Employment Law This Week®: Waiver of Meal Breaks, Driver Classification Ruling, Transgender Guidance Withdrawal, New Immigration Order

(1) California Health Care Workers Can Waive Breaks

Our top story: California health care workers can still waive some breaks. In February 2015, a California appeals court invalidated an order from the Industrial Welfare Commission (IWC) that allowed health care workers to waive certain meal breaks. The court found the order, which allowed the workers to miss one of their two meal periods when working over eight hours, was in direct conflict with the California Labor Code. The state legislature then passed a new law giving the IWC authority to craft exceptions going forward for health care workers. This month, the appeals court concluded that its 2015 decision was based on a misreading of the statute and that even waivers occurring before the new law are valid. Kevin Sullivan, from Epstein Becker Green, has more:

“The health care exception is pretty significant because the health care industry lends itself to typically long shifts. Oftentimes, you’ll have shifts that are precisely 12 hours, and, sometimes, you’ll go over 12 hours in those shifts—12 hours 2 minutes, 12 hours 3 minutes—and that’s just the nature of the job when you have a relief-type system. ... To say that nurses should not be permitted to waive the second meal period simply because they go a few minutes over a 12-hour shift, that’s what the legislature really had a problem with here. And why they specifically enacted that statute to clarify that, yes, the health care industry can have those exceptions going over 12 hours.”

For more, click here: http://bit.ly/2mqLyBU

(2) D.C. Circuit Vacates NLRB Ruling on Driver Classification

The U.S. Court of Appeals for the District of Columbia Circuit vacated a decision by the National Labor Relations Board (NLRB) on worker classification, reversing the NLRB’s finding that some FedEx drivers in Connecticut were employees. The NLRB argued that the D.C. Circuit was required to defer to the NLRB’s view because of what it claimed was its “special administrative expertise.” The D.C. Circuit disagreed, ruling that “the question of whether a worker is an ‘employee’ or an ‘independent contractor’ under the National Labor Relations Act is a question of ‘pure’ common-law agency principles,” and the required NLRB’s views were not entitled to deference.

(3) Transgender Guidance Withdrawal Impacts the Courts

A multistate lawsuit against the Obama administration’s transgender guidance is coming to an end. The states, led by Texas, have dropped their suit in light of the Trump administration’s decision to withdraw that guidance. The Obama-era guidance allowed students to use the bathrooms of the gender they identify with. The withdrawal has also prompted the U.S. Supreme Court to return a case that it was scheduled to hear on transgender rights in public schools. The appeals court, which based its original decision on the guidance, will now consider the case solely based on the statutory requirements of Title IX.

(4) New Immigration Order Set to Go Into Effect

President Trump issued a new executive order on immigration. The new order imposes a 90-day ban on travel to the United States by foreign nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen—but not Iraq—and a 120-day ban on refugees from these countries. The order does not apply to foreign nationals who have green cards, valid visas issued on or before 5 p.m. (ET) on January 27, or other valid documentation. The executive order goes into effect March 16, 2017, so employers have a few more days to determine if employees are affected. Several states already have sued to stay its enforcement.

For more, click here: http://bit.ly/2mP3cC6

(5) Tip of the Week

Laura Cappiello, Head of Human Capital Management and Deputy General Counsel at BlueMountain Capital Management, has some advice on best practices for onboarding employees:

“Communication and preparation are two of the key components to ensuring that new hires are successful once they join you. ... The HR team and the hiring manager should work together on a schedule for the new hire to get them oriented to the firm once they arrive. You should prepare this before their arrival and send it to them so that they get excited about what they have to look forward to. ... When the new hire starts on the first day, someone should be there to welcome them, whether it’s the hiring manager or someone from HR. Make sure that their desk is set up for their arrival, with basic supplies, maybe a gift with the firm's logo. And make sure that the new hire has a lunch plan for the first day. The hiring manager or the team should plan to take the new hire out for lunch and make them feel welcome.”