The Labor Department announced today its plans to propose new regulations on the definition of “spouse” under the FMLA.  The new definition of “spouse” will include a legally married same-sex spouse, regardless of the employee’s state of residence.  This rule, though not unexpected, is a change from an August 2013 “Fact Sheet” issued by the Labor Department that relied upon the definition of marriage in the employee’s state of residence.

By this rule, if adopted, employers in all states would be required to provide leave to legally married same-sex spouses even if the state of the employee’s residence or the state of the employer’s business does not recognize same-sex marriage.  It is worthy to note, however, given the Supreme Court’s highly publicized decision in Windsor, that the various federal challenges to the laws of those states not recognizing same-sex marriages will be successful to erode, and ultimately to eliminate, all of the state laws and regulations that do not recognize same-sex marriages.

The White House and the Department of Labor (DOL) released a proposed rule that would raise the minimum wage for employees under federal contracts from $7.25 to $10.10 per hour, a 39% increase.  The proposed rule implements Executive Order 13658, Establishing a Minimum Wage for Contractors, which was signed by President Obama on February 12, 2014.  That order applies to new and renegotiated contracts starting January 1, 2015. Continue Reading DOL Publishes Rule to Raise Minimum Wage to $10.10 on Federal Contractors

The White House has announced that President Obama will sign an executive order prohibiting federal contractors from discriminating against individuals on the basis of sexual orientation or gender identity, a move the White House hopes will pressure Congress into passing legislation banning employment discrimination against the lesbian, gay, bisexual and transgender (LGBT) community. The Senate passed the Employment Non-Discrimination Act in November 2013, but the legislation stalled in the House.

Government contractors already are prohibited from considering race, gender, religion or national origin when hiring employees. This executive order will provide the first specific anti-discrimination protections for the LGBT community and is estimated to apply to approximately 20% of the U.S. workforce (14 million workers). The White House has not indicated when President Obama will sign the executive order and the specific language has not been released, however, the order likely will be in line with current measures banning federal contractors from discriminating against employees on the basis of race, religion, and national origin.

The EEOC has been challenging the legality of releases, attacking certain language that some employers consider standard.  The EEOC responds that it is merely acting consistently with its 1997 Enforcement Guidance on what it considers “non-waivable rights.”  So, what has drawn the EEOC’s adverse attention?  Continue Reading Release Language Hazards and How to Fix Them

To Andy Griffith Show aficionados, Andy was a true leader. Barney? Well, not so much. Why? Barney thought his job was to enforce rules, that any infraction had to be punished, that only then could appropriate respect for the rules and for authority be engendered. These sound like good things. So why did Barney seem to get it so wrong?  Continue Reading Proper Tone In Performance Management – Be an Andy, Not a Barney

Under Section 83, of the Internal Revenue Code (the “Code”) restricted stock and other property that is transferred to a service provider (e.g., an employee or director) for services is taxable when the service provider’s rights in the property are no longer subject to a substantial risk of forfeiture.  The Department of Treasury recently issued final regulations under Section 83 that clarify what events constitute a “substantial risk of forfeiture.” The final regulations provide that a substantial risk of forfeiture may be established only if a service provider’s rights in transferred property are either (i) conditioned on the performance, or refraining from performance (e.g., as a result of a non-competition agreement), of substantial services, or (ii) subject to a condition related to the purpose of the transfer (e.g., performance-based awards). In addition, to determine if a substantial risk of forfeiture exists, both the likelihood that a forfeiture event will occur and the likelihood that it actually will be enforced must be established by the underlying facts and circumstances. Continue Reading Recent IRS Guidance Under Section 83 of the Internal Revenue Code Clarifies the Definition of a “Substantial Risk of Forfeiture”

In a short ruling issued Thursday, April 24, the National Labor Relations Board (NLRB) granted Northwestern University’s request for review of a regional director’s decision that Northwestern football players are primarily employees and therefore can be represented by a union.  Readers will recall the extensive discussion triggered first by a petition for representation filed in late January by CAPA, the College Athletes Players Association.  NLRB Regional Director Peter Ohr later found that the players were primarily employees and scheduled a union representation vote.  The vote is set for today, April 25.

Northwestern was critical of the Regional Director’s findings and filed a petition asking the NLRB for a review (and reversal) of the decision.  The NLRB granted the review.  The NLRB determined that the ruling raised substantial issues that deserved a review by the NLRB.  The vote will still occur.  However, the results of the vote will not be made public until after the NLRB completes its review of the decision.

Stay tuned!

On Tuesday April 8, 2014, what is now known as National Equal Pay Day, President Obama took two executive actions aimed at narrowing the wage gap between men and women.

Noting that women are the primary breadwinners in 40% of U.S. Households, while bringing home 23% less than their male counterparts, the President signed a Presidential Memorandum which instructs the Secretary of Labor to propose regulations, within 120 days of the Memorandum, requiring federal contractors to submit summary data on employee compensation paid to their employees, including data by sex and race, to the Department of Labor.   Those regulations would then require the Department of Labor to use that data in a way that would encourage an employers’ voluntary compliance with current equal pay laws, effectively focusing the Department’s efforts toward reducing discrepancies. Continue Reading Executive Actions Aimed at Equal Pay for Women

National Labor Relations Board (NLRB) Regional Director has set April 25 as the date for the union vote for Northwestern University’s scholarship football players.  As readers of this blog will recall, that vote will determine whether the scholarship football players elect the College Athletes Players Association (CAPA) as their bargaining representative.  It is still not clear whether the vote will actually take place on April 25, however, because Northwestern University already has announced its intention to appeal.

Is this the beginning of the end of college football as we know it?  Some argue that the end already has begun, with the “big money” of television and the corresponding commercialization prevalent in the sport.  Some argue that in today’s major college football and basketball, the phrase “student-athlete” is a misnomer.

Has the end begun?  Perhaps, but as predicted below, look for a legislative initiative to be triggered. Continue Reading Further Reflections on Unions in College Football – Is “student athlete” a misnomer?

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

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