During the height of the #MeToo movement, New York lawmakers passed a host of workplace-related legislation. This included adoption of Section 5-336 of the New York General Obligations Law, which governs the use of nondisclosure provisions in agreements resolving claims of discrimination, harassment, or retaliation. On November 17, 2023, Empire State legislators passed several key amendments (the “Amendment”) to the existing law, which took effect immediately.

By way of background, Section 5-336 was originally passed to protect nondisclosure provisions in agreements resolving claims of sexual harassment. Under Section 5-336 and prior to the Amendment, the law prohibited employers from including nondisclosure provisions in such agreements unless it was the employee’s preference and the employer complied with certain procedural requirements, including: (i) the inclusion of the provision is the employee-complainant’s preference; (ii) employee’s receipt of 21 days to consider the nondisclosure provision, a period that could not be shortened or waived (even if the employee wanted to); (iii) a 7-day revocation period; and (iv) employee’s preference for confidentiality memorialized in a separate written agreement.

Continue Reading Reminder to New York employers: Amendments to nondisclosure rules will require updates to separation and settlement agreements

When an employer is insolvent and administrators appointed, job losses are often an inevitable consequence. In this blog we look at the legal obligations arising where redundancies meet the threshold for collective consultation, and the implications for administrators arising out of the recent Supreme Court in the case of R (on the application of Palmer) v Northern Derbyshire Magistrates Court and another.

When does the legal obligation to collectively consult apply?

Employers who are proposing to dismiss as redundant 20 or more employees at one establishment within a period of 90 days or less must comply with specific collective consultation obligations under the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA).

Whether or not this test is met is not always straightforward, particularly as ‘dismiss as redundant’ has a wide meaning to include any dismissals not related to the individual employee, so would include ‘fire and rehire’ dismissals in the context of facilitating a change to terms and conditions. Also, certain dismissals (e.g voluntary terminations) are counted, but others (e.g. expiry of a fixed term contract) are not.

Continue Reading Collective redundancies on insolvency: administrators’ responsibilities and liabilities

One hundred years ago this month, in November 1923, Lord Hewart delivered a famous legal judgment on the principles of open justice, declaring it of fundamental importance that “justice should not only be done, but should manifestly and undoubtedly be seen to be done”. It is in that spirit of open justice that Employment Tribunals (ET) today remain open to the public and the content can freely be reported on in the press and media. As a result, when ET claims are issued, it is not uncommon for the parties to be anxious about who will have access to documentation that is presented to the ET in proceedings, and what they can do with it.


In light of a recent announcement that ET hearings will now be routinely recorded from November 2023, we take this opportunity to explore what “open justice” means in the context of online hearings, and who can see or hear what and when.

Continue Reading UK Employment Tribunal: third party access to Tribunal pleadings and documentation

With the 2023 winter work party season upon us, company, location, or team level seasonal gatherings provide a chance for employers to thank staff for their hard work and for everyone to relax, socialise and have some fun with their colleagues. Yet without careful thought and planning, they can be problematic for employers who can find themselves faced with fallout from the festivities.

Continue Reading Get the party started: avoiding HR issues at festive events

On October 26, 2023, the National Labor Relations Board issued a final rule that dramatically lowered the standard for companies to qualify as joint employers. You can read more about the rule here. In short, the new rule provides that even reserved, unexercised, or indirect control, such as through an intermediary, over one or more of the rule’s seven enumerated terms or conditions of employment is sufficient to establish joint employment. There is no doubt that implementation of the new rule will drastically expand when companies will be considered joint employers and create additional costs and obstacles for employers.

Continue Reading Dueling challenges to NLRB’s new joint employer rule succeed in extending effective date of rule

Governor Gavin Newsom signed S.B. 525 into law adding new minimum wage requirements to Sections 1182.14 and 1182.15 of the California Labor Code. These new sections establish five comprehensive minimum wage schedules for “covered health care employees”, which includes contracted and subcontracted employees. Effective June 1, 2024, “covered health care facilities” will be required to implement the applicable minimum wage schedule, depending on the nature of the employer, as set forth by the law. In general, the law preempts any local ordinances setting wages for healthcare workers. To determine the law’s applicability, health care providers across California must consider (1) whether they meet the definition of a “covered health care facility” and, if so, (2) who within their workforce meets the definition of a “covered health care employee”.

Continue Reading California enacts increase in the minimum wage for covered health care employees

In May 2023 we reported how the UK government made a series of announcements in respect of proposed reforms to two areas of law derived from the EU – the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) and the Working Time Regulations 1998 (WTR) – and launched consultations on its proposals. The government has now published a response to those consultations and the reforms it intends will go ahead, and which ones will not. 

This blog explores the changes which will take effect, and which are expected to be in force from 1 January 2024.

Continue Reading An update – Changes to post-Brexit UK employment law: What is next for working time and TUPE

We previously alerted employers to California employment law bills that were still alive toward the end of the most recent legislative session. That session ended on September 14, 2023 and Governor Newsom had until October 14, 2023 to either sign, approve without signing, or veto the bills that survived. Below is an update on the fate of these employment law bills so employers will know which ones are slated to become law. The Governor vetoed several noteworthy bills that would have expanded the state’s protected classes, employee work-from-home rights and CalWARN notice requirements. On the other hand, the Governor signed multiple significant employment law bills into law, including those creating increased paid sick leave requirements, expanded re-hiring rights, a new reproductive loss leave, and a new requirement that employers establish a workplace violence prevention plan. Unless otherwise noted, the approved bills will take effect January 1, 2024.

Continue Reading California employment law legislative update: bills that will become law in 2024 and beyond

As detailed in part one and part two of our multipart series, artificial intelligence (AI) and generative artificial intelligence (GAI) have had a sweeping impact on the U.S. workplace. However, as we will detail in this third and final installment, there are potentially material risks and pitfalls associated with using AI and GAI to assist with various aspects of the employment relationship. We will discuss several of these below.

Continue Reading How artificial intelligence is impacting the U.S. workplace (Part III)

As detailed in the first installment of our multipart series, artificial intelligence (AI) and generative artificial intelligence (GAI) have had a sweeping impact on the U.S. workplace. As we will detail in this second installment, employers have implemented AI and GAI measures to assist with various aspects of the employment relationship, from recruiting through separation of employment. While these measures have assisted employers with efficiency and streamlining of certain HR operations, as discussed below, they potentially come with some pitfalls as well.

Continue Reading How artificial intelligence is impacting the U.S. workplace (Part II)