Covert recordings at work on the rise in the UK

It is becoming increasingly common for employees to make covert recordings of meetings held with their employer. The reasons behind these recordings vary from a simple desire to keep a record of what is said to attempts to entrap their employer and use the recording against it in court proceedings.

The Employment Appeal Tribunal (EAT) recently considered the issue of covert recordings in Phoenix House Ltd v. Stockman. The EAT had to decide whether an employee’s covert recording breached the implied term of mutual trust and confidence. In its decision, the EAT provided helpful commentary on covert recordings which may assist employers to navigate this difficult area.

New York bans religious garb and grooming discrimination

By Cindy Schmitt Minniti, Mark S. Goldstein and Alexandra Manfredi on 16 August 2019 Posted in Discrimination, Employment & Labor (U.S.), New York Employment Beat, Workplace Laws and Regulations

New York lawmakers have been busy this summer. First, in June, they passed a suite of bills significantly expanding the protections afforded by the state’s antidiscrimination law and adding remedies for employees asserting unpaid wage claims. Then in July, they loosened the definition of retaliation under the state’s labor law. They apparently were not done.

On August 9, 2019, Governor Andrew Cuomo signed into law a bill barring employers from discriminating against employees for “the wearing of any attire, clothing, or facial hair in accordance with the requirements of his or her religion.” This law expands upon existing New York state and city laws that prohibit religious-based discrimination and require employers to provide religious accommodations.

This new measure, which takes effect October 8, is the latest in recent efforts to curtail appearance-based discrimination. As we previously detailed, earlier this year, New York (and California) banned race discrimination based on natural hair or hairstyles and New York City issued guidance on race discrimination on the basis of hairstyle. Employers should train human resources personnel and supervisors on this new law and conduct a review of their policies on personal appearance and grooming, dress code, and accommodations to ensure compliance.

NLRB offers new guidance on mandatory arbitration agreements following last year’s Epic decision

By Michael Correll, Heather Martone and Michele Haydel Gehrke on 16 August 2019 Posted in Employment & Labor (U.S.), Labor Relations, Workplace Laws and Regulations

The National Labor Relations Board (the Board) issued a 3–1 decision in Cordúa Restaurants, Inc., 368 NLRB No. 43 (2019), on Wednesday that provides significant new guidance regarding the intersection of arbitration agreements and the National Labor Relations Act (NLRA). The Board’s decision expressly authorizes employers to implement arbitration agreements that include collective waivers in direct response to employees filing a Fair Labor Standards Act (FLSA) collective action. Further, the Board held that warning employees that they will be discharged if they do not accept such an agreement — even with FLSA litigation pending — does not constitute a violation of the NLRA.

In January 2015, seven employees filed an FLSA collective action against Cordúa Restaurants, Inc., a Houston-based restaurant group, in the United States District Court for the Southern District of Texas. Subsequently, 13 additional employees opted into the lawsuit. In response to the lawsuit, Cordúa implemented a revised mandatory arbitration agreement that was to be executed by all employees. The new agreement expressly required employees to waive FLSA collective rights and arbitrate FLSA claims on an individual basis. Though Cordúa had previously required employees to execute an arbitration agreement that waived class action rights, the new agreement marked the first time that employees were asked to waive collective rights. When the new agreement was presented to employees, managers informed employees that they would not be scheduled for any additional shifts unless and until they executed the new arbitration agreement. The charging parties asserted that both implementing the arbitration agreement because of the litigation and threatening to constructively terminate those who refused to sign the agreement constituted violations of the NLRA.

Connecticut enacts expansive sexual harassment prevention measures

By Cindy Schmitt Minniti, Mark S. Goldstein and Alexandra Manfredi on 14 August 2019 Posted in Employment & Labor (U.S.), Sexual Harassment, Workplace Laws and Regulations

Connecticut has joined New York, New Jersey, and several other states in adopting measures to combat sexual harassment in the workplace. Effective October 1, 2019, Connecticut employers will have a host of new training, notice, and human resources requirements with which to comply — and will now face new, substantial categories of damages for violations. This post will discuss these new changes, as well as the other expanded employee protections afforded under this new legislation.

Mandatory training for employees and supervisors

Under Connecticut’s new law, employers with three or more employees must provide all employees with two hours of sexual harassment prevention training. Existing employees must be trained by October 1, 2020, and employees hired on or after October 1, 2019, must be trained within six months of hire. In addition, all employers regardless of size will be required to provide sexual harassment training to supervisors. Supervisor training must be provided by October 1, 2020, or within six months of an employee assuming a supervisory role. (Previously, supervisor training was required only for employers with more than 50 employees in Connecticut.) While the new law does not require annual training, Connecticut employers must provide supplemental training not less than every 10 years.

That training must include information concerning the federal and state statutory provisions concerning the illegality of sexual harassment and remedies available to victims of harassment. The Connecticut Commission on Human Rights and Opportunities (CHRO) has been tasked with creating training resources employers may use to satisfy this requirement, as well as general resources on sexual harassment.

New York Continues Expansion of Worker Wage Protections (Part 2)

By Cindy Schmitt Minniti, Mark S. Goldstein and Alexandra Manfredi on 13 August 2019 Posted in Employment & Labor (U.S.), New York Employment Beat, Wage and Hour, Workplace Laws and Regulations

This is the second installment of our two-part blog series on recent wage-related changes to New York state law. In part one, we covered the expanded definition of retaliation under the New York Labor Law. Today, we will discuss a bill that permits employees to place wage liens on their employer’s property.

Employees in New York have long been able to seek recourse for wage claims through litigation in federal and state court, as well as through the federal and state Departments of Labor. Under this new legislation, employees will also be able to place a lien on an employer’s real or personal property for the value of an alleged wage claim and related liquidated damages. A “wage claim” under the bill includes federal and state claims related to minimum wage, overtime, spread of hours, unlawful deductions, withheld gratuities, improper tip and meal credits, and compensation under employment agreements. Employees of all classifications and pay rates will be able to obtain wage liens within three years after their employment ends.

NLRB publishes proposed changes to union election procedures

By Michele Haydel Gehrke, Lori Armstrong Halber and Tom Posey on 12 August 2019 Posted in Employment & Labor (U.S.), Labor (U.S.), Labor Relations, US Alert

The National Labor Relations Board (Board or NLRB) issued on Friday its first proposed regulation in a series that will overhaul parts of union election procedures. The Board’s 113-page proposed rule, which was published in the Federal Register today, Monday, August 12, modifies three of the board’s election processes: (1) the handling of blocking charges; (2) the voluntary recognition bar; and (3) certain collective bargaining relationships involving employers in the construction industry. This piecemeal approach is consistent with Board Chairman John Ring’s statements at the American Bar Association’s labor and employment conference last November and is part of the rule-making agenda the Board announced in May.

Under the Obama administration, the Board passed the “quickie” or “ambush” election rule, which significantly shortens the time between the date an election petition is filed with the NLRB and the date the election is held, requires preelection hearings to be held very shortly after the filing of a representation petition, and requires employers to provide union representatives with far more information on potential voters than in the past. These new procedures were derided by employers and business groups, which was most clearly evidenced in 2017 when the Board received over 7,000 responses to its invitation for comments on whether to roll back these changes.

In the Board’s Friday announcement, a three-member majority, over one Board member objection, said, “The board believes, subject to comments, that the proposed amendments will 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.” Chairman Ring added, “There are few more important responsibilities entrusted to the NLRB than protecting the freedom of employees to choose, or refrain from choosing, a labor organization to represent them, including by ensuring fair and timely board-conducted secret ballot elections. We believe that the changes we propose today further the goal of protecting this vital freedom.” The Board’s lone Democrat, Lauren McFerran, objected to the proposed rule-making. Continue Reading

New York Continues Expansion of Worker Wage Protections (Part 1)

By Cindy Schmitt Minniti, Mark S. Goldstein and Alexandra Manfredi on 12 August 2019 Posted in Discrimination, Employment & Labor (U.S.), Equal Pay, New York Employment Beat, Wage and Hour, Workplace Laws and Regulations

The New York state legislature recently passed two bills providing additional protections to employees asserting unpaid wage claims. These changes are the latest in the state’s overhaul of its employment law landscape this summer. As we discussed in previous posts, New York recently enacted limitations on the use of nondisclosure provisions in settlement and separation agreements, new standards for litigating and defending harassment claims, expanded equal pay protections, a statewide ban on salary history inquiries, and additional changes to the state’s anti-discrimination laws. We will address the two new laws and their implications in this two-part series.

The first bill expands the definition of retaliation under the New York Labor Law. By way of background, New York has long prohibited retaliation against employees who complain of alleged wage violations or otherwise cooperate with state regulators regarding an alleged violation of wage and hour laws. Specifically, an employer cannot “discharge, threaten, penalize, or in any other manner discriminate or retaliate against any employee” for complaining about wage practices such as minimum wage violations, unpaid overtime, improper deductions, and the like.

New Jersey increases wage protections and penalties for violations

By John T. McDonald on 12 August 2019 Posted in Employment & Labor (U.S.), Equal Pay, Wage and Hour, Workplace Laws and Regulations

Acting New Jersey Governor Sheila Oliver recently signed into law bill A-2903/S-1790, which includes sweeping changes to New Jersey civil and criminal provisions related to the payment of wages, including increased penalties and fines. A summary of the key provisions of this law is below.

First, the law amends the Wage Payment Law, Equal Pay Act, and the N.J. State Wage and Hour Law, such that if an employer owes unpaid wages or wages lost due to retaliation, the employee is allowed to recover not only the wages owed but also liquidated damages equal to 200 percent of the unpaid wages, plus reasonable costs and attorney’s fees. The law provides that an employer may avoid liquidated damages for its first violation if the employer establishes that its action was taken in good faith, with a reasonable basis to believe that its action was not a violation, and the employer admits the violation and pays the amount owed within 30 days.

Second, the law triples the applicable statute of limitations. Specifically, the law extends the limitations period for a wage recovery action from two to six years.

UK government consultation: UK to legislate on use of confidentiality (non-disclosure) agreements in the workplace

By Carlene Nicol and Michael D. Smith on 8 August 2019 Posted in Confidentiality, Discrimination, Employment (UK), Sexual Harassment, Workplace Laws and Regulations

At the end of 2018, a report from a committee of the UK parliament called on employers and regulators to take a more proactive role in relation to sexual harassment in the workplace, including in relation to the use of confidentiality (non-disclosure) agreements.

In its recent response to that inquiry, the government has set out its ‘measures to prevent the misuse of confidentiality clauses in situations of workplace harassment or discrimination’. This response, together with the launch of its consultation on tackling the wider issue of sexual harassment in the workplace, reflects the UK’s continued focus on the issue of workplace harassment.

Confidentiality clauses tend to be drafted into contracts of employment and settlement agreements. They are provisions in those contracts which seek to prohibit the disclosure of information. While recognising that confidentiality clauses serve as a useful and legitimate mechanism both during the course of and after employment (for example, to prevent employees from sharing company proprietary information with competitors), the UK government has made it clear that they should not be used to ‘gag’ and intimidate victims of workplace harassment and/or discrimination. The government has confirmed that, when parliamentary time allows, it will provide guidance on drafting requirements for confidentiality clauses and legislate to, in summary:

Pennsylvania now permits medical marijuana use for anxiety and Tourette Syndrome

By John T. McDonald, Melissa M. Ferrara and Mariah McGrogan on 7 August 2019 Posted in Employment & Labor (U.S.), Medical Marijuana, Pennsylvania Employment Beat, Workplace Laws and Regulations

On July 20, 2019, Pennsylvania expanded its list of 17 “serious medical conditions” that qualify for medical marijuana usage under the Pennsylvania Medical Marijuana Act (MMA) to now include anxiety and Tourette Syndrome. Previously, the MMA limited access to designated ailments like cancer, multiple sclerosis, post-traumatic stress disorder and inflammatory bowel disease, and terminal illnesses (defined as a life expectancy of 12 months or less). These conditions resulted in about 110,000 registered medical marijuana users under the MMA.

Given the rates of diagnosis, the addition of anxiety as a qualifying condition is especially likely to increase the medical marijuana user population in the Commonwealth. According to the National Institute of Mental Health, about 19 percent of U.S. adults have experienced anxiety disorders in the past year, with anxiety manifesting at a higher rate for women than for men, and about 31 percent of U.S. adults experience anxiety disorders in their lifetime.¹ Tourette Syndrome, on the other hand, affects approximately 1 to 10 in 1,000 children.²

Employers should review their current drug-testing policies to ensure that they are prepared for a potential influx of medical marijuana users. To comply with Pennsylvania law, employers should clearly identify standards of conduct for their employees, ensure that adverse actions against applicants or employees are not based solely on an individual’s status as a medical marijuana user, and be mindful of the risks associated with failing to engage in an interactive dialogue regarding potential accommodations for medical marijuana use.

For more information regarding Pennsylvania’s Medical Marijuana Act, please see our previous article, published here.

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1. https://www.nimh.nih.gov/health/statistics/any-anxiety-disorder.shtml.

2. https://ghr.nlm.nih.gov/condition/tourette-syndrome#statistics.