Court Rules That DOL Definition of "Workweek" Under the FMLA is Incorrect

Clifford Geiger
Clifford Geiger
01/21/2021
The United States Court of Appeals for the Ninth Circuit has ruled that the Department of Labor incorrectly defined “workweek” for purposes of time off under the Family and Medical Leave Act (FMLA).  You can read the details, as well as the dissenting opinion, at Scalia v. State of Alaska, 9th Cir., No. 19-35824, 1/15/21 The FMLA grants eligible employees a “total of 12 workweeks of leave during any 12-month period” to attend to qualifying...
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DOL Issues Four New Wage & Hour Opinion Letters

Clifford Geiger
Clifford Geiger
01/20/2021
The U.S. Department  of Labor issued four new opinion letters on January 19, 2021: FLSA2021-6 A trade association of staffing firms asked for an opinion on whether the Fair Labor Standards Act’s (FLSA) “retail or service establishment” exemption applies to staffing firms that recruit, hire, and place employees on temporary assignments with clients.     Qualifying for the exemption would mean there is no overtime requirement under the...
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First Amendment Protections Mean Officer’s Claim Proceeds

Darrell VanDeusen
Darrell VanDeusen
01/13/2021
That pesky old First Amendment “freedom of speech thing” has been in the news a lot lately.  The issue of whether a public employee’s speech is protected has Supreme Court underpinnings. In Pickering v. Bd. of Ed. of Twp. High Sch. Dist., 391 U.S. 563 (1968) the Court created a balancing test that looks to whether an employee (1) spoke on a matter of public concern; (2) spoke as a private citizen rather than a public employee; and (3)...
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Two New Wage & Hour Opinion Letters from DOL

Darrell VanDeusen
Darrell VanDeusen
01/12/2021
In the final weeks of the Trump administration, the Department of Labor has been busy putting out guidance on wage and hour matters.   Let’s put aside last week’s Final Rule on independent contractors, issued January 6, 2021.  That rule is expected to face substantial challenge in court, so while it is an interesting change in approach by the DOL, all should recognize the uncertainty of its lasting effect. Please turn instead to two Wage...
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DOL Authorizes Use of Telemedicine For FMLA Certifications

Eric Paltell
Eric Paltell
01/04/2021
Among the many changes COVID-19 has brought about  is the increases use of telemedicine for persons in need of medical services. On December 29, 2020, the United States Department of Labor embraced the use of telemedicine as a method by which an employee can obtain “treatment” for  “serious medical condition” under the Family and Medical Leave Act (“FMLA”). The FMLA permits an employee to take up to 12 weeks of leave for their own or a...
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Coronavirus Relief Package Does Not Extend The FFCRA But Provides An Incentive For Private Employers To Make Paid Leave Available

Clifford Geiger
Clifford Geiger
12/28/2020
The coronavirus relief package passed by Congress last week was signed by President Donald Trump on Sunday, December 27, 2020.  The new law does not extend the paid leave mandates enacted under the Families First Coronavirus Response Act (“FFCRA”), which are set to expire on December 31, 2020.  Next year employers will no longer be required to provide paid sick or family leave for employee absences caused by coronavirus-related reasons. ...
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D.C. City Council Passes Ban on Non-Competition Agreements

Vincent Jackson
Vincent Jackson
12/23/2020
Last week, the D.C. City Council passed one of the most sweeping bans on non-competition agreements in the country.  The bill (B23-0494), which passed 12-0, would prohibit non-compete agreements for nearly all employees working in the District of Columbia, with an exception for certain medical professionals.    Notably, the bill does not merely ban non-compete agreements for subsequent employment; it also bans non-compete agreements for...
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EEOC Issues Guidance on COVID-19 Vaccination For Employers

Bernadette Hunton
Bernadette Hunton
12/18/2020
On December16, 2020, the EEOC issued its first guidance for employers on COVID-19 vaccinations in the workplace.  Below is a summary of the question and answer guidance. Is the administration of a COVID-19 vaccine by an employer (or third-party on behalf of an employer) a “medical examination” for purposes of the American with Disabilities Act (ADA)? No.  The vaccination itself is not a medical examination because an employer who...
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Governor Hogan Announces Two New Initiatives To Provide Economic Relief For Maryland Businesses

Bernadette Hunton
Bernadette Hunton
12/16/2020
On December 10, 2020, Maryland Governor Hogan announced two new COVID-19 initiatives to provide economic relief to businesses in Maryland.   Emergency Unemployment Tax Relief For Businesses The first Executive Order No. 20-12-10-01, effectively suspends unemployment tax increases for Maryland businesses for 2021.  The Order, which acknowledges “contributory employers cannot fairly be held responsible for the abnormally high volume of...
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Montgomery County Expands Its "Ban-The-Box" Law

Randi Klein Hyatt
Randi Klein Hyatt
12/11/2020
Montgomery County, Maryland has amended the county's ban-the-box legislation to increase restrictions on employers during the hiring process.  The current law prohibits employers with fifteen (15) full-time employees in Montgomery County from conducting a criminal background check or otherwise seeking information on an applicant's criminal or arrest background before the completion of the first interview.  The Amendment, which becomes effective...
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