Bryan Cave Labor and Employment Blog

Main Content

Paving the Way for Unpaid Interns: Trump Administration Relaxes the Standards

Internships are often a great way for students and young people to get their foot in the door and land their first job. But employers must ask themselves: is your unpaid intern actually an intern, or is the “intern” really an employee entitled to wages? Last week, the Department of Labor (“DOL”) aimed to provide clarity and flexibility when it revised its guidance for determining whether an unpaid intern is an “employee” who must be paid under the federal Fair Labor Standards Act (“FLSA”).

Unpaid internships have been the focus of some legal uncertainty over the past several years. The source of that uncertainty may be the FLSA’s simplistic definition of “employee” as “an individual employed by an employer.” The Supreme Court has yet to fully address the difference between unpaid interns and paid employees, but in 1947, the Court recognized that unpaid trainees should not be treated as

Employee Representation in Germany – Part 2

January 11, 2018

Categories

Part II of III: Works Council Elections in Germany – Who Does What and How Are Election Proceedings Run?

March 2018 is getting closer and works council (re)elections will again be on the agenda in Germany. We started this three-part blog last November with Jens Peters` introduction and overview to this topic.  See November 7, 2017 article. In this Part II, we briefly concentrate on the “Who does what” during the election proceedings and provide you with an overview of how election proceedings will run in an ordinary way.

Who does what?

The election committee (“Wahlvorstand”) is in the driver’s seat, with responsiblilities for leading and executing the election. Its main tasks are to inform the work force about the election and its proceedings (“Wahlausschreiben”) and to create the list of employees eligible to vote and to be voted (“Wählerliste”). If a works council already exists, the three-member election committee

Investigating Claims of Harassment: A Step-by-Step “How To” – Part 1: The Complaint

What if you were the Human Resources representative that received a complaint that Harvey Weinstein, Matt Lauer, Charlie Rose, or any of the other number of accused sexually harassed an employee?  What if you were the in-house counsel and received the complaint?  With the rise of sexual harassment allegations receiving increased scrutiny, employers need to have proper procedures in place for handling claims of sexual and other harassment in the workplace.

This is the first of a six-part series that will address guidelines and suggestions for conducting investigations of harassment complaints. Each harassment investigation, however, is different, and any investigation should be tailored to fit the particular circumstances.

What Complaint?

A harassment “complaint” need not be written, nor does a “complaint” have to actually be made to anyone. Most of the time, an employee brings a complaint forward to a supervisor or to Human Resources. However, there are times that

The Tax Cuts and Jobs Act Impacts Settlements of Sexual Harassment and Abuse Claims

January 5, 2018

Categories

The recently enacted Tax Cuts and Jobs Act eliminated a business expense deduction for settlements of sexual harassment and sexual abuse claims that are subject to confidentiality restrictions.  Specifically, a “settlement or payment related to sexual harassment or sexual abuse,” and the “attorney’s fees related to such a settlement or payment,” are no longer a deductible business expense “if such settlement or payment is subject to a nondisclosure agreement.” IRC §162(q) (added to the IRC by §13307 of the TCJA).  Section 13307 became effective on December 22, 2017.

This new Code provision raises many questions, which the IRS has not yet addressed, including:

What is the impact of IRC §162(q) on the settlement process for sexual harassment or sexual abuse claims?

Employers will need to weigh the additional costs of a nondisclosure provision, which include the tax on the settlement payment and related attorney’s fees, and the value of a

Supreme Court Rejects Disabled Employee’s Bid to Revive His $2.6 Million ADA Jury Verdict: Why You Should Still Regularly Update Job Descriptions and Supporting Documents

January 3, 2018

Categories

On October 16, 2017, the Supreme Court rejected an employee’s petition for review of a decision in Stevens v Rite Aid Corporation.[1]  Stevens sued under the Americans with Disabilities Act (“ADA”) for alleged discriminatory discharge claiming trypanophobia or “fear of needles” as a disability.  Rite Aid discharged Stevens, a pharmacist of 32 years (with Rite Aid and its predecessors), after he refused to comply with Rite Aid’s requirement that pharmacists administer immunization injections to its customers.  The Second Circuit held that administering injections was an essential function of the pharmacist position at the time of his termination, and therefore, concluded that Stevens was not a “qualified individual” with a disability.

At trial, Rite Aid personnel testified that the company made a business decision to start requiring pharmacists to perform immunizations.  While courts are required to consider a variety of factors under Equal Employment Opportunity Commission’s (EEOC) regulations, many

NLRB Update: Trump Board Wastes No Time Overturning Obama-Era Precedent

December 26, 2017

Categories

With two appointments by President Trump, the National Labor Relations Board (NLRB) had a Republican majority for several months in 2017, for the first time in ten years.  The “Trump Board” wasted no time overturning Obama-era precedents – and has signaled that there is much more to come.

Harder for Employers to be Declared “Joint Employers”

In Hy-Brand Industrial Contractors, Ltd., 365 NLRB No. 156 (Dec. 15, 2017), the Board overruled the joint-employer test announced in Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (2015).  In Browning-Ferris, the Obama Board had departed from decades of precedent to declare that two unrelated employers would be deemed “joint employers” for purposes of the National Labor Relations Act (NLRA) if one had reserved the right to exercise direct or indirect control over the employees of the other, even if that control was never actually exercised, and even if the control was

Seminar in Phoenix – Handle with Care: Responding to Whistleblower Claims

December 21, 2017

Categories

Bryan Cave lawyers Mark Srere and Jay Zweig will present a timely and informative live presentation on whistleblowing in the workplace on Wednesday, January 10, 8:00 – 9:30 a.m. (MT)

The Phoenician Resort 6000 E Camelback Rd Scottsdale, AZ 85251

Whistleblowing in the workplace raises challenging employment law and civil and criminal liability issues for employers. News media coverage of and social media campaigns on everything from sexual harassment to financial reporting, to government contracting, to environmental issues, and a host of other laws have resulted in a large number of whistleblowing claims. This program will address what employers must do to prepare for the time when an employee blows the whistle internally, or reports to law enforcement. Our presenters will discuss and answer your questions on:

  • The legal protections for whistleblowers;
  • How to effectively investigate a whistleblower complaint;
  • How employers can manage a whistleblower after a complaint so as to

SEC Announces More than $20 Million in Whistleblower Awards

In the course of one week, the United States Securities and Exchange Commission announced awards to three whistleblowers totaling more than $20 million under the Dodd-Frank Whistleblower Program.

On November 30, the SEC announced awards of more than $8 million each to two whistleblowers. The first individual alerted the agency to conduct that became the subject of an enforcement action and continued to provide additional information throughout the investigation, while the second whistleblower provided information that allowed the agency to understand and asses the implications of the misconduct. Under the Whistleblower Program, eligible whistleblowers may receive awards of between 10% and 30% of the sanctions collected in actions brought by the SEC and related actions brought by other authorities. To maintain the confidentiality of the individual whistleblower, the SEC does not release information regarding the target of the investigation or the percentages of awards granted to the whistleblowers, but in

You’ve Been Warned: California’s WARN Act Is Broader Than the Federal Warn Act

As with so many other situations involving California’s employment laws, its protection for California-based employees experiencing a job loss is broader than the protections under federal law.  In The International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, Local 998, et al. v. Nassco Holdings Inc., et al., the California Court of Appeal, Fourth Appellate Division held, among other things, that California’s version of the Worker Adjustment and Retraining Notification (“WARN”) Act is broader than its federal counterpart.

The specific issue the court addressed was whether a furlough of several weeks constituted a “layoff” for purposes of a “mass layoff,” triggering the 60-day notice period when 50 or more employees at a covered establishment experience a “layoff” during any 30-day period.  The defendant argued unsuccessfully that no notice was required because its work stoppage was only for a brief period and therefore its action was not a “layoff” or

2018 Exemption Limits for the Computer Professional and Physician Exemptions

Effective January 1, 2018, California’s Department of Industrial Relations will begin imposing new rates for the computer software employee exemption and the licensed physician and surgeon exemption to reflect a 2.9% increase in the California Consumer Price Index (CCPI) for Urban Wage Earners and Clerical Workers.

To be exempt from overtime requirements, a computer software employee’s rates have increased as follows:

  • Minimum hourly rate:  From $42.35 to $43.58
  • Minimum monthly salary:  From $7,352.62 to $7,565.85
  • Minimum annual salary:  From $88,231.36 to $90,790.07

The minimum hourly pay for licensed physician and surgeon exemption has increased from $77.15 to $79.39.

Relatedly, the professional, executive and administrative exemptions will also be subject to change after the minimum wage increase takes effect on January 1, 2018.  To qualify as exempt under these classifications, employees must be paid at least two times the state minimum wage in addition to meeting the other exemption

The attorneys of Bryan Cave LLP make this site available to you only for the educational purposes of imparting general information and a general understanding of the law. This site does not offer specific legal advice. Your use of this site does not create an attorney-client relationship between you and Bryan Cave LLP or any of its attorneys. Do not use this site as a substitute for specific legal advice from a licensed attorney. Much of the information on this site is based upon preliminary discussions in the absence of definitive advice or policy statements and therefore may change as soon as more definitive advice is available. Please review our full disclaimer.