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11.20.2024Not So Fast - Texas Court Derails DOL Rule Expanding Eligibility for Overtime PayOn November 15, a U.S. District Court in Texas put the brakes on the Department of Labor’s April 2024 Rule designed to make more employees eligible for overtime pay under the Fair Labor Standards Act. State of Texas v. United States Department of Labor; Plano Chamber of Commerce v. United States Department of Labor.
10.24.2024FTC Rule On Non-Competes Is Bruised But Not Yet Beaten As FTC Appeals, While NLRB Continues To Challenge Non-CompetesIn April 2024, the FTC issued a Rule declaring invalid most existing non-compete agreements and prohibiting most employers from entering into new non-compete agreements after September 3, 2024, with few exceptions. Three lawsuits were filed challenging the FTC Rule - - two in Texas and one in Philadelphia. The Philadelphia lawsuit resulted in the court’s denying a motion to stay enforcement of the Rule on July 23, 2024. Judge Hodge then set a deadline of September 20, 2024 for the plaintiff, ATS Tree Service, to file a motion for summary judgment, a deadline that was extended twice. On October 4, ATS withdrew its Complaint, thereby ending this challenge and any right to appeal.
07.09.2024Chevron’s Passing Likely to Reshape Labor and Employment Law as SCOTUS Questions Presumption of Agency Subject Matter ExpertiseOn June 28, 2024 the Supreme Court overruled the 40-year-old landmark ruling known as Chevron, a doctrine of administrative law that has until now required courts to defer to federal agencies’ interpretations of ambiguous statutory language. By doing so, the Court has created opportunities for court challenges to agency regulations including those issued by federal labor law and equal employment law agencies.
06.25.2024SCOTUS Requires NLRB to Meet Traditional Standards for Preliminary Injunctive Relief On June 13 the U.S. Supreme Court heightened the standard a court must apply to an NLRB request for a preliminary injunction against an employer accused of violating federal labor law. In resolving a circuit split in which courts applied different tests in determining when to grant preliminary injunctive relief, the Court held that district courts should apply the traditional, four-pronged test in determining whether to grant a preliminary injunction under Section 10(j) of the National Labor Relations Act (Act). Starbucks Corp. v. McKinney.
05.13.2024FTC’s Final Rule on Non-Competes May Not be the Final WordIn a controversial move, on April 24, 2024 the Federal Trade Commission (“FTC”) announced that beginning September 4, 2024, it will enforce its Final Rule banning most non-compete agreements that seek to limit a worker’s ability to change jobs. The Rule also requires employers to notify those workers who have non-compete agreements that are nullified by the Rule that these agreements are no longer enforceable once the Rule takes effect; written notices must be sent no later than September 4, 2024. The exceptions to the FTC Rule are few, and extend to non-compete agreements (i) entered into with a business’s senior executives before September 4, 2024, (ii) entered into between a buyer and a seller as part of a bona fide sale of a business, or (iii) that are part of a franchisee-franchisor relationship.
03.01.2024H-1B Lottery Process Begins On March 6thOn Wednesday, March 6, 2024, USCIS will open its H-1B cap registration process for fiscal year 2025, informally known as the H-1B Lottery. Since 2020, USCIS has implemented an electronic registration system that requires the sponsoring employer to complete a few information forms and pay a registration fee. For the past three years, the registration fee was $10. For 2024, the registration fee increases to $215 for each visa beneficiary.
01.24.2024USDOL Wage-Hour Division Final Rule on Independent Contractor Status Reverts to Pre-Trump Rule and Rejects “Core Factor” TestOn January 9, 2024 the U.S. Department of Labor (DOL) released a final rule that will apply beginning March 11, 2024 in determining whether a worker can be classified as an independent contractor as opposed to an employee under the Fair Labor Standards Act (FLSA). The 2024 Rule modifies Wage and Hour Division regulations by adopting an analysis that the agency claims is more consistent with judicial precedent and the FLSA’s text and purpose than the final rule issued by the agency during the final days of the Trump Administration (2021 Rule).
08.31.2023Risk of Cemex Bargaining Order Raises Stakes for Employers that Commit Serious Unfair Labor Practices During Union CampaignsExpressing palpable frustration with an employer that committed many unfair labor practice charges after a union filed an election petition, and acknowledging the lack of serious disincentives to engage in unlawful behavior opposing a union campaign, on August 25, 2023, the NLRB issued a new set of rules that will apply immediately to many employers and unions locked in a unionizing campaign. The major change is that the Board has determined that it has the power to impose a bargaining order on an employer that engages in serious unfair labor practice charges during an organizing campaign despite the union’s losing a Board-supervised election and without entertaining the remedy of a re-run election.
08.10.2023NLRB Applies a Shifting Burdens Analysis in Reviewing Employer Work Rules; Boeing OverruledOn August 2, 2023, the NLRB further limited employers’ flexibility in designing work rules by holding that all work rules will be reviewed on a case-by-case basis, and no work rules will get an automatic pass. The Board’s 3-1 decision in Stericycle Inc. holds that once the NLRB General Counsel proves that a work rule could chill employees’ exercise of Section 7 rights, there is a presumption that the rule is unlawful, which the employer can rebut only with proof that the work rule serves a lawful business interest, the rule advances the lawful interest, and a more narrowly tailored rule would not advance the interest.
08.08.2023NJDOL Issues Proposed Regulations Implementing N.J. Temporary Workers Bill of Rights ActOn July 21, 2023 the N.J. Department of Labor and Workforce Development (Department) issued long-awaited guidance regarding the Temporary Workers Bill of Rights Act. Certain provisions of the Act took effect on August 5, 2023. These regulations address Sections 1 through 7, and Section 10 of the Act only and are not technically binding on employers and temporary help service firms (THSFs) now since they are in their proposed form and the Department is accepting public comments through October 20; however, they provide additional guidance for employers and THSFs who are trying to comply with the provisions of the Act.
08.03.2023Entrepreneurial Opportunity Takes A Back Seat In Revised NLRB Test Of Employee Versus Independent Contractor StatusOn June 13, 2023, in a 3-1 decision, the NLRB overruled its own 2019 decision in SuperShuttle DFW and returned to the test of statutory employee status in its 2014 FedEx II decision which it terms carefully calibrated. In doing so, the Board held that the Atlanta Opera’s makeup artists, wig artists, hairstylists, and others who worked at the Opera only when operatic productions were staged are employees within the meaning of the National Labor Relations Act, and not independent contractors. The Atlanta Opera, Inc. The NLRB refused to apply the U.S. Court of Appeals 2009 ruling in FedEx I which held that entrepreneurial opportunity is an animating principle of the independent contractor test and accused the Court of misperceiving Board law. The Board decision in Atlanta Opera leaves no doubt that entrepreneurial opportunity is not a super-factor in the analysis of employee status, and is only one factor to be considered in analyzing independent contractor versus employee status. The NLRB held that its prior SuperShuttle DFW holding is no longer the law since it conflicts with common law agency principles, and U.S. Supreme Court and NLRB precedent.
06.01.2023Non-Competes with Rank and File Employees Targeted by NLRB Challenges to non-competes by the federal government continue unabated under the Biden Administration. In the latest effort by the federal government to curtail the use of non-competes, which are traditionally governed by state law, on May 30, 2023, Jennifer A. Abruzzo, Esq., General Counsel of the NLRB, issued a memorandum attacking non-compete agreements as violative of the National Labor Relations Act (“Act”).
09.16.2021Third Circuit Upholds Arbitrator’s Imposition of Parent Company Liability for Pension Withdrawal LiabilityOn August 26, 2021, the Third Circuit confirmed that a corporation remained on the hook for the pension withdrawal liability of its bankrupt subsidiary despite diluting its ownership interest in the subsidiary below 80%, to avoid controlled group liability. The decision is an example of a court’s power under ERISA Section 4212(c) to disregard a transaction when it finds that the transaction’s principal purpose is avoiding pension withdrawal liability.
07.09.2021New Jersey Enacts Higher Penalties for Employee MisclassificationOn July 8, 2021, Governor Phil Murphy signed three bills into law that continue to raise the stakes for employers that misclassify employees as independent contractors. With these changes, businesses that operate in New Jersey and misclassify employees can expect to pay stiffer fines and face legal enforcement actions that did not exist before.
07.07.2021Trenton Okays State And Local Government Use Of Project Labor Agreements On Public Works ProjectsFor many years construction contractors that bid on public works projects have had to contend with complying with prevailing wage and benefit, apprenticeship program, certified payroll, and Labor Commissioner registration requirements. Now add to these requirements the risk that a bidding contractor must sign onto a project labor agreement as a condition to performing on a medium or large sized public works project.
On April 30, 2021, Governor Murphy signed Bill S.3414/A.5378 into law, which took effect immediately and allows state, county and municipal governments and agencies, including school districts, to require public works projects they fund to be subject to a project labor agreement (“PLA Law”).
09.29.2020Federal Court in Manhattan Vacates Key Part of USDOL’S Final Rule on Joint Employer StatusOn September 8, 2020 U.S. District Court Judge Gregory H. Woods in Manhattan granted partial summary judgment to 17 states and the District of Columbia striking down a major part of the Department of Labor’s Final Rule on vertical joint employer relationships.
09.21.2020NJ Supreme Court Enforces Arbitration Agreement Despite Failure to Specify Forum, Arbitrator, & Governing Law On September 11, 2020, in a unanimous decision, the New Jersey Supreme Court found that New Jersey law does not require that an arbitration agreement identify the arbitrator, name the arbitral forum, describe the arbitrator selection process, or provide for the governing law, so long as the agreement to arbitrate includes a clear and unmistakable waiver of the right to a jury or other civil trial of the claims.
09.01.2020Federal Court Judge Block Blocks Temporarily HHS’s Enforcement of Revised ACA Anti-Sex Discrimination Rules, Restores ACA Protections for LGBTQ Individuals On August 17, 2020 the U.S. District Court for the Eastern District of N.Y. preliminarily enjoined the U.S. Department of Health and Human Services (“HHS”) from enforcing provisions of its June 2020 final Section 1557 regulations (“2020 Rules”) which were slated to take effect the next day. The 2020 Rules, in part, interpret the Affordable Care Act’s prohibition of sex discrimination as excluding discrimination based on gender identity and sex stereotyping, which is contrary to the interpretation under the Obama-era rule.
07.21.2020New Jersey Arbitration Act Rushes in and Orders Arbitration Where FAA Fears to TreadIn a July 14, 2020 decision the Supreme Court of New Jersey held that the New Jersey Arbitration Act (NJAA) may apply to arbitration agreements even if the parties are subject to the Federal Arbitration Act (FAA) exemption for transportation workers engaged in interstate commerce.
06.18.2020USDOL Approves Use of Electronic Disclosures by Retirement Plan Administrators On May 21, 2020 the U.S. Department of Labor (“DOL”) issued a new rule creating a voluntary safe harbor for retirement plan administrators who prefer to provide ERISA-mandated retirement plan information and disclosures to participants and beneficiaries electronically, as the default method (“Electronic Disclosure Rule”).
04.02.2020Hudson Yards Decision Boosts Non-Union ConstructionIn a positive development for non-union contractors, a federal judge has reaffirmed the traditional defenses available to employers that face claims they are running unlawful double-breasted operations.
02.19.2020Are You Prepared for the New Registration and Application Deadlines for H-1B Visa Petitions? The Trump Administration’s goal to move the H-1B visa application and lottery process to the Internet is being implemented now. The following are the government-imposed deadlines employers face to ensure that their H-1B visa applications are timely received and reviewed by the U.S. Customs and Immigration Service. These deadlines apply only to employers that are subject to the annual visa caps, and not to cap-exempt employers such as colleges, universities, non-profits associated with colleges and universities, and non-profit research or government organizations.
01.21.2020Uncertain Fate of Affordable Care Act and 2017 Rules Creating New Exemptions to ACA’s Contraception Coverage Requirements; New Jersey’s ResponseOn December 18, 2019 the U.S. Court of Appeals for the Fifth Circuit, in a 2-1 decision which the court revised on January 9, declared the Affordable Care Act’s (ACA’s) individual health insurance mandate unconstitutional as a result of Congress’ elimination of the mandate’s financial penalty in the Tax Cuts and Jobs Act of 2017 (“TCJA”), but declined to invalidate ACA in its entirety and sent the case back to the district court to decide the issue.
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