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Employment Matters Blog

Federal Court Requires “Meeting of the Minds” To Enforce Arbitration Agreement Included in Employment Application

Posted in Arbitration

Last month, a federal court in Maryland denied an employer’s motion to compel arbitration even though the plaintiff executed an arbitration agreement the employer had included in the plaintiff’s employment application.  The court found the agreement unenforceable because the parties did not have a “meeting of the minds” at the time the employer asked the plaintiff to complete the employment application.  This decision serves as an important reminder to employers to examine not just the content of the agreement itself, but also the context around which the contract is executed.

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UPDATE: OMB Says DOL May Publish Final Rule on White Collar Exemptions in July 2016

Posted in DOL, Exemption Misclassification, FLSA, Minimum Wage and Overtime, Wage and Hour Issues

July 2016.  That’s when the final rule on the white collar overtime exemptions is expected to be published by the DOL – this according to the OMB’s Fall 2015 Unified Agenda and Regulatory Plan released last Thursday.  Just one week earlier the Solicitor of Labor, M. Patricia Smith, reportedly told attendees at a conference that the DOL was targeting a release in “late 2016.”

Thus, given the continued uncertainties surrounding the timing of the release, employers should continue to take steps now to prepare for any changes to the rule, which, in its current form, would dramatically increase the number of employees eligible for overtime pay.  We, of course, will continue to update you about any developments.

Ninth Circuit Won’t Review Uber Driver Class Certification Decision

Posted in CA Wage and Hour Laws, California, class action, Independent Contractors, Ninth Circuit

Written by Natalie Young with Michael Arnold

The sharing or gig economy has introduced a new management paradigm for companies, more flexible schedules for workers, and a greater level of convenience and accountability to consumers.  While there are many supporters of this new economy, the individuals providing the services are caught in an undefined space – are they employees or independent contractors?

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Offering Pre-Tax Transit Benefits is no Longer Optional for New York City Employers

Posted in Employee Benefits, Employment Legislation, New York

New York City’s Affordable Transit Act, which takes effect on January 1, 2016, will require most employers with 20 or more full-time employees to allow employees to apply pre-tax earnings toward qualified commuting expenses.  The new law, which is administered in accordance with rules established by the Department of Consumer Affairs, provides that full-time employees may exclude transit costs from their gross taxable income up to the maximum amount permitted under federal income tax laws.

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The Affordable Care Act’s Reporting Requirements for Carriers and Employers (Part 18 of 24): Terminations, Changes in Status and Service Breaks under the Monthly Measurement Method

Posted in ACA’s Reporting Requirements for Carriers and Employers Series, Affordable Care Act, Healthcare, IRS

The final regulations under Code § 4980H establish two—and only two—methods for determining an employee’s status as full-time: the monthly measurement method and the look-back measurement method. Under the former (as the name suggests) an employee’s status as full-time is determined month-by-month. An employee who works on average at least 30 hours per week, or 130 hours per month, is full-time. (An employer may alternatively use 120 hours per month in months with 4 weeks and 150 hours per month in months with 5 weeks.) The monthly measurement method is particularly well-suited to employers and industries with stable workforces and low turnover. In most instances, the reporting burdens for these employers will be relatively manageable. But even in this environment, employees will from time-to-time terminate, change status, or incur service breaks.

This post explores the reporting challenges associated with employee terminations, changes in status, and breaks in service under the monthly measurement method. Next week’s post will do the same for the look-back measurement method.

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NLRB Won’t Take “No” For an Answer — Holds Class Action Waiver in Arbitration Agreement Unlawful Despite Two Previous Reversals at the Fifth Circuit

Posted in Agencies, D.C. Circuit Court, Ninth Circuit, NLRA, NLRB, Section 7 Rights, Supreme Court, Traditional Labor

The NLRB has once again held that a mandatory arbitration agreement including a class/collective action waiver violates the National Labor Relations Act.  With barely an acknowledgment that the Fifth Circuit reversed its last two decisions reaching the same conclusion, the Board ruled in Amex Card Service Co., No. 28–CA–123865 (Nov. 10, 2015), that Amex committed an unfair labor practice by maintaining and enforcing an arbitration policy that required employees, as a condition of their employment, to resolve all claims against the company through individual arbitration.

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Breaking News: DOL Indicates That New White Collar Exemption Overtime Rule May Not Go Into Effect Until Late 2016

Posted in DOL, Exemption Misclassification, FLSA, Minimum Wage and Overtime, Wage and Hour Laws

The Department of Labor’s proposed overhaul of the white-collar exemption overtime regulations, which could expand overtime eligibility to an estimated 4.6 million workers, may not go into effect on the breakneck timeline that employers feared.  According to the Wall Street Journal, the Solicitor of Labor recently indicated that the final rule likely will not be published before late 2016, which would give employers a much longer runway to prepare for the changes before they go into effect. The revelation is welcome news to many employers who were bracing for the rule to be published later this year or early 2016.

The DOL is currently proposing to more than double the minimum annual salary threshold, which hasn’t been updated since 2004, but it hasn’t said whether it will change the relevant job duties test along with the salary bump.  Given the high stakes, the DOL received more than 250,000 public comments on the proposed rule this summer.  We will continue to update you as we learn more.

The Affordable Care Act’s Reporting Requirements for Carriers and Employers (Part 17 of 24): Reporting for Offers of Coverage and Auto-enrollment

Posted in ACA’s Reporting Requirements for Carriers and Employers Series, Affordable Care Act, DOL, Healthcare, IRS

The recently enacted Bipartisan Budget Act of 2015 repealed Section 1511 of the Affordable Care Act (ACA), which generally would have required employers with more than 200 full-time employees to automatically enroll new full-time employees in one of the employer’s health benefits plans (subject to any waiting period authorized by law). The provisions were originally slated to take effect in 2014. In Technical Release No. 2012-01 (Feb. 9, 2012), the Department of Labor announced that compliance would not be required “until final regulations under FLSA section 18A are issued and become applicable.” Final regulations were never issued.

Despite that auto-enrollment is no longer required under the ACA, some carriers are insisting on it as a precondition to offering their products. This approach lends itself to boosting enrollment in instances where coverage was not previously widely offered—e.g., industries with large cohorts of variable and contingent workers—and in which anticipated take-up rates are low and the expectation of adverse selection is high.

This post explores the impact of carrier-required auto-enrollment on reporting.

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NYT: Many Low-Income Workers Say ‘No’ to Health Insurance

Posted in Affordable Care Act, Healthcare

A recent New York Times article, Many Low-Income Workers Say ‘No’ to Health Insurance, referenced a blog post written by our very own Alden Bianchi in which he outlines the complex rules regarding health insurance underwriting practices. The NYT article examines the shortcomings of employer-based healthcare coverage for low wage hourly workers.