Employment & Labor (U.S.)

On April 15, 2024, the U.S. Equal Opportunity Commission (EEOC) issued its final rule implementing the federal Pregnant Worker’s Fairness Act (PWFA). The PWFA, which went into effect in June 2023,1 requires covered employers to provide reasonable accommodations for employees’ known limitations relating to pregnancy, childbirth, or related medical protections. The PFWA builds on existing pregnancy-related protections and employer obligations under Title VII, the Americans with Disabilities Act, and many state and local laws.Continue Reading EEOC issues final rule on the Pregnant Workers Fairness Act

As of March 12, 2024, New York employers are prohibited from requesting or obtaining access to the personal social media accounts of employees and applicants. Specifically, employers are not permitted to require employees or applicants to: (i) disclose their user names, passwords, or log-in information, (ii) access personal accounts in the presence of the employer; or (iii) reproduce any posts, including photos and videos, from personal accounts. In addition, employers may not discharge, discipline, or otherwise penalize an employee or applicant because of their refusal to disclose such information. Continue Reading New York places limitations on employer access to employee social media

On February 27, 2024, U.S. District Judge James Wesley Hendrix of the Northern District of Texas, Lubbock Division blocked enforcement of the Pregnant Workers Fairness Act (PWFA) against the state of Texas and its divisions and agencies, finding passage of the PWFA violated the U.S. Constitution’s quorum requirement. Below we discuss the terms of the PWFA, its enactment, and the subsequent legal challenge.Continue Reading Texas federal court blocks enforcement of Pregnant Workers Fairness Act

If an employment relationship is to be terminated unilaterally, employers in Germany often find themselves between a rock and a hard place. The protection against Unfair Dismissal Act (Kündigungsschutzgesetz, KSchG), if applicable, sets high thresholds for validly terminating an employment relationship. Due to this, if a notice of termination is issued by the employer, employees in most cases file a claim for protection against unfair dismissal with German labour courts. As German labour courts can only decide whether an issued notice of termination is valid or invalid, a successful claim for protection against unfair dismissal means that the employee is reinstated into the employment relationship. In this case, the employee is generally entitled to backpay of the contractual compensation from the end of the notice period to the close of the court proceeding.

The financial risk for employers therefore increases with the length of the litigation. A typical proceeding in first instance takes between six to nine months and possibly longer. A subsequent proceeding in second instance can take additional six months or more. In some (luckily rare) instances legal proceedings can take several years. Depending on the salary of the employee in question, the financial exposure can easily reach six-figure amounts, not including the legal fees.Continue Reading Between a rock and a hard place – not so much anymore?

In the dynamic arena of labor laws and regulations, New York City is once again leading the charge with proposed changes that could have profound workplace implications. On February 28, 2024, the New York City Council introduced a trio of bills aimed at significantly curtailing the use of noncompete agreements in the Big Apple. Though these bills are currently pending, and it remains to be seen whether they will ultimately be enacted, employers should nevertheless take note of the bills given that they are part of a broader movement to rein in noncompete agreements across the U.S.:Continue Reading NYC legislators propose three bills to curtail noncompete agreements

California’s new law that creates a separate minimum wage applicable only to fast food restaurant employees took effect on April 1, 2024. Under Labor Code Section 1475 (LC 1475), this minimum wage is $20 per hour. It represents a significant increase from the current statewide minimum wage of $16 that went into effect at the beginning of the year. Many local jurisdictions within the state already have a minimum wage above $16 per hour, but none as high as $20 per hour. Continue Reading California’s new minimum wage for fast food restaurants took effect this month

Widely known as “Ban the Box” laws, California is among the many jurisdictions that have adopted laws limiting the use of criminal background checks in evaluating job candidates. Enacted in 2018, California’s Fair Chance Act generally prohibits employers, with five or more employees, from asking a job candidate about their conviction history before making a conditional job offer. Among other requirements, the Fair Chance Act also places an affirmative duty on employers to provide requisite notices to candidates and to evaluate several factors before withdrawing a job offer due to a candidate’s criminal history. Employers must also provide candidates with the opportunity to explain or provide mitigating information before making a final decision to rescind a job offer. In October 2023, California amended the Fair Chance Act to bolster these notice and evaluation requirements. The 2023 amendment also increased potential employer liability for failure to properly notify and evaluate a job candidate’s criminal history. Proposed legislation in California aims to place stringent requirements on when employers can request a criminal background check in the first instance and how the information obtained must be evaluated. Continue Reading Proposed California legislation may effectively ban criminal background checks

On March 14, 2024, Virginia Governor Glenn Youngkin (R) vetoed identical bills passed by the Virginia legislature barring employers from asking about a job applicant’s salary history and requiring pay information to be included in job listings.

Senate Bill 370 and House Bill 990, introduced by Senator Jennifer Boysko (D) and Delegate Michelle Maldonado (D), respectively, add a new “salary history ban” statute to the Chapter of the Virginia Code that provides protections for employees. The legislation passed along party lines, with support from Democratic majorities in both the House and the Senate.

The proposed legislation prohibits prospective employers from (i) asking job applicants for their wage or salary history; (ii) relying on that history in determining the applicant’s starting wage or salary; (iii) considering wage or salary history when making a hiring determination; and (iv) refusing to interview, hire, employ, promote, or otherwise retaliate against an applicant for not providing wage or salary history. It also requires prospective employers to disclose the wage, salary, or wage or salary range for public and internal job postings. The legislation also creates a cause of action for aggrieved applicants and employees and provides for statutory damages between $1,000 and $10,000 or actual damages, whichever is greater, reasonable attorney’s fees and costs, and other appropriate relief.Continue Reading Virginia governor vetoes “salary history ban” statute legislation

In October 2023, the National Labor Relations Board issued a final rule that lowered the standard for companies to qualify as joint employers. You can read more about the rule here.

On March 8, 2024, a federal judge in Texas struck down the final rule. U.S. District Judge J. Campbell Barker granted summary judgment in favor of the business coalition that challenged the 2023 rule. In short, the 2023 rule established a two-step test which requires: (1) the entity qualify as a common-law employer of the workers in question, and if so (2) the entity have control over one or more essential terms and conditions of employment. The court agreed with the business coalition’s contention that “the second test is always met if the first test is met, so the rule’s joint employer inquiry has just one step for all practical purposes.” The court found that “if an entity exercises or has the power to exercise control (even indirect control) over at least one essential term, the entity is an employer, jointly with workers’ undisputed employer.” And because such a result “would treat virtually every entity that contracts for labor as a joint employer,” the Board’s 2023 final rule “exceeds the bounds of the common law and is thus contrary to law.”Continue Reading Texas judge vacates NLRB’s new joint employer rule

Employers in all industries should take notice that efforts to unionize appear to be spiking in 2024.  Indeed, data made available by the National Labor Relations Board (NLRB) shows that, in just the first few months of the current fiscal year, the number of union representation cases, or so-call “R-cases,” filed with the NLRB is on a meteoric rise – indicating that recent trends with respect to union organization efforts may be amplifying.

This was predicted in our prior article about the NLRB’s decision in Cemex Construction Materials Pacific, LLC, which established a new framework for the union representation process. Under Cemex, when a union requests recognition based on a majority support of the employees to be in the bargaining unit, an employer must either: (1) recognize and bargain with the union; or (2) promptly file a RM petition to challenge the union’s claim of majority support by seeking an election, pursuant to Section 9(c)(1)(B) of the NLRA, unless the union has already filed a petition for a representation election pursuant to Section 9(c)(1)(A) of the Act. The time for the employer to act is limited, as it is generally held that the employer has only 14 days after the demand for recognition in which to file an RM petition.Continue Reading Employers take notice: Union representation petitions are spiking in 2024