On August 31, 2017, a federal district court judge in Texas struck down the Department of Labor’s Obama-era controversial 2016 rule that raised the minimum salary threshold required to qualify for the Fair Labor Standards Act’s “white collar” exemption. Under the proposed regulations, the minimum salary threshold was raised to just over $47,000 per year, and increased the overtime eligibility threshold for highly compensated workers from $100,000 to about $134,000.
The day employers have been waiting for, has finally arrived. The government has indefinitely stayed the requirement that companies begin reporting “Component 2” wage data in their EEO-1 Reports. Companies around the country are breathing a collective sigh of relief.
A New York Appellate decision issued last week—finding that firing an employee for being sexually attractive states a claim for gender discrimination—exemplifies the broad interpretation of discrimination laws in recent years.
Plaintiff Dilek Edwards worked as a yoga instructor and massage therapist for a Manhattan-based chiropractor and wellness center owned and operated by a married couple. Edwards maintains that she was regularly praised for her performance and maintained a “purely professional” relationship with the husband-owner.
California’s Fair Employment and Housing Act (“FEHA”) not only prohibits discrimination, harassment and retaliation, but goes a step farther than similar state laws in its explicit requirement that employers take reasonable steps to prevent and correct such conduct. Cal. Gov’t Code § 12940(k). In 2016, the California Fair Employment and Housing Council promulgated regulations which set forth the required elements of a compliant prevention and correction program (2 CCR §§ 11023-11024), and in May 2017 the California Department of Fair Employment and Housing (“DFEH”) issued a Workplace Harassment Guide (the “Guide”) to clarify further employers’ obligations under these regulations. The Guide, which is notable for its detailed explanation of workplace investigation procedures, can be accessed here.
On June 30, 2017, Missouri Governor Eric Greitens signed a bill into law, Senate Bill 43 (SB 43), that makes substantial changes to Missouri’s employment discrimination laws. The Bill, which goes into effect on August 28, amends the Missouri Human Rights Act (MHRA) and creates the “Whistle Blower Protection Act.”
Numerous changes have been made to the MHRA, so the Bill is worth a read. A few key changes that are likely of particular interest to employers relate to who may be liable for violations, the level of proof required to establish a violation, and the amount of damages that may be awarded.
On August 3, 2017, the U.S. Senate confirmed Marvin Kaplan, a former Occupational Safety and Health Review Commission attorney, to fill one of the two vacant seats on the National Labor Relations Board. Kaplan’s confirmation moves the Board one step closer to a Republican majority. Kaplan was confirmed on a 50-48 party-line vote by the Republican-controlled Senate. Kaplan joins NLRB Board Chairman Philip Miscimarra on the Republican side of the NLRB. Mark Gaston Pearce and Lauren McFerran are the Democrat Board members.
Massachusetts’ highest court last month became the first nationally to rule that many job applicants and employees who are medically certified to use marijuana cannot be automatically denied employment if they test positive for the drug.
Massachusetts is one of many states – now more than half – with statutes permitting marijuana use for medicinal purposes. Those state laws protect users from criminal prosecution, but the large majority of the statutes (including in Massachusetts) are silent on whether employers are free to deny employment to those who test positive for “medical marijuana.” Until now, every court to rule on the issue had held that employers may refuse to hire those individuals based simply on a positive test.
With this ruling, employers in the Bay State must revamp their thinking and possibly even hire or retain known medical marijuana users.
The New York City Commission on Human Rights recently amended its rules to establish certain definitions and procedures applying the Fair Chance Act. The Act makes it unlawful to discriminate against job applicants and employees on the basis of criminal history, and is particularly important for employers for two reasons: (1) it applies not only to criminal background checks performed by third-party vendors but also to checks performed entirely by the company, and (2) out-of-state non-employers may be held liable for aiding and abetting violations of the Act. For more on this latter point, read our prior post on the New York Court of Appeals opinion in Griffin v. Sirva, Inc.
The United States Court of Appeals for the Tenth Circuit recently held in Marlow v. The New Food Guy, Inc. that an employer that pays its employees a set wage over the minimum wage can retain tips for itself and does not have to share them with employees. No. 16-1134 (10th Cir. June 30, 2017).
The New Food Guy, Inc., a Colorado company doing business as Relish Catering, employed Bridgette Marlow to provide catering services. Relish paid Marlow a base wage of $12 an hour and $18 an hour for overtime. Although this was well above the $7.25 federal minimum required by the Fair Labor Standards Act (FLSA), Marlow sued Relish because it did not increase her wage with a share of the tips paid by customers. Relish moved for a judgment on the pleadings and the United States District Court for the District of Colorado held in its favor. After failing to get the Colorado court to reconsider the judgment, Marlow appealed.
Washington state has enacted a paid family leave program that will go into effect in 2020. Through this enactment, Washington has joined just four other states and the District of Columbia in requiring paid leave benefits for eligible employees. Under this new law, the state insurance program will provide private-sector employees up to 12 weeks of income for leave related to childbirth, a child’s adoption, a relative’s illness, or an employee’s own health condition. An employee’s maximum combined family and medical leave will be 16 weeks a year, with an additional two weeks in cases involving pregnancy complications. The new law also requires employers to hold the employee’s job open, regardless the size of the business, until he or she returns from leave. The employer may, however, hire a temporary worker to substitute for the employee on family or medical leave.