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

    (1) Change Comes Swiftly at the NLRB

    Our top story: The National Labor Relations Board (“NLRB” or “Board”) takes a new direction. The last month of 2017 saw the Republicans take control of the NLRB for the first time in nine years. And the new majority quickly set a new tone, overturning controversial Obama-era decisions. The NLRB discarded the joint-employer test adopted in Browning Ferris, created a new test for handbook and rules violations, and reversed the Specialty Healthcare “overwhelming community of interest” standard for bargaining micro-units. With the end of NLRB Chairman Philip Miscimarra’s term on December 16, the Board has now shifted back to a 2-2 split until a replacement is nominated and confirmed. Steve Swirsky, from Epstein Becker Green, tells us what other changes we can expect in 2018:

    “The tea leaves are very clear that there are another indeterminate number of precedents that are going to be reviewed. The Board members Kaplan and Emanuel have given some indications in several footnotes in decisions that said that ... where they've said they want to look at particular issues, and they think that they should be ripe for reconsideration by the Board. These include the precedents from the Obama Board concerning confidentiality in settlement agreements. Something else that came out in December was a Request for Information from the Board looking for comment and experience from parties across the spectrum on the Board's 2014 amendments to the representation election processes. I think it's likely that that's a precursor to another round of rulemaking by the Board to address some of the inequities in those 2014 election rules, if not to revert to the prior rules completely.”

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

    (2) New Tax Bill Impacts Employers

    This new year will also usher in new tax rules, thanks to tax reform legislation passed by Republicans in late 2017. Corporations will see a reduction of the corporate rate from 35 percent to 21 percent and a repeal of the corporate alternative minimum tax. Employers will lose deductions for moving and transportation expenses. Companies will not be allowed to deduct as business expenses any settlements paid on claims for sexual harassment if the payments are subject to a nondisclosure agreement. These and other provisions will have a significant impact on the taxes that companies pay and the tax-free fringe benefits they can offer to employees.

    (3) EEOC Wellness Rules to Be Vacated

    The Equal Employment Opportunity Commission (EEOC) wellness rules allow employers to give employees incentives for participating in workplace wellness programs, worth up to 30 percent of an employee’s cost of health insurance. Back in August, a federal district court judge in the District of Columbia invalidated the rules and directed the EEOC to reconsider them. The court found that the agency did not adequately explain why the incentive did not violate the Americans with Disabilities Act’s requirement that any disclosure of disability-related information must be voluntary. In December, the judge amended his order and vacated the challenged portions of the rules, effective January 1, 2019, stating that the timeline will give employers an opportunity to adjust their programs.

    (4) New California Laws Impact Employers

    The state of California added 859 new statutes last year, and many of them will have an immediate impact on employers. Among these new laws are a prohibition on salary history and criminal conviction questions in the employment application process and an extension of leave to new parents working for smaller employers. California employers will also see new limitations relating to granting worksite access to immigration enforcement officials without a warrant. Most of the new laws have already taken effect, so employers need to make sure that they are up to date and in compliance.

    For more, click here: http://bit.ly/2qnCG5X

    (5) Tip of the Week

    Dr. Gerlind Wisskirchen, a Partner at CMS Germany, is here with advice on preparing for the artificial intelligence (“AI”) workplace.

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

    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. Labor Secretary Acosta has withdrawn the joint-employer and independent contractor guidance and has announced a return to the practice of issuing opinion letters. The Department of Labor was enjoined from enforcing new regulations more than doubling the minimum salary for white-collar overtime exemptions before the regulations were finally withdrawn. Acosta has also proposed rescinding some limitations on tip pooling. And the stage is set for even more changes in 2018. Paul DeCamp, from Epstein Becker Green, tells us what we’re likely to see in the coming months.

    This is an extended interview from Employment Law This Week® (Episode 98: Week of December 18, 2017), an online series by Epstein Becker Green. youtu.be/wLNm5MXs7Ns

    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. Paid leave goes local. The year 2017 saw the passage of a slew of new state and local paid leave laws, many of which go beyond what is required under the Family and Medical Leave Act (FMLA). Employers in these jurisdictions may find that their own policies are not in compliance with these new laws, even when they are more generous than what is required under the FMLA. New laws include amendments to the California Family Rights Act; universal paid leave in Washington, D.C.; and paid family leave in New York State. Nancy Popper, from Epstein Becker Green, has more.

    This is an extended interview from Employment Law This Week® (Episode 98: Week of December 18, 2017), an online series by Epstein Becker Green. youtu.be/wLNm5MXs7Ns

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

    (1) 2017: Paid Leave Goes Local

    Our top story: Paid leave goes local. The year 2017 saw the passage of a slew of new state and local paid leave laws, many of which go beyond what is required under the Family and Medical Leave Act (FMLA). Employers in these jurisdictions may find that their own policies are not in compliance with these new laws, even when they are more generous than what is required under the FMLA. New laws include amendments to the California Family Rights Act; universal paid leave in Washington, D.C.; and paid family leave in New York State. Nancy Popper, from Epstein Becker Green, has more:

    “We've seen, with the new paid family leave laws, pay associated with leave laws. Previously, they were unpaid leave. We've also seen expanded reasons for the use of this type of leave, not just for one's own serious health condition, but also to care for family members, like grandparents and grandchildren. The federal FMLA also only provides leave for employers with 50 or more employees. These new state and family paid leave laws are providing leave for much smaller employers.”

    (2) Equal Pay Legislation Ramps Up

    Pay equality is on the march. Continuing a trend that began in 2016, we saw a lot of activity this year around equal pay. Approximately 100 bills were introduced this year, in more than 40 jurisdictions. Most legislation centered around three major actions: expanding existing equal pay regulations, banning questions about salary history, and increasing transparency around pay. The trend is likely to continue next year, including on the federal level, where the Equal Employment Opportunity Commission (EEOC) has made “Ensuring Equal Pay for All Workers” one of its top six priorities moving forward.

    (3) Workplace Sexual Harassment in the Current Climate

    Sexual harassment scandals in the entertainment, news, and political spheres were at the forefront this year, and the “#MeToo” movement made clear just how universal the problem is. Employers that fail to take affirmative steps to prevent harassing behavior or respond to allegations of harassment risk exposure to EEOC charges or litigation. Recent studies indicate that less than a quarter of employers have reevaluated the risks of sexism or harassing behavior in light of recent revelations in the media, but we expect those numbers to grow in 2018.

    (4) Cybersecurity Evaluation

    There are increasing threats to cybersecurity. The year 2017 brought us the Equifax security breach, one of the worst data thefts in history. Data security has never been more important, or challenging, to address. Some vulnerabilities that employers should consider are the lack of stringent remote access management, a failure to regularly assess risks, and the absence of an insider threat program, since most data breaches come from employees or trusted third parties.

    (5) Big Changes for Wage & Hour

    Labor Secretary Acosta has withdrawn the joint-employer and independent contractor guidance and has announced a return to the practice of issuing opinion letters. The Department of Labor was enjoined from enforcing new regulations more than doubling the minimum salary for white-collar overtime exemptions before the regulations were finally withdrawn. Acosta has also proposed rescinding some limitations on tip pooling. And the stage is set for even more changes in 2018. Paul DeCamp, from Epstein Becker Green, tells us what we’re likely to see in the coming months:

    “In 2018, I think employers are going to get some answers to a number of the questions that were raised in 2017. We're going to see a decision from the Supreme Court on the enforceability of these class waivers in arbitration agreements. We will get clarity, almost certainly, on the issue of what will be the salary threshold for the executive, administrative, and professional exemptions, and then we're also going to see where exactly is the Department of Labor going in its enforcement policy, in terms of how it handles investigations, imposes penalties, seeks liquidated damages, and that sort of thing. So we're going to see more guidance about where the Department will be in its enforcement.”

    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. 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.

    This is an extended interview from Employment Law This Week® (Episode 97: Week of December 11, 2017), an online series by Epstein Becker Green. youtu.be/zC_K_IGRzro

    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® 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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