Federal Legislative Director Update 12/07/17
- Nebraska Legislature: The 105th Legislative Session (2nd Session) will reconvene on January 3, 2018 and is scheduled to conclude on April 18, 2018 (Day 60). As you likely know, the Unicameral operates on a biennium schedule (1st session concluded in the Spring and the 2nd session will begin in January) with the bills from the first session carrying over to the second session. As with previous years, we will provide weekly (if not more frequent) updates as bills advance and the like. I will also be providing a weekly 20 minute webinar on updates before the Unicameral beginning in Mid-January. If you have interest in being involved in the legislative process, please let me know.
- NLRB: The new General Counsel for the NLRB, Peter Robb, directed the NLRB regional offices to submit to his Division of Advice for review cases involving “significant legal issues.” Robb signals that he will ask the NLRB to overturn numerous hot-bottom Obama-era Board precedents. The Memorandum identifies 26 examples of Obama-era decisions that “might support issuance of complaint but where his office also might want to provide the Board with an alternative analysis.
- Wage and Hour: Labor Department proposes reversing Obama-Era “Tip Pooling” Rule. Employers would be expressly permitted to require servers and other tip-earning employees to share their tips with employees working in the kitchen and other “back of the house” employees, but only when the employer does not use the tip credit and state law would not otherwise prohibit the practice, under the proposed regulations published by the DOL. This is a reversal of the current DOL regulations, which could be rescinded. Many employers who do not take a tip credit will like this proposed regulation. It would allow those employees working in the back of the house, who typically receive no tips at all, to share in sometimes lucrative tips received by servers. Pursuant to its Notice of Proposed Rulemaking, the DOL has provided a 30 day comment period until January 4, 2018, on the new rule.
- Wage and Hour: The federal minimum wage has remained stagnant at $7.25 an hour since 2009. In the absence of an increase to the federal minimum wage, an increasing number of states, cities and other municipalities have enacted statutes providing for minimum wage rates in excess of (and, in some cases, more than twice as high as) the federal rate. I will provide a print out of the jurisdictions slated for a wage increase to take effect on 1/1/18 tomorrow for the meeting. However, you can also access this here: Link
- Sexual Harassment Claims. Sexual harassment claims are grabbing headlines at a pace and intensity like never before. In the more than 30 years after the landmark decision (Meritor Savings Bank v. Vinson in 1986), the law prohibiting sexual harassment has not changed drastically – nor has the underlying conduct that constitutes sex harassment. What has changed dramatically is the number of those who speak out. We have prepared and will present a complimentary webinar on December 14th in light of the rash of claims entitled “Bolstering Your Preventive Practices” in attempt to introduce new strategies, training and the like. In addition, the EEOC has placed on the front page of their website, “Promising Practices for Preventing Harassment. You can access this here: Link
- EEOC: The Eleventh Circuit Court of Appeals recently took a step toward providing employers with guidance on the ADA’s requirements for job protected leave as an accommodation. In Billups v. Emerald Coast Utilities Authority, the Court noted that the accommodation language of the ADA is written in the present tense – that is, whether an employee “can” (not “will be able to”) perform the essential functions of the job with or without accommodation. As such, when an employee seeks job protected cleave as an accommodation, the employee must show that “his requested accommodation would have allowed him to return to work “in the present or in the immediate future.” The Court held that an accommodation is therefore unreasonable if it would only allow an employee to work at some uncertain point in the future.
- Wage and Hour: The U.S. Department of Labor confirmed last month that it intends to “undertake new rulemaking with regard to overtime.” While the DOL simultaneously filed an appeal of the district court order holding the prior overtime rule invalid, the DOL stated it intends to request that the Fifth Circuit “hold the appeal in abeyance while the Department of Labor undertakes further rulemaking to determine what the salary level should be,” according to the statement made by the DOL. The Obama-era rule set the salary level for the white collar exemptions at $47,476. It is expected the new salary level will be in the low $30,000 range.
- Paid Family Leave: Senator Deb Fischer included a measure that will offer a tax credit for businesses that offer their workers paid family and medical leave. The measure is predicted to remain intact as the House and Senate lawmakers start negotiating a compromise to the tax reform bill. The amendment was patterned after her stand-alone legislation in the Senate (that stalled).
- NLRB: Management-side attorney John Ring is expected to be the next nominee for the upcoming Republican vacancy on the National Labor Relations Board. Provided he clears the background check process, he is expected to be tapped to fill the seat of Chairman Phil Miscimarra whose term expires December 16th.