In a unanimous decision, the California Supreme Court just held that the time spent by employees waiting for and undergoing security checks of bags and other personal items is compensable time under California law, even when the policy only applies to employees who choose to bring personal items to work. However, in a bit of good news for employers, the court left some wiggle room rather than craft a bright-line test by providing a multi-factor test as to whether “onsite employer-controlled activities” must be compensated as “hours worked.” In any event, this latest well-articulated decision instructs that, under the new multi-factor factor test, the element of employee choice is only one of several issues to consider when determining if the employee is subject to the employer’s control for an activity and thus owed compensation for that time (Frlekin v. Apple, Inc.).
Maryland has just joined a growing number of states and local jurisdictions — including Baltimore, Montgomery County, and Prince George’s County — in banning private employers from requesting information about an applicant’s criminal history in job applications. Thanks to the state legislature overriding the governor’s veto, it appears the ban-the-box law has taken effect immediately, so the time is now to make sure you are in compliance with Maryland’s newest employment statute.
The U.S. House of Representatives just passed a bill that would tilt the scales of labor law unequivocally in favor of organized labor. The Protecting the Right to Organize (PRO) Act would bring about a radical shift in labor relations and could even reverse the steady decline of unionization seen in this country since the 1950s. To reach this goal, the PRO Act takes aim at virtually every pro-employer right, outlawing and replacing them with a Frankenstein-like collection of pro-labor protections. What do employers need to know about the bill passed on February 6, and what could the future hold?
A federal appeals court just resurrected the salary history ban that will now prevent Philadelphia employers from asking job applicants about how much they are paid or setting new salaries based on pay history. Thanks to today’s 3rd Circuit Court of Appeals ruling, employers in Philadelphia must immediately alter their hiring practices and cease the practice of asking questions about compensation history on applications, in interviews, and at any stage during the hiring practice. You must also ensure that you do not use this forbidden information when setting new salary levels. What do employers need to know about today’s ruling and how best to come into compliance?
The federal government just released an updated Form I-9, and although you aren’t required to use the new version until May 1, 2020, best practices dictate that you should start using it immediately. It has been a few years since United States Citizenship and Immigration Services (USCIS) updated the Form I-9, which verifies the identity of new hires and ensures they are authorized to work in the United States. But with this recent announcement, you should take immediate steps to come into compliance or risk financial penalties.
A federal judge just extended the reprieve that permitted California employers to escape the grasp of a newly enacted law that aimed to prevent them from utilizing mandatory arbitration agreements with their employees. After granting a temporary restraining order that pressed pause on the new law before it could take effect on January 1, the court today granted a full preliminary injunction that will block the law during the court proceedings that will examine the legality of the new statute. This is good news for California employers, but because things could evolve rapidly over the coming weeks and months, you will want to pay particular attention to upcoming developments to ensure you are in compliance.
- 10 Takeaways From Latest EEOC Statistics1.28.20
Employers paid out a record $68.2 million to those alleging sexual harassment violations through the EEOC in 2019, shattering the all-time record by over $10 million and reminding us all that the #MeToo movement continues to be a major influence on workplaces across the country. This is just one of many interesting findings released by the Equal Employment Opportunity Commission (EEOC) in its annual data summary covering fiscal year 2019 (which wrapped up in September). The January 24 release is full of eye-opening statistics that could help you set your compliance priorities for 2020 and beyond. Here are 10 thought-provoking takeaways from the EEOC’s annual summary.
Although news outlets may be preoccupied with alarming updates about the spread of coronavirus – including several cases identified in the United States – employers don’t need to panic quite yet. As of today, the Centers for Disease Control and Prevention has labeled the current coronavirus outbreak as a serious public health threat but one where the immediate health risk to the general American public is considered low. At this point, the best course of action is to proactively arm yourself with information about best practices to keep your workforce safe and monitor developments to determine if additional steps will need to be taken. What should employers keep in mind during the early stages of this outbreak?
Thanks to a new law just signed into effect by Governor Phil Murphy, New Jersey employers will soon be required to provide severance pay and increased advance notice to most workers affected by a mass layoff or termination or transfer of operations. With the January 21 expansion of the Millville Dallas Airmotive Plant Job Loss Notification Act – otherwise known as the New Jersey WARN Act – most doing business in the state will have to provide a week’s worth of pay for each year of service under an employee’s belt as part of any mass layoff or termination or transfer of operations. The law making New Jersey the first state in the country to mandate severance pay during layoffs won’t take effect until July 19, 2020, but employers should begin to prepare now. Below is a summary of the law’s key points, along with a series of FAQs to help with your compliance efforts.
Now that we know that the Kansas City Chiefs will be playing the San Francisco 49ers in Super Bowl LIV in a few weeks, it’s time to assess whether this annual American tradition will create any workplace issues for your organization. With over 110 million television viewers expected to tune in – including die-hard supporters, casual fans, and those only interested in the halftime show and the commercials – you can be sure that many of your employees will be spending Sunday, February 2 watching football.
After a busy 2019 of expanding workplace protections in New York, Governor Cuomo just issued his 2020 State of the State to lay out his priorities for the coming year. And it should come as no surprise that several of the policy proposals announced on January 8 indicated an intent to continue New York State’s expansion of workplace laws into 2020 and beyond. Among the highlights to look for in the new year: paid sick leave, gig economy reforms, pay equity, and more.
The U.S. Department of Labor just finalized its rule that attempts to limit the scope of joint employment liability for wage and hour matters. Although much remains to be seen, this rule may usher in a new era, and could lead to fewer businesses being found to be joint employers by a court or agency when it comes to minimum wage, overtime, and other similar liability under the Fair Labor Standards Act (FLSA). However, many questions still remain about various aspects of this rule, particularly how courts will apply the test’s four factors as well as the alternative “catch-all” test. You should now reexamine your business models to capitalize on the new standard, which should take effect on or about March 16, 2020.
New York employers will soon be required to pay an estimated 70,000 tipped workers the full minimum wage, regardless of any tips received. Governor Andrew Cuomo just announced on December 31 that the New York State Department of Labor is issuing an order eliminating the tip credit for “miscellaneous” industries statewide by the end of 2020. That credit currently allows employers to pay a subminimum wage to certain tipped workers such as nail salon workers, hairdressers, aestheticians, car wash workers, valet parking attendants, door-persons, tow truck drivers, dog groomers and tour guides. Importantly, however, workers in the hospitality industry – such as restaurant wait staff, bartenders, or other service employees who customarily receive tips – will not be impacted by this impending change, and employers can continue to pay them a subminimum wage so long as tips received ensure the workers earn the applicable minimum wage.
As we look forward to the New Year, Massachusetts employers should be aware of upcoming changes to the Commonwealth’s employment laws that took effect on January 1, 2020, as well as possible changes we foresee on the horizon. Now is also the perfect time to ensure you are in compliance with laws that took effect in 2019.
Thanks to a constitutional provision that requires Florida to adjust its minimum wage each year to match inflation, employers in the Sunshine State must now pay their employees at least $8.56 per hour. The 10-cent increase was immediately effective when the clock struck midnight and ushered in 2020. But employers might not want to get too comfortable with the current level. Come November, Florida citizens may be voting on a massive jump that could ultimately increase the minimum wage to $15.00 per hour.
California employers just received a last-minute reprieve from complying with a newly enacted law that aims to prevent them from utilizing mandatory arbitration agreements with their employees – at least for now. A federal court just this morning granted a temporary restraining order requested by a coalition of business groups that presses pause on the new law before it could take effect on January 1. But the battle is just beginning, so California employers will want to pay particular attention to upcoming developments to ensure they are in compliance with the current state of employment arbitration agreement law.
The National Labor Relations Board just ruled that employers may now require confidentiality from employees involved in open workplace investigations. Importantly, yesterday’s decision in Apogee Retail LLC resolves conflicting commands from the Board and the Equal Employment Opportunity Commission regarding investigation confidentiality that has plagued employers for years.
The National Labor Relations Board decided yesterday that employees have no statutory right to use an employer’s equipment, including work emails and IT resources. Therefore, employers may legally restrict the use of their equipment, such as work emails, even for union organizing activities or for other activities protected under Section 7 of the National Labor Relations Act. In reversing a significant Obama-era ruling, the Caesar’s Entertainment decision holds that employees’ statutory rights to engage in protected, Section 7 activities must yield to the property rights of employers to control the use of their equipment, provided that employers do not target union-related communications and activity and that employees have reasonable alternate means of communication available to them.
The National Labor Relations Board just decided that employers have the right to cease union dues collections once the relevant collective bargaining agreement expires, again restoring balance to the labor relations landscape. Yesterday’s decision in Valley Hospital Medical Center, Inc., which returns to a legal standard that had stood for decades before being overturned in 2015, will provide employers more options during the negotiation process.
The Equal Employment Opportunity Commission today withdrew its 1997 policy statement that had disapproved of the practice of requiring workers to enter into arbitration agreements to resolve workplace discrimination claims and instructed its staff to proceed with claims against employers despite the existence of such agreements. The move, following two decades of Supreme Court decisions supporting the use of arbitration, is yet another recent step taken by federal agencies to restore a natural balance in the area of workplace conflicts. It’s not yet known how this policy will impact day-to-day operations at the EEOC, but it could limit the type of enforcement action employers may face if they have enforceable arbitration agreements in place.
Washington’s Department of Labor and Industries just decided to substantially raise the state’s salary threshold to meet the salary basis test for “white collar” overtime exemptions. As set out more specifically below, starting July 1, 2020, the state’s salary threshold will be determined by both an employer’s size and a multiple of the state’s then-current minimum wage for a 40-hour workweek.
Nevada employers will soon have a very important New Year’s resolution to complete: complying with the state’s first-ever paid leave law. Effective January 1, 2020, all private employers with 50 or more employees in Nevada will have to provide employees with up to 40 hours of paid leave per benefit year. If you aren’t up to speed on the basics of this impending change, the time is now to understand the necessary compliance steps.
At the end stages of lone Democrat Board Member McFerran’s term, the National Labor Relations Board (NLRB) today issued the first of what may be a number of rulings in the form of a procedural regulation rolling back some of the onerous requirements of the agency’s “quickie election” rule. That rule, which took effect in April 2015, removed long-standing due process rights that had been available to employers served with a union representation petition. It dramatically shrank the election campaign timeframe and disadvantaged employers desiring to educate workers on the facts surrounding union representation, while leaving employees with less time to consider those facts and less of a chance to make an informed choice at the ballot box.
For the first time in over 60 years, the U.S. Department of Labor today issued a final rule updating its interpretative guidance with respect to permissible exclusions from the “regular rate.” According to the USDOL, the proposed rule is intended to better reflect the modern workplace and provide clarity to employers on what types of compensation, benefits, or perks may be excluded from the regular rate. While the majority of the changes in the final rule are “interpretative” – meaning they do not have the force of full-fledged regulations – they provide needed clarity to employers and should help reduce litigation over what is and what is not included in the “regular rate.” The Final Rule will be published on December 16, 2019, with an effective date of January 15, 2020.
Following in the footsteps of New York City, which earlier this year prohibited employers from discriminating against applicants or employees based on their sexual and reproductive health decisions, New York State has followed suit and passed its own law. On November 8, 2019, Governor Cuomo signed a bill prohibiting employers from discriminating against an employee based on the employee’s or dependent’s “reproductive health decision making.” Both the State and City law seek to counteract the federal government’s efforts to curtail reproductive healthcare access. The recently passed state law has several legal requirements that New York employers should be aware of.
Despite not being able to prove the alleged wrongdoings that led an Arkansas employer to terminate an employee, a federal appeals court just handed an employer a victory in a gender discrimination lawsuit because of its “good faith” belief that the worker actually committed misconduct. The December 9 ruling from the 8th Circuit Court of Appeals could serve as a helpful resource for employers fending off discrimination claims – so long as you understand the critical steps you need to take in order to take advantage of the good faith defense.
For the first time ever, federal immigration authorities will be implementing an electronic registration system for H-1B petitions that is intended to simplify the annual process. In a December 6 announcement, U.S. Citizenship and Immigration Services (USCIS) revealed that employers seeking to file H-1B cap-subject petitions for Fiscal Year 2021’s season – which will run from March 1 to March 20, 2020 – will be required to electronically register and pay a $10 registration fee. “The electronic registration process will dramatically streamline processing by reducing paperwork and data exchange,” the agency said in the announcement, “and will provide an overall cost savings to petitioning employers.”
With another busy year for employment law legislation throughout New York State and New York City coming to a close, New York employers should be aware of new employment laws that will take effect in 2020, as well as laws that already took effect in 2019, to ensure compliance with changing obligations.
The Colorado Department of Labor and Employment just published proposed regulations that will dramatically overhaul the state’s wage and hour laws. This sweeping reform has the potential to impact every employer doing business in Colorado, addressing overtime, salary requirements, rest breaks, and a host of other factors. While the final version of these rules may slightly vary from their current form, and they won’t be effective until at least March 2020, you should take steps right now to understand them and plan for the finalization and implementation of these new laws.
Colorado employers will soon face two big changes that will impact your workplaces. In a matter of weeks, the state will adopt a new rule on use-it-or-lose-it vacation policies, and Denver will begin the process of increasing its minimum wage. With the new year approaching, now is the perfect time to get up to speed on these changes ad adjust your policies and practices.
It’s that time of the year again. Cyber Monday — the first work day following the Thanksgiving break — is expected break online shopping records. In 2018, retailers saw a 20% increase in Cyber Monday revenue as consumers spent over $7.9 billion on online transactions. Surprisingly, Cyber Monday has begun to outpace Black Friday, which only generated $6.2 billion in revenue.
The Oregon Court of Appeals just held that employers may be held liable not only for failing to allow employees to take meal breaks, but also for failing to ensure that employees take meal breaks to which they are entitled. This significant decision handed down on November 14 clarifies that Oregon employers have a legal duty to police their employees to ensure that they take their full meal breaks – merely providing employees with the opportunity to take such breaks is insufficient. Pursuant to the Maza v. Waterford Operations, LLC decision, if you fail to force an employee who works six or more hours to take a duty-free meal period for a continuous, uninterrupted 30 minutes, you might be responsible for paying the employee for the full 30 minutes.
Mere days before San Antonio’s Sick and Safe Leave ordinance was set to go into effect, the law was once again put on hold. In a ruling today, Bexar County Judge Peter Sakai temporarily delayed the start of the paid leave ordinance, which was set to take effect on December 1.
Joint employment took center stage yesterday during the release of the Fall Regulatory Agenda, as three separate federal agencies announced plans to move forward with revised joint employment rules in December. While the Department of Labor and the National Labor Relations Board had already released versions of their draft rules, it came as somewhat of a surprise to see the Equal Employment Opportunity Commission also announcing that it would weigh in on the topic before the end of 2019. With the uncertainty of an election year coming up in 2020, it appears that the agencies are kicking into overdrive in order to clarify joint employment standards as soon as possible.
Following a decision by the U.S. Supreme Court several months ago allowing a former employee to pursue a religious discrimination claim, a Texas federal jury recently ordered her former employer to pay her $350,000. The November 1 jury verdict came after the Supreme Court permitted her to pursue a claim under Title VII despite her failure to include the claim in her original charge with the Equal Employment Opportunity Commission (EEOC). The verdict reaffirms the risks and significant costs employers face in defending a claim — even one never filed with the EEOC — if it does not move to dismiss a complaint for failure to exhaust or, at a minimum, include this as an affirmative defense when answering the complaint.
In just a few short weeks, New Jersey employers will no longer be allowed to ask prospective employees about their salary history during the application or interview process or rely upon salary history in setting compensation. The rationale for the new statewide law is that setting compensation based on prior salary may perpetuate an unlawful pay disparity. By excluding salary history from the mix, employers will only be able to set compensation based on lawful considerations, including the specific job duties of the position and the applicant’s skill, education, training, and experience.