Legal Alerts Archive
The National Labor Relations Board announced today in its spring 2019 regulatory agenda that it intends to consider rulemaking in several substantive areas arising under the National Labor Relations Act.
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.
Illinois is set to drastically change its minimum wage in the near future, reaching $15 per hour over the course of the next six years. Following passage by the legislature on February 14, 2019, newly elected Governor J.B. Pritzker quickly signed the amendments to the Illinois Minimum Wage Law into law. You should be prepared for the gradual increases (and other changes) to start taking effect on January 1, 2020.
A Kentucky legislative leader has just taken the first step to try to resurrect the ability of employers to require employment disputes to be resolved by arbitration. Kentucky Senate President Robert Stivers has just introduced legislation (Senate Bill 7) to make clear that employers and employees may agree to arbitrate claims related to the employment.
A federal appeals court just announced a sweeping change for agricultural employers that will make it easier for workers to bring discrimination claims against them under a joint employment theory. In last week’s EEOC v. Global Horizons, Inc. decision, the 9th Circuit Court of Appeals held that employers who use labor contractors to recruit H-2A workers can be liable under Title VII as a joint employer for non-workplace matters—such as claims for housing, meals, and transportation—even if such matters are contractually delegated to a labor contractor.
A California Court of Appeal just announced a sweeping change in California’s reporting time pay rules which now prohibits a common scheduling practice used by employers throughout the state (Ward v. Tilly’s, Inc.). Yesterday’s decision means that California employers who require employees to call in two hours before a shift to determine whether or not they are needed, and report to work if called in, are now obligated to pay that employee, at a minimum, for two hours of work even if the employee is informed that there is no need to come in to work that day. Unfortunately, the case left many questions unanswered and, as a result, you should be careful to craft scheduling policies that avoid the same pitfalls seen in that case.
New Jersey has joined the ranks of California, New York, Massachusetts, and Washington D.C. in adopting legislation that will gradually increase the state’s minimum wage to $15 an hour for most employees. The legislature passed the bill on January 31, and Governor Phil Murphy signed it into law yesterday. Here’s what New Jersey employers should know about it.
- Fisher Phillips Attorneys Represented Business Interests in Important Matter2.5.19
The Florida Supreme Court on Tuesday blocked a Miami Beach law that would have raised the minimum wage in the city. This ends a lengthy legal battle over whether cities could set their own minimum wages that do not correspond with what has been set by the Florida Constitution.
- A 5-Step Plan To Successfully Navigate This Year’s Lottery2.5.19
The federal government just published its final rule amending the regulations that will govern petitions filed under the H-1B work visa lottery. Although the final rule is effective April 1, 2019, the Department of Homeland Security (DHS) has announced it will suspend the electronic registration requirement for employers for this year’s H-1B cap. This will allow U.S. Citizenship and Immigration Services (USCIS) sufficient time to complete the necessary user testing and ensure the system and process are fully functional before they are implemented. If you are unsure how to respond to the announced changes, read on to find our five-step plan to success.
Employers received a bit of good news today as the federal government announced the deadline for submitting their EEO-1 reports has been extended until May 31. Although originally due in just a few short weeks—on March 31—the Equal Employment Opportunity Commission (EEOC) announced the extension today in a brief news release, providing a measure of breathing room for employers across the country.
In one of his last acts in office, former Governor Rick Snyder signed Michigan’s Paid Medical Leave Act into law, which will for the first time require employers in the state to provide paid sick leave to their workforces. Although the statute was just signed on December 14, the effective date of the new law is right around the corner: March 29, 2019. What do employers need to know about this significant development?
The Illinois Supreme Court today made it far easier for workers to bring suit against their employers for technical violations of the state’s biometric information privacy statute, putting employers on notice that they must immediately improve their biometric practices in order to avoid the same fate. The long-awaited decision in Rosenbach v. Six Flags Entertainment Corporation means that any time an employer violates the technical aspects of the state statute—even if no specific injury or adverse effect results—their employees have standing to sue them for violations under the Illinois Biometric Information Privacy Act. Illinois employers that utilize biometric information must now be hyper-cautious with regard to the collection, maintenance, transmission, and destruction of this data.
In a significant ruling which will benefit companies, the National Labor Relations Board today revised the test it uses for determining whether workers are employees or independent contractors by making it easier for entities to classify them as contractors (SuperShuttle DFW, Inc.). The decision throws a roadblock into unionization efforts involving such workers, as federal law does not permit independent contractors to unionize or join forces with employees in organizing efforts. What do employers need to know about this development?
Ohio recently amended its definition of “employer” in order to limit the joint employer status of franchisors.
The matchup is now set: the Los Angeles Rams will be playing the New England Patriots in Super Bowl LIII, and no doubt your employees are very much aware of the upcoming game. A good many of them will be among the estimated 110 million television viewers who will be watching, whether they are passionate fans, more interested in the halftime show, or just there for the commercials.
New Jersey is likely to follow California, Massachusetts, and New York in gradually raising its minimum wage to $15 an hour. Senate President Steve Sweeney and Assembly Speaker Craig Coughlin agreed on a proposal with Governor Phil Murphy last week, which could see the increase passed into law around the end of the month, soon after full Senate and Assembly sessions are scheduled to convene. What do New Jersey employers need to know about this proposal?
In a 3-1 ruling that should be hailed by employers across the country, the National Labor Relations Board just made it harder for employees to successfully claim that their workplace gripes constitute protected concerted activity. The January 11 decision (Alstate Maintenance, LLC) reverses a 2011 Obama-era decision that was widely derided as tilting the playing field too far in favor of employees. Under that precedent, essentially any employee complaint made to management in the presence of coworkers was sufficient to qualify as protected concerted activity under the National Labor Relations Act (NLRA). Under Alstate Maintenance, however, the NLRB has returned to the more stringent standard whereby only those complaints that seek to initiate group action, or that involve truly “group” complaints, will be considered protected concerted activity.
The New Year has brought long-awaited and historic change to the legal rights of the LBGTQ community in the Empire State. On January 15, the State Assembly and State Senate voted to pass the Gender Expression Non-Discrimination Act (GENDA). The statute, which had languished in the New York State legislature for the past 16 years, will protect transgender individuals from discrimination. Governor Andrew Cuomo applauded the legislation and has pledged to sign GENDA into law.
In a unanimous 8-0 decision, the Supreme Court ruled today that federal courts can’t force interstate transportation workers—including contractors—into arbitration, ruling that the Federal Arbitration Act’s Section 1 exemption for these workers is a threshold question for the court to resolve, not the arbitrator. Perhaps more importantly, the Court also applied the Section 1 “contract of employment” exemption from the FAA to include not only interstate transportation workers with employment agreements, but also to those interstate transportation workers with independent contractor agreements (New Prime Inc. v. Oliveira).
As of Saturday, the current federal government shutdown became the longest in our nation’s history—and employers are starting to feel the sting. While the peculiarities of the federal budget process meant that this shutdown started out by not hitting the nation’s employers as hard as prior shutdown events, the lingering nature of the event has started to take its toll, and things could get much more difficult in just a few short days. Read on to get a better understanding of how employers are being impacted and what to expect in the coming days (or weeks).