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.

Wednesday, January 25, 2017

Class Action Update: U.S. Supreme Court to Address Circuit Split on Whether Class-Action Waivers in Employment Arbitration Agreements are Enforceable

In our December 16, 2016, post, we reported that petitions for certiorari to the U.S. Supreme Court were filed with respect to five U.S. Circuit Courts of Appeals opinions concerning whether arbitration clauses requiring individual arbitration in lieu of class or collective lawsuits (class-action waivers) are invalid under federal labor law. There is a clear circuit divide on this issue, the resolution of which will impact thousands of employers and potentially millions of American workers.

Friday, January 20, 2017

Court Says Non-Minneapolis Employers Not Likely Required to Comply with City’s Paid Sick Time Ordinance; New I-9 Form Must Now Be Used

While the presidential inauguration is front and center, here are two quick items employers will want to take note of:
  1. A Hennepin County Court judge has issued an order temporarily blocking enforcement of Minneapolis’s new paid sick time ordinance against employers who are not located within the city limits.
  2. There is a new I-9 form that must be used starting this Sunday, January 22. Previous versions of the I-9 may not be used with new hires after that date.

Thursday, January 12, 2017

Bullying in the Workplace: Although Perhaps Not Illegal, it Certainly Comes with a Cost

I recently read an interesting article noting the increase of employees reporting that they have been treated rudely or uncivilly by a boss or colleague in the workplace. The topic of workplace bullying or the “bully boss” has received significant attention over the last few years. Some researchers have noted that even highly performing employees may face this type of negative behavior. It is a situation that can create frustration for employers, but which typically does not give a bullied employee a legal claim unless the workplace bullying is tied to unlawful discrimination, sexual harassment, or prohibited retaliation.