We're pleased to welcome a new associate attorney in our Lansing office - Ashley Higginson has joined Miller Canfield's Employment and Labor Group. She has experience working in education law, as well as real estate and land use law. She worked with Newark Public Schools and Jersey City Public Schools, assisting with board of education matters, charter and private schools, schools for students with disabilities, and matters involving the Open Public Records Act, FERPA, teacher tenure, and special education and 504 accommodations.

The Department of Labor ("DOL") has formally endorsed a test used by several appellate courts in order to determine if an intern qualifies as an employee under the Fair Labor Standards Act ("FLSA"), resolving the ambiguity between the DOL's enforcement position and the standards applied by the courts when reviewing claims for wages and overtime by individuals classified as interns.

The U.S. Equal Employment Opportunity Commission (EEOC) recently announced that it will launch two new training programs: Leading for Respect (for supervisors) and Respect in the Workplace (for all employees). The EEOC is offering these programs as an alternative to harassment prevention; the training will be conducted by EEOC Training Institute staff.

According to the EEOC, the programs will focus on respect, acceptable workplace conduct, and the types of behaviors that contribute to a respectful and inclusive workplace. The Commission also noted that the programs are customizable for different types of workplaces and include a section for reviewing the employers’ own harassment prevention policies and procedures.

Attorney General Jeff Sessions, in a letter to all U.S. attorneys and the heads of all federal agencies, had advised that while Title VII provides various protections to transgender individuals, it “does not prohibit discrimination based on gender identity per se, including transgender status.” Sessions noted: “The sole issue addressed in this memorandum is what conduct Title VII prohibits by its terms, not what conduct should be prohibited by statute, regulation, or employer action. As a law enforcement agency, the Department of Justice must interpret Title VII as written by Congress.”

William Emanuel was recently approved as a member of the National Labor Relations Board. Emanuel has extensive experience representing employers in various traditional labor issues, such as NLRB matters, collective bargaining, labor arbitration, union election campaigns, strikes, etc.

The higher salary requirements under the Fair Labor Standards Act (FLSA) white collar exemptions that were set to take effect December 1, 2016, have been ruled invalid by a U.S. District Court in Texas. The same court preliminarily enjoined the implementation of these regulations on November 22, 2016. That decision is presently on appeal to the Fifth Circuit Court of Appeals. Although the U.S. Department of Labor (DOL) requested that the district court delay its final decision on the merits of the case until after the court of appeals rules on the preliminary injunction, the district court declined to do so and issued its final decision on August 31, 2017.

As previously reported, the Fifth Circuit Court of Appeals is currently reviewing a challenge to the recent Fair Labor Standards Act ("FLSA") overtime changes. Previously, a Texas district court entered an injunction preventing the Department of Labor ("DOL") from implementing new regulations regarding the determination of who is exempt for overtime purposes. On June 30, the DOL filed its reply brief with the Court of Appeals, stating that although it was no longer defending the overtime rule set to become effective on Dec. 1, 2016, it believed the district court erred in concluding that the DOL had no authority to set white-collar salary limitations. Therefore, the DOL requested that the court rule in its favor on that issue and reject the district court’s issuance of the injunction, which, it argued, “would call into question any salary-level test adopted by the [DOL].”  

The U.S. Department of Labor has indicated that the department will move in a new, more employer-friendly direction, leaving many businesses feeling hopeful.

On June 7, 2017, the United States Department of Labor issued a press release rescinding the Department’s 2015 administrator’s interpretation memorandum regarding Independent Contractor classification under the Fair Labor Standards Act (“FLSA”) and its 2016 administrator’s interpretation memorandum regarding joint employer status under the FLSA and the Migrant and Seasonal Agricultural Workers Protection Act.

The Equal Employment Opportunity Commission (EEOC) issued updated guidance on Nov. 21, 2016, regarding national origin discrimination for the first time since 2002. In 2015, 11 percent of all discrimination charges filed with the EEOC included allegations of national origin discrimination. The new guidance discusses Title VII’s prohibition against national origin discrimination and its application to all types of workplace settings, including hiring, firing, and discipline, in order to prevent employment discrimination on the basis of national origin.

The EEOC update reminds employers of several important employment practices. First, all foreign nationals who are legally working within the United States are protected by Title VII, regardless of their citizenship status and have standing to bring a Title VII discrimination claim. Further, national origin discrimination may also exist in the form of an “association” claim, (where an employer treats an employee less favorably because the employee associates with someone of a particular national origin) or a “perceived as” claim, (where the employer intends to treat an employee differently because of what it believes the employee’s national origin to be, even if that belief is ultimately incorrect.) For more on the EEOC guidance, click here.

Just eight days before the Dec. 1, 2016, effective date, the United States District Court for the Eastern District of Texas entered a nationwide injunction prohibiting the U.S. Department of Labor from enforcing the recent regulatory changes issued pursuant to the Fair Labor Standards Act (FLSA). The DOL had previously published a proposed Notice of Rulemaking and, thereafter, a Final Rule which, as of Dec. 1, would have raised the minimum salary level for exempt employees from $455 per week ($23,660 annually) to $913 per week ($47,476 annually).  In addition, the Final Rule would have established an automatic updating mechanism that would have adjusted the minimum salary level every three years; the first automatic increase was scheduled to occur on Jan. 1, 2020.