Archives: Employment & Labor (U.S.)

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Time to reconsider California employee non-solicitation provisions

California has long been known as a state that bans post-employment non-compete and customer non-solicitation agreements for its employees, absent very limited exceptions related to the sale of a business and trade secret protection. Employee non-solicitation provisions were believed to be the last post-employment restrictive covenant that California law still generally allowed, assuming they were … Continue Reading

National Mediation Board proposes simplifying decertification under the Railway Labor Act

On January 31, 2019, the three-member National Mediation Board (NMB), which oversees labor relations for the airline and railroad industries, published a proposed rule-making to simplify the process for workers covered by the Railway Labor Act (RLA) to decertify the unions representing them. Currently, RLA-represented employees seeking to decertify a union must identify an individual … Continue Reading

New York Federal Court lays down the law: Employees cannot invoke NYCHRL’s broad protections when impact of discrimination is felt outside NYC

In Amaya v. Ballyshear LLC, et al., a case before a New York Federal District Court, Nelly Amaya, a Long Island resident, alleged that her former employers engaged in unlawful discrimination and retaliation, in violation of the New York City Human Rights Law (NYCHRL). Amaya’s employers argued that Amaya failed to show that their alleged … Continue Reading

NLRB returns to more employer-friendly independent contractor test

In a recent decision involving SuperShuttle drivers, the National Labor Relations Board (NLRB or Board) overruled a 2014 decision making it less likely a worker would be deemed an independent contractor, returning to the more employer-friendly common law test to determine independent contractor status. In 2014, the Board purported to clarify the standard for evaluating … Continue Reading

Seventh Circuit limits ADEA’s scope, but beware state law

The U.S. Court of Appeals for the Seventh Circuit recently reversed its prior decision and upheld an Illinois district court ruling that the federal Age Discrimination in Employment Act (ADEA) does not protect job applicants from disparate impact claims. But beware, as this seemingly apparent win for employers in Illinois, Indiana, and Wisconsin may drive … Continue Reading

San Francisco increases costs and requirements for employers in 2019

San Francisco’s Office of Labor Standards Enforcement (OLSE) continues to raise the cost of doing business at the foot of the Golden Gate by requiring employers to provide some of the most generous benefits to employees in the United States. The OLSE has amended certain of its rules regarding employer obligations, and will begin enforcing … Continue Reading

NYC Council enacts new protections for employees’ sexual and reproductive health decisions

This week, the New York City Council passed new amendments to the New York City Human Rights Law, which prohibit employment discrimination, discriminatory harassment and violence on the basis of an individual’s sexual and reproductive health decisions. A copy of the new, amended law can be found here. The amended law defines “sexual and reproductive … Continue Reading

NLRB clarifies standard for protected concerted activity

On January 11, 2019, the National Labor Relations Board clarified and narrowed the standard for finding that an employee engaged in protected concerted activities under the National Labor Relations Act. See Alstate Maintenance, LLC, 367 NLRB No. 68 (2019). In doing so, the board overturned a 2011 decision – WorldMark by Wyndham, 356 NLRB 765 … Continue Reading

High court finds independent contractor truck drivers excluded from FAA

On Tuesday, January 15, 2019, the U.S. Supreme Court found that truck drivers classified as independent contractors cannot be compelled to arbitrate their claims under the Federal Arbitration Act (FAA). See New Prime, Inc. v. Oliveira, No. 17-340, 2019 WL 189342 (U.S. Jan. 15, 2019). This decision has significant ramifications for transportation industry companies that … Continue Reading

Divided D.C. Circuit panel largely upholds the NLRB’s Browning-Ferris decision and challenges the Board’s authority to conduct rulemaking

On December 28, 2018, a divided D.C. Circuit panel affirmed, in part, the National Labor Relations Board’s (NLRB’s or Board’s) Browning-Ferris joint-employer analysis. See Browning-Ferris Indus. of Cal., Inc. v. NLRB, No. 16-1028 (D.C. Cir. Dec. 28, 2018). The D.C. Circuit’s decision marks the latest chapter in the NLRB’s ever-shifting joint-employer standard. At issue on … Continue Reading

NYC employers must provide lactation rooms effective March 2019

Beginning March 18, 2019, New York City employers with four or more employees will be required to provide lactation rooms to employees upon request. Specifically, under two bills recently passed by New York City Council (Int. No. 879-A and Int. No. 905-A), New York City employers must: Upon request, provide a lactation room and a … Continue Reading

End of year reminder for NY employers: NYC’s cooperative dialogue law is in effect

On October 15, 2018, the New York City Human Rights Law (CHRL) was amended to require employers to engage in a “cooperative dialogue” with individuals who may be entitled to a reasonable accommodation under the CHRL. Whereas federal and state laws require an “interactive process” to determine a reasonable accommodation, the CHRL requires that employers … Continue Reading

NYC may soon require employers to provide paid vacation

New York City is at it again – continuing its quest to be the most employee-friendly jurisdiction in the country. On January 8, 2019, NYC Mayor Bill de Blasio announced proposed legislation that would require private employers to provide employees with mandated paid time off/vacation. If passed by the City Council, the law would be … Continue Reading

Illinois mandatory expense reimbursement law now in effect

The new year brought a new concern for Illinois employers: a mandatory expense reimbursement law. As of January 1, 2019, Illinois employers must reimburse all “necessary expenditures” their employees incur in the scope of employment directly related to services performed by the employer. The amendment to the Illinois Wage Payment Collection Act (IWPCA) defines “necessary … Continue Reading

U.S. Department of Labor issues new opinion letters on overtime compliance with varying average hourly rates and on volunteerism

The Acting Administrator for the U.S. Department of Labor’s Wage and Hour Division (“WHD”) issued two new opinion letters on Friday, December 21, 2018. The first opines on whether a home health aide service’s compensation plan, which pays an average hourly rate that may vary from workweek to workweek, complies with the Fair Labor Standards … Continue Reading

California Supreme Court clarifies rules regarding health care employees’ waiver of second meal breaks

In an important decision for California health care employers, the California Supreme Court recently confirmed that certain health care employees are allowed to waive their second meal breaks even if they work more than 12 hours in a shift. History of the Gerard litigation In 2015, the California Court of Appeal shocked health care employers … Continue Reading

Here’s a tip for you: DOL offers new tip credit guidance rescinding 80/20 rule

On November 8, 2018, the U.S. Department of Labor (DOL) re-issued an opinion letter rescinding the “80/20 Rule,” which prohibited employers from taking a tip credit if a tipped employee spent more than 20% of his or her working time on non-tipped work. The DOL’s new guidance provides restaurant and hospitality employers with clarity and … Continue Reading

New Jersey Employers: The State Paid Sick Leave Law Is Now In Effect – Are You Ready?

The New Jersey Paid Sick Leave Act takes effect today, October 29, 2018. Just in time for flu season. If you are a New Jersey employer or an employer with employees in New Jersey, regardless of size or employee number, you are now required by law to provide one hour of sick leave for every … Continue Reading

NY Issues Final Guidance on Key Sexual Harassment Laws – Empire State Employers Must Take Immediate Action

As we previously reported, on October 9, 2018, two landmark New York State laws concerning sexual harassment prevention take effect. These laws require that all Empire State employers: Implement a written sexual harassment prevention policy that meets or exceeds the content of a model sexual harassment prevention policy prepared by State regulators, and Provide employees … Continue Reading

Uber’s arbitration agreements break down drivers’ misclassification suits

Employers considering requiring their employees sign arbitration agreements with class waivers just got a real-world example of the effectiveness of such agreements. On September 25, 2018, the U.S. Court of Appeals for the Ninth Circuit upheld the enforceability of arbitration agreements signed by thousands of Uber drivers in California. In the underlying lawsuits, the Uber … Continue Reading

National Labor Relations Board proposes regulation to establish new joint employer rule

Yesterday, the National Labor Relations Board (NLRB or Board) announced a much-anticipated proposed regulation to establish a rule-driven standard for determining joint-employer status under the National Labor Relations Act (NLRA). The Board’s proposed rule represents a return to a more common-law-centered understanding of joint-employer relationships, establishing joint employer status based on the exercise of substantial … Continue Reading

New Jersey Federal Judge Finds Medical Marijuana User Cannot Compel Employer to Waive Employment Drug Testing Requirements

The United States District Court of New Jersey recently dismissed an employee’s disability discrimination, failure to accommodate and retaliation claims, holding that neither the New Jersey Law Against Discrimination (LAD) nor the New Jersey Compassionate Use Medical Marijuana Act (CUMMA) required the employer to waive its drug testing requirements. In Cotto v. Ardagh Glass Packing, … Continue Reading

Are confidentiality clauses about to become a relic in sexual harassment cases?

With a few minor tweaks here and there, your company has probably relied on the same severance and employment-related settlement agreements for years. Sure, you touch base with your friendly neighborhood employment lawyer from time to time to ensure there haven’t been any significant legal developments that necessitate revisions. But aside from peripheral alterations, these … Continue Reading

Reminder for NY employers: NYC’s Temporary Schedule Change Law is in effect

On July 18, 2018, New York City’s temporary scheduling provisions of the New York City Fair Workweek Law went into effect. As a reminder, this law requires covered employers to grant employees a maximum of two temporary work schedule changes per calendar year for qualifying personal events. Also, the law prohibits employers from retaliating against … Continue Reading
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