Restrictions on Employee Communication Could Lead to Unfair Labor Practice Charges

By former Associate Jack Blum

Employer Takeaway: Employment handbook provisions restricting the content or method of employees’ communications with co-workers about their employment may constitute an unfair labor practice. Employers should review these policies to ensure that they cannot be interpreted as restricting the ability of employees to discuss the terms and conditions of employment. Any restrictive provisions should be connected to a business justification and be tailored to address that justification.

D.C. Prohibits Pre-Employment Drug Testing for Marijuana

By former Associate Jack Blum

Employer Summary: Under a new law, employers hiring in D.C. may not test applicants for marijuana usage until after the applicant receives a conditional offer of employment for the position.  Along with D.C.’s recent “ban the box” law on criminal background checks, this new enactment may require employers to adjust their application and hiring processes.

Use of Independent Contractors May Be a High Risk Choice if DOL Gets its Way

On July 16, 2015, the U.S. Department of Labor (DOL) Wage & Hour Division Administrator issued “Administrator’s Interpretation 2015-1” (AI) on the application of the Fair Labor Standards Act (FLSA) for identification of workers who are misclassified as independent contractors.  By flatly stating that most workers qualify as employees under the FLSA, this new AI could cause significant misclassification problems for employers, leading to more DOL investigations and enforcement actions and increased private litigation.  Already, commentators are disagreeing about whether the AI restates an existing precedent or breaks new ground.  It is clear, however, that the AI is a one-sided review of the law.  While it remains to be seen how courts will interpret this AI, its very issuance is a strong wake up call for employers who use independent contractors, as undoubtedly more DOL enforcement and private litigation will be on the horizon.

U.S. DOL Proposes Changes to Overtime Rules, Increasing the Number of U.S. Workers who will be Eligible for Overtime.

By Ethan L. Don, Associate

Take Away:  On June 30, 2015, the Department of Labor (DOL) issued a Proposed Rule and Request for Comment addressing some of the most commonly relied on white collar exemptions from the Fair Labor Standards Act (FLSA) overtime pay requirements.  The DOL has proposed to raise the amount of salary a salaried employee needs to be paid to qualify as an exempt employee.  DOL also proposes to raise the salary threshold from its current $100,000 in order to qualify as a highly-compensated employee, exempt from overtime.  The proposed regulations would, for the first time, also make automatic annual increases in both thresholds without the need for new rulemaking. The DOL is also considering and soliciting comments regarding revisions to the duties tests for the white collar exemptions (executive, administrative, professional, computing and outside sales positions).

Montgomery County Employers Required to Provide Employees Paid Sick Leave

By: Jessica Summers, Paley Rothman Associate 

On Tuesday, June 23, 2015, Montgomery County joined the growing number of jurisdictions (including the District of Columbia) that require employers to provide employees with paid sick leave.

Bill 60-14 (the “Earned Sick and Safe Leave Act”), which was passed unanimously by the Montgomery County Council, will require virtually every employer in the County to provide paid sick leave to employees working in the County. This law, which will go into effect on October 1, 2016, will require many employers in the County to adjust their policies, processes, and potentially their budgets, to provide for the additional leave.

Supreme Court Sets Standard for Religious Discrimination Claims

On June 1, 2015, the U.S. Supreme Court ruled in the case of Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc. , resolving the question of whether an applicant must demonstrate that a prospective employer had actual knowledge of his or her need for a religious accommodation in order to sustain a claim of religious discrimination. In an 8 to 1 decision authored by Justice Scalia, the Court ruled that a job applicant can establish a disparate treatment claim of religious discrimination by showing that the applicant’s need for a religious accommodation was the motivating factor behind the employer’s decision not to hire him or her. The Court made it clear that an applicant is not required to show that the prospective employer had actual knowledge of his or her need for a religious accommodation.

Important new developments for MD state government contractors

Businesses engaged in government contracting in Maryland are often focused on federal regulations, but many businesses also contract with the state government. It is important to keep abreast of recent developments affecting government contracts with the State of Maryland or any of its agencies. Two such developments, in particular, are worth noting.

Fourth Circuit Refines Analysis of Retaliation for Reporting Isolated Incidents of Harassment

By Ethan L. Don

Take Away:  The Fourth Circuit, en banc, has drawn a clear(er) line by which to determine when an employee’s complaint of an isolated incident of harassment is protected from retaliation, holding that an employee will have an objectively reasonable belief that a hostile working environment is occurring if the harassment is physically threatening or humiliating.  Reporting an isolated incident of harassment which meets this standard will constitute engaging in a protected activity and entitle the employee to protection from retaliation. 

Supreme Court Holds that EEOC's Pre-Discrimination Suit Obligations are Subject to Limited Judicial Review

On April 29, 2015, in the case of Mach Mining, LLC v. Equal Employment Opportunity Commission  (EEOC), the Supreme Court resolved the question of whether the EEOC’s pre-discrimination suit actions, specifically the statutory requirement that the EEOC attempt conciliation before filing suit, are subject to judicial review.  In a unanimous decision authored by Justice Kagan, the Court held that, while the EEOC does have broad discretion as to how it pursues conciliation, courts do have the authority to review and enforce the EEOC’s statutory obligations to engage in this process.

EEOC Proposes Rules on Wellness Programs

On April 16, 2015, the EEOC issued its long awaited, and much anticipated, proposed rules on wellness programs as they relate to the requirements and restrictions of the Americans with Disabilities Act (ADA).  Once finalized, these rules will be the critical guide for employers on how they can sponsor a wellness program without running the risk of liability for violating the ADA.  

Supreme Court Articulates Standard For Assessing Pregnancy Discrimination Claims

On Wednesday (March 25, 2015), the U.S. Supreme Court announced its decision in the closely watched pregnancy discrimination case of Young v. United Parcel Service.  Rejecting both the employer’s and employee’s statutory interpretations of the Pregnancy Discrimination Act (PDA), the Supreme Court announced a middle-ground standard for assessing pregnancy discrimination cases and remanded the case to the Fourth Circuit to apply this standard.

Potential Law Changes in Store for Virginia Employers

The Virginia General Assembly’s 2015 Session convened on January 14, 2015 and will run through February 28, 2015.  During this session the House and Senate have been considering a number of bills that, if enacted, could have important implications for Virginia employers.  As you can see, the prognosis for many of these bills are uncertain, however, it is important for employers to be aware of what types of issues the Assembly is considering this year.

Sick Leave, Other Employment Legislation Pending in Montgomery County, MD

Montgomery County, Maryland is among a growing number of local jurisdictions across the country seeking to fill perceived gaps in protections for employees where federal or state legislators are gridlocked and unable to do so.  Currently pending before the County Council is Bill 60-14, Earned Sick and Safe Leave Act, as well as Bill 59-14  to accelerate phased in minimum wage increases in Montgomery County.   Both bills are likely to pass and employers should be working with their payroll processing departments and vendors now to prepare for the changes.