Video from Wage and Hour Presentation (FLSA Overtime Regulations)

On August 1, 2024, Jens Thorsen and Valhalla Business Advisors invited me to speak about recent developments in wage and hour law. It was a solid mix of fundamentals, and the new FLSA overtime regulations (with some Pennsylvania Minimum Wage Act thrown in for good measure). You can view the recording of Emerging HR Updates Seminar Overtime Rules '24. 

Overtime and Noncompete Regulations to Plan for in 2024

What better way to kick off the new year than with my latest article in Pennsylvania Business Central? The article addresses Overtime and Noncompete Regulations to Plan for in 2024. Will they actually take effect? We don't know yet. But, employers should start planning just in case.

Happy New Year! Now, what's your FFCRA paid leave plan?

Free whitepaper: Emergency Paid Leave - What Now? The FFCRA emergency paid leave and emergency paid FMLA mandates expired on December 31, 2020, but the tax credits live on. 

Bottom line: After December 31, 2020, employers are no longer required to provide emergency paid sick leave or emergency paid FMLA leave to employees - BUT - employers may voluntarily provide such leave and still receive the tax credit through March 31, 2021.

In the whitepaper, I included some pros and cons of voluntarily continuing FFCRA leave:

• CONS 
• 
  Administrative overhead. Someone will have to continue to track employee balances, document the requests, and obtain the tax credits. 
• Compliance costs. I’m still fielding calls and emails asking whether assorted absences are covered. o Cash flow. The payroll tax credits will likely not result in full reimbursement until after the employer has already paid for the leave. 
• PROS 
• Workplace and public health. The whole point of the emergency paid leave is to incentivize employees to stay home if they are experiencing symptoms or quarantined to prevent the spread of COVID-19. 
• Employee morale. Employees will likely appreciate employers shouldering the burdens described above to provide them with this extended benefit for the next three months.

Now is the time to decide!

Miles on the (now official) voluntary FFCRA extension

Straight from the department of shameless self-promotion, I am pleased to recommend Judy Greenwald's article in Business Insurance, Employers may extend FFCRA, but mandate ends: Experts, featuring quotes from... me! I'm "Experts" (along with fellow employment law bloggers, Jeff Nowak and Eric Meyer

You can read my prior summary here:

Bottom line: After December 31, 2020, employers are no longer required to provide emergency paid sick leave or emergency paid FMLA leave to employees - BUT - employers may voluntarily provide such leave and still receive the tax credit through March 31, 2021. 

At the time, I noted that "it ain't over till it's over" - after far more drama than anyone expected, still-President Trump signed the bill into law yesterday. 

New whitepaper: New Department of Labor overtime regulations are here, meanwhile Pennsylvania’s proposed regulations loom

Straight from the department of shameless self-promotion, my new whitepaper: New Department of Labor overtime regulations are here, meanwhile Pennsylvania’s proposed regulations loom. Enjoy!

Miles (and Wilt) on attorney-client privilege and work product doctrine

Straight from the department of shameless self-promotion: my latest article (co-authored by Ethan Wilt) in the Pennsylvania Bar Association Civil Litigation Update, Don’t Forward that Email: Avoiding Waiver of the WorkProduct Doctrine and Attorney-Client Privilege WhenCommunicating with Consultants. It's basically a case summary of BouSamra v. ExcelaHealth, 210 A.3d 967 (Pa. 2019), which I blogged about here.

Quoted on former employer job references and defamation

Much like Trace McSorely on his glorious touchdown last night . . .

Trace McSorley now is 7/11 with 94 passing yards to go along with this rushing touchdown tonight. He has the Ravens up 13-0 on the Eagles. Pretty solid for a guy who every single draft analyst said shouldn’t be in the league. #Ravens #PennState pic.twitter.com/3O80HnKP5Q

— Dylan Burd (@Sports_Burd) August 23, 2019

. . . sometimes, you gotta call your own number. Straight from the department of shameless self-promotion, check out this article in Business Insurance magazine, In the balance: Safety of minors vs. safety from lawsuits. The article addresses some of the issues employers face when a prospective employer seeks a job reference regarding a past or current employee.

Pennsylvania appellate court on joint employment

Ethan Wilt

Ethan Wilt, my fellow McQuaide Blasko attorney, published a new whitepaper: County not a joint employer of probation officer employee where the Probation Office ultimately operated under the final supervision and authority of the President Judge. That's a mouthful - I'll have to work with him on succinct, click-baity headlines.

The whitepaper covers a new Pennsylvania Commonwealth Court decision considering whether Clarion County was a joint employer with the Court of Common Pleas of Clarion County for purposes of liability under the Pennsylvania Human Relations Act (PHRA).

Quoted in Courts take note of sex stereotyping in #MeToo era in Business Insurance

Straight from the department of shameless self-promotion, check out Courts take note of sex stereotyping in #MeToo era in Business Insurance, featuring a quote from yours truly. Enjoy!

Miles on "The risky intersection of employee discipline and protected activity"

Straight from the Department of Shameless Self-Promotion: I am quoted in HR Dive's article, The risky intersection of employee discipline and protected activity. It also includes fellow #emplaw blogger, Eric Meyer of The Employer Handbook fame. Enjoy!

Quoted in HR Dive on Arbitration (Plus Additional Commentary)

Important information from the Lawffice Space Department of Important Information: HR Dive quoted me extensively in Lisa Burden's article, Employers Shouldn't Rush to Adopt Arbitration Agreements in Light of 'Epic,' Experts Say. It's a good article with some nice insight from others as well.The article relates to the Supreme Court's recent ruling in Epic Systems (see, Supreme Court Okays Class Action Waivers in Arbitration Agreements). 

For those of you  who just can't get enough, here are my full comments:

On when employers should use arbitration

Not everyone likes arbitration. I happen to like it. Generally (though not always), arbitration will be faster and cheaper. Employers can also agree to confidentiality, and select a convenient geographic location. The big development in this case is that arbitration agreements can also mandate one-on-one arbitration, effectively precluding class or collective actions. Class actions, like state wage and hour laws for example, are generally “opt out” – meaning that employers can be on the hook for people who have never (and otherwise never would have) filed a claim. Even FLSA collective actions (which are “opt in”) may draw in employees who would not ordinarily file their own claims, but would opt in to a collective action. One-on-one arbitration agreements are a way to prevent any liability for those employees.

There are some downsides to arbitration. For example, there are very limited appeal options (great if you win, not-so-great if you lose). Also, employers may face serial claims that would be better handled in one consolidated class or collective case. Every time I say arbitration is faster and cheaper, somebody tells me I’m crazy – sometimes it is, sometimes it isn’t (I still think *on average* it’s faster and cheaper). You face the prospect of fractured rulings – you may win one case, but then lose the next one even though the facts (other than the identity of the employee) are exactly the same.

Others have pointed out that employers may face backlash from forcing employees into secret one-on-one arbitrations. For example, the #MeToo movement has been very critical of serial harassers essentially evading detection because their cases were repeatedly resolved in confidential proceedings, or with confidential settlement agreements.

Employers have many options though. They can require one-on-one arbitration, or allow collective actions. They can use jury trial waivers to avoid jury trials, but still litigate in court. Ultimately, employers should consult with their attorneys regarding their options. In my humble opinion, employers will generally be better off with arbitration agreements – especially if they can avoid class or collective actions.

On whether the Epic Systems ruling extends beyond the NLRA

Yes. The parties challenging the arbitration agreements focused on the NLRA (in Epic Systems). Their theory of the case was that the NLRA protects employees’ rights to engage in “concerted activities,” which they argued includes the right to bring class and collective actions – including class and collective actions under other statutes. In fact, Epic Systems itself was originally filed as an FLSA claim for unpaid overtime. Epic Systems sought to compel arbitration, but the District Court held that the waiver of class and collective actions in the arbitration agreements was unenforceable because it violated the NLRA right of employees to engage in concerted activities. In fact, Epic Systems is actually three cases consolidated by the Supreme Court. All three cases arose from FLSA wage and hour (overtime) collective actions (although NLRB v. Murphy Oil was separately filed as an unfair labor practice charge with the NLRB). Also, at least one of the cases (Ernst & Young LLP v. Morris) included a class action claim for overtime under California state law.

So, yes, this ruling is broad and will impact other labor and employment law cases outside of the NLRA. The heart of the holding is that employers and employees can enter into arbitration agreements that require individual (i.e. one-on-one) arbitration to resolve employment disputes. If an employee who signed such an agreement files a class or collective action claim in court, the employer can compel one-on-one arbitration instead. This result is driven by the FAA (Federal Arbitration Act), and is not specific to any one labor and employment law.

On whether Congress will do anything about it

This decision came with a fair amount of controversy. However, most of the criticism came from the “left” side of the political spectrum; and the four dissenting Supreme Court Justices were the traditional “liberal bloc.” In her dissent, Justice Ginsburg expressly calls for “Congressional correction.” However, realistically, the ideological opponents of this decision are simply not in power. Democrats hold only a minority of the House and Senate; and, of course, President Trump is a Republican. In this case, the Office of the Solicitor General actually switched positions after the changeover from President Obama to President Trump, and ultimately supported the employer side. Presumably, that is an indication of President Trump’s view of the case. In short, I doubt we’ll see legislative action any time soon.

New Whitepaper: Supreme Court Okays Class Action Waivers in Arbitration Agreements

Yesterday, the Supreme Court issued an important decision regarding arbitration agreements (specifically, agreements requiring one-on-one arbitration as opposed to class or collective actions). Read all about it in my new whitepaper: Supreme Court Okays Class Action Waivers in Arbitration Agreements.

MORE Miles on Service Animals and the ADA

Great news! Bloomberg BNA used some of my interview for a second piece on the ADA implications of service animals in the workplace: Helping Workers Who Rely on Animals Without Making a Mess. Enjoy!

Miles on Service Animals and the ADA

Straight from the Department of Shameless Self-Promotion: Quiet, Dogs at Work: Why You May Soon Be Clocking In With Fido by Patrick Dorrian, Bloomberg BNA (featuring quotes from yours truly). Enjoy!

Miles on Regime Change in Washington

Straight from the Department of Shameless Self-Promotion, I present to you a recent story in the Pennsylvania Business Central: Change in management - The impact of regime change in Washington on labor law. The article includes extended comments from me, and another local employment law attorney, Amy Marshall.

I suppose now is as good a time as any to also note that Lawffice Space was selected by Feedspot as one of the Top 75 Employment Law Blogs on the web.

Miles on Overtime Regulations Litigation

The shameless self-promotion department directs your attention to the following Pennsylvania Business Central article: Overtime in Limbo - Businesses left to wait for final decision on overtime regulations. The article includes commentary on the future of the (currently enjoined) overtime regs . . . including commentary from yours truly. Enjoy!

Miles on New EEOC Retaliation Guidance

Not official use.

Straight from the shameless self-promotion department, here's a link to an HR BLR article regarding the EEOC's new retaliation guidance. I consulted with the author, Kate McGovern Tornone, and she included some quotes from me in the article.

You can read the EEOC's new Enforcement Guidance on Retaliation and Related Issues here. The article addresses a few hot-button issues, such as:

• New protection for bad faith or unreasonable internal reports;
• Protected activity relating to sexual orientation discrimination;
• The "manager rule"; and 
• ADA interference provisions.

The Scope of Discovery is Changing!

The Pennsylvania Bar Institute (PBI - famous for their "yellow books" in these parts) contacted me to update a chapter I had previously contributed to their Taking and Defending Depositions coursebook - seminar coming soon to Philly, Pittsburgh, and Mechanicsburg (sadly, I cannot participate in the actual seminar, but I'll be there in book form!). "No problem!" I said. After all, how much can the discovery rules change in a couple of years . . . .

Whoah! Did you know the scope of discovery is changing? Here's a brief excerpt from the updated chapter:

Amendments to the Federal Rules of Civil Procedure are scheduled to take effect on December 1, 2015 (available online at http://www.supremecourt.gov/orders/courtorders/frcv15_5h25.pdf, last visited Oct. 17, 2015). The rules include a significant change to the scope of permissible discovery. Currently, Rule 26 allows discovery of information that is relevant to any claim or defense, including information that “appears reasonably calculated to lead to the discovery of admissible evidence.” Fed. R. Civ. P. 26(b)(1). The amendments will replace the “reasonably calculated” standard with a “proportionality” standard: 

Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable. 

Fed. R. Civ. P. 26(b)(1)(amendment eff. Dec. 1, 2015). The new rule narrows the scope of permissible discovery.

That's a big change! The ABA has a nice article and commentary on the new rules here: Significant Changes to Discovery and Case Management Practices.

Social Media and the Practice of Law

I'm continuing to test the limits of my sanity, by taking on fun and exciting side projects. I again apologize for the dearth of blogging. One of these side projects is a CLE presentation that I will give at tomorrow's Centre County Bench Bar Day.

My presentation is titled Social Media and Today's Practice of Law. The general topics are:

• Using Twitter as a Legal News Service
• Discovery of Social Media
• Preservation Issues and Social Media
• NLRA Protected Concerted Activity and Social Media

You can check out the written materials here and the power point presentation here. The discovery topic has a Pennsylvania focus. 

Endnote: My other projects include working on www.KatieOliverForJudge.com and www.facebook.com/KatieOliverForJudge.

Miles on Braun v. Wal-Mart

Straight from the shameless self-promotion department . . . the latest issue of the Pennsylvania Bar Association Civil Litigation Section Newsletter is now available. Jump straight to my summary of the PA Supreme Court's opinion in Braun v. Wal-Mart here.

The PA Supreme Court affirmed a $188 million judgment against Wal-Mart for wage and hour violations. Wal-Mart has a petition for certiorari pending before the United States Supreme Court.