Welcome back for this month’s edition of the Bubbler!  There’s plenty to talk about, so let’s jump right in.

The California Supreme Court issued an important decision this week addressing the test for whether a worker is an independent contractor or an employee.  The U.S. Supreme Court declined to review a Seventh Circuit decision upholding an employer’s rule that a months-long leave of absence was not a reasonable accommodation. The Ninth Circuit held that employers are prohibited from using an employee’s past salary as a legitimate “factor other than sex” for purposes of defeating a Fair Pay Act claim, emphasizing that allowing the inclusion of prior salaries would only perpetuate gender pay disparity. The Fifth Circuit downsized ERISA fiduciary standards in a ruling that invalidated a set of seven expansive fiduciary rules. The Northern District of Illinois issued an unusual ruling, holding that two plaintiffs’ claims were subject to an enforceable arbitration agreement, yet refused to compel arbitration. The DOJ challenged a set of competitors’ no-poaching agreements as per se violations of the Sherman Act, which regulates concerted anti-competitive action. Finally, in the wake of the #MeToo movement, New York (state and city) have passed new laws concerning workplace sexual harassment.

As always, stay tuned for more employment matters updates!

New Jersey Governor Phil Murphy recently signed into law a bill that provides equal pay protections for members of certain protected classes.  Governor Murphy also signed into law a bill that requires New Jersey employers to provide paid sick leave to employees.

A summary of both laws is provided below:

Continue Reading New Jersey Legislative Update: Equal Pay and Paid Sick Leave

The Massachusetts Department of Unemployment Assistance (DUA) has begun assessing Employer Medical Assistance Contribution (EMAC) supplemental payments for the first quarter. This post proposes a grounds for appealing DUA determinations that would serve employers well: employers that offer affordable, major medical coverage to their employees should not be assessed an EMAC supplement for any full-time employee who has coverage under ConnectorCare. The Affordable Care Act (ACA) makes these employees ineligible for subsidized coverage.

Continue Reading Appealing Massachusetts Employer Medical Assistance Contribution (EMAC) Supplement Determinations Based on ConnectorCare Coverage

What’s a financial advisor to do? On March 15, 2018, the Fifth Circuit Court of Appeals in Chamber of Commerce of the U.S. v. U.S. Dep’t. of Labor, No. 17-10238, 2018 U.S. App. LEXIS 6472 (5th Cir. Mar. 15, 2018) vacated – thereby invalidating – a series of seven rules (which we collectively refer to in this post as the “fiduciary rule”) issued in April 2016 by the Department of Labor (DOL). The fiduciary rule vastly expanded the reach of the ERISA fiduciary standards that apply to individuals and entities providing investment advice. This post first explains the state of the law prior to the fiduciary rule; it then discusses the impact of the rule on the arguments that the Court grappled with; and it concludes by handicapping the options available to regulated financial advisors and institutions as they endeavor to respond.

Continue Reading Fifth Circuit Court of Appeals Invalidates the 2016 Final Department of Labor Fiduciary Rule and Related Prohibited Transaction Exemptions

On April 19, my colleague Andrew Bernstein and I will be discussing the increasingly complex web of federal, state, and local leave and accommodation laws that employers must navigate. As many companies are aware, the federal Family and Medical Leave Act provides up to 12 weeks (and in some cases, up to 26 weeks) of unpaid, job-protected leave to eligible employees and the Americans with Disabilities Act requires employers to provide reasonable accommodations, which may under some circumstances include flexible schedules and leaves of absence, to qualified individuals with disabilities.

Continue Reading Mintz Levin 4th Annual Employment Law Summit – Managing the Increasingly Complex Web of Leave and Accommodation Requirements

On Monday of this week, the U.S. Supreme Court reversed the Ninth Circuit when it ruled in Encino Motorcars, LLC v. Navarro that auto dealership service advisors are exempt from the FLSA’s overtime requirements. The justices’ analysis led the five-justice majority to conclude that service advisors fall squarely within the applicable exemption for “any salesman, partsman or mechanic primarily engaged in selling or servicing automobiles.” 29 U.S.C. § 213(b)(10)(A). This case, however, promises broad national impact because the majority rejected the longstanding principle established through decades of FLSA jurisprudence that exemptions should be construed narrowly.

Continue Reading U.S. Supreme Court Broadens Construction of FLSA Overtime Exemption

Join me and a panel of corporate counsel and human resources professionals to discuss the #MeToo movement and its impact on the HR function at Mintz Levin’s Fourth Annual Employment Law Summit in New York City on April 19, 2018.

Continue Reading Mintz Levin 4th Annual Employment Law Summit — The Role of In House Counsel and Human Resources Professionals in the #MeToo Movement

On March 6, 2018, the U.S. Department of Labor (“DOL”) announced a new pilot program, the Payroll Audit Independent Determination (“PAID”) program, which encourages employers to self-report inadvertent overtime and minimum wage violations under the Fair Labor Standards Act (“FLSA”).  The program, which is expected to launch in April 2018, will be rolled out as a six month pilot program, after which the DOL will decide whether to make the program permanent based on its effectiveness, participation rate, and results.

Continue Reading U.S. Department of Labor Launches Wage and Hour Self-Reporting Program

Austin, Texas recently became the first municipality in the South to enact a paid sick and safe leave law for private sector employees.  The sick and safe leave ordinance will take effect on October 1, 2018 for employers with five or more employees.  Employers with fewer than 5 employees will have an additional two years – until October 1, 2020 – to begin complying.

Continue Reading Austin Adopts Paid Sick and Safe Leave

On April 19, 2018, Mintz Levin will be hosting its Fourth Annual Employment Law Summit at the Princeton Club in New York City. This half-day seminar will feature as its keynote speaker Kevin Berry, the District Director of the EEOC’s New York District Office. District Director Berry will discuss the main objectives of the EEOC’s recently-released Strategic Enforcement Plan, as well as sexual harassment in the workplace and best practices for responding to charges of discrimination. The seminar will also offer various segments on the most important workplace issues of the day, including sexual harassment in the wake of #metoo, family leave and caregiver accommodations, implications of the new federal tax law, wage and hour issues, and more. It’s a program you will not want to miss, so register now!

This event is intended for C-Level Executives, HR Executives, Compliance Officers, In-house Counsel, and HR Directors and Staff.

For more information and to register, click here.