On December 7, 2022, President Biden signed into law the much-heralded “Speak Out Act.” As the name suggests, the Act is designed to “empower survivors [of sexual harassment and sexual assault] to come forward” and “hold perpetrators accountable for abuse” while improving the safety and productivity of the workplace. The Act notes that “nondisclosure and
Employment & Labor (U.S.)
New York City proposes bill to effectively eliminate “at will” employment
On December 8, 2022, three New York City Council Members proposed a workplace-related bill that would essentially do away with the concept of “at will” employment in the Big Apple. Suffice it to say, the proposed bill would, if passed, be an absolute game changer for businesses in one of the country’s largest commercial markets.…
California employment law legislative update: Employers must ring in 2023 with a host of new obligations
The deadline for California’s Governor to sign, approve without signing, or veto bills on his desk was September 30, 2022. We have compiled a comprehensive list of the major new laws and obligations that employers in the Golden State should know. As always, it is wise to consult with counsel to ensure that workplace policies…
NLRB aiming to take pro-labor action in the areas of technology-based monitoring and surveillance and blocking charges
Last week, the National Labor Relations Board signaled two additional areas in which it intends to pursue its labor-favorable agenda over the remainder of the 2022 year and beyond.
First, on October 31, 2022, NLRB General Counsel Jennifer Abruzzo issued a memorandum stating her intention to zealously enforce the National Labor Relations Act (the “Act”) with respect to what she has called “intrusive or abusive electronic monitoring and automated management practices.”
Second, on November 3, 2022, the Board issued a proposal to roll back 2020 amendments to its election regulations with respect to so-called blocking charges.
Technology-based monitoring and surveillance
In her October 31 memorandum, the General Counsel expressed concern that “close, constant, surveillance and management through electronic means” constitutes a threat to “employees’ ability to exercise their rights” under the Act. The General Counsel specifically stated that electronic surveillance and automated systems can limit or prevent employees from engaging in protected activity, including conversations about the terms and conditions of their employment or of unionization. She also claimed that employer-issued devices or required applications on employees’ personal devices may extend surveillance to nonworking areas, including to rest areas within an employer’s facilities and non-work areas outside of the workplace. This, the General Counsel speculated, “may prevent employees from exercising their Section 7 rights” from engaging in concerted activity anywhere and may lead to retaliation and discrimination on the basis of protected activity. The memorandum goes on to provide a two-pronged approach towards dealing with these perceived threats to employees’ rights.…
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Do we need to give employees paid time off to vote in the upcoming midterm elections?
With Election Day just around the corner, private employers should carefully review state voting leave laws to ensure they are in compliance. Voting leave laws vary by state, and depend on where the employees are actually located. We have prepared a quick-reference summary of the voting leave laws in those jurisdictions that have them, which…
Reminder to New York City employers: The city’s wage transparency law goes into effect November 1, 2022
As we previously reported, effective tomorrow (November 1, 2022), New York City law will require that virtually all internal and external job postings include the minimum and maximum salary/wage rate that the employer in “good faith” believes it is willing to pay for the advertised job, promotion, or transfer opportunity. The New…
NLRB reverses precedent on dues checkoff obligations
Continuing a string of pro-union decisions, the National Labor Relations Board recently overruled a 2019 Board decision and held that employers violate federal law if they fail to transmit membership dues to unions after the expiration of a collective bargaining agreement.
In its 2019 decision in Valley Hospital Medical Center, Inc., 68 NLRB No.
New York City to lift workplace vaccine mandate
In early December 2021, then-Mayor Bill de Blasio announced that all private sector employers in New York City would need to adopt a mandatory COVID-19 vaccination policy for their workers. This meant that all private sector employees in New York City needed to be vaccinated against COVID-19 in order to perform in-person services within the…
FTC set to begin policing companies for alleged gig worker abuse
One of the priorities of the current administration is to police the alleged abuse of “gig workers,” particularly through the Department of Labor and the National Labor Relations Board. The Federal Trade Commission (FTC) is now joining those agencies in the employee-protection business. The FTC recently announced it has initiated enforcement efforts to protect gig workers from alleged deception about pay, work hours, unfair contract terms, and anti-competitive practices.
According to the 17-page Policy Statement published by the FTC on September 15, 2022 (Statement), 16% of Americans report earning income through an online gig platform. Gig work has become commonplace in food delivery and transportation. As the FTC notes, gig work is expanding into healthcare, retail, and other sectors of the economy.
Three primary concerns for gig workers
The FTC’s Statement outlines three key concerns the FTC plans to address via the full weight of its legal and regulatory authority.
1. “Control without responsibility” – Most gig companies categorize gig workers as independent contractors instead of employees. “Yet in practice,” the FTC explains, “gig companies may tightly prescribe and control their workers’ tasks in ways that run counter to the promise of independence and an alternative to traditional jobs.” The FTC states that improperly classifying workers as independent contractors (instead of employees):
- Deprives workers of essential rights, like overtime pay, health and safety protections, and the right to organize;
- Burdens workers with undue risks such as unclear and unstable pay and requires they use their personal equipment (car, cell phone, etc.); and
- Forces workers to cover business expenses commonly paid for by employers (insurance, gas, maintenance, etc.).
2. “Diminished bargaining power” – Gig workers are not given information about when work will be available, where they will have to perform it, or how they will be evaluated. Because of their lack of bargaining power and decentralized work environment, the FTC believes workers have little leverage to demand transparency from gig companies. Due to what the FTC characterizes as a “power imbalance”:
- “[A]lgorithms may dictate core aspects of workers’ relationship with a” company’s platform, “leaving them with an invisible inscrutable boss.”
- Workers are often forced to sign take-it-or-leave-it agreements with liquidated damages clauses, arbitration clauses, and class-action waivers.
3. “Concentrated markets” – Markets populated by gig companies are often concentrated among just a handful of businesses, resulting in reduced choice for workers, customers, and businesses. The FTC believes the resulting loss in competition may incentivize gig companies to suppress wages below competitive rates, reduce job quality, and impose onerous terms and conditions on gig workers.…
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NLRB reverses precedent on employer dress codes and joint employer standard
Consistent with its pro-union agenda, the National Labor Relations Board recently reversed precedent established under the prior administration with respect to employer dress codes and the joint employer standard. Specifically, on August 29, 2022, the Board held that an employer’s dress code policies preventing employees from wearing pro-union apparel were unlawful. Furthering its agenda, on September 6, 2022, the Board released a new proposed joint employer standard, which would roll back the current standard established under the prior administration, making it much easier for companies to be deemed joint employers.…
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