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

    (1) EEOC's Year-End Filings Concentrate on Disability Discrimination

    Our top story: Disability discrimination is in the spotlight as the Equal Employment Opportunity Commission (EEOC) files a flood of lawsuits. The EEOC ended its fiscal year with a surge of disability discrimination lawsuits against high-profile companies like Lowe’s and Volvo North America. The agency filed nearly 90 total lawsuits in September, about triple the number from September 2016. We asked Shira Blank, from Epstein Becker Green, what we should take away from the EEOC’s actions:

    “Most of what we are seeing is a follow-up from the Obama administration. In 2016 and one of the last acts of the administration, the EEOC released guidance regarding leave laws, and it said that it intended to target employers with inflexible leave policies. So what we are seeing here is the EEOC following up on that initiative. It would be difficult to argue that the EEOC is not trying to send the message here, as it brought lawsuits against major players across a variety of industries, including auto manufacturing, hospitality, and major retailers.”

    (2) Ninth Circuit Backs NLRB in Arbitration Deferral Case Beneli v. NLRB

    The U.S. Court of Appeals for the Ninth Circuit approves the National Labor Relations Board’s (NLRB’s) new standard for deferring to arbitration. The new standard came in a 2014 unfair labor practice dispute involving the discipline of a shop steward at a construction company. The NLRB deferred to an arbitrator’s decision but also changed its standard to make deferring to arbitration less likely. In this appeal, Beneli v. NLRB, the employee argued that the NLRB should have applied the new standard to her case. The employer claimed that the NLRB was right not to apply the new standard retroactively but argued that the standard itself violated the National Labor Relations Act. The court found that the new deferral standard is valid and agreed with the employer that it should not have been applied to this case.

    (3) Sixth Circuit Affirms the Dismissal of Statutory Claims for Travel Pay in Abell v. Sky Bridge Resources

    Workers alleged that their IT consulting firm violated the Kentucky Wage Hour Law because the company paid them only half their hourly wage for travel time. Like the Fair Labor Standards Act, the Kentucky law states that travel away from home is working time only if it cuts across the employee’s workday. The workers had contracts stating that their workdays began when they arrived at the client’s location and ended when they left. So their travel time could not have cut across the workday, and they could not establish their statutory claims.

    (4) ICE to Quadruple Workplace Inspections

    The acting director of U.S. Immigration and Customs Enforcement (ICE) has ordered the agency to ramp up immigration enforcement around Forms I-9 at workplaces by four to five times current levels. This action will reverse a slowdown that took place toward the end of President Obama's tenure, when I-9 audits fell from a peak of 3,000 per year in 2012-2013 to just 1,250 in fiscal year 2015-2016. If employees’ I-9s are found to be in violation, a company could face fines of up to $21,000 per undocumented worker. Acting Director Thomas Homan has been floated as a possible nominee for Secretary of Homeland Security.

    (5) Tip of the Week

    Ana Chapa, Executive Director of the Corporate Work Study program at Don Bosco Cristo Rey, spoke to us about the importance of fostering socioeconomic diversity in the workplace:

    “Stereotypes about certain groups of people, especially people from differing economic backgrounds, can carry into the workplace. Corporate work-study programs provide a mixed learning experience. When young people from lower incomes integrate into a corporate environment, they often break down their own views. In addition to other volunteer programs, bringing underserved low-income youth into the corporate environment creates a long-lasting impact on diversity initiatives because it fosters an ongoing culture of acceptance, support, shared learning, and inclusion among your employees.”

    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. 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. For more on the salary history law, we spoke to Ann Knuckles Mahoney from Epstein Becker Green.

    This is an extended interview from Employment Law This Week® (Episode 92: Week of October 23, 2017), an online series by Epstein Becker Green. youtube.com/watch?v=kWSFehM-lVE

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

    This is a "Tip of the Week" segment from Employment Law This Week® (Episode 92: Week of October 23, 2017), an online series by Epstein Becker Green. youtu.be/kWSFehM-lVE

    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) 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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  5. 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.

    For more, click here: http://bit.ly/2ghIU2R

    This is an extended interview from Employment Law This Week® (Episode 91: Week of October 16, 2017), an online series by Epstein Becker Green. youtube.com/watch?v=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 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 – will deliver the most significant stories and developments in employment, labor, and workforce management…


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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 – will deliver the most significant stories and developments in employment, labor, and workforce management issues in about five minutes, each week.

Tune in each week for developments that may affect your business. Learn more at ebglaw.com/employment-law-this-week/

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