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Dykema Labor & Employment Law Blog

Dykema Labor & Employment Law Blog

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The New Overtime Regulations Are Now Official

There’s no longer a basis to speculate or read or ignore the rumors. The Department of Labor (DOL) has finalized its changes to the regulations governing who may be exempt from being paid overtime. The changes will still be dramatic in terms of the number of employees impacted, but employers’ worst fears as to what they might contain did not quite materialize. Read More ›

New Federal Defense of Trade Secrets Act Requires Employers to Re-Examine Employee Confidentiality Agreements

This week, President Obama signed the Defense of Trade Secrets Act (“DTSA”) into law, providing owners of trade secrets new federal protections against trade secret misappropriation. The new law has several features which will be discussed (and inevitably litigated) over the months and years to come, including a provision allowing courts to issue ex parte seizure orders of property containing misappropriated trade secrets, a definition of trade secrets broader than the definition in the Uniform Trade Secrets Act (UTSA), and a definition of misappropriation narrower than the one in the UTSA. For employers, however, a provision of the act may require that longstanding confidentiality agreements be re-examined. Read More ›

Accommodation of Religion in the Workplace: A Primer

Of the various types of discrimination employers have known they must not commit for 50 years, discrimination based on religion remains one of the most challenging. Unlike race, gender, age and similar “immutable” characteristics, religion is more than what someone is; it is also what someone practices and believes. Therefore, Title VII of the Civil Rights Act of 1964 sometimes requires that employers treat people differently because of their religion. In further contrast, one does not “preach” an immutable characteristic by trying to convince others to change race, age, or gender, but many feel comfortable, or even obligated, to share religious views with others and possibly even try to convert them. The challenge of accommodating religious practices without fundamentally altering the workplace keeps employers and their HR teams up at night. Here are some practical tips for understanding and handling these sometimes conflicting challenges. Read More ›

Employers Beware: Employees May Disparage You Without Risking Their Jobs

On March 25, 2016, the U.S. Court of Appeals upheld a finding by the National Labor Relations Board (NLRB) that Jimmy John’s sandwich makers were wrongfully terminated after posting hundreds of signs insinuating that the sandwiches they make could make customers sick. According to the NLRB and the court, those employees were engaging in concerted activities protected under the National Labor Relations Act (NLRA).  MikLin Enterprises v. NLRB, Case No. 14-3099 (8th Cir. Mar. 25, 2016). Read More ›

Supreme Court Upholds Sampling in FLSA Cases

On March 22, 2015, the United States Supreme Court issued an opinion in Tyson Foods, Inc. v. Bouaphakeo, making it easier for plaintiffs to maintain class actions under the Fair Labor Standards Act, at least in some contexts. Specifically, at least in some donning and doffing contexts, courts may permit plaintiffs to prove their cases through the use of statistical sampling. For a detailed discussion of this case and its impact, as written for the American Bar Association by one of our employment law partners – Robert Boonin, click here.

EEOC Files Landmark Lawsuits Alleging Sexual Orientation Discrimination

It is not uncommon for the Equal Employment Opportunity Commission (EEOC) to push the envelope by taking positions in litigation that exceed the plain language of the federal statutes that it is charged to enforce.  Indeed, in its 2013-2016 Strategic Enforcement Plan, the EEOC identified addressing of emerging and developing issues as a priority, specifically mentioning as one of those issues is the “coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions, as they may apply.”  On Tuesday, the EEOC took the next step in prosecuting its Strategic Enforcement Plan when it launched a pair of federal lawsuits alleging discriminatory employment practices based on sexual orientation,  -- prime examples of the agency’s tendency to interpret statutes as broadly as possible and beyond what Congress intended. Read More ›

Wake Up Federal Contractors; Key Affirmative Action Issues for 2016

Although the Office of Federal Contract Compliance Programs (“OFCCP”) has not been as active as the National Labor Relations Board  (“NLRB”) in updating regulations and issuing harsh decisions, unprepared federal contractors or subcontractors may face significant problems with the OFCCP during 2016. Read More ›

The Proposed New Overtime Pay Exemption Rules: What's the Latest Scoop

For months, crystal balls have been working on overdrive trying to predict when the Department of Labor will roll-out the final version of the new white collar overtime pay exemption regulations and what will be in those regulations. While there is no way to accurately make these predictions, there have been some official comments recently made about what can be expected, and it’s not too late for employers to prepare for the new regulations even though the details are still uncertain. Read More ›

OFCCP Information Gathering Alleged to Violate Fourth Amendment Rights Against Unreasonable Searches and Seizures

The  Office of Federal Contract Compliance Programs (OFCCP) has seen a rise in challenges to its rights to access data for the compliance reviews it conducts. Most, if not all, of these challenges have raised Fourth Amendment rights against unreasonable search and seizures. The OFCCP has prevailed on these challenges and has sought immediate enforcement action against those who challenge its right to access data during a compliance review. Attached is the Affirmative Action Compliance Newsletter from Bloomberg Law reviewing the issue and quoting Dykema Cox Smith lawyer, Jaime Ramon.

EEOC Issues Proposal That Would Require Inclusion of Wage and Hour Data in Annual EEO-1 Submissions

On Friday, January 29, 2016, seven years to the day following passage of the Lilly Ledbetter Fair Pay Act, the Equal Employment Opportunity Commission (EEOC) issued a proposed rule that would require employers with 100 or more employees to report pay data as part of annual EEO-1 submissions beginning with the September 2017 report. The proposed regulation would require affected employers to not only report the number of employees in each protected classification (gender, race, etc.) but to further break down those assignments into twelve pay bands used by the Bureau of Labor Statistics as part of its occupational statistics survey based on annual W-2 earnings. Affected employers also would be required to report the total number of hours worked by employees in each reported band, in an attempt to allow the EEOC to determine when apparent disparities might be attributed to part time work. A sample of the proposed form can be found hereRead More ›