News & Analysis

Don't forget to properly classify independent contractors

You likely recall a time not so long ago when the improper classification of employees as independent contractors was the hot topic for the IRS and the U.S. Department of Labor (DOL). In 2011, the agencies entered into a "Memorandum of Understanding" in which they agreed to share information about potential misclassifications in an effort to crack down on the common practice. The DOL also entered into similar agreements with roughly 30 state departments of labor.

DOL issues FMLA opinion letters after a long break

For the first time in nearly a decade, the U.S. Department of Labor's (DOL) Wage and Hour Division (WHD) has issued opinion letters interpreting the requirements of the Family and Medical Leave Act (FMLA). This may be a sign that the Trump administration intends to rely heavily on opinion letters as a form of guidance for employers, a practice that had been discarded by the Obama administration.

Requiring job applicant to pay for his own MRI violates ADA

In a recent ruling, the U.S. 9th Circuit Court of Appeals (whose rulings apply to all Alaska employers) said BNSF Railway could not require a disabled applicant to pay for additional medical testing to determine if he could perform the job for which he applied.

Risky business: the discharge decision

One of the most difficult decisions that you'll face is whether to discharge an employee. It's also one of the riskiest decisions that you'll have to make. As a result, whenever a discharge becomes necessary, you will want to place yourself in the best possible position to defend it should a lawsuit arise. This article helps with placing you in that position.

Agency Action

OFCCP releases directives on equal employment and religious freedom. The U.S. Department of Labor's (DOL) Office of Federal Contract Compliance Programs (OFCCP) in August issued two new policy directives, one focused on equal employment opportunity and the other addressing religious freedom. The equal employment opportunity directive calls for more comprehensive reviews of contractor compliance with federal antidiscrimination laws. The religious freedom directive is aimed at protecting the rights of religion-exercising organizations. The DOL said it is implementing a comprehensive compliance initiative that will include adding focused reviews to its compliance activities. The religious freedom directive instructs OFCCP staff to take into account recent U.S. Supreme Court decisions and White House Executive Orders that protect religious freedom.

Workplace Trends

Salary increases expected to remain flat. Research from workforce consulting firm Mercer shows salary increase budgets for U.S. employees are at 2.8% in 2018—no change from 2017. Salary increase budgets for 2019 are projected to be just 2.9%, despite factors like the tightening labor market and a high rate of workers voluntarily quitting their jobs. The information comes from Mercer's "2018/2019 US Compensation Planning Survey." Mercer's research shows that even newly available investment dollars from the new Tax Cuts and Jobs Act aren't enhancing the compensation budgets for most companies. Mercer says just 4% of organizations have redirected some of their anticipated tax savings to their salary increase budgets.

Union Activity

AFL-CIO leader hails defeat of right-to-work law. AFL-CIO President Richard Trumka has spoken out to praise the August referendum in Missouri that struck down the states right-to-work law. Missouri is the latest sign of a true groundswell, and working people are just getting started, Trumka said after the vote. Calling the right-to-work law poisonous anti-worker legislation, he said the laws defeat represents a victory for workers across the country. The message sent by every single person who worked to defeat Prop. A is clear: When we see an opportunity to use our political voice to give workers a more level playing field, we will seize it with overwhelming passion and determination. A day after the election, the AFL-CIO announced an advertising campaign aimed at drawing attention to the wave of collective action happening across the country and showing that anyone can join the momentum working people are generating.

WHD's new test for interns: Learning without earning made easier

The Fair Labor Standards Act (FLSA) requires "for-profit" employers to pay employees for their work. However, interns and students may not be considered "employees" under the FLSA, meaning they don't have to be compensated for their on-the-job activities. Previously, the Wage and Hour Division (WHD) of the U.S. Department of Labor (DOL) laid out a restrictive test for who qualified as unpaid interns and students, but the federal courts consistently rejected the WHD's position. In a concession to that new reality, the WHD recently published a new Field Assistance Bulletin that adopts the standard set out by the federal courts.

Sometimes there's a silver lining to having a union

In recent years, we've seen an explosion in wage and hour cases filed under the Fair Labor Standards Act (FLSA), particularly class actions involving large numbers of employees seeking unpaid wages and overtime for short periods of unpaid work activity. One example has been "donning and doffing" cases, which are related to the time employees spend putting on and removing necessary clothing or protective gear before they clock in and after they clock out. A recent case from the U.S. Court of Appeals for the 8th Circuit (whose rulings apply to Arkansas employers) places some limitations on donning and doffing claims ― at least for workplaces governed by union contracts.

Surprise, surprise! Obeying the law can be a business necessity

Ten African Americans and Latinos sued Wells Fargo Bank, N.A., on behalf of a putative class, alleging its use of criminal records to terminate or refuse to hire individuals convicted of a criminal offense involving dishonesty or a breach of trust had an adverse impact on minorities in violation of Title VII of the Civil Rights Act of 1964 and state law. The district court ruled in favor of Wells Fargo and dismissed the claims without a trial. The employees appealed that decision to the 8th Circuit.