The information provided on this website is for informational and educational use only. It is not prepared or presented as legal advice or to recommend a specific course of conduct. The content, information and updates provided on this website may change frequently and readers are encouraged to review and analyze the material independently.
September 17, 2018
- NLRB: The current NLRB is looking to overrule a previous decision addressing employee use of employer provided emails for solicitation at work. The National Labor Relations Board invited the filing of briefs on whether the NLRB should modify or overrule Purple Communications, Inc., 361 NLRB 1050 (2014). As you may recall, in Purple Communications, the Board held that employees who have been given access to their employer’s email system for work-related purposes have a presumptive right to use that system, on nonworking time, for communications protected by Section 7 of the NLRA. In addition, the Purple Communications decision only addressed email systems. To that end, the Board is also inviting comments on the standard it should apply to evaluate policies governing the use of employer-owned computer resources other than email. The Brief deadline was extended to October 5th.
- NLRB: President Trump nominated Mark Pearce to serve a third term on the NLRB. Mark Pearce was a 2010 recess appointee under then President Barack Obama and was reappointed to a second term in 2013. The term expired on August 27, 2018. Pearce’s nomination now heads to the Senate for consideration. As you may recall, we currently have 3 Republican Board Members on the Board and currently 1 Democratic Board member with Mark Pearce (A Democratic Board nominee) in the Senate confirmation process.
- NLRB: The National Labor Relations Board published a “Notice of Proposed Rulemaking” earlier this week in the Federal Register regarding its joint employer standard. Under the proposed rule, an employer may be found to be a joint employer of another employer’s employees only if it possesses and exercises substantial, direct and immediate control over the essential terms and conditions of employment and has done so in a manner that is not limited and routine. Indirect influence and contractual reservations of authority would no longer be sufficient to establish a joint employer relationship. You can access additional information here: https://www.nlrb.gov/news-outreach/news-story/board-proposes-rule-change-its-joint-employer-standard
- OFCCP: The Office of Federal Contract Compliance Programs recently released new guidelines revising the way the office detects patterns of pay discrimination, verifies affirmative action and recognizes contractors who follow the rules. In the first directive, the OFCCP said it won’t target a contractor for pay discrimination unless it has anecdotal evidence in addition to a statistical pattern. In the second notice, the OFCCP said it’s developing a system where contractors who don’t submit affirmative action plans will be more likely to come up for review. In the third notice, the OFCCP says it will create a contractor recognition program “that highlights implementable best or model contractor practices, a contractor mentoring program that uses contractors to help their peers improve compliance and other initiatives that provide opportunities for contractors to collaborate or provide feedback t OFCCP on its compliance assistance efforts.
- DOL Wage and Hour: The DOL announced that it will begin a process that could modify the Obama-era rule by limiting exemptions from overtime eligibility under the FLSA. The Wage and Hour Division commenced a series of listening sessions concerning the 2016 Final rule, which doubled to $47,476 the salary threshold under which virtually all workers were guaranteed overtime pay if they worked more than 40 hours a week. As you recall, a federal judge enjoined the overtime rule from taking effect, but the agent later appealed. The Appellate Court then suspended litigation over the rule to allow the agency to consider revisions. Labor Secretary Acosta has indicated that he is open to raising the threshold and during confirmation hearings has suggested an inflation adjusted threshold would put it about $33,000. The first listening session occurred on September 11th in Seattle Washington.
- DOL Wage and Hour: The Department of labor recently issued six additional opinion letters related to the Fair Labor Standards Act and the Family and Medical Leave Act. The letters clarify the application of the laws to specific situations and industries. In one, DOL affirms that an employer doesn’t have to pay employees for participating in a voluntary health screening. The DOL also concludes that organ donors qualify under the FMLA if they need extended recovery from surgery. You can access the opinion letters by visiting the Department of Labor Wage and Hour Division website.
- FCRA: A new model “Summary of Your Rights Under the Fair Credit Reporting Act” disclosure form document was released on September 12, 2018 by the Consumer Financial Protection Bureau (CFBP). Employers and background check companies may begin using the new form on September 21, 2018. Employers and background check companies are required to provide the disclosure form to employees and job applicants at certain times under the FCRA. A failure to provide the correct notification can lead to significant exposure including class action litigation. Employers and background check companies must update their forms prior to September 21, 2018, in order to avoid gaps in compliance. You can gain more information here: https://www.jacksonlewis.com/publication/new-version-model-fcra-summary-rights-released-and-you-have-one-week-comply
July 30, 2018
• NLRB: The General Counsel’s office of the NLRB recently released additional Advice Memorandums. One of the memos focuses on an organization’s rules restricting the use of intellectual property and app user’s information. The General Counsel’s office found the rules restricting the use of intellectual property and app user information was legal under the board’s new test for evaluating policies. If you are responsible for reviewing and updating policies, I encourage you to review the Advice Memo as it relates to potential violations under the National Labor Relations Act and to gain a better understanding of how the NLRB will evaluate alleged policy language violations. You can access the Memos here: https://www.nlrb.gov/cases-decisions/advice-memos
• NLRB: Member and democratic appointee to the NLRB Mark Gaston Pearce’s term on the NLRB expires on August 27th. Traditionally the NLRB is made up of three members of the sitting president’s political party and two members of the minority party. That means that the seat Pearce vacates would be filled by a Democrat appointed by Trump. Currently there are three Republican Members and two Democrat Members. However, Trump also has the option not to fill the vacant seat. The Board could operate with four of the five seats filled – only three Members are needed for a quorum. Although having an even number of Board members could increase the possibility of a 2-2 vote, given that three of the four Members would be like-thinking Republicans, that possibility should be minimal.
• DOL: The U.S. Department of Labor recently formally pulled back the so called persuader rule, an Obama-era regulation that would have made businesses and the consultants they hire for advice on fighting union drives disclose these efforts. As you may recall, a Texas federal judge permanently blocked the rule in November, 2016. To that end, it remains current law that employers who hire lawyers for assistance in providing advice during a union campaign do not have to report the dollars spent on such activities.
• Immigration: Immigration and Customers Enforcement (ICE) issued a press release on July 24, 2018 confirming that I-9 audits are increasing at a significant clip. We will continue to see a year of increased immigration enforcement. ICE’s Homeland Security Investigations division issued almost 5200 Notices of Inspection since October 2017.
• Restrictive Covenants: The Antitrust Director signals heightened focus on deterring no-poach agreements in healthcare industry. The Department of Justice’s Antitrust Division has repeatedly reaffirmed its intent to criminally prosecute companies that restrict labor market competition through the use of unlawful no-poach and wage-fixing agreements. If you are in the healthcare industry and would like to read more about this initiative, please click here: https://www.noncompetereport.com/
• Congress: We were signatories to a SHRM letter urging Congress to support H.R. 4219 in the Workflex in the 21st Century Act. SHRM obtained the signatures of 49 SHRM State Councils and 170 Chapters. The letters were sent to the bill’s sponsor and to all members of the House Committee on Education and the Workforce. You can also access the SHRM Policy Action Center by clicking here:http://www.advocacy.shrm.org/workflex
July 3, 2018
Legislative Director update:
- Supreme Court: The U.S. Supreme Court term that ended June 2018 included decisions on many topics important to workplace law, including class action waivers in employment arbitration agreements, public-sector “agency shop” arrangements, and the Fair Labor Standards Act’s “automobile dealer” overtime exemption. The Court also examined who is a “whistleblower” protected by the Dodd-Frank Act, President Trump’s travel ban executive order and the federal bar on states legalizing sports betting. The conclusion of the term also brought news that Justice Anthony Kennedy is retiring from the Court, effective July 31, 2018. Justice Kennedy was confirmed to the Supreme Court in February 1988 by a vote of 97-0. His departure will leave a vacancy on the nine-member court. The President is expected to announce his nominee to the Supreme Court in the next week. Once announced, we will provide insight on how the nominee has ruled on workplace law decisions. You can read more here with regard to the recent decisions from the Supreme Court: https://www.jacksonlewis.com/publication/us-supreme-court-roundup-2017-2018
- State Law: New Hampshire became the 20th state in the country to prohibit discrimination of all forms based upon gender identity on June 8, 2018. The law goes into effect on July 8, 2018. New Hampshire joins, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Utah, Vermont, and Washington, along with Washington D.C., to include gender identity and/or gender expression in their employment anti-discrimination statutes. As you may recall, the last legislative session in Nebraska, this was also a proposed bill. I would anticipate a similar bill in Nebraska in January 2019.
- Agency Update: The Department of Labor has confirmed the gig economy is alive and well, but the number of workers has increased only slightly in the past decade. The DOL released its much anticipated “Contingent and Alternative Employment Arrangements Survey” report in June, 2018. The number of U.S. workers classified as “contingent” including those in the gig economy increased from 5.7M to 5.9M according to the report. However, the percentage of the workforce made up of contingent workers decreased to 3.8% from 4.1% in 2005. You can read more here: https://www.jacksonlewis.com/publication/number-contingent-workers-inches-higher-dol-survey-finds
- Disability Leave Management: A recent decision from the District Court for the District of Nebraska serves as a reminder that overtime can be an essential job function. (McNeil v. Union Pacific RR). On May 21, 2018, the Court granted the employer’s motion for summary judgment determining that it did not have to grant an emergency dispatcher’s request to be exempt from overtime to accommodate her depression and anxiety because working overtime in emergency situations was an essential element of her job. You can read more here: https://www.disabilityleavelaw.com/
- NLRB Update: In June, the NLRB general Counsel, Peter Robb, issued a detailed 20-page Memorandum to the NLRB Regional Offices entitled “Guidance on Handbook Rules Post-Boeing.” In the Boeing case, the NLRB established a new standard for evaluating employer rules that balances the potential impact of the rule on employees’ NLRA rights against the employer’s legitimate justification for the rule. The Guidance is a good read if you are responsible for reviewing and revising your employee handbook. You can read more here and also access the guidance: https://www.laborandcollectivebargaining.com/2018/06/articles/nlra/nlrb-general-counsel-issues-employer-friendly-work-rule-guidance/
May 25, 2018
· The Supreme Court of the United States earlier this week held that class action waivers in employment arbitration agreements are enforceable under the Federal Arbitration Act. The Supreme Court’s decision resolves the circuit split on whether class or collective action waivers contained in employment arbitration agreements violate the National Labor Relations Act. In a 5-4 decision authored by Justice Neil Gorsuch, the Court held that the FAA states the arbitration agreements providing for individualized proceedings are enforceable and neither the FAA nor the NLRA require otherwise. You can read more here: https://www.jacksonlewis.com/publication/supreme-court-class-action-waivers-employment-arbitration-agreements-do-not-violate-federal-labor-law You can also view a complimentary webinar on the impact of this decision and practical considerations by clicking here: https://www.jacksonlewis.com/event/should-we-catch-wave-practical-considerations-after-us-supreme-courts-decision-upholding-class-action-waivers
· Iowa amends their tough drug testing legislation to lower the standard for positive alcohol tests. Specifically, beginning July 1, 2018, private employers in Iowa may take action based on an employee’s alcohol test result of .02 grams of alcohol per two hundred ten liters of breath. The lower standard was enacted under a 2018 amendment to the Iowa drug testing law. Prior to the amendment, employers could not take action for alcohol test results below .04 BAC.
· The Federal Trade Commission (FTC) recently announced that it will launch a national education campaign to aid the small business sector in strengthening its cybersecurity and protecting its sensitive and personal data. Although the media’s attention of late has been on large companies suffering data breaches, it is important to remember that, according to a recent study, half of all cyberattacks target small and mid-sized businesses. You can obtain more information on this education campaign here: https://www.workplaceprivacyreport.com/
· The National Labor Relations Board has begun the process to consider rulemaking to establish a standard for determining joint employer status under the National Labor Relations Act, according to the Board’s filing in the Unified Agenda of Federal Regulatory and Deregulatory Actions. Next, a Notice of Proposed Rulemaking will be issued, affording the opportunity for public comment. A majority of the five-member Board will need to approve the proposed rule. To view the filing, please visit the following: https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201804&RIN=3142-AA13
April 27, 2018
The Nebraska legislative session adjourned SINE DIE on Wednesday, April 18, 2018. The attached is the final Legislative Update for the Nebraska Legislative Session. The following are the most noteworthy:
· LB 742 Amend the Franchise Practices Act – Approved by the Governor on 4/11/18 (I have attached the Final Reading Copy)
· LB 953 Amend the Nebraska Workers’ Compensation Act – Presented to the Governor on 4/18/18 (I have attached the Final Reading Copy as we await the Governor’s signature)
· LB 957 Amend the Nebraska Workers’ Compensation Act – Presented to the Governor on 4/18/18 (I have attached the Final Reading Copy as we await the Governor’s signature)
· NLRB: On April 11, 2018, the U.S. Senate confirmed John Ring to serve as a member of the NLRB.
· The White House: On April 10th, the President issued an executive order to promote economic mobility, strong social networks and accountability to American taxpayers. On April 12th, the President nominated John Pallasch to the Assistant Secretary of Labor for employment Training. On April 12th, the President designated John Ring as NLRB Chairperson.
· Wage and Hour: On April 9th, the Wage and Hour Division issued a Field Assistance Bulletin to address the Wage and Hour Division’s enforcement of tip credit rules under the FLSA. (If you would like a copy, please let me know)
o Senator Tammy Baldwin introduced in the Senate Protecting America’s Workers Act (S. 2621)
o Senator Tim Kaine introduced Jobs Plus Recovery Act of 2018 (S. 2642)
o On April 10th, the Senate HELP Committee held a hearing on the nomination of Sharon Gustafson to be the EEOC General Counsel.
· Courts: A recent decision from the U.S. Court of Appeals for the Eighth Circuit offers a potential “fix” for employers dealing with claims under Title III Of the ADA. The Complaint in this case alleged the restaurant did not have the requisite number of accessible parking spaces, the parking spaces lacked access aisles and two spaces lacked the requisite signage. The defendant remedied the alleged violations and filed a motion to dismiss based on mootness and standing. Title III of the ADA only allows individual plaintiffs to seek injunctive relief and reasonable attorney fees. The Defendant argued that there was not a case for the court to decide because the issues raised in the Complaint no longer issued. The Court agreed denying injunctive relief and an award of attorney fees. The decision serves as a good reminder that there is an option to fix the issues specifically raised in the Complaint and seek to dismiss the case as moot to avoid attorney fees. There are a growing number of cases alleging Title III ADA violations across the country. You can read more here: https://www.disabilityleavelaw.com/2018/04/articles/ada-title-iii/can-fix-eighth-circuit-answers-yes-can/
April 15, 2018
The regular legislative session is scheduled to conclude on Wednesday, April 18th. It is currently in adjournment until Wednesday. I have attached to this email the full legislative update. I have provided below a few recent legislative developments since our last update:
· LB 742 – Amend the Franchise Practices Act – Presented to the Governor for signature on April 10th
· LB 953 – Amend the Nebraska Workers’ Compensation Act – Placed on Final Reading on April 10th
· LB 957 – Amend the Nebraska Workers’ Compensation Act – Placed on Final Reading on April 10th
· NLRB: The National Labor Relations Board is considering whether misclassifying individuals as independent contractors as opposed to employees is an independent violation of the National Labor Relations Act. An Administrative Law Judge ruled last year that misclassifying workers is an Unfair Labor Practice even it is not accompanied by other violations of the Act. The Board has requested briefs on this legal issue and has recently extended the deadline to submit briefs to April 30th.
· Department of Labor: Earlier this week, the Department of Labor Wage and Hour Division issued three new opinion letters. As you may recall, under the Obama Administration, the Department of Labor discontinued the use of Opinion Letters. Letters represent official statements of DOL policy. Within the confines of the specific circumstances provided by the anonymous employers seeking guidance, the recent opinion letters address the following issues:
1. Compensable vs. non-compensable time under the FLSA when an employee travels for work beyond routine commuting, particularly if the employee purportedly does not have regular work hours.
Short Answer: Generally speaking, time is compensable if it “cuts across the employee’s regular workday” and where work hours truly are irregular, employer may establish typical start and stop times based on an analysis of time records or may enter into an agreement with employee as to what will constitute regular hours for travel/commuting purposes.
2. Whether 15-minute rest breaks, required every hour by an employee’s FMLA serious health condition, must be compensated.
Short Answer: No. Although the default is that breaks of 20 minutes or less are compensable, where, as is the case here, the breaks are primarily (or exclusively) for the benefit of the employee and not the employer, they may be treated solely as unpaid FMLA leave, provided the employee is compensated for any regular paid breaks that are given to other employees.
3. Whether certain lump-sum payments from employers to employees are considered “earnings” for garnishment purposes under Title III of the Consumer Credit Protection Act (CCPA).
Short Answer: The following are considered earnings: commissions, discretionary and nondiscretionary bonuses, productivity or performance bonuses, profit sharing, referral and sign-on bonuses, moving or relocation incentive payments, attendance, safety and cash service awards, retroactive merit increases, payment for working during a holiday, workers’ compensation payments for wage replacement, termination pay (e.g., payment of last wages, as well as any outstanding accrued benefits), severance pay, and back and front pay payments from insurance settlements. The following are not considered earnings: Workers’ compensation payments for medical reimbursements, wrongful termination insurance for compensatory or punitive damages, buybacks of company shares.
To review the opinion letters themselves, click on the following links:
o Compensability of Travel Time: https://www.dol.gov/whd/opinion/FLSA/2018/2018_04_12_01_FLSA.pdf
o Short Breaks Required by Serious Health Condition: https://www.dol.gov/whd/opinion/FLSA/2018/2018_04_12_02_FLSA.pdf
o Earnings Under the CCPA: https://www.dol.gov/whd/opinion/CCPA/2018/2018_04_12_1NA_CPPA.pdf
· Courts: The United States Court of Appeals for the 9th Circuit ruled earlier this week that employees’ past pay doesn’t justify maintaining a gender based wage gap. The decision provided, in relevant part: “The question before us is…simple: can an employer justify a wage differential between male and female employees by relying on prior salary?” “The answer is clear: No.”
April 6, 2018
The U.S. Supreme Court’s recent decision on Monday of this week ruling that auto service advisers are not covered by the FLSA overtime pay requirement.
An amendment to the FLSA that was passed as part of the Omnibus spending Bill that has two components: (1) federal law now regulates for the first time the sharing and pooling of tips and prohibits “managers or supervisors” from keeping any employee tips; and (2) the bill rescinds the Department of Labor regulations prohibiting the sharing or pooling of tips between tipped and non-tipped employees (e.g. servers and cooks) even if the tip credit is not taken.
Recent labor law developments (i.e. composition of the Board, recent decisions and impact on non-unionized workplaces)
Bills in Congress (workplace flexibility, High Performance workplaces, and Access to a legal workforce).
March 16, 2018
Nebraska Legislative Update
I have attached the most updated Legislative Update. As you can see from the attached summary, we have seen very little movement on the attached bills over the past few weeks. Today is the 45th day in the 60 day legislative session. To that end, time is running out for movement on many of the bills.
· The United States Court of Appeal for the Eighth Circuit will soon decide whether Title VII of the Civil Rights Act bars sexual orientation discrimination. Currently two federal Circuit Courts (the 7th Circuit and 2ndCircuit) have extended Title VII’s protections to include sexual orientation discrimination claims while one federal Circuit Court (the 11th Circuit) has held that Title VII does not prohibit sexual orientation discrimination. Nebraska is located within the Eighth Circuit.
· The Senate HELP committee has confirmed Republican John Ring to the National Labor Relations Board by a vote of 12-11 earlier this week. The next step is a vote by the full Senate. The Board is currently composed of two Democratic and two Republican appointees. If Ring is confirmed by the full Senate, the NLRB will have a 3-2 Republican majority until 2020.
· The United States Court of Appeals for the Fifth Circuit on Thursday of this week vacated the Obama-era fiduciary rule. As you may recall, the fiduciary rule required that broker dealers consider only the client’s best interest and not commissions or fees when providing retirement advice. The regulation took partial effect last year but the ruling yesterday nullified the measure in its entirety.
· The NLRB will again extend the public comment period for potential changes to the so called “quickie election rule” until April 18th.
· SHRM Members were on Capitol Hill this week to discuss with lawmakers the following bills:
o H.R. 4219 the Workplace in the 21st Century Act – this would expand paid leave and workplace flexibility opportunities for all employees. The bill would amend ERISA to create a Qualified Flexible Work Arrangement Plan allowing participating employers to follow a federal framework for paid leave and workflex as opposed to the complex conflicting patchwork of state and local laws that currently exist. To qualify as a QFWA plan, the plan would have to offer two major components to all full-time and part-time employees: (1) paid leave (the number of hours would be scaled to the size of the employer); and (2) Flexible Work Arrangement – the employer would offer at least one flexible work arrangement to each employee.
o S. 2203 – Ending Forced Arbitration of Sexual Harassment Act - This will would prohibit employers from enforcing mandatory arbitration agreements for sex discrimination claims. SHRM supports public policy proposals that promote an accessible, prompt and fair resolution of harassment claims in the workplace while protecting confidentiality and due process, including arbitration.
o S. 2344 The Immigration Innovation Act (introduced by Senators Orrin Hatch and Jeff Flake) that would help to modernize our immigration system by allocating visas to clear backlogs, enhance protections, educate and train US workers and streamline filings for compliant employers.
March 11, 2018
· The Wage and Hour Division announced a new nationwide pilot program, the Payroll Audit Independent Determination (PAID) program, which facilitates resolution of potential overtime and minimum wage violations under the FLSA. You can access the new PAID pilot program here: https://www.dol.gov/whd/paid/ With that said, the pilot program is not without a level of risk. You can read more about the pilot program and potential employer considerations here: https://www.wageandhourlawupdate.com/
· The Equal Employment Opportunity Commission may pursue claims that an employee was discriminated against on the basis of transgender status in violation of Title VII of the Civil Rights Act, the federal appeals court in Cincinnati has ruled in a landmark decision. The Court rejected the employer’s argument that it was protected by the Religious Freedom Restoration Act (RFRA). See, EEOC v. R.G. & G.R. Harris Funeral Homes, No. 16-2424 (t 6th Cir. March 7, 2018). You can read more here: https://www.jacksonlewis.com/publication/title-vii-anti-discrimination-protection-covers-transgender-employee-appeals-court-rules
· H.R. 4219 - The Workflex in the 21st Century Act – introduced by Representative Mimi Walters (R-CA) that would expand paid leave and workplace flexibility opportunities for all employees. The bill creates a Qualified Flexible Work Arrangement plan that would pre-empt state and local paid leave laws and certain workflex laws for employers that voluntarily choose to opt into the plan and offer a minimum threshold of paid leave and a flexible work option to all employees.
March 5, 2018
The Unicameral will have 24 legislative days remaining when it reconvenes on Tuesday of this week. As you may recall, the Legislature is scheduled to adjourn on April 18th. This week the Legislature will start full day floor debates. Last Monday (Feb 26th) the Business and Labor Committee heard testimony on the mini-WARN Act bill (LB 1134). Based on the testimony, we don’t anticipate this bill having a great chance of passing this session. With that said, the legislative bills that had movement since the last update include:
· LB 784 Amend the Employee Classification Act - Placed on General File
· LB 953 Amend the Nebraska Workers’ Compensation Act - Business and Labor Priority Bill and Placed on General File
· LB 957 Amend the Nebraska Workers’ Compensation Act – Speaker Priority Bill and Placed on General File
· LB 1015 Allow Withholding from public of reports of injury under the Nebraska Workers’ Compensation Act that reveal an employee’s identity – Government, Military and Veterans Affairs Priority Bill and Placed on General File
Given there is only 24 legislative days remaining, the priority bills have the greatest odds of passing this session. To that end, a great majority of the HR, labor and employment bills attached are not seeing much movement.
· A federal appeals court ruled that firing workers over their sexual orientation is sex discrimination. (Zarda v. Altitude Express, Inc., 2nd Circuit 2/26/18). There currently is a split in the Circuit courts regarding the termination of “sex discrimination” under Title VII of the Civil Rights Act on this issue.
· In a surprising reversal, the NLRB on February 26, 2018, vacated its decision in Hy-Brand Industrial Contractors, Ltd., 365 NLRB No. 156 (2017) and restored the Board’s union-friendly joint employer test set forth in Browning-Ferris Industries, 362 NLRB No. 186 (2015) which Hy-Brand had overruled. The Board’s latest reversal came about as a result of a report from the Board’s Inspector General that Member William Emanuel should have recused himself from participating in the decision as his firm represented one of the joint employers involved in theBrowning-Ferris decision. You can read more here: https://www.laborandcollectivebargaining.com/2018/02/articles/nlra/nlrb-vacates-hy-brand-joint-employer-decision-following-inspector-general-report/
· H.R. Bill 4219 (entitled “Workflex in the 21st Century Act”) – The proposed legislation would create a single federal framework for providing paid leave. SHRM supports this bill. To read more about this bill, you can access the SHRM link containing Q&A and other resources regarding this pending bill by clicking on the following link: http://www.advocacy.shrm.org/workflex
· The Senate HELP committee will consider on Wednesday of this week the nomination of John Ring (Management-side attorney) to become an NLRB member. Provided the Senate confirms Ring’s nomination, this would provide Republicans a 3-2 advantage on the Board.
Feb 20, 2018
· Retaliation claims were the most common workplace discrimination charge received by the EEOC in fiscal year 2017 according to the agency. Retaliation claims have been at the top since FY 2010. You can read more here: https://www.jacksonlewis.com/publication/eeoc-retaliation-tops-discrimination-charges-filed-fiscal-year-2017
· New handling regulations for ERISA disability claims will go into effect on April 1, 2018, the DOL has recently announced. The agency confirmed that the regulations are final, without changes. The regulations were effective January 2017 but were delayed until April 1, 2018. The DOL has confirmed that they will not be delayed or revised further. Employers who offer short-term and long-term disability plans governed by ERISA (and their plan administrators) need to prepare for the approaching deadline. The following article provides background on the flux of the regulations and offers steps to take now to ensure timely compliance: https://www.jacksonlewis.com/publication/changes-erisa-s-disability-claims-regulations-coming-april-1
Feb. 9, 2018
LB 30 (Kolterman)
Provide for a cash balance benefit plan for cities of the metropolitan and primary classes for certain police officers or firefighters
Public Employer Impact: The bill provides that no city of the metropolitan class may provide retirement benefits for police officers or firefighters hired by a certain date unless the retirement benefits are provided pursuant to a cash balance benefit plan. The public employer would need to modify retirement benefit programs for police officer and firefighters hired after January 1 of a designated year. 1/3/18Title printed. Carryover bill.
Employer Impact: The bill requires additional recordkeeping and reporting obligations for employers through the garnishment process. The bill also streamlines the garnishment process and codifies the priority of garnishment, obligations for creditors, debtors and garnishees and requires employers to follow specific steps in the garnishment process. 1/3/18 Title printed. Carryover bill.
Public Employer Impact: Any contract of employment entered into on or after July 1, 2017 between the teaching staff and a board, which applies to the first three years of employment for members, shall provide that the probationary period is the first three years of the employment. Any such contract may be terminated during the probationary period without cause. 1/3/18 Title printed. Carryover bill.
Employer Impact: The bill amends section 25-1029 and 25-1056 of the Revised Statutes of Nebraska. The bill permits employers who are holding nonexempt earnings pursuant to an order of garnishment to release the funds if no order to pay the judgment creditor has been received by the employer within sixty (60) days following the judgment creditor’s receipt of the employer’s answer. 1/3/18 Title printed. Carryover bill.
Employer Impact: This bill would eliminate the 50% increase in worker’s compensation benefits for “waiting time” if the cause of the waiting time is due to a reasonable investigation by the employer into whether the benefits are owed to the employee, the results of the investigation were the actual basis for the employer, or his worker’s compensation insurer, to deny, delay payment or terminate benefits, and the employer conveyed the reason for the denial, delay in payments, or termination of benefits to the employee at the same time as the denial, delay or termination.
In addition, the bill provides that attorney’s fees will not be awarded to an employee who is successful in compensation court on a claim for an employer’s refusal to pay compensation benefits, if the employer conducted a reasonable investigation into whether the benefits are owed to the employee, the results of the investigation were the actual basis for the employer, or his worker’s compensation insurer, to deny, delay payment or terminate benefits, and the employer conveyed the reason for the denial, delay in payments, or termination of benefits to the employee at the same time as the denial, delay or termination.1/3/18 Title printed. Carryover bill.
Employer Impact: This bill is intended to prevent employers from knowingly employing unauthorized aliens. Beginning January 1, 2018, every employer paying wages subject to withholding must register with the Tax Commissioner and have an assigned state employer identification number. Additionally, every such employer will be required to register with and use the federal immigration verification system to determine the work eligibility status of new employees subject to tax withholding and physically performing services within Nebraska. Employers must determine the new employee’s work eligibility status pursuant to federal law after the employee has accepted an offer of employment. The employer must file a sworn affidavit with the Tax Commissioner stating that the employer is in compliance with the law. Employees hired prior to the date of the employer’s registration with the federal immigration verification system are exempt from the requirements. Proof of verifying the employment authorization of an employee with the federal immigration verification system creates a rebuttable presumption that the employer did not knowingly employ an unauthorized alien.1/3/18 Title printed. Carryover bill.
Employer Impact: Employers should be aware that this bill would reduce federal adjusted gross income amounts received for the following: (1) benefits received under the Social Security Act; (2) the amount received as a retirement benefit under a retirement plan qualified under sections 401(a) or 403(a) of the Internal Revenue Code; (3) amounts received as military retirement benefit; (4) amounts received for other enumerated public employee retirement acts. 1/3/18 Title printed. Carryover bill.
Employer Impact: Change the Nebraska Fair Employment Practice Act to include sexual orientation and gender identity as protected characteristics. Employers would be prohibited from discriminating against employees on the basis of sexual orientation and gender identity with regard to hiring, firing, promotion, compensation, training, retention discipline, benefits, or any other aspect of personnel administration. 1/3/18 Title printed. Carryover bill.
Employer Impact: This law provides that if a physician selected by an employer or its workers’ compensation insurer renders an opinion or findings regarding an employee’s medical conditions or the relatedness of the medical condition to employment, the employer must reimburse the employee for the medical report or examination of a physician of the employee’s choice if the employee disputes the employer physician’s findings and submits the proper application to the Workers’ Compensation Court and the employer.1/10/18 Passed over
Employer Impact: Persons compensated by gratuities such as waiters, waitresses, bellhops, porters, and similar employees must be paid the following minimum rate:
(1) $2.13 per hour prior to August 1, 2017 (current rate);
(2) 40% of the minimum wage rate in effect for wages paid after August 1, 2017;
(3) 50% of the minimum wage rate in effect for wages paid after January 1, 2018.
Employer Impact: Beginning in fiscal year 2017-18, employers can apply for a grant under the Act to secure job training for young people (16-24 yr olds) in industries with a positive growth-to-replacement ratio (or that expect such a ratio in the next 12-24 months). Nonprofit corporations can apply for grants to provide soft-skills training, career counseling, and other programs for career readiness to young people. The Legislature intends to appropriate $20M to the grant program for the first fiscal year. 1/3/18 Title printed. Carryover bill.
Employer Impact: Any employer with 25 or more employees (including part time workers), who conduct a mass layoff, worksite closing, or transfer of operations must give 60 days prior notice to effected employees, union reps of effected employees, the Commission of Labor, the local workforce development board, and the mayor (if no mayor, then the county board).
Mass layoff means employment loss at a single site for 25 or more employees (including part time Worksite closing means permanent or temporary closure that affects 25 or more employees (including p/t). Transfer of operations mean removal of all or substantially all operations to a different site 50 miles or more away, which affects 25 or more employees (including p/t).
If the employment loss affects 250 or more employees, the employer must give 120 days’ notice.
Penalties payable to employees for violation include 1) double back pay for each calendar day of notice not given; 2) value of benefits for the entire notice period (including medical treatment costs that would have been covered by the employer’s plan absent the employment loss); 3) attorneys’ fees; and 4) unspecified economic damages.
If the Attorney General, Commissioner of Labor, or affected city/village/county succeeds on a civil action against the employer for violating the Act, a lien attaches to the employer’s business revenue, real property, and personal property. 1/3/18 Title printed. Carryover bill.
Employer Impact: Beginning April 1, 2020, a covered individual may take paid family medical leave for qualifying reasons as defined in the Bill. The employee may take up to 12 weeks depending upon the reason for leave. 1/3/18 Title printed. Carryover bill.
Employer Impact: Certain reports filed under workers’ compensation are considered confidential and not open to the public for inspection or copying except as specifically provided for in the section to administer and enforce the workers’ compensation act. An employee can elect to waive confidentiality for reports involving the employee. The Comp court will deny any request to inspect or copy a report unless an election to waive confidentiality has been made by the employee. 1/3/18 Title printed. Carryover bill.
Employer Impact: Employer is defined as an entity employing 4 or more individuals in the state at any one time. It does not include the State or any political subdivision of the State. It is unlawful for an employer to screen job applicants based on their current or prior wages including any requirement that a job applicant’s current or prior wages satisfy minimum or maximum criteria. It is unlawful to request or require as a condition of being interviewed or as a condition of continuing to be considered for an offer of employment that a job applicant disclose his or her current or prior wages or seek information regarding a job applicant’s current or prior wages from the current or former employer unless the job applicant provides written authorization to do so and the confirmation is done after the employer has made an offer of employment. 1/3/18 Title printed. Carryover bill.
Employer Impact: An “eligible individual” for any month during the taxable year will be permitted to take an income tax deduction for the taxable year. The bill elaborates on the tax deduction calculation and the maximum amount permitted. 1/3/18 Title printed. Carryover bill.
Employer Impact: The bill would include “family care responsibilities” as a protected basis under the NFEPA (similar to race, color, religion, national origin, etc.). Family care responsibility means “providing direct and ongoing care for a person’s spouse, child, parent, sibling, grandchild, or grandparent or a child or parent of such person’s spouse.” It would prohibit an employer from discriminating against an employee based on his/her family care responsibilities. 1/3/18 Title printed. Carryover bill.
Employer Impact: An employer or employment agency could still ask job applicants to disclose, orally or in writing, information concerning their criminal record or history, including any inquiry on any employment application. However, if an employer or employment agency makes such an inquiry or requests disclosure regarding criminal history record information, the employer or employment agency would be required to afford the applicant an opportunity to explain the information and the circumstances regarding any convictions, including post-conviction rehabilitation. 1/3/18 Title printed. Carryover bill.
Employer Impact: (STATE AGENCIES) Any state agency that obtains federal tax information must require a criminal history record information check of any agency employee who has been identified by the agency as being authorized to have direct access to federal tax information. Such employee must submit a complete set of fingerprints to the Nebraska State Patrol which will submit a copy of the fingerprints to the Federal Bureau of Investigation for a national criminal history record information check. 1/3/18 Title printed. Carryover bill.
Employer Impact: For purposes of various provisions of the Nebraska labor statutes, including the Nebraska Workers’ Compensation Act, franchisors are excluded from the definition of “employer” of a franchisee or franchisee’s employees. Franchisors who exercise a type or degree of control over the franchisee or franchisee’s employees may still be considered an employer.
Employer Impact: Any individual, partnership, limited liability company, association, joint stock company, trust, or corporation with six (6) or more employees must provide employees a fifteen (15) minute rest period for every four (4) hours worked. These rest periods are in addition to regularly-scheduled lunch periods. No reduction in compensation may be made for such rest periods. Employers violating the section will be guilty of a Class III misdemeanor.
Employer Impact: The bill amends Section 69-2441 of the Concealed Handgun Permit Act to provide that a permitholder does not violate the section unless the employer in control of the property (a) posts a conspicuous notice that carrying a concealed handgun is prohibited in or on the place or premises; and (b) has made a request, directly or through an authorized representative or management personnel, that the permitholder remove the concealed handgun from the place or premises and the permitholder has defied the request.
Employer Impact: Section 5(3) mirrors language in the Concealed Handgun Permit Act providing that a person does not violate the section unless the employer in control of the property (a) posts a conspicuous notice that carrying a concealed handgun is prohibited in or on the place or premises; and (b) has made a request, directly or through an authorized representative or management personnel, that the person remove the concealed handgun from the place or premises and the person has defied the request.
The employer still has the right to prohibit employees or other persons from carrying concealed handguns in vehicles owned by the employer.
Public Employer Impact: the Act would prohibit a public employer from deducting dues, assessments, or other amounts from the wages of a public employee on behalf of a union, collective bargaining organization or other professional association.
Employer Impact: The bill seeks to eliminate the Farm Labor Contractors Act in its entirety and remove references to the Act in other sections.
Public Employer Impact: the bill changes the rules relating to funding of retirement plans for employees who perform military service.
For military service rendered on or after January 1, 2018, any employee who is reemployed after service shall not be treated as having a break in service by reason of his military service for purposes of determining the non-forfeitability of the member’s accrued benefits under the retirement plan. In addition, the employer will be liable for funding any benefits owed to the employee under the plan.
Public Employer Impact: the legislation seeks to combine two retirement systems. The bill states that, beginning July 1, 2020, all members of the Class V School Employees Retirement Act will be transferred to and become members of the School Employees Retirement System of the State of Nebraska. The bill provides for the rights of the participants of the Class V Plan and outlines how benefits will be paid in the future.
Employer Impact: the bill amends Section 48-4,110 of the Nebraska Worker’s Compensation Act to provide that any individual employer, partner, limited liability company member, or self-employed person who is actually engaged in the business on a substantially full-time basis and who does not elect to bring himself or herself within the provisions of the Nebraska Worker’s Compensation Act shall file with the Nebraska Worker’s Compensation Court a written nonelection of worker’s compensation coverage. The nonelection is not enforceable if it is required as a condition of employment.
The bill also provides instructions on how to terminate this election and requires the administrator of the compensation court to maintain a list of individuals who have filed a nonelection.
Employer Impact: The Act seeks to expand business and provide additional jobs for Nebraskans. The Act identifies certain target industries (i.e. assembly plants, data processing centers, and research facilities) and provides different levels of project tiers that a business can engage in. After the business satisfies a certain tier, it is afforded certain tax credits based on that tier. For example, engaging in a certain tier project will permit the employer to obtain a refund of sales and use tax and property taxes. The businesses are subject to an audit by the Tax Commissioner to ensure that the business did qualify for the incentives received.
Employer Impact: The Act allows for medical marijuana use by qualified individuals. The Act does not permit employees to vaporize medical cannabis in a place of employment.
Employer Impact: The Act seeks to revise provisions relating to disqualification for unemployment benefits and authorize drug testing of individuals applying for or receiving unemployment benefits. With this revision, individuals are considered to have refused to accept suitable work if he or she fails a pre-employment drug screening. Benefits are unavailable for the week in which he or she fails the drug test or refuses a drug test. Individuals can be tested if terminated from employment for unlawful use of a controlled substance.
Employer Impact: This bill would require any individual or group sickness and accident insurance policy and any self-funded employee benefit plan that provides for pregnancy-related procedures to provide coverage on an expense incurred, service, or prepaid basis for outpatient expenses that arise from in vitro fertilization procedures. Benefits for vitro fertilization procedures under this bill must be provided to the same extent as benefits provided for other pregnancy-related procedures under the policy, certificate, contract, or plan.
Employer Impact: The bill amends section 87-404 of the Franchise Practices Act to change provisions relating to an arbitrator or a court’s ability to reform the terms of a noncompete agreement, to the extent necessary to make it enforceable. The court or arbitrator will then enforce the noncompete agreement against the franchisee, the guarantor, or any person with a direct or indirect beneficial interest in the franchise in accordance with the reformed terms of the noncompete agreement. Specifically, the amendment now applies to noncompete agreements entered into by a franchisor headquartered in Nebraska, unless otherwise agreed to by the franchisor and franchisee. The original section 87-404 is repealed.
Employer Impact: The bill amends sections 48-2907 and 48-2911 of the Employee Classification Act to prevent any contractor who has unpaid fines for a violation of the Employee Classification Act from contracting with the state or any political subdivision until such fines are paid.
The amendment also requires any contractor who performs construction or delivery services to submit an affidavit, among other things, that it is not barred from contracting with the state or any political subdivision pursuant to 48-2907 or 48-2912.
Employer Impact: The bill amends the Nebraska Wage Payment and Collection Act to include new provisions which prohibit employers from 1) requiring nondisclosure of an employee’s wages as a condition of employment; 2) requiring an employee to sign a waiver or agreement not to disclose wages; 3) taking any adverse action if an employee discloses their own wages or discloses the wages of another employee (if that second employee voluntarily disclosed their wages to the first employee); 4) interfere with employee’s efforts to disclose their wages (including by coercion, intimidation, threats); and 5) discharging an employee who enquires about, discusses or discloses comparative compensation information for the purposes of determining whether there is equal pay. Employer is not required to disclose wages if employee inquires. Employees are not permitted to disclose others’ wages to a competitor. Handbook policy required.
Employer Impact: The Act provides employees with paid sick and safe time in order to recover from any illness, injury, seek counseling, or attend court hearings. The Act applies to the need for time off by the employee to care for him or herself and also for the care of a family member.
Employees earn one hour of sick and safe time for every thirty hours worked and are entitled to use this time beginning on the sixtieth calendar day following their first day of employment. The hours can be carried over to a subsequent year, but are not paid out at termination of employment.
Employers with paid leave policies, as long as they meet the accrual requirements for sick and safe time under the Act, are not required to provide additional sick and safe time. However, employers are required to provide notice at the time of hire that employees are entitled to sick and safe time.
If the use of paid sick and safe time exceeds more than three consecutive working days, an employer may require reasonable documentation that the sick and safe time has been used for the purpose described in the Act. However, the employee may choose the type of applicable documentation and the employer shall not require more than one type of reasonable documentation for the same incident. All documentation will be kept confidential.
Employers shall not retaliate or discriminate against an employee because the employee has exercised rights protected under the Act. The Act creates a private cause of action against employers who are believed to have violated its provisions. There is no requirement that an employee file an administrative complaint prior to proceeding to court.
Employer Impact: The Bill amends section 48-121 of the Nebraska Workers’ Compensation Act with a provision adjusting any total disability award income benefit received each year in proportion to the annual increase, if any, in the state average weekly wage for partial disability as determined under section 48-121(2).
Employer Impact: The bill prohibits employers from retaliating or discriminating against an employee or applicant because the employee or applicant (1) files a complaint under the Nebraska Wage and Hour Act, or (2) testifies, assist, or participates in an investigation, proceeding, or action concerning a violation of the Act.
Employer Impact: The bill amends section 48-122 to provide that, upon the death of an employee … reasonable expenses of burial shall not exceed fourteen times the state average weekly wage determined pursuant to section 48-121.02 for the year of death.
In addition, subsection (10) is added to provide that if there is no spouse, child or other dependent entitled to benefits under this section, twenty-five thousand dollars will be paid to the estate of the deceased.
Employer Impact: The bill amends section 48-177 to provide that a dismissal under this subsection shall be without prejudice to a future action unless the dismissal is by a plaintiff who has previously dismissed an action against the same defendant.
Employer Impact: The bill amends section 48-139 to provide that the compensation court may, on its own motion or on a motion by one of the parties, hold a hearing on a claimant’s application for the payment of a lump-sum settlement.
The bill also adds subsections (ii) and (iii) which provide information relating to the effect of medical, surgical or hospital services that are not paid by the employer and the consequences of the employee being entitled to Medicare at the time of a lump-sum settlement. Under both of these situations, it is assumed that the lump-sum settlement is in conformity with the compensation schedule and is in the best interests of the employees or his or her dependents.
Employer Impact: The bill amends section 48-125 to add subsection (2) which permits, upon the agreement of the parties, that payment may be made by direct deposit, prepaid card, or other similar electronic payment system. The new subsection permits an employer, workers’ compensation insurer, or risk management pool to request that the employee choose among one of these types of payments. If the employee, or other person entitled to payment, fails to choose a method of payment, the employer is entitled to choose which payment method to use.
Employer Impact: The bill creates a new act called the “Discriminatory Wage Practices Act,” which adds to existing provisions prohibiting discriminatory practices in wage payment based on sex. Additions include providing for an employer pay practices model, affirmative defenses, and enforcement by the Attorney General or Nebraska Equal Opportunity Commission, penalties for falsifying or failing to keep records and retaliation against employees for reporting wage discrimination, and protections for employees’ rights to disclose their wages. Employers should note the new definitions, requirements, and affirmative defenses in this bill.
Employer Impact: This amends the provisions of the law regarding public records to include work injury reports (including workers’ compensation reports) in the list of records which can be withheld from the public unless publicly disclosed in an open court, open administrative proceeding or open meeting, or disclosed by a public entity pursuant to its duties.
Employer Impact: Any employer with 25 or more employees (excluding part time workers), who conduct a business closing, a mass layoff, or a reduction in hours of more than fifty percent for a six-month period must give 60 days prior notice to effected employees or their representatives and the Department of Labor.
Mass layoff means a reduction in employment force that results in an employment loss at a single site of employment during any 60-day period of 25 or more employees, other than part-time employees. Part-time employee means an employee who is employed for an average of fewer than twenty hours per week or an employee, including a full-time employee, who has been employed for fewer than six of the twelve months preceding the date on which notice is required by the act.
Penalties payable to employees for violation include 1) back pay for each calendar day of notice not given; 2) benefits under an employee benefit plan, including the cost of medical expenses incurred during the employment loss which would have been covered under an employee benefit plan if the employment loss had not occurred; and 3) attorneys’ fees. Other penalties include a civil penalty of not more than $250 per day, but such penalty shall not apply if, within three weeks from the date the employer orders the layoff, the employer pays each aggrieved employee the penalties owed.
Employer Impact: The Bill amends section 49-1401 of the Nebraska Political Accountability and Disclosure Act with provisions prohibiting state employees from holding office in a political club or party and from using government resources of any kind while on state time or in an official capacity to do any of the following: campaign for or against a candidate; make a campaign speech; collect campaign contributions; sell tickets to a political fundraising function; develop or distribute campaign materials or communications; organize or manage a political rally or meeting; circulate petitions for a candidate or a ballot initiative; work to register voters for one party only; use any digital medium to communicate about party politics, a candidate for office, or a ballot initiative unless required in the performance of his or her official duties; or wear political buttons. Violations of this provision are investigated and prosecuted by the Attorney General, any state employee convicted of violating the provision shall be removed from employment.
It is possible that I have not included a bill that you believe we should be tracking. To that end, please let me know and I will add it to the list. With that said, I believe we have identified the most relevant bills to the HR profession.
HR Nebraska's Legislative Director Chad Richter will host a legislative webinar soon to discuss the latest updates from the Nebraska Unicameral. Catch up on all legislative/law updates at the state conference.
SHRM Nebraska Legislative Director Chad Richter plans to present a 30-minute webinar regularly to explain relevant Nebraska legislative bills and provide a status update on the proposed legislation both at the state level and federal level.
Stay tuned for future webinar opportunities.