Skip to main content

DOL Abandons Longstanding Intern Test in Favor of a More Employer-Friendly Standard

Noting that on December 19, 2017, the US Court of Appeals for the Ninth Circuit became the fourth federal appellate court to expressly reject the US Department of Labor’s (DOL’s) six-part test for determining whether interns and students are employees under the Fair Labor Standards Act (FLSA), the DOL announced on January 5, 2018 that it would adopt the “primary beneficiary” test endorsed by those courts in evaluating internships sponsored by private employers.  

Beware the Risks of Background Checks: Liability Waivers May Violate the Fair Credit Reporting Act

On November 21, 2017, an employee of L3 Technologies Inc., a government contractor, filed a putative class action in federal court in California alleging that the consent form the company provides to new hires and employees prior to conducting a background check runs afoul of the Fair Credit Reporting Act because it also includes a liability waiver.

Trump NLRB Overturns Controversial Employee Handbook Standard

On December 14, 2017, the National Labor Relations Board (NLRB or Board) voted to overturn its 2004 decision in Lutheran Heritage Village-Livonia (Lutheran Heritage), which established a standard for evaluating the legality of employer handbook policies that has been used in recent years to invalidate a wide range of common workplace rules.

New NLRB General Counsel Ready to Shake Things Up

On December 1, 2017, Peter Robb, the new General Counsel of the National Labor Relations Board (NLRB), issued a memorandum entitled “Mandatory Submissions to Advice.”

Facts Matter in Non-Compete Agreements – Even as to Choice of Law and Venue

In a decision with important consequences for employers with national non-compete programs, a Massachusetts Superior Court Judge recently invalidated the Massachusetts choice-of-law and forum-selection provisions of a non-compete agreement between a Massachusetts company and its former, California employee. See Oxford Global Resources, LLC v. Hernandez, No. 1684CV03911-BLS2 (Mass. Super. Ct. June 9, 2017). The court determined that the agreement was adhesory and designed to circumvent California public policy.

Save Me! San Francisco Enacts Salary History Law

Following the lead of other states and cities, on July 19, 2017, San Francisco Mayor Ed Lee signed the “Parity in Pay Ordinance” into law. The Ordinance, which takes effect on July 1, 2018, prohibits San Francisco employers from asking job applicants about their salary history or from considering earnings information in determining whether to hire an applicant and what salary to offer them.

Federal Court Holds Employer’s Attorney Can Be Sued For FLSA Retaliation Over Deportation Effort

In addition to requiring payment of minimum wage and overtime, the federal Fair Labor Standards Act protects employees from retaliation for making a complaint, testifying, or instituting a proceeding “under or related to” the FLSA. A new decision from the US Ninth Circuit Court of Appeals underscores the scope of this protection.

Delaware Becomes the 'First State' to Enforce Ban on Employer Requests for Salary History

On June 14, 2017, Governor John Carney signed a new law that will prevent Delaware employers from requesting the salary history of job applicants. It is designed to narrow the pay gap between men and women. The law currently will be the first state law of its kind to go into effect on December 14, 2017. Although Massachusetts passed a similar law, it does not go into effect until January 2018. Employers cannot be sued under Oregon’s law until January 1, 2019. New York City, Philadelphia, and Puerto Rico have also passed

Retreat: Secretary Of Labor Withdraws Expansive Informal Guidance On Joint Employment And Independent Contractors

With little fanfare or explanation, US Secretary of Labor Alexander Acosta announced on June 7, 2017 the withdrawal of the US Department of Labor’s 2015 and 2016 informal guidance on joint employment and independent contractors. 

The Past Is Not Necessarily Prologue: New York City Bans Probes Into Salary History

Following a recent trend that started in Massachusetts and the City of Philadelphia, New York City has become the latest jurisdiction to ban employers from inquiring about salary history for applicants. Mayor Bill de Blasio signed Intro. 1253 into law on May 4, 2017. The law is designed to prevent pay discrimination against women and people of color.