The controversy surrounding the validity of employment arbitration agreements with class action waivers has been simmering since at least 2012. Now, with the Supreme Court’s decision in Epic Systems Corp. v. Lewis, we have an answer: They “must be enforced as written” despite any debatable policy within the National Labor Relations Act that suggests otherwise. Before we analyze the majority and dissenting opinions, let’s take a quick look backward.
New Jersey, presumably fueled by promises from the new governor, passed two bills affecting employers in the past two weeks. New Jersey now has a Paid Sick Leave Bill, which is headed to the governor for his signature, and an Equal Pay Act, which is now law, and which carries some of the most employee-friendly policies in the country.
The #MeToo movement is not finished making waves just yet. Governor Cuomo signed a 2019 Budget Bill on April 12, 2018, but the bill did not limit itself to budgetary issues. Instead, it included sweeping revisions to several statutes, resulting in several new requirements for employers doing business in New York State:
Anti-Sexual Harassment Policies and Training
The law mandates that by October 9, 2018, all New York employers enact an anti-sexual harassment policy that meets or exceeds the standards set by a model policy, which will be drafted by the New York State Department of Labor (DOL) and New York State Division of Human Rights (DHR).The model policy, although not yet drafted, will reportedly include: (1) a prohibition against sexual harassment, with examples of what sexual harassment is; (2) information regarding employees’ rights and potential redress to adjudicate sexual harassment, including administratively and judicially, and the remedies available to victims of sexual harassment, including references to the federal and state provisions and a statement that there may be applicable local law; (3) a complaint form; (4) a confidential investigation procedure and a commitment to due process for all parties involved; (5) a clear statement that sexual harassment is misconduct and that any employee engaging in such misconduct, and any supervisory or managerial personnel knowingly allowing such misconduct, will be sanctioned; and (6) a clear prohibition against retaliation for those who complain or who assist in any sexual harassment proceeding. Employers should note that the requirement to promise a confidential investigation may conflict with requirements from the Equal Employment Opportunity Commission to conduct a thorough investigation, and directives from the National Labor Relations Board that employers cannot institute a blanket confidentiality provision on workplace investigations. It is unclear how or if the DOL and DHR will remedy this contradiction in the model policy.
As we discussed in our May 22, 2017 blog post, the Second Circuit agreed to hold an en banc hearing to determine whether an estate for a gay man, who alleged he was terminated as a result of a customer complaint related to his sexual orientation, may revive its previously dismissed case against the deceased’s former employer. Yesterday, the Second Circuit decided that the estate can.
As you may know, Massachusetts Governor Charlie Baker signed the Massachusetts Pregnant Workers Fairness Act in July, expanding state protections for pregnant women and new mothers, and setting new rules for employers with six or more employees. Below is a brief synopsis of some of the most important changes that you should know about, and what you should do to prepare for the law’s effective date of April 1, 2018, which will be here before you know it.
Prohibition Against Workplace and Hiring Discrimination Related to Pregnancy and Nursing
The law expressly adds the following as protected categories against discrimination to the Massachusetts state code, Chapter 151B: “Pregnancy or a condition related to said pregnancy, including, but not limited to, lactation, or the need to express breast milk for a nursing child.”
As a result, victims of pregnancy discrimination can now win the same remedies available under any Chapter 151B action, including but not limited to back pay, front pay, punitive and compensatory damages, and attorneys’ fees. Continue Reading
With clear indications from the Trump administration that worksite immigration enforcement is near the top of the agenda for 2018, the state of California has taken a pre-emptive step to protect workers who may be affected. On Jan. 1, 2018, Assembly Bill No. 450 (AB 450) will take effect and impose new rules governing how public and private employers in California interact with Immigration and Customs Enforcement (ICE) and other immigration enforcement agents.
California lawmakers cited the Trump administration’s call to hire 10,000 more ICE agents and its intent to make undocumented immigrants an enforcement priority as reasons for enacting AB 450. AB 450 became even more relevant in October when acting ICE director Thomas Homan said ICE would increase worksite enforcement actions by four to five times in 2018, targeting unauthorized workers and the employers who hire them. Continue Reading
On Monday, Nov. 6, newly re-elected Mayor Bill de Blasio signed into law “Intro. 1313-A,” a bill that amends and expands the coverage of New York City’s paid sick leave law. The bill renames the sick leave law as the “Earned Safe and Sick Time Act” (ESTA) and increases the reasons for which an employee is entitled to use paid time off.
Intro. 1313-A implements two major changes. First, the bill expands the types of circumstances for which employers must allow employees to use paid time off. Specifically, an employee may now use paid time off for a wide range of circumstances related to any situation where the employee or “family member” of the employee becomes a victim of a family offense, sexual offense, stalking or human trafficking. The bill defines sexual offenses, stalking, human trafficking and family offense matters by reference to the New York Penal Law. An employee’s use of paid time off for any of these circumstances is referred to as “safe time.” Continue Reading
A new California law (AB 168) was signed by Governor Jerry Brown on October 12, 2017 that prohibits employers from inquiring about the salary histories of its job applicants. AB 168, which takes effect on January 1, 2018, and applies to all California employers (including state and local governments) represents an expansion of California’s fight against the gender wage gap. Gender wage discrimination is already unlawful in California, but AB 168 goes a step further by banning salary history inquiries in most circumstances. Read More >>
Earlier this year, New York City signed into law the “Fair Work Week” legislative package, which aspires to ensure more predictable schedules and paychecks for fast food and retail workers by setting restrictions on how and when their employers can schedule them for work. Those restrictions take effect on November 26th, which will be here before we know it.
The idea is to assist workers who are, as Mayor Bill de Blasio stated, “forced to deal with an arbitrary schedule at a job where they still don’t always make ends meet.” The result, however, requires covered employers to make some serious changes. Continue Reading
At least once a week we get a call from a client inquiring about the status of the new salary threshold overtime regulations. We have an update, and the news is good for employers!
By way of background, on May 23, 2016, the U.S. Department of Labor (DOL) announced its final rule (Rule) to increase the threshold salary requirements for exemptions from overtime entitlement under the Fair Labor Standards Act (FLSA). We previously discussed the DOL’s Rule here. In short, the Rule more than doubled the salary threshold (from $455 per week to $913 per week) for professional, administrative and executive employees to qualify as exempt from the FLSA’s overtime requirements, and it increased the salary requirement for exempt highly compensated individuals from $100,000 to $122,148, thereby entitling millions of additional employees to overtime pay under the FLSA at a significant cost to employers, particularly small businesses and not-for-profit organizations.
The Rule was enjoined on Nov. 22, 2016, just days before it was scheduled to go into effect on Dec. 1, 2016. Two groups of plaintiffs – one composed of 55+ businesses and the other composed of 21 states – challenged the Rule on various grounds, including that the drastic increase in salary requirements effectively overtook the rest of the statute and wrongly required the reclassification of certain employees who were performing bona fide executive, administrative and/or professional duties and thus were rightfully categorized as exempt from overtime. Judge Amos Mazzant of the U.S. District Court for the Eastern District of Texas granted the injunction. Continue Reading