Seller Beware: 5 Tips to Keep Bad Employment Practices from Holding Up a Sale

Lawsuits and existing labor disputes are obvious impediments to the sale of your business. But short of these red flags, any number of ill-advised practices may slow down or even stop an acquisition from proceeding. Do not enter into serious talks about the sale of your company without first identifying and correcting poor employment practices. Follow these tips to avoid future headaches.   1. Ensure Employees Are Properly Classified The Fair Labor Standards Act (“FLSA”) requires that non-exempt employees receive . . . Read More

NLRB Proposes Rule to Limit Joint Employer Test: Small Businesses Beware

If at first you don’t succeed, try, try again. The National Labor Relations Board (“NLRB”) has taken this proverb to heart when it comes to implementing a new test for what it means to be a “joint employer” under the National Labor Relations Act. Following a failed attempt to change the standard through case law, the NLRB is now attempting to revise it by issuing a proposed rule. Last December, the NLRB endeavored to reverse Obama-era NLRB precedent, which held . . . Read More

How New Minimum Wage and Service Contract Act Health and Welfare Rates Apply to Your Contract

As we head into a busy proposal and award season, keep in mind some important changes to Service Contract Act (“SCA”) wages and fringe benefits. In July, the Department of Labor (“DOL”) issued revised SCA health and welfare (“H&W”) benefit amounts, increasing the base rate from $4.41 per hour to $4.48 per hour. An H&W rate of $4.18 per hour is now applicable to employees performing work on contracts that include FAR 52.222-62, Sick Leave for Contractors. This rate takes . . . Read More

No-Poaching Agreements: You Could Be Criminally Liable

Earlier this year, the Department of Justice’s Antitrust Division (DOJ) issued the Antitrust Guidance for Human Resource Professionals (DOJ Guidelines), which signaled for the first time that DOJ would “proceed criminally against naked wage-fixing or no-poaching agreements.” “No-poaching” or wage fixing agreements are a defense against employees leaving their companies to work for competitors in tight markets. However, companies that are not careful and enter into these agreements could face substantial liability, even criminal liability. By way of example, in . . . Read More

The FLSA Is 80 Years Old—Has It Made Us Wiser?

This week marks the Fair Labor Standards Act’s (“FLSA”) 80th birthday. Because I have a particular affection for birthdays, this occasion is a good time to send the FLSA some overdue love and reflect on how it continues to challenge us today. The FLSA was passed in 1938 in the midst of the industrial revolution and on the heels of the Great Depression, which perpetuated a culture of workforce abuse and child labor. The FLSA’s most basic premise is that . . . Read More

Worried About Class Actions? SCOTUS Recently Handed Employers a Hall Pass.

Recently, the U.S. Supreme Court held in Epic Systems v. Lewis that employers may, as a condition of employment, require employees to sign arbitration agreements containing class action waivers. The Court rejected the NLRB’s position that such agreements infringe on employees’ right to engage in collective action under the National Labor Relations Act. Instead, the Court gave weight to the Arbitration Act, which, Justice Gorsuch wrote, supports “pretty absolutely” rights for employers and employees to contract for arbitration. While arbitration is often touted as . . . Read More

New Maryland Sexual Harassment Law Creates Important Implications for Employers Both Inside and Outside the State

On May 15, 2018, Maryland Governor Larry Hogan signed into law the Disclosing Sexual Harassment in the Workplace Act of 2018. Described by bill sponsor Craig Zucker (D-Montgomery) as a “national model,” the law, which goes into effect on October 1, 2018, is the first of its kind in the Mid-Atlantic region. And, it has important implications, not only for employers in the State of Maryland, but for out-of-state employers who allow employees to telecommute from, work from time to . . . Read More

High Court Breaks from Precedent: Holds FLSA Exemptions Are Not to Be Narrowly Construed

In a 5–4 decision , the U.S. Supreme Court last Monday held that auto service advisors—car dealership employees who consult with customers about service needs and suggest repair services—are exempt from overtime requirements under the Fair Labor Standards Act (“FLSA”). The decision follows a 2011 Department of Labor rule that excluded these service advisors from the exemption. As a reminder, the FLSA requires that companies pay covered employees time and a half for all hours worked in excess of 40 each . . . Read More

Do Millennials Pose a Retention Risk?

According to GAO, it’s reasonable for agencies to consider it in evaluating quotes. The topic of millennials in the workforce is no stranger to anyone in the working world. A plethora of articles, blogs, reports, polls, and studies have been devoted to the subject. Companies and a countless other number of people (including millennials) have debated the subject for years, and will likely continue to do so. This is especially true when it comes to how quickly (whether perceived or . . . Read More

LGBTQ Discrimination Claims Under Title VII Likely to Increase in 2018 After Second Circuit Ruling

This week, the New York-based United States Court of Appeals for the Second Circuit became only the second federal appellate court to rule that Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of an employee’s sexual orientation. The Second Circuit’s decision in Zarda v. Altitude Express is only binding on employers in New York, Connecticut, and Vermont. However, given the court’s influence and the changing tides on the issue, we anticipate the decision . . . Read More