New York federal judge nixes U.S. Department of Labor’s new “joint employer” rule

Earlier this year, the U.S. Department of Labor (DOL) issued a rule updating its interpretation of the “joint employer” doctrine under federal wage and hour law.  Yesterday, however, a New York federal judge struck down a significant portion of the rule.  Judge Gregory H. Woods’ 62-page decision delivers a significant blow to businesses that had relied on the business-friendly nature of the DOL’s new rule.

By way of background, the joint employment doctrine refers to a situation where a worker is deemed employed by more than one entity at the same time.  If multiple entities are considered joint employers, they can then generally each be held jointly and severally liable for workplace violations (e.g., discrimination, harassment, retaliation, unpaid wages). Continue Reading

Fifth Circuit says Texas trial court should have considered reforming an overbroad non-compete at the preliminary injunction stage

The enforceability of employment non-competes in Texas is governed by the Texas Covenants Not to Compete Act.  If a non-compete covenant is found to be overbroad, “the court shall reform the covenant to the extent necessary to cause” the covenant to be reasonable.  Tex. Bus. & Com. Code § 15.51(c).  The Texas Supreme Court has yet to address whether reformation of an overbroad non-compete restriction is appropriate at the temporary injunction stage or whether reformation is only a final remedy after a trial on the merits.  In a recent published opinion, the Fifth Circuit squarely examined this issue.  Calhoun v. Jack Doheny Companies, Inc., No. 20-20068, — F.3d —, 2020 U.S. App. LEXIS 25001 (5th Cir. Aug. 7, 2020).

Continue Reading

New York’s healthy terminals act may create additional wage and benefits obligations for airport employers

Airport workers at John F. Kennedy (JFK), LaGuardia (LGA), and New York Stewart International Airport (SWF-Stewart Intl.) may soon be receiving increased wages and benefits under the Healthy Terminals Act (the “Act”) (Senate Bill S6266D).  Spurred by the COVID-19 related death of a JFK airport worker, the Act recently passed both the New York State Senate and Assembly.  Next, the Act will be delivered to Governor Cuomo for his signature.  Governor Cuomo has not indicated whether or not he will sign the Act.  If signed, the Act will take effect on January 1, 2021.

Scope of covered individuals

The Act has a broad (and ambiguous) scope of coverage.  The Act defines covered airport workers as any worker employed by a covered airport employer that works at least half of the workweek at a covered airport location.  The Act exempts individuals who qualify for the executive, administrative, and professional exemptions under the Fair Labor Standards Act (“FLSA”) or are covered under Articles 8 and 8-a of New York Labor Law, which applies to construction workers on New York City’s public work and grade crossing elimination projects.

Covered airport employers are defined as any entity employing a covered airport worker (other than public agencies) and covered airport locations include any airport operating under the jurisdiction of the Port Authority of New York and New Jersey, which currently encompasses JFK, LGA, and SWF-Stewart Intl.  The Act does not exclude air carriers and appears to cover not only air carriers, but also ground handling companies providing ramp, catering, and other support services.

Continue Reading

Everything you need to know about New York’s forthcoming statewide paid sick leave law

The enactment of paid sick leave laws began as a state and local employment law trend roughly a decade ago, gaining substantial momentum in the mid-2010’s.  Amidst this wave, New York City adopted a paid sick leave law in April 2014.  The City Council later amended the law – in May 2018 – to provide employees with “safe leave” as well.  And in 2019, Westchester County enacted its own paid sick and safe leave law.

Now, more than six years after NYC adopted the original iteration of its paid sick leave law, New York State has enacted its own statewide paid sick leave law (NYPSL), which takes effect on September 30, 2020.  Principally, NYPSL provides paid time off for certain sickness-related reasons, with the specific amount of time varying based on employer size and net income.  Below is a summary of the new law’s key provisions. Continue Reading

Updated COVID-19 FAQs for New York employers

Please see an updated version of our FAQs as of July 25, 2020. 

 We have compiled FAQs concerning New York’s COVID-19-related health and safety protocols for businesses across the state. These protocols apply to all New York businesses – regardless of size, location, whether the business has physically reopened, or whether it was deemed “essential” – and thus remained open – during the state’s shelter-in-place period.

Please note that this is not legal advice. To speak with a Reed Smith employment lawyer concerning any issue related to COVID-19, please contact us at rsCoronavirusEmploymentTeam@ReedSmith.com.

Illinois releases guidance regarding reporting rule for sexual harassment and discrimination judgments

On July 14, 2020, the Illinois Department of Human Rights (IDHR) released guidance for employers regarding the state’s new “adverse judgment or administrative ruling” reporting requirement.  Following amendments to the Illinois Human Rights Act, employers with at least one adverse judgment or administrative ruling must disclose to the IDHR the total number of final, non-appealable judgments or final, non-appealable rulings against the employer in which there was a finding of sexual harassment or unlawful discrimination.

The guidance released this month resolves ambiguity by clarifying employers’ deadlines for reporting to the IDHR.  The deadline to report for calendar year 2019 is now October 31, 2020, and the reporting deadline will be July 1 for subsequent years.

The reporting requirement is not limited to employers with a physical presence in Illinois.  As the guidance reiterates, the reporting requirement applies to “any person employing one or more employees in Illinois.” Continue Reading

Virginia is the first state to adopt extensive COVID-19 workplace safety regulations

On July 15, 2020, in response to Governor Northam’s Executive Order No. 63 directing the issuance of emergency regulations to control, prevent, and mitigate the spread of COVID-19 in the workplace, the Virginia Department of Labor and Industry’s (DOLI’s) Safety and Health Codes Board voted 9-2 to approve extensive emergency workplace safety standards in response to COVID‑19.  These new occupational safety and health requirements include a broad array of requirements for all employers in Virginia as well as additional requirements for employers with job positions in certain risk categories.

DOLI has indicated that it expects the regulations to be published this week.  With exceptions for delays of certain training requirements by 30 days and development of an infectious disease preparedness and response plan by 60 days, they will become effective immediately upon publication.). Continue Reading

NLRB ends long-time standard which protected obscene, racist and sexually harassing speech in connection with Section 7 activity

The National Labor Relations Board (the “Board”) issued a decision on July 21, 2020, which will aid employers in their ability to discipline or discharge an employee who engaged in abusive or offensive conduct in connection with protected concerted activity. In General Motors LLC, 369 NLRB No. 127 (2020), the Board modified its standard for determining under what circumstances profane language or sexually or racially offensive speech loses the protection of the National Labor Relations Act (the “Act”).

Before today, there were several circumstance-specific standards used by the Board in determining whether an employee was lawfully disciplined or discharged when they made profane, racist or sexually harassing comments in connection with Section 7 activity. There was one standard for workplace confrontations with supervisors or managers as applied in Atlantic Steel. A second standard was used for examining social media posts and most other  interactions between employees, referred to as the “totality of circumstances.”  Still, another standard was used when offensive statements or conduct occurred on the picket line, as set forth in Clear Pine Mouldings. All of these standards assumed that the employee’s Section 7 activity was inseparable from the abusive comments and conduct. Additionally, in many circumstances the outcome of those cases conflicted widely with an employer’s obligations under federal, state and local discrimination laws.

Continue Reading

Responding to employee advocacy and workplace walkouts during times of protest

Several labor organizations, along with racial and social justice organizations, conducted a mass walkout on July 20, 2020 to protest racial inequality and working conditions in the United States.  Thousands of workers in more than 200 cities walked off the job on a full-day strike while others who were unable to strike for a full day walked out about for eight minutes.  According to the Strike for Black Lives website, the purpose of the strike was to demand higher wages, better jobs, the right to unionize, and healthcare for all.  These organizations specifically call for corporations to address racism in the workplace, raise wages, provide healthcare, and provide ample personal protective equipment (PPE), among other things.

These types of mass walkouts raise several considerations for employers as they attempt to balance their support for racial and social justice with their tolerance of competing views and their need to maintain operations.  While some employers may allow their employees to participate with little to no disruption to their operations, others, such as hospitals, will have to find ways to continue to run their operations (perhaps by hiring temporary workers) if they find themselves with reduced staff.  Other employers may be forced to temporarily close or take other measures to manage the sudden loss of available employees. Continue Reading

Update: Pennsylvania order mandates telework, but to what extent?

This is an update to our July 17, 2020 article addressing the July 15, 2020 orders issued by Governor Wolf and the Pennsylvania Department of Health “directing mitigation measures” in response to a reported rise in COVID-19 cases in Pennsylvania.

As explained in that prior article, both orders included the following mandate requiring telework:  “Unless not possible, all business are required to conduct their operations in whole or in part remotely through individual teleworking of their employees[.]”

The plain text of these orders generated confusion for many Pennsylvania employers as the scope of the teleworking mandate was unclear.  Accordingly, in our article, we called for Pennsylvania leadership to provide necessary guidance to resolve that confusion and enable Pennsylvania employers to understand whether they were being ordered to utilize telework arrangements “in whole” to the extent possible, or whether reducing the number of workers through “in part” telework arrangements would suffice. Continue Reading

LexBlog