We are living in uncertain and quickly changing times. Most recently, on January 27, 2017, President Trump issued an Executive Order that suspends entry into the US for 90 days of certain aliens from Iraq, Syria, Iran, Libya, Somalia, Sudan and Yemen. For more information, read here. For US multinational employers, this latest Executive Order immediately begs the question: What action must, or should, a US employer take with respect to its mobile workforce, managers and business leaders?
As you know, on Friday, January 27, 2017, President Trump issued an Executive Order (EO) suspending entry into the United States of aliens from Iraq, Syria, Iran, Libya, Somalia, Sudan and Yemen. The suspension will be in place for 90 days and applies to both immigrants and nonimmigrants. Specifically excluded from the EO are foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3 and G-4 visas. The EO also grants authority to the Secretaries of State and Homeland Security to continue issuing visas and other immigration benefits to nationals of otherwise blocked countries, if doing so is deemed to be in the national interest. Such determinations will be made on a case-by-case basis.
On January 13, 2017, the US Supreme Court agreed to determine whether arbitration agreements that include class action waivers are legally enforceable under the National Labor Relations Act (NLRA). In doing so, the Court granted the petitions for certiorari, and consolidated, three cases from the US Court of Appeals for the Fifth, Seventh and Ninth Circuits. While the Fifth Circuit has ruled that class action waivers are enforceable, the Seventh and Ninth Circuits have disagreed and held that class action waivers violate the NLRA. The National Labor Relations Board (NLRB) has also continued to hold that class action waivers violate the NLRA and interfere with employees’ rights to engage in concerted activity. A ruling by the Supreme Court on the issue should resolve the Circuit Court split, provide nationwide guidance, and end the patchwork approach that has been adopted by US employers who utilize arbitration and class waivers. The Supreme Court’s decision is expected before the end of June 2017.
To read more, click here.
Since many Texas companies send employees on international assignment, they should be mindful that the U.S. federal income tax rules don’t apply to everyone in the same way. A case in point is a recent Tax Court Memorandum decision, Qunell v. Commissioner of Internal Revenue. In that case, the Tax Court held that even though the taxpayer was employed in Afghanistan for 16 months, he was not entitled to exclude his income earned in Afghanistan for 2011 from U.S. tax because he was deemed to have a U.S. abode. For those who have only a high-level understanding of the foreign earned income exclusion under Section 911 of the Internal Revenue Code (see previous post here), this result may not be obvious. But the statute is clear that even if a taxpayer otherwise qualifies to exclude foreign earned income under Section 911, that exclusion is not available if the taxpayer has an abode within the United States.
While no one knows exactly how Donald Trump’s election as President will impact labor and employment laws in the country, it is a safe bet that there will be changes. Because Trump was virtually silent on the campaign trail regarding the specifics of any employment law policies, we are left to speculate on any upcoming changes. We provide a brief overview of our best educated guesses on what changes could be in store given the election results. Given Trump’s position on government enforcement and his pro-business stance, there is an expectation of changes to several employment-related laws. Continue Reading What Trump’s Election Means for Employment Laws
As we’ve blogged about before (see here), the Department of Labor published a Final Rule with an effective date of December 1, 2016, which nearly doubled the minimum salary an employee must earn to qualify for a “white collar exemption.” However, on November 22, 2016, a Texas federal court blocked the enactment of the amendments to the federal “white collar” exemptions for executive, administrative, and professional employees that were set to go into effect this week. Notably, the court did not halt the proposed amendments for the highly compensated employee exemption.
You can read the entire Client Alert, which includes details about the court order and actions for employers, here.
On October 20, 2016, the US Department of Justice (DOJ) and Federal Trade Commission (FTC) issued antitrust guidance for human resource (HR) professionals and others involved in hiring and compensation decisions. The guidance warns of criminal prosecution against companies, HR professionals and other individuals, for formal and informal wage-fixing or no-poaching agreements between companies. The agencies also encourage companies, HR professionals and other individuals to quickly report antitrust violations to the DOJ under its Corporate and Individual Leniency Policies.
To learn more about the guidance, click here.
November 8 is shaping up to have one of the largest voter turnouts in history. As such, Texas employers should ensure they comply with election voting laws as they relate to employees. Chapter 276 of the Texas Election Code sets certain requirements for employers. Below are some do’s and don’ts for employers with voting employees: Continue Reading Voting Laws – Do’s and Don’ts for Texas Employers
Internal pay audits are rarely enjoyable. Depending on the scope, these audits can be complex and require detailed analysis. However, in the current legal climate, an internal audit can be extremely valuable and greatly reduce, or even eliminate, potential liability for wage and hour claims as well as pay equity claims. As previously reported on this blog, increased scrutiny into pay equity discrimination, changes in EEO-1 reporting requirements, the Department of Labor’s joint employment efforts, and the updated FLSA exemption rules continue to place companies at greater risk of government audits, fines, and lawsuits.
Many employers may have already reviewed and updated their policies in anticipation of the changes to the “white collar” FLSA exemptions, which go into effect on December 1, 2016. But if your company has not yet done so, or to the extent you have not conducted a more comprehensive internal audit, your company should strongly consider doing so as soon as possible for several reasons. Continue Reading Don’t Wait! Now Is the Time to Conduct an Internal Wage & Hour Audit
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.