November 2018 E-Update


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DOL Releases New Opinion Letters: Tipped Employees and Non-Tipped Work, Hourly/Daily/Shift Compensation for Exempt Employees, and More

The Department of Labor (DOL) has released four new opinion letters on the Fair Labor Standards Act (FLSA). Opinion letters respond to a specific wage-hour inquiry to the DOL from an employer or other entity, and represent the DOL’s official position on that particular issue. For more, click here.

Facebook Posts May Be Protected Concerted Activity

In a recently-released Advice Memorandum, originally prepared in 2016, the National Labor Relations Board’s General Counsel reminds employers that Facebook posts may constitute concerted activity that is protected under the National Labor Relations Act, even in a non-union setting. For more, click here.

OFCCP Releases Three New Directives for Federal Contractors: Compliance Review Procedures, Early Resolution Procedures, and Opinion Letters and Help Desk

The Office of Federal Contract Compliance Programs continues its flurry of activity with the announcement of three new directives on November 30, 2018, following the five that were issued in August and discussed in our August 2018 E-Update. For more, click here.


Supreme Court Finds Small State Entities and Political Subdivisions Covered by ADEA

The Age Discrimination in Employment Act’s 20-employee trigger for coverage does not apply to state entities or political subdivisions, according to the U.S. Supreme Court, resolving a federal appellate circuit split on the issue. For more, click here.

Denial of Opportunity for Voluntary Overtime Is Tangible Employment Action

A supervisor’s denial of voluntary overtime after learning that his subordinate reported his sexual harassment of her was a tangible employment action for which the employer was liable, according to the U.S. Court of Appeals for the Fourth Circuit. For more, click here.

On-Call Work May Be Essential Job Function

A federal court held that overnight on-call work may be an essential job function, and an employee’s request to be excused from that work was not a reasonable accommodation. For more, click here.

General Contractor May Be Cited for Hazardous Condition Affecting Only Subcontractor Employees

The U.S. Court of Appeals for the Fifth Circuit deferred to the Secretary of Labor’s interpretation of the Occupational Safety and Health Act enabling the Secretary to issue a citation to a general contractor at a multi-employer worksite for hazards affecting only subcontractors’ employees. For more, click here.

Employer Must Bargain Over Safety Clothing Rule

The National Labor Relations Board found that an employer violated the National Labor Relations Act when it implemented a rule requiring employees to wear flame-resistant clothing at all times without providing notice or an opportunity to bargain to the Union. For more, click here.

Tenth Circuit Declines to Adopt DOL Test for Intern/Student Status

Applying a totality of circumstances test to examine the economic reality of the relationship between a for-profit vocational school and its students, the U.S. Court of Appeals for the Tenth Circuit found the students were not employees under the Fair Labor Standards Act.For more, click here.

TOP TIP: Impact of Written Agreements on At-Will Employment

In Swift v. University of Maryland, College Park, the Maryland Court of Appeals (the highest State court) reiterated that at-will employment, which is presumed in Maryland and which allows either the employer or the employee to terminate employment at any time with or without cause, may be modified by written agreement, including a collective bargaining agreement (CBA). For more, click here.