1. Welcome to Employment Law This Week®! Subscribe to our channel for new episodes every Monday!

    (1) D.C. Circuit Overturns NLRB Joint-Employer Case

    Welcome to Employment Law This Week. I’m George Whipple. Our top story - The D.C. Circuit reverses the NLRB in a joint employer case - A three-judge panel held that the Board did not follow consistent precedents in finding that CNN was a joint employer of a group of contracted technicians. The Board decided this case prior to changing the joint employer standard in Browning Ferris. So the Court did not consider the new indirect control standard. Instead, they focused only on how the NLRB’s previous test was applied in this case. Employers and other interested parties continue to await the Court’s ruling in Browning-Ferris to see whether it will reject the looser test the Board adopted there. John Fullerton, of Epstein Becker Green, has more:

    (2) Marvin Kaplan Confirmed for NLRB Seat

    The NLRB gains a second Republican member, but the Republican chairman announces he’ll leave the Board later this year - A week after the Senate confirmed President Trump’s nominee Marvin Kaplan to a seat on the NLRB, current Chair Philip Miscimarra announced he will not seek a second term. His term expires on December 16th of this year. A Senate vote on the nomination of William Emanuel, President Trump’s second Labor Board nominee, has not been scheduled, but it is expected in September. Emanuel’s confirmation would give Republicans a 3-2 majority for the first time in 9 years, at least until Miscimarra departs.

    For more, click here: http://bit.ly/2vTAbJK

    (3) Eighth Circuit Nixes Non-Compete for Independent Contractor

    The Eighth Circuit finds a noncompete for an independent contractor unreasonable - The contractor bought supplies from a farm company in Iowa and sold them at a markup. After he ended his relationship with the business, he sold competing products to the customer base he built while contracting with the company. The company sued, alleging violation of its noncompete agreement. The three-judge panel upheld a district court decision releasing the contractor from the agreement. The court concluded that the defendant’s customers belonged to him rather than the company, and that the agreement was not necessary to protect the business. Thus, the court found the noncompete unreasonable and unenforceable.

    (4) Chicago Police Officers Lose Overtime Suit For Off-Duty Work

    Where there is no uniform policy discouraging overtime reporting, there is no FLSA violation for failing to pay overtime that was not reported, says the Seventh Circuit - A collective of Chicago police officers claimed they failed to receive overtime pay for off-duty work performed on city-issued BlackBerrys. The Seventh Circuit found that the Police Department had a process allowing the police officers to record overtime hours worked, but that the officers did not submit these off-duty hours for overtime pay. The court also found that there was no policy or practice to discourage the officers from reporting these hours.

    (5) Tip of the Week

    Tracy Van Duston, Senior Recruiter and Account Manager at NRI Staffing, provides some advice on minimizing risk for a painless recruitment process:

    “Here are five tips to help you implement a painless recruitment process and minimize risk. Number one, put in more work up front. Really take the time to analyze the position to gain a clear idea of what you’re looking for in a candidate. Number two, if this is an established position, ask yourself what personality traits and soft skills have worked well in the past. Also ask yourself, what has not worked well. What career path and skill growth does this position offer? Ensure that the position you're hiring for will align with the long-term goals of your potential new hire. Number four: How fast do you hire? Are you setting realistic expectations up front with your candidates on your hiring timeline? And last, who’s in charge of checking or re-checking references? Your HR department or the hiring manager or supervisor? Often we find that a supervisor speaking directly to a previous manager can provide valuable insight on how to successfully manage and develop your new hire.

    Visit EmploymentLawThisWeek.com.

    These materials have been provided for informational purposes only and are not intended and should not be construed to constitute legal advice. The “Tip of the Week” offers one perspective on possible human resource ideas or business practices. It presents the perspective of an individual not affiliated with Epstein Becker Green and should not be considered legal advice. The content of these materials is copyrighted to Epstein Becker & Green, P.C. EMPLOYMENT LAW THIS WEEK® is a registered trademark of Epstein Becker & Green, P.C. ATTORNEY ADVERTISING.

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  2. The Department of Labor may be moving to formally roll back Obama-era overtime exemption regulations. Regulations that more than doubled the salary thresholds for most white-collar exemptions were supposed to go into effect in December 2016, but the Department was enjoined from enforcing them. The DOL has now issued a Request for Information seeking public comment on topics including the amount of the salary threshold, how it should be determined and whether there should be any minimum salary requirement at all. Adriana Kosovych, from Epstein Becker Green, has more.

    This is a "Tip of the Week" segment from Employment Law This Week® (Episode 82: Week of August 7th, 2017), an online series by Epstein Becker Green. youtube.com/watch?v=mmtJUOu3KXo

    Visit EmploymentLawThisWeek.com.

    These materials have been provided for informational purposes only and are not intended and should not be construed to constitute legal advice. The content of these materials is copyrighted to Epstein Becker & Green, P.C. EMPLOYMENT LAW THIS WEEK® is a registered trademark of Epstein Becker & Green, P.C. ATTORNEY ADVERTISING.

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  3. Jennifer Fournier, General Counsel and VP of the HR and Compliance Group at The Schuster Group, provides some advice on utilizing job descriptions to minimize risk and improve communication.

    “Clear and concise communication written through the job description is a wonderful way for employers and employees to work together to understand exactly what the goals are for the position. When they're able to do that, you're going to find that your employees have greater productivity over time and increased job satisfaction, which will do nothing but benefit your organization. When we have a good job description on paper, we're able to look at that in a risk management way. We can refer back to that when we're dealing with discipline and other corrective actions that may need to occur along the way as someone is employed with you. And that can really help to minimize your litigation risks and, unfortunately, if you go to that place, have great documentation for your attorneys and legal team to move forward with whatever action might be out there.”

    This is a "Tip of the Week" segment from Employment Law This Week® (Episode 82: Week of August 7th, 2017), an online series by Epstein Becker Green. youtube.com/watch?v=mmtJUOu3KXo

    Visit EmploymentLawThisWeek.com.

    These materials have been provided for informational purposes only and are not intended and should not be construed to constitute legal advice. The “Tip of the Week” offers one perspective on possible human resource ideas or business practices. It presents the perspective of an individual not affiliated with Epstein Becker Green and should not be considered legal advice. The content of these materials is copyrighted to Epstein Becker & Green, P.C. EMPLOYMENT LAW THIS WEEK® is a registered trademark of Epstein Becker & Green, P.C. ATTORNEY ADVERTISING.

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  4. Welcome to Employment Law This Week®! Subscribe to our channel for new episodes every Monday!

    (1) DOL Issues RFI on FLSA Overtime Exemption Regulations

    Our top story - The Department of Labor may be moving to formally roll back Obama-era overtime exemption regulations. Regulations that more than doubled the salary thresholds for most white-collar exemptions were supposed to go into effect in December 2016, but the Department was enjoined from enforcing them. The DOL has now issued a Request for Information seeking public comment on topics including the amount of the salary threshold, how it should be determined and whether there should be any minimum salary requirement at all. Adriana Kosovych, from Epstein Becker Green, has more:

    (2) Second Circuit: NLRA Does Not Preempt NYSHRL

    The Second Circuit finds that the NLRA does not preempt the New York State Human Rights Law for discrimination claims filed against a union by its members - Members of a New York local accused the union of discriminatory activity in violation of the New York State Human Rights Law. The union sued for declaratory judgment, arguing that the state law was preempted by the NLRA's duty of fair representation. Reversing the lower court's ruling, the Second Circuit found that the duty of fair representation in the National Labor Relations Act presents no conflict with the NY law, and was not designed or intended to preempt state laws focused on combatting discrimination.

    (3) San Francisco Bans Salary History Inquiries

    San Francisco bans salary history inquiries - San Francisco joins New York City, Philadelphia, and the states of Massachusetts, Delaware, and Oregon as the latest jurisdiction to pass this type of legislation. The law will prohibit employers from asking applicants about current or past wages. The Parity in Pay Ordinance also bars employers from releasing salary information to a prospective employer without written consent. This legislation is based on the theory that relying on compensation history to determine starting pay contributes to gender wage inequities. The law will go into effect on July 1, 2018. A similar law is currently pending in the California Senate.

    (4) Pregnant Workers Fairness Act Signed Into Law

    And the Pregnant Workers Fairness Act is signed into law in Massachusetts - Starting April 1st, 2018, employers in Massachusetts must make reasonable accommodations for pregnant workers and workers with pregnancy-related conditions. The law also protects these workers from related discrimination and retaliation. Massachusetts joins 21 other states and D.C. in explicitly granting these protections.

    Click Here for More: retaillaborandemploymentlaw.com/discrimination/gov-christie-vetoes-legislation-barring-salary-history-inquiries/

    (5) Tip of the Week

    Jennifer Fournier, General Counsel and VP of the HR and Compliance Group at The Schuster Group, provides some advice on utilizing job descriptions to minimize risk and improve communication.

    “Clear and concise communication written through the job description is a wonderful way for employers and employees to work together to understand exactly what the goals are for the position. When they're able to do that, you're going to find that your employees have greater productivity over time and increased job satisfaction, which will do nothing but benefit your organization. When we have a good job description on paper, we're able to look at that in a risk management way. We can refer back to that when we're dealing with discipline and other corrective actions that may need to occur along the way as someone is employed with you. And that can really help to minimize your litigation risks and, unfortunately, if you go to that place, have great documentation for your attorneys and legal team to move forward with whatever action might be out there.”

    Visit EmploymentLawThisWeek.com.

    These materials have been provided for informational purposes only and are not intended and should not be construed to constitute legal advice. The “Tip of the Week” offers one perspective on possible human resource ideas or business practices. It presents the perspective of an individual not affiliated with Epstein Becker Green and should not be considered legal advice. The content of these materials is copyrighted to Epstein Becker & Green, P.C. EMPLOYMENT LAW THIS WEEK® is a registered trademark of Epstein Becker & Green, P.C. ATTORNEY ADVERTISING.

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  5. Welcome to Employment Law This Week®! Subscribe to our channel for new episodes every Monday!

    (1) Supreme Court Sets Date for Class Action Waiver Cases

    Our top story: The high court will kick off its October term by tackling a significant employment issue. The Supreme Court will hear arguments on the enforceability of class action waivers in arbitration agreements. Oral argument is scheduled for October 2 on related cases from the U.S. Court of Appeals for the Fifth, Seventh, and Ninth Circuits. During the Obama administration, the National Labor Relations Board (NLRB) took the position that such waivers violated employees’ rights, and the Department of Justice (DOJ) agreed. The DOJ reversed its position in an amicus brief filed in June. While the NLRB has not done so, it is expected to revisit the issue after a new Republican majority is confirmed.Stuart Gerson, from Epstein Becker Green, has more.

    (2) DOL to Reverse Position on Tip Pooling

    The Department of Labor (DOL) will move quickly to undo an Obama-era regulation restricting tip pooling. The White House Office of Management and Budget issued its regulatory agenda last week, detailing planned regulatory actions by federal agencies. The agenda states that the DOL will issue a Notice of Proposed Rulemaking as soon as August to rescind a 2011 interpretation of the tip-credit rule. The Obama-era regulation states that tips are the property of the employee, whether or not the employer takes the tip credit, even when the employer pays the full minimum wage. That rule was the subject of numerous legal challenges, including two certiorari petitions that are currently pending before the Supreme Court.

    For more information, read "Tenth Circuit Rules Tips Belong to the Employer If Tip Credit Is Not Taken": wagehourblog.com/2017/07/articles/tipped-employees/tenth-circuit-rules-tips-belong-to-the-employer-if-tip-credit-is-not-taken/
     
    (3) DOJ: Title VII Does Not Cover Sexual Orientation
     
    The DOJ says that Title VII of the Civil Rights Act of 1964 (Title VII) does not prohibit sexual orientation discrimination. In an amicus brief filed last week, the DOJ told the Second Circuit that it should reaffirm an earlier ruling that Title VII does not protect employees against discrimination based on their sexual orientation. The DOJ’s interpretation directly contradicts the Equal Employment Opportunity Commission’s official position on the matter. The case involves a skydiving instructor who was fired after disclosing to a customer that he was gay. As we’ve previously reported, the Second Circuit has granted an en banc hearing in order to reconsider its holding on the issue.
     
    (4) USCIS Issues Updated Form I-9
     
    The U.S. Citizenship and Immigration Services (USCIS) has issued another revision to Form I-9. Employers will be required to use the new version, dated July 17, 2017, beginning September 18 of this year. Until that time, employers may use either the new form or the form dated November 14, 2016. Form I-9 is used to verify the employment authorization and identity of all employees in the United States. The updated form includes a revised “List of Acceptable Documents” and small changes to the language.
     
    (5) Tip of the Week
     
    Christina Blankley, HR Manager at Maxxima LED Lighting, has some advice on best practices for improving employee engagement in benefit programs:
     
    “Employers should not underestimate the importance of employee engagement and the inevitable effect it has on a company's return on investment. Communications to employees about the company's benefit offerings throughout the year keep employees reminded of the benefits afforded to them as part of your organization. If a new gym opens up next door, send a reminder email to your employees that the company's insurance carrier offers a gym reimbursement program that they can benefit from. Employers should distribute to their employees an annual total rewards statement. It is a document that shows the employee their total compensation by listing their wages alongside the value of each benefit the company offers. This educates the employee on their true worth as a team member within your organization and creates incentive to utilize benefits afforded to them.”

    Visit EmploymentLawThisWeek.com.

    These materials have been provided for informational purposes only and are not intended and should not be construed to constitute legal advice. The “Tip of the Week” offers one perspective on possible human resource ideas or business practices. It presents the perspective of an individual not affiliated with Epstein Becker Green and should not be considered legal advice. The content of these materials is copyrighted to Epstein Becker & Green, P.C. EMPLOYMENT LAW THIS WEEK® is a registered trademark of Epstein Becker & Green, P.C. ATTORNEY ADVERTISING.

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Employment Law This Week® tracks the top developments in employment and labor law and workforce management in a matter of minutes every #WorkforceWednesday. Presented by law firm Epstein Becker Green. Learn more at ebglaw.com/employment-law-this-week/

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