Employment & Labor (U.S.)

In an exceptional development that could dramatically change collegiate sports in the United States, the Regional Director for Region 1 of the National Labor Relations Board (NLRB) recognized the fifteen players of the Dartmouth College men’s varsity basketball team as employees with a right to unionize under the National Labor Relations Act (NLRA), in a decision issued on February 5, 2024. As a result, the players are eligible to vote on whether they want to be represented by the Service Employees International Union, Local 560 for collective bargaining purposes. If a majority of the voting players vote in favor of the union, they will create the first-ever union of NCAA athletes.

The Dartmouth College decision signifies a shift by the NLRB. In 2015, the NLRB declined to exercise jurisdiction over a similar bid to unionize by Northwestern’s football team, thereby declining that opportunity to recognize student athletes as employees at that time. The opportunity was seized in the Dartmouth College decision, however, as the Regional Director distinguished the Northwestern decision – perhaps most notably, based on the fact that Dartmouth College competed in the Ivy League Conference, exclusively with other private schools that were subject to the NLRB’s jurisdiction, where Northwestern competed in the Big Ten Conference, in which every other school in the conference was a state-run institution that was not subject to the NLRB’s jurisdiction.Continue Reading NLRB’s recognition of Dartmouth College men’s basketball team as employees could change collegiate sports forever

On January 29, 2024, the Delaware Supreme Court issued an important decision addressing the enforceability of restrictive covenants. As detailed below, in Cantor Fitzgerald v. Ainslie, the court upheld forfeiture-for-competition provisions set forth in a limited partnership (LP) agreement and ruled in favor of the partnership not having to pay out millions to former partners.

Key highlights

In Cantor Fitzgerald, the Delaware Supreme Court decision relied significantly on the following factors in enforcing the LP agreement as written and determining that the disputed provisions were, in fact, enforceable:

  • The restrictive covenant did not bar the claimants from engaging in competitive activities.
  • Rather, the provisions in question provided, in part, that receipt and retention of prior conditional awards of a portion of their compensation would be subject to the condition precedent that the recipient refrained from competing – in other words, these were forfeiture-for-competition provisions.
  • These forfeiture-for-competition provisions were not liquidated damages provisions (triggered by a breach of contract); rather, these provisions set up a condition precedent (not competing with the employer) to the employees’ receipt of the amounts that had been held back. 
  • The “employee choice doctrine” suggests that courts do not review forfeiture-for-competition provisions for reasonableness where, as here, the employee voluntarily terminates employment (as opposed to remaining employed and vesting in the contingent compensation amounts).

Continue Reading Delaware Supreme Court confirms enforceability of restrictive covenant provisions in favor of employer-partnership, reversing Chancery Court determination

Following a number of other states, the District of Columbia Council passed The Wage Transparency Omnibus Amendment Act of 2023 (the 2023 Act), which was approved by Mayor Muriel Bowser on January 12, 2024, and is pending Congressional review. The 2023 Act amends the D.C. Wage and Transparency Act of 2014 (the 2014 Act) to compel openness in compensation by requiring employers to publish wage bands for advertised positions, prohibiting wage screening of applicants, and requiring disclosure of the existence of healthcare benefits prior to interviews.Continue Reading Show them the money: D.C. law to require employers to disclose compensation to job candidates

Employment legislation and litigation are often about trends. In the mid-to-late 2010’s, for instance, lawmakers across the U.S. enacted numerous bills concerning paid time off for employees, such as for sick and family leave. A more recent trend involves regulatory and legislative attempts to limit or even outright ban non-compete agreements.

In New York State, the unquestionable employment litigation trend over the past several years has revolved around frequency of pay claims under Section 191 of the New York Labor Law (NYLL). This trend was born out of a radical 2019 appellate court decision that broke from more than a century of judicial precedent.

As more fully discussed below, however, two recent developments – one legislative and one judicial – suggest that the flood of frequency of pay lawsuits may soon be a thing of the past.Continue Reading Are frequency of pay lawsuits in New York soon to be a thing of the past?

On January 10, 2024, the U.S. Department of Labor (DOL) published its final independent contractor rule in the Federal Registrar in an attempt to provide greater clarity and consistency on how to classify a worker as an employee or independent contractor under the Fair Labor Standards Act (FLSA).

For decades, federal courts have analyzed the question using a multifactor, totality-of-the-circumstances economic reality test, with no factor or factors being dispositive. However, a rule that was published on January 7, 2021, known as the 2021 IC Rule, set forth “core factors” where some factors should be given additional weight over others. The 2021 IC Rule was criticized for not being supported by the DOL’s historical position and not fully aligned with the FLSA’s text.Continue Reading Navigating the labor landscape: Department of Labor announces final rule on independent contractors

Last week, Governor Hochul announced a suite of proposed measures aimed at addressing rising maternal and infant mortality rates. As is relevant to New York employers, this includes a proposed expansion of New York State Paid Family Leave to include 40 hours of paid leave to attend prenatal medical appointments. If signed into law, this would make

The new year is a good opportunity for employers to review and refresh HR policies and procedures. One change that employers should be aware of, which came into effect at the end of October 2023, relates to when prison sentences become spent and therefore no longer need to be declared to prospective employers, which will have a knock-on effect for recruitment processes and paperwork.

The changes to the Police, Crime, Sentencing and Courts Act 2022 reduce the time people with certain criminal convictions are required to declare them to potential employers after serving their sentence. While these changes have been welcomed by thousands of ex-offenders and have been hailed by the government as removing a significant barrier to offenders rebuilding their lives, it will limit what employers can ascertain about a candidate’s past.Continue Reading Changes to when convictions become spent in the UK

New York State lawmakers had a busy 2023 and have ushered in many new measures that will take effect throughout 2024. As New York employers look toward the new year, they should keep the following key dates in mind:

  • January 1, 2024 – The minimum wage rate in New York will increase to $16/hour in New York City, Nassau, Suffolk, and Westchester Counties and $15/hour in the rest of the state. Additionally, this will cause an increase to the exempt salary threshold for administrative and executive employees — to $1,200/week or $62,400/year in New York City, Nassau, Suffolk, and Westchester Counties and $1,124.20/week or $58,458.40/year in the rest of the state.
  • February 15, 2024 – The statute of limitations for filing administrative claims of unlawful discrimination under the New York State Human Rights Law extends from one year to three years (running from the date of the alleged unlawful discriminatory practice). Claims of sexual harassment are already subject to this three-year limitations period.

Continue Reading New year, new laws: Key compliance dates for New York employers

During the height of the #MeToo movement, New York lawmakers passed a host of workplace-related legislation. This included adoption of Section 5-336 of the New York General Obligations Law, which governs the use of nondisclosure provisions in agreements resolving claims of discrimination, harassment, or retaliation. On November 17, 2023, Empire State legislators passed several key amendments (the “Amendment”) to the existing law, which took effect immediately.

By way of background, Section 5-336 was originally passed to protect nondisclosure provisions in agreements resolving claims of sexual harassment. Under Section 5-336 and prior to the Amendment, the law prohibited employers from including nondisclosure provisions in such agreements unless it was the employee’s preference and the employer complied with certain procedural requirements, including: (i) the inclusion of the provision is the employee-complainant’s preference; (ii) employee’s receipt of 21 days to consider the nondisclosure provision, a period that could not be shortened or waived (even if the employee wanted to); (iii) a 7-day revocation period; and (iv) employee’s preference for confidentiality memorialized in a separate written agreement.Continue Reading Reminder to New York employers: Amendments to nondisclosure rules will require updates to separation and settlement agreements

On October 26, 2023, the National Labor Relations Board issued a final rule that dramatically lowered the standard for companies to qualify as joint employers. You can read more about the rule here. In short, the new rule provides that even reserved, unexercised, or indirect control, such as through an intermediary, over one or more of the rule’s seven enumerated terms or conditions of employment is sufficient to establish joint employment. There is no doubt that implementation of the new rule will drastically expand when companies will be considered joint employers and create additional costs and obstacles for employers.Continue Reading Dueling challenges to NLRB’s new joint employer rule succeed in extending effective date of rule