As we previously discussed here, in November of 2016, a Texas federal judge granted a nationwide injunction to prevent the Department of Labor (DOL) from increasing the minimum salary threshold for employees exempt from the overtime requirement. The Labor Department appealed the decision, but briefing was stayed to allow the new administration to form a stance on the policy. In its recent briefing, Trump’s Department of Labor indicated that it intends to consider raising this threshold, but that the spike formulated by the Obama administration was too high, and the DOL would not defend or enforce that new threshold.
From the time Congress passed the Civil Rights Act of 1964 until earlier this year, federal courts have consistently held that the Act’s protections against employment discrimination did not apply to discrimination on the basis of sexual orientation. However, in March, the Seventh Circuit Court of Appeals (which covers Wisconsin, Illinois, and Indiana) became the first court to rule the other way, holding that Title VII of the Civil Rights Act’s prohibition against discrimination on the basis of sex includes discrimination based on sexual orientation. What has occurred in federal courts in the wake of that decision, however, has only muddied the waters.
Like most states, Pennsylvania has a Wage Payment and Collection Law. This law requires employers, on regular pay days designated in advance, to pay wages owed either by lawful money of the United States or by check. The Act defines the term check as a “draft.” While the terms “draft” and “lawful money” are not defined, the common definition of these terms accepted by the courts respectively is an unconditional written order signed by one person directing another to be paid, and officially coined or stamped currency. Obviously, in 1961 when the Act was written, the legislature did not contemplate today’s e-economy or the use of payroll debit cards.
As noted in our June 2017 Employment Law Letter, the West Virginia Legislature passed the West Virginia Safer Workplaces Act. The new law, which went into effect on July 7, 2017, generally expands the circumstances under which employers may conduct drug and alcohol testing, with some important limitations. If your business conducts drug or alcohol testing, now is a good time to revisit your policy and consult with your attorney to ensure that it is compliant with the new law. Here, we will summarize the new law, including what it permits and what it prohibits.
On June 16, 2017, the Supreme Court of Appeals of West Virginia delivered its opinion in the matter of Martinez v. Asplundh Tree Expert Co., which involved consideration of whether two key pieces of West Virginia’s Legislative reform of 2015 would be applied to currently pending civil actions. The Supreme Court of Appeals accepted two certified questions from the United States District Court for the Northern District of West Virginia regarding whether West Virginia Code §§ 55-7-3E and 55-7-29, which both became effective on June 8, 2015, would apply to civil actions that were filed before June 8, 2015. The West Virginia high court, in a 3-2 decision, ruled that the statutory language in each provision made clear the Legislature’s intent to remedy West Virginia’s standing as a judicial outlier and that, because the statutory sections were remedial in nature, the provisions should be applied to all actions that proceed to trial after June 8, 2015. The Court took due notice of the language in each code section in reaching its ultimate conclusion.
Although it has been more than two years since the Supreme Court of the United States (“SCOTUS”) issued its Obergefell v. Hodges opinion and more than four years since its US v. Windsor opinion, the law is still evolving as it concerns same-sex marriage. It is important for employers who wish to minimize their litigation exposure to determine what “rights, benefits, and responsibilities” same-sex spouses should be extended in the same manner as opposite-sex spouses. While SCOTUS has indicated its belief that Obergefell’s holding and application are clear, recent rulings indicate otherwise . . . which means employers would be well-advised to stay tuned.
In the past month, there have been several important Federal Appellate Court decisions regarding sexual orientation discrimination. On March 20, the Eleventh Circuit reaffirmed its prior precedent that Title VII does not extend protection to individuals harassed on the basis of sexual orientation. The Court noted that claims for gender nonconformity are allowed, but stated that there were not sufficient facts for such a finding in the present case. The Court also stated that it cannot reconsider prior precedent without a hearing in front of all the judges of the Eleventh Circuit—potentially signaling that the Court is willing to reconsider its position on sexual orientation discrimination.
On December 14, 2016, the Drug Enforcement Administration (“DEA”), which operates under the United States Department of Justice, published a Notice of a Final Rule regarding marijuana. According to the Notice, the DEA “is creating a new Administration Controlled Substances Code Number for ‘Marijuana Extract.’” The Final Rule is effective January 13, 2017. The Notice states that the new Rule came about as a result of various international treaties related to the international transportation of marijuana and marijuana extracts. As of now, the United States tracks only marijuana, but its international counterparts track marijuana and marijuana extracts separately. The new Rule is set to bridge the gap between U.S. policy and international policy.
The Persuader Rule Under the Trump Administration
This is the first in a series of posts about likely changes in labor and employment law under the new Trump Administration. We can expect that the Trump Administration will seek to undo or overturn a number of labor-friendly initiatives implemented by President Obama. One of the more controversial initiatives of the Obama Administration related to the Department of Labor’s (DOL) so-called Persuader Rule under the Labor-Management Reporting and Disclosure Act (LMRDA).