Last week, the Department of Labor issued an opinion letter finding that that at least some gig-economy workers can be properly classified as independent contractors — not employees — and thus are not covered by the federal Fair Labor Standards Act (FLSA). This opinion letter is in stark contrast to the DOL’s prior position and to other decisions regarding the proper classification of gig-workers. You can read more about the Department of Labor’s recent opinion letter here.
The Department of Justice has reversed its previous stance and is now taking the position that the Affordable Care Act (ACA) is unconstitutional and should be struck down. The future of the ACA — including the provisions that impact employers — is likely to be heard by the U.S. Supreme Court. Read more about this decision here. For now, though, employers must continue to comply with the ACA.
Last week, Facebook agreed to withhold a wide array of detailed demographic information — including gender, age and zip codes (which are often used to determine race) from advertisers when they market, among other things, job opportunities. You can read more about Facebook’s move here.
Although these claims involve Facebook, employers advertising job opportunities on other online platforms should be careful not to target employment ads to specific demographics that could be seen as discriminatory.
For years, academics have debated the impact of post-employment non-competes on the economy and workforce. Apparently taking interest in this issue, earlier this month a bipartisan group of United States Senators, including Senator Marco Rubio of Florida, wrote to the United States Government Accountability Office asking it to review and report on non-competes, including how prevalent they are, how they’re used in low-wage fields, the impact of the workforce and economy (including innovation), and actions states have taken to limit the use of non-competes. A copy of the letter can be found here.
Non-competes, non-solicits and similar agreements continue to be viewed with great scrutiny. It is important to review these types of agreements frequently to comport with changing legal standards.
The Department of Labor has (finally) issued its new proposed overtime rule — which sets the minimum salary for an employee to be eligible for the white collar exemptions at $35,308. You can read more about this development here. This is significantly higher than the $23,660 that is currently in place but much lower than the $47,476 that the Obama administration tried to implement in 2016.
It’s important to remember that salary is only the first step in the analysis. Even if an employee is paid a salary over the minimum, the employer still needs to establish that the employee satisfies the job duties requirements to be classified as exempt.
It was less than a year ago that the Supreme Court ruled that employees could be required to individually arbitrate claims (and waive their right to participate in a class action), but arbitration agreements aren’t a silver bullet. In fact, some employers are responding to local legislation and employee resistance by pulling back from arbitration requirements.
Just last week, Google responded to employee protests and announced that it would no longer require its workers to arbitrate employment related claims. Read more about Google’s decision here.
Whether or not employee arbitration agreements make sense is a very company-specific decision. Think carefully about what you’re trying to accomplish with these agreements and talk to your legal counsel about the risks and benefits.
Last week a federal appellate court found that rumors about a female employee “sleeping her way to the top” could create a hostile work environment based on gender. You can read more about the decision here.
Many are viewing this case as another instance of #Metoo impacting the workplace. If you haven’t recently conducted anti-harassment training, now is the time to get it on the calendar!