2019 Mexican Federal Labor Law Amendment

By José Carlos M. de Uriarte on Posted in GT Alert, Unions

On May 1, 2019, Mexico’s Federal Official Gazette published a decree setting forth major amendments to Mexico’s Federal Labor Law (FLL) (Decree). The Decree follows and articulates the February 2017 amendment to the Federal Constitution that, among other things, (i) confirmed union freedom and confidential voting by union members, (ii) set forth the creation of labor courts to replace the conciliation and arbitration boards as the entities in charge of labor and employment dispute resolution, and (iii) provided for the creation of an autonomous entity to rule collective labor issues.

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Equal Employment Opportunity Commission (EEOC) Reinstates Collection of EEO-1 Component 2 Data: Pay Data Collection for Calendar Years 2017 and 2018

By David Long-Daniels and M. Allyson Lumpkin on Posted in EEOC, GT Alert

September is coming, and a chilly wind is blowing for employers with more than 100 employees. By Sept. 30, 2019, employers must submit EEO-1 Component 2 data, employee wage and hour data organized by job category, gender, race, and ethnicity, for calendar years 2017 and 2018 to the Equal Employment Opportunity Commission (EEOC). A 2017 moratorium on the EEOC’s collection of employee pay data was lifted in a recent court order that requires the EEOC to collect employee pay data by the end of September. While the EEOC has not yet set a firm date for when employers will be able to submit EEO-1 Component 2 data, the EEOC expects the EEO-1 Component 2 Survey to open in mid-July 2019.

Because the EEOC is not currently accepting Component 2 data, it is unclear what the EEO-1 Component 2 Survey will look like. However, the EEO-1 Component 2 form is expected to require employers to submit summary pay data for all employees, including the total number of full and part-time employees employed during the year, in each of 12 pay bands listed for each job category identified on the EEO-1 form. The pay data submitted is to be based on employee W-2 forms. The form is expected to be designed so that employers may simply count and report the number of employees in each pay band. The form is not expected to require employers to submit individual pay or salary data. Additionally, the form is expected to require employers to submit the number of hours worked during the year by employees in each pay band.

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July 1, 2019 Deadline Looms for Employers Under Massachusetts Paid Family and Medical Leave Act

By Terence McCourt on Posted in Employment Agreement, GT Alert, Legislation, Massachusetts, Paid Leave, State Law

The Massachusetts Paid Family and Medical Leave Act (PFML) provides eligible workers with paid medical and family leave benefits effective Jan. 1, 2021. See July 2018 GT Alert here. Specifically, individuals will be entitled to up to 20 weeks of paid medical leave and 12 weeks of paid family leave per year. The maximum amount of combined family and medical leave an individual may take under the PFML is limited to 26 weeks per year. The benefit amount is based on an employee’s earnings and is capped at $850 weekly.

While entitlement to benefits for employees does not begin until 2021, employers are obligated to comply with the funding and notice aspects of the law beginning in 2019. Starting on July 1, 2019, employers are required to determine contribution amounts for their workforces and make employee deductions as applicable. Contributions will be made to the newly created Family and Employment Security Trust Fund to be administered by the state treasurer.

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IRS Expands Retirement Plan Self-Correction Program

By Jeffrey D. Mamorsky and Richard A. Sirus on Posted in Benefits, Compensation, Department of Labor, Employee Policies, Federal Law, GT Alert, Retirement

Our January 2019 GT Benefits and Compensation Alert addressed the unprecedented level of potential liability for compliance failures in 401(k) and other retirement plans and the importance of performing a plan compliance review and correcting plan document or operational failures before an IRS auditor knocks on the door. Doing nothing and playing the audit lottery is no longer an acceptable risk, with one out of three employers (and half of large employers with at least 25,000 employees) likely to have their retirement plan audited by the IRS or DOL (See 2016 WillisTowersWatson Retirement Plan Governance Survey).

Fortunately, the IRS and DOL have programs allowing employer plan sponsors to perform compliance reviews and self-correct plan document and operational failures rather than requiring them to file a correction submission with the IRS or DOL for approval and paying fees or negotiating sanctions on audit.

The IRS has just released new self-correction procedures with the issuance of Revenue Procedure 2019-19, effective as of April 19, 2019, which increases the number and type of errors that can be self-corrected without filing and paying a fee.

To read the full GT Alert, click here.

Court of Appeals Upholds DOL’s Interpretation of NY’s Minimum Wage Order as Applied to Live-In Home Health Aides

By Harold N. Iselin, Eric Sigda and Jennifer M. Gómez on Posted in Compensation, Department of Labor, GT Alert, home care, home health aide, minimum wage, New York Department of Labor

On March 26, 2019, in a 5-2 ruling, the Court of Appeals ruled in favor of providers in a critical decision affecting home health care. Andryeyeva v. N.Y. Health Care, Inc. and Moreno v. Future Care Health Servs. et al. was a joint appeal in a case that threatened to eviscerate an important economic constraint on the cost of providing live-in 24-hour home care, and which placed at risk the fiscal integrity of New York’s Medicaid program and the very existence of New York’s home care industry.

Home health aides challenged the New York State Department of Labor’s (DOL) 13-hour rule, which provides that live-in employees must be paid for at least 13 hours per 24-hour period, provided they are afforded at least eight hours of sleep, five hours of which must be uninterrupted, and three hours for meal times. If the aides are given the required sleep and meal times, totaling 11 hours, they are not paid for these breaks. In this case, home health aides argued that they were entitled to minimum wage for all 24 hours of their shifts, regardless of whether they were afforded opportunities for sleeping and eating. Providers long had relied on DOL’s interpretation when compensating their employees, and were suddenly in jeopardy of being held liable for retrospective pay exceeding an estimated $4.8 billion.

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New Jersey Passes Law Eroding Bedrock of Settlement – Confidentiality Provisions Relating to Discrimination, Retaliation, and Harassment Claims No Longer Enforceable

By Kristine Feher, Noel A. Lesica and Courteney Lario on Posted in Discrimination, Employment Agreement, GT Alert, Harassment, Legislation, New Jersey, settlement agreements, Sexual Harrassment

On March 18, 2019, landmark legislation was passed that could dramatically impact the resolution of discrimination, retaliation, and harassment claims. under the New Jersey Law Against Discrimination (“NJLAD”), and “other” statutes – presently undefined. Employers: pay close attention. The bill takes effect immediately and applies “to all contracts and agreements entered into, renewed, modified, or amended on or after [March 18].” The legislation addresses – and substantially impacts – employment contracts and settlement agreements. While ostensibly intended to prevent victims of unlawful harassment from forced secrecy about their experiences – potentially perpetuating the alleged harm – the desirability of settlement rests strongly on the foundation of confidentiality. Without it, the motivation to resolve these types of claims informally may diminish considerably.

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Department of Labor Proposes Changes to Overtime Rules

By David Long-Daniels and Joshua Y. Joel on Posted in Compensation, Department of Labor, Federal Law, FLSA, GT Alert, overtime

The U.S. Department of Labor (DOL) on March 7, 2019, issued a new proposed rule raising the annual minimum salary requirements for the Fair Labor Standards Act (FLSA) overtime exemptions for executive, administrative, and professional employees. Under the new rule, the salary level for these “white collar” exemptions will increase from $23,660 per year ($455 per week) to $35,308 per year ($679 per week). The proposed rule will also raise the annual compensation requirement for an employee to be considered a “highly compensated employee” and exempt from overtime from the current $100,000 per year to $147,414 per year. The DOL did not, however, propose any changes to the duties test. In addition, the DOL did not propose automatic adjustments to the salary threshold, nor did it create differing salary levels based on region or size of employer.

Click here to read the full GT Alert.

House Zeros in on Workplace Violence in Health Care and Social Service Industries

By Michael Taylor and Brett A. Castellat on Posted in Federal Law, GT Alert, Labor & Employment, OSHA, Workplace Safety

House Democrats have set their sights on workplace violence in health care and social service industries. According to congressional findings, the health care and social service industries suffer the highest rates of injuries caused by workplace violence. Health care and social service workers made up 69 percent of all workplace violence injuries in 2017 and were nearly five times as likely to suffer a workplace violence injury than workers overall. To address this problem, on Feb. 27, 2019, the House Subcommittee on Workforce Protections considered a bill mandating that the Occupational Safety and Health Administration (OSHA) implement workplace violence protections for health care and social service workers.

The bill (titled the Workplace Violence Prevention for Health Care and Social Service Workers Act) requires that employers in these industries implement a workplace violence protection plan.

Click here to read the full GT Alert.

Greenberg Traurig’s Mark Kemple Receives National Law Journal’s Employment Law Trailblazer Award

By Greenberg Traurig on Posted in Awards and Accolades, class action, collective action, Labor & Employment

Mark D. Kemple, co-chair of global law firm Greenberg Traurig, LLP’s Labor & Employment Class and Collective Action Practice and leader of the Southern California Labor & Employment Practice, has been named a 2019 Employment Law Trailblazer by the National Law Journal.

The Employment Law Trailblazer award recognizes legal professionals who “make their mark in various aspects of legal work in employment law,” according to the National Law Journal.

To read the full press release, click here.

NYC Commission on Human Rights Issues Guidance on Race Discrimination on the Basis of Hair

By Greenberg Traurig on Posted in Discrimination, GT Alert, NYCCHR

Setting new precedent on Feb. 18, 2019, the New York City Commission on Human Rights (NYCCHR) issued new guidance prohibiting race discrimination on the basis of hair. The new guidance provides legal recourse under the New York City Human Rights Law (NYCHRL) to individuals who are discriminated against, harassed, punished, not hired, or fired based upon the style and length of their hair. The guidance extends to work, school, housing, or public spaces, and generally includes all employers with four or more employees.

The NYCHRL protects individuals working and living in New York City. The new guidance allows New Yorkers to maintain “natural hair or hairstyles that are closely associated with their racial, ethnic, or cultural identities,” regardless of the mutable nature of such characteristics. Natural hair is broadly defined to include natural texture and/or length and includes hair styled into twists, braids, cornrows, Afros, Bantu knots, fades, and/or locs.

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