Archives: Labor Relations

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BREAKING: New York Labor Department unveils guidance on HERO Act, starting the clock for all Empire State employers to adopt airborne infectious disease exposure plans

Earlier this year, New York lawmakers passed a novel, sweeping overhaul of the State’s workplace health and safety laws. Known as the HERO Act, the law is intended to “to protect employees against exposure and disease during a future airborne infectious disease outbreak.” Among other things, the HERO Act requires that the New York State … Continue Reading

New York’s amended HERO Act now in effect

Last month, we reported on New York’s passage of the so-called HERO Act, a landmark law that imposes a novel, sweeping overhaul of the State’s workplace health and safety laws. Although the HERO Act was set to take effect on June 4, the State on June 11 amended the law, including to delay its effective … Continue Reading

New York’s landmark HERO Act becomes law – With some caveats

Well, that was fast! As we reported on Tuesday, the New York State legislature passed a sweeping bill in late April known as the HERO Act. The HERO Act represents a massive change to the Empire State’s workplace health and safety protocols. At the time of our initial post, the HERO Act was awaiting Governor … Continue Reading

New York legislators pass sweeping new workplace health and safety bill

In late April, New York State legislators passed a bill that can best be described as a “game changer.” Known as the Health and Essential Rights – or HERO – Act, the bill proposes a novel, sweeping overhaul of the Empire State’s workplace health and safety laws. Among other things, the HERO Act directs New … Continue Reading

Labor law under the Biden administration: A preview of the PRO Act

At a union event on Labor Day in 2020, President Biden vowed to be “the strongest labor president you have ever had.”  Although he has only been in office a short time, his administration is already taking steps to honor that pledge.  Specifically, on February 4, 2021, House and Senate Democrats introduced the Protecting the … Continue Reading

Pandemic or not, employers must still comply with notice-posting requirements under federal law

Federal law, as well as many state and local laws, require employers to display notices and posters in the workplace advising employees of their rights.  With many employers operating remotely due to COVID-19, however, questions regarding these statutory posting requirements have arisen.  In response, on December 29, 2020, the United States Department of Labor released … Continue Reading

New York federal judge nixes U.S. Department of Labor’s new “joint employer” rule

Earlier this year, the U.S. Department of Labor (DOL) issued a rule updating its interpretation of the “joint employer” doctrine under federal wage and hour law.  Yesterday, however, a New York federal judge struck down a significant portion of the rule.  Judge Gregory H. Woods’ 62-page decision delivers a significant blow to businesses that had … Continue Reading

NLRB ends long-time standard which protected obscene, racist and sexually harassing speech in connection with Section 7 activity

The National Labor Relations Board (the “Board”) issued a decision on July 21, 2020, which will aid employers in their ability to discipline or discharge an employee who engaged in abusive or offensive conduct in connection with protected concerted activity. In General Motors LLC, 369 NLRB No. 127 (2020), the Board modified its standard for … Continue Reading

Responding to employee advocacy and workplace walkouts during times of protest

Several labor organizations, along with racial and social justice organizations, conducted a mass walkout on July 20, 2020 to protest racial inequality and working conditions in the United States.  Thousands of workers in more than 200 cities walked off the job on a full-day strike while others who were unable to strike for a full … Continue Reading

NLRB greenlights company policy allowing searches of workers’ personal property on company premises and company devices and networks

In another victory for employers and a further retreat from Obama-era policy, the National Labor Relations Board (“NLRB” or the “Board”) recently ruled that employers do not violate the National Labor Relations Act (“NLRA” or the “Act”) by maintaining a policy that allows employers to monitor employees on the job by searching employees’ personal property … Continue Reading

Are your sales employees exempt? DOL provides guidance in three new opinion letters

The Department of Labor’s (DOL’s) Wage and Hour Division recently issued three new opinion letters addressing the Fair Labor Standards Act’s (FLSA’s) sales exemptions. Two letters address the outside sales exemption, and the third addresses the retail or service establishment exemption. FLSA2020-6: Do salespeople who travel to different locations to sell their employers’ products using … Continue Reading

Reminder to New York employers: the New York State Department of Labor will be enforcing COVID-19 regulations

As we have reported, since March, New York State has implemented a variety of measures to limit the spread of COVID-19 and to protect workers during the pandemic. These measures include essential business designations, limiting in-person work, paid leave for certain employees impacted by COVID-19, phased reopening of nonessential businesses, mandatory health and safety protocols, … Continue Reading

Pursuit of pre-litigation liquidated damages no longer the DOL’s default policy

The U.S. Department of Labor, Wage and Hour Division (WHD) recently announced it will no longer automatically pursue pre-litigation liquidated damages from employers.  WHD now takes the position that recovering pre-litigation liquidated damages should only occur in a limited number of cases and it will more selectively pursue such additional recoveries. WHD issued this new … Continue Reading

EEOC stops issuing right-to-sue letters in response to COVID-19, delaying litigation deadlines

In an effort to delay litigation deadlines, the Equal Employment Opportunity Commission (EEOC) has stopped issuing Right-to-Sue Letters amid the COVID-19 pandemic, unless specifically requested by an employee.  Although the EEOC has not publicly announced its new policy, it has confirmed this practice to several news outlets. The EEOC is the federal agency responsible for … Continue Reading

National Guard members are protected under USERRA – What employers need to know about employees in the National Guard

On April 1, 2020, U.S. Defense Secretary Mark Esper said that states have the option of using the National Guard to enforce stay-at-home orders amid the coronavirus pandemic. He compared having the National Guard deal with the coronavirus to its duties when a hurricane or another natural disaster strikes the country, saying the force would be used … Continue Reading

California Supreme Court: Employees who settle their own wage and hour claims still have standing to pursue PAGA

The California Supreme Court ruled on March 12, 2020 that an individual plaintiff’s settlement of their claims against an employer for purported wage and hour violations does not deprive that plaintiff of standing as an authorized representative in a Private Attorney General’s Act (PAGA) action. PAGA deputizes an employee to file a lawsuit for purported … Continue Reading

Responding to COVID-19 in a unionized workplace

While all employers are facing an unprecedented whirlwind of rapidly changing circumstances as a result of the COVID-19 pandemic, employers with unionized workforces face additional challenges as they take action in response to the outbreak while trying to avoid running afoul of the requirements of their collective bargaining agreements and the National Labor Relations Act … Continue Reading

NLRB extends effective date of its final rule modifying representation case procedures – Now effective May 31, 2020

On March 24, 2020, the National Labor Relations Board (NLRB) decided to postpone the effective date of its final rule modifying the Agency’s regulation on union representative-case procedures, from April 16, 2020 to May 31, 2020, in order to facilitate the resolution of legal challenges. The NLRB’s final rule, which rolled back some of the … Continue Reading

The NLRB offers “clarity” on its joint-employer test by issuing its final rule

On February 26, 2020, the National Labor Relations Board (NLRB) issued its final rule governing joint-employer status under the National Labor Relations Act (NLRA) in the federal register. The final rule will undo a more relaxed Obama-era joint-employer test by reinstating the joint-employer standard that the Board followed for several decades prior to its 2015 … Continue Reading

New York State and City expand Human Rights Law protections to freelancers and independent contractors

Independent contractors have long been excluded from the protections afforded by traditional workplace anti-discrimination laws. That is no longer the case in New York State and City. In recent months, legislators in both Albany and Manhattan have extended substantial workplace-related protections – once only afforded to traditional employees – to freelancers, consultants, and the like … Continue Reading

EEOC rescinds longstanding policy statement on mandatory binding arbitration

Last month, the U.S. Equal Employment Opportunity Commission (EEOC) surprisingly announced that it was formally rescinding its longstanding “Policy Statement on Mandatory Binding Arbitration of Employment Discrimination Disputes as a Condition of Employment,” which took the position that mandatory arbitration provisions between employers and employees were contrary to federal antidiscrimination laws. Originally issued in July … Continue Reading

The Board reinstates traditional deferral standard

On December 23, 2019, in United Parcel Service, Inc., 369 NLRB 1 (2019), the National Labor Relations Board (the Board) gave employers one final holiday gift by returning to its traditional standard for post-arbitral deferral. The Board uses this standard to decide whether it should defer to arbitration awards in cases alleging the unlawful discipline … Continue Reading

DOL makes historic, pro-business changes to FLSA joint employer test

On January 12, 2020, the U.S. Department of Labor (DOL) issued its final rule updating and revising its interpretation of joint employer status under the Fair Labor Standards Act (FLSA). The new rule simplifies the FLSA joint employer analysis with a four-factor test for determining whether workers are jointly employed by associated businesses or persons. … Continue Reading

NLRB greenlights employer rules requiring employee confidentiality during workplace investigations

On Tuesday, December 17, 2019, in Apogee Retail LLC d/b/a Unique Thrift Store, 368 NLRB No. 144 (2019), the National Labor Relations Board (the Board or NLRB) held that requiring employee confidentiality during workplace investigations does not constitute an unfair labor practice under the National Labor Relations Act (the Act or NLRA). This is yet … Continue Reading
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