Bass Berry & Sims Labor Talk

Single Severe Act Can Be Sexual Harassment – But How “Severe”?

Posted in Discrimination and Harassment Law and Practice

Wise employers know that a single severe act can be enough to satisfy the standard of “severe or pervasive” and be sexual harassment.  But how severe does the act have to be?

A recent 6th Circuit ruling gives some assistance.  In Ault v. Oberlin College, the Court discussed why a single physical incident was sufficiently severe.  The ruling is likewise informative because it also discusses why several infrequent but boorish comments were not sufficiently severe or pervasive. Continue Reading

Webinar Recap: How To Prepare for the “Fair Pay and Safe Workplaces” Proposed Rule and Accompanying Guidance

Posted in Wage and Hour Law and Practice

Yesterday my colleague Todd Overman and I presented an hour-long webinar discussing how to prepare for and navigate the “Fair Pay and Safe Workplaces” proposed rule and accompanying guidance.

On May 28, 2015, the Obama Administration published the much anticipated proposed DOL guidance and accompanying Federal Acquisition Regulation (FAR) proposed rule implementing EO 13673, Fair Pay and Safe Workplaces (July 31, 2014). In the webinar we highlighted key elements of both publications and their impact on government contractors, including:

  • The new “labor law violation” disclosure requirements and resulting contracting officer responsibility determinations
  • Unique role of “Labor Compliance Advisors”
  • Paycheck transparency and independent contractor notice requirements
  • Limitation on companywide arbitration plans

Feel free to listen to the webinar below or download the slides.

Implications of Proposed Changes to DOL Overtime Rules

Posted in Wage and Hour Law and Practice

Bass, Berry & Sims attorney Stephanie Roth authored an article outlining the details of the U.S. Department of Labor’s (DOL) proposed rules to increase the salary level threshold for those employees eligible for overtime pay. In addition, according to Stephanie, “the DOL has left open the possibility of changing the job duties test, which could have more far-reaching implications for workforce structure than the proposed salary level increase.” The proposed rules are open to a 60-day comment period in which individuals can voice concerns over the increased salary guidelines and the effectiveness of the current job duties test.

The full article, “The Jury Is Out On Outcome Of DOL Overtime Rules,” was published by Law360 on July 7 and is available online.

Antitrust Claims Related to Employee Poaching

Posted in Hiring and Recruiting

Can employers enter into pacts not to “poach” each other’s employees? That is the question at the center of a recent case claiming that two universities conspired to depress compensation for faculty members in violation of federal antitrust law. A radiologist at Duke University School of Medicine filed the suit after applying and being rejected as an applicant at the University of North Carolina. The applicant was told the universities had agreed to block lateral moves of faculty between the universities. What are the legal concerns regarding employee poaching behavior?

My colleagues, Dale Grimes and Gingie Yetter, analyzed the case in a recent client alert, “Academic Medical Centers Target of Latest Employee Anti-Poaching Antitrust Claim,” that is available online.

Union Financing Case to be Heard by Supreme Court

Posted in Union Organizing and Collective Bargaining

Bass, Berry & Sims attorney Michael Moschel was quoted in a Modern Healthcare article that outlined the details of a Supreme Court case (Friedrichs vs. California Teachers Association) in which the court will decide whether unions can continue to collect fees from non-members as long as those fees are not used for political purposes. In the current case, the teachers association is asking the court to essentially overturn a longstanding precedent established in Abood v. Detroit Board of Education in which the court ruled that unions have the right to collect fees from non-member because the non-members ultimately benefit from any union negotiations.  According to Michael, “[i]f Abood is reversed, the court would essentially create a ‘right-to-work’ law for public sector employees.”

The full article, “High Court Case Could Threaten Finances of Unions at Public Systems,” was published by Modern Healthcare on June 30 and is available online.

California Uber Driver Found to be an Employee

Posted in Labor Board Proceedings and Practice

In a major setback for Uber’s business model, on June 3, 2015, the Labor Commissioner of the State of California ruled that an Uber driver should be classified as an employee and not an independent contractor.

While the ruling applies to only one driver in San Francisco and does not set a precedent for how Uber compensates its 200,000 drivers, it is one of a growing number of decisions that may have far-reaching implications for service oriented businesses in the “sharing” economy. Uber says that its drivers are independent contractors and not employees, which means Uber does not consider itself responsible for paying drivers’ job-related expenses such as mileage and insurance. Moreover, as contractors, drivers are responsible for paying 100% of the federal payroll tax (FICA/FUTA).

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Sponsored Claim for Subcontractor Severance Pay Granted under Fixed-Price Service Contract

Posted in Leaves of Absence/FMLA Law and Practice

Armed Services Board of Contract Appeals logoThe Armed Services Board of Contract Appeals (ASBCA) recently granted a claim sponsored by the prime contractor for its subcontractor’s employee severance costs under a fixed-price contract. Appeal of Government Contracting Resources, Inc., ASBCA No. 59162 (March 12, 2015).

Government Contracting Resources, Inc. (GCR), sought additional compensation for severance costs it incurred, along with its subcontractor, upon expiration of its service contract with NASA for the distribution of mail at the Kennedy Space Center. A collective bargaining agreement (CBA) between GCR subcontractor Creative Management Technology Inc. (CMT) and the International Association of Machinists and Aerospace Workers (IAMAW) granted severance pay to CMT bargaining unit employees who were not rehired by a successor company at the end of the service contract. The provisions of the CBA had been incorporated, through a modification, into GCR’s service contract with NASA.

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EEOC Joins Other Agencies with Proposed Regulations on Wellness Programs Incentives

Posted in Employee Benefits

On April 16, 2015, the Equal Employment Opportunity Commission (“EEOC”) issued proposed regulations on the application of the Americans with Disabilities Act (“ADA”) to wellness program incentives. The release was followed closely by FAQs and a fact sheet. Other agencies similarly provided guidance, including joint FAQs from the Departments of Labor, Health and Human Services (“HHS”), and Treasury, and individual FAQs from HHS. Continue Reading

Stephanie Roth Authors Article on Applicant Screenings for McKnight’s Long-Term-Care News

Posted in Hiring and Recruiting

Bass, Berry & Sims attorney Stephanie Roth wrote an article on the pressure employers are facing to forgo inquiring about applicants’ criminal convictions during the initial stages of the hiring process.  Stephanie notes that the legal landscape is rapidly changing and the requirement of applicants to disclose their criminal conviction records when first submitting an application for employment is being banned (“banning the box”).  Further, Stephanie asserts that healthcare providers should not assume that the nature of work provides an exemption to compliance with these laws.  She encourages all employers to revise applications to remove “the box” unless its inclusion is required by law.

The full article, “Screening Workers for Criminal Convictions” was published by McKnight’s Long-Term-Care News on April 16 and is available online.

The Growing Risks of Non-Compliance with Wage Rate Determinations

Posted in Wage and Hour Law and Practice

A Maryland-based construction company required to pay “prevailing wages” under a Federal government contract recently settled for $400,000 claims that it had violated the False Claims Act (“FCA”) by failing to properly supervise lower-level contractors in the payment of prevailing wages to their workers. The case serves as a reminder that government contractors who fail to ensure compliance with wage requirements – whether under the Davis-Bacon Act (“DBA”), Service Contract Act (“SCA”), or Walsh-Healy Public Contracts Act (“PCA”) – can face significant liability. It also highlights the ongoing expansion of the federal government’s battle against procurement fraud. Continue Reading