The days of the “one size fits all” job application may soon be coming to an end. As federal, state, and local governments increasingly heighten employer hiring process requirements, national employers must be diligent to avoid getting tripped up by the varying rules across different locations. This post will discuss three hiring requirements that are increasingly leaving companies exposed to risk.
Shaun Cassin is an associate in the Houston office and is a member of the Labor & Employment Practice Group. Mr. Cassin represents management in all aspects of labor and employment law, including employment litigation and counseling. His experience includes defending employers in cases involving employment discrimination, wage and hour, and other employee related claims.
U.S. Secretary of Labor Alexander Acosta announced in a June 7, 2017 press release that the U.S. Department of Labor (DOL) has withdrawn two of its recent administrator’s interpretations. One of the administrator’s interpretations, issued in 2015, focused on the misclassification of employees as independent contractors under the Fair Labor Standards Act (FLSA) and indicated that the DOL would be more closely scrutinizing independent contractor classifications. The other administrator’s interpretation, issued in 2016, examined joint employment relationships under the FLSA. Both interpretations were widely considered to be an attempt by the DOL to expand the coverage and enforcement of the FLSA. The withdrawal of the guidance documents likely indicates a shift in enforcement focus of the DOL under the Trump administration.
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After a contentious confirmation process, on April 7, 2017, the Senate confirmed Tenth Circuit Judge Neil Gorsuch to fill the Supreme Court seat that has been vacant since the death of Justice Antonin Scalia in February 2016. On April 10, 2017, Gorsuch, a former clerk of current Justice Anthony Kennedy, was sworn in by Kennedy. Now that Gorsuch has taken his oath, he is ready to participate in the Supreme Court’s next round of oral arguments, which are set to begin on April 17. Continue Reading Neil Gorsuch Fills Vacant Supreme Court Seat
After the NLRB’s aggressive pro-union stance during President Obama’s term, the Board is poised for change under President Trump. On January 23, 2017, President Trump named Philip A. Miscimarra—the sole Republican of three current Board Members—Acting Chairman of the Board. Further, as the Board traditionally has five Members, President Trump will nominate two Members to fill the current vacancies. Assuming President Trump nominates two Republicans as expected, the Board will have a Republican majority for the first time in over nine years. Although it is unclear how far the Board will shift from its recent pro-union stance, three key decisions could be overturned by a Republican-controlled Board. Continue Reading Is a More Business-Friendly NLRB Coming? What it Could Mean for Employers
As discussed in a prior post, the Department of Labor’s new overtime regulations increase the weekly minimum salary threshold an employee must be paid to maintain exempt status under the FLSA’s “white collar” exemptions. The Final Rule, which becomes effective December 1, 2016, could affect up to 4.2 million employees according to DOL estimates. But an employer hoping to classify its employees as exempt need not meet the new threshold entirely through base salary. Instead, the new regulations allow employers to use bonuses, commissions, and incentive payments to satisfy up to 10% of the minimum salary threshold.
On August 1, 2016, the U.S. Department of Labor and Doctors Associates Inc. (Subway Restaurants) announced a voluntary agreement formalizing their ongoing collaboration. This agreement is a first of its kind and seeks to ensure that franchise owners have the tools necessary to comply with wage and hour laws. Since 2012, Subway has made available a platform for the DOL to provide training and resources to franchisees. Despite the DOL’s efforts, other companies have reportedly been reluctant to enter into similar agreements due to fears that other government agencies will use such an agreement as evidence of a joint employer relationship. Interestingly, Subway has been collaborating with the DOL for over three years and although this collaboration has been very much in the public eye, no agency has indicated that such a relationship would make them a joint employer. The DOL hopes the fact that Subway, the world’s largest franchisor, entered into the compliance agreement will encourage other companies to follow suit. Given the various government agencies’ joint employer efforts, all companies, whether franchisors or not, should analyze their own specific circumstances before entering into a similar agreement. Continue Reading Does Subway’s Compliance Agreement with the DOL Really Raise Joint Employer Concerns?
On May 18, 2016, the Department of Labor finalized its highly anticipated overtime rule that updates the Fair Labor Standards Act’s “white collar” exemptions (including the executive, administrative, and professional exemptions) and the highly compensated employee exemption. Most notably, the Final Rule significantly increases the minimum salary an employee must earn to qualify for these exemptions. With an effective date of December 1, 2016, companies must understand the new Final Rule and take the appropriate steps to comply. Continue Reading DOL Issues Final Overtime Rule—Are Your Exempt Employees Still Exempt?
For any Texas companies that have not been paying close attention to the nation-wide trend of “ban-the box” laws, this is your wake up call. On March 24, 2016, the Austin City Council, by an 8-2 vote, approved the Fair Chance Hiring Ordinance, which prevents employers from inquiring about applicants’ criminal backgrounds until after a conditional offer of employment has been made. With this Ordinance, Austin has joined numerous other cities and states (Chicago, New York City, New Jersey, and Massachusetts, to name a few) in restricting private employers’ ability to ask about criminal history. Continue Reading Look Out Texas Employers — “Ban-the-Box” Laws Come to Austin
Do your job applications ask applicants about their criminal history? If so, you could be violating various state laws that prevent employers from inquiring into applicants’ criminal history at the initial stages of the hiring process.
These laws, commonly referred to as “ban-the-box” laws, have recently seen a rapid increase in support across the United States. The increase is largely attributable to the grassroots efforts of numerous organizations that aim to remove hiring barriers for individuals with criminal records. Employers who are caught unaware, or do not comply with these laws, risk exposure to fines and penalties, and being a target for individual and class-action lawsuits.
Think you know whether your workers should be classified as independent contractors? Take a shot at our short quiz to test your knowledge on employee misclassification!