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March 16, 2018
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Topics Employment

A previous blog post discussed sexual harassment in the workplace. This post discusses steps that an employer can take to avoid liability for sexual harassment, or at least minimize legal exposure.

1. Have a Sexual Harassment Policy

An employer should have a clearly articulated sexual harassment policy that:

  • expressly prohibits sexual harassment in the workplace;
  • defines and provides examples of sexual harassment;
  • establishes the scope of the policy in relation to employees and third parties; and
  • establishes a complaint procedure for victims or observers of sexual harassment. 

Just as many employers are heading into the 2018 summer-intern recruitment season, the U.S. Department of Labor (“DOL”) announced that it has abandoned the rigid six-factor test in use since 2010 to determine whether interns of for-profit entities must be treated as paid employees.  Under the DOL’s previous six-factor test, an intern was deemed to be an employee unless all six-factors were met, increasing the likelihood that an employer would end up having to pay its interns a minimum wage and overtime under the Fair Labor Standards Act (“FLSA”).

On January 12, 2018, Maryland became the latest state to require employers to provide paid sick leave to employees, when the Maryland General Assembly overrode Governor Larry Hogan’s veto of the bill last year. The bill - known as the Healthy Working Families Act - will become law on February 11, 2018, unless the General Assembly acts to delay its implementation.

Recently, the #MeToo movement has cast a spotlight on sexual harassment in the workplace. Despite the media focus on sexual harassment, there still seems to be a fair amount of confusion about what is and is not sexual harassment.

Simply put, sexual harassment is harassment based on an individual’s sex. For legal purposes, sexual harassment includes unwelcome sexual advances, requests for sexual favors, and other verbal, written or physical conduct of a sexual nature that:

  1. affects an individual’s employment,
  2. unreasonably interferes with an individual’s work performance, or
  3. creates an intimidating, hostile, or offensive working environment.
December 4, 2017
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Topics Employment

In October 2017, California became the latest in a growing list of states and localities to ban employers from asking job applicants about their salary histories, a list that includes: Massachusetts, Delaware, Oregon, Puerto Rico, San Francisco, Philadelphia and New York City. Similar legislation is currently under consideration in other states, including: Virginia, Maryland, New York, Rhode Island and Texas.

The new law expands California’s already existing equal pay provisions, which mandate equal pay, without regard to gender, for substantially similar work. Under the new law, an employer may not make an oral or written request of a job seeker for salary history information, either directly or through a third party agent. Nor may an employer use a job applicant’s prior salary history “as a factor in determining whether to offer employment to an applicant or what salary to offer an applicant.” The term “salary history” also includes employee benefits.

September 25, 2017
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Minimum Wage Rate Increases

Last week, the Office of Federal Contract Compliance Programs (OFCCP) announced an increase in the minimum wage applicable to federal contractors for contracts that are covered by Executive Order 13658.  Effective January 1, 2018, the new hourly minimum wage rate will be $10.35, up from the current hourly rate of $10.20. The minimum hourly wage rate for tipped employees will increase to $7.25.

July 24, 2017
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Topics Employment

The U.S. Citizenship and Immigration Service (“USCIS”) announced on July 17, 2017 that it has released a newly revised Form I-9 Employment Eligibility Verification Form.  Federal law requires all employers to complete a Form I-9 for each individual hired for employment in the United States. 

Employers can begin using the revised version of the Form I-9 now, or continue to use the previous version of the form (11/14/16 rev. date).  However, as of September 18, 2017, only the new Form I-9 will be acceptable.

For employers in the District of Columbia and Montgomery County, Maryland, the cost of doing business just got more expensive.  Effective July 1, 2017, the hourly minimum wage rate in the District of Columbia increased a dollar to $12.50, while in Montgomery County, Maryland, the minimum hourly wage rate went up to $11.50. 

Virginia’s minimum hourly wage remains at $7.25, which mirrors the current federal hourly wage rate under the Fair Labor Standards Act (“FLSA”). In jurisdictions like D.C. and Montgomery County, which mandate a higher hourly minimum wage, employers must comply with the state- or locally-established minimum wage rate because it is more favorable to the employee than the FLSA hourly minimum.

In today’s global economy, it has become increasingly common for companies based in the United States to engage workers who live abroad for various purposes. U.S. companies often classify these workers as “independent contractors” to avoid having to navigate the employment landscape in other countries. However, U.S. companies should be aware of the potential pitfalls of misclassifying foreign workers, particularly in countries where employment laws tend to be more employee-friendly than U.S. law. Employers should consider the following factors when engaging foreign independent contractors to work abroad.

Like it or not, Donald Trump is the 45th President of the United States of America.  Now that the initial shock has worn off, it’s time to evaluate how federal employment laws, regulations, and enforcement may shift under the Trump Administration. 

While President Trump has not spoken at length regarding employment law since taking office, his pro-business philosophy and nomination of Andrew F. Puzder, a former restaurant executive, for Secretary of Labor (Puzder later withdrew his name from consideration) suggests that the Trump Administration will be significantly more employer-friendly than the Obama Administration