Andrew Puzder Withdraws Candidacy for Labor Secretary; Trump Taps Former U.S. Attorney Alexander Acosta

On February 15, 2017, just one day before his confirmation hearing, Andrew Puzder announced that he was withdrawing his nomination to serve as President Donald Trump’s Labor Secretary. Puzder is the CEO of CKE Restaurants, which operates fast-food restaurants Carl’s Jr. and Hardee’s.

Like many of President Trump’s Cabinet picks, Puzder faced fierce opposition from Democrats, as well as unions and worker advocacy groups. The opposition came as no surprise, as Puzder publicly opposed government regulation, a $15 minimum wage increase and the Affordable Care Act, and recently revealed that he hired an undocumented housekeeper. Puzder was also criticized for alleged labor law violations, including unpaid overtime, which occurred at CKE Restaurants under his leadership.

Shortly before announcing his withdrawal, it was reported that Senate Republicans encouraged the Trump administration to pull the nomination since a growing number of Republican senators were uncertain they would vote in favor of Puzder, which jeopardized his confirmation.

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New EEOC Chair Says There Will be No “Major Changes” But – the DOJ Seems to be Calling a Truce in the Transgender Battle – What Direction Are We Heading?

Are we getting a mixed message from the new administration on priorities in the civil rights area?

In her first public comments since her appointment as the new acting chair of the EEOC, Victoria Lipnic just last week (February 8) said that the agency will not be making major changes and “is committed to its core values and mission, to enforce civil rights laws in the workplace.”

Yet – just a few days later on Sunday, February 11, The New York Times reported that the new administration has decided not to appeal a nationwide injunction issued by a judge in Texas to block Department of Education guidelines which stated that schools had to give transgender students access to facilities according to their chosen gender, as a matter of law.  It is not clear now whether this signals that the Trump administration’s position on transgender rights, a significant initiative of the EEOC in the Obama administration, will change and what position the new DOJ will take in the Grimm v. Gloucester County case, now pending before the US Supreme Court.

One is a statement from one agency and the other is a decision by another, but clearly there is going to be a shift of focus and priorities.

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What’s in a “Like”?: Tips for Employers and In-House Counsel in Crafting Social Media Policies

Your colleagues are on social media.  Ninety-seven percent of online adults aged 16-64 say they have visited or used a social network within the last month.[1]  Because social media continues to grow and constantly evolves, employers need to take a proactive approach to reduce risk and exposure to litigation related to social media.

In recent years, the National Labor Relations Board (“NLRB”) and the Equal Employment Opportunity Commission (“EEOC”) have made it clear that employees’ rights in “traditional offline communications” and communications over social media are afforded the same protections.

The NLRB is responsible for enforcing the National Labor Relations Act (“NLRA”), which prohibits discipline against employees who engage in “protected concerned activities.”  Protected Concerned Activities are conversations and efforts to organize around terms or conditions of employment (i.e. wages, benefits, staffing, etc.).  Examples of protected concerted activities on social media include posts relating to employee staffing levels implicating working conditions and posts regarding complaints and criticism about supervisor’s attitude and performance.  Often, the NLRB finds employers’ policies “overly broad” and “vague” and concludes employees would reasonably believe the policy restricts them from engaging in protected concerted activity.  Employers are most likely to have overly broad and vague provisions related to defamation, disparagement, confidentiality, and inappropriate e-mails or discussions.

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Title VII and Sexual Orientation – Front and Center at the Second Circuit on Inauguration Day

As President-Elect Donald Trump moved into the White House on Inauguration Day last Friday, the excitement and political tensions were not confined to the nation’s capital.  LGBTQ rights supporters decorated with rainbow ties and socks filled the Second Circuit courtroom that morning to hear oral argument on a charged issue in Matthew Christiansen v. Omnicom Group, Inc. et al., No. 16-748-cv.

In this case, Matthew Christiansen, a homosexual advertising executive, sued his employer, DDB Worldwide Communications Group Inc., for discrimination based on sexual orientation under Title VII of the Civil Rights Act of 1964.  Title VII prohibits discrimination by an employer against an employee on the basis of “sex,” but does not explicitly prohibit discrimination on the basis of “sexual orientation.”

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Happy New Year and Be Aware of New NY State Salary Thresholds

NEW EXEMPT SALARY THRESHOLD – As the ball is dropping in Times Square, wage and hour regulations are changing for employers in New York.

The New York Department of Labor has made it clear that on December 31, 2016, at 12:01 am, – new DOL regulations that raise the salary threshold necessary for employees to be “exempt” from overtime pay requirements will rise significantly for most private employers in New York.

We previously covered in this blog the December decision by a Texas judge to enjoin the implementation of federal regulations which would have raised those salary thresholds for exempt employees. While that was unexpected good news for many employers, New York employers did not receive a similar holiday gift.  Our state DOL is going to implement its new salary thresholds, so New York employers must take note and adjust salaries if they wish to maintain the exempt status of their employees.

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The DOL Will Appeal Injunction Suspending Regulations Raising the White Collar Salary Minimums

As we continue to follow the progress of the injunction suspending the Department of Labor’s regulations raising the salary minimums for the ‘white collar exemption’, yesterday the DOL informed a Texas federal court that it will appeal that injunction.

It is a strange coincidence that the DOL announcement came on the same day – December 1 – that the new regulations would have gone into effect.

Judge Mazzant, the Texas judge who issued the injunction, had found that the states were likely to succeed in their challenge of the regulations and would be irreparably harmed if the rule went into effect.  The judge concluded that the DOL did not have the authority to set these salary minimums at all, stating in part:

“Congress defined the [white-collar] exemption with regard to duties, which does not include a minimum salary level.”  He concluded, “With the final rule, the department exceeds its delegated authority and ignores Congress’s intent by raising the minimum salary level such that it supplants the duties test.”

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Are the DOL Regulations Dead, or Just on Life Support?

As you finish your Thanksgiving preparations the last thing you needed was a major legal development in the area of Employment law – but we had one yesterday.

On November 22, Judge Amos Mazzant, sitting in the Eastern District of Texas, issued an order enjoining implementation and enforcement of the US DOL’s new overtime exemption rules, that were set to go into effect on December 1, 2016 ( and yes – that is next week). The order was the result of a lawsuit, State of Nevada, et al v. United States Department of Labor, et al, filed by the attorneys general of 22 states, joined by various business groups, who argued that the DOL had acted unlawfully in implementing these regulations, and that there would be irreparable harm if they were allowed to go into effect.

For a quick refresher, the DOL’s new overtime rules raised the “salary threshold” an employee must have to be exempt from federal law’s overtime requirements from $455/week to $913/week (or $47,476 per year). According to the DOL’s estimates, this would make an additional 4.2 million workers eligible for overtime. This is the rule that the Texas judge has now blocked.

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In Order to Avoid Liability, Employers Need to Reevaluate Employee Cell Phone Usage Policies

Employers have long understood that what their employees do on company time is directly linked to the company’s own potential liabilities. When employees using mobile electronic devices cause harm, their carelessness isn’t only a problem for them—on company time, it can become a major problem for employers, as courts across the country have made clear in the past few years. Many employers are now reevaluating their cell phone usage policies for precisely this reason.

When a driver is using a cell phone at the time of an accident and the accident happens while the driver is on company business, the phone call is a business one, or the cell phone was provided by the company, companies have been sued along with the driver/employee, under a theory of “vicarious liability” or respondeat superior for the actions of its employee.  Under these doctrines, an employer may be responsible for the harm caused by its employee if that employee was acting within the course and scope of his or her employment at the time the accident occurred.

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Whistleblowing as a Private Right of Action in New York?

The venerable New York Whistleblower Protection Act has long allowed employees to report misconduct by their employer, at which point the public interest could be vindicated by the state Attorney General. But does an employee have a right to bring a personal claim under New York’s whistleblower law against alleged wrongdoers? The answer now appears to be “yes.”

This past Friday, Justice Loren Bailey-Schiffman rejected arguments by defendants in a whistleblower case that the Attorney General and the Board of Directors of a non-profit school have the ability to file suit under the Nonprofit Revitalization Act of 2013, which requires employers to enact policies to protect whistleblowers from retaliation. Instead, she ruled the whistleblower herself has a private right of action against the school and its Headmaster.

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AARP Sues EEOC Over Wellness Program Rules

The American Association of Retired Persons (AARP), the nation’s largest consumer interest group for Americans over 50, is suing the Equal Employment Opportunity Commission (EEOC) over its new wellness program rules, which the AARP alleges violates rules protecting the confidentiality of medical information. The new rules were issued in May but do not take effect until 2017.  The AARP is seeking a preliminary injunction to block the new rules.  The case, filed October 24, in Federal District Court in Washington is AARP v. EEOC.

The AARP contends that wellness programs, which many employers offer to encourage healthier lifestyles and prevent disease, violate anti-discrimination laws that protect workers’ confidential medical information.  According to the AARP, the programs invade workers’ privacy as they often involve medical exams and questioning, and leave them vulnerable to employment discrimination based on disability or genetic information.  The AARP specifically opposes wellness programs because older workers are more likely to have the types of less visible conditions (i.e high blood pressure and heart disease) that can become exposed through participation in wellness programs.   The AARP has typically been supportive of the EEOC’s efforts to provide guidance on wellness programs—but now, the AARP is in the unusual position of finding itself at odds with the EEOC.

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