Legal Alerts Archive
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.
A recent $93.6 million verdict from an Oregon jury has the potential to bankrupt a union that some describe as one of the strongest and most militant in the United States—the International Longshore and Warehouse Union (ILWU).
A New York federal judge just struck down a rule that was about to permit the government to withhold federal funds from healthcare providers that don’t allow workers to refuse to perform procedures because they violate their religious beliefs or conscience. Judge Paul Engelmayer’s 147-page ruling, handed down yesterday, has led to heated reactions and spin from both sides of the controversy. However, the decision may not have a big effect on the daily operations of healthcare institutions and employees who want to be excused from participating in certain procedures. Similar laws and accreditation requirements remain in effect.
A California appellate court just held that mandatory service charges added by banquet facilities to their contracts may need to be paid to banquet service employees essentially as a form of a gratuity. The October 31, 2019 decision changes up what some considered to be a settled area of law and may require you to immediately adjust your pay practices in order to get into compliance.
The iconic sports movie, Major League, premiered 30 years ago. Three decades later, nearly everyone remembers the classic comedic scenes with characters such as Ricky “Wild Thing” Vaughn (Charlie Sheen), Jake Taylor (Tom Berenger), Willie Mayes Hayes (Wesley Snipes), and Pedro Cerrano (Dennis Haysbert).
Despite his predecessor vetoing two similar proposals, California Governor Gavin Newsom signed a bill into law on October 10, 2019 that will prohibit employers from entering into mandatory arbitration agreements for nearly all types of employment law claims in California. The new law could have significant impacts on California employers across all industries – if it ever goes into effect. There are significant questions around whether the new statute is invalid. We could see it scaled back or completely tossed out before ever being enforced based on an argument that it is preempted by federal law. Legal challenges are inevitable, and will likely require years of litigation before a final resolution. In the meantime, what do California employers need to know about this development?
First-year Governor Gavin Newsom signed some significant pieces of legislation in recent days that will impact employers across California – ranging from a ban on mandatory arbitration agreements, to a complete rewrite to the rules for the use of independent contractors, to a general prohibition on “no-rehire” clauses in settlement agreements. This legal alert highlights the top employment legislation signed into law, including several signed in the last few days leading up to yesterday’s deadline for bills to be signed or vetoed. It also includes links to much deeper dives into these specific measures. California employers will want to read each of these articles closely.
A federal appeals court just ruled an employee for a cannabis business could bring a claim for federal wage and hour violations against his employer despite the fact that another federal law continues to criminalize the drug. The September 20, 2019 ruling from the 10th Circuit Court of Appeals washes away a defense that other businesses have tried to use to their benefit. The ruling only directly applies to cannabis-related employers in Colorado, Kansas, and other nearby states. However, all employers in this field should pay attention to this decision as it may soon apply to you.
The suspense is over – the Department of Labor just this morning announced the revised Overtime Rule, which will set the minimum salary threshold for the Fair Labor Standard Act’s white-collar exemptions at $684 per week, or $35,568 per year. The rule, which will expand overtime pay obligations to an estimated 1.3 million additional workers, will take effect on January 1, 2020. What do you need to know about this breaking news?
The National Labor Relations Board took the latest step in the long-simmering debate over whether college teaching and research assistants could unionize when it released a proposed rule on Friday that would once again block such efforts. Declaring that university students should not qualify as employees under federal labor law, the Board took the first step to reverse a 2016 ruling by the Obama-era NLRB that opened the door for certain graduate and undergraduate students to form unions. The proposed rule still has a way to go before it is finalized and adopted, but you will want to familiarize yourself with this development to the extent it may soon upend the current state of the law and your campus practices.
With his signature on AB 5 on September 18, 2019, California Governor Gavin Newsom has completed the year-long overhaul of the state’s independent contractor test. What was once governed by a balancing test that provided breathing room for businesses to deploy contractors with relative ease has now been transformed into a bright-line standard that will challenge businesses across the state when it comes to compliance. Companies will soon face an increased risk of misclassification claims from workers unless they take immediate steps to get in line with the new law.
The California Supreme Court recently handed down an intriguing decision which casts doubt on – and in some cases even condemns – some of the most common practices used by employers in both drafting and presenting arbitration agreements to their employees. In doing so, the court highlighted circumstances under which similar agreements with “an unusually high degree” of procedural unconscionability may be blocked from being enforced. Accordingly, it’s important that you understand which of the employer’s terms and practices were criticized by the court so you can avoid those same pitfalls in your own arbitration programs moving forward.
In a blow to national union organization efforts, the National Labor Relations Board just clarified the test for determining whether “micro-units” of employees within a larger workforce can organize on their own. In its September 9 Boeing Company decision, the NLRB addressed a union’s efforts to utilize a “micro-unit” strategy to target a petitioned-for unit that made up of only two job classifications from a significantly larger, integrated workforce. In reversing a Regional Director’s decision to allow a representation election with this smaller subset of employees, the NLRB clarified its traditional community-of-interest standard for evaluating the appropriateness of petition for bargaining units.
The California legislature today approved a controversial new law that will reshape the way businesses across the state classify workers. While supporters of the bill have emphasized its impact on independent contractors, the bill also severely impacts legal obligations governing businesses that hire other businesses. In short, the law will make it much more difficult for many companies to treat workers in California as independent contractors, and more difficult for businesses to hire smaller, entrepreneurial businesses. The governor has already promised to sign the law into effect; once he does, hundreds of thousands of workers across the state will be entitled to increased pay, benefits, and employment law protections – not to mention the opportunity to organize into labor unions. Many businesses, especially those in the gig economy, will need to radically restructure their operations or transform these workers into employees in order to comply with the law. What do you need to know about today’s developments?
Citing the high burden on employers and the unproven usefulness of the program, the EEOC announced today that it will halt further collection of pay data during future EEO-1 reporting cycles. While you still need to turn over compensation information from both 2017 and 2018 when you submit your Component 2 pay data as part of your EEO-1 submission by September 30, today’s announcement may mean this will be a one-time effort that may not need to be repeated in 2020. What do you need to know about today’s news?
In yet another ruling that levels the labor relations playing field, the National Labor Relations Board ruled on Friday that employers could rightfully eject outside union representatives soliciting petition signatures from a shared shopping center parking area. When read in conjunction with a June decision conferring greater rights to limit on-premises union activity by abolishing the “public space” exception, and a more recent ruling extending greater latitude when it comes to excluding contractor employees, the Board has significantly restricted union access to private employer property. These rulings have supplied employers with powerful tools to combat prohibited solicitation on their premises. What do you need to know about this latest decision?
At the height of the #MeToo movement, California lawmakers enacted a requirement that all employers with five or more employees would need to provide sexual harassment prevention training to all employees by January 1, 2020. However, in response to outcry from the business community, Governor Newsom signed into effect a law this past Friday extending the deadline for employers to provide the newly required sexual harassment prevention training to January 1, 2021. What do California employers need to know about this one-year reprieve?
Illinois recently enacted sweeping legislation in an effort to combat sexual harassment in the workplace. Illinois Senate Bill 75 created the Workplace Transparency Act, amended the Illinois Human Rights Act and the Victims’ Economic Security and Safety Act, and introduced the Sexual Harassment Victim Representation Act and the Hotel and Casino Employee Safety Act. Additionally, Illinois House Bill 252 amended the Illinois Human Rights Act, further changing the legal landscape for Illinois employers. Both new measures will significantly impact how employers do business in Illinois. The implications are vast, ranging from what constitutes an “employer” in Illinois to the validity of certain employment agreements (and almost everything in between).
Employers found to have misclassified employees as independent contractors will no longer face the prospect unfair labor practice charges for such actions alone, according to a new ruling handed down yesterday by the National Labor Relations Board. Although the NLRB’s previous General Counsel and several administrative law judges had previously concluded that hiring entities could face the one-two punch of misclassification litigation followed by a federal labor law violation, the current Board wiped this concern off the table with its August 29 ruling in Velox Express, Inc. What do businesses need to know about this positive development?
This article addresses many employment-related issues facing employers in the wake of hurricane-related disasters; consequently, in addition to federal laws, we also focus on certain state laws, especially those in the areas most impacted by the storms. Nevertheless, the information here is of more widespread applicability than just the current hurricane season, and may be helpful following any unexpected natural catastrophe.
Governor Andrew Cuomo just signed into effect an amendment to New York law expanding the protections employers must provide to employees who are victims of domestic violence. In addition to expanded protections against discrimination, the amendment obligates employers to provide reasonable accommodations to domestic violence victims who must be absent from work for certain specified reasons. The amendment, signed on August 20, becomes effective November 18, 2019. What do you need to know in order to be in compliance come November?
The EEOC recently released guidance to assist those employers filling out their EEO-1 reports who have non-binary employees – those who choose not to identify as male or female – in their workforces. This question has become more pressing given the increase in the number of states permitting individuals to classify themselves as non-binary on government-issued identification forms, especially as employers begin the task of completing their EEO-1 reports before next month’s deadline. What do employers need to know about this latest development?
As predicted, Washington’s legislature has been busy over the past few months passing new laws that directly impact how employers conduct business. There have also been several key court decisions impacting workplace law of which all employers should be aware. What happened? We’ve put together summaries of the more significant recent developments for you below.
New York Governor Cuomo just signed into effect an amendment to state law which expressly prohibits discrimination against employees based on clothing or facial hair worn in accordance with the employee’s religion. The amendment is set to take effect October 8, 2019. What do New York employers need to know about this development?
The State of Alabama passed an Equal Pay Act in the 2019 legislative session that is set to take effect on September 1, 2019. Employers must begin their preparations to comply with the law now because there are new timekeeping and wage records that will be required of all employers in Alabama as a result.
New York Governor Andrew Cuomo recently signed legislation amending state law to explicitly prohibit discrimination based on hair texture or protective hairstyles as race-based discrimination. The new law took effect immediately upon signing in July 2019. What do New York employers need to know about this new law?
The National Labor Relations Board (NLRB) announced today its intent to publish a proposed “Election Protection Rule” that would amend regulations governing the filing and processing of petitions for secret ballot union elections. A Board majority explained that the proposed amendments would “better protect employees’ statutory right of free choice on questions concerning representation by removing unnecessary barriers to the fair and expeditious resolution of such questions through the preferred means of a Board-conducted secret ballot election.” To that aim, the Board proposed amendments to its: (1) blocking charge policy; (2) voluntary recognition bar rule; and (3) recognition rules in the construction industry. It should be noted that this represents the first of what may ultimately be several forays into rulemaking to amend the current representation process.
In an eye-opening opinion letter issued earlier today, the U.S. Department of Labor confirmed that parents attending certain school meetings for the benefit of their children are entitled to FMLA leave for their absences. The agency concluded that the need to attend school meetings to discuss individualized education programs for children with serious health conditions triggers intermittent FMLA leave protection. Employers should make note of this opinion and revise their family leave policies and practices as necessary in response.
- 3 Things For Employers To Know8.7.19
A federal appeals court ruled yesterday that the 2012 guidance document from the Equal Employment Opportunity Commission (EEOC) that cautioned employers not to apply blanket bans against hiring those with criminal records could not be enforced against the state of Texas, handing the agency a stinging loss. The sweeping decision from the 5th Circuit Court of Appeals calls into question not only the future of the guidance as applied to other employers across the country, but also the EEOC’s power to issue such guidance in the first place. Here are three things all employers should know about yesterday’s ruling.
The South Carolina Supreme Court just ruled that the state will no longer recognize common law marriages. This decision will have a direct impact on South Carolina workplace law, requiring many employers to adjust their employment policies and practices.
Westchester County employers will soon need to provide paid safe time leave to employees who are the victims of domestic violence or human trafficking. Earlier this year, county lawmakers passed the Safe Time Leave for Victims of Domestic Violence and Trafficking Law, which takes effect October 30, 2019.
An agreement to arbitrate sexual harassment claims is enforceable, according to a recent decision handed down by a federal judge in the Southern District of New York, despite a state law purporting to ban mandatory arbitration of such claims (Latif v. Morgan Stanley & Co., LLC.). The decision clears up confusion that had existed for much of the past year, as employers were caught between a broad new state law and a well-established federal policy permitting arbitration of such claims. What do New York employers need to know about this recent decision?
Joining the ranks of several other states and local jurisdictions that have taken similar steps in the fight against pay disparity, Illinois will soon prohibit employers from asking job applicants about their salary history as part of the hiring process. The new law – signed into law yesterday and set to take effect on September 29, 2019 – also includes other pay equity provisions that will require you to immediately adjust your hiring practices. What do Illinois employers need to know about this significant new development?
The Chicago City Council just approved what is likely the most expansive predictive scheduling law in the country. Business and labor groups came together with Chicago Mayor Lori Lightfoot’s staff and the city council to negotiate, draft, and approve the Chicago Fair Workweek Ordinance. The new law, approved yesterday and set to go into effect on July 1, 2020, will soon mandate certain employers to give many lower-income employees advance notice of their schedules and face financial penalties for unexpectedly changing an employee’s shift. What do Chicago employers need to know about this significant new law?
The Oregon Supreme Court just revived a whistleblower retaliation claim filed against sportswear giant Nike by adopting for the first time a novel legal concept known as the “cat’s paw” theory. The July 18 opinion opens new avenues for employees to pursue retaliation and discrimination remedies against employers. By reading a summary of the case and gaining a better understanding of this theory, you can avoid running into similar legal trouble with your employees.
- 3 Things You Need To Know About Opinion Letter7.23.19
Trucking companies will no longer need to pay their drivers for certain off-duty time, potentially including time spent sleeping in their sleeper berth units, after the Labor Department issued an opinion letter yesterday confirming that such time is generally not compensable. The letter is a welcome one for trucking industry, clearing up confusion caused by recent conflicting court decisions that held that off-duty time may be limited to eight hours a day when a driver is on a trip and spending off-duty time in their sleeper. However, you should make sure you understand the full ramifications of the opinion letter before changing your pay practices. Here are three things you need to know about yesterday’s significant news.
The news that President Trump selected Eugene Scalia to take over as Labor Secretary late last week caught some employers by surprise; after all, it was just a week ago that we were analyzing the track record of the soon-to-be-acting Secretary who many expected to helm the Department of Labor for an extended period of time. But now that it appears we have a likely successor in place to take over for Alexander Acosta, all employers are turning their attention to the same issue: what does this transition mean for the business community? We’ve once again assembled the opinions of some of our firm’s foremost thought leaders – including one of our partners who recently worked side-by-side with Scalia on a significant workplace law matter – to help provide a glimpse into what you should expect from the U.S. Department of Labor. The consensus opinion? Scalia will aggressively battle against intrusive and overreaching regulations that hamstring the country’s employers, and will quickly endear himself to the business community.
Thanks to recent negotiations among state lawmakers, it appears that California employers may get a temporary reprieve on some of the more sweeping data privacy requirements that were set to take effect in just a few short months. However, the pending legislation that would provide the delay would not exempt employers from significant disclosure requirements that also comprise the California Consumer Privacy Act (CCPA) – meaning you should still be in the process of preparing for the new law at your workplace.
When the news broke Friday afternoon that Labor Secretary Alexander Acosta would be resigning from his post, employers across the country began wondering what this transition would mean for them. You may have even heard speculation that Acosta’s immediate replacement could accelerate the agenda that has been restoring balance to the employer-labor relationship over the past several years. We’ve assembled the opinions of some of our firm’s foremost thought leaders – including a former colleague of the incoming acting secretary – to help provide a glimpse into what you should expect from the U.S. Department of Labor in both the short term and the long term.
Immigration and Customs Enforcement (ICE) threatened to start to carry out a series of immigration raids this weekend seeking to identify and apprehend undocumented individuals – with some potentially occurring at the nation’s workplaces. These potential raids might continue for weeks or months, with varying levels of intensity and geographic focus. Even if they do not materialize to the extent originally promised, just the specter of these enforcement activities has raised a number of questions from employers about how to respond to such an action, and how to minimize the chances of them happening in the first place.
New Jersey Governor Phil Murphy recently signed into law amendments to the state’s medical marijuana law, providing greater clarity when it comes to the workplace implications of medical marijuana use by employees and applicants, while creating additional obligations for employers. The July 2 amendments took effect immediately, which means you should not delay incorporating the new law’s requirements into your day-to-day human resources practices.
While many Oregonians were enjoying a leisurely holiday break last week, Oregon lawmakers were busy enacting the nation’s most generous paid leave program. Governor Kate Brown stated she intends to sign into law “HB 2005: Paid Family Leave,” which will provide 12 weeks of paid leave to just about every employee in the state (yes, even if you only have one employee), to be funded by a new payroll tax paid by both workers and employers with 25 or more employees. While the law will not kick in until 2023, it’s never too early to learn about what’s around the corner and start to prepare. What do Oregon employers need to know about this groundbreaking new law?
The Washington Supreme Court held for the first time today that obesity is a protected class under state anti-discrimination law (Taylor v. Burlington Northern Railroad Holdings, Inc.). This decision runs counter to recent federal court decisions in other parts of the country that have said obesity not caused by an underlying physiological disorder or condition does not qualify as an impairment under federal law. The main reason for this distinction is that Washington state disability discrimination law offers broader coverage than the federal Americans with Disabilities Act (ADA).
The National Labor Relations Board just relaxed its test for determining the legality of an employer’s anticipatory withdrawal of union recognition prior to the expiration of the collective bargaining agreement. In the July 3 Johnson Controls, Inc. decision, the Board upheld an employer’s right to suspend bargaining and serve notice within 90 days prior to CBA expiration of its desire to withdraw recognition from an incumbent union thereafter, upon receiving objective evidence that the union has actually lost majority support.
In a unanimous decision late last week, the 9th Circuit Court of Appeals resuscitated class claims against retail giants Nike and Converse that allege employees are owed compensation for time spent undergoing security checks when exiting the retail stores (Rodriguez v. Nike Retail Stores, Inc.; Chavez v. Converse, Inc.). On Friday June 28, the federal appellate court held that the lower district court – which had ruled in favor of the employers by applying the federal de minimis doctrine – needs to conduct a do-over to comply with a recent California Supreme Court decision that all but eliminates the de minimis doctrine based on the facts before the high court. The bar set by the courts is high; California employers may now need to pole vault in order to scale it.
By a 9-0 vote, the U.S. Supreme Court ruled today that by and large, the courts should continue deferring to a federal agency’s reasonable interpretation of its own ambiguous regulations, leaving a good deal of power in the hands of agencies despite an outcry that this doctrine interferes with governmental separation of powers. In the last workplace law decision of the Supreme Court’s term, it also ruled stare decisis cuts strongly against overruling Auer and that the Court would need a particularly “special justification” to reverse Auer. Although the underlying case was not employment-related, today’s decision in Kisor v. Wilkie could have far reaching impact on employers and workplace law compliance.