Employment Law Update

Laura Friedel

November 9, 2017

Agenda

• Overtime update

• Minimum Wage developments

• Sexual Orientation and Title VII

• Other EEOC updates

• Independent Contractor & Joint Employer standards

• NLRB update

• Immigration update

• Arbitration Agreements and Waiver of Class Claims

• Pregnancy Accommodation developments

• Paid Leave update

• Restrictive Covenant Agreement update

• Pay History laws

• Medical Marijuana

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Overtime Update

What a difference a year makes…..

• Obama administration regulations

stayed just before effective date,

and are now dead.

• Trump DOL has asked for public

comment, so regulatory process

is in motion.

• For now, 2004 Regulations

remain in place.

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Minimum Wage Developments

States and localities continue to raise minimum wage….

• Chicago → $11/hr

• Cook County (if municipality hasn’t opted out) → $10/hr

• New York State → $9.70/hr

• NYC → $11/hr (large employers) or $10.50/hr (small employers)

• Washington, DC → $12.50/hr

But some stepping back….

St. Louis’ minimum wage of $10/hr (which was on track to increase to

$11/hr) was invalidated by Missouri state law, resulting in decrease of

minimum wage in St. Louis from $10/hr to $7.70/hr.

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Sexual Orientation and Title VII

• 2015 EEOC began to assert that

Title VII covers sexual orientation

• All 11 U.S. Circuit Courts

previously had held not covered

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• Hively v. Ivy Tech Comm. College (April 4, 2017) –

full panel of 7th Cir. breaks ranks

- Form of sex stereotyping

- Associational discrimination

• September 26, 2017 – 2d Cir. heard argument en

banc in Zarda v. Altitude Express

- DOJ files amicus brief opposing protection under Title VII –

conflict with EEOC

Gender Identity and Title VII

• Roberts v. Clark County Sch. Dist. (October 4, 2016)

– district court in Nevada agrees with EEOC

• Blatt v. Cabela’s Retail (May 18, 2017) – district

court in Pennsylvania holds gender dysphoria

possible disability protected by ADA

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• EEOC also takes

position that Title VII

protects against

discrimination based on

gender identity

Examples of Discrimination - EEOC

• Failing to hire an applicant because she is a

transgender woman.

• Firing an employee because he is planning or has

made a gender transition.

• Denying an employee equal access to a

common restroom corresponding to the employee's

gender identity.

• Harassing an employee because of a gender

transition, such as by intentionally and

persistently failing to use the name and gender

pronoun that correspond to the gender identity with

which the employee identifies, and which the

employee has communicated to management and

employees.7

Other EEOC Developments

Pay Reporting• 2016 EEOC announces plan to begin requiring pay

data reporting as part of EEO-1 in March 2018

• April 29, 2017 – EEOC Chair Victoria Lipnic

announced review of requirements by OMB

- “The poster child for the kind of regulation that the President

campaigned against”

• Prior EE0-1 form (without pay data) remains in effect.

• Deadline still March 2018.

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DOL Withdraws Key Guidances

Independent Contractor Guidance• Guidance issued in July 2015 changed analysis and

made it much harder to establish independent

contractor status.

• Withdrawn on June 7th

• Where are we now?

- Prior DOL standards stand

- IRS, Common Law, ABC Tests still in place

- Higher state standards apply

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Key Takeaway:

Withdrawal of guidance doesn’t materially alter overall risk of

independent contractor being deemed to be misclassified!

DOL Withdraws Key Guidances

Joint Employer Guidance• Guidance issued in January 2016 expanded

situations where both related companies and

unrelated companies that work together would be

considered joint employers.

• Withdrawn on June 7th

• Where are we now?

- Existing law on joint employer status remains

- Staffing agency employees still considered joint employees

- Depending on management structure, sister company

employees may be considered joint employees

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NLRB Gets Ready to Change Course

• Two new members of NLRB (William J. Emmanuel

and Marvin E. Kaplan) confirmed in October. With

Chair Philip Miscimarra, this gives NLRB a

Republican majority for first time in 8 years.

• Peter Robb (management-side labor lawyer)

expected to be confirmed this week. Expect to see

changes starting now that he’s been confirmed.

• Regional personnel will adhere to existing

standards, even if writing is on the wall.

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Likely Changes from NLRB

• Joint employment standard (also at D.C. Circuit)

• Micro bargaining units

• Ambush elections

• Class action waiver (also being addressed at

Supreme Court)

• Use of employer email

• Scrutiny of employer handbook policies

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New Form I-9

• New Form I-9 has been issued

• Changes are minimal

• Adds some acceptable forms of identification

• Separate paper and electronic versions

• Make sure using form that has “07/17/17” in the footer and

“Expires 08/31/2019” in header

• Must use new form as of September 18th

• New document is available at https://www.uscis.gov/i-9.

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Arbitration Agreements and

Class Action Waivers

• January 2012 – NLRB decides D.R. Horton case

• Most federal circuit courts disagreed (2nd, 5th, 8th)

• May 2016 – 7th Circuit becomes first circuit court to agree

with NLRB – Epic Systems v. Lewis

• Two more courts agree with NLRB - 9th Circuit in August

2016 (Ernst & Young v. Morris) and 6th Circuit in June

2017 (NLRB v. Alternative Entertainment)

• Supreme Court heard argument in October 2017

• Decision expected later this year or early 2018

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Pregnancy Accommodation Developments

• EEOC enforcement guidance

in 2015 addressing

requirements under ADA and

Pregnancy Discrimination Act.

• July 27, 2017, Massachusetts

passes Pregnant Workers

Fairness Act

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• Last four months, Connecticut, Nevada, Vermont, and

Washington State have passed similar laws

• Total count now 22 states and District of Columbia

• Illinois Pregnancy Accommodation Act went into effect

on January 1, 2015

Pregnancy Accommodation Developments

Locations with provisions for pregnancy accommodation as of August 2017

Source: Department of Labor

https://www.dol.gov/wb/maps/

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Leave as Accommodation under ADA

Severson v. Heartland Woodcraft, Inc.,

(7th Cir. 9/20/17)

• Question posed: does the Americans with Disabilities Act (ADA)

require that employee be given additional time off as an

accommodation?

• EEOC has said yes. Courts previously have skirted the issue, not

providing much guidance.

• In Severson, the Seventh Circuit rejected the EEOC’s position

- denied the employee’s claim that he should have been allowed an additional 2-3

months of leave

- flies in the face of EEOC’s position on “maximum leave” policies

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“[the ADA] is an anti-discrimination statute, not a medical

leave entitlement….”

Paid Leave

• Chicago Paid Sick Leave Ordinance• Went into effect July 1st

• Not too complicated on face, but complicated when you dig in

• Issues our clients are seeing

• Existing generous policies not meeting technical requirements

• Carry-over requirement even if frontloading full amount employee is permitted

to take

• How to handle new hires when frontloading

• Part-time / temporary employees and interns

• For FMLA-covered employers, whether to create separate category of time

• Multiple locations and employees who work from home

• Cook County Earned Sick Leave Ordinance• Went into effect July 1st

• Home-Rule Municipalities had right to opt-out – vast majority did

• For those staying in, same issues as Chicago Ordinance

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• New York State Paid Family Leave

• Effective January 1, 2018

• Must include in handbook/policies

• Similar to unemployment compensation system, but added to

employer’s existing disability insurance policy

• Most employees eligible after 26 weeks

• Starts at 8 weeks @ 50% pay – going to 12 weeks @ 67% pay

• Can be used for maternity/paternity or other family member care

• Employers are required to carry a disability insurance policy

• Premium is fully funded by employees

• Could start deducting from pay July 1st

• Must include in handbook/policies

Federal Standard to bring consistency?

Paid Leave

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Restrictive Covenant Developments

• Illinois - Does the 2-year, bright-line standard under Fifield

apply in federal court? Probably not.

• California – Choice of law/venue statute

- Governs contracts that are entered into from Jan. 1, 2017

forward

- Can’t require employee to adjudicate claim outside of CA

- Can’t deprive employee of substantive protections of CA law

- All employees who “primarily” reside and work in CA

- Voidable at option of employee

- Can get attorneys’ fees

- Does not apply to employee represented by counsel in

negotiating employment agreement

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Restrictive Covenant Developments

• Bankers Life v. American Senior Benefits (Illinois 1st

Dist. – June 2017)

- Former employee sent three former coworkers requests to

become LinkedIn “connections”

- Requests did not discuss Bankers Life or new employer,

did not suggest review of job description, did not encourage

recipient to leave

• Mobile Mini, Inc. v. Vevea (U.S. District Court in

Minnesota – July 2017)

- Two posts on LinkedIn that included invitations to

customers

- Went beyond status updates

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Pay History Laws

• Laws that prohibit asking applicants about current or past

compensation before an offer is made, or otherwise

seeking that information.

• Currently some sort of restriction on the books

• California (effective 2018)

• Massachusetts (effective 2018)

• Delaware (effective 12/17)

• Oregon (no suits until 2019)

• Puerto Rico (penalty provisions effective 3/18)

• New York City (effective 10/31/17)

• Philadelphia (enforcement delayed pending court challenge)

• San Francisco (penalty provisions effective 2019)

• Illinois version was vetoed

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Pay History Laws

• Practical Implications

• What law applies when offers are made over state/city lines?

• Difficulty making initial offer

• Increased negotiation?

• Interplay with anti-trust laws

• Increased need for comp consultants?

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Medical Marijuana

• Medical marijuana legal in 29 states

plus DC and pending in 12 others

• Still Schedule 1 controlled substance

under federal law

• Early case law suggested right to use

didn’t limit employment action

- 2015 Colorado S. Ct. in Coats v Dish

Network

- Similar rulings in CA, MT, and WA

• But the tide is shifting…

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Medical Marijuana

• Callaghan v. Darlington Fabrics – Rhode Island

Superior Court – May 2017 – refusal to hire medical

marijuana user violates RI Civil Rights Act and med.

marijuana statute

• Barbuto v. Advantage Sales – MA Supreme Court –

July 2017 – finds claim for disability discrimination

under state FEPA

• Noffsinger v. SSC Niantic Operating Co. – U.S.

District Court in CT – August 2017 - federal law does

not preempt claims under state statutes

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Questions?

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Thank You

Laura B. Friedel

Levenfeld Pearlstein, LLC

lfriedel@lplegal.com

312.476.7510

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