DOL Proposes New Rule Clarifying the Test for Classification of Workers

On September 22, 2020, the U.S. Department of Labor (DOL) issued a new proposed rule that would substantially simplify the test for determining whether persons are employees or independent contractors under the Fair Labor Standards Act (FLSA).

Because the FLSA does not actually define “employee,” courts have traditionally filled the void by applying an “economic realities” test that balances several factors. But in issuing a new proposed rule, the DOL noted that the current balancing test is difficult to apply, creates confusion, and is out of step with modern technology and working relationships.

For the full alert, visit the Faegre Drinker website.

As Hair Discrimination Bans Grow, New York City Seeks Public Comment on Proposed Rule

July 3, 2020, marked the one-year anniversary of California becoming the first jurisdiction in the country to pass the Create a Respectful and Open Workplace for Natural Hair (CROWN) Act, prohibiting discrimination based on natural hairstyles and textures. One year later, many more jurisdictions have followed suit.

The CROWN Act is now law in seven states – California, New York, New Jersey, Virginia, Colorado, Washington and Maryland – and eight additional states have either pre-filed, filed or formally stated an intent to introduce their own bills outlawing hair discrimination, including Illinois, Massachusetts, Michigan, Minnesota, Ohio, Pennsylvania, Rhode Island and South Carolina. On August 11, Nebraska also passed a bill but was promptly vetoed by the governor. A further 15 states introduced bills that failed to move through the legislature before the end of the legislative session. Companion bills were also introduced in the U.S. Senate and House of Representatives in late 2019.

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U.S. Department of Labor Issues New FMLA Leave Forms and Requests Public Comments

In June, the Wage and Hour Division of the Department of Labor, the division tasked with enforcing the Family Medical Leave Act (FMLA), revised its model forms for employers to give to employees to support certain FMLA-qualifying reasons for leave. The new forms are intended to clarify compliance requirements and streamline administration of FMLA leave.

For the full alert, visit the Faegre Drinker website.

A Genetic Mutation That Interferes With Normal Cell Growth May Qualify as a Disability Under the ADA

In a case of first impression at the circuit level, the Sixth Circuit Court of Appeals reversed dismissal of a disability discrimination complaint because the plaintiff had plausibly alleged a condition covered by the Americans with Disabilities Act (ADA) based on a genetic mutation causing abnormal cell development.

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“Hair Love” Coming to a Jurisdiction Near You

With the Oscar win for best animated short film, Hair Love shone a spotlight on California’s CROWN Act (Create a Respectful and Open World for Natural Hair), which prohibits discrimination based on natural hairstyles and textures. Bills addressing hairstyle discrimination are now pending in 21 statehouses around the country, with several municipalities considering their own legislation. With companion bills already pending in the U.S. Senate and House of Representatives, a version of the CROWN Act is likely to become law in a jurisdiction near you soon.

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Top 10 Noncompete Developments of 2019

If there was any question about whether there is a growing national trend to limit the enforceability of noncompetition agreements, 2019 settled the matter. Seven states enacted new statutes designed to limit the circumstances in which noncompetition agreements may be used. The Federal Trade Commission (FTC) announced that it is considering a regulation to restrict the use of noncompete clauses in employment agreements, and Republican lawmakers on Capitol Hill have held hearings and introduced legislation to create a federal ban on certain noncompete restrictions.

The following is a summary of the top 10 noncompete law developments of 2019. These developments reflect an ever-increasing hostility by lawmakers and courts toward noncompetition agreements. They also demonstrate the need for employers to stay current on the diverse state-specific limitations governing restrictive covenants, new federal activity in the area and ongoing case law developments. In light of this trend, national employers would do well to: be selective in identifying those categories of employees required to sign such agreements; narrowly tailor the scope of such agreements; and rely on choice-of-law and venue provisions, as allowed, to maximize the chances of enforceability.

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