Employer Guidance – National Immigrant Protests

Posted in Immigration, NLRB

In connection with “National Day without Immigrants” held on Thursday, Feb. 16 and Friday, Feb. 17, immigrant employees as well as supporters and sympathizers may have requested time off or, in some instances, called in sick from work to attend protest-related events and activities. Supporters called on the public to refrain from working, opening businesses, and spending money in an effort to show the impact immigrants have on our country each day.

Although having employees absent from work may pose challenges for business operations, it is important to recognize that the decision to participate may be protected in some instances. Congress enacted the National Labor Relations Act (NLRA) “to protect the rights of employees and employers, to encourage collective bargaining, and to curtail private sector labor and management practices, which can harm the general welfare of workers, businesses, and the U.S. economy.” More specifically, the NLRA provides that employees are protected under the “mutual aid or protection clause” of Section 7 when they seek to “improve their lot as employees through channels outside the immediate employee-employer relationship.”

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Employer’s Honest Belief Sufficient to Defeat FMLA Retaliation Claim

Posted in FMLA, Litigation

In a welcome decision to employers, the Third Circuit decided last week, for the first time, that an employer’s mere “honest belief” that an employee misused FMLA leave is sufficient to defeat a retaliation claim. As an employee claiming retaliation for using protected FMLA leave must prove that the very exercise of that right was a determinative factor in the employer’s decision to take adverse action against her, in other words that there was retaliatory intent, it is good news for employers that they can now successfully defend against claims simply by showing they believed in good faith that the employee misused what was otherwise protected leave. While the Seventh, Eighth, and Tenth Circuits have reached similar decisions, this was previously an open issue in the Third Circuit.

Also of note, the Third Circuit rejected plaintiff’s claim that his employer failed to accommodate his disability under the ADA. While the FMLA (unlike the ADA and most state law analogues) does not require employers to provide reasonable accommodation, a request for leave under the FMLA may under certain circumstances now qualify as a request for a reasonable accommodation under the ADA.

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Philadelphia Becomes the First City to Prohibit Employers from Asking Applicants About Salary History

Posted in State Law, Wage & Hour

Employers who just last year revised their application forms to eliminate initial questions about past arrests and convictions, now have to revise them again to remove questions regarding current and past salary. On Jan. 23, 2017, Philadelphia’s mayor signed a wage equity ordinance (the Ordinance) which prohibits, among other things, employers from asking job applicants about prior wages or wage history. The goal of the law is to address the gender pay gap, as the Ordinance asserts that women workers in Pennsylvania earn 79 cents for every dollar a man earns.  Although Massachusetts has passed similar legislation that prohibits inquiries into a job applicant’s wage history, Philadelphia is the first city to do so. The law is slated to go into effect on May 23, 2017.

The Wage Equity Law

Prohibitions and Definitions

The Ordinance, which amends Philadelphia’s Fair Practice Ordinance, principally prohibits employers from relying on an applicant’s wage history to determine “the wages for such individual of any stage in the employment process.” It defines “employer” as “any person who does business in the City of Philadelphia through employees or who employs one or more employees exclusive of parents, spouse, life partner or children, including public agency or authority; any agency, authority or other instrumentality of the Commonwealth; and the City, its departments, boards and commissions.” To “inquire” means “to ask a job applicant in writing or otherwise.” The term “wages” is broadly defined to include wages, commissions, and fringe benefits.

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NY Governor Directs Contractors Doing Business with or Bidding on State Contracts to Disclose Employee Salary Information to Identify Wage Disparities

Posted in Federal Law, Wage & Hour

On Jan. 9, 2017, New York Governor Andrew M. Cuomo signed Executive Order 162, which requires state contracts and procurements entered into or issued as of June 1, 2017, to include new reporting obligations for contractors, subcontractors, and bidders. Employers seeking to contract with the State will be required to disclose, on at least a quarterly basis, job title and salary information for each employee performing work on a state contract. Employers unable to identify the specific individuals working on a state contract are required to disclose job title and salary information for their entire workforce.

The State already required the reporting of general workforce utilization data pertaining to state contracts through the Minority and Women-Owned Business Enterprise Program. The Executive Order states, however, that such data, which is disaggregated by race and gender, is inadequate to address the Governor’s concerns related to discriminatory wage practices. While the Order does not explicitly require the new data to be disaggregated by race and gender, it is clear that the State would need such information to achieve the Executive Order’s intended purpose of allowing the State to analyze whether wage disparities exist.

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The Equality Act (Gender Pay Gap Information) Regulations 2017

Posted in Discrimination, UK Employment


The final draft of the Equality Act (Gender Pay Gap Information) Regulations 2017 (the Regulations) and accompanying Explanatory Memorandum was published 6 December 2016. Subject to parliamentary approval, the Regulations will come into force 6 April 2017. The Regulations introduce a mandatory gender pay gap reporting requirement for non-public sector employers with at least 250 employees.

To whom do the Regulations apply?

The Regulations apply to any “relevant employer”, namely private/voluntary sector employers with 250 or more employees on the “relevant snapshot date”, which is 5 April in the relevant year. The reporting requirement applies to individual employers within a group, rather than a groupwide basis.

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The Apprenticeship Levy

Posted in Tax, UK Employment

The way apprenticeships are funded in the UK is changing as of Spring 2017. With this change, some employers will be required to contribute to a new apprenticeship levy and there will also be changes to the funding for apprenticeship training for all employers. The Apprenticeship Levy (the Levy) will come into effect 6 April 2017 and a new apprentice funding system is set to be in place as of May 2017.

The purpose of the Levy is to provide funding for apprenticeships and a new “digital service account”. Essentially, companies in England will have an opportunity to reclaim the Levy through the digital service account (an online tool allowing an employer to create apprenticeship schemes) if they are prepared to run their own apprenticeship training, either for new recruits or to allow existing staff to develop new skills.  Scotland, Wales and Northern Ireland will have their own arrangements for supporting employers to access apprenticeships. Companies should therefore decide whether to accept the Levy as a standalone tax or view it as an opportunity to operate Government-funded apprenticeships allowing them to develop their own workforce.

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Workplace Implications of the Massachusetts Recreational Marijuana Law

Posted in Employee Policies, Federal Law

On Nov. 8, 2016, Massachusetts voters passed Question 4, which legalizes the recreational use of marijuana (Recreational Use Law). The Recreational Use Law follows passage of a 2012 Massachusetts ballot question which legalized the medicinal use of marijuana. Please see our previous May 15, 2013 GT Alert, What Does the Massachusetts Medical Marijuana Act Mean for Employers?, which summarizes the impact of the Recreational Use Law on employment practices and policies.


The stated purpose of the Recreational Use Law, officially titled “The Regulation and Taxation of Marijuana Act,” is “to control the production and distribution of marijuana under a system that licenses, regulates and taxes the businesses involved in a manner similar to alcohol and to make marijuana legal for adults 21 years of age or older.” Accordingly, the law makes it legal for adults to possess, use, and cultivate marijuana within certain limits. Marijuana use is, however, forbidden in public places or in any other location where smoking is prohibited.

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OSHA Gets a Green Light: Court Refuses to Stop OSHA from Enforcing its New Anti-Retaliation Standards

Posted in Department of Labor, OSHA

On Nov. 28, 2016, the United States District Court for the Northern District of Texas declined to grant a nationwide preliminary injunction enjoining the Department of Labor (DOL) and the Occupational Safety and Health Administration (OSHA) from enforcing subparagraphs 1904.35(b)(1)(i), (iii), and (iv) of the final rule issued by OSHA titled “Improve Tracking Workplace Injuries and Illnesses,” 81 Fed. Reg. 29,624 (May 12, 2016) (the New Rule).  Texo ABC/AGC, Inc., et al. v. Thomas E. Perez, et al., No. 16-cv-1998-L (N.D. TX. July 2016).

The Plaintiffs in Texo, a group of trade organizations and companies, sought to enjoin the DOL and OSHA from enforcing these subparagraphs because they are “unlawful to the extent that they prohibit or otherwise limit incident-based employer safety incentive programs and/or routine mandatory post-accident drug testing programs.” The court determined that the plaintiffs failed to meet their burden of establishing that they were likely to suffer irreparable harm in the absence of a preliminary injunction.

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Court Stays DOL Overtime Rule, Holds Increased Salary Test Impermissibly ‘Supplants’ Duties Tests

Posted in Department of Labor, Labor, Wage & Hour

The proposed overtime rules will not go into effect on Dec. 1. In a closely-watched case brought by 21 states (and joined by numerous business organizations) challenging the Department of Labor’s (DOL) rule amendment which would have roughly doubled the minimum salary threshold for many employees to be considered exempt from federal overtime requirements (set to take effect Dec. 1, 2016), a Texas federal court, on the evening of Nov. 22, issued a nationwide order enjoining the DOL “from implementing and enforcing” its new rule.  Importantly, for employers who have spent considerable time and resources auditing their workforces in anticipation of the new rule, and on the basis of that have determined to reclassify previously exempt employees because their duties are not sufficient to have the individual qualify as exempt, the injunction does not impact any potential reclassification decisions that were based on the duties employees perform. Rather, the injunction impacts only those employees who are performing exempt duties, but would have fallen below the new salary threshold.  Nonetheless, while many questions remain, for now at least employers can “stand down” from steps they were preparing to take to come into compliance with the amended rule.

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Federal Rule 6(d) Amendment Removing 3 Days To Respond To Electronically Served Papers Goes Into Effect Dec. 1, 2016

Posted in Litigation

On April 28, 2016, the Supreme Court of the United Sates approved amending Federal Rule of Civil Procedure 6(d) to remove electronic service from the modes of service under Rule 5(b)(2) that allow an extra three (3) days to respond.

Rule 6(a) specifies how a party must compute time as provided in the Federal Rules of Civil Procedure, any local rule, court order, or statute that does not specify a method of computing time.  For periods stated in days, a party is to: (1) exclude the day that triggered the period; (2) count every day, including weekends and legal holidays; and (3) include the last day of the period.  If the last day is a weekend or legal holiday, the period runs to the next day that is not a weekend or legal holiday.  See Fed. R. Civ. P. 6(a).  Formerly, FRCP 6(d) granted three (3) additional days to respond after service by mail, leaving a paper with the clerk, electronic service, or other means.  After Dec. 1, 2016, FRCP 6(d) will no longer provide three (3) additional days to respond after a party has been served electronically.

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