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
Employment & Labor (U.S.)
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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New York implements Health Care and Mental Hygiene Worker Bonus Program
On August 3, 2022, New York Governor Kathy Hochul announced the implementation of New York’s Health Care and Mental Hygiene Worker Bonus Program (the Bonus Program). The Bonus Program, passed as part of the State budget, amends New York Social Services Law by requiring qualified employers to pay up to $3,000 in bonuses to certain health care and mental hygiene workers over statutory vesting periods. This post details the eligibility, qualifications, and employer obligations under the Bonus Program.
Which employers and employees are subject to the Bonus Program?
A qualified employer is an employer with at least one employee that either: (i) bills under the state Medicaid plan; (ii) bills under the home or community-based services waiver; or (iii) bills for Medicaid through a managed care organization or managed long term care plan. Providers, facilities, pharmacies, and school-based health centers licensed under the New York Public Health, Mental Hygiene, and Education Laws, as well as certain state agency funded programs, fall within this definition.
“Front-line” health care and mental hygiene workers who “provide hands-on health or care services to individuals” are eligible to receive the bonus. This includes full-time and part-time employees and independent contractors who are physically present in New York. To qualify for a bonus under the program, an employee must also: (i) earn less than $125,000 annually; (ii) remain employed by a qualified employer for the duration of at least one vesting period (which the New York State Department of Health (NYSDOH) has established is six months); (iii) have a title included on the list of Eligible Worker Titles published by the NYSDOH; and (iv) not have been suspended or excluded from the Medicaid program during the vesting period.
The NYSDOH further clarified in a Town hall meeting that employees who work remotely, but serve in patient-facing roles such as telehealth nurses and social workers, are also considered eligible employees, provided that they meet the criteria outlined above.…
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The Fourth Circuit finds the ADA covers gender dysphoria
On August 16, 2022, the U.S. Court of Appeals for the Fourth Circuit held that gender dysphoria could qualify as a disability under the Americans with Disabilities Act (ADA). (Williams v. Kincaid, No. 21-2030 (4th Cir. Aug. 16, 2022)) According to the World Professional Association for Transgender Health Standards of Care, gender dysphoria…
What do U.S. employers need to know about Monkeypox?
Over the past two years, the COVID-19 pandemic has triggered some of the most significant societal shifts in generations, and the employment law landscape has not been immune to such changes. Employers have had to adjust their workplace practices by incorporating new policies such as remote work, vaccine mandates, paid safe and sick leave, and various other federal, state, and local requirements to accommodate the world’s new normal.
Now, in the third quarter of 2022, the world is seeing a new outbreak: monkeypox. On July 23, 2022, the World Health Organization (WHO) declared monkeypox a public health emergency of international concern – the organization’s highest level warning. Shortly after, on August 4, 2022, the United States declared monkeypox a public health emergency. The arrival of monkeypox is a stark reminder that employers should have general policies in place to address communicable diseases so that work operations are not meaningfully disrupted and employees understand their entitlements and obligations when they are under the weather.
This post will provide employers with pertinent information related to monkeypox, including methods of prevention, handling workplace exposures, administering policies and practices, and how to get ahead of future communicable disease outbreaks as they arise. …
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Pennsylvania on the path to increase threshold for tipped employees (part 2)
In our original post, we reviewed the Pennsylvania Independent Regulatory Review Commission (IRRC) approval of proposed new regulations by Governor Tom Wolf’s administration concerning tipped employees.
Since then, the Pennsylvania Attorney General completed its review and approved the regulation. The regulation will go into effect on August 5, 2022. Below is a review of…