Articles Tagged with #employmentlaw

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file0001838914447You’ve likely heard by now the story of freshman Louisiana Congressman Vance McAllister (R-La.) kissing one of his staffers.  Now, Rep. Jackie Speier (D-Calif.) is trying to make it so that Representatives and their staffs have to undergo mandatory sexual harassment training.

Unlike the rest of the federal government and many private companies, there is no specific requirement in place that requires U.S. Representatives and their staffs to receive sexual harassment training.  And unlike many of your own workplaces, there aren’t posters and signs in break areas reminding workers of regulations and how to report unwanted conduct.  Many offices don’t even discuss sexual harassment policies at all.  The Senate has training courses for new employees, but several different policies can apply.  The House has no training schedule, but has handbooks.

Frustrated by the seemingly haphazard way these regulations have been put in place in Congress, Rep. Speier said “This is the House of Representatives, not a frat house.”  She continued, “it is time for all of us to get trained – elected officials and their staffs – to recognize what sexual harassment is, and how to prevent it, and what to do if it happens.”  Other lawmakers have expressed concern about these kinds of problems in the past.

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file000704919536In 2013, Lihuan Wang, then a student at Syracuse University and an unpaid intern for Phoenix Sattelite Television, sued Phoenix because her supervisor took her to lunch and to a hotel room where he kissed her by force and grabbed her buttocks.  She resisted and, later, Phoenix wouldn’t hire her.  U.S. District Court Judge Kevin Castel dismissed Ms. Wang’s lawsuit because she was not Phoenix’s “employee” and, thus, the New York City Human Rights Law didn’t apply to her.

Ms. Wang isn’t the first unpaid intern to have to deal with harassment at her internship.  According to Newsweek, one intern was taken out to a bar by her supervisor to discuss career options, but instead he made advances toward her and put his hand on her thigh.  Another was subjected to racial slurs while at work.  Interns – talented young people who are selected for their enthusiasm, their work ethic, and their willingness to work for literally no pay – often feel like they are powerless to stop this kind of harassment.  The most important way interns are usually “compensated” for their time is through a positive reference and/or contacts in the industry where they’re looking for find a job.  Interns feel like complaining could damage or jeopardize those references and contacts, especially when the interns are given no redress by the court system.  But, in New York City at least, this is about to change.

New York City Mayor Bill de Blasio signed a bill into law on Tuesday, April 15, 2014 that provides NYC interns with protections from sexual harassment and discrimination in the workplace.  As the mayor said before signing the bill, “this legislation will clarify that interns, paid or unpaid, are guaranteed the full protections guaranteed to employees under the human rights law.”  Interns in New York will no longer be akin to fair game for harassment and exploitation as far as discrimination and harassment are concerned.

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140828790KE004_President_ObPresident Obama issued an executive order last week that would expand the pool of workers eligible for overtime pay under the Fair Labor Standards Act (“FLSA”).

You may or may not already be familiar with the overtime portions of the FLSA; in case you aren’t, we will provide you with a brief synopsis.  In short, the FLSA provides that many employers have to pay overtime to their employees who work more than 40 hours per week.  This provision is not universal, however, because the Department of Labor is given the ability to create exemptions to it.  As a friendly reminder, don’t forget that you can make overtime even if you are a salaried employee.  Although salaried employees are often exempted from overtime by the professional, executive, or administrative exemptions, there is a threshold below which salaried employees must be given overtime pay.  Prior to recent developments, the FLSA guaranteed overtime pay for salaried workers only if they made less than $455 per week or roughly $23,000 per year.

The new executive order issued last week, for which specifics have yet to be released, is estimated to increase that threshold to between $550 and $970 per week, or approximately $28,600 to $50,440 per year.  In other words, depending on the specifics of the executive order, salaried workers who make up to $970 per week may now be covered under this executive order.

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I hope everyone had a safe and happy holiday season.  Here is a short link expanding on a new Department of Labor rule that will have a significant impact on labor law in the coming year.

As we touched on in an earlier post, the Department of Labor has been considering publishing a new regulation requiring more stringent reporting by employers to the DOL, and it recently revealed that the new rule will be published in March 2014.  Traditionally, the Labor-Management Disclosure and Reporting Act has required employers and labor consultants to report to the DOL all agreements regarding activities where the employer’s goal is to convince employees “as to the manner of exercising, the right to organize and bargain collectively through representatives of their own choosing.”  In other words, the law requires that employers and hired labor relations consultants report agreements where the employer seeks to limit or control unionization.  This reporting requirement includes extensive financial disclosures from the employer and any consultants.

However, the Act currently includes a significant exemption where the labor consultant only gives “advice” to the employer- a term the DOL has defined as covering situations where the consultant or attorney only provides advice to the employer without any direct contact with employees.  The new rule would change the interpretation of this exemption, and would more narrowly define “advice” to require more reporting by employers and consultants.  Specifically, the new rule redefines “advice” as “an oral or written recommendation regarding a decision or course of conduct.”  It also includes a new category of “persuader activities” that an employer must report.  That category is defined as: “a consultant’s providing material or communications to, or engaging in other actions, conduct, or communications on behalf of an employer that, in whole or in part, have the object, directly or indirectly, to persuade employees concerning their rights to organize or bargain collectively.”  Observers expect that the new category and broader definition will include such activities as preparing materials for employers regarding unionization and drafting employee handbooks that touch on union and labor law issues.  As such, activities that were previously unreported as “advice” will now have to be reported to the DOL- understandably, many companies and consulting groups are unhappy about the new, and probably expensive, requirements.  Many groups are expected to challenge the rule once it is enacted in 2014.

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Published right before Thanksgiving, the 2013 fall federal agency regulatory plans help to illustrate what proposed and final rules are on the agenda for the coming months.  The regulatory plans and fall agendas highlight agency priorities and goals and give a preview of future developments in federal employment law.

At the Department of Labor, the agency in general is focused on its “Plan/Prevent/Protect” initiative, which is designed to lessen the agency’s enforcement and inspection burden by issuing rules designed to put the responsibility for ensuring workplace compliance on the employer or regulated entity (such as a union).  Among the DOL’s subsidiary agencies, OSHA is working on publishing final rules that will establish standardized procedures for filing whistleblower complaints under a number of federal statutes, as well as updating workplace infectious disease standards.  The Office of Labor Management Standards will probably publish some version of its controversial “persuader rule,” which would greatly expand the types of union-related activities that trigger employer reporting requirements.  The Office of Federal Contract Compliance programs will continue to update its revised affirmative action requirements, as we covered here earlier, and will likely provide updated sex discrimination guidelines.  Finally, the Wage and Hour Division will be updating its definition of “spouse” to conform to the Supreme Court’s decision in U.S. v. Windsor.

At the EEOC, the agency plans to issue an updated rule increasing the monetary penalty for violations of the agency’s notice posting requirements under Title VII and the ADA.  The NLRB may move forward with a rule that will significantly change pre and post-union election procedures.  An earlier version of the rule was stayed after litigation found it invalid.  Lastly, the Department of Health and Human Services is going to be publishing rules implementing the Affordable Care Act’s non-discrimination provisions, which provide protections against discrimination in health programs and by activities of covered entities.