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

    (1) New Memo from NLRB GC Peter Robb

    Our top story: A new direction at the National Labor Relations Board (“NLRB” or “Board”) under General Counsel (GC) Peter Robb. Robb has issued a memo outlining which cases must be submitted by regional offices to the Division of Advice for guidance. The memo indicates areas in which the new GC will likely ask the NLRB to overturn Obama-era decisions. Robb specifically mentions the joint-employer definition that was expanded in Browning-Ferris and the Purple Communications ruling that employees have a right to use their employers’ email systems for union activity, among other controversial issues. Don Krueger, from Epstein Becker Green, has more:

    (2) Supreme Court Lifts Injunctions on Third Travel Ban

    The Supreme Court has stayed two nationwide injunctions on President Trump’s travel ban. As a result, the third iteration of the ban is now in effect, at least temporarily. The ban restricts travelers from six predominantly Muslim countries, along with North Korea and Venezuela, from entering the United States. Waivers may be granted, and the ban does not apply to green card holders or dual nationals traveling on a passport from a country that is not on the list. This action by the Supreme Court does not resolve the legal challenges to the ban but allows it to take effect while the U.S. Courts of Appeals for the Fourth and Ninth Circuits review the challenges. Both courts heard arguments on the issue last week.

    (3) Paid Leave Credit to Employers Expected in Tax Bill

    Paid leave credits included in the tax bill. As the House and Senate negotiate tax reform, experts believe that a measure offering tax credits to companies that provide paid family and medical leave to employees is likely to survive. Some critics have noted that the credit would only be in effect for two years before it’s up for re-evaluation, and they question whether it will incentivize more companies to offer paid leave or just give a tax cut to companies already providing the benefit.

    (4) Final Rule on ERISA Disability Benefits Delayed

    The final rule on Employee Retirement Income Security Act of 1974 (ERISA) disability benefits has been delayed. Last year, the Department of Labor (DOL) released a final rule on claims and appeals for ERISA plans that provide disability benefits. The rule was set to go into effect January 1 of next year, but it will now be effective as of April 1, 2018. The rule adds safeguards and protections, but stakeholders have argued that it will increase plan costs and administrative expenses. The DOL will use the extra time to consider these and other comments.

    (5) Tip of the Week

    Barbara Harris, Senior Labor and Employment Editor at Thomson Reuters Practical Law, is here with some advice on drafting restrictive covenants and confidentiality agreements:

    “When drafting restrictive covenants, it's really important to be wary of relying on old precedence or forms. There have been many recent developments in the law that make forms that were drafted even one or two years ago outdated already. For example, the Defend Trade Secrets Act, which was passed in 2016, requires employers to include a notice of whistleblower immunity in their non-compete agreements or any agreements containing confidentiality provisions. Confidentiality provisions are another area where these agreements have to be evolving and changing, because they've come under serious scrutiny from many regulatory agencies that are charged with enforcing the whistleblower laws, such as the SEC, FINRA, and OSHA. To avoid potentially substantial penalties, employers should include carve-outs allowing employees to report suspected wrongdoing to these agencies. The bottom line is your old forms probably don't cover any of these issues adequately, so don't rely on them.”

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    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. Will Hansen, Senior VP of Retirement Policy for The ERISA Industry Committee (ERIC), is here with tips on how tax reform could impact executive compensation programs.

    This is a "Tip of the Week" segment from Employment Law This Week® (Episode 96: Week of December 4, 2017), an online series by Epstein Becker Green. youtube.com/watch?v=jqaAEdjWsGg

    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) Ninth Circuit: Minimum Wage Calculated by Weekly Average
    Our top story: The U.S. Court of Appeals for the Ninth Circuit finds that the minimum wage can be calculated by the weekly average. Xerox paid call center workers in the State of Washington different amounts for different tasks. This system sometimes caused employees to earn less than the minimum wage in a single hour, but the employer supplemented their pay at the end of each workweek to meet the federal minimum. Several of the workers sued, claiming that the Fair Labor Standards Act’s minimum wage requirement must be met for each individual hour worked. The Ninth Circuit concluded that the minimum wage should be measured over the entire workweek, agreeing with four other circuits, and ruled in favor of the company. Here’s Jonathan Brenner, from Epstein Becker Green, with more.

    (2) Restaurant Groups Fight NYC’s Paycheck Deduction Law

    Restaurant groups take on New York City’s paycheck deduction law. The National Restaurant Association has sued New York City in federal court over a new law that went into effect on November 26. Under the law, fast-food employees can ask their employer to deduct a portion of their salary and donate it directly to a nonprofit. The association says this provision violates federal labor law by requiring employers to send dues to union-supported organizations in non-union workplaces. The restaurant groups also allege that the law violates the First Amendment by requiring employers to send funds to organizations that they may not support, like the “Fight for $15” campaign.

    For more, click here: ebglaw.com/eltw96-hello

    (3) Poll Shows State and Local Laws Are Top Concern

    State and local laws are top of mind heading into 2018. In a recent poll of readers, HR Dive found that over half of respondents consider state and local laws their top compliance concern, followed by Family and Medical Leave Act (FMLA) leave and EEO-1 reporting. HR Dive cites stagnation on the federal level as a major reason that states and municipalities are taking matters into their own hands. Salary history inquiry bans, minimum wage laws, ban-the-box provisions, and paid leave requirements are just some of the issues on state and local legislative agendas throughout the country.

    For more, click here: ebglaw.com/eltw96-hr

    (4) DOL Delays Fiduciary Rule

    The U.S. Department of Labor (DOL) puts the fiduciary rule on ice for 18 months. The DOL has delayed key parts of its fiduciary rule for financial advisors until July 1, 2019. The DOL is using the time to fully consider prohibited transaction exemptions in the rule, including the controversial Best Interests Contract (BIC) exemption that would require fiduciaries to enter into an enforceable contract regarding standards of conduct. In February, President Trump asked the DOL to examine the Obama-era rule. The Impartial Conduct Standards, which require brokers to charge reasonable fees, refrain from making misleading statements, and work in clients’ best interests, took effect in June 2017.

    (5) Tip of the Week

    Will Hansen, Senior VP of Retirement Policy for The ERISA Industry Committee (ERIC), is here with tips on how tax reform could impact executive compensation programs:

    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. Statewide employee scheduling rules are coming to New York. The state Labor Department is advancing regulations limiting on-call and just-in-time scheduling. The proposed rules require additional pay for employees scheduled on short notice, but would not prohibit the practice altogether. While the regulations appear to primarily target retailers, who commonly use on-call scheduling, they will impact other industries as well. Here’s Jeff Landes from Epstein Becker Green with more.

    This is an extended interview from Employment Law This Week® (Episode 95: Week of November 20, 2017), an online series by Epstein Becker Green. youtu.be/C-JHarLaHf4

    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. This week, we welcome Barbara Harris. Barbara is a Senior Labor & Employment Editor at Thomson Reuters Practical Law, and she spoke to us about navigating the patchwork of state and local paid sick leave laws. Until the federal government passes a fix, like the preemption law we discussed on last week’s show, this will remain a concern for employers:

    This is a "Tip of the Week" segment from Employment Law This Week® (Episode 95: Week of November 20, 2017), an online series by Epstein Becker Green. youtu.be/C-JHarLaHf4

    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®

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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…


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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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