DOJ v. Nursing Home Care Management, Inc. (3d Cir., Jan. 31, 2025).
Monday, February 3, 2025
Third Circuit: Home Health Aide travel time between client sites is compensable under the FLSA
DOJ v. Nursing Home Care Management, Inc. (3d Cir., Jan. 31, 2025).
Wednesday, January 29, 2025
President Trump Removes EEOC Commissioners and NLRB Member
President Trump removed a member of the NLRB, and two EEOC commissioners, leaving both without a quorum for the time-being. Can he do that? Under the statutory text of the NLRA, clearly no (it requires a hearing and neglect of duty or malfeasance). Under the statutory text of Title VII (re: EEOC), removal is not expressly addressed - it does generally specify five year terms though.
There is, however, a constitutional issue. The executive power is vested in one person, the President. This power *generally* includes the power to remove people who assist him in wielding the executive power. In Humphrey’s Executor v. U.S. in 1935, SCOTUS recognized an exception, holding "that Congress could create expert agencies (specifically, the FTC) led by a group of principal officers removable by the President only for good cause."In 2020, SCOTUS limited that holding by striking down the CFPB framework in which "an independent agency [is] led by a single Director" subject to statutory limitations on the President's power to remove them. Seila Law v. CFPB (linked below). The key distinction was a multi-member board versus a single director.
The NLRB and EEOC seem a lot more like the FTC in Humphrey's Executor than the CFPB in Seila Law. Some Justices appear inclined to overrule Humphrey's Executor though, and these recent removals may put the issue in front of SCOTUS.
Thursday, January 23, 2025
President Trump rescinds federal contractor affirmative action executive order
Notably, affirmative action did *not* mean implementing quotas, set-asides for specific groups, or hiring based on protected characteristics over merits (indeed, these would violate anti-discrimination statutes like Title VII). Instead, the order required employers to create organizational profiles with workforce analysis - tracking total number of employees by job title and identifying areas of underrepresentation compared to the availability of qualified women and minorities in the labor market; setting targets; and implementing action-oriented programs like recruitment and training programs.
Note that federal contractors are still subject to other affirmative action requirements regarding disabilities and veterans.
Wednesday, January 15, 2025
SCOTUS: Preponderance of the evidence standard for FLSA exemptions
You can read the full decision here.
Friday, January 3, 2025
New Pennsylvania law restricting noncompetes with health care practitioners is now in effect
The Fair Contracting for Health Care Practitioners Act took effect on January 1, 2025. The Act generally bans the use of noncompete agreements with certain health care practitioners but with some notable exceptions.
Who
The Act
defines “health care practitioner” as a medical doctor, doctor of osteopathy,
certified registered nurse anesthetist, registered nurse practitioner, or
physician assistant.”
What
“Noncompete covenant” is broadly defined as “An agreement that is entered into between an employer and a health care practitioner in this Commonwealth which has the effect of impeding the ability of the health care practitioner to continue treating patients or accepting new patients, either practicing independently or in the employment of a competing employer after the term of employment.” 35 Pa. Stat. Ann. § 10323.
When
The Act took effect
on January 1, 2025.
The
General Rule
Any noncompete
entered into with a health care practitioner after January 1, 2025 is “deemed
contrary to the public policy and is void and unenforceable by an employer.” 35
Pa. Stat. Ann. § 10324(a).
The
Exceptions
1. Less than one year, not dismissed. The general prohibition does not apply to noncompetes where (1) the duration of the restrictive covenant is less than one year; and (2) the health care practitioner was not dismissed by the employer. 35 Pa. Stat. Ann. § 10324(b).
2. Recovery of reasonable expenses. An employer may still contract with a health care practitioner to recover reasonable expenses, if the expenses are: (1) Directly attributable to the health care practitioner and accrued within the three years prior to separation, unless separation is caused by dismissal of the health care practitioner; (2) related to relocation, training and establishment of a patient base; and (3) amortized over a period of up to five years from the date of separation by the health care practitioner. 35 Pa. Stat. Ann. § 10324(c)(1).
3. Ownership
transfers. Noncompetes remain permissible for: (1) the sale of an ownership
interest or all or substantially all of the assets of the business entity; (2)
a transaction resulting in the sale, transfer or other disposition of the
control of the business entity, including by merger or consolidation; and (3) the
health care practitioner’s receipt, by purchase, grant, award, issuance or
otherwise, of an ownership interest in the business entity. 35 Pa. Stat. Ann. §
10324(c)(2).
Patient
Notification
Tuesday, December 3, 2024
DOL Proposes Phase Out of Subminimum Wages for Some Employees with Disabilities
The Department of Labor announced a proposed rule that would phase out certificates allowing payment of less than minimum wage to some workers with disabilities. Press release here.
As summarized by the DOL in the proposed rule:
The Fair Labor Standards Act (FLSA or Act) authorizes the Secretary of Labor to issue certificates allowing employers to pay productivity-based subminimum wages to workers with disabilities, but only where such certificates are necessary to prevent the curtailment of opportunities for employment.
The actual proposal is summarized as:
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Not official use. |
The Department specifically proposes to cease issuance of new section 14(c) certificates to employers submitting an initial application on or after the effective date of a final rule and permit existing section 14(c) certificate holders, assuming all legal requirements are met, to continue to operate under section 14(c) certificate authority for up to 3 years after the effective date of a final rule. The Department is also requesting comment as to whether, if this proposed rule is finalized, it would be appropriate to grant an extension for existing section 14(c) certificate holders who demonstrate a need and seeks comments on the need for such an extension period, and, if needed, its scope, structure and length.
Given the pending change of administrations, we will have to wait and see if this actually gets finalized and goes into effect.
Tuesday, November 19, 2024
Court Strikes Down DOL Overtime Rule
Stop me if you've heard this one! It's just before Thanksgiving, we just had a presidential election (in which Donald Trump got elected), and a new regulation increasing the minimum salary threshold for the white collar overtime exemptions is about to go into effect, when . . . a court strikes the rule down in its entirety nationwide. Yes, that happened in 2016 to the Obama DOL overtime rule. Guess what? It just happened again to the Biden DOL overtime rule.
Long story short: Certain white collar salaried employees are exempt from the FLSA's overtime requirements (i.e. they do not get paid time and a half for hours over 40 worked in a workweek). To qualify for the exemption the employee's must receive a salary in excess of a minimum salary threshold. It was $684 per week under a Trump administration rule. The Biden administration's rule increased the minimum to $844/week on July 1, 2024 and was scheduled to increase to $1,128/week on January 1, 2025.
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Not official use. |
On Friday, a federal court in Texas struck down the whole rule (opinion via Bloomberg Law).
Just tell me what this means!
The entire rule has been vacated. Yes, even the part that already went into effect in July. So, we're back to $684/week as the minimum salary threshold for the white collar exemptions.
Caveat: We may see an appeal, and we don't know how an appeals court will rule. We also don't know how the incoming Trump administration will handle those appeals (and/or whether it will propose a new rule of its own or repeal the Biden Rule).