California Supreme Court: Payroll Companies Not Liable to Client’s Employees for Unpaid Wages

By Joseph S. Persoff on February 14, 2019 Posted in Policies, Supreme Court

Close-up picture of a personal check and American Dollars with selective focus. Great use for financial concepts. The California Supreme Court has cut off another avenue for employees to sue payroll provider companies for unpaid wages. California courts have previously found that employees cannot sue a payroll company under a theory that the company is the “employer.” In a new decision, the California Supreme Court held that employees cannot sue payroll companies for unpaid wages under theories that the employee is a third-party beneficiary of the contract between the employer and the payroll company or that the payroll company acted negligently in not paying the employee the wages owed.

California Federal District Court Interprets Recent California Court of Appeal Decision to Broadly Prohibit Employee Non-Solicitation Agreements

By Eric W. Witt on February 5, 2019 Posted in Non-Compete

California employers and their legal counsel reasonably had assumed that California law distinguishes employee non-solicitation agreements from noncompetition agreements and that the former were enforceable. That assumption was based largely on a 1985 decision by the California Court of Appeal in Loral Corp. v. Moyes, 174 Cal. App. 3d 268, which enforced an agreement prohibiting a former company executive from soliciting the employees of his former employer to join his new venture. However, that assumption has been upended by recent decisions by the California Court of Appeal and the United States District Court for the Northern District of California invalidating employee non-solicitation agreements. Because it is now possible that California courts will invalidate employee non-solicitation agreements, employers will need to carefully consider eliminating those provisions from agreements with their employees.

New Lactation Room Requirements in NYC Going Into Effect Soon

By Fanny Ferdman on February 4, 2019 Posted in Health & Wellness, New York

Wide angle view over Manhattan towards the Empire State Building, Manhattan, New York City, USA. As many of you have probably heard, late last year, the New York City Council passed two laws that will amend the NYC Human Rights Law to expand the requirements of employers to provide lactation space for breastfeeding employees and to develop lactation policies and processes for employees to request accommodations for nursing. These new laws take effect March 17, 2019, which is right around the corner!

Background Check Disclosures with State Law Information Are Illegal, Ninth Circuit Declares in Class Action Case

By Todd Lebowitz on February 1, 2019 Posted in FCRA

Tired businessman with stack of office files

Check your background check disclosure forms. Now.

The Ninth Circuit has now declared that background check disclosure forms that include state law disclosures are illegal. Gilberg v. California Check Cashing Stores, LLC, Case No. 17-16263 (9^th Cir. Jan. 29, 2019).

New York State (Finally) Passes Gender Expression Non-Discrimination Act

By Saima Sheikh on January 23, 2019 Posted in Discrimination, New York

The Dictionary definition of the word “discrimination” photo taken through magnifying glass from a page of a dictionary with selective focus.

Last week, following 16 years of discussion and debate, the New York state legislature finally passed the Gender Expression Non-Discrimination Act (GENDA). The act would amend the state New York Human Rights Law to prohibit discrimination on the basis of gender identity or expression in housing, employment and public accommodations. The act defines gender identity or expression as “a person’s actual or perceived identity, appearance, behavior, expression, or other gender-related characteristic regardless of the sex assigned to that person at birth, including, but not limited to, the status of being transgender.” Although the act has amended the New York State Human Rights Law to specifically include gender identity and gender expression as protected classes, the change may be less significant than one would expect. Notably, in October 2015, New York adopted regulations to prohibit harassment and discrimination on the basis of gender identity, transgender status and gender dysphoria. In addition, the Model Sexual Harassment Policy for New York Employers issued by New York in October 2018 prior to the passage of the act states that sexual harassment includes harassment on the basis of gender expression, gender identity and the status of being transgender, and that harassment and discrimination on the basis of gender identity are prohibited. New York state follows several other states; cities, including New York City; and counties that have passed legislation protecting gender identity and gender expression. The act goes further to amend the state penal law to include certain offenses motivated by gender identity and expression in the hate crime statute.

New Year Brings New Requirements For Calculating Tipped Employee Wages In Massachusetts

By Shawn Butte on January 2, 2019 Posted in Wage and Hour

Foreground focus is on a glass jar labeled "tips" in chalk. The jar is sitting to one side on a rustic wooden table, full of coins and bills, with coffee shop scenery in the background.

Earlier this year, Gov. Charlie Baker signed a comprehensive bill titled “An Act Relative to Minimum Wage, Paid Family Medical Leave and the Sales Tax Holiday,” which brought a variety of new protections for employees in Massachusetts. These protections include the implementation of a state-administered paid family and medical leave program, an increase of the state’s minimum wage to $15 per hour by 2023, and a phaseout of time-and-a-half pay on Sundays and holidays. In addition to these highly publicized provisions, the bill included new requirements regarding the calculation of the wages for tipped employees.

Reminder: NJ Sick Leave Act Becomes Effective This Month

By Amanda Van Hoose Garofalo on October 22, 2018 Posted in Leave of Absence, New Jersey

Reminder – Earlier this year (as we reported in this post), the New Jersey Paid Sick Leave Act (NJPSLA) was approved. The NJPSLA mandates that employees will accrue one hour of paid sick leave for every 30 hours worked, up to a maximum of 40 hours of sick leave time during a consecutive 12-month period. The NJPSLA goes into effect October 29, 2018.

Since we last reported on this, the New Jersey Department of Labor released proposed regulations related to the NJPSLA. The regulations are still in the comment period and are not anticipated to be enacted prior to 2019, which means they will not be enacted prior to the effective date.

State Court Asked to ‘Weigh In’ on Whether Obesity Constitutes an Impairment Under Anti-Discrimination Law

By Jacob A. Bruner on October 16, 2018 Posted in EEOC, Health & Wellness

On Sept. 17, 2018, the Ninth Circuit Court of Appeals certified to the Washington Supreme Court the question of whether obesity qualifies as an “impairment” and thus a “disability” under the state’s anti-discrimination law. The case, titled Casey Taylor, et al. v. Burlington Northern Railroad Holdings Inc., et al., Case No. 16-35205 (9th Cir. Sept. 17, 2018), not only affects employers within Washington state but also could have serious consequences for employers operating in the Ninth Circuit (Washington, Oregon, California, Arizona, Nevada, Idaho and Montana) and throughout the country as federal appeals courts continue to “weigh in” on whether and to what extent obese job applicants and employees are entitled to protective treatment under the law.

Employers Speak Out on Proposed Changes to FLSA Overtime Rule

By Nathan A. Schacht and Jacob A. Bruner on October 10, 2018 Posted in Department of Labor, FLSA

On Sept. 14, 2018, the Department of Labor (DOL) conducted a fourth public listening session on proposed changes to the Fair Labor Standards Act (FLSA) overtime exemption. The session was one of four public listening sessions offered by the DOL last month. The series is part of a larger rulemaking and comment period being offered by the DOL in the wake of ongoing litigation to determine the appropriate salary threshold for overtime-exempt employees.

What Is the State of Joint Employment?

By Todd Lebowitz on October 7, 2018 Posted in Department of Labor, National Labor Relations Board

Each January, the President gives a State of the Union Address to a joint session of Congress. Throughout the speech, as the President touts his agenda and vision, half the audience cheers wildly, while the other half makes frowny faces. All the while, members of the Supreme Court sit stone-faced, internally cheering or wincing but trying not show it.

The State of Joint Employment is sort of like that annual speech. Policy goals change with each administration. Depending on which party is in office, some people cheer and others frown.

Ladies and Gentleman, the State of Joint Employment is … confusing.