Wyatt Employment Law Report


Supreme Court to Address Circuit-Split Over LGBTQ Title VII Issues

By Jordan White

On April 22, 2019, the Supreme Court granted certiorari and consolidated three cases involving whether Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), prohibits employment discrimination based on an individual’s sexual orientation and transgender status. The three cases are: Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018) (en banc); Bostock v. Clayton County Board of Commissioners, 723 F. App’x 964 (11th Cir. 2018); and Equal Employment Opportunity Commission v. R.G. &. G.R. Harris Funeral Homes, Inc., 884 F.3d 560 (6th Cir. 2018). In Zarda and R.G. & G.R., the Second and Sixth Circuits agreed that Title VII bars employment discrimination based on sexual orientation and transgender status, respectively, with the Eleventh Circuit holding otherwise in Bostock. Zarda may be the most interesting case of the three. There, the Second Circuit reversed itself in an en banc decision, and it exposed a public divide between the EEOC and the Department of Justice. Both federal agencies filed briefs in the case, with the EEOC arguing that Title VII does apply while the Department of Justice argued the contrary.

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Employers Beware: Kentucky Court of Appeals Rules that Employers Must Now Have Counsel in Unemployment Proceedings

By Mitzi Wyrick

In a ruling that will undoubtedly affect how employers choose to proceed with respect to unemployment claims, the Kentucky Court of Appeals held that employers must have counsel to represent them in referee hearings and before the Kentucky Unemployment Insurance Commission.  In Nichols v. Kentucky Unemployment Insurance Commission, et al., the Kentucky Court of Appeals reviewed a decision in which the claimant was denied unemployment benefits after his employment was terminated.  The claimant, Michael Nichols, was terminated by his employer, Norton Healthcare, Inc. (“Norton”), for failure to comply with instructions, falsification of records, and misfeasance of company resources.  After being fired, Nichols submitted an application for benefits saying that he had been terminated for lack of work.  Norton contested the claim.  The unemployment division determined that Nichols had been terminated for misconduct and had intentionally misrepresented this fact on his application for benefits.  Nichols appealed the decision to the referee.  An evidentiary hearing was conducted at which Norton was represented by a non-lawyer.  The referee affirmed and the decision was affirmed on appeal to the Commission and again at the Jefferson Circuit Court.

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New Kentucky Law Ensures That Employees Can Be Required To Arbitrate Claims

By Michelle Wyrick

On March 25, 2019, Governor Bevin signed legislation providing that an employer may require an employee to sign an arbitration agreement as a condition of employment. The legislation, which amends KRS 336.700, is designed to reverse the Kentucky Supreme Court’s decision in Northern Ky. Area Development Dist. v. Snyder,  2017-SC-000277-DG (Ky. 2018), which held that employers may not condition employment upon execution of an arbitration agreement.
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Payments and Perks: the DOL Announces a Proposal to Clarify What Qualifies as Overtime

By Marianna Michael

On Thursday, March 28, 2019, the U.S. Department of Labor (“DOL”) announced proposed changes to the overtime provisions of section 7(e) of the Fair Labor Standards Act.  In its current form, the statute generally requires employers to pay overtime if workers work more than 40 hours a week.  One exemption to the overtime rule includes the salary basis exemption, where employees generally must be paid at least $455 per week on a salary basis, unless they are outside sales employees, teachers and employees practicing law or medicine.

accounting-blur-budget-128867Overtime pay is equal to one and one half times the regular rate of pay.  In designating what is included under the regular rate of pay, the current provision makes a distinction between payments and perks.  With the proposed provision, the DOL seeks to clarify what qualifies as either a payment or perk in an attempt to discourage employers from offering incentives that are excluded from the calculation of overtime pay.

The proposed changes confirm that the following types of employer-provided benefits may be excluded from the regular rate of pay:

  • the cost of providing wellness programs, onsite specialist treatment, gym access and fitness classes and employee discounts on retail goods and services;
  • payments for unused paid leave, including paid sick leave;
  • reimbursed expenses, even if not incurred “solely” for the employer’s benefit;
  • reimbursed travel expenses that do not exceed the maximum travel reimbursement permitted under the Federal Travel Regulation System regulations and that satisfy other regulatory requirements;
  • discretionary bonuses;
  • benefit plans, including accident, unemployment and legal services; and
  • tuition programs, such as reimbursement programs or repayment of educational debt.

This proposal is published for public comments and will remain open until May 28, 2019.  Comments may be submitted to the Notice of Proposed Rulemaking at www.regulations.gov. More information is available here.


Comment Period Open for DOL’s Proposed Salary Increase

By Sharon Gold

The Office of the Federal Register officially published the Notice of Proposed Rulemaking (“NPRM”) raising the salary minimum for exempt workers that we discussed last week.  The NPRM proposes to raise the minimum salary for exempt workers to $35,308 per year ($679 per week), from the current minimum of $23,660 per year ($455 per week).  The NPRM also raises the highly compensated minimum to $147,414 per year, up from the current minimum of $100,000.  Once a proposed rule is officially published, the 60 day comment period is open.  Employers have until May 21, 2019 to comment.  The link to comment is available here.

If the Rule is finalized, it is estimated that 1.1 million workers will have their salaries raised to the minimum or will be eligible for overtime.


DOL Releases Much Awaited Proposed Rule Raising Salary Minimum to $35,308 – Employers Have 60 Days to Comment

By Sharon Gold

On Thursday, March 7, 2019, the Department of Labor (“DOL”) released the much anticipated Notice of Proposed Rulemaking (“NPRM”) that significantly raises the minimum salary for exempt workers from $23,660 to $35,308.  It is estimated that if this rule is finalized, more than a million workers will either become eligible for overtime pay or have their salaries raised to meet the minimum.

Employers will recall that in late 2016, a mere few days before the salary minimum was supposed to be raised to $47,476, a federal judge in Texas blocked the rule.  Since that time, the DOL issued a Request for Information about the salary rule in 2017.  More than 200,000 employers and individuals commented.  In addition, the DOL had six in-person listening sessions in connection with the Request for Information.  The DOL indicated Continue reading


H-2B Random Selection Process to Begin July 2019

By Glen Krebs

The Department of Labor’s (“DOL”) Office of Foreign Labor Certification (“OFLC”) has announced a plan to change the way it handles the ETA-9142B form which begins the H-2B application process.  Beginning July 3, 2019, all H-2B applications submitted to the National Processing Center (“NPC”) in the first three days of the filing period will be collected.  The filing period begins 90 days before the date of need, so for a date of need beginning October 1, 2019, the filing period begins on July 3, 2019.  On the fourth day of the filing period (July 6), the OFLC will conduct a random selection process on all applications collected by the NPC in the first three days.  Applications covering the first 33,000 H-2B workers will be assigned to Group A.  The Group A applications will then be assigned to NPC analysts in the order of the random selection.   If there are applications for more than 33,000 workers, the remaining applications will be assigned to Group B, Group C, etc. after the random selection process is complete.  Each subsequent group will cover 20,000 H-2B workers.  If there are not 33,000 H-2B worker applications in the first three days, after the random selection process is complete, processing will continue in the normal fashion based on when the application is received by the NPC.

Employers will receive either a Notice of Deficiency or a Notice of Acceptance just as in prior years.  It is in the employers’ best interest to be prepared to conduct their recruitment and submit their reports quickly.  That will allow them to receive Temporary Labor Certification and submit the I-129 to the United States Immigration and Customs Service (“USCIS”) before the 33,000 visas allotted in each six-month period are issued to other employers.

For questions or help with H-2B Non-Agricultural Worker visas, please contact Glen Krebs (859)288-7409.