Workplace Laws and Regulations

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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…

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.…

Continue Reading FTC set to begin policing companies for alleged gig worker abuse

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.…

Continue Reading NLRB reverses precedent on employer dress codes and joint employer standard

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.…

Continue Reading New York implements Health Care and Mental Hygiene Worker Bonus Program

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…

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…

In light of the U.S. Supreme Court decision on June 24, 2022, Dobbs v. Jackson Women’s Health Organization, which holds that access to abortion is not a constitutional right, employers are faced with myriad challenges moving forward. Our Labor and Employment lawyers, working with Reed Smith’s Reproductive Health Working Group, address some of…

Florida Governor Ron DeSantis signed a bill into law that prohibits employers from implementing discriminatory practices in their diversity training programs, effective July 1, 2022. The bill, known as the “Individual Freedom Act,” amends the Florida Civil Rights Act, Fla. St. 760.01, et seq., to expand the definition of discrimination and subjects employers to liability for violations.

Expanding the definition of “discrimination”

Specifically, the Individual Freedom Act amends Fla. St. § 760.10, to prohibit public employers and private employers with 15 or more employees from requiring any individual – as a condition of employment, membership, certification, licensing, credentialing, or passing an examination – to participate in training, instruction, or any other required activity that espouses, promotes, advances, inculcates, or compels the individual to believe any of the following concepts:

  1. Members of one race, color, sex, or national origin are morally superior to members of another race, color, sex, or national origin.
  2. An individual, by virtue of his or her race, color, sex, or national origin, is inherently racist, sexist, or oppressive, whether consciously or unconsciously.
  3. An individual’s moral character or status as either privileged or oppressed is necessarily determined by his or her race, color, sex, or national origin.
  4. Members of one race, color, sex, or national origin cannot and should not attempt to treat others without respect to race, color, sex, or national origin.
  5. An individual, by virtue of his or her race, color, sex, or national origin, bears responsibility for, or should be discriminated against or receive adverse treatment because of, actions committed in the past by other members of the same race, color, sex, or national origin.
  6. An individual, by virtue of his or her race, color, sex, or national origin, should be discriminated against or receive adverse treatment to achieve diversity, equity, or inclusion.
  7. An individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race, color, sex, or national origin.
  8. Such virtues as merit, excellence, hard work, fairness, neutrality, objectivity, and racial colorblindness are racist or sexist, or were created by members of a particular race, color, sex, or national origin to oppress members of another race, color, sex, or national origin.

However, these concepts may be included in training or instruction if they are addressed in an objective manner and without endorsement.…

Continue Reading Florida expands definition of “discrimination” and increases employer liability for discrimination in workplace diversity training

In November 2021, Governor Tom Wolf’s administration proposed a new regulation that will require tipped employees to earn at least $135 a month in tips before an employer is permitted to pay the $2.83 per hour tipped rate, rather than state’s minimum wage of $7.25 an hour. Currently, in Pennsylvania, employers can pay tipped employees…

It is that time of the year again – a time of fasting, reflection, prayer and community for Muslims all around the world.

In the Middle East, fasting Muslim employees have the added benefit of being able to observe the Holy Month of Ramadan in an environment where their needs are met not just from a social perspective, but also from a legal one by way of reduced working hours.

In the United Arab Emirates, there are three jurisdictions’ laws to take into consideration when assessing how Ramadan would affect your employees’, fasting and non-fasting working environment and we will discuss these here:

Onshore:

Historically, all employees, whether they were fasting or not fasting, Muslim or Non-Muslim, were entitled to reduced working hours during Ramadan (colloquially referred to as “Ramadan Hours”).

There was a bit of uncertainty in the market about how Ramadan Hours would work this year considering the New Labour Law[1] effectively left the position unclear by stating that the working hours during Ramadan will be determined by the Executive Regulations[2]. Speculation was rife and in particular it was expected that Ramadan Hours will only be available to fasting Muslim employees (similar to the DIFC and ADGM).

However, the Executive Regulations, once it was promulgated, provides that regular working hours shall be reduced by two hours per day and does not differentiate between fasting and non-fasting employees.

Therefore, employers outside of the DIFC and ADGM are obliged to comply with the law by giving their employees two hours less per day.
Continue Reading The Ramadan Roundup