Employment Law This Week- July 31, 2017: Class Action Waiver Cases, Rescission of Tip-Pooling Restrictions, Title VII & Sexual Orientation, Updated Form I 9
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This week’s stories include ...
(1) Supreme Court Sets Date for Class Action Waiver Cases
Our top story: The high court will kick off its October term by tackling a significant employment issue. The Supreme Court will hear arguments on the enforceability of class action waivers in arbitration agreements. Oral argument is scheduled for October 2 on related cases from the U.S. Court of Appeals for the Fifth, Seventh, and Ninth Circuits. During the Obama administration, the National Labor Relations Board (NLRB) took the position that such waivers violated employees’ rights, and the Department of Justice (DOJ) agreed. The DOJ reversed its position in an amicus brief filed in June. While the NLRB has not done so, it is expected to revisit the issue after a new Republican majority is confirmed. Stuart Gerson has more:
“There's a tension between the Federal Arbitration Act, which the Supreme Court has favored in a number of cases, and the National Labor Relations Act, and that's going to be resolved, and employers are sitting at the edge of their seat trying to find out whether it's the view of the National Labor Relations Board about concerted activity that's going to prevail, or whether, as has been the case in several recent cases of the Supreme Court, the court will hold that the Federal Arbitration Act takes primacy and that these class action waivers will be enforced and that employees will have to litigate their claims individually.”
(2) DOL to Reverse Position on Tip Pooling
The Department of Labor (DOL) will move quickly to undo an Obama-era regulation restricting tip pooling. The White House Office of Management and Budget issued its regulatory agenda last week, detailing planned regulatory actions by federal agencies. The agenda states that the DOL will issue a Notice of Proposed Rulemaking as soon as August to rescind a 2011 interpretation of the tip-credit rule. The Obama-era regulation states that tips are the property of the employee, whether or not the employer takes the tip credit, even when the employer pays the full minimum wage. That rule was the subject of numerous legal challenges, including two certiorari petitions that are currently pending before the Supreme Court.
For more information, read "Tenth Circuit Rules Tips Belong to the Employer If Tip Credit Is Not Taken."
(3) DOJ: Title VII Does Not Cover Sexual Orientation
The DOJ says that Title VII of the Civil Rights Act of 1964 (Title VII) does not prohibit sexual orientation discrimination. In an amicus brief filed last week, the DOJ told the Second Circuit that it should reaffirm an earlier ruling that Title VII does not protect employees against discrimination based on their sexual orientation. The DOJ’s interpretation directly contradicts the Equal Employment Opportunity Commission’s official position on the matter. The case involves a skydiving instructor who was fired after disclosing to a customer that he was gay. As we’ve previously reported, the Second Circuit has granted an en banc hearing in order to reconsider its holding on the issue.
(4) USCIS Issues Updated Form I-9
The U.S. Citizenship and Immigration Services (USCIS) has issued another revision to Form I-9. Employers will be required to use the new version, dated July 17, 2017, beginning September 18 of this year. Until that time, employers may use either the new form or the form dated November 14, 2016. Form I-9 is used to verify the employment authorization and identity of all employees in the United States. The updated form includes a revised “List of Acceptable Documents” and small changes to the language.
(5) Tip of the Week
Christina Blankley, HR Manager at Maxxima LED Lighting, has some advice on best practices for improving employee engagement in benefit programs:
“Employers should not underestimate the importance of employee engagement and the inevitable effect it has on a company's return on investment. Communications to employees about the company's benefit offerings throughout the year keep employees reminded of the benefits afforded to them as part of your organization. If a new gym opens up next door, send a reminder email to your employees that the company's insurance carrier offers a gym reimbursement program that they can benefit from. Employers should distribute to their employees an annual total rewards statement. It is a document that shows the employee their total compensation by listing their wages alongside the value of each benefit the company offers. This educates the employee on their true worth as a team member within your organization and creates incentive to utilize benefits afforded to them.”