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BT Currents - Hot Topics in Employment Law
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18 Apr 2018 DOL Issues New Opinion Letters on Wage and Hour Issues – Compensability of Health-Related Rest Breaks

  The DOL recently issued three new Wage and Hour opinion letters on its website giving employers additional guidance on compensation for travel time, pay for health-related rest breaks as well as whether lump sum payments are subject to garnishments. This demonstrates the commitment of the DOL to re-establish the opinion letter program which was eliminated during the Obama administration.  Back in January, the DOL re-issued 17 opinion letters issued by the Bush administration nine years ago but which had been withdrawn during the Obama…

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28 Feb 2018 Dodd-Frank Whistleblowers: Supreme Court Holds Internal Complaints are Not Enough

  Last week, the U.S. Supreme Court held in the Digital Realty Trust, Inc. v. Somers case  that the definition of a “whistleblower” under the Dodd-Frank Act (“Dodd-Frank”) does not cover internal complaints made only to the company.  The employee is required to file a formal complaint with the U.S. Securities and Exchange Commission (“SEC”) to qualify for the increased remedies and greater protections as compared to the Sarbanes-Oxley Act of 2002 (“Sarbanes-Oxley”).  The Court found no ambiguity in the express definition of a “whistleblower”…

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12 Dec 2017 Second Circuit Holds that Hearst Interns are not Employees

  Last week, the U.S. Court of Appeals for the Second Circuit issued a decision upholding an order granting summary judgment in favor of Hearst Corporation, publisher of such magazines as Cosmopolitan, ELLE and Harper’s BAZAAR, finding that the plaintiffs were not illegally deprived wages under the FLSA or New York state law as statutory “employees.” This is the second decision in this case at the Second Circuit as this case previously reached the Second Circuit, but was then remanded back to the District Court…

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28 Nov 2017 OSHA Extends Electronic Recordkeeping Submission Deadline to Dec. 15

  As we have covered in a prior post, the electronic recordkeeping deadline was moved from July 1, 2017, to Dec. 1, 2017, after the Occupational Safety and Health Administration (OSHA) filed a notice of proposed rulemaking. After the two-week debacle in August, where OSHA was forced to take down its own electronic portal for submission of OSHA records due to a potential compromise of user information, the final rule postponed the deadline for two more weeks until Dec. 15, 2017. OSHA states that this…

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30 Oct 2017 OSHA Developments – More Good News for Employers

  As I mentioned in May, there have been a number of positive regulatory or enforcement developments for employers, including (1) the repeal of the Volks rule, which would have changed the statute of limitations for OSHA recordkeeping violations from six months to more than five years, and (2) the rescinding of the memo establishing union walk-around inspection rights even in a non-union setting.   Electronic Recordkeeping   The good news for employers continues with developments related to the electronic recordkeeping rule and the associated…

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08 Aug 2017 Sexual Orientation: DOJ and EEOC Take Opposite Positions in Amicus Briefs Filed in Same Case

  In a bizarre twist, the Equal Employment Opportunity Commission (EEOC) and Department of Justice (DOJ) have each filed amicus briefs on opposite sides of a sexual orientation discrimination case involving Title VII. Since 2013, the EEOC has consistently taken the position that Title VII prohibits sexual orientation discrimination.   As we have covered in past posts, there have been a number of recent decisions regarding whether Title VII’s prohibition against sex discrimination also prohibits discrimination on the basis of sexual orientation. In particular, the…

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22 Jun 2017 Fourth Circuit Upholds ‘Mark of the Beast’ Jury Verdict

  The U.S. Court of Appeals for the Fourth Circuit unanimously upheld a West Virginia’s jury verdict of nearly $600,000 in favor of the EEOC on behalf of an employee who alleged the company failed to accommodate his religious belief. The employee believed that using the company’s biometric hand-scanning time clock would affix the “Mark of the Beast” as described in the book of Revelation in the Bible. By using the hand scanner, the employee believed he would be marked as a follower of the…

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12 May 2017 Trump’s Actual Impact on OSHA

  In November, I attempted to look into the crystal ball to see what potential impact the new Trump administration could have on the Occupational Health and Safety Administration (OSHA). Here are some of results so far, which on the whole, are favorable to employers who suffered under the “regulation by shaming” mantra of past Assistant Secretary of Labor David Michaels.   Budget Cuts – As predicted, on May 5, President Trump signed a spending bill that cuts the labor department’s discretionary spending budget by…

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30 Mar 2017 Federal Contractor “Blacklisting” Rules Repealed

  As we previously covered, most of the Fair Pay and Safe Workplace Executive Orders and related regulations were halted by an injunction in a Texas federal court in October of last year. However, with President Trump’s recent signature on the joint resolution of disapproval passed by both the House and the Senate pursuant to the Congressional Review Act (CRA) as well as his execution of a new executive order revoking President Obama’s prior executive orders, all of the executive orders and related regulations (referred…

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16 Feb 2017 Trump Announces Alexander Acosta as Labor Secretary Nominee After Andrew Puzder Withdraws

  At a press conference, President Trump announced Alexander Acosta as the new nominee for labor secretary. Acosta is currently the dean of the Florida International School of Law and previously served as a member of the National Labor Relations Board and later assistant attorney general for the Civil Rights Division through appointments by President George W. Bush. If confirmed, he will be the first Hispanic member of Trump’s cabinet.   Yesterday, just one day prior to his Senate confirmation hearing, Andrew Puzder withdrew as…

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