The California legislature has added a new provision to the Labor Code expanding protections from “unfair immigration-related practices” (originally passed in 2013) beyond the retaliation context and extending protections to any employee or applicant, regardless of whether they have ever made a complaint.  The law also specifies that it shall be unlawful for any employer to:

Continue Reading New Protections for Immigrants

Last week, President Trump issued a memorandum directing the Department of Labor (DOL) to reconsider implementation of the fiduciary rule. The fiduciary rule, which widens the scope of who is considered a “fiduciary” of an employee benefit plan under ERISA and under what circumstances an advisor provides “investment advice,” has been met with considerable criticism in some circles.

Many expected President Trump to delay or overturn the rule, but at least initially, he has declined to do so.  Trump’s memorandum did not delay, withdraw or revise the fiduciary rule in any way. His memorandum merely tasked the DOL with reconsidering the fiduciary rule in light of whether it could negatively affect the ability of consumers to gain access to retirement and investment advice. Specifically, Trump requested legal and economic analysis as to whether the fiduciary rule will:

Continue Reading DOL’s Fiduciary Rule Still in Limbo after Trump Memo and Federal Judge’s Ruling

On Thursday, January 26, President Trump named Republican Phillip Miscimarra as acting Chairman of the National Labor Relations Board (the Board). Miscimarra was the sole remaining Republican on the Board, along with two Democrats – all of whom had been appointed by President Obama. Miscimarra takes over the chairmanship from Mark Gaston Pearce. Miscimarra has a background as a member of several management-oriented labor and employment law and general practice firms. The Board currently has two vacancies which President Trump will be filling in the coming months, along with the position of general counsel. The term of the current general counsel expires later this year.

Continue Reading A Step in the Right Direction

In Syed v. M-I, LLC, the U.S. Court of Appeals for the Ninth Circuit recently held that combining a liability waiver and a Fair Credit Reporting Act (FCRA) disclosure in an employment application constitutes a willful violation of the FCRA. The employee claimed that his employer obtained his credit report unlawfully because the disclosure form he signed did not consist “solely of the disclosure” as required by the FCRA. The Ninth Circuit’s decision reversed the judgment of a California district court, which had dismissed the lawsuit because the complaint failed to allege that the employer’s understanding of its obligation under the FCRA was unreasonable.

Continue Reading In Bizarre Procedural Posture, Ninth Circuit Finds FCRA Willful Violation

Bass, Berry & Sims attorney Doug Dahl provided insight for an article in InsuranceNewsNet on the impact to employee benefits based on future regulatory shifts in a Trump administration, especially surrounding the Affordable Care Act, the final Department of Labor (DOL) fiduciary rule and the DOL overtime rule. “This expansionary trend for the DOL is likely to be significantly restricted under the Trump presidency, taking a back seat to agencies more aligned with Trump’s agenda,” Doug noted. “Trump’s presidency makes the viability of repealing or at least delaying these rules much more likely.”

The full article, “Regulation Reversal the Ultimate Trump Card?” was published by InsuranceNewsNet on January 19, 2017, and is available online.

In an article published by the Society for Human Resource Management (SHRM), Bass, Berry & Sims attorney Tim Garrett provided insight on a 2015 National Labor Relations Board (NLRB) ruling that reinstated a worker who made racist remarks to replacement workers during a strike. Tim states that an employer that does nothing in response to racist slurs risks liability under Title VII Civil Rights Act of 1964, regardless of NLRA protections. In this case, Tim stated “the board accepted a ‘vicious personal attack’ based on stereotypes that society is trying to overcome.”

Recent NLRB decisions, such as the one in this case protecting free speech as part of concerted activity, are contradictory to guidance issued by the Equal Employment Opportunity Commission (EEOC) recommending training all employees on civility. The SHRM article outlines the inconsistent approach between the two agencies and ways to overcome the differences.

The full article, “EEOC Guidance on Harassment Calls for Civility Training,” was published by SHRM online on January 13, 2017.

In an online article published by Quick-Service Restaurant (QSR) magazine, Bass, Berry & Sims attorney Tim Garrett discussed options that employers have in the wake of the injunction placed on the Department of Labor’s (DOL) overtime rule and the subsequent appeal filed by the DOL. The timing of the rule has put many employers in a tough spot, with many having prepared for a December 1, 2016, effective date, only to have an injunction placed on the rule on November 22. Employers now face the decision of whether to undo implemented changes with the hope that the rule will not go into effect in the next few months, or to keep changes in place. “It’s been our consistent advice that those who have already announced and implemented changes either in salaries or in classifications, should probably stick with those and not attempt to undo them, which would likely be more disruptive,” said Tim. “The savvy employers know that this is not just a budget issues, but a morale issue.”

The full article, “What is the Future of the Overtime Rule?” was published on January 6, 2017, by QSR magazine and is available online.

In an article published by The Corporate Counselor, published by ALM’s Law Journal Newsletters, Tim Garrett discussed the latest developments and next steps surrounding the Department of Labor’s (DOL) overtime rule. The November 22, 2016, injunction of the rule and subsequent appeal by the DOL have created uncertainty for employers, with some having prepared for the rule to go into effect in December 2016 only to have the rule challenged and stalled. President-elect Trump’s appointment of Andrew Puzder as labor secretary, a known advocate of deregulation, has caused speculation that the salary level rule will be changed before implementation. “The ruling does provide the new administration with an opportunity to stop, or modify, the new salary level,” Tim said. “The legal landscape has provided significant opportunity for change through the political landscape.”

The full article, “Injunction of the DOL’s Overtime Rule and its Appeal,” was published in the January 2017 issue of The Corporate Counselor and is available online or the PDF below.

Download Document – The Corporate Counselor (January 2017)

Bass, Berry & Sims attorney Tim Garrett provided insight into the financial and administrative impact that hospitals encounter as a result of worker strikes and disruptions in work activity. Tim discussed the speculative nature of predicting the costs associated with such disruptions and the logistical challenges hospitals face from an administrative standpoint. In the article, Tim states “they [the physicians] may not want to have to rely on replacement workers in the midst of a walkout, so they may decide not to proceed with a certain surgery if it’s not an urgent situation or may seek other options.”

The full article, “Strike or No Strike, Labor Disputes Can Take a Toll on Hospital Finances,” was published by Becker’s Healthcare on December 20, 2016, and is available online.

For the first time since 2002, the Equal Employment Opportunity Commission (EEOC) has updated its guidance on national origin discrimination in the workplace in an effort to address important legal developments over the past 14 years. In 2015, the EEOC reported 11 percent of the charges filed alleged national origin discrimination. The EEOC’s recent Strategic Enforcement Plan for 2017-2021 includes protecting immigrant and migrant workers from discrimination as a top substantive priority, and this guidance is another step toward increasing the EEOC’s enforcement efforts in this area. Of course, with the election of President-elect Donald Trump last month, the EEOC’s guidance is subject to change. However, the guidance is a useful tool to analyze employers’ existing policies and practices of preventing national origin discrimination with an eye toward the EEOC’s focus for enforcement action.

Continue Reading New Guidance on National Origin Discrimination

From the Bass, Berry & Sims Blog Network
From the Bass, Berry & Sims Blog Network

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