Last month, in a historic case, the U.S. Supreme Court recognized that same-sex couples—like their heterosexual counterparts— have the constitutional right to marry. On the heels of this decision, federal agencies and (surprisingly) Congress have been very busy! On July 15, 2015, the U.S. Equal Employment Opportunity Commission (“EEOC”) ruled in a 3-2 decision that discrimination based on sexual orientation is covered by the prohibition on sex discrimination in the workplace contained in Title VII of the Civil Rights Act of 1964 (“Title VII”). As discussed in detail by HRLegalist, at present, there is no federal statute that expressly prohibits discrimination on the basis of sexual orientation—but, Congress is looking to change that. Continue Reading
The U.S. Department of Labor has been busy of late. Fresh off of issuing a new Notice of Proposed Rulemaking proposing major changes to overtime exemptions (as summarized by HRLegalist), DOL Administrator David Weil has issued a new Administrator’s Interpretation addressing the misclassification of employees as independent contractors. The Interpretation does not change the law, but refers to existing regulations and cases. The message of the Interpretation can be summarized as follows: the definition of “employee” under the Fair Labor Standards Act (“FLSA”) is very broad, and employers who misclassify employees as independent contractors could find themselves facing enforcement actions from the DOL’s Wage and Hour Division. Here are some of the key points: Continue Reading
Jumping on the coattails of the recent Supreme Court decision regarding same-sex marriage, the EEOC has found that discrimination based on sexual orientation is a form of sex discrimination under Title VII of the Civil Rights Act of 1964.
Currently, there is no federal statute that explicitly prohibits discrimination on the basis of sexual orientation, and Congress has failed to pass the Employment Non-Discrimination Act, which would afford such protections. In the absence of such legislation, plaintiffs raising sexual orientation claims in states without statutory protections have attempted to characterize their claims as discrimination on the basis of sex. While this approach has been successful in some cases, the argument has been rejected elsewhere, leaving gays and lesbians with no protections when they suffer adverse employment actions on the basis of sexual orientation. Continue Reading
On July 14, 2015 U.S. Citizenship and Immigration Services (USCIS) issued a Policy Memorandum stating that it will no longer deny Special Immigrant Religious Worker petitions due to the lawful status provisions found in federal regulations. Under the regulations, work experience gained in the U.S. for the religious worker category had to be obtained while an immigrant was in lawful status, according to the agency.
U.S. immigration laws governing “Special Immigrant Religious Workers” allow persons in religious vocations and occupations to obtain permanent residence for the purpose of performing full time religious work. If the foreign religious worker is currently in the United States there is a two-step process for doing this: First he or she must submit an I-360 Special Immigrant Religious Worker petition. If this is approved then he or she must then submit an I-485 Application to Register Permanent Residence or Adjust Status. Until now, USCIS has interpreted federal regulations regarding eligibility for I-360 Special Immigrant Religious Worker status to require that the applicant must have been working in a religious occupation either abroad or in lawful immigration status in the United States, continuously for at least 2 years immediately preceding the filing of a petition with USCIS.
However, in April of this year the U.S. Court of Appeals for the Third Circuit, in Shalom Pentecostal Church v. Acting Secretary DHS, 783 F.3d 156 (3d Cir. 2015), found the regulatory requirements that qualifying work experience gained in the United States must have been acquired in lawful status to be beyond the Department’s legal authority (“ultra vires”). The court found that the statute was clear and unambiguous and that the regulation was inconsistent with the statute, which defines a special immigrant religious worker as an “immigrant” who has been “carrying on such vocation, professional work, or other work continuously for at least the two-year period” preceding the application. The statute does not say that the qualifying work experience gained in the United States must have been acquired in lawful status.
The Third Circuit’s decision in Shalom Pentecostal Church turns on a legal analysis regarding Congressional intent and the statutory and regulatory schemes that form the body of U.S. immigration law. The practical take away for our readers is the announcement in the July 14th Policy Memorandum in which USCIS said that it “will no longer require that the qualifying religious work experience for the two-year period preceding submission of a … special immigrant religious worker petition be acquired in lawful immigration status if gained in the United States.” USCIS will also remove the lawful status work requirements from the regulations at issue, according to the memo. Continue Reading
More than 35 years after its decision in Anheuser-Busch, Inc., 237 NLRB 982 (1978), the NLRB has reversed course and held that employers may no longer summarily reject union requests for witness statements obtained in connection with internal investigations. Continue Reading
Since 1938, the Fair Labor Standards Act (“FLSA”) has set the federal minimum wage and mandated overtime pay (time and a half) for employees who work over 40 hours during a 7-day period. The FLSA exempts employees from the minimum wage and overtime requirements if they are:
(1) paid a fixed salary (the “salary basis test”);
(2) paid at least the minimum salary (the “salary level test”); and
(3) assigned certain job duties and responsibilities (the “duties test”), including the so-called “white collar” exemptions for executive, administrative and professional employees. Continue Reading
- WH-380-E Certification of Health Care Provider for Employee’s Serious Health Condition;
- WH-380-F Certification of Health Care Provider for Family Member’s Serious Health Condition;
- WH-381 Notice of Eligibility and Rights & Responsibilities;
- WH-382 Designation Notice:
- WH-384 Certification of Qualifying Exigency for Military Family Leave;
- WH-385 Certification for Serious Injury or Illness of Current Servicemember – for Military Family Leave; and
- WH-385-V Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave.
Earlier this year, HR Legalist announced the U.S. Department of Labor’s (DOL) Final Rule (29 C.F.R. § 825.102) that changed the regulatory definition of “spouse” under the Family and Medical Leave Act (FMLA) to include all marriages that were lawfully recognized in the place where they were performed, regardless of where the couple actually lives. The Final Rule was set to go into effect on March 27, 2015. Continue Reading
Although no one reading this article would disagree with the premise that employers cannot and should not tolerate bigotry from anyone in their workforce, the NLRB apparently thinks otherwise. In a troubling decision handed down earlier this month, National Labor Relations Board (“NLRB”) Administrative Law Judge Thomas M. Randazzo ruled that Cooper Tire & Rubber Company (“Cooper Tire”) violated the National Labor Relations Act (the “Act”) when it terminated an employee who hurled racist epithets at African-American replacement workers while the employee was on a picket line. (See Cooper Tire & Rubber Co., Case 08–CA–087155. June 5, 2015). Incredulously, Judge Randazzo then fashioned a remedial order that required Cooper Tire to rehire the racist employee and pay him back pay – wages he would have earned had he not been terminated. Considering that the employee was terminated in March of 2012, Cooper Tire may have to pay the racist employee more than three years of wages. Continue Reading
On May 28, 2015, in the first known ruling of its kind, a trial court in Allegheny County held that Pennsylvania law does not recognize a civil cause of action against companies for failing to secure its employees’ confidential information.
In Dittman v. UPMC, a class of plaintiffs brought negligence and implied contract claims against the defendant hospital for failing to implement and monitor an adequate security system, and for failing to properly detect a data security breach. The purported class was composed of 62,000 University of Pittsburgh Medical Center current and former employees who had their personal information (Social Security numbers and confidential tax information), stolen from the company’s computer systems. The Plaintiffs alleged that some even suffered actual losses when fraudulent tax returns were filed with the stolen information. Continue Reading