Employment Law Update 2017-9
Posted on Jul. 18, 2017

This is Legal-mail no. 2017-9 prepared for interested HR professionals trying to deal with the complex American employment laws. 







REPEAL? REPAIR? REPLACE? WHO KNOWS? Yes, this update will sound familiar, because Congressional Republicans and the new Trump administration continue to struggle in their efforts to repeal and replace the Affordable Care Act (ACA). Their latest effort barely passed in the House and now is struggling and failing in the Senate. The Senate Majority Leader has proposed two bills, neither of which was able to attract the fifty votes needed to pass. Recently, the Senate leadership has said it now will seek to simply repeal the ACA without any immediate replacement and then delay the repeal for two years as they search for a replacement. However, commentators suggest that this approach also may be unlikely to attract fifty votes because of the uncertainty it will inflict on the insurance market and indeed, as this update is published, enough GOP senators have expressed opposition that this approach likely will not work either. As before, the governing GOP seems right now to lack consensus on how to approach these issues. Until they reach agreement and pass a new law, the ACA remains the law of the land. Stay tuned for more developments.


NEW I-9 FORM AND HANDBOOK: The United States Citizenship and Immigration Services office (USCIS) of the Department of Homeland Security has published a new I-9 form for employers, and a newly-revised handbook for employers. Employers must start using the form by no later than September 18, 2017. The new form is available here:https://www.uscis.gov/i-9. The new employer I-9 handbook is available here: https://www.uscis.gov/i-9-central/handbook-employers-m-274.


DOL OT SALARY INCREASE RULES LIKELY DEAD: The current salary threshold for white collar exemptions from the federal Fair Labor Standards Act (FLSA) is $455/week, or $23,660/year. Last year, the United States Department of Labor (DOL) issued new regulations that doubled these minimum salaries, but a court put the new regulations on hold. The Trump administration has been considering what to do with these regulations it inherited after the 2016 election, and it recently announced it will no longer defend the lawsuit that had challenged the new regulations. This effectively kills those new regulations which were set to take effect in December of 2016. DOL apparently still is considering issuing new regulations that will increase the minimum salary an employer must pay to an employee in order for that employee to be exempt from overtime pay under FLSA. New DOL Secretary Alexander Acosta suggested in his confirmation hearings that, due to the increase in the cost of living, the salary amount should be increased to somewhere around $33,000/year (which is about $635/week).


LAWSUIT ALLEGES PATERNAL LEAVE DISCRIMINATION: A sex stereotyping discrimination complaint recently filed with the Equal Employment Opportunity Commission (EEOC) alleges that a national investment bank discriminates against fathers who are employees and ask for parental leave. The employer’s policy allowed for 16 weeks of parental leave if the employee is the primary caregiver of the involved child, and 2 weeks of leave to non-primary caregiver employees. The plaintiff employee sought 16 weeks of leave, but the employer allegedly told him its presumption is that the mother is the primary caregiver and because the employee’s wife, a teacher, had the summer off when he sought leave, it would not consider him to be the primary caregiver. The EEOC will conduct an internal review of the charge if the parties are not able to resolve it themselves.


COURT ALLOWS LAWSUIT BY FIRED MEDICAL MARIJUANA USER: News reports indicate that a Massachusetts court has ruled that employees can sue for disability discrimination when fired or punished for using medical marijuana. The case involved an employee who was discharged after failing a mandatory drug test. The court said allowing for the use of medical marijuana could potentially be a reasonable accommodation for an employee’s disability if that employee has been legally prescribed marijuana, noting that “Under Massachusetts law … the use and possession of medically prescribed marijuana by a qualifying patient is as lawful as the use and possession of any other prescribed medication.” Massachusetts voters approved a 2012 ballot question allowing medical marijuana use, and that initiative stated there should be no punishment for patients who qualify for the medical use of marijuana. The Massachusetts court also noted that: “The fact that the employee's possession of medical marijuana is in violation of federal law does not make it per se unreasonable as an accommodation.” Looks like the phrase “high performer” will soon have a whole new meaning in Massachusetts!

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mikeAttorney Michael
Patrick O'Brien

Mike O’Brien is an experienced and accomplished employment attorney, media lawyer and courtroom litigator.  He is active in SHRM and has received the highest possible reviews from rating services like Martindale - Hubbell (AV rating), Chambers USA, Utah Business Legal Elite, Best Lawyers in America, Who’s Who Legal USA, and SuperLawyers.  HR Executive Online has named him as one of America’s most powerful 100 employment lawyers, but keep in mind, this does not mean he is good at moving heavy furniture.

Awards and Recognition


OBrien Best

Chambers 2011 Attorney

Super Lawyers
Michael Patrick O'Brien

Best Lawyers In America, “Salt Lake City Best Lawyers Employment Law Lawyer Of The Year,” 2011-2012

Best Lawyers In America, First Amendment Law, Labor And Employment Law, 2005-2012

Chambers USA, Labor & Employment, 2003-2011

Employment Lawyer Of The Year, Utah State Bar, 2001

Human Resources Executive, Nation’s Most Powerful Employment Lawyers In America, 2010

Mountain States Super Lawyers, 2007-2012

Utah Business Magazine, Legal Elite, Labor And Employment, 2006-2012