HR Legalist

HR Legalist

Employment Law Updates
& Best Practices for Employers

Update: New Jersey Minimum Wage Bill Clears the Assembly

Posted in New Jersey Law, Wage & Hour

With the federal minimum wage stalled at $7.25 since 2009, HR Legalist has been tracking several developments to wage and hour law on both the federal level (via the pending overtime rule change recently reported by HR Legalist on May 18th) and the state level as well.  As detailed in my last post on this topic, earlier this year, New Jersey democrats announced a joint proposal that would increase the state minimum wage to $10.10 per hour, and then continue to increase the rate annually until it reaches $15 per hour. Continue Reading

Spring Forward: Constructive Discharge Clock Doesn’t Start Until Employee Gives “Definite Notice” of Intent to Resign

Posted in Discrimination, Equal Employment Opportunity Commission, Terminations

Resignation Quit Job 27591175_Large

On Monday, the Supreme Court resolved a circuit split over the deadline for employees to pursue their administrative remedies in connection with constructive discharge claims under Title VII.  Generally, employees must file a charge of discrimination with the EEOC no later than 180 days from the date that the alleged discrimination took place. This deadline extends to 300 days if there is a state law prohibiting discrimination on the same basis. Federal employees have to follow a slightly different process, and are normally required to contact an EEO counselor within 45 days. Continue Reading

Obama Signs Law Giving Trade Secrets Federal Protection

Posted in Trade Secrets

Trade Secrets 69924359_LargeA company’s confidential trade secrets are their most coveted assets and give a company a competitive edge over its competitors.  Such trade secrets may include product specifications and formulas, recipes, computer algorithms, marketing strategies, manufacturing techniques and processes, and unpatented inventions,  to name a  few.  Given the value of corporate trade secrets, companies often go to great lengths, and spend lots of money in litigation costs, to prevent their employees and contractors from stealing or disclosing their trade secrets to people outside the company.  Continue Reading

The Wait is (Almost) Over: New Overtime Regulations Announced

Posted in Wage & Hour

Since March of 2014, HR Legalist has been tracking a big change to the federal overtime rules.  When the preliminary rule was announced last July, the Department of Labor (“DOL”) made it clear that the exemption rules would be significantly narrowed — meaning that millions more employees would be entitled to time-and-a-half overtime pay for all hours worked over 40 per week.  After over 280,000 comments from interested parties (including many concerned employers), the White House unveiled the new rule last night with a video and blog post. Continue Reading

FLUSHED: The Debate Over Bathroom Access Rights for Transgender Employees Continues

Posted in Equal Employment Opportunity Commission, Gender Identity, LGBTQ Employees, Sexual Orientation Discrimination, Title VII of the Civil Rights Act, Workplace Policies

America is currently in the midst of a debate over sex segregated public bathrooms and their impact on the bathroom access rights of transgender individuals. Over the past few years, there’s been a wave of state legislation around the United States requiring that individuals utilize the bathrooms that correspond to the biological sex identified on their birth certificate (“Bathroom Bills”). Bathroom Bills were proposed in Texas, Kentucky, Florida, Minnesota, Missouri, Washington, South Dakota, Virginia, and North Carolina. Although these proposed bills vary widely, the general effect of the bills is to prevent transgender individuals from using public bathrooms that correspond to their gender identity and/or outward gender expression. Continue Reading

New Federal Workplace Safety Rules Announced Today

Posted in Equal Employment Opportunity Commission, Gender Identity, LGBTQ Employees, OSHA, Sexual Orientation Discrimination, Title VII of the Civil Rights Act, Workplace Policies

The Occupational Safety and Health Administration (OSHA) on Wednesday, May 11, finalized a new recordkeeping and reporting rule that requires employers in certain industries to electronically submit injury and illness information, and bars employers from retaliating against workers for reporting such incidents. OSHA will post the data from these submissions on a publicly accessible Web site. According to OSHA, “public disclosure will encourage employers to improve workplace safety and provide valuable information to workers, job seekers, customers, researchers and the general public.” The amount of data submitted will vary depending on the size of company and type of industry. The final rule becomes effective on January 1, 2017, with the anti-retaliation rule going into effect on August 10, 2016.  Stay tuned for additional information and analysis as HRLegalist continues to monitor the implementation and effects of the new measures.  As always, we recommend that employers consult counsel if they have any questions or concerns related to compliance with these new measures.


Eck, Greg Gregory J. Eck is an attorney in Obermayer’s Labor Relations and Employment Law Department, representing businesses and individuals in all aspects of immigration law. He can be reached at 215.665.3157 or

U.S. Government Expands Job Opportunities for Foreign STEM Students

Posted in H-1B, Immigration

Desk Globe w Graduation Cap 76304937_LargeAs HR Legalist has reported, the H-1B Cap has been met for FY2017.  USCIS received over 236,000 petitions.   From among this number were selected the congressionally mandated limit of 65,000 regular cap H-1B petitions, and an additional 20,000 for those with Master’s degrees.  For  F-1 student applicants who were unsuccessful in this year’s H-1B Cap lottery, and who are graduates in a STEM (Science, Technology, Engineering, or Mathematics) the chances of eventually being granted an H-1B visa are now much better. Continue Reading

Uber Drivers to Remain Independent Contractors…For Now

Posted in Fair Labor Standards Act

man opening car door UBER LargeUber, the independent taxi service where you can “drive your car and be your own boss,” has long attracted controversy for classifying its drivers as independent contractors and not employees. Class-action lawsuits claiming that Uber has abused and misused the 1099 form have been filed and certified in courts across the nation, including California, Massachusetts, Arizona, Florida, and Pennsylvania.

Last week, the California and Massachusetts suits settled for the combined sum of $84 million (plus an additional $16 million if the company goes public and its valuation increases 1.5 fold during fiscal year 2016).  In exchange, among other concessions—such as increasing transparency for individual driver ratings—drivers in the Golden and Bay States have agreed to remain independent contractors.  While $100 million might sound like quite the pretty penny, it is a small price to pay in comparison to Uber’s billions of dollars of annual gross bookings.   It is no surprise that many legal commentators (and even Uber itself) view the settlement as a victory. Continue Reading

“Up in Smoke – Are Employers Required to Accommodate Medical Marijuana Use?”

Posted in Workplace Policies

Medical Marijuana 000057621940_Large For reasons that are subject to debate, 4/20 has become known as a holiday for those who enjoy marijuana.  However, over the course of many years, the face of “pot culture” has changed to include not only those lighting up for recreational purposes, but also individuals suffering from chronic diseases seeking a better way to manage their symptoms.  This past Sunday, April 17th,  Pennsylvania Governor Tom Wolf signed a bill legalizing marijuana use—in pill, oil, vapor, liquid or topical form—for 17 qualifying diagnosed conditions.  In neighboring New Jersey, medical users can smoke in private, but legal use is limited to around 10 specific medical conditions, or any imminent terminal illness, with doctor approval. Continue Reading

H-1B Visa Lottery Completed

Posted in H-1B, Immigration

According to a recent study, the odds of winning a Powerball jackpot is 1 in 175,223,510.  The odds of an amateur golfer making a hole in one on a par-3 hole are 1 in 12,500.  Compared to these extremely unlikely events, the recently completed H-1B lottery presents a more optimistic picture.  U.S. Citizenship and Immigration Services (USCIS) has announced that it received nearly 233,000 H-1B petitions for Fiscal Year (FY) 2016.  On April 13th, USCIS completed the lottery to select enough petitions to meet the 65,000 general-category cap and the 20,000 cap under the advanced degree exemption.  The odds of having been selected are just over 1 in 4, bad news for the nearly 75% of applicants who did not have luck on their side.   While we eagerly await a reform of our immigration system and an increase in the artificially low cap of 65,000, here’s what H-1B applicants can now expect now that the lottery is completed:  applicants can expect to receive either a Form I-797 Receipt Notice (if successful in the lottery) or a notice of rejection, along with their unselected petition with filing fees.  Petitions filed via Premium Processing have already started receiving electronic receipt notices if successful in the lottery; these petitions will receive a response within fifteen days of the receipt date noted on the official I-797 receipt notice.  Successful petitions filed via regular processing will begin receiving receipt notices within four to six weeks, and a USCIS response within five to six months.  Continue Reading