Friday, April 21, 2017

What Happened to the New Federal Overtime Rules? They Are On Hold With An Uncertain Future.

As we previously reported, on November 22, 2016, a federal district court judge in Texas issued a nationwide preliminary injunction enjoining the U.S. Department of Labor (DOL) from implementing and enforcing the new Fair Labor Standards Act (FLSA) overtime rules that were supposed to apply on December 1, 2016. The injunction essentially put the implementation of the new regulations on hold pending further litigation.

After the injunction ruling, the DOL appealed to the Fifth Circuit Court of Appeals asking for an expedited appeal. The Fifth Circuit granted the DOL’s request, but after the election of President Trump, the DOL asked the Fifth Circuit to delay the case by extending the deadline for the DOL to file an appellate reply brief. The Fifth Circuit granted that request and extended the deadline to file the brief to March 2, 2017. In February 2017, the DOL asked for an additional 60 days, until May 1, 2017, to file its brief “to allow incoming leadership personnel adequate time to consider the issues.” The Fifth Circuit granted this unopposed request.

Friday, April 14, 2017

Status Update - Minneapolis and St. Paul Sick and Safe Time Ordinances

A lot has happened since our last blog posts on the Minneapolis paid sick leave ordinance and the St. Paul paid sick leave ordinance. While the initial implementation dates for both ordinances are still scheduled for this summer on July 1, 2017, a Hennepin County District Court issued a temporary injunction in January 2017 prohibiting the City of Minneapolis from enforcing the Minneapolis ordinance against any employer based outside the geographic boundaries of the city. The Hennepin County District Court decision is being appealed by the City of Minneapolis. Nonetheless, the injunction will apply to both the Minneapolis and St. Paul ordinances until a final decision is rendered on the appeal. Furthermore, legislation is advancing through the Minnesota legislature that would preempt local employment laws like these ordinances.

Monday, April 10, 2017

Trial Court Rulings on EEOC Subpoenas Are Subject to Deferential Review

Last week, the United States Supreme Court ruled that appellate courts reviewing a lower court ruling on the enforceability of an Equal Employment Opportunity Commission (EEOC) subpoena must use an abuse of discretion standard. By requiring this deferential standard, the Supreme Court positions lower courts to be able to impose reasonable limits on the EEOC’s investigatory powers.

The Supreme Court’s ruling was issued in the case of McLane Co., Inc. v. Equal Employment Opportunity Commission. The McLane case arose out of McLane’s termination of Damiana Ochoa for her failure to pass a mandatory physical abilities test upon her return from maternity leave. Ochoa subsequently filed a charge of sex discrimination with the EEOC. As part of its investigation, the EEOC asked McLane to produce information regarding the physical abilities test and employees who had been asked to take the test. In responding, McLane provided de-identified information about the requested employees’ gender, position, test score, and the reason each employee had been asked to take the test. McLane refused, however, to provide so-called “pedigree information,” e.g. the names, social security numbers, addresses, and telephone numbers of its employees. In response, the EEOC expanded the scope of its requests to McLane’s nationwide operations and subpoenaed McLane for the pedigree information. After McLane again refused to provide the requested pedigree information, maintaining the request was overbroad and unduly burdensome, the EEOC filed suit in an Arizona-based federal district court seeking enforcement of its subpoena.

Wednesday, April 5, 2017

President Trump Blocks Federal Contractor Blacklisting Rule


Last week, President Trump signed four bills passed by Congress under the Congressional Review Act. The effect of each bill is to roll back regulatory actions adopted in the late days of the Obama administration. Of particular interest to employers who are federal contractors, one of the bills permanently blocks implementation of the “Blacklisting Rule,” otherwise known as the Fair Pay and Safe Workplaces Order, which was designed to bar companies with serious or repeated employment and labor law violations from receiving federal contracts and to address wage theft and other pay violations, including gender pay equity issues. We have previously written about the “Blacklisting” Executive Order (EO 13673) and its implementation rules here and here.

The Blacklisting Rule originated with the Executive Order signed by President Obama in 2014. The final rule and guidance implementing the Order were published in the Federal Register last August. The rule would have required federal contractors to self-report to various federal agencies recent violations --- and alleged (non-final and non-adjudicated) violations --- of labor and employment laws under fourteen federal employment and labor-related statutes and executive orders when bidding on a new or renewed federal contract worth at least $500,000. In addition, the Rule provided that employers with reported violations could face being barred from federal contracting or being required to enter into labor compliance agreements based on their violations and alleged violations.

Tuesday, March 14, 2017

March Madness – How to Keep the Madness from Spreading from the Basketball Court to a Judicial Court

The NCAA Men’s and Women’s Basketball Tournaments start this week. While these exciting college sports events bring exciting comebacks, underdog wins, and pride in employee alma maters, they also can usher in several weeks of reduced productivity, potentially contentious employee interactions, and – believe it or not - legal risk.

In 2016, 70 million tournament brackets were completed, many of which involved office pools. The first round of March Madness reportedly costs employers an estimated $4 billion in lost productivity. As part of this decreased productivity, employers may experience an up-tick in absences and the live-streaming of games on employer technology that can detract from work time and create a serious technology lag for legitimate business applications. For example, it’s being reported that perhaps as many as 12 percent of employees will watch a basketball game during a work meeting this month.

Friday, March 10, 2017

Supreme Court Declines to Provide Clarity on Transgender Restroom Access Rights

Earlier this week, the U.S. Supreme Court reversed course and sent a case that it had previously accepted for review, Gloucester County School Board v. G.G., back to the lower appellate court. The case involves the question of whether a Virginia high school must, under the anti-sex discrimination provisions of Title IX, grant a trans-male student bathroom access based on his gender identity rather than his anatomy. When the case was accepted for review by the Supreme Court, one of the legal questions up for review was whether a 2016 U.S. Department of Education (DOE) guidance document stating that Title IX prohibits transgender discrimination and requires restroom access based on gender identity was entitled to judicial deference. This guidance was issued under the Obama administration, and, under the Trump administration, was recently withdrawn. As a result, the Supreme Court remanded the Gloucester case back to the lower appellate court for further consideration.

Thursday, March 2, 2017

Employment and Benefits Law Alert: Developments of the First 100 Days


Since the days of former President Franklin D. Roosevelt, the United States has closely tracked a new president’s first 100 days in office. Here at Gray Plant Mooty, our employment and labor law teams have been monitoring and will continue to track activity by the Trump administration in the employment and benefits law area. This alert is the first in what we intend to be a series of updates to our employer clients on key developments during the first 100 days.

Department of Labor Developments
When President Trump was elected in November 2016, the U.S. Department of Labor (DOL) was fighting multiple legal battles over rules it had promulgated during President Obama’s term in office. With President Trump’s election, the DOL’s commitment to moving forward with those rules is uncertain. We expect to know more if and when Alexander Acosta, the nominee for Secretary of Labor, is confirmed, but here is where the DOL lawsuits and related rules stand: