March 2018 E-Update


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New Tax Law Amends FLSA Tip Pooling Provision

The tip pooling provision of the Fair Labor Standards Act, which has been the subject of much controversy, was amended as part of the omnibus budget bill that was passed by Congress on March 21, 2018. For more, click here.

Sixth Circuit Holds That Title VII Prohibits Transgender Discrimination

In a development of major significance, the U.S. Court of Appeals for the Sixth Circuit found that discrimination based on transgender status constitutes sex discrimination under Title VII. For more, click here.

DOL Announces Voluntary PAID Program to Resolve FLSA Violations

The U.S. Department of Labor announced its Payroll Audit Independent Determination pilot program, by which employers may proactively resolve potential violations of the minimum wage and overtime provisions of the Fair Labor Standards Act. News of the program has been received with some skepticism, however. For more, click here.

NLRB Releases Additional Advice Memos

Following last month’s release of a slew of advice memoranda, as we reported in our February 2018 E-Update, the National Labor Relations Board’s Office of the General Counsel (OGC) has now released additional advice memoranda. For more, click here.


OFCCP Issues Directive on Use of Predetermination Notices

The Director of the Office of Federal Contract Compliance Programs has issued a directive that is intended to establish the consistent use of Predetermination Notices (PDNs) in compliance evaluations. For more, click here.

No Title VII Liability Where Employer Had No Time to Address Harassment Complaint

The U.S. Court of Appeals for the Fourth Circuit found that an employer was not liable for a co-worker’s hostile environment harassment of an employee where the employee resigned before the employer had the chance to address her complaint. For more, click here.

Participation in Leave Donation Program Would Not Have Allowed Employee to Perform Essential Function of Her Job

The U.S. Court of Appeals for the Tenth Circuit found that an employee’s request to utilize donated leave would not have enabled her to perform an essential function of her job – physical attendance – and therefore it was not a reasonable accommodation under the Americans with Disabilities Act. For more, click here.

Employee May Not Refuse Religious Reasonable Accommodation Options

An employee who refused to consider or failed to take advantage of available accommodations for his religious need to not work on the Sabbath failed to state a claim under Title VII, according to the U.S. Court of Appeals for the Eleventh Circuit. For more, click here.

Tardiness Is Not Notice of Need for FMLA Leave

The U.S. Court of Appeals for the Seventh Circuit rejected an employee’s contention that her uncharacteristic tardiness on five occasions over eight months was notice of a serious health condition under the Family and Medical Leave Act.For more, click here.



TOP TIP: Guidelines for a Valid No-Solicitation/No-Distribution Policy

A recent case provides a good reminder about the parameters of a valid no-solicitation policy. In Dish Network, LLC v. NLRB, the U.S. Court of Appeals for the Tenth Circuit found that the employer’s termination of an employee for violation of an illegal no-solicitation policy violated the National Labor Relations Act. For more, click here.