Employment Law This Week June 13, 2017: Joint-Employer Guidance Rescinded, NYC’s “Fair Workweek” Bills, ADA and Gender Dysphoria, Philadelphia’s Salary History Law [VIDEO]
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This week’s stories include ...
DOL Rescinds Joint-Employer and Classification Guidance
Our top story: The Department of Labor (“DOL”) withdraws Obama-era joint-employer guidance. Last week, the DOL announced that it has withdrawn its 2015 Administrator’s Interpretation on the misclassification of employees as independent contractors, as well as its 2016 guidance expanding the definition of a “joint employer.” Both Interpretations sought to expand the coverage of the Fair Labor Standards Act (“FLSA”) without the notice-and-comment requirements for new regulations. The DOL stated that this does not change the legal responsibilities of employers under the FLSA.
New York City Mayor Signs "Fair Workweek" Bills
New York City enacts “fair workweek” legislation. Mayor Bill de Blasio has signed a package of bills into law limiting scheduling flexibility for fast-food and retail employers. New York City is the third major city in the United States, after San Francisco and Seattle, to enact this kind of legislation. The bills require fast-food employers to provide new hires with good-faith estimates of the number of hours that they will work per week and to pay workers a premium for scheduling changes made less than 14 days in advance. Jeffrey Landes has more:
"As a result of these new laws, employers in these industries will probably see increased costs, not just in terms of wages but also potentially in terms of benefits, because, with the new scheduling, you may end up with more benefit-eligible employees. In addition, for employers that are quite large in these industries that operate in multiple jurisdictions, it will now mean once again that you may have to develop separate compliance initiatives as well as policies and procedures for your New York City employees, different from what you use perhaps in New Jersey or nearby Westchester County."
Federal Judge Says ADA May Cover Gender Dysphoria
The Americans with Disabilities Act (“ADA”) may cover gender dysphoria. A transgender woman filed two ADA claims against her former employer. The employer requested dismissal of the case, noting that gender identity disorders are expressly excluded from coverage by the ADA. A Pennsylvania federal judge declined to dismiss the case, finding that a transgender person could have other substantially limiting impairments that are caused by “gender identity disorder”—such as the symptoms of gender dysphoria that this plaintiff alleges—which could be covered under the ADA. There has been a lot of litigation under Title VII of the Civil Rights Act of 1964 relating to gender issues. This ADA challenge represents a different approach to gender-equity litigation.
Philadelphia's Salary History Law Stands, for Now
Philadelphia’s law banning salary history inquiries will stand, for now. A district judge has thrown out a challenge to the new law, which prohibits employers from inquiring about an applicant's salary history. The Philadelphia Chamber of Commerce (“Chamber”) sought a preliminary injunction against the law. The judge dismissed the case, finding that the Chamber lacked standing to bring the lawsuit because it failed to provide an example of a specific member that would be impacted by the law. The Chamber was given leave to file an amended complaint, but, in the meantime, the law will be in effect. The city has not indicated whether it will begin enforcing the law.
Tip of the Week
Bill Kane, Senior Vice President and General Manager for Sumitomo Corporation of America, shares some advice on the best practices for implementing a leadership development program:
“When I think of leadership development, I think of that old HR adage. The CFO speaking to the CEO, at which point the CFO says, ‘Well, what if we invest a lot of time and money in our people, and they just leave the organization, thus training people for other companies?’ The CEO looks back at the CFO and says, ‘Well, what if we don't train our people and they stay?’ And I think that's true overall when we're talking about development of all employees, particularly leaders. The ones who will be designing your future vision, your strategy, the tactics to get there. Those are the people that you want to invest in now. And you, as an organization, need to customize what is unique in terms of the competencies and skills that are very important for your particular industry or company.”