U.S. Department of Labor Changes Position on Internships under the FLSA

interns wantedAlthough summer seems far away, now is the time when most employers begin to prepare for their summer internship programs.  Internships are a great way to give college students or new professionals some hands-on experience in your industry.  However, one major question that has plagued employers over the past decade is whether an intern must be paid under the Fair Labor Standards Act (“FLSA”) based on the duties he or she performs in the intern role and the structure of  internship program.

While some employers offer paid internships, other internships are unpaid or only provide a stipend lower than the minimum wage.  Given the recent string of high-profile class action cases brought by unpaid interns, for-profit, private sector employers must be aware of the FLSA’s requirements as it relates to unpaid interns.  Specifically, employers need to carefully evaluate whether an intern qualifies as an “unpaid intern” or an “employee” entitled to compensation.   Continue reading

Conn Maciel Carey Opens Chicago Office with Prominent OSHA and Labor Lawyers Aaron Gelb and Mark Trapp

Washington, D.C.-based OSHA and Labor & Employment law firm Conn Maciel Carey LLP is pleased to announce the launch of a Midwest Office in Chicago, IL and the addition of two prominent Chicago attorneys – Aaron R. Gelb and Mark M. Trapp.

“We are thrilled not only to expand the Firm’s national footprint to the Midwest, but especially to be doing so with such great lawyers as Aaron and Mark,” said Bryan Carey, the firm’s managing partner.  “This move will enable us to better serve our existing national platform of clients, and will strengthen the firm’s specialty focus on Labor & Employment and Workplace Safety Law.  We look forward to bringing Aaron and Mark on board, as they will add depth to all areas of the firm’s practice, including OSHA, litigation and labor counseling on behalf of our management clients.”

Mr. Gelb, former Labor & Employment Shareholder and head of the OSHA Practice at Vedder Price PC, in its Chicago office, represents employers in all aspects of the employer-employee relationship.  Aaron GelbAaron’s practice has a particular emphasis on advising and representing clients in relation to inspections, investigations, and enforcement actions involving federal OSHA and state OSH programs, and managing the full range of litigation against OSHA.

“Aaron and I share the same vision of how we want to practice law and do business, thus entrusting him with the keys to our new Chicago office, and combining our expertise, talent, and resources together made so much sense,” said Eric J. Conn, Chair of the firm’s national OSHA practice“We look forward to partnering with Aaron to build a solid brand for our Midwest practice among our client base and doing what we know best, providing top-notch service and excellent value to clients.”

Aaron also has extensive experience litigating equal employment opportunity matters in federal and state courts having tried a number of cases to verdict and defending employers before the EEOC as well as fair employment agencies across the country.  In the past 5 years alone, Aaron has successfully handled more than 250 discrimination charges.

Mr. Gelb said “I am incredibly excited to join what I believe to be the country’s leading OSHA practice as the experience and expertise of the Conn Maciel team will enable me to enhance the workplace safety legal support I currently provide to my clients in the Midwest and beyond.  I’ve known Eric for years and have great respect for what he and his colleagues have accomplished in the OSH field.  At the same time, Kara’s employment defense group fits perfectly with my practice as we share a common client-focused philosophy and deep experience in many of the same industries.  While leaving Vedder Price after nearly 20 years was not an easy decision, I simply could not pass up the opportunity to partner with two dynamic attorneys that so perfectly complement the dual aspects of my practice.”

Mr. Trapp joins the firm with seventeen years of experience, during which he has represented employers in all types of labor disputes, from union campaigns and collective bargaining to grievances and arbitrations. Mark M. Trapp (3)Mr. Trapp has defended employers before administrative agencies and in litigation brought under the ADA, ADEA, Title VII and other federal anti-discrimination laws.

Mr. Trapp said “I am thrilled to again have the opportunity to work with the top-notch legal professionals at Conn Maciel Carey.” According to Mr. Trapp, the expertise of a boutique firm focused on OSHA and other labor and employment matters “complements my experience handling labor and employment issues. I look forward to helping strengthen the team’s ability to provide exceptional knowledge and insights to labor and employment clients, and expanding the firm’s presence in the Midwest.”

Mr. Trapp is perhaps best known as a leading authority on multi-employer pension withdrawal liability.  His articles on withdrawal liability and other labor and employment issues have been published in respected legal publications.

“I have worked with Mark for over a decade at various law firms, so I am excited that he has joined our boutique practice that focuses on positive client solutions and effective client service.  His unique knowledge of traditional labor issues and multi-employer pension disputes is unparalleled and he has proven to be a creative and out-of-the-box adviser when counseling clients,” Kara M. Maciel, Chair of the Labor & Employment Practice reported.

California Opportunity to Work Act Spells Trouble for Employers

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California Assembly Bill (AB) 5, the Opportunity to Work Act, was recently approved by the California Assembly Committee on Labor and Employment in April 2017.  The Appropriations Committee postponed a hearing on the bill that was scheduled for May 3, 2017.  Given the strong industry opposition to this bill and its harmful impact on employers, it is likely that the Appropriations Committee is taking a closer look at the bill and the negative Continue reading

Cybercrime and Data Breach a Rising Threat to all Employers

By:  Bryan Carey

shutterstock_217014265Over the past six months, we have observed a significant uptick in inquiries about data breach and other cyberthreats from area businesses.  We are asked about pursuing claims for recovery of funds lost due to fraud by hacking, state notification procedures in the event of a data breach affecting employees, and general questions about how to prepare or respond to other IT security problems. The whole subject area is a complex mix of technical and legal issues and it touches nearly every aspect of the current business environment. Moreover, the costs to companies that are the victims of cybercrime and data breach are significant and, unfortunately, it is no longer uncommon for the costs to bankrupt small and medium-sized businesses within a short time after the breach is discovered.

Types of cybercrime incidents                                                           

Data breach and other cyberthreats come from all quarters and they affect individuals and organizations of all sizes. Given the recent news about the Central Intelligence Agency and the National Security Agency being the subject of now infamous data thefts, including the CIA losing control of its own toolbox of hacking tricks, many employers are likely to think that there is little that can be done when the government agencies tasked to defend our country’s cybersecurity and armed with a government-sized budget have proven vulnerable. But the size and scope of cyberthreats are not exaggerated and require vigilance and defenses regardless of your organization’s size. Continue reading

Trump Proposes a $2.5 Billion Cut to the Dept. of Labor’s Budget and to Eliminate Funding for Labor Initiatives and the Chemical Safety Board

By Kara M. Maciel and Eric J. Conn

The Trump Administration submitted a blueprint budget for 2018 to Congress proposing $2.5 Billion in cuts to the U.S. Department of Labor’s (“DOL”) operating budget.  The President’s proposed budget expressly calls for reduced funding for grant programs, job Budget 1training programs for seniors and disadvantaged youth, and support for international labor efforts.  It also proposes to entirely defund and eliminate the U.S. Chemical Safety and Hazard Investigation Board (“CSB”) – an independent, federal, non-enforcement agency that investigates chemical accidents at fixed facilities.  The budget plan also purports to shift more funding responsibility to the states with labor related programs.  Finally, although less explicit, the budget blueprint appears to deliver on promises from Trump’s campaign trail that rulemaking and regulatory enforcement efforts under the myriad laws and regulations enforced by the sub-agencies, such as the Wage and Hour Division and OSHA would be slashed.

These proposed budget cuts at DOL and other agencies are all part of a plan to offset the White House’s intent to increase defense and security spending by $54 billion.  Overall, Trump requested $1.065 Trillion in total discretionary spending, with $603 billion going to Defense.

The proposal would shrink DOL’s budget to $9.6 Billion – down 21% from the $12.2 Billion budget for 2017. Trump’s planned reductions announced on March 16, 2017 – while not really surprising in the context of his view toward federal spending on non-defense agencies – would have a seismic impact Continue reading

Kara Maciel to Speak at HR in Hospitality Conference

main_hosp.jpgThe annual HR in Hospitality Conference, which is a leading conference that has content tailored to meet HR professionals’ needs to stay up to day on the latest legal issues facing the hospitality industry, will be held in Las Vegas on March 27 – 29, 2017.

Kara Maciel, Chair of the Labor & Employment Practice, is pleased to be speaking on a panel with other industry experts to discuss the top “50 Legal Tips in 50 Minutes.”  The panel will occur on March 28, 2017 from 4-5 pm, and will discuss the new Trump Administration, and what legislative and regulatory policies will change, what policies cannot change, what policies may change, and what to expect at the state law level.

All HR professionals in the hospitality industry will benefit from this conference, and as a friend of Conn Maciel Carey, you can register with a $100.00 discount off registration by clicking here.

We hope to see you in Vegas!

Federal Appeals Court Concludes that Employer Violates Fair Credit Reporting Act by Including Liability Waiver in Mandated Disclosure

gavelEmployers procuring credit reports for applicants or current employees must navigate exacting disclosure and procedural requirements under the Fair Credit Reporting Act (FCRA).  In a question of first impression in the federal courts of appeal, the U.S. Court of Appeals for the Ninth Circuit recently ruled in Syed v. M-I, LLC that a prospective employer violated the FCRA when it obtained a job applicant’s consumer report after including a liability waiver in the required disclosure document.  The FCRA imposes procedures for procuring and using a “consumer report,” defined essentially as information procured by a consumer reporting agency bearing on an applicant’s “credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics or mode of living,” for establishing eligibility for employment.  These procedures include requiring that before obtaining the consumer report, the prospective employer disclose that it may obtain the applicant’s consumer report for employment purposes and provide the means for the applicant to withhold authorization.

Although the prospective employer in this case, M-I, provided the mandated disclosure, it incorporated into the same document an agreement that the applicant, Sarmad Syed, waive his right to sue M-I and its agents for violation of the FCRA.  Syed filed a class action lawsuit against M-I seeking statutory damages, punitive damages and attorney’s fees and costs.  Continue reading

Trump Taps Alex Acosta for New Department of Labor Secretary

Department of LaborAs readers of this blog are aware, President Trump originally chose Andrew Puzder, the CEO of CKE Holdings, the parent company of Carl’s Jr. and Hardee’s, as his Secretary of Labor.  However, on February 15, 2017, one day prior to his confirmation hearing, Mr. Puzder withdrew his name from consideration amidst reports that he would not receive the required Senate votes necessary for confirmation based in part on allegations that he failed to pay workers overtime pay, condoned sexual harassment, and opposed legislative efforts to address those problems.  The next day, President Trump officially tapped former U.S. Attorney Alex Acosta for the position.  As Labor Secretary, Acosta will oversee the federal apparatus that investigates violations of minimum wage, overtime and workplace safety laws and regulations.

If confirmed, Acosta would be the first Hispanic member of President Trump’s cabinet.  Mr. Acosta has a strong background in public service.  After graduating from Harvard Law School, he clerked for Judge (now Supreme Court Justice) Samuel Alito on the Third Circuit Court of Appeals.  He has also served as a member of the National Labor Relations Board, head of the U.S. Department of Justice’s Civil Rights Division (both of which he was appointed to by President George W. Bush), and U.S. Attorney for the Southern District of Florida.  Most recently, Acosta served as Dean of the Florida International University School of Law.  Should he be confirmed, Acosta’s public and private experiences (he also practiced law at Kirkland & Ellis) should enable him to take into account numerous perspectives in his new role.

At this stage, Acosta’s views on various pressing issues at the Department of Labor — such as Continue reading

Supreme Court Nominee Neil Gorsuch Sides with Businesses on Labor Issues

gorsuch-imageOn February 1, 2017, President Trump nominated Neil Gorsuch, a judge on the U.S. Court of Appeals for the Tenth Circuit in Denver, Colorado, to fill the vacancy on the Supreme Court left by Antonin Scalia’s death in February 2016.  Indeed, since February 2016, the High Court has functioned with only eight members; four liberal Justices and four conservative Justices.  Therefore, the confirmation of a ninth Justice to fill the vacant position, and establish a majority conservative bench, is likely to have a substantial impact on the outcome of controversial issues brought before the Court.

Gorsuch was appointed to the Tenth Circuit by President George W. Bush in 2006.  Although he is considered a firm conservative, as was expected given President Trump’s public stance to fill the vacancy with a judge who embodies Scalia’s principles, he has garnered praise from both liberals and conservatives for his work as an appellate judge due to his reputation for conveying his ideas fluently and courteously.

A number of Democrats have already conveyed their opposition to Gorsuch’s nomination, which could prove problematic as he will need to win over some Democratic senators to get the 60 votes needed to clear procedural hurdles. Continue reading

U.S. Supreme Court to Decide Validity of Class Action Waivers

us-supreme-court-4Circuit Split on Class Action Waivers

The U.S. Supreme Court has  agreed to review the validity of class action waiver clauses in employment arbitration agreements to resolve a conflict among the federal appellate courts.  As our firm has explained in prior blog posts, the U.S. Court of Appeals for the Ninth Circuit – the federal appellate court for the Western United States – has concluded in Morris v. Ernst & Young, LLP that a company violates the National Labor Relations Act (NLRA) by requiring employees to sign agreements precluding them from bringing class actions or other collective actions regarding their wages, hours, or other terms and conditions of employment.  The U.S. Court of Appeals for the Fifth Circuit in NLRB v. Murphy Oil USA, Inc. has concluded to the contrary that the NLRA does not invalidate collective action waivers in arbitration agreements, and the U.S. Court of Appeals for the Seventh Circuit in Epic Systems Corp v. Lewis has agreed with the Ninth Circuit’s position.  The Supreme Court has granted review in all three cases and consolidated the appeals because they raise an identical issue.

Given the current eight-member configuration of the Supreme Court, it is uncertain whether the Court’s review Continue reading