Ohio court whittles away at employers’ defense of voluntary abandonment of employment in workers’ compensation cases

By Rebecca Kopp Levine on April 13, 2018

In Ohio, it has been a long-standing principle that an employee injured at work could lose eligibility for temporary total disability compensation in a workers’ compensation claim when the employee is terminated by the employer for violation of a written work rule. The written work rule must define clearly the prohibited conduct, identify the conduct as a dischargeable offense, and was known or should have been known by the employee.

However, a recent court decision by the Franklin County Court of Appeals in State ex rel. Demellweek v. Indus. Comm, is limiting this defense for employers. In its ruling, the court held that employers will not be entitled to use the voluntary abandonment doctrine as a defense when the employer terminates an employee for a minor infraction. Continue Reading

Recent Supreme Court decision holds that FLSA exemptions are to be construed fairly

By Fred Pressley on April 10, 2018

Many thanks to Arslan Sheikh for his assistance in preparing this post.

In a decision issued on April 2, 2018 the Supreme Court of the United States held in Encino Motorcars, LLC v. Navarro that service advisors at an auto dealership are exempt from the Fair Labor Standards Act’s (FLSA) overtime pay requirement. Most importantly, the Court also rejected the 9th Circuit’s holding and Department of Labor policy that FLSA exemptions should be construed narrowly. Instead, courts should apply a fairness test to determine whether a particular job is covered under the exempt classifications of the act. As a result, employers should be aware of this recent decision and consider how it may apply to them. Continue Reading

Sixth Circuit holds that Title VII prohibits discrimination based on transgender and transitioning status notwithstanding the employer’s religious objections

By Caroline Gentry on March 19, 2018

Employers cannot discriminate against employees based on their transgender or transitioning status, despite (at least in some cases) the employer’s sincere religious objections. Those are the key takeaways of the 6^th Circuit’s landmark decision in EEOC v. R.G. & G.R. Employers who are subject to Title VII, particularly those in the 6^th Circuit (i.e., Kentucky, Michigan, Ohio and Tennessee), should review their policies to ensure that they comply with this decision.

In EEOC v. R.G., the Equal Employment Opportunity Commission (EEOC) filed suit under Title VII after a Michigan funeral director, Aimee Stephens, was fired because of her intent to transition from male to female. The owner of the funeral home, Thomas Rost, is a lifelong Christian who believes that employing a transgender funeral director will make him complicit “in supporting the idea that sex is a changeable social construct rather than an immutable God-given gift.” Rost also believes that employing a transgender funeral director will distract his clients and interfere with their healing process, will interfere with his calling to serve God by ministering to grieving people, and will pressure him to leave the funeral industry and end his ministry.

Wage and Hour Division announces pilot limited “amnesty” program

By Brian Hall on March 8, 2018

The U.S. Department of Labor’s Wage and Hour Division (WHD) has announced a new nationwide pilot program, called the Payroll Audit Independent Determination (PAID) program, which is designed to facilitate resolution of potential overtime and minimum wage violations under the Fair Labor Standards Act (FLSA). According to the WHD’s website describing the program, the program’s primary objectives are to resolve wage and hour claims expeditiously and without litigation, to improve employers’ compliance with overtime and minimum wage obligations and to ensure that more employees promptly receive any owed back wages.

WHD states that it will implement this pilot program nationwide for approximately six months. At the end of the pilot period, WHD will evaluate the effectiveness of the pilot program, as well as potential modifications to the program to determine its next steps. Continue Reading

Second Circuit holds that Title VII prohibits sexual orientation discrimination

By Caroline Gentry on March 7, 2018

In a landmark decision, the 2^nd Circuit Court of Appeals in Zarda v. Altitude Express, Inc., en banc, became the second federal appellate court to hold that Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e-2(a)), which makes it unlawful for employers to discriminate on the basis of sex, also prohibits discrimination on the basis of a person’s sexual orientation. It appears that the defendant does not intend to seek Supreme Court review. Therefore, employers subject to Title VII, particularly those in the Second Circuit (i.e., Connecticut, New York and Vermont), should know about this opinion and consider how and whether it may apply to them.

ADA public accommodations law reform on its way?

By Jamie LaPlante on February 16, 2018

Yesterday (Feb. 15, 2018), The U.S. House of Representatives passed a bill, the ADA Education and Reform Act (HB 620), that would impose new requirements on plaintiffs before they file a lawsuit. Places of public accommodations, including websites and apps, would have 6 months to bring their place of public accommodation into compliance before a claimant could file a lawsuit seeking injunctive relief and attorneys’ fees.

Any employer who is also a place of public accommodation knows that lawsuits under the Americans with Disabilities Act (ADA) Title III have long posed a problem for businesses. Businesses want to comply but are often unaware of minor issues of noncompliance at their facilities. This law, if it passes the Senate and is signed by President Trump, would allow businesses notice of the alleged issues of noncompliance and a grace period to fix the issues before they would face potential liability for attorneys’ fees and costs.

USCIS Administrative Appeals Office issues important non-precedent decisions on wage level determinations for H-1B petitions

By Rob Cohen on January 26, 2018

Beginning in the summer of 2017, employers began to see an increase in Requests for Evidence (RFE) from USCIS on H-1B petitions alleging that the occupation was not a specialty occupation because the employer assigned a level 1 wage. Two recent decisions from the Administrative Appeals Office (AAO) indicate that this may no longer be an concern.

Some background to this issue is helpful. The H-1B visa is available for foreign nationals who will be performing services in a specialty occupation. The specialty occupation is a field that requires a specific educational background as a minimum qualification to perform the duties of the position. The statute also imposes an obligation to pay the “prevailing wage” or the actual wage, whichever is higher, as a measure to protect U.S. workers against unfair competition from foreign workers willing (or coerced) to work for substandard wages. The employer may calculate the prevailing wage by using the data provided by the Bureau of Labor Statistics for occupations and locations nationwide. The Department of Labor has issued guidance on how to determine which of the four wage levels provided in the data should be selected, based upon the normal requirements for the occupation compared to the employer’s requirements for the specific position.

NLRB discards Obama-era decisions

By Jourdan Day on January 10, 2018

After Republicans regained control of the majority seats on the National Labor Relations Board (NLRB or the board) for the first time in nearly nine years, the majority has swiftly reset the board’s tone. Recently, the NLRB has been busy taking steps to undo some of the more labor and employee friendly standards and opinions that were implemented under the Obama Administration. The result is a return to what many employers would consider to be a common sense approach. Continue Reading

Administration disavows proposal to limit all H-1Bs to six years

By Rob Cohen on January 9, 2018

On Dec. 30, 2017 McClatchy News reported that USCIS was considering an interpretation of a provision in the American Competitiveness in the Twenty First Century Act that would restrict H-1B visas from extensions beyond six years. This story provoked a fire storm of panic among Indian H-1B visa holders who have been waiting for an available immigrant visa while caught in backlogs often in excess of 10 years and longer. While many lawyers cautioned that the statute could only be interpreted to withhold three year extensions but not one year extensions (creating only a more pronounced processing backlog but not substantively impacting the right to remain and work in the United States), various other sources argued that the Administration could indeed eliminate a statutory provision provided by Congress.

Today, McClatchy News reported that that the Administration is not considering such an interpretation. The article notes that the Administration is backing away from the proposal in light of the extreme pressure. But, according to the USCIS spokesman: “USCIS was never considering such a policy change and that ‘any suggestion that USCIS changed its position because of pressure is absolutely false.’ ”

The story published this morning eliminates the fear that the Administration will move to end the H-1B eligibility for tens of thousands of immigrants waiting for a green card. The Administration has announced that the Buy American Hire American Executive Order issued on April 18, 2017 provides a mandate to scale back the program. USCIS is examining H-1B regulations and policies, and we anticipate further announcements that will likely restrict the H-1B program in additional ways. We will have a better idea of the parameters being considered when the proposed new regulations are published.

D.C. Federal Judge vacates the EEOC’s Workplace Wellness Program Rules, effective Jan. 1, 2019

By Jamie LaPlante on January 4, 2018

On Dec. 20, 2017, a D.C. federal judge held that the Equal Employment Opportunity Commission (EEOC)’s workplace wellness program rules – which permit employers to incentivize employees who participate in workplace wellness programs—will be vacated on Jan. 1, 2019. The judge held that the EEOC failed to provide a reasoned explanation for the rules, which he believed violated the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) without a reason for permitting an exception to the normal rules prohibiting disability-related inquiries, medical examinations and requesting genetic information. The judge further ordered the EEOC to promulgate any new proposed rules by Aug. 31, 2018 and to file a status report on the agency’s schedule for rulemaking by March 30, 2018.