Legal Alerts Archive
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.
In a solid win for New York City employers, the New York Court of Appeals held that a worker cannot bring a disability discrimination claim under New York City law based solely on a perception of untreated alcoholism. Through its holding, the state’s highest court foreclosed the courtroom doors to a class of employees and applicants who would otherwise have claims under city law, although the ruling may spur the City Council into revising the law in employees’ favor (Makinen v. City of New York).
New York City’s Fair Workweek Law takes effect on November 26, 2017, thereby limiting the scheduling options and reducing the flexibility of retail and fast food employers. Not to be outdone, New York State is about to add additional restrictions regarding on-call practices statewide. On November 10, Governor Cuomo proposed statewide regulations targeting “on-call” scheduling. The regulations seek to curb employers’ ability to require an employee to be available to work only if needed, and to either contact the employer or wait to be contacted by the employer about whether to report to work – even if just shortly before the shift is scheduled to start.
The Oregon state agency charged with enforcing the state’s wage and hour laws has announced the largest civil penalty against an employer in its long history – nearly $277,000. According to the Oregon Bureau of Labor and Industries (BOLI), Portland’s Legacy Emanuel Medical Center will be forced to pay over a quarter-million dollars to resolve allegations that many of the organization’s workers were not receiving mandatory meal periods and paid breaks in accordance with state law. What can other Oregon employers learn from this situation to avoid a similar fate?
- Translation: Sick SCOTUS Burn Over Hyper-Technical Legal Distinction Involving Boring Lawyer Stuff11.8.17
In a unanimous decision, the U.S. Supreme Court ruled today that a federal procedural rule that allows a district court to extend an appeal deadline by no more than 30 days is a non-jurisdictional, mandatory claims processing rule. While this is a generally inconsequential decision when it comes to workplace law, it is a decision about which every litigant and participant in the judicial system should be aware, as it could impact litigation options and strategy. While this decision might potentially lead to a slight uptick in extension requests from pro se plaintiffs and overall delays in commencing appeals, it may also have a marginal impact on appellate litigation (Hamer v. Neighborhood Housing Services of Chicago, et al).
By a vote of 242 to 181, the House of Representatives passed the “Save Local Business Act” today, a bill that would significantly narrow the definition of “joint employment” and limit employers’ wage and labor problems. HR 3441 will now move to the Senate, and if it passes a vote there and receives the signature of the president, it will significantly reduce the risk of unwarranted legal claims based on a claim of joint employment.
The latest tool that can be used against employers is now fully operational. The Equal Employment Opportunity Commission’s (EEOC’s) online filing portal, or Public Portal, which was tested in five cities over the past six months, was just rolled out across the entire country. As of November 1, individuals will be able to initiate discrimination charges against employers using the EEOC’s digital platform. What do employers need to know about this 21st-century development?
New York City’s Department of Consumer Affairs (DCA), the agency tasked with enforcing the city’s new “Fair Workweek Law,” recently issued proposed rules to implement the legislation and provide guidance to covered employers and workers. Given that the law is scheduled to take effect in just a few weeks on November 26, 2017, you should familiarize yourself with the relevant statutes and examine the proposed regulations so that you are in a position to be in full compliance.
- Workflex In The 21st Century Act Would Solve Local Law Patchwork Problem11.3.17
If a proposal introduced in the U.S. House of Representatives yesterday were to pass Congress and be signed into law by President Trump, the country’s employers would find themselves facing the first-ever federal paid leave act. There’s good news, however: employers would choose whether to opt in to the paid leave program, and if they do, they would receive a safe harbor ostensibly absolving them from complying with state and local paid leave laws.
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. October 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 11 stories from last month that all employers need to know about.
The National Labor Relations Board (NLRB) recently announced that it negotiated a $21.6 million settlement on behalf of the International Brotherhood of Teamsters to settle allegations that VIUSA, Inc. refused to hire a group of Teamster-represented workers at the Ford Motor Company assembly plant in Louisville, Kentucky. According to the October 30 announcement, the NLRB will distribute about $14.4 million in backpay to about 257 workers as payment for VIUSA’s allegedly “casting aside” Teamsters Local 89 employees in favor of United Auto Workers (UAW) employees at lower wages. The remaining $7.2 million will go to the Teamsters Central States Pension Fund to compensate for missed benefit contributions.
- ALJ Rules Broad Confidentiality and Texting Rules Lawful10.23.17
Employers who have been keeping up with the NLRB's decisions over the past eight years may be pleasantly shocked to learn that an Administrative Law Judge (ALJ) just upheld an employer’s seemingly broad rule providing that “all documents are considered confidential” and are not to be “taken off the premises.”
For the third time this year, a federal district court has blocked a presidential travel ban from taking effect. Judge Derrick K. Watson, from the District of Hawaii, today granted a motion for a temporary restraining order that bars the federal government from enforcing President Trump’s September 24 travel ban (Travel Ban 3.0) on a national level, once again setting up a showdown at the 9th Circuit Court of Appeals and possibly the U.S. Supreme Court.
- Banning The Box And Prohibiting Pay History Inquiries Among New State Laws10.16.17
California employers will soon need to adjust themselves to a new reality once again as a number of new workplace restrictions have been passed by the state legislature and just signed into law by Governor Jerry Brown. State lawmakers were quite active this year, with almost 2,500 bills introduced and over 1,000 making it to the Governor’s desk. Of those approved by yesterday’s October 15 deadline, a substantial number relate to the workplace, and several will be quite significant for employers.
The Department of Health and Human Services (HHS) just issued new rules which will limit the contraception coverage mandate covering employers under the Affordable Care Act (ACA). The new rules, released Friday, expand the range of employers and insurers that can invoke religious or moral beliefs to avoid the ACA’s requirement that birth control pills and other contraceptives be covered by insurance as part of preventive care.
Attorney General Jeff Sessions formally reversed the federal government’s position on whether transgender workers are covered by Title VII of the Civil Rights Act, informing all U.S. Attorneys and heads of all federal agencies that the Department of Justice (DOJ) no longer believes that the antidiscrimination statute provides such coverage.
If you are the kind of person who gets excited by hot-button legal topics and monumental court decisions, this is the Supreme Court term for you. The SCOTUS kicked off their 2017-2018 term several days ago by hearing arguments in a critical workplace law case, and the hits will keep coming for the remainder of the term. After a rather boring session in 2016-2017, the Court has teed up a variety of juicy labor and employment cases that, once decided, promise to reshape the way you interact with your employees in the future.
It’s hard to keep up with all the recent changes to labor and employment law. The law always seems to evolve at a rapid pace, and September 2017 was no different. In order to make sure that you stay on top of the latest changes, here is a quick review of the Top 10 stories from last month that all employers need to know about.
A New Jersey appeals court recently ruled that a volunteer firefighter was not an “employee” of the volunteer fire company from which he was expelled, rejecting his whistleblower claim and strictly interpreting the state’s statute. The September 13, 2017 ruling should offer guidance to New Jersey employers regarding whether true “volunteers” are protected under the state’s Conscientious Employee Protection Act, commonly known as “CEPA” (Sauter v. Colts Neck Volunteer Fire Company No. 2).
In a move that must have labor unions across the country trembling with fear, the Supreme Court today announced that it will once again take up the issue of whether public sector agency shop fee arrangements are prohibited by the First Amendment. If the Court rules as expected and strikes down these common arrangements, it would be a big blow to the influence that labor has across the country (Janus v. American Federation of State, County, and Municipal Employees, Council 31).
President Trump signed a new and revised “travel ban” over the weekend, soon after the expiration of his second temporary travel ban. This latest executive order, signed on September 24, more directly targets individuals from a new list of seven countries and will create a new travel ban beginning October 18. What do employers need to know about Travel Ban 3.0?
In a long-anticipated move, the United States Department of Education Office for Civil Rights withdrew the Obama Administration’s 2011 Dear Colleague Letter on Sexual Violence this morning, as well as its Questions and Answers on Title IX and Sexual Violence. It also issued a replacement “Q&A on Campus Sexual Misconduct,” which will provide institutions with guidance on an interim basis pending formal regulations to be issued by the Department.
The past year has brought multiple new workplace laws that will require employers in Washington to change several key policies and procedures. Here is an update that provides a general overview to help you prepare for these new laws, in the order of the effective dates of each law.
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. August 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 11 stories from last month that all employers need to know about.
This list of frequently asked questions was originally prepared by the law firm of Fisher Phillips in 2005, in response to Hurricanes Katrina, Rita and Wilma. It has been updated several times over the course of the past 12 years, most recently in the aftermath of Hurricane Harvey striking Texas and Louisiana in August 2017, and in anticipation of Hurricane Irma striking Florida in September 2017.
Attorney General Jeff Sessions announced earlier today that the Department of Homeland Security will immediately “wind down” the Deferred Action for Childhood Arrivals (DACA) program. This action will affect almost 800,000 young people in the United States by ending their temporary protection under deferred action and their ability to hold proper work authorization. This announcement has received widespread attention in the news media, but what does it mean for the nation’s employers?