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 This guidance was issued under the Obama administration, and, under the Trump administration, was recently withdrawn.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:

Thursday, February 23, 2017

The FLSA “Rounding Rule” – Well-Rounded Procedures to Reduce Class Action Risks

Many employers round the time of arrival or departure for non-exempt employees to the nearest five minutes, tenth of an hour, or quarter of an hour. Many of those employers have rounded time for years without thinking about whether doing so is legal. Recently, a number of class action suits have been brought against employers based on their rounding practices. Those suits have highlighted the fact that, while the Fair Labor Standards Act (FLSA) does allow rounding of time, there are very specific requirements that must be met to do so.

The FLSA requires that employers pay their workers for every hour they're on the job. However, the Department of Labor, which administers the law, recognizes that it's impractical to count every individual minute of work time or to require that employees start and stop working on exact increments. As a result, the regulations allow for rounding as long as it is done neutrally or favors the employee. In other words, the employer must round up and also round down.

Friday, February 17, 2017

A New Labor Nominee, but Future of FLSA Exempt Salary Rule Remains Uncertain

On Thursday, President Trump named Alexander Acosta as his nominee for U.S. Secretary of Labor following the withdrawal of his initial choice, Andrew Puzder. Mr. Puzder withdrew his name from consideration after he apparently lost support from several Republican senators necessary for his confirmation.

Mr. Acosta is Trump’s first Hispanic nominee and has previously been confirmed by the Senate for multiple federal government positions. Mr. Acosta has not been as outspoken on employment and labor issues as Mr. Puzder, making Mr. Acosta’s confirmation less controversial and more likely. Mr. Acosta’s primary labor and employment experience comes from his former service as a member of the National Labor Relations Board.

Friday, February 3, 2017

Supreme Court Nominee Neil Gorsuch: How Might He Impact Labor and Employment Law at the Nation’s Highest Court?

On January 30, President Trump nominated Neil Gorsuch to fill the Supreme Court seat that has been vacant since Antonin Scalia’s sudden passing in February 2016. You may recall that President Obama previously nominated Merrick Garland to fill this seat, but he was never confirmed because Senate Republicans refused to hold a confirmation hearing.  Gorsuch is currently a judge on the U.S. Tenth Circuit Court of Appeals, which has jurisdiction over federal court cases in Colorado, Utah, Oklahoma, New Mexico, Wyoming, and Kansas. He received his undergraduate degree from Columbia University in 1988 and his law degree from Harvard University in 1991. Interestingly, Judge Gorsuch was in the same law school class as President Obama, who also received his undergraduate degree from Columbia.

The similarities between Judge Gorsuch and President Obama appear to end at their education. Judge Gorsuch is known for being a conservative legal scholar and jurist, and he has praised the late Justice Scalia’s strict constructionist judicial approach. Judge Gorsuch’s judicial decisions reflect this philosophy, as he generally has taken pro-employer stances in his labor and employment cases before him.

Monday, January 30, 2017

EEOC Seeks Public Comment on Proposed Harassment Guidance

Earlier this month, the Equal Employment Opportunity Commission (EEOC) issued a proposed guidance document on workplace harassment. The EEOC is seeking public comment on the guidance through February 9, 2017.

Preventing systemic harassment is listed as a priority in the EEOC’s Strategic Enforcement Plan for 2017-2021. In 2015, harassment charges represented over 30 percent of all charges filed with the EEOC. The same year, the EEOC created a task force to analyze workplace harassment and identify innovative and creative prevention strategies. The task force issued its findings and recommendations in 2016, leading to the recently proposed guidance.