- Federal Contractors Can Proceed As Normal For The Time Being10.26.16
In a somewhat surprising development, a federal court in Texas blocked the government from implementing most of the federal contractor “blacklisting” rules that were slated to go into effect on October 25, 2016. The final rules and guidance implementing the Fair Pay and Safe Workplaces Executive Order, signed by President Obama in July 2014 and published in August 2016, would have required contractors to disclose violations of numerous workplace laws, such as Title VII and the FLSA, when bidding for work with the government. But by virtue of Judge Marcia Crone’s October 24 order, contractors can carry on and proceed without present concern about most of the blacklisting rules.
Pay equity issues are hot. President Obama has made pay equity one of the hallmarks of his administration by signing the Lilly Ledbetter Fair Pay Act, establishing the National Equal Pay Task Force, and championing the fight for all employees to receive equal pay for equal work, regardless of sex. States throughout the country have followed suit, enacting sweeping pay equity legislation in the past few years.
Workplace law was once again a topic of discussion during last night’s third and final presidential debate between Hillary Clinton and Donald Trump. While not covered as extensively as during the first debate on September 26, there were several points during the evening where issues were raised that should be of interest to employers.
- Gig Economy, High Tech Sector In The Crosshairs10.19.16
Earlier this week, the Equal Employment Opportunity Commission (EEOC) announced a new series of enforcement priorities on which it will focus over the next five years. By releasing its second-ever Strategic Enforcement Plan, the EEOC provided a clear message to employers regarding the areas that will occupy a considerable amount of attention when it comes to investigations, enforcement actions, and litigation from 2017 to 2021.
Administrators at K-12 school districts around the country have enormous responsibilities, with Title IX compliance high up on their list. While all administrators are concerned with doing the right thing by their students, almost without exception they have exceptionally limited resources with which to operate.
ESPN recently reported that the National Labor Relations Board (NLRB) had “ruled” that Northwestern University’s football players were actually “employees,” and that the University’s policing of its football players’ social media accounts and media appearances, as well as its ban on athletes’ talking about their health, were unlawful. While the story was sensational and received considerable media attention, this summary is not entirely accurate. The Labor Board has made no such “ruling,” and therefore private colleges and universities should treat such reports with a grain of salt.
- Employers Must Submit New Report By March 31, 201810.10.16
In furtherance of its commitment to combating pay discrimination, the Equal Employment Opportunity Commission (EEOC) recently finalized its proposed changes to the Employer Information Report, commonly known as the EEO-1 Report. While the EEOC annually collects information about the number of employees by job category and by sex, race, and ethnicity, employers will also be required to provide summary pay data about their employees as of March 31, 2018.
The world of labor and employment law is always evolving at a rapid pace. In order to make sure that you stay on top of the latest developments, here is a quick review of the eight greatest stories from last month that all employers need to know about.
- January 1, 2017 Will See Broader Requirements10.5.16
California’s data breach notification law is already considered the most stringent in the United States. Based on a new amendment recently signed into law, the law will soon get even tougher.
- Changes Effective January 1, 20179.30.16
The U.S. Department of Labor (USDOL) unveiled final regulations yesterday that will require federal contractors to provide up to 56 hours of paid sick leave to those employees performing work on or in connection with certain contracts issued on or after January 1, 2017. President Obama issued an Executive Order to mandate this requirement in September 2015, but the regulations themselves create a whole set of new specific responsibilities. Contractors will want to familiarize themselves with these rules as soon as possible.
The Morristown Town Council enacted an ordinance several weeks ago which will require private employers with employees in Morristown to provide paid sick leave. Under the language of the ordinance, the law was scheduled to go into effect on October 4, 2016. However, based on recent action from the mayor, the effective date has now been delayed until January 11, 2017.
On Thursday, September 29, California Governor Jerry Brown signed legislation which will require all single-occupancy restrooms in any business establishment, place of public accommodation, or government agency to be identified as “all gender” and be universally accessible. The bathrooms to which this law applies are toilet facilities with no more than one water closet and one urinal, and with a locking mechanism controlled by the user.
- New Law Extends Provisions To Race And Ethnicity9.30.16
On September 30, 2016, California Governor Jerry Brown signed the Wage and Equality Act of 2016 (SB 1063) into law, which will prohibit employers from paying employees of one race or ethnicity a lower wage than employees of different races or ethnicities. The bill is a virtually verbatim extension of the Fair Pay Act’s requirements that apply between workers of opposite genders. It will go into effect on January 1, 2017.
The topic of labor and employment law made an early appearance at last night’s presidential debate between Democratic candidate Hillary Clinton and Republican candidate Donald Trump. Although typically not a needle-moving topic garnering much by the way of mainstream attention, the two nominees were able to spend some time discussing their positions on subjects that could directly impact the workplace during their first head-to-head encounter.
- Three Things To Know About Latest Court Decision9.26.16
A federal appeals court recently ruled that a woman rejected from a job because she refused to cut her dreadlocks could not proceed with a race discrimination claim against the employer. The decision highlights the distinction between individual expression and inherently racial characteristics in the context of race discrimination claims under Title VII.
- Town Joins Ever-Growing List Of New Jersey Municipalities Requiring Paid Leave9.21.16
On September 13, 2016, the Morristown Town Council passed Ordinance No. 35-2016, which will soon require all private employers in Morristown to provide paid sick time to employees. The ordinance goes into effect on October 4, 2016 for non-unionized employees, and at the expiration of any collective bargaining agreement currently in effect for unionized employees.
In keeping with its goal of pioneering workers’ rights, Seattle’s City Council passed its controversial Secure Scheduling Ordinance on September 19, 2016, which will require certain retail and food establishments to provide both a “livable wage” and a “livable schedule” to their employees. Their employees also gain the right to request, and in some situations obtain, the preferred schedule of their choice.
- Supreme Court Decision Impacts Potential Emotional Distress Damages9.21.16
On September 19, 2016, the New Jersey Supreme Court upheld a jury’s award of $1.4 million in emotional distress damages to two Hispanic brothers who were found to have suffered race-based harassment at the hands of company executives and who claimed they were fired for complaining. In the process, the court made it much more difficult for employers to seek reductions in such awards from trial judges, meaning that New Jersey employers could face the possibility of higher emotional distress damage verdicts (Cuevas v. Wentworth Group).
- New State Law Will Mandate “Phase-In” Overtime Requirements9.13.16
On September 12, 2016, Governor Jerry Brown signed the Phase-In Overtime for Agricultural Workers Act of 2016 (AB 1066) into law, providing more stringent overtime protections for agricultural workers. California law currently requires that employers only pay agricultural workers overtime when they work more than 10 hours in a day, but under the new law, sponsored by the United Farm Workers’ union, employer compensation obligations will increase considerably.
It’s the night of the big game. Parents, students, and fans fill the stands. The marching band takes the field, but as the band begins to play the national anthem, the football team’s star player drops to one knee – similar to the rash of professional sports figures that have recently done so – leaving district or university administrators scrambling to determine the appropriate response.
- Decision Provides Boost To Gig Economy Businesses9.9.16
The 9th Circuit Court of Appeals delivered a significant victory to Uber and other gig economy businesses by reversing a trial court’s denials of Uber’s motions to compel arbitration in companion class action lawsuits brought by former drivers in Massachusetts and California. The decision not only provides tremendous leverage to Uber as it continues to fight class action litigation over classification issues, but it also boosts gig employers in their efforts to require mandatory arbitration instead of costly courtroom battles.
In keeping with its goal of pioneering workers’ rights, Seattle’s City Council is expected to pass its Secure Scheduling Ordinance this fall, requiring certain retail and food establishments to provide both a “livable wage” and a “livable schedule” to their employees. While originally designed to imitate San Francisco’s secure scheduling law for large “formula” retailers, Seattle’s proposed ordinance will far surpass San Francisco’s in its employee and employer coverage, onerous requirements, and penalties.
- 2nd Circuit Refuses To Join Circuit Courts Siding With NLRB9.8.16
Employers can breathe a sigh of relief after the 2nd Circuit Court of Appeals once again upheld the validity of class and collective action waivers in arbitration agreements. Rather than siding with several recent circuit courts that struck down mandatory class and collective action waivers, the 2nd Circuit (covering New York, Connecticut, and Vermont) stuck to its guns and prior precedent to rule that employers can require employees to bring arbitration claims on an individual basis and prohibit them from joining together to bring class or collective actions (Patterson v. Raymour’s Furniture Co.).
- Employee’s Religious Discrimination Claim Falls Flat9.7.16
In our last edition of the Healthcare Update, we reported that the Equal Employment Opportunity Commission (EEOC) had filed a June 2016 lawsuit against that Baystate Medical Center in Massachusetts, claiming that the employer did not reasonably accommodate the sincerely held religious beliefs of an employee who refused to take a flu shot.
- Labor Regulation Banning Such Policies Upheld By 9th Circuit Court9.7.16
Restaurants and other hospitality businesses in the Western U.S. received bad news late yesterday as a federal appeals court refused to strike down a controversial tip-pooling regulation. The U.S. Department of Labor’s (USDOL) rule prohibits businesses from requiring employees to share their tips even if the tipped employees are paid minimum wage, and although a group of hospitality employers hoped that a court would reject the rule as running contrary to well-established law, the 9th Circuit Court of Appeals once again upheld the rule.
- Practical Tips For Handling Latest Mobile Device Craze9.6.16
There is something a little bit different about going back to school this year: your school is filled with Pokémon, awaiting capture by your students, employees, and visitors. By now, you are probably familiar with Pokémon Go, an augmented reality game that has gone viral since its July 2016 release. Players use their mobile device to capture, train, and battle Pokémon that virtually appear in real life locations.
The world of labor and employment law is always evolving at a rapid pace. In order to make sure that you stay on top of the latest developments, here is a quick review of the seven biggest stories from last month that all employers need to know about.
On August 29, 2016, the Equal Employment Opportunity Commission (EEOC) released its Enforcement Guidance on Retaliation and Related Issues. The document is a helpful tool for employers when navigating the often-treacherous retaliation road, and will be used by agency investigators, plaintiffs’ attorneys, and courts as a guidepost when examining employer actions. Here are 10 things you need to know about the guidance in order to stay up to speed.
- False Sexting Claims Prove Employer’s Downfall8.30.16
The federal appeals court in New York just adopted a broad standard for employer liability as a consequence of discriminatory acts by their employees. This standard opens the door to a significant increase in claims being filed by disgruntled workers. In an August 29 decision, the 2nd Circuit Court of Appeals joined several other federal courts and, for the first time, adopted the “cat’s paw” theory of liability in the context of a Title VII claim. This decision now puts employers on notice that they need to be extremely careful before acting on employee-generated evidence of wrongdoing when proceeding with disciplinary action (Vasquez v. Empress Ambulance Service, Inc.).
The final rule and guidance implementing the Fair Pay and Safe Workplaces Executive Order, signed by President Barack Obama in July 2014 and finally published on August 25, 2016, remain almost as burdensome and problematic as they were when originally proposed. They will impact many federal contractors and require immediate attention to ensure full compliance, which for some will be required as soon as October 2016.
- New Enforcement Initiative May Require Revisiting Current – And Former – Agreements8.25.16
The federal Securities and Exchange Commission (SEC) has issued six-figure fines to two different employers in the past several weeks, claiming that each crafted restrictive severance agreements that violated agency rules aimed at preventing companies from discouraging whistleblowing by current and former employees. By levying over $600,000 in fines in the span of two weeks, the SEC is sending a strong message to corporate America that severance agreements cannot unduly limit workers from reporting possible whistleblower tips. This surge in enforcement may require you to revise your current template settlement agreements to remove offending language, and might also encourage you to revisit past agreements and make retroactive amends.
- Schools Forced To Adjust On Cusp Of New Academic Year8.23.16
A federal judge in Texas has dealt a serious blow to the Obama administration’s transgender school bathroom directive, barring the federal order which required schools to allow transgender students to use bathrooms, locker rooms, and other facilities according to their gender identity. U.S. District Judge Reed O’Connor granted a preliminary injunction in an order published late Sunday, August 21, the night before most schools begin their school year in Texas. However, the ruling does not just apply in Texas; it prevents the administration from asserting its guidelines on school districts nationwide.
- Groundbreaking Ruling Changes Face Of University Employment8.23.16
In a game-changing decision reversing clear legal precedent, the National Labor Relations Board (NLRB) ruled by a 3-1 margin today that university students who work as teaching and research assistants at private universities are “statutory employees” under the National Labor Relations Act (NLRA) and can organize to form unions (Columbia University). The ruling applies to both graduate and undergraduate students who perform work, at the direction of the university, for which they are compensated. It will require private universities to immediately conform their practices to adjust to this new era of labor law.
- Employers Lose Latest Battle In National War8.22.16
Employers received their most bruising loss in the ongoing war involving class action waivers today, as the 9th Circuit Court of Appeals became the second federal circuit to strike them down as illegal. When the 7th Circuit issued an opinion earlier this year and became the first appeals court to make such a ruling, employers could view the decision as an anomaly and take comfort in the fact that all other courts reaching a decision had upheld class waivers. But today’s decision changes the national legal landscape (Morris v. Ernst & Young).
- Uncertain Times Ahead For Many Gig Employers8.19.16
In a surprising development, a federal court judge rejected a proposed settlement yesterday which would have seen gig giant Uber pay up to $100 million to resolve a series of legal claims challenging its classification model, characterizing the proposed settlement as “not fair, adequate, and reasonable.” While the shelved deal might end up actually helping Uber in the long run, the latest chapter in this long-running class action battle means that all gig companies will continue to live in a world of uncertainty when it comes to the thorny issue of misclassification.
- Further Advice On Hiring Permanent Strike Replacements8.18.16
An Ohio employer recently learned the hard way that employers need to be cautious when it comes to communicating with striking employees about permanent replacements. By mistakenly telling them that their employment had been “terminated,” the employer has been ordered to pay out a large sum of money to the striking workers, and – worse yet – hire them back. The lessons learned from this case can help you avoid the same fate (Tri-State Wholesale Building Supplies v. NLRB).
- Three Things You Should Know About Latest Court Decision8.17.16
A federal court recently upheld the validity of an employer’s class action waiver, forcing a disgruntled worker into arbitrating his case individually instead of using the court system to launch a large-scale class action. Typically, this kind of decision would not be particularly significant; after all, many businesses employ class waivers, and the overwhelming number of federal courts examining them have approved their use. But this case is noteworthy for two reasons: it was the first time a federal court published an opinion on class waivers since the 7th Circuit became the first court to reject them, and the decision boosts the burgeoning gig economy (Bekele v. Lyft, Inc.).
Employers returning from their summer vacations might have a rude awakening when they realize that new workplace posters are now required as of August 1, 2016. While you and your workers might have been busy hitting the beach or your favorite vacation spot, the U.S. Department of Labor (USDOL) was busy updating two mandatory posters and announcing that the revised versions need to be posted at once.
Travis Vance was featured on WBT NewsTalk 111AM on August 6, 2016. In the segment, Travis provides employers with seven tips to keep their employees safe from mosquito-transmitted Zika.
The world of labor and employment law is always evolving at a rapid pace. In order to make sure that you stay on top of the latest developments, this legal alert provides a quick review of the five biggest stories from last month that all employers need to know about.
- But Decision Provides Ample Warning To Employers8.2.16
A federal court of appeals recently announced that it had no choice but to deny an LGBT plaintiff’s request to proceed with a sexual orientation discrimination claim against her former employer because it concluded that such claims could not be brought under Title VII. However, the court went out of its way to note the many ways in which employers could still face cognizable claims from LGBT employees, and indicated that “perhaps the writing is on the wall” for Title VII to soon include a prohibition on sexual orientation discrimination. While this case counts as a “win” for the employer, it should stand as a warning for all employers to recognize that the legal landscape is rapidly changing.
On August 1, 2016, Massachusetts Governor Charlie Baker signed into law a comprehensive pay equity bill entitled The Act to Establish Pay Equity (the Act). This new law is part of a growing trend of state legislation aimed at the gender wage gap, with similar measures passing in California and New York in the past year. The Act will become effective on July 1, 2018, giving employers time to evaluate their pay practices and make necessary changes to comply with the law.