Legislative responses to the #metoo movement continue to develop across the country.   Joining this movement, New York State and New York City recently have passed some of the strongest anti-harassment laws on the books.  Below is a summary of key elements for private employers:  Continue Reading #metoo In New York: New Sexual Harassment Laws in New York State and New York City

On February 5, 2018, the American Bar Association (ABA) adopted Resolution 302, which “urges all employers, and specifically all employers in the legal profession, to adopt and enforce policies and procedures that prohibit, prevent, and promptly redress harassment and retaliation based on sex, gender, gender identity, sexual orientation, and the intersectionality of sex with race and/or ethnicity.”

Resolution 302 was unanimously passed by voice vote of the ABA’s House of Delegates, the 601-member governing body of the country’s largest legal association, after further edits by employment lawyer Mark Schickman to strengthen its language.

In the #MeToo era, Resolution 302 is a reminder to all employers of harassment policy best practices, and should be of particular interest to employers in the legal industry. Continue Reading ABA Resolution 302: What the American Bar Association’s Position on Harassment Means to Employers

The practice of “tip-pooling,” which refers to the sharing of tips between “front-of-house” staff (servers, waiters, bartenders) and “back-of-house” staff (chefs and dishwashers), has been in the news recently as the Trump Department of Labor (“DOL”) seeks to roll back a 2011 Obama-era rule limiting the practice under the Fair Labor Standards Act (“FLSA”).

Continue Reading DOL Expresses Interest in Banning “Tip-Skimming”

This week the LGBT community and its supporters won an important case in the Second Circuit Court of Appeals.  In Zarda v. Altitude Express, the Court ruled that Title VII’s ban on sex discrimination extends to same-sex, or “anti-gay,” discrimination.  In that case, Donald Zarda, a gay skydiving instructor, alleged he was unlawfully fired after a customer complained about him disclosing his same-sex orientation.

Continue Reading Federal Victory For LGBT Rights

All employers have personnel data on their information technology systems and devices, making cyber insurance coverage one way to protect against the cost and exposure created by data breaches. In the second of this two-part interview, Hunton & Williams partners Emily Burkhardt Vicente and Walter Andrews discuss certain types of cyber insurance policies, potential gaps in coverage to watch out for, and other tips employers should keep in mind when considering cyber insurance coverage. View the 5-minute video here.

The Department of Justice’s top antitrust official announced that criminal charges against companies who agreed not to hire one another’s employees will be forthcoming, with announcements to be made in the coming months.

Continue Reading DOJ Antitrust Chief Warns That Criminal Prosecutions for Wage-Fixing and Anti-Poaching Agreements Are Forthcoming

On Friday, January 5, 2018, the U.S. Department of Labor (“DOL”) posted a brief statement and updated its Fact Sheet on Internship Programs Under the Fair Labor Standards Act to clarify that going forward, it will use the “primary beneficiary” seven factor test for distinguishing bona fide interns from employees under the FLSA.  The DOL’s approach is consistent with the test adopted by appellate courts such as the Second and Ninth Circuits.

Continue Reading DOL Abandons Six-Factor Intern Test and Adopts More Flexible “Primary Beneficiary” Test

The 2017 Tax Act (the “Act”) imposes a 21 percent excise tax on compensation in excess of $1 million and “excess” severance paid by covered tax exempt organizations to certain employees starting in 2018.  As reflected in the Act’s legislative history, the general intent behind this excise tax is to put tax exempt organizations (which are generally exempt from income taxation) in roughly the same position tax-wise as publicly held and other for-profit companies which cannot deduct excess compensation and “golden parachute” payments paid to their covered employees.   However, unlike the changes made in the Act to the excess compensation rules for publicly traded companies, there is no transition relief for existing tax exempt organization compensation arrangements.  This means that the new excise tax will apply to all compensation paid by a covered organization to a covered employee in tax years beginning after 2017.

Set out below is an overview of the scope and application of the new excise tax provision.

Continue Reading New “Excess” Compensation Excise Tax for Tax Exempt Organizations

Raytheon Network Centric Systems, 365 NLRB No. 161 (Dec. 15, 2017) (“Raytheon”), is one of several decisions issued this month by the National Labor Relations Board’s (the “Board”) new Republican majority which reverse Obama-era precedent.  Raytheon overrules the Board’s decision E.I. du Pont de Nemours, 364 NLRB No. 113 (2016) (“DuPont”), which limited the changes employers can make unilaterally in a union environment.  Raytheon clarifies the degree to which employers may rely on past practice to make unilateral changes to terms of employment once a collective bargaining agreement has expired, and, more specifically, offers welcome guidance to employers with regard to continuation of health benefits under those circumstances.

Continue Reading NLRB Reverses Prior Precedent – Expanding Changes Employers Can Make Unilaterally In Union Environment

Earlier this month, the U.S. Department of Labor’s Wage and Hour Division issued a Notice of Proposed Rulemaking (“NPRM”) seeking to repeal a 2011 rule that significantly impacted the compensation of hospitality workers.  Specifically, the NPRM proposes to allow hospitality employers to control the distribution of the tips they pool assuming their employees are paid the full minimum wage.  By way of background, the FLSA requires employers to pay employees a minimum wage (currently $7.25 per hour) plus overtime for all hours worked over 40 in a single workweek.  Employees who “customarily and regularly receive tips” must still receive the minimum wage, but employers may elect to take a “tip credit” by counting up to $5.12 per hour of those employees’ tips toward the minimum wage, meaning employers may pay a reduced wage of $2.13 to tipped employees.  Historically, employers that take the tip credit have been prohibited from sharing money from a tip-pooling system to employees who do not traditionally receive direct tips (cooks, dish washers, etc.).  In 2011, the DOL extended the tip-pooling prohibition to apply to employers even if they do not take the tip credit and pay their employees the full federal minimum wage.

Continue Reading Department of Labor Makes It Easier for Employees to Share Tips – Rolls Back Prior Restrictions