On January 9, 2017, New York Governor Andrew Cuomo issued two executive orders aimed at addressing the perceived gender, race, and ethnicity-based wage gaps. Noting that the state government must lead by example and ensure equal pay for all New Yorkers, the two executive orders – which Governor Cuomo signed as part of his 2017 State of the State address – prevent state entities from asking job applicants about their compensation history and require state contractors to disclose data on the gender, race, ethnicity, job title, and salary of their employees.
- Employers Should Soon Have Clarity On Subject1.17.17
In a widely expected move, the U.S. Supreme Court just agreed to settle a dispute about whether employers can use mandatory class action waivers with their workers. The decision, which should be issued by June 2017, will provide clarity to a topic that has become increasingly muddled over the past year. Employers will spend the next several months with their fingers crossed hoping the decision falls in their favor.
January 2017 is one of those rare months including a Friday the 13th, which might bring to mind a horror movie where a seemingly vanquished killer somehow rises to his feet – once again! – to wreak havoc on his stunned victims. Just like an undead specter rising from the grave long after you think it’s been killed off, an employer recently faced a retaliation claim despite the fact that a 13-year gap existed between the alleged protected activity and the adverse action.
On January 9, 2017, Kentucky Governor Matt Bevin signed into law a bill that made Kentucky a right-to-work state. The law took effect immediately. Employers in the state should familiarize themselves with this significant new development, as it could have an impact on your workplace.
- Groundhog Day Comes Early For West Coast Auto Dealers: Another Loss In Service Advisor Exemption Battle1.10.17
In a disappointing but perhaps unsurprising decision, the 9th Circuit Court of Appeals once again ruled that service advisors employed by automobile dealerships do not qualify for the Section 13(b)(10)(A) overtime exemption under the federal Fair Labor Standards Act (FLSA). For dealers on the west coast, this might sound like a familiar story. In fact, you would be forgiven if you feel like you are reliving an early version of Groundhog Day and hearing the same story once again. You wouldn’t be far off.
To ring in the New Year, Governor Andrew Cuomo announced the creation of a 200-member multi-agency Minimum Wage Enforcement and Outreach Unit on January 2, 2017. The Unit’s goal is to ensure that all minimum wage workers in the state of New York are paid the proper rate. Here’s what in employers in New York need to know about this development.
- State Supreme Court Decision Forces Businesses To Get It Right The First Time1.4.17
If you are using a noncompetition agreement in Nevada, you may want to consider reviewing that agreement. The Nevada Supreme Court recently held that state courts shall not modify – or “blue pencil” – non-compete agreements in order to bring them into compliance with the law. The court explained that if a non-compete agreement contains even a single provision which “extends beyond what is necessary” to protect a company’s interests, then the entire agreement will be deemed unenforceable.
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 biggest stories from last month that all employers need to know about:
- Eleventh Hour Ruling Impacts Healthcare Industry On Eve Of Implementation1.3.17
On Saturday, December 31, 2016, a federal judge in Texas entered a nationwide preliminary injunction barring the enforcement of antidiscrimination protections pertaining to transgender and abortion health services and insurance coverage under the Affordable Care Act (ACA). The decision impacts healthcare providers across the country and may require your immediate attention (Franciscan Alliance, et al. v. Burwell, et al.).
- Split In Circuits Could Lead To Supreme Court Intervention12.28.16
The 11th Circuit Court of Appeals ruled that a disabled worker forced to leave her position because of her physical impairment must compete for vacant jobs when seeking reassignment, handing a victory to her former employer. By concluding that employers have no obligation to provide preferential treatment to individuals with disabilities when attempting to accommodate them via reassignment, the court decision runs in direct conflict with various other circuits – and the EEOC – which have ruled otherwise. Unless and until the Supreme Court steps in to resolve the circuit split, employers must be sure to carefully navigate the various standards that exist across the country when accommodating their employees.
- Lessons To Make Sure Your Workers Are Prepared12.28.16
Before last week, late 1980s pop singer Richard Marx had not made news headlines since, well, the late 1980s. Over 20 years ago, Marx was very well known for his smooth tenor vocals and flowing mane of hair. He hit his peak when his popular song “Right Here Waiting” – the video for which has been viewed over 110 million times on YouTube – made it to number one on the Billboard Top 100 in 1989. Marx was not, however, widely viewed as someone who could teach lessons about best practices in workplace safety (although he did have a 1992 hit called “Hazard”).
Lost in the shuffle surrounding the United States Department of Labor’s (USDOL) proposed (but stalled) increases to the salary threshold for the “white collar exemptions” under the Fair Labor Standards Act (FLSA) was the New York State Department of Labor’s (NYSDOL) proposed increases to the salary threshold for administrative and executive employees under the New York Labor Law (NYLL).
Today, the California Supreme Court ruled that employers must provide their workers with duty-free rest breaks or face potentially devastating financial consequences. Most California employers know that state law generally requires you to provide meal and rest breaks to non-exempt employees during their work day, and failure to do so could result in being forced to pay an additional one hour of pay at the employee’s regular rate of pay. As today’s California Supreme Court decision in Augustus v. ABM Security Services, Inc. illustrates, failure to comply with these often onerous requirements can lead to overwhelming financial liability.
On December 14, 2016, the Occupational Safety and Health Administration (OSHA) published its final rule establishing procedures and time frames for handling automotive industry employees’ whistleblower retaliation complaints under MAP-21 (the Moving Ahead for Progress in the 21st Century Act, 49 U.S.C. 30171). The final rule, which became effective immediately, is identical to the interim final rule that was published on March 16, 2016.
The U.S. Department of Labor (USDOL) has finalized a rule expanding nondiscrimination and affirmative action requirements in apprenticeship programs registered with the USDOL or state apprenticeship agencies. Program sponsors face staggered implementation of the rule’s provisions beginning in just a few short weeks – on January 18, 2017 – so the time to come into compliance is now.
While the federal minimum wage has remained steady at $7.25 for the past seven years, many state and local jurisdictions have set their own minimum rates higher than the federal level. And, of course, when a local jurisdiction mandates a rate higher than the federal rate, you must pay your employees the higher rate. Here is a listing of all the planned increases currently on tap for 2017.
Los Angeles just joined the ranks of other cities like San Francisco and New York City by enacting its own ban-the-box ordinance, prohibiting private employers from inquiring about criminal convictions during the application process. But not to be outdone by other cities, the Los Angeles Fair Chance Initiative for Hiring, Ordinance No. 184652, will be among the most restrictive in the country for private employers, taking it a few steps beyond the restrictions faced by other employers across the country. If you employ any workers in Los Angeles, you will want to get up to speed on this new law as soon as possible, as the effective date of the ordinance is just a few weeks away.
President-elect Donald Trump has announced that he would nominate Andrew Puzder to be the next Secretary of Labor. This Cabinet-level position heads the U.S. Department of Labor (USDOL), one of the federal agencies that has the widest and deepest impact on employers across the country. Assuming that Puzder’s selection is confirmed by the Senate, what should employers know about him in order to predict what life will be like under his tenure as part of the Trump administration?
New York City lawmakers have introduced a suite of legislation aimed at penalizing retail and fast food employers for making last-minute changes to employee schedules, while also providing protection for all New York City employees who request flexible work arrangements. The six bills, introduced to the City Council on December 6, 2016, strive to give retail and fast food employees more notice of and predictability in their schedules, while compensating them with extra pay for last-minute schedule changes.
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.
As 2016 winds down, we are entering into the prime season for holiday gatherings. Based on a recent study by the Society for Human Resource Management, approximately 65% of employers plan to host a holiday or end-of-year party. Although these parties can be a lot of fun, they can be hotbeds for potential employer liability. So, what can you do to reduce the potential for mishaps?
- Although Rule Can Still Be Challenged, December 1 Effective Date Is On Track11.30.16
On November 28, a Texas federal court judge issued a ruling that cleared the way for the whistleblower provisions of the new Occupational Safety and Health Administration (OSHA) Recordkeeping Rule to take effect as scheduled. While the ruling permits OSHA’s whistleblower requirements to take effect on December 1, 2016, the court’s decision does not determine whether OSHA’s controversial interpretations of this rule will ultimately be upheld in the long run, or whether the Trump administration will follow these interpretations.
Employers are returning from their Thanksgiving holiday weekend grappling with thorny questions following last week’s surprising and momentous court decision preliminarily blocking the Department of Labor’s overtime rule from taking effect. Here are some answers to your most pressing questions from our firm’s thought leaders on the subject.
- Rules Will Not Take Effect On December 1; Future Thereafter Uncertain11.22.16
In a dramatic last-minute development, a federal judge in Texas today blocked the U.S. Department of Labor’s (USDOL’s) overtime rule from taking effect on December 1, handing an eleventh-hour victory to employers across the country. Agreeing with arguments posed by concerned states and business groups, the judge issued a preliminary injunction preventing the rules from being implemented on a nationwide basis.
This Monday after Thanksgiving – also known as Cyber Monday – is expected to be the largest online shopping day in history. Last year, an estimated 52% of Americans participated in Cyber Monday and spent over $3.1 billion, easily the busiest online shopping day of the year. The numbers are expected to rise even higher for 2016. A recent study predicted sales over $3.36 billion, an increase of almost 10% over last year’s figures.
- Controversial Rule Appears To Be All But Dead For Foreseeable Future11.16.16
Today a federal court judge delivered what could be the final nail in the coffin for the controversial persuader rule, which sought to force attorneys and their clients to report in open records the details of their confidential attorney-client relationships, and which would have complicated employers’ efforts to seek legal counsel in opposing and dealing with unions. District Court Judge Sam R. Cummings, sitting in the Northern District of Texas, today granted a permanent injunction will block the rule from going into effect on a nationwide basis.
After a narrow defeat of a medical marijuana proposition four years ago in socially conservative Arkansas, this year’s election result means that Arkansas will soon join many other states and become the first in the so-called “Bible Belt” to permit certain eligible users to use medical marijuana without fear of prosecution by state officials. The passage of Issue 6, the Arkansas Medical Marijuana Amendment, is troublesome for employers, however, as it leaves open some very basic questions about whether and to what extent the use of the drug by applicants and employees will need to be accommodated.
It’s official: Donald Trump will soon be our nation’s 45th president. Now the work begins to forecast what the next four years will bring. We’ve spent some time gathering our firm’s collective wisdom on what the next administration will mean for workplace law and the nation’s employers.
Yesterday’s election result means that Florida will soon be the 26th state in the country to permit certain eligible users to use medical marijuana without fear of prosecution by state officials. The passage of Constitutional Amendment 2 is troublesome for employers, however, as it leaves open some very basic questions about whether and to what extent the use of the drug by applicants and employees will need to be accommodated.
- Legalization Of Recreational Marijuana Will Not Impact Company Policies11.9.16
With yesterday’s vote legalizing recreational marijuana in Nevada, some employers might be concerned about the impact that this new law will have on workplaces across the state. However, Nevada employers can rest comfortably: the new law will not prevent you from maintaining and applying zero-tolerance or similar drug policies in your places of employment. Even with the passage of Question 2 (garnering some 54% of the popular vote), you will be free to screen applicants, administer drug tests, and discipline employees who test positive for marijuana.
- Why California Employers Don’t Have To Be 420 Friendly After The Legalization Of Recreational Marijuana11.9.16
November 8, 2016 marked an election that will go down in history. On the radar of most California employers is the passage of Proposition 64, which legalizes the recreational use of marijuana for adults 21 years of age and older (The Adult Use of Marijuana Act). However, for the time being, not much will change for California employers.
- 3 Things You Need To Know About Latest Decision11.3.16
An employer recently claimed a significant victory in a case brought by a former employee who believed he had been unfairly targeted for termination because of his Family and Medical Leave Act (FMLA) leave request. The federal court of appeals decision is significant because it provides support for those employers who wish to root out fraudulent abuse of FMLA leave from their workplaces, offering a blueprint for how to navigate such a situation.
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 alert provides a quick review of the eight greatest stories from last month that all employers need to know about.
- Decision Helps Employers Who Use Independent Contractors11.1.16
On October 25, 2016, the New York Court of Appeals – New York’s highest court – ruled that non-staff instructors at a yoga studio were properly classified as independent contractors, and were not employees. The Court of Appeals’ decision was the culmination of a case that had more twists and turns than an expert yoga instructor (Matter of Yoga Vida NYC, Inc.).
- What Employers Need To Know To Comply11.1.16
Employers continue to question whether they must change their post-accident drug testing procedures because of the anti-retaliation provisions in OSHA’s new Electronic Recordkeeping Rule announced in May, and if so, whether compliance is immediately necessary. Although OSHA set an August 1, 2016 effective date for the anti-retaliation provisions, the agency initially delayed enforcement until November 1, 2016 in order to conduct more outreach and education efforts in response to several lawsuits filed by business groups.
The ranks of employers permitting employees to wear costumes at work to celebrate Halloween is slowly increasing, tearing down stodgy dress-code rules and tossing a little levity into the workday.
- 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.