Legal Alerts Archive
Overturning 40 years of precedent, the 10th Circuit Court of Appeals has just ruled that an employee’s failure to file an EEOC charge does not necessarily bar consideration of a private discrimination lawsuit. By concluding that an Equal Employment Opportunity Commission (EEOC) charge is not a jurisdictional prerequisite to suit, the federal appeals court’s August 17 decision provides a new lifeline for disgruntled employees and former employees to bring suit against their employers (Lincoln v. BNSF Railway Company, Inc.).
A focus on equal employment opportunity and the protection of religious freedom will become part of future reviews for federal supply and service contractors’ compliance with regulations under two policy directives issued by the Office of Federal Compliance Programs (OFCCP) on August 10. One directive adds to the agency’s enforcement activity reviews, focusing on federal contractors’ compliance with workforce antidiscrimination laws. The other requires OFCCP personnel to follow, in all their activities, recent court rulings and White House executive orders protecting the rights of organizations in the exercise of religion.
A New York judge recently rejected an employer’s attempt to force an employment claim into arbitration due to a poor choice of wording in the written agreement. The August 7 decision might draw attention because of the identity of the employer—the Trump for President campaign organization—but it should be on your radar screen solely because it provides a lesson about the value of carefully drafted employment agreements.
- One If By Land, Two If By Sea, Noncompete Reform Is Coming! Midnight Session In Massachusetts Legislature Alters Noncompete Landscape8.13.18
After nearly 10 years of start-and-stop efforts on Beacon Hill, Governor Charlie Baker signed “An Act Relative to Economic Development in the Commonwealth” on Friday evening, which includes sweeping changes to the way the Commonwealth treats noncompetition agreements. Among other things, the bill prohibits enforcement of noncompetition agreements against non-exempt employees, limits their length to just 12 months, and precludes the use of “continued employment” as acceptable consideration in any noncompetition agreement entered into on or after October 1, 2018.
In a sweeping victory for labor unions, Missouri voters overwhelmingly rejected a right-to-work law which sought to ban unions from requiring union fees as a condition of employment in Missouri. By capturing 67% of yesterday’s vote, opponents of the measure prevented employees in unionized workplaces from opting out of joining a union or paying union dues if they were so inclined. What does this development mean for Missouri employers?
On July 18, 2018, the New York City Temporary Schedule Change Law took effect. As we previously reported, under the new law, eligible employees have a right to temporary changes to their work schedule for certain “personal events”, up to two times a year, for one business day per event. A temporary change means an adjustment to the employee’s usual schedule, and can include shifting work hours, swapping shifts, working remotely, or unpaid or paid leave. The employee can request a temporary schedule change if the employee needs to provide care to a minor child or care recipient or to attend a legal proceeding for public benefits, as well as for any other permissible use under the City’s Safe and Sick Time Act. Our previous alert contains additional details regarding the requirements under this new law.
- De Minimis No More? California Supreme Court Finds Modern Technology Requires Employers to Better Track and Compensate Employees for Minimal Amounts of Off-The-Clock Work7.26.18
Today, the California Supreme Court issued its ruling in Troester v. Starbucks Corporation, and departed from federal law’s more employer-friendly version of the de minimis rule, which it characterized as stuck in the “industrial world.” In holding that Starbucks Corporation must compensate hourly employees for off-the-clock work that occurs on a daily basis and generally takes four to ten minutes after the employee clocks out at the end of their shift, the California Justices announced they were ensuring California law was in line with the modern technologies that have altered our daily lives. De minimis means something is too minor or trivial to take into account, and the Court clarified what is trivial and what is not.
- You Should Be On High Alert Amidst Recent Spike In I-9 Audits7.23.18
In the past week, Immigration and Customs Enforcement (ICE) has significantly increased the number of Notices of Inspection issued to employers nationwide, leading to a dramatic spike in I-9 audits. Unlike the enforcement initiative rolled out by federal authorities in February of this year, the latest sweep is no longer concentrated in Southern California but appears to be nationwide in scope.
Late yesterday, President Trump selected Judge Brett Kavanaugh to fill the vacant seat on the Supreme Court (SCOTUS) bench. Assuming he is confirmed by the Senate, Justice Kavanaugh would solidify the pro-business bloc of Justices on the Court, seemingly creating an impenetrable five-Justice majority of conservative jurists. The question on the mind of employers: how would Justice Kavanaugh treat workplace law cases that come before the Supreme Court? To answer that question, we once again turn to the Magic 8-Ball.
In an effort to increase the state’s potential workforce, the South Carolina General Assembly passed legislation last week that will expand the state’s current expungement law and allow individuals to more easily remove criminal convictions from their records. The hope is that prospective employees with low-level crimes on their records will no longer be discouraged from applying for jobs; this, then, should make it easier for employers to recruit qualified workers. What do South Carolina employers need to know about this new law?
Supreme Court Justice Anthony Kennedy’s announcement of his impending retirement, effective the end of next month, provides President Trump with the opportunity to reshape the Court in a manner not seen in decades. If the president selects (and the Senate approves) a nominee in the model of the two most recent GOP selections—Justices Neil Gorsuch and Samuel Alito—the Court will shift from usually conservative to reliably conservative overnight. This promises to be the biggest seismic swing in Supreme Court dynamics since President George H.W. Bush replaced outgoing liberal Justice Thurgood Marshall with conservative Clarence Thomas in 1991. What do employers need to know about this imminent shift?
- Last-Minute Legislative Compromise Opens Door To Liability And Litigation6.29.18
Due to some last-minute bargaining between state lawmakers and proponents of a controversial data privacy initiative, California businesses will soon need to prepare to comply with a new state measure designed to protect private data of consumers. The new requirements take effect in 2020, but now is the time to begin the process of considering the applicability of these rules to your business and ensuring that your organization is in compliance.
In one fell swoop, Massachusetts has set in motion a plan to increase its minimum wage to $15.00 per hour and create a comprehensive paid family and medical leave program as the result of a “grand bargain” between employee advocates and representatives of the state’s business community. Governor Charlie Baker signed the bill in a ceremony today at the State House, which will also eliminate premium pay for Sundays and holidays, and make the annual sales tax holiday permanent. What do Massachusetts employers need to know about this new law?
Washington’s lawmakers and regulators have not taken a summer holiday this year, remaining active by passing new regulations based on legislation from the last legislative cycle or reacting to new case law by creating new legal obligations. Their actions continue to challenge Washington employers to keep up with evolving workplace laws. The good news? We’ve put together summaries of some of the more significant recent developments for you here.
In a 5-4 decision on the final day of the 2017-2018 term, the U.S. Supreme Court ruled today that the First Amendment prohibits public sector entities from collecting fees from non-union members. This decision is a significant blow to public sector labor organizations across the country, which rely on these fair share fee arrangements as a significant source of revenue.
In one of its most anticipated cases in decades, a deeply divided U.S. Supreme Court ruled 5-4 in favor of upholding President Trump’s latest “travel ban” today, delivering a key win to the Trump administration and one of its strict immigration enforcement stances. In its decision, the Court concluded that the president’s executive order—which largely targeted individuals from predominately Muslim countries—did not violate the Constitution’s Establishment Clause by favoring one religion over another. Despite the rhetoric from the president and those in his administration that some claimed to prove religious bias, the Court ruled that the order was a lawful exercise of the authority granted to the president by Congress (Trump v. Hawaii).
The Trump administration just announced an ambitious plan to overhaul the federal bureaucracy that would include the merging of the Department of Labor (USDOL) with the Department of Education. The 132-page proposal announced on June 21, titled “Delivering Government Solutions in the 21st Century – Reform Plan and Reorganization Recommendations,” says that the merger would bring greater responsiveness, accountability, and efficiency, and would better meet the needs of American workers and students. But what impact would it have on the day-to-day dealings for employers and educational institutions?
Employers of tipped workers in Washington, D.C. may soon face a tipping point of their own as the result of a voter initiative just approved by voters. If the law takes effect, the minimum rate of pay for such workers will steadily increase for at least the next eight years. However, before the wage hike takes effect, either Congress or the D.C. Council could take action to prevent the increase from taking effect, so employers should stay aware of developments to determine their future obligations.
A federal appeals court just breathed new life into a disability access lawsuit filed against restaurant chain Hooters, permitting a blind plaintiff who claims he could not access the company’s business website to proceed with his ADA claim—despite the fact that the company was in the midst of fixing its website at the time the lawsuit was filed. The decision from earlier this week should be a wake-up call to all businesses with websites accessible to the public, serving as a reminder to ensure their sites are ADA-compliant (Haynes v. Hooters of America).
Slots chain employer Dotty’s recently agreed to pay $3.5 million to settle litigation alleging its “100-percent-healed” policy discriminates against disabled workers. The June 5 settlement and consent decree entered in the federal court case of EEOC v. Nevada Restaurant Services Inc. is just the most recent victory in the EEOC’s campaign to target employer “maximum-leave” and “100-percent-healed” policies.
The National Labor Relations Board General Counsel, Peter Robb, recently outlined the agency’s plan of action for evaluating workplace rules in his latest memorandum to regional offices—and the message is welcome news for employers. The 20-page memo is a reaction to the Board’s December 2017 decision in Boeing Co. that upended the controversial Lutheran Heritage standard and helped start to restore balance to workplace rules. This memo takes the next step in that process.
In a rare procedural move that caught many by surprise, the National Labor Relations Board announced on Wednesday that it will soon start the rulemaking process to clarify the current joint employment standard. Perhaps frustrated by uncertainty resulting from the recent reversal of a Board decision on the topic and the seemingly stalled litigation sitting at the D.C. Circuit, Chairman John Ring said that he hopes NLRB rulemaking would bring resolution to this matter “as soon as possible.”
South Carolina Governor Henry McMaster recently signed the Pregnancy Accommodations Act into effect, ushering in one of the most significant pieces of workplace legislation in recent history. The new law has the stated purpose of combatting pregnancy discrimination, promoting public health, and ensuring full and equal participation in the workforce by requiring employers to provide reasonable accommodations to employees for medical needs arising from pregnancy, childbirth, and related medical conditions.
In a 7-to-2 decision, the Supreme Court ruled today that a baker’s Free Exercise Clause rights under the Constitution were not properly considered by the Colorado Civil Rights Commission when it held that he was legally required to bake and sell a wedding cake for a same-sex couple. However, today’s much anticipated decision in Masterpiece Cakeshop, Inc. v. Colorado Civil Rights Commission does not create any sort of safe harbor for businesses defending against bias claims. Instead, this narrow decision is more of a rebuke to the state commission that expressed impermissible hostility toward the baker’s religious beliefs when ruling on his case, requiring the commission to reconsider its earlier action.
A federal court in Virginia ruled in favor a transgender teenager who wanted to use the boys’ bathroom at his former school, finding that the local school district violated his constitutional rights when it prescribed which bathroom he should use. On May 22, the U.S. District Court for the Eastern District of Virginia sided with a growing number of courts when it concluded that sex discrimination can encompass a claim for discrimination on the basis of one’s gender identity—in this case, under Title IX and the United States Constitution.
A recent decision by a National Labor Relations Board Administrative Law Judge has re-affirmed that “personal gripes” made by employees are unprotected by federal labor law. This decision comes from the NLRB’s regional office in Baltimore, but is in line with the Board’s recent commitment to clarify this issue for employers across the country (Bud’s Woodfire Oven d/b/a Ava’s Pizzeria).
To the relief of employers across the country, the Supreme Court today ruled in a 5-to-4 decision that class action waivers in employment arbitration agreements do not violate the National Labor Relations Act (NLRA) and are, in fact, enforceable under the Federal Arbitration Act (FAA). The decision in the three consolidated cases—Epic Systems Corporation v. Lewis; Ernst & Young, LLP v. Morris; and NLRB v. Murphy Oil USA, Inc.—maintains what had long been the status quo and halts the National Labor Relations Board’s (NLRB’s) crusade to invalidate mandatory class waivers. What do employers need to know about today’s monumental decision, and what adjustments can you make to capitalize on the Court’s ruling?
New York City recently expanded its paid sick leave law to provide protected time off to employees who are the victims of domestic violence, sexual assault, stalking, or human trafficking and to broaden the definition of a covered family member. The expansions to the city’s sick leave law, now dubbed the NYC Earned Safe and Sick Time Act (the “Act”) took effect May 5, 2018. Employers must take immediate steps to comply with the expanded law.
On the heels of the #MeToo and #TimesUp movements, Mayor Bill de Blasio signed a slate of legislation last 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.
The 9th Circuit Court of Appeals has lowered the bar when it comes to the type of evidence plaintiffs need to present in order to have their claims certified as a class action. The federal appeals court panel ruled that courts are permitted to certify class actions based on evidence that is not even admissible at trial. The May 3 ruling will make it easier for class claimants to advance their claims against employers, and should spur employers and their defense counsel to adjust their litigation strategy accordingly.
The Colorado Court of Appeals recently held that the Colorado Wage Claim Act does not categorically bar individual liability for unpaid wages, rejecting arguments that a 2003 Colorado Supreme Court decision precluded any and all such claims. In other words, managers may now be personally on the hook for unpaid wage claims brought by current or former employees. The decision highlights the need for employers to create best practices to ensure the state’s wage and hour laws are followed, and should spur managers to take a specific interest in confirming compliance at their workplaces (Paradine v. Goei).
New Jersey has now become the tenth state to enact a statewide mandatory paid sick leave law. The New Jersey Paid Sick Leave Act was signed into law today by Governor Phil Murphy and will go into effect on October 29, 2018. Once effective, it will require New Jersey employers of all sizes to provide up to 40 hours of paid sick leave per year to covered employees.
In a groundbreaking decision, the California Supreme Court adopted a new legal standard today that will make it much more difficult for businesses to classify workers as independent contractors, drastically changing the legal landscape across the state. The decision will directly affect the trucking and transportation industry because the workers involved in the case were delivery drivers, but also has the potential to affect nearly every other industry—including the emerging gig economy. Specifically, the court adopted a new standard for determining whether a company “employs” or is the “employer” for purposes of the California Wage Orders.
19th-century British poet Alfred Tennyson once said, “In the Spring, a young man’s fancy lightly turns to thoughts of love.” And while you might hold a certain amount of affection for your employees this time of year and want to show them how much you care, you might want to refrain from saying “I love you” to them. That’s because an employer who did just that, and encouraged its workforce to share the same sentiments with coworkers on a regular basis, learned the hard way that such comments are not necessarily appropriate for the workplace.
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?