Wyatt Employment Law Report


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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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Senate Confirms Republican Member to NLRB

By Edwin S. Hopson

On August 2, 2017, just prior to the August recess, the U.S. Senate confirmed the nomination of Marvin Kaplan by a vote of 50 to 48 to be a Member of the National Labor Relations Board.  The Senate, however, did not vote on a second Trump nominee to the Board, William Emanuel.  The vote on the second nominee is expected in September.  With Kaplan’s confirmation, the five member Board now consists of two Republicans, two Democrats and one vacancy.  Thus, it is unlikely that there will be any more ground-breaking new precedent in favor of unions for some time to come.  It has been nine years since the Republicans had a majority of Board Members.

The term of the Democrat General Counsel to the Board expires in early November of this year.  He will be replaced by a Republican yet to be named.


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The Cold Hard Facts

By Michael D. Hornback

A recent Kentucky Court of Appeals decision is a reminder of a litigation truism –  there is no such thing as a “motion to change the facts.” Admittedly, I have handled numerous cases over the years wherein I wished, hoped and even prayed that I could file such a motion.  Much to my chagrin, a “motion to change the facts” is not available.  However, don’t despair because plaintiffs also find themselves wishing they could change the facts.  As the Kentucky Court of Appeals recently found, the “cold hard facts” are what they are, and a plaintiff’s subjective beliefs about the reason for her termination won’t carry the day.

In Conley v. Mountain Comprehensive Care Center, Inc., 2017 WL 3129215 (Ky. App., July 21, 2017), a licensed clinical social worker was terminated and sued her employer claiming age discrimination.  This case stems from Ms. Conley’s preparation and submission of a therapeutic treatment plan for a foster child directly to the Perry County Family Court, rather than to the Department for Community Based Services (“DCBS”).  It should be noted that Ms. Conley’s therapeutic treatment plan was apparently in conflict with Continue reading


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Employers Should Watch for New Overtime Regulations

By Mitzi Wyrick

Last year, the United States Department of Labor (“DOL”) issued new overtime regulations that would have substantially increased the salary level necessary for employees to remain classified as exempt.  Just before the new regulations were to go into effect, a United States District Court in Texas issued a nationwide injunction preventing the DOL from enforcing the overtime regulations.  You can read more on that here:  https://wyattemployment.com/2016/11/23/texas-judge-blocks-overtime-rule/

Now, the DOL seems ready to revisit the issue.  During the last week of June, the DOL sent a Request for Information related to the overtime rule to the Office of Management and Budget for its review.  Once the Request for Information is published, the public will have an opportunity to comment.   It seems likely that the DOL will again attempt to revise the current salary basis test, but perhaps not as substantially as previously attempted.  Watch this site for further details as they develop.


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Trump’s Recent NLRB Picks (if Confirmed) Projected to Overturn Controversial Obama-Era Rulings

By Sharon L. Gold

On Tuesday, June 27, 2017, President Trump picked William Emanuel, 75, to fill one of the two vacancies on the National Labor Relations Board.  The NLRB is currently controlled by Democrats, with a 2-1 majority.  When there are no vacancies, the Board is filled with three members from the President’s party and two from the opposing party.

Emanuel was an employment lawyer at an employer-friendly law firm in Los Angeles.  He has represented trade groups and employers before the NLRB for many years.

Trump has also nominated Republican Marvin Kaplan for Continue reading


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Unions Challenge Kentucky’s Right-to-Work Law

 

 

 

 

 

 

 

 

By Amanda Warford Edge

Organized labor is attempting to fight back against Kentucky’s new right-to-work law. Yesterday, the Kentucky State AFL-CIO and Teamsters Local 89 filed a lawsuit asking a judge to block the law’s enforcement. The law, enacted in January 2017, bans labor unions from collecting mandatory dues from employees they represent in collective bargaining. Opponents of the law believe that it produces “free riders” in union workplaces — people who benefit from the presence of a union but do not contribute — and limits the bargaining power of the union.

The lawsuit, filed in Franklin Circuit Court, claims the law violates the Kentucky Constitution. It also claims that the law is discriminatory because it treats unions differently than other organizations that collect fees or dues to cover the costs of the benefits it provides. The Kentucky State AFL-CIO and Teamsters Local 89 ask the judge to temporarily block the law while the lawsuit proceeds. Governor Matt Bevin and Labor Secretary Derrick Ramsey are named as Defendants.

Lawsuits challenging “right-to-work” laws in other states have received mixed decisions in the courts. The Seventh Circuit upheld Indiana’s law. And last year, the Sixth Circuit upheld city right-to-work ordinances in Kentucky. However, a circuit judge halted the implementation of West Virginia’s law in August 2016, and a Wisconsin court ruled that its right-to-work law was unconstitutional in April 2016.


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Sixth Circuit to Weigh In on Religious Protection and Transgender Rights

By Amanda Warford Edge

Last week, a Detroit funeral home filed a brief with the Sixth Circuit arguing that it could fire a transgender employee who refused to follow its sex-specific dress code. According to the funeral home, allowing the employee (who was transitioning from male to female) to wear women’s clothes at work — namely, a skirt suit — would violate the religious beliefs of the home’s owner.

Last year, at the district court level, the Court said that the Religious Freedom Restoration Act (“RFRA”) shielded the funeral home from liability because the termination stemmed from its owner’s devout Christian worldview. In other words, the Court held that the funeral home was entitled to a religious exemption under RFRA and, therefore, did not violate federal employment discrimination law. In making its ruling, the Court reasoned, in part, that transgender people are not protected by federal anti-bias law.

The EEOC appealed this ruling and filed its brief in February. The funeral home has now asked the Court to affirm the holding that Title VII does not protect transgender people because the meaning of “sex” when Title VII was passed did not include the concept of gender identity. The funeral home also remains adamant that RFRA provides a legal defense for its enforcement of its sex-specific dress code.

The case is EEOC v. RG & GR Harris Funeral Homes, Case No. 16-2424.