Given the pandemic and all that has come along with it, telecommuting has become the new norm.  Employers are increasingly faced with difficult legal issues pertaining to not only the out-of-state telecommuter, but also the foreign national who “telecommutes” from overseas due to travel and visa restrictions.  U.S. employers may still want to utilize the foreign national’s services, but there are various issues to consider before doing so.
Continue Reading Employment, Tax, and Visa Issues Associated With the Overseas Telecommuter

The end of the year is often a time of self-reflection to determine if one has ended up on the “Nice” or “Naughty” List. In appellate practice, ending up on the “Naughty List” can result in serious consequences, including the dismissal of a pending appeal and a forfeiture of substantive legal rights, regardless of the merits of the underlying appeal.
Continue Reading Ending Up On The Naughty List: Dismissal Of A Pending Appeal Under The Disentitlement Doctrine

In a decision issued earlier this month, the Second Circuit Court of Appeals ruled that participants in unpaid internship programs offered by the Hearst Corporation could not be classified as “employees” of Hearst and therefore were not entitled to compensation for their internships under the Fair Labor Standards Act (FLSA).

The Second Circuit’s decision in Wang v. Hearst Corp., No. 16-3302 (2d Cir. 2017) (available here) affirmed a 2016 decision by U.S. District Judge J. Paul Oetken granting summary judgment for Hearst and dismissing the claims of lead plaintiff Xuedan Wang and four other college-age individuals working as unpaid interns for Hearst’s various print magazines. The Second Circuit made clear reference to the case’s underlying significance, framing the question raised on appeal as “whether Hearst furnishes bona fide for‐credit internships or whether it exploits student‐interns to avoid hiring and compensating entry-level employees.”
Continue Reading Second Circuit Court of Appeals Rules That Hearst Interns Are Not Employees

BACKGROUND

In 2005, Congress passed the Real ID Act, enacting national standards for obtaining state driver’s licenses and I.D. cards. These federally mandated standards require states to use enhanced security features and identification procedures, and to review documentary evidence of legal status, before issuing a driver’s license or identity document. The Act requires that only individuals with a Real-ID-compliant identity document may (1) access federal facilities; (2) enter nuclear power plants; or (3) board commercial aircrafts for domestic flights.
Continue Reading In January, Will You be Able to Board Your Domestic Flight With Your Current Driver’s License?

The various laws, statutes, and policies governing non-compete agreements are nuanced, inconsistent, and sometimes downright contradictory from state-to-state.  The issue of consideration is no different.  Like other contracts, non-compete and restrictive covenant agreements must be supported by adequate and sufficient consideration at the time of execution.  However, what constitutes adequate consideration for a restrictive covenant, especially a non-compete provision, varies from state to state.  And, more importantly, the concept of adequate consideration has shifted in recent years reflecting an increasingly strict approach to enforcing non-compete agreements post-employment.
Continue Reading For Your Consideration: Recent State-to-State Developments on Sufficient Consideration for Employee Non-Compete Agreements

AB 1732, California’s Equal Restroom Access Act, goes into effect today, March 1, 2017.  Accordingly, all single-user toilet facilities in any California business establishment, place of public accommodation, or state or local government agency must be identified as all-gender toilet facilities.  A single-user toilet is “a toilet facility with no more than one water closet and one urinal with a locking mechanism controlled by the user.”  Essentially, single-user restrooms – restrooms with one toilet and/or urinal and sink – must now have a sign that states the restroom is for all genders.  For example, if your business establishment has two restrooms that are both single-user toilets, then both restrooms must be all-gender toilet facilities.  The signage must comply with Title 24 of the California Code of Regulations, including the required gender-neutral geometric sign (a triangle within a circle).  The new law will be enforced by inspectors, building officials, and other local officials who may perform inspections to ensure compliance.
Continue Reading All Single User Restrooms In California Must Now Welcome All Genders

Under a proposal recommended by the state’s Wage Board on Friday, January 30, 2015, tipped workers in New York state, including restaurant servers and hospitality workers, would have their minimum hourly wage increased to $7.50 per hour before tips.
Continue Reading New York Wage Board Recommends $7.50 Hourly Wage for Tipped Workers

As the Ebola virus has spread to a second city in the United States, and with the potential for additional cities to be affected, many businesses are faced with the difficult task of determining how to properly handle their workforce in the face of such an epidemic.  While there are many concerns employers may have with respect to Ebola and their workforce, this article will focus on six key considerations for employers when managing this, or any other, health epidemic.
Continue Reading Six Considerations For Employers Faced With The Ebola Virus Or Other Infectious Diseases

In Weber v. Fujifilm Medical Systems USA Inc., et al., case numbers 13-4891 and 14-0206, decided on October 9, 2014, the U.S. Court of Appeals for the Second Circuit held that a former executive’s employer could use “after-acquired” evidence – evidence of an employee’s misconduct during the period of employment which the employer discovers after the employee’s discharge on other grounds – to confirm the nondiscriminatory reason for his termination.
Continue Reading Employer Permitted to Use “After-Acquired” Evidence at Discrimination Trial

In an 8-0 decision[1] issued March 25, 2014 in United States v. Quality Stores, Inc., the Supreme Court held that severance payments made to employees who are involuntarily terminated are taxable wages for the purposes of withholding Federal Insurance Contributions Act (“FICA”) taxes, i.e., Social Security and Medicare.  This decision resolves a circuit split created when the Sixth Circuit ruled in 2012 that these kinds of severance payments did not constitute “wages” under FICA[2] while the Third, Eighth and Federal Circuits had all previously held that at least some severance payments were “wages” subject to FICA taxes.[3]

In the wake of this decision, employers should, under most circumstances, treat severance payments made to involuntarily terminated employees as taxable wages subject to FICA taxes. There are exceptions to the general rule, however, and it is important for employers to seek competent legal counsel to assist in determining the tax status of a specific severance program.


Continue Reading US v. Quality Stores, Inc.: Supreme Court Finds Severance Payments Taxable Wages Under FICA

In a recent decision out of the U.S. District Court for the District of Columbia, Judge Amy Jackson held that the Davis-Bacon Act (“Davis-Bacon”) did not apply to a privately-funded development of privately-maintained buildings to be occupied by private citizens and businesses.  Judge Jackson’s decision overturned the original decision of the Department of Labor’s (“DOL”) Administrative Review Board (“ARB”), which found that Davis-Bacon applied to the project because it served the interests of the general public.
Continue Reading Davis-Bacon CityCenterDC Case