Wyatt Employment Law Report

Employers’ Contractually-Shortened Statutes of Limitations May Not Be Enforceable

By Mitzi Wyrick

The Kentucky Court of Appeals and the Sixth Circuit Court of Appeals have both recently examined the issue of contractually-shortened statutes of limitations for employment claims. Both cases involved employment applications containing nearly identical statements shortening statutes of limitations to six months for any claims relating to the applicants’ employment.

In Croghan, Administrator of the Estate of Amy L. Croghan v. Norton Healthcare, Inc., et al., decided by the Kentucky Court of Appeals, the employment application stated: Continue reading

EEOC Releases Year-End Enforcement Statistics

By Michelle Wyrick

According to the U.S. Equal Employment Opportunity Commission (“EEOC”), retaliation again leads the way as the most frequently filed charge for Fiscal Year 2019.  On January 24, 2020, the EEOC released its annual enforcement and litigation data, which showed retaliation as the leading charge, followed by disability discrimination, race discrimination, and sex discrimination. Continue reading

Revised Department of Labor Joint Employer Standard

By Mitzi Wyrick

On January 12, 2020, the United States Department of Labor (“DOL”) updated its standard for determining who is a joint employer under the Fair Labor Standards Act (“FLSA”) for the first time in 60 years.  Under the FLSA, an employee may be employed by more than one employer, which puts each employer at risk for unpaid wages and overtime. Continue reading

DOL Releases Final Rule Updating the Regular Rate and Basic Rate Requirements Effective January 15, 2020

By Sharon Gold

Last month, the Department of Labor (“DOL”) published a Final Rule that revised certain regulations concerning the Fair Labor Standards Act (“FLSA”) regular rate requirements.  The Final Rule is effective January 15, 2020.

Under the FLSA, non-exempt employees must be paid one and a half times their regular rate for overtime.  Which bonuses and perks to include in the regular rate has been confusing to employers for decades.  Despite the changing workforce of modern benefits and perks of employment, the regulations concerning which perks to include in the regular rate has not been revised in more than fifty years. Continue reading

NLRB Reaffirms Decertification Petition Timeline

By Marianna Michael

The National Labor Relations Board (“NLRB” or “Board”) recently reaffirmed that a voluntary extension of the certification year will not bar decertification elections. The certification year is the one year period following a union’s certification after winning an election. During the certification year, the Board does not conduct an election in an effort to allow the union and the employer ample opportunity to negotiate a collective bargaining agreement. However, unions and employers may negotiate a voluntary extension of the certification year. Pursuant to the Board’s holdings, the Board may conduct a vote during the voluntary extension after they receive a decertification petition and confirm that the remaining requirements are met. A decertification petition is submitted by employees who no longer want the union to act as their exclusive representative. The decertification process is used to determine whether a union continues to enjoy majority status among employees. Continue reading

High Deductible Health Plan – Helpful Guidance from the IRS

By Sherry Porter

Many employers sponsor high deductible health plans (HDHP) coupled with a health savings account (HSA) to provide group health insurance for their eligible employees.  In order to utilize an HSA, the individual must have coverage under a HDHP and have no disqualifying health coverage.  One issue that has arisen relates to the requirement that the HDHP generally cannot provide for any medical expense (except for preventive care) until the participant satisfies the minimum deductible for that year.  If the HDHP provided health care benefits for anything except preventive care prior to the individual meeting the deductible, then the individual is disqualified from having an HSA. This has created some interesting issues for participants with existing illnesses or chronic conditions.  The IRS has recently provided guidance that most employers (and participants) will find helpful. Continue reading

ICE On-Site Inspections: A New Concern for STEM OPT Employers

By Roger Morris

All STEM OPT employers need to be aware of reports that Immigration and Customs Enforcement (“ICE”) has begun random on-site inspections of STEM OPT employers. It is becoming increasingly important for any business that employs STEM OPT students to plan and train staff for the day ICE comes knocking at your door.

“STEM OPT” is a reference to foreign graduates of U.S. universities who earned degrees in Science, Technology, Engineering, or Math (“STEM”), who have been approved by the U.S. Citizenship and Immigration Services to receive post-graduation Optional Practical Training (“OPT”). Continue reading