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

    (1) Two Questions CA Employers Can No Longer Ask Potential Hires

    Our top story: California Governor Jerry Brown has signed two new laws that impact the hiring process: (i) a “ban the box” law that restricts when employers can ask job applicants about criminal history, and (ii) a “salary history ban” that bars employers from asking job applicants about their salary history or using that information in setting compensation. Both laws align with nationwide trends, with states, cities, and counties all taking action.

    California’s salary history ban comes on the heels of New York City’s similar law, which takes effect on October 31. We asked Ann Knuckles Mahoney, from Epstein Becker Green, to compare California’s new law to New York City’s salary history inquiry law:

    “In California, employers will be required to provide, upon reasonable request, a pay scale to applicants for the position. While the New York City law certainly contemplates having discussions about salary expectations, this requirement to affirmatively provide a pay scale is certainly something different from the other salary history inquiry laws. Another key difference is that this California Salary History Law reaffirms part of the California Equal Pay Law which prohibits employers from justifying salary discrepancies based on prior salary histories alone. Additionally, the New York City law allows employers to ask applicants about their deferred compensation.”

    (2) Third Circuit Rules Employees Must Be Compensated for Short Breaks

    The Fair Labor Standards Act (FLSA) requires employers to pay workers for breaks of up to 20 minutes, the U.S. Court of Appeals for the Third Circuit rules. Employer Progressive Business Publications allowed sales representatives to log off of their computers and take breaks whenever they chose and for any length of time. But if the workers were logged off for more than a minute and a half, they were not paid for the time. The panel gave deference to the interpretation of compensable breaks by the Wage and Hour Division of the Department of Labor (DOL) and concluded that treating breaks longer than 90 seconds as unpaid “flexible time” flouted the spirit of the FLSA.

    For more, click here: ebglaw.com/eltw92-wh2

    (3) Sixth Circuit Revives FLSA Suit Over Retailer’s 'Draw' Pay System

    A “draw” pay system for commission paid employees may be legal but not if terminated workers are required to repay advances. The Sixth Circuit will let a proposed class of sales employees move forward with their wage and hour suit against appliance retailer H.H. Gregg. The company advances sales employees a “draw” to cover any difference between their commissions and the minimum wage for their hours worked. The employees are required to repay the draw from their future commission earnings. The court found that this draw and commission system is permitted under the FLSA but allowed the workers to move forward with their claim that requiring the repayment of draws following termination violates the FLSA.

    For more, click here: ebglaw.com/eltw92-wh

    (4) Eleventh Circuit Says ERISA Time Limits Can Be Waived

    The Eleventh Circuit says that a limitations period for bringing claims under the Employee Retirement Income Security Act (ERISA) can be waived by the employer. The question arose from a DOL action against TPP Holdings for breach of fiduciary duty. During settlement negotiations, TPP agreed to waive a timeliness argument in exchange for a delay in filing the action. After settlement discussions broke down, the DOL filed suit and TPP raised the timeliness defense anyway, arguing that ERISA did not allow the parties to waive the statute of limitations. The Eleventh Circuit disagreed, stating that “rights of all kinds—even constitutional ones—can be waived.”

    (5) Tip of the Week

    Keith Earley, Principal at Early Interventions LLC, shares his thoughts on avoiding diversity stagnation.

    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. Danielle Holley-Walker, Dean of Howard University School of Law, provides some advice on best practices in mentoring for leadership.

    This is a "Tip of the Week" segment from Employment Law This Week® (Episode 91: Week of October 16, 2017), an online series by Epstein Becker Green. youtu.be/pGI0dZC9-ao

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

    (1) Sessions Reverses DOJ Stance on Title VII

    Our top story: Attorney General Sessions has reversed the Department of Justice’s (DOJ’s) stance on transgender employees. In a letter to all U.S. Attorneys and the heads of all federal agencies, Sessions said that Title VII of the Civil Rights Act (Title VII) does not prohibit discrimination based on gender identity. This reverses previous guidance under the Obama administration and conflicts with the position of the Equal Employment Opportunity Commission (EEOC) and some federal court decisions on the matter. Kate Rhodes, from Epstein Becker Green, has more:

    “The reversal of this policy statement has an effect on any pending cases where the issue is whether Title VII encompasses protections for transgender individuals. The Department of Justice is not a party to many of these cases but, based on its prior actions earlier this year, has shown a willingness to file amicus briefs asserting its position on the federal employment laws even if it is in contradiction to the EEOC’s position. So, I think we can anticipate going forward, the Department of Justice will continue to show willingness to intervene in cases which it’s not a party, to really hammer this point home.”

    (2) Trump Administration Narrows ACA Contraception Mandate

    The Trump administration broadened exceptions to the Affordable Care Act (ACA) contraception mandate. The Health and Human Services Department has issued new interim rules aimed at expanding employers’ ability to exempt themselves from the ACA’s requirement that employer health insurance programs provide coverage for birth control. Effective immediately, employers subject to the ACA’s mandate, both nonprofits and for-profit companies, can exclude birth control from their plans where they have “sincerely held religious beliefs or moral convictions” against contraception. The move immediately prompted two lawsuits, both in a California district court. Other groups have announced plans to take action as well.

    For more, click here: ebglaw.com/eltw91-heal

    (3) High Court Hears Class-Action Waiver Arguments

    It looks like the U.S. Supreme Court is divided on class-action waivers. The High Court kicked off its new session with oral arguments on a key employment issue: class-action waivers in employee arbitration agreements. The justices seemed to focus on whether class-action waivers in arbitration agreements deprive employees of their right under the National Labor Relations Act (NLRA) to act collectively by requiring them to arbitrate their claims on an individualized basis and barring class claims. For the second time this term, government lawyers argued both sides of the case, with National Labor Relations Board General Counsel Richard Griffin, an Obama appointee, arguing that such waivers violate the NLRA and Deputy Solicitor General Jeffrey Wall arguing that the Federal Arbitration Act trumps the NLRA.

    (4) Rhode Island Adopts Paid Sick Leave Policy

    Statewide paid sick leave is coming to Rhode Island. Starting July 2018, Rhode Island employers with 18 or more employees must offer paid sick and family leave to workers. According to a new law, employers will need to provide at least three paid sick days per year in 2018, rising to five days in 2020. Rhode Island is the eighth U.S. state to guarantee paid sick leave for workers. There are now 39 cities, counties, or states that have passed paid sick leave laws.

    (5) Tip of the Week

    Danielle Holley-Walker, Dean of Howard University School of Law, provides some advice on best practices in mentoring for leadership:

    “Offering mentorship programming focused on leadership can help increase the development of diverse employees. Have the mentees in your program identify their strengths and weaknesses, which will help prepare them for the mentorship program. Next, teach mentees to be proactive in communicating and asking for feedback. Help them to understand that the relationship is a two-way street—they have to do their part. Finally, encourage your senior mentors to use their network. Help provide connections for the mentees outside of your organization. This will help younger employees further develop their skills to become future leaders.”

    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. Extended long-term leave is not covered under the Americans with Disabilities Act (ADA), the U.S. Court of Appeals for the Seventh Circuit says. An employee who had exhausted his Family and Medical Leave Act (FMLA) leave requested an additional two months off to recover from back surgery. Instead of granting the additional leave, the employer terminated his employment. The Seventh Circuit found that extending a long-term leave of absence beyond what is covered by the FMLA is not a reasonable accommodation under the ADA. This decision conflicts with the Equal Employment Opportunity Commission’s (EEOC’s) position, as well as rulings from the majority of other circuit courts. Josh Stein, from Epstein Becker Green, has more.

    This is an extended interview from Employment Law This Week® (Episode 90: Week of October 9, 2017), an online series by Epstein Becker Green. youtube.com/watch?v=k2vakU7suwg&t=1s

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

    (1) Seventh Circuit: Extended Leave Not Covered Under ADA

    Our top story: Extended long-term leave is not covered under the Americans with Disabilities Act (ADA), the U.S. Court of Appeals for the Seventh Circuit says. An employee who had exhausted his Family and Medical Leave Act (FMLA) leave requested an additional two months off to recover from back surgery. Instead of granting the additional leave, the employer terminated his employment. The Seventh Circuit found that extending a long-term leave of absence beyond what is covered by the FMLA is not a reasonable accommodation under the ADA. This decision conflicts with the Equal Employment Opportunity Commission’s (EEOC’s) position, as well as rulings from the majority of other circuit courts. Josh Stein, from Epstein Becker Green, has more.

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

    (2) EEOC Issues Status Report on Wellness Program Regulations

    In August, the D.C. Circuit remanded the current wellness program rules back to the EEOC for further consideration, leaving the rules in place. The court was not satisfied with the agency’s explanation as to why limiting the incentive to 30 percent of the cost of coverage rendered a program “voluntary” as opposed to “involuntary.” The EEOC has filed a status report with the court stating that the agency intends to issue a final rule by October 2019, with an effective date of early 2021. In response to this timeline, the AARP, which brought the suit, has urged the court to vacate the 2016 rules.

    (3) Equifax Breach Prompts Cybersecurity Law in New York State

    Calling the hack a "wakeup call," New York State Governor Andrew Cuomo announced proposed regulations. Every consumer reporting agency that assembles, evaluates, or maintains a credit report on New York consumers will be affected. Under the proposed rules, these agencies will be subject to the same cybersecurity standards as New York banks and other financial institutions. The agencies must have a written cybersecurity program in place by April 4, 2018. Failure to comply would mean that a company could no longer do business in the state.

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

    (4) New Travel Restrictions Announced

    Following the expiration of his revised travel ban, President Trump issued a proclamation imposing new country-specific travel restrictions for foreign nationals. Unlike the previous ban, this proclamation directs the State Department to deny certain types of visas to particular applicants in each country. There are exceptions, including those who have bona fide relationships to a U.S. person or entity, diplomats, dual nationals, and previously admitted refugees.

    (5) Tip of the Week

    Nate Saint-Victor, Executive Director of Legal and Compliance for Morgan Stanley, discusses how important it is for lawyers to focus on diversity:

    “I think it’s very important at the private law firms, but it’s also important in-house, and maybe arguably more important in-house, because the in-house clients, they’ve got a book of business, they have a lot of influence on the broader legal profession. They’re having conversations with and making decisions about where they’re going to allocate capital. And we have the ability to have those conversations with outside counsel to ensure that they’re committing, as we are, to diversity and inclusion. For example, with Morgan Stanley, our outside counsel policy clearly articulates a shared commitment on diversity and inclusion that’s expected with any law firm that’s working on our matters.”

    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®

Epstein Becker Green PRO

Welcome to Employment Law This Week®, presented by Epstein Becker Green. This online video program – among the first of its kind in the legal industry – tracks the latest developments that could impact you and your workforce. The series features three…


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Welcome to Employment Law This Week®, presented by Epstein Becker Green. This online video program – among the first of its kind in the legal industry – tracks the latest developments that could impact you and your workforce. The series features three components: Trending News, Deep Dives, and Monthly Rundowns. Learn more at ebglaw.com/employment-law-this-week/

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