Last week, the National Labor Relations Board (the “NLRB”) approved and released its Strategic Plan for Fiscal Years 2019-2022. Congress requires government agencies like the NLRB to formulate strategic plans every four years and release those plans to the public. These plans must include general goals and objectives of the agency and a description of how those goals will be achieved. This iteration of the NLRB’s Strategic Plan largely focuses on the agency’s goals to reduce the processing time for unfair labor practice charges and representation cases, acknowledging the problem that “[o]ver the years, the amount of time it takes for cases to be processed and for resolutions to be reached has increased and backlogs of cases have developed. This initiative has been developed to reverse these trends.”
The OFCCP vowed things would change after President Trump’s election. It is making good on that promise. The Agency issued three new Directives in the last two weeks, following four others earlier this year. One of these Directives was long-awaited new guidance on pay analyses, replacing Directive 307. And, the OFCCP has a new Acting Director, Craig Leen (see our earlier post for the exciting news about the immediate-past Director, Ondray Harris, joining our firm).
The good news for contractors is that the OFCCP’s actions are almost all pro-business, aimed at making the Agency more transparent, objective, and efficient. Continue Reading The OFCCP’s Been Busy — 9 New Directives This Year, Largely Pro-Business
The #MeToo movement has galvanized many into taking action to fight workplace harassment. Since the movement began in the fall of last year, the Equal Employment Opportunity Commission (EEOC)—tasked with enforcing laws prohibiting sexual harassment—has indicated it has seen an uptick in the amount of traffic to its website. But, it also indicated this increase in website visitors has not translated into an increase in formal complaints to the EEOC filed by employees against their employers. Still, the EEOC has carried the torch of the #MeToo movement, signaling that the lack of an increase in claims will not stop the agency from vigorously enforcing anti-harassment laws.
There may be some changes coming to how California enforces its antidiscrimination law, the Fair Employment and Housing Act (“FEHA”). In February 2017, a bill (Senate Bill 491) was introduced in the California Senate proposing to allow local government entities to enforce antidiscrimination statutes.
After nearly a decade of attempts, the Democratic Party is once again attacking non-compete agreements at the national level. For several years, federal legislation has been proposed to limit the use of non-compete agreements in low-wage fields where Democrats say they have no valid use. For example, in June 2015, former U.S. Senator Al Franken (D-Minn) and U.S. Senator Chris Murphy (D-Conn) proposed legislation that would ban the use of non-competes for low-wage earners (identified as individuals making less than $15 an hour, $31,200 per year or the minimum wage in the employee’s municipality) and require employers to notify all prospective employees that they may be asked to sign a non-compete agreement upon hiring.
Under a new DOL pilot program, employers can self-report wage violations and potentially avoid costly litigation.
Last week, the Wage and Hour Division (WHD) of the U.S. Department of Labor (DOL) launched a six-month pilot program to resolve FLSA violations. Under the Payroll Audit Independent Determination (PAID) program, employers may self-report potential overtime or minimum wage violations to the WHD, which will then resolve the matter by supervising payments to employees if the employees accept the settlement. Importantly, the WHD will not impose penalties or liquidated damages on employers that participate in the program and proactively work with the WHD to resolve the compensation errors. Further, if an employee accepts a supervised settlement through PAID, s/he waives his or her right to file an action to recover damages and fees for the violations and time period identified by the employer. To participate in the PAID program, an employer must identify: (1) the wage violation(s); (2) the impacted employee(s); (3) the time period(s) in which the violation(s) occurred; and (4) the amount of back wages owed to the impacted employee(s). However, employers may not participate if they are in litigation or under investigation by the WHD for the practices at issue, or to repeatedly resolve the same potential violations.
On February 12, 2018, the Equal Employment Opportunity Commission (the “EEOC”) approved and released its Strategic Plan for Fiscal Years 2018-2022. Congress requires government agencies like the EEOC to formulate strategic plans every four years and post the plans on their website. These plans must include general goals and objectives of the agency and a description of how those goals will be achieved. In a press release introducing the plan, the EEOC indicated the plan “will serve as a framework for the Commission in achieving its mission to prevent and remedy unlawful employment discrimination and advance equal opportunity for all in the workplace.”
The United States Supreme Court has granted consolidated review of three cases to determine whether arbitration agreements that waive employees’ rights to participate in a class action lawsuit against their employer are unlawful. The Court’s decision to address the uncertainty surrounding class action waivers of employment claims follows a circuit split last year in which the Fifth and Eighth circuits upheld such waivers and the Seventh and Ninth circuits found that such waivers violate the National Labor Relations Act. Given the increasingly widespread use of class action waivers by employers to stem costly class and collective actions, the high court’s ruling is likely to have a significant nationwide impact.
On November 16, 2016, Judge Amos L. Mazzant, heard more than three hours of oral argument from a group of 21 States (“State Plaintiffs”) challenging the Department of Labor’s new overtime rule. Following the hearing, the motion for a preliminary injunction of the rule was taken under advisement and a ruling is forthcoming on Tuesday, November 22,2016. Judge Mazzant’s pointed criticism of the rule during argument suggests employers may have reason to be optimistic.
Continue Reading Federal Judge in Texas Appears Poised to Grant Injunction Putting Labor Department’s Overtime Rule On Hold
With more and more employees working off-site or from home, employers must be aware of the impact on courts’ interpretation of the FMLA’s eligibility requirements.
In June, the U.S. District Court for the Eastern District of Louisiana held in Donahoe-Bohne that the FMLA’s 50-employee threshold was met since the office to which a remote or telecommuting employee reported had at least 50 employees, even though the employee worked from home several states away.