Employment Law This Week: Equal Pay, Union Fees, Negative Publicity by Employees, “Commissions” Under FLSA, F-1 STEM OPT Program

Episode 21: Week of April 4, 2016

We invite you to view Employment Law This Week - a weekly rundown of the latest news in the field, brought to you by Epstein Becker Green. We look at the latest trends, important court decisions, and new developments that could impact your work. Join us every Monday for a new five-minute episode! Read the firm's press release here and subscribe for updates.

This week’s stories include ...

(1) The Trend Toward Equal Pay Regulation Continues Across the Nation

The New York City Council has voted again to broaden the New York City Human Rights Law, amending the law to state that any exceptions should be construed narrowly. Among other protections, the law prohibits paying an employee less money based on gender. And following similar laws in California and New York, the New Jersey Senate recently passed legislation that would make it illegal for an employer to pay men and women different salaries for substantially similar work. Ian Carleton Schaefer, from Epstein Becker Green, has more on the trend. Update: See the extended interview here.

(2) Supreme Court Splits on Union Fees

Last Tuesday, the landmark California public sector fees case before the U.S. Supreme Court ended in a 4-4 split. Before Justice Scalia’s death, many expected the high court to overturn a decision by the U.S. Court of Appeals for the Ninth Circuit, ruling in favor of the teachers who claimed these mandatory union fees violated their first amendment rights. The 4-4 split leaves the Ninth Circuit’s decision in place, allowing public employers to continue requiring union fees from both union and nonunion workers.

(3) Eighth Circuit Backs the NLRB on Negative Publicity

The Eighth Circuit upheld a National Labor Relations Board (NLRB) ruling that a Jimmy John’s franchisee should not have fired employees for suggesting that the public risked illness if they ate the restaurants’ sandwiches. The workers were protesting that they didn’t receive paid sick days and had to find their own replacements when they were ill. But the employer argued that the workers’ actions were not protected by the National Labor Relations Act because they disparaged the company’s products. The Eighth Circuit affirmed the NLRB’s 2014 finding that the employees’ conduct was protected and that it arose out of a labor dispute between the employees and their employer.

(4) “Commission” Defined Under Fair Labor Standards Act

A Gold’s Gym in Texas classified its trainers as exempt from overtime because they worked primarily on commission. The trainers were paid a percentage of client fees for one-hour personal training sessions. A U.S. district court found that those payments were not bona fide commissions under the Fair Labor Standards Act because they were tied to the hourly sessions and not decoupled from time. The judge ruled that the compensation system should be classified as an hourly wage and that the employees should be entitled to overtime.

(5) DHS Expands F-1 STEM OPT Program

The Department of Homeland Security (DHS) recently released its highly anticipated final rule expanding and modifying the F-1 STEM (Science, Technology, Engineering, and Mathematics) Optional Practical Training (OPT) Program. A 2015 district court case found procedural errors in the DHS’s program, putting the current employment and OPT extensions of thousands of foreign nationals in jeopardy. This new final rule is DHS’s response to the court’s decision. Among other changes, the new final rule extends the potential work period to 24 months and puts into place new, tougher requirements for employers to satisfy. For more information, see our Special Immigration Alert.

(6) In-House Tip of the Week

Eric Topel, Associate General Counsel for Danone Foods, Inc., offers advice on best practices when hiring from a competitor.

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