2015-01-01-MedicalMarijuana_photoHouse Bill 523 (or HB 523) is now through the General Assembly and on Governor Kasich’s desk for his signature. On May 10, 2016, the Ohio House of Representatives passed HB 523, a bill that would permit a patient, upon the recommendation of a physician, to use medical marijuana to treat a qualifying medical condition. The Senate made some changes, and on May 25, 2016, passed the bill as well. That same day, the House approved the changes made in the Senate and passed the revised bill.

Click here for highlights of the bill and to read the entire Client Alert.

wellness-crop-600x338On May 16, 2016, the Equal Employment Opportunity Commission (“EEOC”) issued final regulations regarding employers’ use of wellness programs. Such programs seek to promote healthy behavior by employees, often through financial incentives such as reduced healthcare benefits premiums or reduced gym membership costs. The EEOC rules amend existing regulations under the Genetic Information Nondiscrimination Act of 2008 (“GINA”) and create new regulations under the Americans with Disabilities Act (“ADA”).

Click here to read this Client Alert.

Overtime_Clock_Lead_Copyright_ImilianAfter months of waiting and speculation, the White House later today will release a new rule that could make more than four million Americans eligible for overtime pay. The rule will become effective in December, and will do the following:

  • Immediately double the minimum salary threshold for most white collar exempt classifications to $47,476 per year ($913 per week)
  • Adjust the minimum salary threshold for most white collar exempt classifications for inflation every three years
  • Change the way that the minimum salary is calculated so that employers can count bonuses and commissions toward as much as 10 percent of the salary threshold

Although the changes in the new rule are significant, many employers will be very relieved to learn that the White House decided not to make changes to the duties tests for the white collar exemptions at this time. Some observers, however, believe that changes to the duties tests are inevitable, and that the timing of those changes will depend largely on the outcome of the election in November.

A copy of the new rule, along with a summary from the White House of the basis for the rule, can be found here.

Employers should begin reviewing their exempt classifications and salary structures to prepare for the December effective date of the new rule. If you have questions about the rule or implementation strategies, contact a member of the Frantz Ward Labor and Employment Practice Group.

Federal law has long protected owners of patents, copyrights and trademarks from infringement of those intellectual property rights. Trade secret owners, however, traditionally had to rely on state law to protect their trade secrets from improper use or disclosure. Congress has now given trade secret owners an additional avenue for protecting their intellectual property: the Defend Trade Secrets Act of 2016 (the “DTSA”). The DTSA creates a civil cause of action under federal law for misappropriation of trade secrets.

Click here to read this Client Alert.

Based upon information received from a number of sources, it now appears that the Department of Labor’s controversial changes to the rules governing the white collar exemptions under the Fair Labor Standards Act will be finalized and published in the coming weeks – potentially as early as next week. Once published, it is expected that employers will have only 60 days before the new rules take effect.

Click here to read this Client Alert.

The Department of Labor’s Office of Labor Management Standards (“OLMS”) has released its long-anticipated revisions to its interpretation of the rules for the reporting of employer engagements with third parties to provide services designed to influence employees’ choices of collective bargaining representation. This is known as “persuader activity.” Employers who enter an agreement with an outside organization for persuader services must report the agreement on an official form, the LM-10 within 90 days of the end of the year. The outside organization must also file a report, the LM-20. These forms must be filed within 30 days of the making of the agreement. Then, after the end of each calendar year, the persuader must file an LM-21 form, which reports all of its labor-related activities (even non-persuader activity) for all employers.

Click here to read this Client Alert.

 

On January 29, 2016, the Equal Employment Opportunity Commission (“EEOC”) published a proposed revision to the Employer Information Report (EEO-1). The proposed revision to the EEO-1 would require employers to report data on the EEO-1 regarding their employees’ W-2 earnings and hours worked.

Currently, employers report on the EEO-1 their employees’ race, ethnicity and sex by job category. The proposed regulations would require employers to also report W-2 earnings by pay bands. The regulations provide for 12 pay bands for each job category. Under the proposed revisions, employers would also report on the EEO-1 the number of hours worked in each pay band. The EEOC encourages employer comments on how the hours worked should be collected.

The EEOC believes that the proposed wage information will assist it and other government agencies in identifying pay discrimination and also assist employers in promoting equal pay in their workplaces. However, the aggregation of multiple job classifications into job categories and the use of W-2 earnings means that the information will not correspond to the standards for violation of the Equal Pay Act or Title VII. It is therefore likely that the data will give misleading impressions of employer compliance and result in costly proceedings where no violation exists.

Under the proposed revisions, the first EEO-1’s with pay information would be due on September 30, 2017.

Members of the public have until April 1, 2016, to comment on this change. Frantz Ward LLP will continue monitoring this proposed regulation.

On January 21, 2016, the Equal Employment Opportunity Commission (“EEOC”) issued proposed enforcement guidance concerning retaliation claims. This guidance is intended to replace the 1998 Compliance Manual on Retaliation, and, not surprisingly, the guidance takes a broader view than many of the cases that have been decided since then.

The guidance makes clear that the anti-retaliation provisions that the EEOC enforces apply to prospective, current, and former employees. The guidance provides examples of prohibited conduct, including negative evaluations, refusing to provide references, advising prospective employers of the former employee’s discrimination claims, as well as the standard claims of demotion or discharge. Retaliation against third parties somehow linked to the employee is also prohibited.

Pursuant to the anti-retaliation statutes, protected activity may be established by demonstrating that an individual either “participated” in equal employment opportunity activity, or otherwise “opposed” discrimination. The proposed guidance attempts to limit the extent in which the individual must be acting in good faith. According to the guidance, “opposition” may have a good faith and reasonable belief component, while “participation” does not require good faith, truthfulness, or reasonableness. The EEOC is considering more and more complaints to be in the “participation” category, for example, by treating them not as opposition, but as participation in an internal EEO procedure. The guidance also provides examples of best practices that employers should follow to minimize the likelihood of retaliation violations. These best practices include:

  1. Establishing written policies against retaliation;
  2. Ensuring that all employees are properly trained;
  3. Providing anti-retaliation advice and support for employees, managers, and supervisors in order to improve practices and responses to retaliation complaints;
  4. Proactively following up with the complaining employees during any pending dispute; and
  5. Reviewing adverse employment actions with Human Resources and/or company counsel before implementing them.

The comment period ends on February 24, 2016. Because retaliation claims constitute the single most alleged category of violation of all EEOC claims, this proposed guidance will have important ramifications, and Frantz Ward LLP will continue monitoring if and when these proposed changes are implemented.

On November 2, 2015, President Obama signed the Bipartisan Budget Act (the “Act”) of 2015 into law.  P.L. 114-74. The Act changes the Federal Civil Penalties Inflation Adjustment Act of 1990, enacted at 28 U.S.C. §2461. These little-noticed changes have huge ramifications because they specifically remove OSHA from the list of agencies that are exempt from having the ability to raise fines. In other words, before this new law, OSHA’s fines stayed the same until Congress changed them.  Now OSHA will raise them right away and will increase them every year.

The Act has a “Catch Up Adjustment” provision, which will allow OSHA to immediately increase its penalties by up to 150 percent no later than August 1, 2016. After the initial increase, OSHA will have to adjust its penalties annually based on the Consumer Price Index for the month of October. Experts say there will be an immediate expected increase anywhere from 52 percent to 80 percent. This means that fines for willful violations may increase from $70,000 up to $125,000, and fines for serious and other-than-serious violations may increase from $7,000 up to $12,500.

It is clear from this change that employers are at an even greater risk for substantial fines and penalties if and when OSHA opens an investigation in their workplaces. If you would like to speak to someone about how to prepare for an OSHA investigation, please contact our office.

We will continue monitoring for any updates from OSHA regarding the final rules implementing the Catch Up Adjustment, and any future annual adjustments to the penalties in place.

Those that are considering providing services to clients and customers in the nascent marijuana industry should be cautious in this area. Even though many states have legalized medical and/or recreational marijuana to some degree, the fact remains that marijuana is illegal as a controlled substance under federal law, and there are companion laws prohibiting the aiding and abetting of those who engage in violations in the Controlled Substances Act. Until changes in federal laws are enacted, those that provide services to marijuana businesses do so at the discretion of federal prosecutors. Many service providers have additional standards and rules that need to be observed. For example, lawyers, in addition to being at risk for prosecution for the underlying drug offense, have the additional risk of violating ethics rules that prohibit attorneys from advising clients snagged in illegal activity.