HR Legalist

HR Legalist

Employment Law Updates
& Best Practices for Employers

Wanna Bet? Third Circuit Puts the Kibosh on Sports Gambling Just Before Start of NFL Season

Posted in Gambling, New Jersey Law

Footbal roulette wheel 18115888_LargeFor the second time in three years, the Third Circuit has rejected New Jersey’s attempt to circumvent the Professional and Amateur Sports Protection Act (“PASPA”). PASPA, which Congress enacted in 1992 and prohibits state sanctioned sports gambling outside Nevada. Ironically, PASPA specifically granted permission to New Jersey to legalize sports betting so long as New Jersey enacted a system by 1993. At that time, Atlantic City was amidst a ten year run that saw casino revenue more than double, and New Jersey lawmakers lacked the necessary motivation to fix what was not yet broken. Continue Reading

USCIS Memorandum on Specialized Knowledge Workers to Go into Effect August 31st

Posted in Immigration

Did you know chalkboard 52660386In my HRLegalist blog post on April 2, 2015 I shared with our readers the news of the USCIS draft Policy Memorandum (“L-1B Memo” or “Memo”) offering clarification on the definition of “specialized knowledge.” The Memo clarifies for USCIS officers how L-1B visa petitioners may demonstrate that an employee has specialized knowledge and offers a non-exclusive list of factors that adjudicators may consider when determining whether a beneficiary’s knowledge is specialized. These factors are: Continue Reading

Third Circuit Issues Employer-Friendly Ruling in Discrimination and Retaliation Case

Posted in Cat's Paw Liability, Discrimination, Retaliation

Train pulling into station 2013144_LargeOn August 12, 2015, the Third Circuit Court of Appeals issued a precedential opinion in Jones v. SEPTA, a discrimination and retaliation claim brought by a former employee of the Philadelphia-area transit agency. The Third Circuit affirmed the dismissal of the employee’s claims, and addressed two key legal issues: (1) whether suspensions with pay are considered adverse employment actions under Title VII; and (2) whether an initial report made by an allegedly biased supervisor can lead to liability under the “Cat’s Paw” theory (for an overview of “Cat’s Paw,” see my post on HR Legalist earlier this year). Fortunately for employers within the Third Circuit (including Pennsylvania, New Jersey and Delaware), the court ruled in SEPTA’s favor on both issues. Continue Reading

OFFSIDES: NLRB Punts on Whether College Football Players Can Unionize

Posted in NLRB

Football Player ImageLast year, in what was lauded as a potentially game changing decision (pun intended), Peter Sung Ohr, the Regional Director of Region 13 of the National Labor Relations Board (NLRB or Board) ruled that the grant-in-aid scholarship football players at Northwestern University were “employees” of the university within the meaning of Section 2(3) of the National Labor Relations Act (NLRA) and were entitled to seek union representation for the purpose of collective bargaining. The unprecedented ruling was quickly appealed by Northwestern, who argued that the Regional Director’s decision undermined the very premise of collegiate varsity sports and ignored the necessary distinction between amateur and professional sports. Northwestern emphasized that the Regional Director’s decision did not give proper weight to the public policy ramifications and practical consequences of classifying college athletes as “employees” under the NLRA. Continue Reading


Posted in Parental Leave

PARENTAL LEAVENetflix, a pioneer in on-demand internet streaming, is well-known for its “Netflix Original” series—and has recently added “unlimited” parental leave to its line-up. On Tuesday, August 4, 2015, Netflix announced a new maternity and paternity policy that permits new parents to take an unlimited amount of paid leave during the first year after the birth or adoption of a child. Under the new policy, employees are able to return to work on either a part-time or full-time basis following the birth or adoption of their child, and following their return to work employees can take additional time off, with pay, as needed. Employees who exercise their right to unlimited parental leave will receive their normal rate of pay and company-provided benefits. Continue Reading

Immigration and Taxation: Tools for Navigating Through Alien Territory

Posted in Immigration

gold compass 19340357_LargeA client recently asked if a foreign national employee was subject to federal withholding taxes. Naturally, since the question involved the U.S. tax code the answer, like the code, is complicated. Fortunately, the IRS has drafted a useful and surprisingly readable guidebook entitled U.S. Tax Guide for Aliens.  In this book the IRS explains that for tax purposes, “aliens” are persons who are not U.S. citizens. Aliens are classified as Nonresident Aliens and Resident Aliens. Resident Aliens generally are taxed on their worldwide income, the same as U.S. citizens. Nonresident Aliens are taxed only on their income from sources within the United States and on certain income connected with the conduct of a trade or business in the United States. The designation of “resident” for tax purposes is completely distinct from one’s immigration status as a “permanent resident.” One might qualify as a resident for tax purposes while remaining a nonimmigrant alien for immigration purposes. Continue Reading

Unpaid Interns: The New Category of Employees?

Posted in Discrimination, Title VII of the Civil Rights Act, Unpaid Interns

Job InterviewThe fiery debate over the employment status of and protections afforded to unpaid interns is alive and well! It appears that Congress is continuing the trend of providing additional workplace protections to unpaid interns.  On Monday, July 27, 2015, Representative Elijah Cumming (D-Md.) introduced three separate pieces of proposed legislation aimed at preventing workplace discrimination against unpaid interns. The Federal Intern Protect Action (H.R. 3231), the Unpaid Intern Protection Act (H.R. 3232) and the Congressional Intern Protection Act (H.R. 3233) would apply to unpaid interns working for federal agencies, private sector employers, and state and local governments, and Congress respectively. Continue Reading

The Equality Act: Federal Anti-LGBTQ Discrimination Law Introduced in Congress

Posted in Civil Rights, Equity Act, Gender Identity, LGBTQ Employees, Sexual Orientation Discrimination

equality compassLast 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

Misclassification in the Cross-Hairs: DOL Issues new Interpretive Guidance

Posted in Fair Labor Standards Act

iStock_000067070143_FullThe 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

EEOC Rules Sexual Orientation a Protected Category Under Title VII

Posted in Discrimination, Sexual Orientation Discrimination

gavel on rainbow flagJumping 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