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.
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.
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.
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.
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.
On December 14, 2017, in a 3-2 decision along party lines, the National Labor Relations Board (the “Board”) issued a decision in The Boeing Company, 365 NLRB No. 154 (2017) case. This is a significant and long-awaited victory for employers grappling with unfair labor practice charges stemming from facially neutral workplace rules and signals the Board’s intent to retreat from regulating non-union activity. Specifically, Boeing rescinds the onerous workplace rule standard in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004) in favor of a new, more rational test.
On November 10, 2017, the New York Department of Labor released a set of proposed regulations affecting the Minimum Wage Order for Miscellaneous Industries and Occupations, which applies to most employers, except hotels and restaurants. The regulations propose the following call-in pay requirements for employers:
- Reporting to work. An employee who, by request or permission of the employer, reports for work on any shift must be paid for at least four hours of call-in pay.
- Unscheduled shift. An employee who, by request or permission of the employer, reports to work for any shift for hours that have not been scheduled at least 14 days in advance of the shift must be paid an additional two hours of call-in pay.
- Cancelled shift. An employee whose shift is cancelled within 72 hours of the scheduled start of such shift must be paid for at least four hours of call-in pay.
- On-call. An employee who, by request or permission of the employer, is required to be available to report to work for any shift must be paid for at least four hours of call-in pay.
- Call for schedule. An employee who, by request or permission of the employer, is required to be in contact with the employer within 72 hours of start of the shift to confirm whether to report to work must be paid for at least four hours of call-in pay.
Date: Thursday, November 16, 2017
Time: 12:00 PM to 1:00 PM PST
Please join Hunton & Williams LLP for a complimentary webinar that will address current concerns faced by employers in California. This program, co-sponsored by Welch Consulting, will examine the following issues:
- Fair Pay issues
- Recent PAGA concerns
- “Ban the Box” and background checks
- Sick leave
- Changing local and regional ordinances
- Sexual harassment
We will also discuss ways to address potential risks proactively, including the use of statistical analyses to avoid future litigation.
We hope you can join us for what should be a very interesting and educational program.
Register by clicking here.
Questions? Contact Visalaya Hirunpidok at email@example.com or 213.532.2003.
Allegations of sexual harassment have been flooding the news headlines lately. Partners Emily Burkhardt Vicente and Amber Rogers discuss how these trends may impact employers and identify common sense strategies for minimizing the risk of harassment claims in the workplace. View the 5-minute video here.