Law and the Workplace

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DOL Withdraws Obama-Era Administrator’s Interpretations on Independent Contractors and Joint Employment

Employers across the U.S. were troubled by the sub-regulatory guidance issued by the DOL in 2015 and 2016 on independent contractors and joint employment.  Today, the DOL announced the withdrawal of that guidance (Administrator’s Interpretations No. 2015-01 (July 15, 2015, on independent contractors) and No. 2016-01 (Jan. 20, 2016, on joint employment)). As you may … Continue Reading

SCOTUS Denies Cert in Regular Rate Case; Ninth Circuit Decision Requiring Overtime on “Cash-in-Lieu” of Benefits Stands

Even the Supreme Court doesn’t want to talk about the regular rate of pay. The City of San Gabriel, California, provides a flexible benefits plan to its employees under which they receive a designated monetary amount to be used to purchase medical, vision, and dental benefits. Employees can decline to purchase medical benefits (say, because … Continue Reading

Immigration Fact and Fiction for the U.S. Employer: Is There a Future for H-1b Visa Holders After The President’s Executive Order of April 18, 2017?

We commented on all those public announcements about H-1B’s in our blog of April 5, 2017, skeptical as to whether they indicated that the program would really be restructured. Then on April 18, the President issued his Executive Order: Buy American and Hire American.  The prior agency announcements coupled with this Executive Order have created … Continue Reading

Immigration Fact and Fiction for the U.S. Employer: All Those Announcements About H-1B’s – Is the Program Really Being Restructured?

Timed to coincide with the date when thousands upon thousands of H-1B petitions, subject to the quota cap limitation are filed with Service Centers of United States Citizenship and Immigration Services, various government entities, talking tough, made announcements describing changes in how H-1B petitions would be handled. USCIS posted a notice “Combating Fraud and Abuse … Continue Reading

Immigration Fact and Fiction for the U.S. Employer: CBP Searching Electronic Devices – A New Thing?

There has been heightened interest and concern regarding the potential for U.S. Customs and Border Protection (CBP) to search laptops and smart phones at the port of entry, due to the mention of such searches in one of President Trump’s recent Executive Orders. But, the search of these devices is not new. In fact, this … Continue Reading

Immigration Fact and Fiction for the U.S. Employer: Customs and Border Protection (CBP) When You Depart the United States – Cash in Hand

Moving forward in our series of separating fact from fiction, we address the question whether Customs and Border Protection (CBP) plays any role when a passenger, even a United States citizen departs the United States. It is widely known that if an individual brings into the United States currency or negotiable monetary instruments, they must … Continue Reading

Immigration Fact and Fiction for the U.S. Employer: Know Your Rights – 5 Things to Tell Your Foreign National Employee in the Current Climate

On February 21, 2017, Department of Homeland Security (DHS) released two memoranda signed by DHS Secretary Kelly addressing immigration enforcement.  While a sitting President cannot independently modify laws or regulations without going through the normal rule making process, he/she can significantly alter policy and enforcement priorities.  These two memoranda are a clear example of a … Continue Reading

Third Circuit Permits ADEA “Subgroup” Claims

The Third Circuit recently held in Karlo v. Pittsburgh Glass Works, LLC, No. 15-3435, 2017 WL 83385 (3d Cir. Jan. 10, 2017), that workers in their 50s may be recognized as a “subgroup” of employees protected by the Age Discrimination in Employment Act (“ADEA”) if employer policies inadvertently disfavor them relative to their co-workers who … Continue Reading

Click Here — 3rd Circuit Enforces Restrictive Covenants Tied to Electronic Acceptance of Stock Award

On February 7, 2017, the Third Circuit affirmed a partial preliminary injunction order barring two former ADP employees from soliciting customers for their new employer for one year. This decision is notable as it affirmed the propriety of electronic acknowledgements and rejected a creative challenge to ADP’s electronic signature system. See ADP, LLC v. Lynch, … Continue Reading

Trump DOL Presses Pause Button on Appeal of Overtime Rule Injunction

Remember the new federal overtime rule that was going to double the minimum salary for the “white collar” exemptions?  In November, a Texas district court issued a nationwide injunction preventing the rule from taking effect.  The DOL successfully petitioned the Fifth Circuit for an expedited appeal of the injunction in December, and briefing was to … Continue Reading

Proskauer’s Value Insights Survey is Now Live

Proskauer’s second Value Insights: Delivering Value in Labor and Employment Law survey is now live and we want to hear from you. Value Insights explores how in-house counsel can maximize the value they provide to their business partners and correspondingly, how they can most effectively partner with outside counsel on managing labor and employment work. … Continue Reading

UPDATED: EEOC Seeks Public Comment on Proposed Enforcement Guidance on Unlawful Harassment

EEOC sealThe EEOC is seeking public comment on proposed enforcement guidance addressing unlawful workplace harassment under the federal anti-discrimination laws enforced by the agency – namely, Title VII of the Civil Rights Act of 1964 (Title VII), the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA).  … Continue Reading

Texas Judge Denies DOL’s Motion to Stay District Court Overtime Litigation Pending Appeal

Earlier today Judge Amos Mazzant of the Eastern District of Texas denied the motion of the U.S. Department of Labor to stay further district court proceedings in the overtime litigation.  The DOL had asked the district court—which has already issued a preliminary injunction blocking the DOL’s new overtime rule from taking effect—to refrain from taking … Continue Reading

Fifth Circuit Joins Sister Circuits in Holding That Employees May Recover Emotional Distress Damages in FLSA Retaliation Suits

On December 19, 2016, the Fifth Circuit joined the Sixth and Seventh Circuits in holding that “employees” under the FLSA may recover emotional distress damages in FLSA retaliation actions, finding that the district court erred by refusing to instruct the jury on the availability of emotional distress damages for an employee’s retaliation claim. In so … Continue Reading

Eleventh Circuit Holds the ADA Does Not Mandate Reassignment Without Competition or Preferential Treatment

In EEOC v. St. Joseph’s Hospital, the Eleventh Circuit recently held that the reasonable accommodation standard under the ADA “only requires an employer allow a disabled person to compete equally with the rest of the world for a vacant position” as a reasonable accommodation, and employers are not required to reassign a disabled employee into … Continue Reading

EEOC Issues Publication on Rights of Applicants and Employees with Mental Health Conditions Under the Americans with Disabilities Act

EEOC sealThe EEOC has issued a new publication titled “Depression, PTSD & Other Mental Health Conditions in the Workplace: Your Legal Rights” aimed at informing applicants and employees with mental health conditions of their employment rights under the Americans with Disabilities Act (“ADA”). The publication presents a series of questions and answers regarding applicants’ and employees’ … Continue Reading

EEOC Issues Enforcement Guidance on National Origin Discrimination

EEOC sealOn November 21, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued its Enforcement Guidance on National Origin Discrimination, which outlines the agency’s guidance on the provisions of Title VII that prohibit national origin discrimination. The Guidance offers the agency’s interpretation of how the law would apply in specific workplace situations, as well as practical tips … Continue Reading
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