg) brought a class … Continue reading this entry

Temporary Workers—An OSHA Perspective

OSHA
The Occupational Safety and Health Administration (OSHA) has previously stated that temporary workers are at an “increased risk of work-related injury and illness.” Among other reasons, OSHA has expressed concerns that temporary workers are sometimes not included in employers’ usual safety training and assessments. Because of that stated vulnerability, OSHA often focuses on temporary worker … Continue reading this entry

Deferred Compensation Plans and FICA Taxes: A Valentine’s Day Match or Disaster?

Taxes
While February is usually the month for valentines and candy conversation hearts, I hope you will use this month to give a little love and attention to one of the often overlooked “other” taxes applied to payments from nonqualified deferred compensation plans (NQDC Plans)—FICA taxes! Companies commonly fail to implement the unique FICA tax rules … Continue reading this entry

DHS Issues Final Rule Changing H-1B Cap Selection Process

DHS
The Department of Homeland Security (DHS) published a new rule on January 31, 2019 that makes significant changes to the way in which DHS will administer the annual H-1B allocation (the H-1B cap). Starting in April 2019, DHS will change the order in which the agency allocates the available slots under the H-1B cap. In … Continue reading this entry

Biometric Privacy: Illinois Supreme Court Decision Allows Claims to Proceed Without Showing of Actual Harm

Biometric
On January 25, 2019, the Illinois Supreme Court handed down a key ruling that will make it significantly easier for consumers and workers to sue and recover damages for mere non-compliance with the requirements of the state’s Biometric Information Privacy Act, 740 ILCS 14/1 et seq. (BIPA or Act). In its highly anticipated decision in … Continue reading this entry

Supreme Court Gives Teeth to Delegation Clauses in Arbitration Provisions

Supreme
Taking the time to include a well-crafted arbitration agreement in your employment contracts sometimes feels like a moot point, but a recent unanimous U.S. Supreme Court opinion in Henry Schein, Inc. v. Archer & White Sales, Inc. should inspire some confidence in the enforcement of arbitration. The story is a familiar one—an employee who signed … Continue reading this entry

OSHA Penalty Increases Take Effect; Annual Summary Posting and Reporting Deadlines Are Near

OSHA
On January 23, 2019, the Occupational Safety and Health Administration (OSHA) increased the maximum civil penalties that employers can receive for health and safety violations by 2.5 percent to account for inflation.… Continue reading this entry

What the NLRB Can Teach You About Documenting Employee Misconduct

NLRB
Innocent mistakes are an unfortunate reality in our fast-paced, technology-driven society. But an employer does not have to tolerate an employee doubling down on his mistake by deceiving his employer and actively impeding an investigation into that mistake. That’s the main lesson from a recent Alabama federal district court opinion in which the judge held … Continue reading this entry