North America

Appellate Division Second Department Declines to Defer to NYSDOL Opinion Letter and Rules That Home Healthcare Attendants May Be Entitled to Wages for Hours Worked In Excess of 13 Hours a Day

In New York, State Department of Labor (“DOL”) regulations provide that the minimum wage must be paid for each hour an employee is “required to be available for work at a place prescribed by the employer.” (12 NYCRR § 142-2.1(b)) (“Wage Order”). Exception is made for a “residential employee,” defined as one who lives on the premises of the employer, during his or her sleeping hours or any time he or she is free to leave the place of employment. Id.

On March 1, 2010, the DOL issued an Opinion Letter advising that sleep-in employees, whether or not they are residential employees, who work a twenty-four hour shift must be paid not less than for thirteen hours for a twenty-four hour period provided they are afforded at least eight hours for sleep, actually received at least five hours of uninterrupted sleep and are afforded at least three hours for meals. (NYS St. Dept. of Labor OP. No-09-0169 at 4 (March 11, 2010)). The Opinion Letter was a reiteration of the DOL’s long standing interpretation of the Wage Order as applied to home health care attendants, and agencies assigning attendants to twenty-four hour shifts have long followed it in paying the attendants for this shift.

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South Dakota: State Supreme Court sides with sellers in the battle for online tax revenue

n eagerly awaited opinion that the South Dakota Supreme Court filed last week says that the state’s hands must remain tied when it comes to taxing the sales of internet retailers.

It was just two weeks ago that we addressed the positions each side presented to the state Supreme Court during oral arguments. To recap, the plaintiffs, internet sellers Wayfair, Overstock.Com, and Newegg, were fighting the state law, SB 106, that required remote sellers with no physical location in South Dakota to remit sales tax, and follow all procedures of the law, if they meet one of two criteria in the previous calendar year or the current calendar year:

  1. The remote seller’s gross revenue of sale of tangible property, any products transferred electronically, or services delivered into South Dakota, exceeds $100,000.
  2. The remote seller has 200 or more separate transactions tangible property, any products transferred electronically, or services delivered into South Dakota.

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California: Citizen initiatives are for special elections, two-thirds approval does not apply

The California Supreme Court recently issued an opinion in favor of the plaintiffs – the California Cannabis Coalition (CCC) and two individuals – holding that the mandate that general taxes be submitted to the voters at a regularly scheduled general election applies only to local governments, and not to the electorate’s initiative power. This meant that the initiative at issue in the case, pertaining to legalization of medical marijuana in the city of Upland, should be submitted to the voters at a special election, not at a general election.

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Oregon: First state-wide bike tax generates controversy and revenue

On Aug. 8, 2017, Oregon’s governor, Kate Brown, signed HB 2017, a transportation-funding package, into law. Called the Transportation Improvement, Modernization and Preservation (TIMP) package, the legislation will be financed through a gradual increase in the motor fuels tax and motor vehicles registration and titling fees, among other things, according to the revenue impact statement. The registration fee and title fee surcharges are set to take effect on Jan. 1, 2018.

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Premium Processing Reinstated for FY 2018 Cap H-1B Petitions

As of September 18, 2017, the U.S. Citizenship & Immigration Services (USCIS) resumed premium processing service for H-1B petitions filed as part of the Fiscal Year 2018 cap quota, which includes 65,000 regular H-1B filings and 20,000 additional petitions for candidates holding a U.S. Master’s degree. Premium processing is not resumed for other types of H-1B filings, such as normal-course H-1B Extension of Status or Amendment filings. The H-1B nonimmigrant category allows for the U.S. employment of skilled workers in specialty occupations, such as information technology, academic research, and accounting, and requires candidates to hold a minimum of a U.S. Bachelor’s degree, or its equivalent.

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Top Five Takeaways from MedPAC’s Meeting on Medicare Issues and Policy Developments – September 2017

The Medicare Payment Advisory Commission (“MedPAC”) met in Washington, DC, on September 7-8, 2017. The purpose of this and other public meetings of MedPAC is for the commissioners to review the issues and challenges facing the Medicare program and then make policy recommendations to Congress. MedPAC issues these recommendations in two annual reports, one in March and another in June. MedPAC’s meetings can provide valuable insight into the state of Medicare, the direction of the program moving forward, and the content of MedPAC’s next report to Congress.

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Howard & Howard congratulates our attorneys named to Michigan Super Lawyers and Michigan Rising Stars 2017

Chicago, Illinois, September 19, 2017: Twenty-nine of Howard & Howard’s attorneys were recently named to Michigan Super Lawyers®and Michigan Rising Stars 2017 as a result of a patented selection process. This process includes peer evaluation and independent research. Only five percent of the attorneys in Michigan were named to the Super Lawyers list and two and one half percent to Rising Stars.

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Trump’s Branding Problem

Donald Trump came to the White House with the lowest approval rating ever for an incoming president. From a branding perspective, things have not been getting better. On the 144th day of his presidency, Trump hit a 60% disapproval rating, giving him the dubious distinction of being the fastest to ever reach that mark (beating George H.W. Bush, who took 1,290 days to get there).

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More Suits Expected As Law Firm Runs Ads About CU Overdrafts

DETROIT–A law firm here is running newspaper ads headlined, “Attention Credit Union Members: Has your credit union assessed multiple overdraft charges when you believed you had a sufficient balance?”

One attorney who represents credit unions is warning that there will be “more of these lawsuits.” The ads received significant press attention in the Detroit Free Press.

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First Circuit Requires Identifiable Injury for Claims Asserting Deceptive Retailer “Compare At” Prices

Consumer class actions alleging that retailers are using deceptive comparison pricing tactics online and in stores are becoming increasingly common under state consumer protection statutes and common law causes of action.

In these cases, a retailer’s success in making a motion to dismiss the action depends, in large part, on the jurisdiction in which the case is filed. The U.S. Court of Appeals for the First Circuit recently provided additional support for retailers operating under Massachusetts law by affirming the dismissal of two separate deceptive pricing class action complaints against national retailers Nordstrom and Kohl’s. In its opinions, the court held that the Massachusetts Consumer Protection Act (MCPA) and Massachusetts common law require an identifiable injury beyond a plaintiff’s subjective belief about the value the product he or she is purchasing.

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