Former University of Southern California football player Lamar Dawson’s attempt to be declared an “employee” under the Fair Labor Standards Act (FLSA) was soundly defeated in federal court. Dawson brought the lawsuit on behalf of himself and a similarly situated class of Division I FBS football players in which he alleged that they should be entitled to minimum wage and overtime payments in return for their “work” generating “massive revenues” for their universities. (more…)

While President Obama’s landmark overtime expansion is pending in a Texas federal court, on May 2, 2017, the Republican House passed the Working Families Flexibility Act (H.R.1180/S.801) by a vote of 229 – 197, which would change overtime pay in the private sector, as we know it. Not one Democrat voted for the bill and Senator Elizabeth Warren called the bill a “disgrace” on Twitter. In opposition to the Act, the National Partnership for Woman & Families calls the Act “harmful, smoke-and-mirrors legislation” as it believes that the Act would set up a false choice between time and money. Why is everyone so up in arms about the Act? Let’s take a look . . .
(more…)

New York City is the third jurisdiction to pass a ban on salary history inquiries, following Massachusetts and Philadelphia.  Philadelphia’s law was set to take effect in May 2017, however, the constitutionality of Philadelphia’s ban was challenged when the Chamber of Commerce of Greater Philadelphia filed a lawsuit in federal court on April 9, 2017, claiming the ban deprives businesses of their First Amendment rights.  Read our recent article outlining the provisions of Philadelphia’s ban.  New York City’s law will take effect 180 days after the Mayor signs it, which is expected because the Mayor has expressed approval of the ban.
(more…)

A few weeks ago, the public comment period for the U.S. Equal Employment Opportunity Commission’s (EEOC) proposed guidance on unlawful workplace harassment closed, drawing mixed responses from commentators. The purpose of the proposed guidance, which was issued this past January, is to educate practitioners, employers and employees on the agency’s position toward the different types of harassment that Title VII prohibits. (more…)

How the court got there and what to do about it

Title VII of the Civil Rights Act of 1964 prohibits covered employers from discriminating against an employee because of her race, color, religion, sex or national origin. Until this month, no federal court of appeals had ruled that discrimination based on an employee’s sex included treating the employee differently because of her sexual orientation. The United States Court of Appeals for the Seventh Circuit changed that on April 4. (more…)

Think twice the next time you decide to forego the Oxford comma.  For the non-grammar nerds in the room, the Oxford comma, otherwise known as the serial comma, is the comma used just before the coordinating conjunction (“and” or “or”) when three or more terms are listed.  It is viewed by many as optional.  Enter the First Circuit’s recent ruling regarding Maine’s overtime law. (more…)

Employers are often hesitant to take disciplinary or other actions with an employee who has recently requested or has taken leave under the Family and Medical Leave Act (“FMLA”). While the law does not prohibit such action, employers should maintain a heightened awareness when dealing with employees who have exercised their FMLA rights. Similar to other federal employment statutes the FMLA includes retaliation provisions and often adverse employment actions (such as demotions, changes in position, suspensions, or terminations) are argued to be retaliatory when they are in close temporal proximity to an FMLA leave or requested leave.
(more…)

A National General Strike has been announced for February 17, 2017 as a “peaceful display of resistance and solidarity” to protest the Trump Administration’s policies. This “strike” poses thorny legal issues for nonunion employers that are unaccustomed to dealing with “striking employees.” Purely political protests, including walking off the job and calling out, can be protected if the purpose of the protest is to impact their interests as employees through the political process. However, it is not at all clear that the National General Strike has anything to do with employment policies, and it appears to be directed to protests of the Trump administration generally.
(more…)

D.C. joins 11 other jurisdictions (California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, Nevada, Oregon, Vermont and Washington) in banning employers’ use of employees’ or applicants’ credit histories.
(more…)

This is a brief update to the court machinations in the DOL’s appeal of the Texas Court’s decision to issue a preliminary injunction barring the implementation of the Final Overtime Rule. That appeal is now before the Court of Appeals for the Fifth Circuit, generally known as an employer-friendly circuit.
(more…)