Legal Alerts Archive
New Jersey will become the latest state to mandate a comprehensive equal pay law as Governor Phil Murphy announced that he will sign the “Diane B. Allen Equal Pay Act”—recently passed by the state legislature—on April 24, 2018. What makes this law different and more robust than laws in other states is that the New Jersey equal pay law will soon extend legal protections beyond gender and provide relief to all classes of employees protected under the state’s antidiscrimination law.
Employers operating in New York will soon face a raft of new sexual harassment laws. The state budget bill for the 2019 fiscal year approved by the New York State Legislature on March 31 and signed into law by Governor Andrew Cuomo late last week contains a host of significant provisions to strengthen the state’s sexual harassment laws.
On the heels of the #MeToo and #TimesUp movements, the New York City Council passed a slate of legislation earlier this week aimed at preventing sexual harassment in the workplace. Entitled the “Stop Sexual Harassment in NYC Act,” the package of 11 separate bills is the first major legislative initiative undertaken by new City Council Speaker Corey Johnson.
- John Ring’s Confirmation Gives NLRB 3-2 Republican Majority4.13.18
With the Senate’s confirmation of John Ring to the National Labor Relations Board on April 11 and the administration’s subsequent announcement on April 12 that he will be designated as the agency’s Chair, the Board is once again in a position to restore balance to the nation’s labor laws. During most of the eight years of the Obama administration, the Board was stocked with a majority of Democratic appointees, and the NLRB issued decision after decision tilting the playing field decidedly in favor of unions and workers. However, now that the NLRB has a full complement of five members, three of whom were nominated by President Trump, changes are soon to follow. What do employers need to know about this latest development?
- Pennsylvania Federal Court Finds UberBLACK Drivers Are Contractors4.12.18
In another victory for gig economy companies reliant upon the independent contractor business model, a Pennsylvania federal court ruled yesterday that a collection of UberBLACK drivers were properly classified as contractors and could not maintain wage and hour claims against the ride-sharing company.
- 9th Circuit Ruling Gives Boost To Pay Equity Claims4.9.18
In a landmark decision that will accelerate the growing pay equity movement, especially for employers on the west coast, the 9th Circuit Court of Appeals today became the latest federal court of appeals to rule that employers cannot justify a wage differential between men and women by relying on prior salary. By tightening the language contained in the Equal Pay Act, the 9th Circuit has just made it more difficult for employers to justify pay differentials and defend pay equity claims. This is a wake-up call for all employers to ensure their compensation structures do not unfairly limit the amount of money women earn at their organizations.
- Supreme Court Gives Dealerships The Green Light: Service Advisors Are Exempt From FLSA Overtime Requirements4.2.18
The Supreme Court today handed auto dealerships—especially those on the west coast—a long-awaited 5-4 victory by holding that service advisors are exempt from the Fair Labor Standards Act’s overtime-pay requirement because they are “salesm[en]... primarily engaged in... servicing automobiles.” The ruling returns the law to the place it had been for decades prior to a stunning and controversial 2011 agency decision that upended what had been standard practice at many dealerships.
Washington has joined a growing list of states and cities to restrict criminal history inquiries in the hiring process with adoption of the Washington Fair Chance Act (2SHB 1298), signed into law on March 13, 2018. Beginning June 7, 2018, state law will prohibit public and private employers from asking about arrests or convictions until after an applicant is determined otherwise qualified for a position.
In the wake of the Harvey Weinstein scandal and the #MeToo movement, Washington employers will soon need to comply with two new laws aimed at preventing sexual harassment and assault in the workplace while encouraging open discussion about such problems. The new laws—which most notably restrict your ability to require nondisclosure agreements covering sexual harassment—were unanimously passed by the state legislature on February 28, and Governor Jay Inslee signed them into law on March 21, 2018. What do you need to know about the new laws in order to stay in compliance?
With heightened attention on gender-based workplace discrimination, Washington recently passed new legislation that creates additional pay equity requirements for Washington employers. Signed into law by Governor Jay Inslee on March 21, 2018, HB 1506 will update and expand the state’s Equal Pay Act (EPA) for the first time since it was enacted in 1943.
On March 12, 2018, the New York State Senate passed a bill aimed at strengthening and reforming the state sexual harassment laws. The legislation comes on the heels of the #MeToo movement and mirrors much of what Governor Cuomo proposed in his January State of the State Address, including a ban on confidential settlements and mandatory arbitration clauses. If ultimately enacted into law, the legislation will significantly impact both public and private employers in New York.
- Three Things You Need To Know About The 6th Circuit’s Monumental Ruling3.7.18
In what appears to be the first time a federal appeals court has extended the nation’s main federal employment discrimination statute to cover transgender and transitioning employees, the 6th Circuit Court of Appeals today ruled that employers cannot discriminate against such employees without violating Title VII. The appeals court also rejected the employer’s attempt to claim that its religious beliefs should shield it from such discrimination claims, opening the door for other applicants, employees, and former employees to avail themselves of statutory anti-bias law.
- The Long-Anticipated Document Raises As Many Questions As It Answers3.5.18
Massachusetts Attorney General Maura Healey just issued much-anticipated and long-awaited guidance regarding the amended Massachusetts Equal Pay Act (MEPA), which is scheduled to take effect on July 1, 2018. As most know by now, the law will prohibit employers from paying employees of a different gender at different rates provided they are doing “comparable work,” and will also bar inquiries about salary history. The guidance, issued on March 1, is intended to help employers to comply with the new law. Unfortunately, employers are likely to find that the guidance raises as many questions as it answers
In a unanimous decision, the California Supreme Court today issued a ruling that will have far-reaching effects for employers who pay employees a flat rate bonus and overtime. Specifically, the court ruled that when calculating overtime in pay periods in which an employee earns a flat rate bonus, employers must divide the total compensation earned in a pay period by only the non-overtime hours worked by an employee.
- Title VII Evolution Continues: Another Appeals Court Finds Sexual Orientation Discrimination Actionable2.26.18
Another federal court of appeals decided today that Title VII covers claims of sexual orientation discrimination, continuing the evolution of workplace discrimination law that has begun to sweep over the country in recent years. With today’s ruling by the 2nd Circuit Court of Appeals—covering federal claims arising in New York, Connecticut, and Vermont—employers across the country have been put on notice that Title VII is increasingly being interpreted more expansively than it had been just a few short years ago (Zarda v. Altitude Express, Inc.).
In what employers are sure to hope is just a temporary—but stinging—setback, the National Labor Relations Board today vacated its December ruling that had freed employers from having to deal with an unworkable and expansive legal test for determining whether an entity was considered a joint employers. Because of allegations that one of the three-member majority was ethically compromised due to his former law firm’s involvement in a related case, the Board decided that it would pull the new legal test and instead revert to the troubling and controversial standard that had been in place since August 2015. What do employers need to know about this development?
Today, in a unanimous decision, the U.S. Supreme Court declined to broaden the definition of “whistleblower” in federal anti-retaliation law, ruling that employees who simply raise complaints with their employers are not protected by the Dodd-Frank Act despite regulations which sought to provide additional protections. This is a positive decision for employers because it significantly limits the type of reports protected by the Act, while decreasing the likelihood that you could face liability for discharging an employee (Digital Realty Trust, Inc. v. Somers).
- New Justice Department Policy Could Aid Employers Defending Against Federal Claims2.20.18
A short policy memorandum quietly issued by the U.S. Department of Justice’s No. 3 official late last month could end up having positive implications for employers defending claims brought by the federal government. The January 25 memo introduces new stringent limits on the use of guidance documents by Department of Justice officials in civil actions against businesses, including employment claims. By limiting the effectiveness of such guidance documents—and in some cases, eradicating them altogether—the Trump administration may have handed employers a gift that could pay off in the long run.
- Employers Need To Prepare Now To Avoid Federal Enforcement Action2.16.18
Federal enforcement officials are amplifying their efforts to crack down on undocumented workers and the businesses that employ them, as Immigration and Customs Enforcement (ICE) officials have raided over 120 businesses in just the past five days. While most of these latest efforts have been concentrated in California, no business in the country is immune from this show of strength from the federal government. Moreover, President Trump’s 2019 budget proposal includes a 35 percent increase in penalties for employers that hire undocumented workers, so the stakes could soon be much higher for employers. What can you do today to minimize the risk of your business being a target, and what should you do if you are visited by federal officials?
A unanimous block of attorneys general from all 50 states and the District of Columbia, not to mention several U.S. territories, sent a letter to Congress yesterday asking federal lawmakers to prohibit the use of mandatory arbitration agreements when it comes to claims of sexual harassment. If Congress responds by passing legislation as requested, employers would need to adjust to a new reality that would have significant implications on human resources practices and employment litigation.
- 5-Step Plan To Come Into Compliance2.9.18
The City Council in Kansas City, Missouri just passed an extension of its 2013 public sector “ban the box” rule, which will soon be extended to apply to private sector employers. The new ordinance will go into effect on June 9, 2018, requiring most businesses operating in the city to adjust their hiring practices.
- Three Things All Gig Economy Companies Need To Know About Decision2.8.18
What do all gig economy companies (and other businesses using a freelance or independent contractor model) need to know about today’s historic ruling in the Lawson v. Grubhub trial? Here are the three key takeaways from the ruling.
New York City employers will soon be required to expand existing protections against sexual orientation and gender discrimination due to an amendment to the definitions of these terms under the New York City Human Rights Law (“NYCHRL”). The broadened definitions take effect on May 10, 2018.
The New York City legislature just enacted an amendment to the New York City Human Rights Law (NYCHRL) which codifies an employer’s obligation to engage in a cooperative dialogue with any employee who may be entitled to a reasonable accommodation. Although the amendments do not take effect until October 15, 2018, you should start the process of adjusting to this new reality right away.
In just a few days’ time, the Philadelphia Eagles will be playing the New England Patriots in Super Bowl 52, and no doubt your employees are very much aware of the upcoming game. A good many of them will be among the estimated 115 million television viewers who will be watching, whether they are passionate fans, more interested in the halftime show, or just there for the commercials.
Following national attention on the #metoo movement, New York Governor Andrew Cuomo announced plans as part of his State of the State address earlier this month to strengthen New York’s laws on sexual harassment in the workplace, an effort that he called a “long overdue reckoning.” Governor Cuomo unveiled a multi-pronged agenda, including several legislative initiatives that he intends to advance, which he hopes will impact both public and private employers.
One of the key provisions of New York City’s Fair Workweek Law was just put on hold while a federal judge sorts out a constitutional challenge brought by two restaurant advocacy organizations. The “Deductions Law” portion of the new city statute allows certain employees of fast food establishments to authorize a portion of their wages to be paid to registered and approved not-for-profit organizations, and also directs fast food establishments to deduct, collect, and remit those employee wages to the designated organizations. However, thanks to a lawsuit brought by the Restaurant Law Center and the National Restaurant Association, enforcement of the Deductions Law has been put on pause, and could be permanently scrapped if found unconstitutional.
In a 5 to 4 decision, the U.S. Supreme Court ruled today that any statute of limitations applicable to an employee’s state law claims are suspended during the pendency of a federal lawsuit in which the state law claims are included.
If Congress cannot approve a budget by this Friday at midnight, the federal government will shut down. What will this mean for employers across the country? A look back at the most recent government shutdown will provide lessons on what you can expect.
The New York City Council passed a bill allowing employees to make temporary schedule changes to attend to a “personal event.” The bill is an amendment to the recently enacted Fair Workweek Law.
Slurpees are not the only ICE-y things being served at 7-Eleven these days. For the second time in five years, Immigrations and Customs Enforcement (ICE) raided dozens of 7-Eleven stores across the country in search of undocumented workers and managers who knowingly employ them. Yesterday’s raids involved 98 stores in 17 states from coast to coast, and resulted in at least 21 arrests.
The case arose from a feud between young women that culminated in a brawl in a Brooklyn department store. When Caroline Cort and her sister entered the Marshalls Department Store during the busy holiday shopping season in December 2013, they first heard a “rowdy” woman yelling foul language on a phone. Later, while shopping, they noticed the same woman was following them.
New Jersey Governor Chris Christie began his final week in office by signing 40 bills into law, including an amendment to the New Jersey Law Against Discrimination that immediately bars discrimination against breastfeeding employees. The new law also requires employers to provide such employees with reasonable accommodation. New Jersey employers should take steps to familiarize themselves with the new legal requirements and adjust policies and practices to ensure compliance.
Attorney General Jeff Sessions issued a one-page memorandum yesterday rescinding Obama-era guidance that had allowed states to legalize medical and recreational marijuana with marginal federal interference, eliminating any doubt about his position against the trend towards legalization. The bad news is that the current state of the law regarding the legality of marijuana use remains confusing, to say the least: it is dependent on the state you are in, and while the legislatures and courts across the country continue to revisit and shape the laws at issue, marijuana continues to be classified as an illegal Schedule I drug pursuant to the Federal Controlled Substances Act.
- FAQs Regarding California AB450 – The Immigrant Worker Protection Act12.27.17
Soon after ringing in the New Year, California employers will need to spend the beginning of 2018 coming to grips with a significant new law that will require an immediate adjustment to immigration-related business practices. California Assembly Bill 450, also known as the Immigrant Worker Protection Act, will go into effect on January 1, 2018, bringing about strict new requirements for all employers in the state regarding the handling of a government audit or investigation of premises or employee records. The new law includes mandatory notice requirements and additional prohibitions against access to public workspaces that goes above and beyond what is required under federal law.
The state’s highest court might have just made life more difficult for employers facing liability under New York City’s anti-bias law. Clarifying a question left open by New York City’s Human Rights Law (NYCHRL), the New York Court of Appeals recently held that the standard for determining punitive damages under the NYCHRL should be whether the employer engaged in discrimination with willful or wanton negligence, or recklessness, or a conscious disregard of the rights of others or conduct so reckless as to amount to such disregard.
The Tax Cuts and Jobs Act (H.R. 1), passed by Congress on December 20 and expected to be signed into law by President Trump in the coming days, contains several provisions that will directly impact employers and workplace law. Human resources managers, in-house counsel, and business owners will want to familiarize themselves with these provisions in order to capitalize on the changes and adjust practices as necessary.
Washington employers are already under the gun to develop policies and practices to meet the requirements of the state’s new paid sick law that takes effect on January 1, 2018. Those with multiple Washington locations have particularly been challenged to create a policy that complies with both state law and the laws in of various Washington municipalities, given that the state and city laws are not identical, and you are required to follow the law that is the “most generous” to employees.
The New Year will bring a number of new employment laws to the Empire State and Big Apple. All employers with operations in New York should take note of these new laws — as well as significant laws that went into effect in late 2017— to ensure compliance with changing obligations.
- Micro-Units Are Dead: Labor Board Returns To Traditional “Community Of Interest” Factors For Union Elections12.18.17
One day after overturning the Obama-era’s joint-employer standard and in the waning days of Philip Miscimarra’s Chairmanship, the National Labor Relations Board struck down the pro-union use of micro-units, a tool used to more easily organize a workplace. In a case in which Fisher Phillips partners represented the employer, the Board overruled the 2011 case of Specialty Healthcare & Rehabilitation Center of Mobile in a 3-2 decision, reinstating the traditional community-of-interest standard for determining an appropriate bargaining unit in union representation cases (PCC Structurals, Inc.).
- Raytheon Ends Brief Dalliance with Unworkable “Change” Standards12.18.17
The National Labor Relations Board just restored stability for employers attempting to maintain the status quo following the expiration of a collective bargaining agreement. In the spirit of giving, outgoing NLRB Chairman Miscimarra and the newly constituted Republican majority Board delivered yet another holiday gift to employers by further balancing the labor law landscape.
Employers in New York City will soon be required to provide protected time off to employees who are the victims of domestic violence, sexual assault, stalking, or human trafficking due to amendments to New York City’s Earned Sick Time Act. The law – which will now be dubbed the NYC Earned Safe and Sick Time Act – will also see an expansion to the definition of a covered family member, increasing the scope of permitted leave employers need to provide. The amendments will take effect as of May 5, 2018, which means that you need to begin to prepare now for the coming changes.
- Crucial Victory For Employers Halts Labor’s Momentum12.15.17
The newly constituted National Labor Relations Board announced that a troublesome joint-employer test adopted in 2015 would be immediately scrapped, instead reaffirming its prior reasonable standard for determining joint-employer status. Starting at once, the Board will follow the traditional common law principles requiring a finding of direct and immediate control in order to find that two entities are joint employers.
- Boeing Co. Signals The End Of Lutheran Heritage And Its Progeny12.15.17
The National Labor Relations Board just relieved employers of a great deal of uncertainty surrounding seemingly innocuous workplace rules and handbooks. The newly constituted NLRB issued its first round of significant decisions this week, taking square-aim at controversial doctrines developed during the past eight years. One target in its sights: the Board’s interpretation of Lutheran Heritage, the seminal 2004 decision involving workplace civility rules.
In the clearest sign yet that the National Labor Relations Board is ready to shift away from the strong pro-union stance that had been taken for the previous eight years, the agency today announced that it will seek public comment on the possible revision to the representation election regulations – often known as the “quickie election” rule. The 2014 rule was considered by some to be the crowning achievement of the Obama-era Labor Board, dramatically compressing the election timeframe and thereby tilting the scales in favor of unions. Now that the Board is led by a majority of Republican appointees, it appears ready to substantially revise the election rules once again, but this time with an eye toward evening the playing field.
A bipartisan group of federal legislators has turned their attention to the sweeping revelations of sexual harassment in the American workplace by introducing a bill that would prevent employers from forcing claims of sex discrimination or harassment into arbitration. If passed and signed into law, this legislation could have a profound impact on employment policies and practices, not to mention litigation that results from workplace conflicts. What do employers need to know about the Ending Forced Arbitration of Sexual Harassment Act?
It’s hard to keep up with all the recent changes to labor and employment law. While the law always seems to evolve at a rapid pace, there have been an unprecedented number of changes each month in 2017. November was no different, with so many significant developments taking place during the month that we were forced to expand our monthly summary beyond the typical “Top 10” list. In order to make sure that you stay on top of the latest changes, here is a quick review of the Top 14 stories from last month that all employers need to know about:
If you have been following recent comments by Attorney General Jeff Sessions in an attempt to predict marijuana policy under the Trump Administration, you might be left scratching your head. In recent comments before Congress, Sessions seemed to provide a clear indication that the federal government would not soon change course to ramp up enforcement of federal anti-marijuana law. Then, just last week, Sessions seemed to suggest that his Justice Department might soon take a tougher enforcement stance on recreational marijuana – something of particular interest to the growing list of states that have legalized recreational marijuana.
The newly installed General Counsel for the National Labor Relations Board published a memorandum late last week indicating that the General Counsel is preparing to push to reverse many of the controversial positions taken during the Obama era, restoring much-needed balance and tilting the labor law playing field back to a reasonable level. Peter Robb’s December 1 memo is a harbinger of significant changes to the agency’s enforcement posture going forward, and should give hope to employers across the country – not just those with unionized workforces – that change will soon be on the way.
- 3 Things Employers Need To Know About Landmark LGBT Ruling11.29.17
The federal watchdog agency that oversees federal antidiscrimination law just scored a milestone victory when a judge awarded $55,500 to a telemarketer who alleged to have been forced off the job because of sexual orientation discrimination. The November 16 decision brings to an end one of the first cases brought by the Equal Employment Opportunity Commission (EEOC) on the theory that Title VII – the federal law prohibiting job discrimination based on “sex” and other protected classes – also prohibits LGBT bias. It also marks the first time that a lawsuit brought by the EEOC on this theory has led to a successful judgment, and should serve as an eye-opener for employers across the country.