Employment Law This Week®: Justice Kennedy Retires; Combining Labor, Education Departments; Gig Economy Misclassification Case; DC Tipped Workers

Episode 123: Week of July 2, 2018

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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. Justice Kennedy Retires

Our top story: Justice Anthony Kennedy announces his retirement from the U.S. Supreme Court, effective July 31. Justice Kennedy was a key swing vote on the Court, and a heated battle is expected over President Trump’s nominee to fill his seat. On the same day that Kennedy announced his retirement, the Court handed down its 14th decision by a 5-4 conservative majority this term, according to a CNN analyst. The majority found that requiring union-represented government employees who are not members to pay union representation fees violates their First Amendment rights. The ruling overturns a four-decade-old Supreme Court precedent, likely eliminating a major source of income for public-sector unions. … Justice Kennedy was one of the five justices who joined in the majority opinion authored by Justice Alito. President Trump said that the effort to fill Justice Kennedy’s seat will begin at once and Senate Republicans say they are determined to confirm the appointment before the Court’s 2018 term begins in October.

For more, click here: https://bit.ly/2Khu0r1

2. Trump Proposes Combining Labor and Education Departments

Is the U.S. Department of Labor ready for a merger? The Trump administration is continuing its lean government agenda with a proposal for a new cabinet agency that would combine the Departments of Labor and Education. The proposed merger is intended to improve “federal efforts to train the American workforce.” The new “Department of Education and the Workforce” would be a single blended cabinet agency, to be made up of four subagencies, including one dedicated to K-12 education and one for enforcement. Eric Moran, from Epstein Becker Green, has more:

“What we are seeing is the result of the Trump administration's March 2017 executive order that required an agency-by-agency review of the federal government. If the proposal is successful, and, that is a big ‘if,’ we can pretty much expect to see enforcement under the Enforcement Agency relatively similar to what it is today. I think it is implicit in the proposal that there—like a corporate merger—that there be efficiencies and maybe even a reduction in headcount. And in that way, a reduction in headcount would affect enforcement capacity could create a downtick in enforcement. But overall, the risks for employers are quite low. This proposal is facing an uphill battle in the Congress. A cabinet-level proposal such as this, in order to go into effect, requires 60 votes in the Senate. What that means is that the Trump administration would have to win over nine Independent or Democratic Senators. You also have very substantial interest groups in organized labor and teachers’ unions that are going to want to see the Department of Education and the Department of Labor remain freestanding. Compounding that situation are members of Congress who have worked to create the programs that this proposal seeks to merge, consolidate, and, frankly, reduce.”

3. NY Appeals Court: Courier Was an Independent Contractor

A New York appeals court weighs in on the gig economy. A split panel concluded that a courier for Postmates, a web-based delivery service, was an independent contractor not an employee, reversing the state Unemployment Insurance Appeal Board. The court found that the company did not possess sufficient control over the courier’s work for him to be considered an employee. Though the company determined the fees and tracked deliveries, it did not set his hours or require a non-compete agreement.

4. DC Voters Approve Increase of Minimum Wage for Tipped Workers

Voters in the District of Columbia approve a wage hike for tipped employees. DC residents have approved an initiative to increase the minimum wage for tipped workers incrementally to $15 an hour by 2025, effectively eliminating the tip credit. The mayor and a majority of the DC Council have come out against the initiative. But if it clears review by the city and Congress, this measure would make DC tipped workers the highest paid in the nation. This measure follows an initiative passed in the District last year that will incrementally increase the minimum wage for non-tipped workers to $15 an hour by July 1, 2020. Under this measure, the minimum wage will increase on July 1 of this year to $13.25, and eventually to $15 in 2020.

For more, see https://www.ebglaw.com/eltw123-wh  

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