Legislative Director Update for 9/22/17 below:
· DACA: The Deferred Action for Childhood Arrivals (DACA) program is being rescinded. The DACA program was implemented in 2012 by an executive order signed by President Obama. Under the program, certain individuals who arrived in the United States as children are eligible for CACA protection and corresponding employment authorization. The Department of Homeland Security issued preliminary guidance and also FAQs describing how DACA cases will be handled. You can read more regarding the impact for employers here: http://www.jacksonlewis.com/publication/deferred-action-childhood-arrivals-program-rescinded-ag-sessions-announces
· Wage and Hour: The United States Court of Appeals for the Ninth Circuit ruled this month issued a significant decision on the viability of the 80/20 rule. These are claims where the employee alleges an employer loses the tip credit when employees spend more than 20% of their time engaged in related or unrelated non-tip generating work such as rolling silverware, brewing tea or coffee and wiping down tables. The 9th Circuit ruled that the DOL’s 20% rule is owed no deference as it is inconsistent with the statute and the regulation it purports to interpret. This decision comes as welcome news to the hospitality employers located in the 9th Circuit. However, the decision expressly parts ways with an 8th Circuit decision which held the guidance from the DOL was owed deference. If you are in the hospitality industry and interested in learning more regarding this decision, I have provided a link to a more in-depth article: http://www.jacksonlewis.com/publication/dol-s-8020-tip-credit-rule-entitled-no-deference-ninth-circuit-holds-creating-circuit-split
· EEO: The Office of Management and Budget’s Office of Information Regulatory Affairs has directed the Acting Chair of the EEOC to suspend implementation of the EEOC’s revised EEO-1 report, which included detailed pay reporting obligations. Prior to this directive earlier this month, employers were scheduled to make their first pay disclosures under the revised EEO-1 report by March 31, 2018. Now, no pay disclosures will be required. Employers will use the previous version of the EEO-1 form for Fiscal Year 2017 reporting.
· NLRB: NLRB Chair Philip Miscimara announced that he would not seek reappointment once his term expires in December. Currently the Board consists of two Republicans and two Democrats with one vacancy on the Board. Given that Philip Miscimarra’s term will expire and he is not seeking another term, the Board will once again have two Democrats and one Republican at the end of December assuming the President’s nominee William Emmanuel is not confirmed by the Senate as of that date and the President has not nominated with the consent of the Senate an additional Board nominee.
· NLRB: According to a recent Gallup poll conducted from August 2 to August 6, 61% of adults answered that they approved when asked “do you approve or disapprove of unions?” This is the highest percentage since 2003, when 65% said they approve. While only 22% of respondents believe unions will become stronger in the future, 46% believe they will become weaker, 39% of respondents would like unions in the United States to have more influence. This is the highest figure recorded in the 18 years Gallup has asked the question. Currently, only 6.6% of employees in the private sector are unionized.
· EEOC: Employers should engage in the interactive process even if they believe the employee is not qualified. A recent Maryland case drove home this point. Please see the following link for a summary of the case entitled Van Rossum v. Baltimore County Maryland: http://www.disabilityleavelaw.com/2017/09/articles/uncategorized/employers-should-engage-in-the-interactive-process-even-if-they-believe-the-employee-is-not-qualified/