Wyatt Employment Law Report


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Emanuel Fills Last NLRB Seat

By Edwin S. Hopson

On September 26, 2017, William J. Emanuel, a Republican,  was sworn in as a Member of the National Labor Relations Board.  Emanuel’s term will end August 27, 2021. The Senate had confirmed his nomination by a vote of 49-47 after Democrats filibustered his appointment.

Prior to his appointment, Emanuel was a shareholder with Littler Mendelson, P.C., a law firm representing management in labor and employment matters.  He had also practiced labor law with several other firms.

With this new Member, the NLRB is once again at full strength – three Republicans and two Democrats.


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Long-Term Leave Not a Reasonable Accommodation Under the ADA… According to the Seventh Circuit

medical leave request

By Michael D. Hornback

The intersection between the Family Medical Leave Act (“FMLA”) and the Americans with Disabilities Act (“ADA”) is sticky, at best.  Over the years, partners in my Firm and I have received phone calls that go something like this: “Hey, Lawyer.  I have an employee who has been off work dealing with [insert medical condition].  He is supposed to be back next week, but now he is saying he needs more time off to deal with [aforementioned medical condition].  What do I do?”  Good question.  And the answer is not always clear.

This is precisely the set of circumstances the Seventh Circuit Court of Appeals considered in Severson v. Heartland Woodcraft, Inc., — F.3d —, 2017 WL 4160849 (Sept. 20, 2017).  The short version of the opinion is that in the Seventh Circuit, long-term leave is not a reasonable accommodation under the ADA.  The Seventh Circuit Continue reading →


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Supreme Court Considers Validity of Employment Contracts Prohibiting Class or Collective Action

By Douglas L. McSwain

On October 2, 2017, the Supreme Court of the United States heard three combined cases raising an important legal question that likely will affect innumerable employment contracts used in this country.  The Court heard Epic Systems Corp. v. Lewis, Ernst & Young, LLP v. Morris and National Labor Relations Board (NLRB) v. Murphy Oil (USA).  The Court’s ruling in these three cases will determine the validity of arbitration clauses that waive or prohibit the employee from pursuing collective, class or joint actions in court or in arbitration proceedings.

The lower courts have differed on this question, and the oral argument before the Supreme Court indicates the Justices are likely to split in what could turn out to be a closely decided ruling, perhaps with a thin majority of Justices (i.e., potentially a 5-4 decision).  No one knows for sure how the case will be finally decided by the Supreme Court, and predictions about how the Justices will rule, at this juncture, are premature at best.  The questioning that occurred during oral argument seems to suggest Continue reading →


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New EEO-1 Form on Hold Indefinitely

By Julie A. Laemmle

The Equal Employment Opportunity Commission’s (“EEOC”) proposed new EEO-1 Form is on hold indefinitely pending further review by the Office of Management and Budget (“OMB”).

The proposed EEO-1 Form, created during the Obama Administration, seeks to combat pay inequality by including more categories for compensation and total hours worked in addition to the already-collected demographic data.  However, the OMB believes the collection of this additional proposed data conflicts with standards of the Paperwork Reduction Act, which was designed to reduce the amount of paperwork burden the federal government places upon Continue reading →


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Department of Justice Drops Appeal on Obama Overtime Rule

By Daniel Reed

The Justice Department will no longer fight to preserve President Barrack Obama’s proposed overtime rule that a federal judge declared invalid in August.

The Obama-era rule would have required employers to pay overtime to most salaried workers who earn less than $47,476 annually, a sharp increase from the current annual salary cap of $23,660.  The rule would have extended mandatory overtime pay to more than 4 million U.S. workers.  A court challenge to the rule was filed by business groups and 21 states in the Eastern District of Texas. (Nevada v. DOL, E.D. Tex., No. 4:16-CV-731).

In August of this year, U.S. District Judge Amos Mazzant, an Obama appointee,  struck down Continue reading →


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Department of Labor – Fiduciary Rule Delay

By Sherry Porter

The U.S. Department of Labor’s (DOL) new fiduciary rule has been in the news for several years.  A portion of the rule relating to impartial conduct standards for employee benefit plans recently went into effect on June  10, 2017.  The remaining standards of the rule will become effective January 1, 2018.  The rule, which is essentially a consumer protection rule, has been quite controversial in that it imposes fiduciary status on many advisors who provide investment advice to retirement plans, IRAs and HSAs who had not been previously considered fiduciaries.  Many advisors have been working diligently to comply with the new DOL fiduciary rule – some investing significant hours and funds to comply.

Last week, the DOL filed a Notice of Administrative Action in a court case stating that it had submitted proposed amendments pertaining to the fiduciary rule to the Office of Management and Budget.  While they are currently in proposed state, the amendments propose to delay the applicability date from January 1, 2018 to January 1, 2019.  The proposed amendments have not yet been publicly released.  Stay tuned for more details, as it is likely the fiduciary rule will be pushed back.


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Risk for Nonqualified Deferred Compensation Falls on Employees

By Sherry Porter

The long-running Lehman Brothers bankruptcy case brings to light the risk employees have when participating in an employer sponsored nonqualified deferred compensation plan.  In this case (from the U.S. Bankruptcy Court in Manhattan), more than 300 executives and certain employees participated in a nonqualified deferred compensation plan (the “Plan”).  The Plan provided that payments under the Plan are “unsecured subordinate obligations” of Lehman Brothers (the “Company”) and contained a provision that the Plan benefit payments would be subordinated to Continue reading →