Labor & Employment Archives - Page 71 of 147

Limited Relief for Small Employers from ACA Restrictions in 21st Century Cures Act

The 21st Century Cures Act, just signed into effect by President Obama, provides limited relief to employers who wish to pay premiums for individual health insurance policies obtained by their employees or for other qualifying medical expenses their employees may incur. The Internal Revenue Service (IRS) has taken the position that the Affordable Care Act (ACA) bars these types of arrangements.

The relief applies only to employers who have fewer than 50 employees and do not offer a group health plan to any employees.

Further, the arrangement must meet certain conditions:

It must generally be offered on the same terms to all “eligible employees” (generally as defined under the non-discrimination rules applicable to self-funded group health plans).
It must be funded only by the employer (without involving any salary reduction contributions).
The employee must provide “proof of coverage.”
It provides payment or reimbursement only for eligible medical expenses (including health insurance premiums).
Payments cannot exceed $4,950 per year or $10,000 for a family (both adjusted for inflation).
The employer must provide employees with a specified notice on a timely basis.
In addition, the relief previously granted to small employers under IRS Notice 2015-17 has been retroactively extended to plan years beginning on or before Dec. 31, 2016.

If your company is a small employer under the ACA (50 full-time employees or less), it may pay, subject to the dollar limitations and other requirements summarized above, part or all of employees’ individual health insurance policy premiums and/or other qualified out-of-pocket medical costs related to their health insurance without being subject to excise taxes.

ARTICLE BY Stephen J Evans, Jonathan W. Igoe & Sarah Roe Sise of Armstrong Teasdale

How Does the 21st Century Cures Act Affect Employee Benefits?

There are two key benefits takeaways for employers in the bipartisan 21^st Century Cures Act, which President Obama signed into law on December 13, 2016.

The act, which passed both houses of Congress by large majorities, is designed to increase funding for medical research, ease the development and approval of experimental treatments, and reform federal mental healthcare policy.

Mental Health Parity Rules

Employers can expect increased enforcement, along with stricter interpretations, of the existing federal mental health parity rules in coming months and years.

Though the act does not expand requirements under the Mental Health Parity and Addiction Equity Act, Title XIII of the act directs the secretaries of the Department of Health and Human Services, the Department of Labor, and the Treasury to issue guidance within 12 months related to compliance with the mental health parity rules. The act also calls for increased coordination between federal and state authorities in enforcing the mental health parity rules.

In addition, when a group health plan or insurer is found to have violated the mental health parity rules five times, the secretaries are directed to audit the plan’s or insurer’s documents the following year to “help improve compliance” with the rules. By including such specific compliance measures directly within the act, Congress appears to be encouraging increased enforcement of the mental health parity rules in the coming months and years.

The act does make one substantive “clarification” to the existing mental health parity rules. If coverage is offered for eating disorder treatment, then the treatment (including residential treatment) must be provided consistent with the mental health parity rules.

Standalone HRAs for Small Employers

The Affordable Care Act effectively prohibited employers from offering employees health reimbursement arrangements that were not integrated with other group health plans (standalone HRAs).

The act rolls back that rule slightly—though only for employers that are not “large employers” for ACA purposes (generally, those that have 50 or more full-time equivalent employees) and that do not offer any health plan to employees.

Title XVIII of the act creates qualified small employer health reimbursement arrangements (QSEHRAs) which are available for plan years starting after 2016. A QSEHRA is an arrangement funded solely with employer money that provides for payment or reimbursement of medical care expenses, up to $4,950 per year for individuals ($10,000 per year for families). In addition, a QSEHRA must generally be provided to all eligible employees of the employer on the same terms, and the employer must provide notice to the eligible employees. These QSEHRAs could permit reimbursements for individual health insurance premiums, which is also generally not permitted under the ACA. In addition, QSEHRAs are not subject to the Consolidated Omnibus Budget Reconciliation Act’s (COBRA) continuation coverage requirement.

These rules will take effect on January 1, 2017, which means that eligible employers could begin offering a QSEHRA next month. For small employers that offered a standalone HRA before January 1, 2017, the act will extend certain transition relief. HRAs that qualify under Notice 2015-17 will continue to qualify for transition relief through the end of 2016.

ARTICLE BY Timothy J. Stanton & Jessica E. Kuester of Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

FLSA Overtime Rules Enjoined, NY Overtime Laws, National Origin Discrimination: Employment Law This Week [VIDEO]

District Court Enjoins FLSA Overtime Rules

Our top story: A federal court in Texas has temporarily enjoined new exemption rules issued by the U.S. Department of Labor (DOL). The rules, which would have dramatically increased salary thresholds for overtime exemptions, were set to go into effect on December 1. The district court judge found that the 21 states that brought the suit established a prima facie case that the DOL overstepped its authority in establishing the new rules. Because the Fair Labor Standards Act makes no reference to salary thresholds, the court found that any new thresholds might have to be created by Congress and not the DOL. If the injunction is made permanent, it could be the beginning of a lengthy appeals process, which would leave employers in limbo.

New York State Overtime Laws Likely to Proceed

While overtime expansion is stalled at the federal level, New York State’s plan to increase salary thresholds remains on track. The comment period for the proposed increase closed on December 3. Under the rule, thresholds for exempt employees would rise to $825.00 per week for large employers in New York City and $787.50 per week for employers in Nassau, Suffolk, and Westchester Counties. If the New York State Department of Labor proceeds with the new rule, it will go into effect on December 31 of this year.

EEOC Issues Updated Guidelines on National Origin Discrimination

The Equal Employment Opportunity Commission (EEOC) released updated guidance on national origin discrimination. The new guidelines address legal developments on issues like human trafficking and harassment in the workplace. The guidance includes over 30 examples of national origin discrimination, as well as best practices to reduce the risk of violation. The guidance also states that, if an employee’s accent “materially interferes” with his or her ability to communicate in spoken English and effective spoken communication in English is a job requirement, an employer can legally move that worker.

USCIS Increases Stability for Foreign Workers

The U.S. Citizenship and Immigration Services (USCIS) has issued a final rule that makes it easier for employers to sponsor and retain skilled foreign workers. The rule gives added job flexibility and protection to foreign workers in H-1B status or who are stuck in a long green card application process. USCIS’s rule also expands the eligibility of certain employers for H-1B cap exemptions and adds grace periods, so certain skilled workers can remain in the country for limited periods while in between jobs.

Tip of the Week

Last week, as part of the 21st Century Cures Act, the U.S. House of Representatives passed new mental health reform legislation intended to step up enforcement of rules requiring that insurers cover mental health care at the same level as they cover physical health care. The legislation could impact employers’ health insurance plans. For this week’s Tip of the Week, James Gelfand, Senior Vice President of Health Policy for The ERISA Industry Committee (ERIC), has some advice on how employers should update their plans in 2017 in order to remain compliant:

BY George Carroll Whipple, III of Epstein Becker & Green, P.C.

Fast-Food Restaurant CEO Tapped to Head Labor Department: What to Expect

President-elect Donald Trump has announced his intention to nominate Andrew Puzder, Chief Executive Officer of CKE Holdings, the parent company of Carl’s Jr. and Hardee’s, to head the U.S. Department of Labor.

Puzder was a lawyer in St. Louis and represented the founder of Carl’s Jr. He later became the general counsel for CKE and then its CEO. He has criticized state and local minimum wage increases, the Affordable Care Act (ACA), and government overregulation, among other things.

If Puzder is confirmed as Secretary of Labor, employers should look for the following changes.

Wage and Hour

Puzder is no fan of the DOL’s regulation expanding overtime protection.
Employers are holding their breath as the U.S. Court of Appeals for the Fifth Circuit considers an appeal by the DOL of a nationwide preliminary injunction issued by a Texas district court judge enjoining the DOL from implementing its highly publicized regulation expanding overtime coverage. Puzder’s nomination as Secretary of Labor could affect the regulation’s fate. In May 2016, the DOL issued a Final Rule more than doubling the required salary level required to satisfy the exemptions from overtime for “white collar” employees from $23,660 to $47,476. The Rule was set to become effective December 1, 2016. On November 22, 2016, however, days before the effective date, a Texas district court judge issued a nationwide preliminary injunction, blocking the regulation. The DOL filed an appeal, asking for expedited briefing, and the Fifth Circuit granted that request, requiring all briefing to be completed by January 31, 2017, just days after inauguration, with oral argument to be scheduled quickly after briefing is completed.
Whether the DOL under a Trump Administration would support the overtime Rule is unclear. However, Puzder has been an open critic of the overtime regulation. Writing in Forbes Magazine in May 2016, after the DOL published the final regulation, Puzder stated the regulation would not help workers, and “will simply add to the extensive regulatory maze the Obama Administration has imposed on employers, forcing many to offset increased labor expense by cutting costs elsewhere.” In practice, he said, “this means reduced opportunities, bonuses, benefits, perks and promotions.”
Fearing the DOL under Trump might abandon the appeal, and citing Puzder’s writings on the overtime rule specifically, the Texas AFL-CIO has filed a motion with the district court to intervene as a defendant and defend the Rule even if the DOL back out. Puzder’s criticisms of the regulation, and a Republican-controlled Congress, could mean one of Secretary of Labor Thomas Perez’s signature regulations, for which the DOL worked for over two years developing, may be at an end. The new Congress could simply pass legislation that would invalidate the rule and present it to Trump, regardless of the outcome of the Fifth Circuit appeal.
Puzder also has been a critic of large increases to the minimum wage.

Employee Benefits

Puzder has criticized the ACA repeatedly as another government mandate that has caused labor cost increases and led to job cuts. The DOL, along with the Department of Health and Human Services (HHS) and Internal Revenue Service (IRS), is responsible for the majority of the regulations issued under the ACA. With Puzder heading the DOL, Trump will have an ally and partner in dismantling the ACA.
Puzder’s anti-regulation perspective likely will mean strong opposition to the DOL’s fiduciary rule, which expands the scope of who acts as a fiduciary and has significantly affected the financial services industry. Currently slated to go into effect in April 2017, the fiduciary rule will be at the top of the Secretary’s list of priorities.
Generally, Puzder’s favoring of market forces, as opposed to government regulation or mandated benefits, signals a penchant toward steering the DOL in ways that favor competition between employers for talent based on compensation and benefit packages. Appointments of the assistant Secretary of Labor of the Employee Benefits Security Administration (EBSA) and members of the ERISA Advisory Council also are eagerly anticipated as they are key in the direction of rulemaking and enforcement of ERISA and other employee benefit initiatives.

Federal Contracts (Office of Federal Contract Compliance Programs)

A new, more business-friendly Director of Office of Federal Contract Compliance Programs (OFCCP) likely will be focused on the regulatory burdens on mid-size and small businesses. This should shape an agenda of deregulation that may roll back regulations, including those governing paid sick leave, minimum wage, pay transparency, sex discrimination, and lesbian, gay, bisexual, and transgender (LGBT) discrimination.
A shift in how OFCCP approaches its auditing function also may come from a new leader. For example, a move away from the OFCCP’s current Active Case Enforcement system to one closer to that used by the George W. Bush administration (Active Case Management) would bring more efficient, high-level compliance reviews in most instances, with deeper dives reserved for the few audits with major indicators of potential discrimination.
There also may be a change in OFCCP enforcement priorities. OFCCP likely will not look to push boundaries, create new law through litigation, or publicly shame employers. We can expect a shift in the OFCCP’s push to address the gender pay gap and it may step back from comparable worth theories of pay discrimination. Finally, such programs as the Class Member Locator, the online registry of employers that OFCCP had cited for a discrimination violation, likely will disappear.

Immigration

As the CEO of CKE, Puzder brings a unique perspective on the role of foreign-born workers in U.S. businesses. Puzder has stated frequently that immigrants play a vital role in growing U.S. businesses, spurring innovation and creating jobs. Puzder will be an important and potentially moderating voice related to immigrant and nonimmigrant work visas.

Labor

The nomination of Puzder and the recent deal to keep an Indiana facility from closing to retain more U.S. jobs signal both Trump’s and nominee Puzder’s focus on ensuring that labor relations fits within a broader economic picture.
Puzder believes, as does Trump, that free enterprise will result in job growth. It is likely that the new Secretary of Labor will seek to remove burdensome regulations and be more business-friendly. For example, we anticipate changes to the DOL’s efforts to expand the definition of joint employer status, which the National Labor Relations Board (NLRB) also has expanded under the Obama Administration. Consistent with this approach, Trump (immediately after his inauguration) may repeal many of President Barack Obama’s executive orders, including (among others) Executive Order 13658 (Establishing a Minimum Wage for Contractors), Executive Order 13673 (Fair Pay and Safe Workplaces), and Executive Order 13502 (Use of Project Labor Agreements for Federal Construction Projects).

Workplace Safety and Health

Puzder currently heads a company that is not heavily regulated by the Occupational Safety and Health Administration (OSHA). He has stated, however, that new regulation may not be the best way to effect policy change and that view could trickle down to OSHA and the Mine Safety and Health Administration.

Non-Competes and Protection Against Unfair Competition

Puzder would be unlikely to latch onto the assault against non-compete agreements advanced by the Treasury Department in its March report and by the White House in its May report and October “state call to action.” Given his business background, Puzder would understand the utility of non-compete agreements, even with respect to low-wage earners, because they serve to protect the employer’s investment in training such workers.

Disability, Leave and Health Management

Puzder may be more willing to reduce or eliminate the burdens associated with the paid sick leave executive order that is scheduled to go into effect for new contracts after January 1, 2017. The Executive Order currently makes it very difficult for businesses to identify when paid sick leave accrues (pushing many employers to provide more than required), makes it difficult to coordinate with state and local paid sick leave laws, and makes it easier for employees to abuse the system and use the benefit to thwart any attendance policy. Businesses that operate in multiple states likely would welcome some form of federal measure that simplifies paid sick leave benefit administration, aligns federal, state, and local benefits, and provides an ERISA-type preemption.
Under Puzder, the DOL likely will be more business-minded with respect to issues under the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA). This would result in the administration taking less aggressive stances (including in terms of litigation) on these laws and fewer attempts to expand the coverage of these statutes.

ARTICLE BY General Employment Litigation Practice Group Jackson Lewis

Wal-Mart to Pay $75,000 to Settle EEOC Disability Lawsuit

CHICAGO – Wal-Mart Stores Inc. will pay a former employee $75,000 to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced yesterday.

EEOC’s lawsuit charged Wal-Mart with violating federal discrimination law when the giant retailer failed to accommodate Nancy Stack, a cancer survivor with physical limitations, and subjected her to harassment based on her disability. Stack worked at a Walmart store in Hodgkins, Ill.

As a workplace accommodation, Stack needed a chair and a modified schedule. EEOC alleged that while the store provided Stack with a modified schedule for a period of time, it revoked the accommodation for no stated reason. Further, according to EEOC, the store did not ensure that a chair was in Stack’s work area, telling her that she had to haul a chair from the furniture department to her work area, a task that was difficult, given her disability. Making matters even worse, EEOC alleged that a co-worker harassed Stack by calling her “cripple” and “chemo brain.”

Wal-Mart’s alleged conduct violates the Americans with Disabilities Act (ADA), which prohibits discrimination on the basis of disability, which can include denying reasonable accommodations to employees with disabilities and subjecting them to a hostile work environment. EEOC filed suit in U.S. District Court for the Northern District of Illinois, Eastern Division (Equal Employment Opportunity Commission v. Wal-Mart Stores, Inc.; Civil Action No. 15-cv-5796.)

Wal-Mart will pay $75,000 in monetary relief to Stack as part of a consent decree settling the suit, signed by U.S. District Judge Sharon Coleman on Dec. 6th. The two-year decree also provides additional, non-monetary relief intended to improve the Hodgkins store’s workplace. Under the decree, the store will train employees on disability discrimination and requests for reasonable accommodations under the ADA. The Walmart store will also monitor requests for accommodation and complaints of disability discrimination and report those to EEOC.

“Wal-Mart refused to provide simple, effective and inexpensive accommodations in the form of a chair and modified schedule and failed to protect Stack from mocking because she had cancer,” said John Hendrickson, regional attorney of EEOC’s Chicago District Office. “Both the failure to provide accommodations and to stop the harassment violated federal law, and we are pleased with today’s settlement. Ms. Stack will receive monetary recompense from Wal-Mart, and the company will be required to educate its workforce on employees’ rights and on its own obligations under the law.”

You can review this press release in its entirety on the EEOC website here.

EEOC’s Chicago District Office is responsible for processing charges of employment discrimination, administrative enforcement, and the conduct of agency litigation in Illinois, Wisconsin, Minnesota, Iowa and North and South Dakota, with Area Offices in Milwaukee and Minneapolis.

ARTICLE BY U.S. Equal Employment Opportunity Commission

Reminder: USCIS Fee Increase Effective December 23, 2016

Any employer anticipating submission of an immigration application or petition should consider filing prior to December 23, 2016, to avoid higher USCIS filing fees.

On October 24, 2016, USCIS announced a final rule that adjusts the required fees for most immigration applications and petitions. This will be the first increase in six years and, according to USCIS, the increase is needed in order to recoup higher costs associated with customer service, case processing, fraud detection, and national security. USCIS is almost entirely funded by application and petition fees.

Another reminder: most nonimmigrant extension requests can be submitted up to 180 days prior to the expiration of the foreign national employee’s current status. Employers may want to consider filing these extension requests prior to December 23, 2016, if the individual is eligible.

Examples of the increased fees:

from $325 to $460 for Form I-129 (i.e., nonimmigrant petition filings seeking visa status such as H-1B, L-1, TN),
from $580 to $700 for Form I-140 (i.e., immigrant petition for an alien worker), and
from $1070 to $1,225 (including required biometrics fee) for Form I-485 (i.e., application to register permanent residence or adjust status).

Immigration applications or petitions postmarked or filed on or after December 23, 2016, without the new increased fees will be rejected. To avoid delay because of insufficient filing fees, new applications or petitions should be sent in well in advance of the scheduled fee increase.

ARTICLE BY Meredith K. Stewart of Jackson Lewis P.C.

Adjusting Wage Rates? Be Mindful of State Notice Requirements

Even employers who were opposed to the new overtime regulations are in a quandary after the District Court for the Eastern District of Texas enjoined the Department of Labor from implementing new salary thresholds for the FLSA’s “white collar” exemptions.

Will the injunction become permanent? Will it be upheld by the Fifth Circuit?

Will the Department of Labor continue to defend the case when the Trump Administration is in place?

What does the rationale behind the District Court’s injunction (that the language of the FLSA suggests exempt status should be determined based only on an employee’s duties) mean for the $455-per-week salary threshold in the “old” regulations?

Whether employers can reverse salary increases that already have been implemented or announced is an issue that should be approached carefully.

For example, employers should be aware that state law may specify the amount of notice that an employer must provide to an employee before changing his or her pay.

In most states, employers merely need to give employees notice of a change in pay before the beginning of the pay period in which the new wage rate comes into effect.

But some states require impose additional requirements. The New York Department of Labor, for example, explains that if the information in an employee’s wage statement changes, “the employer must tell employees at least a week before it happens unless they issue a new paystub that carries the notice. The employer must notify an employee in writing before they reduce the employee’s wage rate. Employers in the hospitality industry must give notice every time a wage rate changes.”

Maryland (and Iowa) requires notice at least one pay period in advance. Alaska, Maine, Missouri, North Carolina, Nevada and South Carolina have their own notice requirements.

Employers who are making changes to wage rates based on the status of the DOL’s regulations should be nimble – while also making sure that they are providing the notice required under state law.

ARTICLE BY Michael D. Thompson of Epstein Becker & Green, P.C.

USCIS Publishes Final Rule for Certain Employment-Based Immigrant and Non-Immigrant VISA Programs

USCIS has published a final rule to modernize and improve several aspects of certain employment-based nonimmigrant and immigrant visa programs and to better enable U.S. employers to hire and retain certain foreign workers who are beneficiaries of approved employment-based immigrant visa petitions and are waiting to become lawful permanent residents. One of the provisions in this rule will automatically extend the employment authorization and validity of Employment Authorization Documents (EADs or Form I-766) for certain individuals who apply on time to renew their EADs in the same employment eligibility category. In these situations, an employee who has an expired EAD will be able to provide that expired EAD in combination with Form I-797C, Notice of Action, for the renewal application as a List A document for Form I-9. This rule goes into effect on Jan. 17, 2017.

Among other points, DHS is amending its regulations to:

Clarify and improve longstanding DHS policies and practices implementing sections of the American Competitiveness in the Twenty-First Century Act and the American Competitiveness and Workforce Improvement Act related to certain foreign workers, which will enhance USCIS’ consistency in adjudication.
Better enable U.S. employers to employ and retain high-skilled workers who are beneficiaries of approved employment-based immigrant visa petitions (Form I-140 petitions) while also providing stability and job flexibility to these workers. The rule increases the ability of these workers to further their careers by accepting promotions, changing positions with current employers, changing employers and pursuing other employment opportunities.
Improve job portability for certain beneficiaries of approved Form I-140 petitions by maintaining a petition’s validity under certain circumstances despite an employer’s withdrawal of the approved petition or the termination of the employer’s business.
Clarify and expand when individuals may keep their priority date when applying for adjustment of status to lawful permanent residence.
Allow certain high-skilled individuals in the United States with E-3, H-1B, H-1B1, L-1 or O-1 nonimmigrant status, including any applicable grace period, to apply for employment authorization for a limited period if:

They are the principal beneficiaries of an approved Form I-140 petition,
An immigrant visa is not authorized for issuance for their priority date, and
They can demonstrate compelling circumstances exist that justify DHS issuing an employment authorization document in its discretion.

Such employment authorization may only be renewed in limited circumstances and only in one year increments.

Clarify various policies and procedures related to the adjudication of H-1B petitions, including, among other things, providing H-1B status beyond the six year authorized period of admission, determining cap exemptions and counting workers under the H-1B cap, H-1B portability, licensure requirements and protections for whistleblowers.
Establish two grace periods of up to 10 days for individuals in the E-1, E-2, E-3, L-1, and TN nonimmigrant classifications to provide a reasonable amount of time for these individuals to prepare to begin employment in the country and to depart the United States or take other actions to extend, change, or otherwise maintain lawful status.
Establish a grace period of up to 60 consecutive days during each authorized validity period for certain high-skilled nonimmigrant workers when their employment ends before the end of their authorized validity period, so they may more readily pursue new employment and an extension of their nonimmigrant status.
Eliminate the regulatory provision that requires USCIS to adjudicate the Form I-765, Application for Employment Authorization, within 90 days of filing and that authorizes interim EADs in cases where such adjudications are not conducted within the 90-day timeframe.

We will provide information and guidance regarding the automatic extension and other Form I-9 aspects of the rule prior to the effective date.

ARTICLE BY Victoria M. Garcia & Nelli Nikova of Bracewell LLP

EEOC Issues Guidance on National Origin Discrimination that Applies to Foreign National Employees

EEOC, National Origin Discrimination This week the Equal Employment Opportunity Commission (“EEOC”) released guidance regarding national origin discrimination under Title VII of the Civil Rights Act of 1964 (Title VII). The guidance replaces Section 13 of the EEOC’s compliance manual, with a view toward further defining “national origin” and helping employers and employees understand their legal rights and responsibilities. The guidance specifically states that Title VII applies to any worker employed in the United States by a covered employer (employer with more than four employees), regardless of immigration status, as well as any foreign national outside the United States when they apply for U.S.-based employment.

The new guidance defines “national origin” as an individual’s, or his or her ancestors’, place of origin, which can be a country (including the United States), a former country, or a geographic region. In addition, “national origin” refers to an individual’s national origin group or ethnic group, which it defines as “a group of people sharing a common language, culture, ancestry, race, and/or other social characteristics.” Discrimination based on national origin group includes discrimination because of a person’s ethnicity (e.g., Hispanic) or physical, linguistic, or cultural traits (e.g., accent or style of dress). Discrimination based on place of origin or national origin group includes discrimination involving a mere perception of where a person is from (e.g., Middle Eastern or Arab), association with someone of a particular national origin, or citizenship status. Title VII discrimination can take the form of unfavorable employment decisions based on national origin or harassment so pervasive or severe that it creates a hostile work environment.

In addition to clarifying the meaning of “national origin,” the guidance provides examples based on how actual courts have applied Title VII to specific facts. For example, the guidance gives as an example of “intersectional” discrimination a Mexican-American woman who, without explanation, was denied a promotion at a company where she successfully worked for 10 years, despite two non-Mexican women and a Mexican man being selected for the same position. The guidance also provides examples where national origin discrimination overlaps with other protected bases, such as discriminating against people with origins in the Middle East due to a perception that they follow certain religious practices. Further, the guidance gives examples of real cases where employment decisions and harassment constituted Title VII national origin violations, as well as cases where Title VII violations were not found. Finally, the guidance applies Title VII national origin principles to trafficking cases, where employers use force, fraud, or coercion to compel labor or exploit workers, and such conduct is directed at an individual or a group of individuals based on national origin.

Employers of foreign national workers should note that individuals with Title VII claims may also have claims under other Federal statutes, including the anti-discrimination provision of the Immigration and Nationality Act (INA). Form I-9 and the E-Verify program are two areas where discrimination claims could arise under both the INA and Title VII.

ARTICLE BY Kristin Aquino-Pham of Greenberg Traurig, LLP

FLSA Salary Basis Increase Put On Hold For Entire Country – What Now?

“The Court finds the public interest is best served by an injunction.” With those words, a district court in Texas put on hold the implementation of the new rules applicable to the White Collar Exemptions under the Fair Labor Standards Act (FLSA). The rules, originally scheduled to go into effect on Dec. 1, 2016, have been indefinitely delayed for employers throughout the United States.

In granting the injunction, the court stated that the plaintiffs (various states and business groups) challenging the rule had shown a likelihood of success in their arguments that the Department of Labor (DOL) exceeded its statutory authority in issuing the rule. As a result, the court will now spend time reviewing the arguments of both parties in depth before making a final decision.

The next big date is Jan. 20, 2017, when President-elect Donald J. Trump is sworn in as president. It is not clear what a DOL under President Trump would do with the rule. Watch for hints about what could happen with the rule in the news media over the next few weeks, especially when President-elect Trump names a nominee for secretary of the DOL.

Will the judge lift the injunction and allow the rule to be implemented before Jan. 20, 2017?

The judge has already started the process for accepting arguments from both parties, and it is possible he could make a final decision before Jan. 20, 2017. That decision, however, could be appealed no matter who wins at the district court level. During an appeal, the injunction could remain in place.

Practically, what does this mean for employers?

It means you have options. In large part, an employer’s next steps depend on the message that has been delivered to employees already and systems you have in place to implement the new rule. Has the company informed those to-be-newly-non-exempt employees that they would start receiving overtime compensation as of Dec. 1? If so, then the company will need to decide whether to roll back that promise. (Note that, if you conducted an audit and determined that, based on the employee’s responsibilities they do not meet the duties test, you should nonetheless reclassify them as non-exempt to avoid potential claims in the future). Overtime for those newly non-exempt employees may not be required any longer as of Dec. 1, but a company must balance what is required by law with the human resources impact of taking that potential benefit away from employees.

ARTICLE BY Tom O’Day of Godfrey & Kahn S.C.

Category: Labor & Employment

Limited Relief for Small Employers from ACA Restrictions in 21st Century Cures Act

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How Does the 21st Century Cures Act Affect Employee Benefits?

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FLSA Overtime Rules Enjoined, NY Overtime Laws, National Origin Discrimination: Employment Law This Week [VIDEO]

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