Legal Alerts Archive
In its final session of the year, the New York City Council voted to prohibit employment discrimination based on an individual’s reproductive health choices. On December 20, the Council approved an amendment to the New York City Human Rights Law (NYCHRL) which will add “sexual and reproductive health decisions” to the list of protected classes under the law. The amendment was introduced to in response to the federal government’s efforts to curtail reproductive healthcare access.
As 2018 comes to a close, 2019 will bring new changes to the employment law landscape in New York City and the state of New York. New York employers should be cognizant of these impending new laws, as well as laws that went into effect in 2018, in order to ensure compliance with changing obligations.
The New York State Department of Labor recently issued proposed regulations seeking to curb on-call scheduling, “call-in” shifts, and last-minute shift changes. The proposed regulations endeavor to provide employees with more predictable schedules, or compensate them for last-minute schedule changes. If implemented, the regulations will severely impact scheduling practices of New York employers. What do you need to know about these proposals?
The Department of Homeland Security (DHS) recently proposed a new rule that could dramatically change the way the H-1B application process works. The rule would establish an electronic pre-registration system and run the annual lottery based on the pre-registrations rather than requiring employers to file entire H-1B applications. The DHS is also considering changing the way it conducts the lottery to improve the odds of those with graduate degrees from U.S. universities. While U.S. Citizenship and Immigration Services (USCIS) is providing 30 days for public comment, the agency is attempting to fast-track the process to have the system in place for the upcoming H-1B application period, which is set to begin in April 2019.
A Texas federal judge dealt a serious blow to the Affordable Care Act (ACA) late Friday afternoon, ruling that the tax reform law passed by Congress in late 2017 rendered the healthcare law unconstitutional. While U.S. District Court Judge Reed O’Connor’s 55-page opinion overturns the entirety of the law on a national basis, his ruling does not include any sort of injunction that would immediately cause employers to alter their practices with respect to benefit administration. The law remains in place for the foreseeable future, but it certainly stands on shakier ground today than it did just a few days ago.
Employers are about to enter into limbo when it comes to maintaining wellness programs, and you will soon need to make a decision about how you will implement any such programs at your workplace. As of January 1, 2019, the federal rules that had been put into place to govern wellness program incentives will be officially invalid, meaning that you will be somewhat in the wilderness when it comes to creating and enforcing a voluntary wellness program. Here’s a quick summary of how we got to this point, and three options for you to consider in light of the impending absence of rules.
Washington employers, get ready. Starting January 1, 2019, the state’s Employment Security Department (ESD) will begin collecting premium payments from employers so the historic Paid Family and Medical Leave (PFML) program can be implemented. While the benefits will not be able to be accessed by workers until 2020, don’t be fooled into thinking that you still have another year to prepare for this new law; you need to begin your preparations now. What do Washington employers need to know to get ready?
Weeks before the bulk of Oregon’s new equal pay law will take effect, the state Bureau of Labor and Industries released implementing regulations to clarify the obligations that will soon be borne by the state’s employers. Employers with operations in Oregon will want to review and familiarize themselves with these regulations before the January 1 effective date. Here are the five things you need to know about the new rules, along with a list of five action items for you to consider in advance of the new year
In an important decision for employers in the healthcare industry, the California Supreme Court just approved the Industrial Welfare Commission’s long-standing exemption for health care workers in relation to second meal period waivers. The Gerard v. Orange Coast Memorial Medical Center case, released earlier today, had already been the subject of another decision from the California Supreme Court, and the California legislature even passed legislation in the middle of the case directly affecting the court’s decisions—which means this decision was a long timing coming for the California healthcare community.
Massachusetts legislators have taken steps to immediately enhance the Commonwealth’s unemployment compensation regime for locked-out employees of gas and electric companies. In light of the 6-month standoff at National Grid, the gas and electric utility that serves much of Massachusetts, the House of Representatives just passed a bill that would extend an employee’s unemployment eligibility indefinitely for the duration of any lockout, with their employer footing 100 percent of the cost. Where do we expect this legislation to go from here, and what do Massachusetts employers need to know about this development?
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 for the past few years—and this past month was no exception.
This year’s Cyber Monday—the first work day back after the Thanksgiving break—is once again expected to be the largest online shopping day in history. Last year, 81 million American consumers spent over $6.5 billion on digital transactions on Cyber Monday, easily the busiest online shopping day of the year, and an increase of close to 17 percent from the previous year. And it’s starting to even edge out Black Friday in popularity—it was reported that 71 percent of consumers said they planned on shopping on last year’s Cyber Monday, while only 69 percent said they planned to do so on the day after Thanksgiving.
As the ramp-up towards Massachusetts’ paid family and medical leave continues, the newly created Department of Family and Medical Leave (DFML) just launched its website and issued its first guidance documents. As discussed previously, the July 1, 2019 date for starting contributions looms in the not-too-distant distance, while benefits under the paid leave programs will begin in January 2021. What do employers need to know about this development?
A bitterly divided state Supreme Court upheld Kentucky’s right-to-work law by a 4-3 vote yesterday, cementing Kentucky’s status as one of 27 states in the country to have such a law on the books. Although the law was originally signed in January 2017 and immediately took effect, unions in Kentucky resisted accepting the reality of right-to-work and were banking on this litigation to overturn law. Now that the legal challenges have been denied, employers should ensure they are familiar with right-to-work, as the law could have an impact on your workplace.
In a case of first impression, a federal appeals court just found that an applicant’s request for a religious accommodation did not constitute protected activity under Title VII for the purpose of establishing a retaliation claim. Under the 8th Circuit’s November 13 ruling, the appropriate avenue to challenge an employer’s denial of a religious accommodation request under Title VII is by filing a disparate treatment claim, not through a retaliation cause of action. What can employers take from the EEOC v. North Memorial Health Care decision?
Missouri voters approved Amendment 2 on Election Day 2018, one of the three medical marijuana measures appearing on the state’s ballot. Amendment 2 adds an article to the Missouri Constitution legalizing medical use of marijuana for qualifying patients and allowing people who qualify to grow their own plants. With a new law comes new questions about how this development will affect workplaces across the state. Here are a series of the most common questions Missouri employers may have while adjusting to this new reality.
As predicted, Missouri voters turned out in record numbers for the 2018 general election yesterday and overwhelmingly voted to pass Proposition B: The $12 Minimum Wage Initiative. As a result, beginning January 1, 2019, the hourly minimum wage in Missouri will increase from $7.85 to $8.60, and will gradually increase by 85 cents per year until it reaches $12.00 per hour in 2023.
As many predicted, Democrats recaptured the House for the first time in eight years in yesterday’s midterm elections, while Republicans retained and strengthened their grip on the Senate. That will lead to a dynamic in Washington, D.C. that the Trump administration has yet to face: a fractured legislature and a tug-of-war at the federal level. What does this development mean for employers? Here are the top 10 things to expect in the labor and employment law arena given the results in yesterday’s historic elections.
- Is This A Prelude To Individual Liability?11.6.18
In a unanimous 8-0 decision, the United States Supreme Court issued its first ruling of the new term today and delivered a blow to small public-sector employers fending off age discrimination lawsuits.
Just a few short days before the New Jersey Paid Sick Leave Act will become law, requiring New Jersey employers of all sizes to provide up to 40 hours of paid sick leave per year to covered employees, the state Department of Labor and Workforce Development (DOL) published a Frequently Asked Questions (FAQs) document aimed at addressing unanswered questions about the law. This comes on the heels of the agency publishing a mandatory workplace poster and a set of proposed regulations.
As if things aren’t spooky enough this time of year, employers have a new concern: getting “ghosted” by an applicant, a new hire, or even an existing employee. But this modern phenomenon isn’t just something to worry about during the Halloween season—it can happen at any time, to just about any employer. The good news is that there are some techniques you can employ to reduce the chances of it happening to you.
Westchester County has just enacted an Earned Sick Leave Law which will soon require Westchester employers to provide sick leave to its employees. All Westchester employees—both full-time and part-time—who work more than 80 hours per year are eligible to earn sick time. The law, which was passed on October 1, will take effect 180 days from its adoption: March 30, 2019. What do employers need to know about this new law?
- Employers Will Soon Face Mandatory Sexual Harassment Training, However10.23.18
When D.C. voters passed Initiative 77 in June, employers began to prepare for a steady increase in the minimum wage they would need to pay their tipped workers. The tipped minimum wage was set to slowly, but significantly, accelerate until it matched the city’s general minimum wage in the year 2026—which would be at least $15 per hour.
New York City employers will almost certainly need to provide lactation rooms to breastfeeding employees in the near future thanks to a slate of new laws passed by city lawmakers. On October 17, 2018, the City Council passed a package of bills—dubbed the Mother’s Day bills—aimed at helping mothers and children. Included among the legislation is a requirement that employers with 15 or more employees provide a lactation room to any employee needing to express breast milk, and provide employees with written information on the room’s availability. The newly passed legislation awaits the mayor’s signature, and he is expected to sign the suite of bills. If signed, the lactation room laws will take effect 120 days from the date of signature. What do New York City employers need to know about these new requirements?
In a significant victory for employers, a federal appeals court recently limited OSHA’s ability to expand accident investigations beyond their original and intended scope. The 11th Circuit’s decision in United States v. Mar-Jac Poultry, Inc. will immediately aid those employers with operations in Florida, Georgia, and Alabama, but could also be of benefit to employers across the country. What do you need to know about the October 9 decision?
Right after the clock struck midnight this morning, the U.S. Department of Labor unveiled its new regulatory agenda for Fall 2018 and announced its intention to soon tackle two of the hottest topics in the labor and employment world: joint employment and overtime pay. But employers can be forgiven if they approach this announcement with some degree of skepticism, as the USDOL has missed previous target dates—at least when it comes to the long-delayed overtime rule. What does this latest development mean for employers, and when can you expect to see some tangible results?
- State DOL Publishes Poster And Proposed Regulations In Advance Of Looming Effective Date10.15.18
In just a few short weeks, New Jersey employers will be required to comply with the state’s new Paid Sick Leave Act. Once October 29 is upon us, New Jersey employers of all sizes will need to provide up to 40 hours of paid sick leave per year to covered employees. In advance of the impending effective date, the state Department of Labor and Workforce Development (DOL) has just published both a mandatory workplace poster and a set of sweeping regulations covering the new law—and you’ll want to familiarize yourself with both.
The Equal Employment Opportunity Commission (EEOC) just released its preliminary findings examining sexual harassment in the workplace over the past year, and, in wake of the #MeToo movement, no one should be surprised to see the figures rise dramatically. The numbers demonstrate that employers need to be more vigilant than ever when it comes to addressing issues of harassment and discrimination in the workplace.
The Kentucky Supreme Court just outlawed mandatory arbitration agreements that require applicants or employees to sign if they want to be hired or remain employed, making the Bluegrass State the first in the nation to do so. The ruling in Northern Kentucky Area Development Dist. v. Snyder will send shockwaves through the state and cause many employers to immediately change a very common business practice—but will the decision stand? What do employers need to know about this decision and what do they need to do about it?
The Supreme Court term that wrapped up in June was one of the most exciting sessions for workplace law in recent memory, with several blockbuster decisions impacting a wide range of labor and employment law issues. From wage-and-hour exemptions to same-sex wedding cakes, class action waivers to agency shop fees, retaliation standards to travel bans—the past term had it all. So employers might be eagerly anticipating the current term, hoping for a repeat performance.
Employee walkouts and protests are likely to occur on a large scale starting today and lasting through Thursday, spurred on by the union-supported “Fight for $15” movement and in anticipation of the upcoming midterm elections. Employees working at fast-food establishments, janitors, caregivers, and even some higher education adjunct professors are expected to be the primary participants, but it would not be surprising to see other workers seeking higher pay and possible union status join in as well. What do you need to know about the expected protests?
Wrapping up a whirlwind weekend, California Governor Jerry Brown just signed several pieces of legislation that will create new employer obligations in the areas of sexual harassment and gender discrimination. Specifically, you will no longer be able to enter into non-disclosure agreements involving claims of sexual assault, sexual harassment, or sex discrimination; will be required to significantly increase your sexual harassment prevention training initiatives; and will be restricted in your ability to enter into certain settlement agreements related to harassment and discrimination claims.
There is a little-known provision from a new federal law that will most likely impact your hiring practices and your standard hiring documents—and it kicks in today. As of September 21, all employers must update their background check forms to advise applicants and employees of the ability of a “national security freeze,” allowing them additional protections from identity theft. This change could require you to make an immediate change to your standard hiring methods: what do you need to do in order to comply?
Summer might be coming to a close, but labor unions continue to feel a rise in temperature. Unions can expect to face a change in how the National Labor Relations Board’s Regional Offices will handle duty of fair representation (DFR) charges brought by individual employees, and it doesn’t appear as if unions will be happy with the change.
In a move that has been anticipated for several months, the National Labor Relations Board today published a proposed rule that would fundamentally alter the definition of joint employment, making it more difficult for businesses to be held legally responsible for alleged labor and employment law violations by staffing companies, franchisees, and other related organizations. The rule, if eventually adopted, would also limit the ability of employees from affiliated companies to join together to form unions.
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 2018 hurricanes, and may be helpful following any unexpected natural catastrophe.
The scope of New York City’s marital status discrimination law was just expanded by a state appeals court, meaning that employers need to be even more wary when it comes to any workplace decisions taken on the basis of who someone is married to. On September 6, the Appellate Division for New York’s First Department answered for the first time the following question under the New York City Human Rights Law (HRL): may an employer dismiss an employee simply because the employee’s spouse, also a former employee, had taken a job with the employer’s competitor?
The agency overseeing federal contractors issued a revised pay bias directive on Friday that somewhat loosens the standards by which it will evaluate employer compensation practices during compliance investigations. The Office of Federal Contractor Compliance (OFCCP) released DIR 2018–05, also known as “Analysis of Contractor Compensation Practices During a Compliance Evaluation,” to replace a 2013 directive which had ratcheted up the heat on contractors and scrutinized their compensation practices to identify and root out pay bias.
Employers in New York have been eagerly awaiting the state’s anticipated model sexual harassment training and policies ever since the state passed significant new sexual harassment laws back in April. That day has finally arrived.
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?