DOL Takes Significant Step Forward in Rescinding Persuader Rule

4This week the Department of Labor (“DOL”) submitted a proposed rulemaking that would rescind the regulation commonly termed the “Persuader Rule” to the Office of Management and Budget’s Office of Information and Regulatory Transparency (“OIRA”) for review.  The DOL, through its Office of Labor-Management Standards (“OLMS”), promulgated the Persuader Rule during the last year of the Obama Administration and received vehement opposition from the employer community due to its impact on access to legal advice and counsel.  If OIRA approves the proposed rulemaking, the next step is for the DOL to publish it in the Federal Register for public review and comment.  The DOL will then consider and evaluate the comments it receives and decide how to proceed with the rulemaking.  Although the outcome is not guaranteed due to the pending comment process, this is an essential step toward eliminating the Persuader Rule.

As we discussed in a prior post, the Persuader Rule imposed stricter reporting requirements on employers under the Labor Management Reporting and Disclosure Act of 1959 (“LMRDA”).  Specifically, the rule aimed to close a loophole in the reporting requirements, known as the “advice exemption,” which permitted employers to hire a consultant solely for advice without making a related report.  Thus, in the past, the LMRDA required an employer to file a report if it hired a consultant to directly persuade employees on organizing or bargaining issues, but did not mandate an employer file a report if the consultant hired only used “indirect” persuasion, such as advising employers on what to say to employees.  With the Persuader Rule, however, the DOL has essentially eliminated the advice exemption as it now requires employers and their labor relations consultants, including outside attorneys, to report any activities by the consultants that could be construed as an attempt to “persuade” employees regarding their rights to organize and bargain.  Continue reading

Join Us for our May Webinar on Key Marijuana Issues in the Workplace

On Wednesday May 24, 2017, Conn Maciel Carey Labor & Employment attorneys Jordan B. Schwartz and Andrew J. Sommer will be presenting a free webinar discussing recurring marijuana issues in the workplace in light of new state legislation.

medical marijuanaThe rise in medical and recreational marijuana legislation poses many interesting questions for employers.  State legislation of the lawful use of cannabis likely will require employers to change their perceptions of longstanding drug policies and practices.  Legalized medical and recreational cannabis is a reality in many states, dispensaries are open for business, and state legislation on this topic has become a hot topic throughout the country.

Challenges by medical marijuana patients and recreational marijuana users concerning their employers’ practices are sure to arise, and there are several state and federal laws that may be implicated in those lawsuits.  Employers with national operations must take into account potentially divergent laws of the states in which they operate. This webinar will provide guidance to employers so they can tread carefully and refrain from making hasty decisions that can lead to the time, expense, distraction, and potentially unflattering publicity resulting from litigation.

 

The webinar begins at 1:00 pm ET.  You can register for the webinar HERE.  You can also register for Conn Maciel Carey’s entire 2017 Labor & Employment Webinar Series below:

Register me for the entire 2017 Labor & Employment Webinar series

House Passes Amendment to Fair Labor Standards Act Permitting Private Sector Comp Time

WFFA Pic

On May 2, 2017, the U.S. House of Representatives passed the Working Family Flexibility Act of 2017 – a bill that would amend the Fair Labor Standards Act (FLSA) to permit private employees to take paid time off instead of receiving monetary overtime compensation when working more than 40 hours per week.  While uncertainty looms over the fate of the bill as it moves to the Senate, if the bill is passed and becomes law, it would be a major amendment to the FLSA.

Private sector employers must be vigilant of this bill as it progresses through Congress and be prepared to implement procedures to offer comp time instead of overtime wages, and establish a system to keep track of the amount of comp time employees accrue. Continue reading

A New Trend — States Banning Questions Regarding Salary

In light of the current political climate and the corresponding lack of legislation being enacted at the federal level, some of the more liberal states and localities have begun to take matters into their own hands and enact their own legislation.   One trend that is starting to gain significant momentum is in the field of equal pay legislation. Several states and cities have already enacted legislation banning inquiries into job applicants’ salary history as part of an effort to ensure pay equity for women.   The prohibition against asking candidates for their prior salaries is akin to the passage of “ban the box” laws in nearly half the states in the country, which bar employers from requiring job applicants to disclose whether they have a criminal record on job applications.  These new laws will have a significant effect on employers operating in the applicable states and municipalities.

Last year, Massachusetts passed the nation’s first law prohibiting employers from asking job applicants for their current salaries or salary history.  mind the pay gap (002)Pro employee groups praised this law as a way to counter the pay discrimination that can follow a woman throughout her career when the salary bump she gets with each job move is based on pay that is already less than her male peers.  Many advocates for women believe that by basing future salaries on previous wages, employers are perpetuating the long-standing gender based pay gap. Indeed, some argue that the widening of the gender pay gap as women age supports the theory that employers are relying too heavily on previous salaries.  Companies and business groups, on the other hand, have expressed their views that this new law is misguided and represents yet another government-mandated intrusion into the way they conduct their businesses.  Employers further argue that these laws could have a negative impact on job growth and, in addition, there is nothing unlawful or unfair about using salary history to set pay and manage their costs.

Continue reading

Acosta Confirmed as Secretary of Labor

Department of LaborOn Thursday, April 27, 2017, Alexander Acosta was confirmed by the United States Senate to serve as the Secretary of Labor in the Trump Administration.  In this role, Acosta will oversee the federal department that develops and interprets labor regulations and investigates alleged violations of minimum wage, overtime, and workplace safety laws.  The Senate approved Acosta by a vote of 60-38, meaning there was some cross-party support, despite the party-line vote on Acosta’s nomination by the Senate Health, Education, Labor and Pensions Committee.  This marks the fourth time Acosta has been confirmed by the Senate, including his prior positions in the Bush Administration.

During the Bush Administration, Acosta served as a member of the National Labor Relations Board for approximately 8 months.  In 2003, President Bush appointed him to the head of the United States Department of Justice’s Civil Rights Division, a position which he maintained for about 2 years.  Thereafter, Acosta served as the United States Attorney for the Southern District of Florida.  Most recently, Acosta filled the role of Dean for Florida International University School of Law, a role from which Acosta has said he would resign if he was confirmed as Secretary of Labor.  Continue reading

Maryland on Track to Join Growing Trend of Paid Sick Leave

crutchesOn April 5, 2017, the Maryland General Assembly passed a paid sick leave bill – the
Maryland Healthy Working Families Act (the “Act”) – that is now waiting for Republican Governor Larry Hogan’s approval.  Governor Hogan has opposed the Act and publicly vowed to veto the bill if it passed – stating that the bill would be “dead on arrival.”  However, the bill is likely to become law in the next legislative session, even if Governor Hogan does veto it, because the bill garnered enough votes in both chambers of the legislature to override a veto.

Governor Hogan had introduced an alternative sick leave bill that would have required businesses with 50 or more employees to provide five paid sick days a year and offered tax incentives to smaller businesses that voluntarily agreed to do so.  He had urged lawmakers to negotiate with him and create a bill more like the version he proposed, stating he would not support a sick leave law unless it provides flexibility and support for smaller businesses.  However, no negotiation occurred and Governor Hogan’s bill never made it out of committee.

If the law does pass, Maryland will join Arizona, California, Connecticut, Massachusetts, Oregon, Vermont and Washington as states with laws requiring employers to offer paid sick leave, in addition to the District of Columbia, Montgomery County in Maryland, and several other localities across the country.  Maryland employers, particularly those that operate in Montgomery County and other locales in Maryland, must pay close attention to the details of the Act because it is significantly different from the more employee friendly provisions of Montgomery County’s Earned Sick and Safe Leave Act, as well as other local sick leave laws.  Continue reading

Join Us for a Webinar on Key Employment Law Issues for Small Businesses

On Wednesday April 19, 2017, Conn Maciel Carey Labor & Employment attorneys Kara M. Maciel, Jordan B. Schwartz and Andrew Sommer will be presenting a free webinar discussing key employment law issues for start-ups and other small businesses.

While large companies typically have human resources departments or in-house counsel to advise on the myriad of complex employment laws, start-ups and small businesses are often operating in the dark regarding these key issues.  However, as such companies grow and begin to hire more employees, compliance with local, state, and federal employment laws are paramount for survival.

This webinar will provide an overview of the most important employment laws, policies and practices that are of particular concern for small businesses and start-ups so that they can comply with proper pay practices and wage and hour law, become aware of applicable anti-discrimination laws, and learn proper procedures for hiring and firing, including offer letters, employment agreements and separation agreements.  Additionally, this webinar will cover the myriad of California specific laws that small businesses must be aware of prior to establishing a presence in that state.

The webinar begins at 1:00 pm ET.  You can register for the webinar here.  You can also register for Conn Maciel Carey’s entire 2017 Labor & Employment Webinar Series below:

Register me for the entire 2017 Labor & Employment Webinar series