U.S. Department of Labor Reverses Course on Employment Status of Interns

Posted in Department of Labor, FLSA

On Jan. 5, 2018, the United States Department of Labor (DOL) announced that it will utilize the so-called “primary beneficiary” test to determine whether interns are employees under the Fair Labor Standards Act (FLSA).  This announcement marks a significant policy change from the DOL’s previous guidance which had been criticized by several courts as overly rigid.

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Sexual Harassment Settlements With Nondisclosure Agreement Will Not Be Deductible Under New Tax Law

Posted in Federal Law, Harassment, Tax

A provision in the Tax Cuts and Jobs Tax Act will increase the “after-tax cost” for companies to settle “sexual harassment” or “sexual abuse” claims if they wish to maintain a “nondisclosure agreement” of the details. The law will disallow a business deduction for the amounts paid to settle such claims (including attorneys’ fees) if the settlement contains a nondisclosure agreement. This provision addresses the use of nondisclosure agreement terms to possibly prevent public disclosure of sexual harassment allegations or reports.

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NLRB Overturns 4 Decisions that Adversely Impacted Employers

Posted in Department of Labor, Litigation, NLRB

Just this month, the National Labor Relations Board (NLRB or the Board) successively overturned four decisions that adversely impacted employers and were made while President Obama was in office. The earlier decisions expanded the definition of “joint employer”; scrutinized neutrally-worded work rules; required employers to notify and provide an opportunity to bargain to unions prior to taking actions (even if those actions were consistent with an established past practice); and, shifted the burden to employers to prove that employees should be included in a group of employees in an appropriate unit (or election group) as opposed to using the community-of-interest standard and as a consequence allowing unions to determine the unit based on the union’s extent of organization.

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New York Paid Family Leave Law Becomes Effective Jan. 1, 2018

Posted in Compensation, FMLA, State Law

The New York Paid Family Leave law (NYPFL), which becomes effective Jan. 1, 2018, mandates that private employers provide coverage for certain types of employee leave. The benefits will be administered and payments made by the employer’s disability carrier (or by the employer if self-insured), in the same manner as disability benefits. Funding of the coverage will come solely from employee contributions, not the employer. Employers are required to withhold 0.126 percent of an employee’s weekly taxable wages in order to fund the benefits. There is a maximum contribution based on the state’s average weekly wage; the maximum annual contribution for 2018 will be $85.56. Under the law, only those employees working less than 20 hours a week and less than 175 days a year can waive coverage and opt out of the mandatory state program; such persons must sign an opt-out form.

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New York State Department of Labor Proposes Expansion to Call-In Regulations as New York City Council Weighs Passing Right to Flex-Time Law

Posted in Compensation, Legislation, Wage & Hour

This year, New York City and New York State advanced a series of legislative and regulatory proposals affecting New York’s businesses and their employees. Following four public hearings across the state, the New York State Department of Labor (DOL) proposed regulations that would expand the current “call-in” regulations by requiring two weeks’ advance notice of work schedules issued to workers in most industries, with the exception of restaurants and hotels. The proposed regulations were published on Nov. 22, 2017, just before New York City’s package of “Fair Work Week” laws became effective on Nov. 26, 2017. DOL’s proposed regulations are subject to a 45-day public comment period, which expires on Jan. 6. Contemporaneously, negotiations are ongoing with the New York City Council regarding broad new legislation that would give employees a right to arrange flexible schedules.

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Mexico Increases Minimum Wage

Posted in Wage & Hour


Through a press bulletin published this past November 20, the Board of Representatives of the National Committee of Minimum Wages of the Ministry of Labor notified that effective December 1, 2017, the minimum wage will increase $8.32 pesos, thus reaching the amount of $88.36 pesos per day.

The professional minimum wages will also be increased 3.9% also as of December 1, 2017.


Mediante boletín de prensa emitido el pasado 20 de noviembre, el Consejo de Representantes de la Comisión Nacional de los Salarios Mínimos de la Secretaría del Trabajo y Previsión Social informó que a partir del 1 de diciembre de 2017, el salario mínimo aumentará $8.32 pesos, quedando así en la cantidad de $88.36 pesos diarios.

Los salarios mínimos profesionales aumentarán un 3.9% también a partir del 1° de diciembre de 2017.

Avoiding Holiday Season Employment Headaches

Posted in Employee Policies, Wage & Hour

As the holiday season approaches, employees look forward to time with family, vacations, and holiday festivities, all of which can mean requesting more time off or calling in sick.  For retailers, however, the holiday season typically means increased customer demand, staffing challenges, and potential for more wage and hour exposure.  Given these issues – and potential liabilities! – below are a few tips for retailers to keep in mind that may help avoid holiday headaches that could last well into the New Year.

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Closing the Salary Gap & Practical Tips for Employers

Posted in Department of Labor, Wage & Hour

Given the national spotlight on pay equity, in 2016 there was a radical change in the equal pay legal landscape, as federal administrative agencies and states implemented laws and regulations to improve and enforce pay equity for individuals in protected classes (i.e., sex, race, ethnicity, gender identity, color, religion, national origin, and sexual orientation). Prior to 2016, equal pay claims were largely enforced via Title VII. In some cases, equal pay claims were also enforced via the Equal Pay Act (EPA), which only protects pay inequity between the sexes. The recent changes in state equal pay laws post-2016 not only seek to aggressively close the pay gap, but lower the bar for employees to bring equal pay lawsuits.

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The Eleventh Circuit Expands the Definition of ‘Machine’ Under the OSHA Lockout/Tag-out Standard

Posted in OSHA

On July 13, 2017, the Eleventh Circuit Court of Appeals was tasked with deciding what constitutes a “machine” under OSHA’s lockout/tag-out (LOTO) standard (29 C.F.R. § 1910.147). Sec’y of Labor v. Action Elec. Co., 868 F.3d 1324 (11th Cir. 2017). Specifically, the court had to decide under what circumstances different pieces of equipment are considered one “machine” thus mandating that all pieces of equipment that comprise the “machine” must be de-energized when employees are only servicing one of the pieces of equipment.

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A Closer Look At FLSA’s Computer Professional Exemption

Posted in FLSA

Shareholder Jerrold Goldberg, with the assistance of Practice Group Attorney Melanie Sarver, recently published an article in Law360 discussing the Fair Labor Standards Act (FLSA). The FLSA requires the payment of overtime to all employees unless their work fits within one of the statute’s exemptions. The burden of proof for establishing that an FLSA exemption applies to a particular position rests with the employer, and the exemptions are narrowly construed against employers seeking to assert them. Their article addresses whether the FLSA computer professional exemption and/or the administrative employee exemption apply to information technology/computer staff. To read the entire article, please click here.