Employment Law This Week, March 20, 2017: Browning-Ferris Decision, Title IX Case, Server’s Minimum Wage Claim, H-1B Premium Processing Suspension [VIDEO]
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This week’s stories include ...
(1) DC Circuit Considers NLRB’s Browning-Ferris Decision
Our top story: Browning-Ferris is challenged in the U.S. Court of Appeals for the District of Columbia Circuit. The controversial 2015 Browning-Ferris decision by the National Labor Relations Board (NLRB) loosened the test for finding contractors, temporaries, and others to be joint employers. Browning-Ferris Industries (BFI) is now challenging that decision in the DC Circuit, arguing that the new “joint employer” definition is overly broad and inconsistent with the law on the issue. In oral arguments, the panel expressed doubts about the NLRB standard, with Judge Patricia Millett commenting that the agency had “dropped the ball.” Laura Monaco has more:
“What BFI has pointed out to the DC Circuit, both in its brief and in that oral argument, is that the new test really doesn’t just focus on whether or not an employer has direct and immediate control. And what BFI is arguing is that this really goes beyond the scope of what Congress intended when it enacted the National Labor Relations Act ... it’s too early to tell how the circuit will come out, but certainly some of the panel, at least, seem to express concern about the Board's expanded test.”
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(2) Third Circuit Finds Title IX Covers Medical Residents
The Third Circuit has found that medical residents can be covered under Title IX. A former medical resident in Pennsylvania filed a retaliation claim under Title IX as a student, alleging she was forced out of the resident program for refusing an attending physician’s sexual advances. The hospital argued that she was required to file an Equal Employment Opportunity Commission charge under Title VII, which protects employees. A district court dismissed the suit, finding that the resident program is not an “education program or entity” as Title IX defines those terms. The Third Circuit disagreed, ruling that the hospital’s program could fall under Title IX since the hospital received payments from the federal government and was affiliated with a university.
(3) Tenth Circuit Says Server Can File Minimum Wage Claim
A server’s minimum wage claim can move forward. The Tenth Circuit has reversed the dismissal of a restaurant server’s Fair Labor Standards Act (FLSA) claim. The district court dismissed the case because the server did not allege that she made less than the federal minimum wage, between tips and cash wages. The server did allege, however, that the restaurant improperly treated her tips as wages because she performed “non-tipped” tasks during work hours. The Tenth Circuit found that, before dismissing the case, the district court should have ruled on whether the employer was entitled to treat the server’s tips as wages under the FLSA.
(4) USCIS to Suspend Premium Processing for H-1B Applications
The U.S. Citizenship and Immigration Services (USCIS) recently announced that it will temporarily suspend premium processing of H-1B petitions, starting April 3, 2017. This suspension will apply to all H-1B petitions, including those that are part of any lottery filed on or after April 3. With premium processing, businesses can pay an additional fee to have applications reviewed in 15 days or less, as opposed to the normal six to eight months. According to the USCIS, the suspension could last up to six months.
(5) Tip of the Week
Tasneem Goodman, Managing Director at GrowthPlay, has some advice on the business advantages of a corporate culture of giving:
“When it comes to creating an organization where talented employees want to build their careers, we know that, when our employees are engaged in a purpose greater than themselves, that they are more engaged with our organization. ... We also know that promoting a corporate culture of giving serves the purpose of attracting profitable clients to us. We have found that, through many of the charitable and corporate giving endeavors that we’ve engaged in, it’s been a way for us to connect with our clients, a way for us to build strong relationships with our clients, [and] a way to align our interests, particularly around corporate social responsibility and the good that we're trying to create in our communities with our clients in a way that allows us to build relationships that are long-lasting and loyal with them.”