NLRB Joint Employer Whiplash

Executive Summary: The National Labor Relations Board (“NLRB” or “Board”) has vacated its decision in Hy-Brand Industrial Contractors, Ltd., (“Hy-Brand”), thereby reinstating the joint employer standard created by the Obama Board in the Browning-Ferris Industries of California, Inc. (“BFI”) decision. The Board’s reversal was due to an apparent conflict of interest created by Board Member William Emanuel’s participation in the Hy-Brand decision.

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Sixth Circuit Holds Telecommuting May Be Reasonable Accommodation

Executive Summary: On February 21, 2018, the Sixth Circuit Court of Appeals held an attorney could perform the essential functions of her job while working remotely for a ten-week period. As a result, when the employer refused to permit the employee’s telecommuting request for the finite period, the employer failed to accommodate the employee in violation of the Americans with Disabilities Act, according to the court.

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Second Circuit Finds Title VII Prohibits Discrimination Based on Sexual Orientation

Executive Summary: Overruling prior circuit precedent, the full U.S. Court of Appeals for the Second Circuit held today that sexual orientation discrimination is a subset of sex discrimination under Title VII. In reaching this conclusion, the Second Circuit joins the Seventh Circuit, deepening a split among the federal appeals courts, as the majority of these courts have held that Title VII does not prohibit sexual orientation discrimination.

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Risky Wager – the Hidden Liability of March Madness Office Pools

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Executive Summary: March Madness, the NCAA Division 1 college basketball tournament, is rapidly approaching. Second in betting popularity only to the Super Bowl, some have predicted as much as $3 billion will be bet on workplace bracket pools during March Madness this year. March Madness, Super Bowl, and Fantasy Football pools have become ingrained in the American workplace and seem harmless to many; however, permitting such activities creates a wide range of risks for employers, from productivity loss to discrimination and disability issues and even criminal penalties. Online gambling can also create headaches for employers and IT departments. Before turning a blind eye or participating in the pool, here are a few risks with which employers should become familiar.

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New Template Makes It Easier for Employers to Provide Notice Under California’s Immigrant Worker Protection Act

Executive Summary: In a development welcomed by employers state-wide, the California Labor Commissioners Office released a template notice form for California’s recently enacted Immigrant Worker Protection Act well in advance of the July 1, 2018, deadline imposed by the law. The template provides employers with an approved and straight-forward option to provide required notice to employees of immigration enforcement efforts in the workplace, as required by the law.

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Is the New Employer Tax Credit for You?

Under the Internal Revenue Code of 1986, as amended (the “Code”), businesses are entitled to a general business credit which is made up of several component credits, including the Work Opportunity Credit, the Indian Employment Credit, credits for employing and housing employees affected by Hurricane Katrina, and a number of others. The recently-enacted Tax Cuts and Jobs Act (“TCJA” or the “Act”) added a new component credit for businesses that qualify – the Paid Family and Medical Leave Credit (“FML Credit”).[1] This new credit entitles an eligible employer to a credit equal to anywhere from 12.5-25% of the wages that it pays to “qualifying employees” who are on covered leave, provided that employees are entitled to receive – and do receive – not less than 50% of their regular wages for their hours on covered leave. For this purpose, a “qualifying employee” is any employee (within the meaning of the Fair Labor Standards Act) who has been employed by the employer for at least 12 months and who, in the preceding year, received compensation not in excess of 60 percent of the amount applicable for such year under section 414(q)(1)(B)(i) of the Code (part of the definition of “highly compensated employee” for purposes of employee benefit plans); the applicable amount for 2017 was $120,000, so “qualifying employees” for 2018 cannot have earned more than $72,000 (i.e, $120,000 x .60) in 2017.

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Be My Valentine! – BUT First Please Review and Sign Below

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Executive Summary: This Valentine’s Day, employers across industries are reevaluating their workplace dating and sexual harassment policies. Various surveys show that 40 percent of workers date or have dated co-workers. With the recent surge in sexual harassment allegations, evolution of the #MeToo movement, and ongoing legislative reform, it is crucial that employers remain proactive in setting boundaries around interoffice relationships. Employers can minimize liability associated with interoffice relationships by establishing clear policies, providing annual training for employees and managers, improving procedures to report sexual harassment complaints, and monitoring developments in relevant legislation and case law.

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