Under a new law signed by Governor Jared Polis yesterday, Colorado employers will soon face potential criminal charges for failure to pay wages. Once the new law takes effect on January 1, 2020, you will need to ramp up your wage and hour compliance efforts or risk facing criminal penalties. How exactly can Colorado employers avoid becoming felons?
An advice memorandum just released by the National Labor Relations Board General Counsel’s office could be the beginning of the end for “Scabby the Rat,” “Corporate Fat Cat,” and similar oversized balloons often employed by unions to exert pressure on neutral employers as part of secondary picketing actions. The Board’s counsel recommended in a May 14 release that the NLRB reverse several Obama-era decisions that permitted the use of such balloons, as well as the erection of stationary banners, as lawful non-picketing secondary activity under the National Labor Relations Act (NLRA). If the current Board follows the recommendation contained in the advice memo, businesses will have a valuable tool to help them with such union confrontations.
Finding that “workforce mobility is important to economic growth and development,” Washington just passed a new law that will significantly restrict noncompetition agreements with both employees and independent contractors. The governor signed the bill it into effect on May 8, ushering in a new era for restrictive covenants in the state.
Janet Dhillon’s confirmation as the new Chair of the Equal Employment Opportunity Commission (EEOC) earlier this week will have an impact on employers in more ways than one. Besides installing an agency head that is seemingly in a position to understand and balance the interests of the business community and workers alike, the Senate has restored a quorum to the agency for the first time in several months – meaning that the agency can get down to work on several critical initiatives. What do employers need to know about the new head of the federal employment law agency?
The Social Security Administration recently resurrected its practice of issuing Employer Correction Request notices – also known as “no-match letters” – when it receives employee information from an employer that does not match its records. If you find yourself in receipt of such a letter, we recommend you take the following seven steps in conjunction with working with your Fisher Phillips counsel.
The EEOC just announced that, in order to comply with a recent shocking court order, most employers will need to turn over compensation information from both 2017 and 2018 when they submit their Component 2 pay data with their EEO-1 submission on September 30, 2019. While there is still a chance that an appeals court could put the pay data/hours worked reporting requirement on hold once again, or that a newly reconstituted EEOC Commission might modify the regulations, you should start taking action immediately under the assumption that all of this information will need to be disclosed by the recently announced due date. Meanwhile, the May 31, 2019 deadline for the traditional demographic data (now called “Component 1” data) remains firmly in place.
In a major positive development for gig economy businesses, the U.S. Department of Labor today issued an opinion letter today confirming that certain workers providing work for a virtual marketplace company are, indeed, independent contractors. While this letter can only be used as an authoritative legal defense by the specific (unnamed) gig economy business that requested the letter, this publication still provides the federal government’s official interpretation on whether a certain business model or practice complies with the law. We now have a solid understanding of how the current USDOL views the misclassification question and will approach it from an enforcement perspective, and the news is all good for gig businesses.
The Kentucky Court of Appeals just held that non-lawyers may no longer represent employers in unemployment proceedings, ruling that such a practice is unconstitutional. As a result, you must immediately adjust any business practice that involves human resources managers, supervisors, or other non-lawyers handling such administrative proceedings.
A federal court announced today that employers have until September 30, 2019 to turn over pay data as part of your revised EEO-1 reporting obligations. After several weeks of uncertainty, you now have a definitive due date to mark on your calendars for this unprecedented new obligation. While there is still a chance that an appeals court could put the pay data reporting requirement on hold once again, you need to start taking action immediately under the assumption that September 30th is the actual due date for the delivery of your 2018 compensation information. This ruling is very significant because it impacts all employers with 100 or more workers.
By a 5-to-4 vote, the Supreme Court ruled today that the Federal Arbitration Act does not allow a court to compel class arbitration when the agreement does not clearly provide for it. As a result, employers whose valid arbitration agreements do not contain an explicit class action waiver (assuming they do not expressly consent to class arbitration) can rest easy knowing that the agreements allow them to compel alleged class claims to individual arbitration (Lamps Plus Inc. v. Varela).
Tennessee employers who want to avoid workplace-bullying lawsuits need only adopt the state’s model anti-bullying policy and they will enjoy immunity from such claims, thanks to a new law just signed into effect yesterday. Thanks to H.B. 856, an expansion of the Healthy Workplace Act, private employers can now take advantage of the law to shield themselves from troublesome legal claims spurred by allegations of workplace bullying. What should Tennessee employers do in order to capitalize on this new law?
In a highly anticipated move, the U.S. Supreme Court today agreed to consider a trio of cases that will determine whether the nation’s most prominent workplace discrimination statute prohibits employment discrimination against LGBT workers. The issue: whether Title VII’s ban against “sex” discrimination covers claims involving sexual orientation and gender identity. Employers will finally have a definitive answer regarding the contours of the federal primary civil rights law as it applies to members of the LGBT community.
The Massachusetts Department of Paid Family and Medical Leave—the agency charged with regulating and enforcing the Commonwealth’s nascent paid leave program—just issued its mandatory workplace poster and guidance on the law’s notification requirements. Yesterday’s announcement provides employers with needed guidance on the law’s notice requirement—an obligation you must meet by May 31, 2019. What do Massachusetts employers need to know about this latest development?
Despite a 10 percent overall drop in the number of charges of employment discrimination, the Equal Employment Opportunity Commission just reported that sexual harassment charges filed with the agency jumped by 13.6 percent from the previous year. The 7,609 sexual harassment charges received in FY clearly demonstrate that the #MeToo movement is in no way slowing down. What do employers need to know about this development?
The New York City Council just passed legislation which will prohibit employers from requiring a prospective employee to submit to drug testing for the presence of tetrahydrocannabinols (THC), the active ingredient in marijuana, as a condition of employment. The law, which is expected to soon be signed into effect by the mayor, will amend the New York City Human Rights Law and make it a discriminatory practice to require a job applicant undergo pre-employment marijuana testing. What do New York City employers need to know about this latest development?
Under a new law just signed by Governor Matt Bevin yesterday, many Kentucky employers will need to change their human resources practices and provide reasonable accommodations to workers for pregnancy, childbirth, and related conditions. The new law goes into effect on June 27, 2019, so employers will need to make adjustments in order to stay in compliance. What exactly must Kentucky employers do?
The U.S. Department of Labor just became the latest federal agency to propose a rule to limit the scope of joint employment liability, this time for wage and hour matters. If the rule released earlier today is adopted in its current form, the USDOL would examine whether a business is a “joint employer”—equally liable for liability under federal wage and hour laws—through the use of a four-factor balancing test, assessing whether the potential joint employer:
The USDOL has proposed to update guidance regarding how the "regular rate" is calculated for purposes of overtime pay. While the provisions are meant to clarify terms rather than change the calculation, employers should be prepared for increased awareness of the fact that the “regular rate” for purposes of overtime calculations oftentimes is not simply an employee’s assigned hourly rate.
Cincinnati City Council has passed Ordinance No. 0083-2019 barring employers from asking applicants for their salary history. The city becomes the latest of a growing number of jurisdictions to adopt a salary history ban on employers. In addition to Cincinnati, salary history bans exist in the cities of Chicago, Kansas City, Louisville, New Orleans, New York City, Philadelphia, Pittsburgh, and San Francisco. Several counties have also passed similar bans.
Late yesterday, the Office of Federal Contractor Compliance Programs (OFCCP) released its Corporate Scheduling Announcement List (CSAL) in the OFCCP FOIA Library. You can find the list here. Previously, contractors were provided CSAL letters by mail, advising them of the OFCCP’s intent to conduct a compliance audit. However, as foreshadowed in recent directives, OFCCP will only be posting the CSAL in the FOIA library without mailing advanced notification to contractors. Contractors may access this large Excel spreadsheet which contains, among other things, the parent name, the establishment name, and the type of review OFCCP intends to conduct.
Kentucky Governor Matt Bevin signed into law Senate Bill 7 which brings Kentucky back in line with every other state by allowing employers to require employees to arbitrate claims as a condition of employment. The new law, signed yesterday, also allows employers and employees to contractually limit the time period in which employees must file employment-related claims and specifically allows an employer to require, as a condition of employment, a background check. This is all very good news for Kentucky employers.
Employers in New Jersey will need to immediately adjust their employment contracts and settlement agreements to come into compliance with a sweeping new law that just took effect. New Jersey’s governor just signed Senate Bill 121, which limits employment contracts and settlement agreements in two major ways.
There seems to be growing momentum in Washington, D.C. to establish a national paid leave program, but – as with most things in the nation’s capital – there seem to be differing views on how to accomplish this stated goal of both political parties. Although the White House unveiled a budget proposal on March 11 calling for the establishment of a paid parental leave program, that $750 million funding wish aims for the creation of paid leave programs at the state level that are “most appropriate for their workforce and economy.” Meanwhile, leaders from both parties have recently unveiled their own plans to create sweeping federal paid leave programs – one of which goes beyond parental leave.
Despite a recent court ruling resurrecting the requirement that employers turn over compensation information along with standard demographic figures, the EEOC this morning unveiled its 2019 EEO-1 reporting system that fails to include any request for such pay data. It appears as though employers will not have to provide information about their employees’ 2018 compensation for the time being – although you should still be prepared for this to change at a moment’s notice, and should begin preparing for such pay disclosures in the near future.
In a unanimous opinion, a federal appeals court just rejected the National Labor Relations Board’s “subgroup majority status rule” for determining when college and university faculty members are to be deemed managers and therefore excluded from coverage under the National Labor Relations Act (University of Southern California v. NLRB). The rule, first articulated in the Board’s 2014 Pacific Lutheran decision, required that a faculty subgroup (e.g. nontenure faculty) seeking to organize must have majority control of any committee that made managerial decisions before the Board would find that subgroup to be managers.
We have waited years to see where the U.S. Department of Labor would land with its much anticipated revised “overtime rule”—late yesterday, the agency delivered. The USDOL released its long-awaited proposed rule which, if adopted, would set the minimum salary threshold at $679 per week, annualizing to $35,308 per year. For now, the proposed rule does not include an automatic update provision (which many were concerned would simply serve to periodically inflate the threshold level), nor does it revise the duties test that accompanies the rule.
A federal judge in Washington D.C. sent shockwaves through the employment law community late last night by reinstating a revised version of the EEO-1 report, which is now once again set to gather compensation information from employers across the country. The resurrection of the controversial revisions, which had been cast aside by the White House shortly after President Trump took over, will almost certainly be challenged by an appeal and could also lead to further agency maneuverings. While we have not yet seen the final chapter of this controversy written, employers need to prepare for the possibility that their pay practices will soon be placed under a federal microscope like never before.
The National Labor Relations Board just decided that private sector unions cannot use fees paid by nonmembers to fund their lobbying efforts. Especially when coupled with last year’s momentous Janus decision at the U.S. Supreme Court, Friday’s decision in United Nurses & Allied Professionals (Kent Hospital) could further impact the effectiveness of union lobbying activities. What do employers need to know about the latest decision from the Labor Board?
A New York federal court recently reinforced the limited geographic scope of the New York City Human Rights Law, a city law which provides broader anti-discrimination and anti-retaliation protections to employees than the New York State Human Rights Law and federal anti-discrimination laws. Courts have long held that New York City Human Rights Law (NYCHRL) claims are limited to those claims where the alleged discriminatory conduct had a “discriminatory impact” within New York City. The Eastern District of New York federal court reaffirmed this principle in response to a plaintiff who attempted to stretch the jurisdictional bounds of the NYCHRL to encompass a claim where the alleged discriminatory conduct occurred far from the five boroughs of New York City (Amaya v. Ballyshear LLC).
- Landmark 9th Circuit Ruling Scrapped Because Of Deceased Judge2.25.19
The Supreme Court took the unusual step today of vacating a 2018 federal appeals court decision because one of the judges counted in the majority was deceased by the time the decision was published, reversing a landmark pay equity ruling that concluded employers could not justify wage differentials between men and women by relying on prior salary. Although the justices did not examine the merits of the 9th Circuit’s Yovino v. Rizo ruling in today’s unsigned five-page opinion, their decision plunges employers back into a state of uncertainty regarding a controversial pay equity practice.
New Jersey’s governor just approved a significant expansion of the state’s leave laws, permitting employees job-protected leave for a variety of new reasons while expanding available state-provided, income-replacement benefits. The February 19 action by Governor Phil Murphy expands existing job-protected leave under the Family Leave and SAFE Acts, and available benefits under Family Leave Insurance.