California Supreme Court Allows Employees to Seek Derivative Penalties for Meal and Rest Break Violations

By Vivian Shen and Michael Chamberlin on May 24, 2022 Posted in California

On May 23, the California Supreme Court issued an opinion that will drastically increase the potential exposure for employers facing meal and rest break class actions. The court, in Naranjo v. Spectrum Security Services, Inc., ruled that employees who are entitled to meal or rest period premiums for denial of compliant meal or rest breaks may now recover derivative waiting time penalties and wage statement penalties previously reserved for nonpayment of traditional wages, such as minimum wage or overtime wages. Here are the key takeaways from the court’s decision:

So Many NY Changes in 2022 – Employers Beware!

By Fanny Ferdman and Delores Chichi on May 2, 2022 Posted in New York

New York employers must be aware of several important changes to employment laws that have already come into effect during 2022, those that have imminent effect (with deadlines just around the corner!), and those that are currently being considered by the Legislature. In this post, we highlight some of the latest developments in employment law that New York employers should be prepared for.

Against the Odds: Did a Court of Appeals Just Grant Independent Contractors the Right to Strike and Organize?

By Todd Lebowitz on April 11, 2022 Posted in Independent Contractor

On June 4, 1923, jockey Frank Hayes rode 20-1 long shot Sweet Kiss to victory at Belmont Park. While that seems impressive, what made the win even more memorable is that at some point during the race, poor Frank died. He somehow stayed on the horse and ended up in the winner’s circle. Or six feet under it. It was his first (and last) win as a jockey.

Jockeys are in the news again, and we’ve got another surprise finish. But this one has implications far beyond the racetrack.

Massachusetts Supreme Judicial Court Abrogates Employers’ Sole Defense to Automatic Treble Damages Liability for Late Final Wage Payments

By Matthew Kane, Amy E. Beverlin and Daniel Lula on April 6, 2022 Posted in Wage and Hour

On April 4, the Massachusetts Supreme Judicial Court handed employees there yet another victory in Reuter v. City of Methuen, holding that they are automatically entitled to triple damages for any late payment of final wages even where the employer already has paid the employee the total wages due before a claim or complaint is filed. The court’s decision marks a stark departure from almost two decades of what Massachusetts employers had understood to be settled law under the state’s Wage Act.

Will states ‘come together’ to resolve remote work tax withholding issues … or will we continue ‘waiting here … on the long and winding road?’

By Amy J. Traub and Michael Semes on March 14, 2022 Posted in Remote Work

The increased number of employees working remotely has caused a host of problems for employers – and employees – during the throes of the pandemic. Now that remote work is looking more and more like the new normal, it’s more important than ever that employers and employees understand what states require and what options are available. Why? Because failing to properly comply with state withholding rules exposes an employer to assessments for tax, interest and penalties (which may exceed 30 percent of the amount of tax not properly withheld). Equally important, compliance errors can also tarnish an employer’s reputation and cause employee relations issues. So it’s very important to get it right.

This post will focus on an employer’s general withholding rules and the most salient exceptions. As you will see, even the most traditional scenarios contain a degree of administrative complexity. Future posts will discuss collateral issues that flow from employees working remotely in a state that is different from the state in which their office is located and how an employer may turn the potential risks into opportunities.

Blow the Whistle: NY Expands Employee Whistleblower Protections

By Saima Sheikh on February 15, 2022 Posted in Whistleblowing

The NYS DOL has issued a model notice for private employers to use to notify their employees of the expanded protections under the NYS whistleblower law that went into effect on January 26, 2022. The model notice, designated by the NYS DOL as “LS 740 (2/22),” is available here. It contains the text of the amended law and states that the notice should be posted “conspicuously in easily accessible and well-lighted places customarily frequented by employees and applicants for employment.”

Prior to the amendment, the NYS whistleblower law was limited to protecting employees from retaliation in limited circumstances — namely, for reporting an employer’s unlawful activity, policy or practice that “creates and presents a substantial and specific danger to the public health or safety” or “constitutes health care fraud.” This law did not provide protection for reporting other activities that did not directly affect public health or safety, such as sexual harassment or tax evasion. At the time, employees were also required to first report violations directly to their employers before complaining to a public body, in order to allow their employers an opportunity to remedy the alleged unlawful activity. The statute of limitations under the original version of the law was one year and successful employees could recover back pay. Continue Reading

You Think #MeToo Is Over? Think Again.

By Amanda Van Hoose Garofalo on February 15, 2022 Posted in Harassment

On Feb. 10, 2022, the Senate passed HR 4445, which, upon President Joe Biden’s expected signature, will amend the Federal Arbitration Act to allow an individual who is alleging sexual harassment or a sexual assault to elect to bring their claims to court, notwithstanding an arbitration agreement to the contrary. The amendment will be effective immediately once signed.

What Is the Goal of This Amendment?

The idea behind the amendment is to ensure that companies are not hiding behind the confidentiality that arbitration provides. In other words, the amendment is designed to ensure that employers are not permitting harassment to occur behind closed doors and out of the public eye. Within the past few years, several instances involving high-profile individuals (think Harvey Weinstein, Steve Wynn, Matt Lauer) who were alleged to have harassed/assaulted women within their workplaces were brought to light, sparking confidential settlement agreements or arbitrations that were kept out of the public eye and were unbeknownst to others who had worked with the alleged harassers. Ideally, forcing these matters into courts with a public record should force companies to address the allegations head-on and prevent the behavior from occurring in the first place. Continue Reading

California Supreme Court Significantly Relaxes Employee Burden to Prevail on Section 1102.5 Claims

By Shareef Farag and Matthew Goodman on February 10, 2022 Posted in California

The Decision

On Jan. 27, 2022, the Supreme Court of California issued Lawson v. PPG Architectural Finishes, Inc., No. S266001, ___ Cal. 5th ____, a decision that decisively changed the burden for employers in defending against claims under California’s general whistleblower statute — California Labor Code Section 1102.5.

Since approximately 2000, California courts required that employees asserting Section 1102.5 retaliation claims prove the following elements to meet their prima facie burden: (1) the employee engaged in protected activity; (2) the employee suffered an adverse employment action; and (3) there was a causal link between the two. The employer would then have to establish it had a legitimate, non-retaliatory reason for the adverse action. In the final, third step, the employee would have the burden to show that the employer’s legitimate reason was merely a pretext for retaliation. Continue Reading

Tried and True Lessons from 2021 on Meal and Rest Break Best Practices for California Employers

By Shareef Farag, Margaret Rosenthal and Ari Spitzer on January 31, 2022 Posted in California, Wage and Hour

In 2021, the California Supreme Court handed down two important decisions, Donohue v. AMN Services, LLC and Ferra v. Loews Hollywood, LLC, that reinforce and refine tried and true lessons about meal and rest breaks. As California employers look ahead to their 2022 goals, compliance with these decisions should be top of mind.

Donohue: Do Not Round, Do Use a Drop-Down Menu

The first case, Donohue, was about an employer that rounded time punches to the nearest preset time increment. The employer in Donohue also used a timekeeping system that prompted an employee who punched a noncompliant break to select whether (a) she was provided an opportunity to take a break but chose not to, (b) she was provided a chance to take a break but chose to take a shorter break or (c) she was not provided an opportunity to take a break.

Philadelphia Enacts Ordinance Banning Pre-Employment Marijuana Testing

By Christian White and Saima Sheikh on January 13, 2022 Posted in Marijuana

As of Jan. 1, 2022, employers in the City of Brotherly Love are prohibited from requiring job applicants to undergo pre-employment drug testing for marijuana use. The ordinance, referred to as the Prohibition on Testing for Marijuana as a Condition for Employment (Phila. Code § 9-5500), makes it an unlawful employment practice for an employer, labor organization, employment agency or agent thereof to require prospective employees to submit to testing for the presence of marijuana as a condition of their employment.

The law defines marijuana broadly to include all forms or varieties of the genus Cannabis and the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture or preparation of the plant, its seeds or resin. Though the ordinance’s scope is far reaching in the employment positions covered, the ordinance contains several exceptions to the prohibition, including: