Expert Analysis

• Loper Bright's Evolving Application In Labor Case Appeals

  

  Following the U.S. Supreme Court's decision in Loper Bright v. Raimondo, which upended decades of precedent requiring courts to defer to agency interpretations of federal regulations, the Third and Sixth Circuits' differing approaches leave little certainty as to which employment regulations remain in play, say attorneys at Foley & Lardner.

• H-2A Rule Rollback Sheds Light On 2 Policy Litigation Issues

  

  The Trump administration’s recent refusal to defend an immigration regulation implemented by the Biden administration highlights a questionable process that both parties have used to bypass the Administrative Procedure Act’s rulemaking process, and points toward the next step in the fight over universal injunctions, says Mark Stevens at Clark Hill.

• Calif. Justices Usher In Stricter Era For Wage Law Ignorance

  

  In Iloff v. LaPaille, the California Supreme Court determined that neither an employer's ignorance of wage obligations nor a worker agreeing to an unconventional arrangement is sufficient to establish good faith, demonstrating that the era of casual wage arrangements without legal vetting is over, says Brandy Alonzo-Mayland at Michelman & Robinson.

• Wash. Ruling Raises Pay Transparency Litigation Risk

  

  Washington Supreme Court’s recent decision in Branson v. Washington Fine Wine and Spirits, affirming applicants standing to sue regardless of their intent in applying, broadens state employers' already broad exposure — even when compared to other states with pay transparency laws, say attorneys at Hunton.

• A Mortgage Lender's Guide To State Licensing Overhaul

  

  Recent changes to the Conference of State Bank Supervisors' Nationwide Mortgage Licensing System require careful attention and planning from mortgage lenders, including tweaks to remote work designations and individual disclosure questions, says Allison Schilz at Mitchell Sandler.

• Lessons As Joint Employer Suits Shift From Rare To Routine

  

  Joint employer allegations now appear so frequently that employers should treat them as part of the ordinary risk landscape, and several recent decisions demonstrate how fluid the liability doctrine has become, says Thomas O’Connell at Buchalter.

• Navigating The Risks Of Employee-Influencers, Side Gigs

  

  Though companies may be embracing employee-influencer roles, this growing trend — along with an increase in gig employment — presents compliance risks, particularly around employee classification, compensation and workplace policies, as the line between work, influence and outside employment becomes increasingly blurred, say attorneys at Squire Patton.

• Diverging FAA Preemption Rulings Underscore Role Of Venue

  

  Two recent rulings evaluating Federal Arbitration Act preemption of state laws — one from the California Supreme Court, upholding the state law, and another from a New York federal court, upholding the arbitration agreement — demonstrate why venue should be a key consideration when seeking to enforce arbitration clauses, say attorneys at Hollingsworth.

• A Look At 2 Reinvigorated DOL Compliance Programs

  

  As the U.S. Department of Labor's Wage and Hour Division revives its Payroll Audit Independent Determination and expands its opinion letter program, employers should carefully weigh the benefits and risks of participation to assess whether it makes sense for their circumstances, say attorneys at Conn Maciel.

• 7th Circ. FLSA Notice Test Adds Flexibility, Raises Questions

  

  In Richards v. Eli Lilly, the Seventh Circuit created a new approach for district courts to determine whether to issue notice to opt-in plaintiffs in Fair Labor Standards Act collective actions, but its road map leaves many unanswered questions, says Rebecca Ojserkis at Cohen Milstein.

• Handbook Hot Topics: State Laws Shape Drug-Testing Policies

  

  With the growing popularity of state laws regulating drug testing, employers must consider the benefits and costs associated with maintaining such policies, particularly where they are subject to conflicting state laws, say attorneys at Kutak Rock.

• Calif. Arbitration Fee Ruling Gives Employers Slight Leeway

  

  The California Supreme Court's decision in Hohenshelt v. Superior Court of Los Angeles County offers a narrow lifeline that protects employers from losing arbitration rights over inadvertent fee payment delays, but auditing arbitration agreements and implementing payment tracking protocols can ensure that deadlines are always met, say attorneys at Buchalter.

• 3rd Circ. FMLA Suit Revival Offers Notice Rule Lessons

  

  In Walker v. SEPTA, the Third Circuit reinstated a former Philadelphia bus driver's Family and Medical Leave Act lawsuit, finding the notice standard is not particularly onerous, which underscores employers' responsibilities to recognize and document leave requests, and to avoid penalizing workers for protected absences, say Fiona Ong and Leah Shepherd at Ogletree.