Mayor Bowser Signs Broad DC Noncompete Ban – Certain Requirements Apply to Employers That ‘Don’t’ Utilize Noncompete Agreements!

As we reported here last month, on Dec. 15, 2020, a unanimous District of Columbia City Council approved a broad ban on noncompete agreements and “moonlighting” policies that would be among the most restrictive in the nation. On Jan. 11, 2021, Mayor Muriel Bowser signed and approved the Ban on Non-Compete Agreements Amendment Act of 2020. It now will be referred to Congress, where the legislature can disapprove the law within 30 days of the referral, although this is not expected.

Given the strong likelihood that the law will soon be in effect (likely sometime in February), employers in the District should begin preparing for some of the law’s requirements and ensure that any internal policies regarding noncompete agreements are updated to reflect the changing legal landscape. All employers should be cognizant of these requirements, including those employers who do not utilize non-compete agreements. Continue Reading

Florida’s New Form I-9 & E-Verify Requirements

Like many states before it, the State of Florida has enacted new requirements for mandatory use of E-Verify and expanded I-9 documentation requirements for private and public employers. The new law, which went into effect Jan. 1, 2021, requires all Florida employers who do not use the U.S. Department of Homeland Security’s E-Verify system to retain copies of documents new hires provide to verify their identity and work authorization during the Form I-9 employee onboarding process. The law also requires certain employers to use the U.S. Department of Homeland Security’s E-Verify system to confirm employment authorization.

The federal law known as the Immigration Reform and Control Act (IRCA) requires employers to confirm employees are eligible to work in the United States by completing Forms I-9 and reviewing documentation of employees’ identity and employment eligibility. Federal I-9 regulations provide that employers can generally choose whether to retain copies of the supporting documents, with some exceptions for employers that use the voluntary federal E-Verify service. Continue Reading

California Supreme Court Applies Dynamex Independent Contractor Test Retroactively

The California Supreme Court has concluded that the ABC Test it developed for determining whether a worker is an independent contractor or employee applies retroactively.  Therefore, the ABC Test, first developed in the Court’s Dynamex decision, applies to California wage and hour claims implicating a time period prior to issuance of the Dynamex decision on April 30, 2018.

The Court reasoned that retroactive application was appropriate because California generally applies judicial decisions retroactively and no exception was warranted here.  California recognizes an exception to the general rule of retroactivity when considerations of fairness and public policy justify an exception. Continue Reading

Snapshot or Long Exposure? Dep’t Of Labor Approves New IC Test … For Now

This octopus in New Zealand has been trained to take photos of visitors to the Sea Life Aquarium. That’s a pretty neat trick. I’m sure the visitors love it and will pay whatever exorbitant fee the aquarium charges to profit on the back of its cephalopod slave labor, but will the photos last? Do the visitors keep them, or do the pictures end up in the circular file at home?

Some photos are cherished and kept. Others, not so much.

So which category will the Department of Labor’s (DOL) new independent contractor test fall into — cherished and kept? Or not so much?

As reported here, in September 2020, the DOL published a new proposed rule for how to determine independent contractor versus employee status under the Fair Labor Standards Act (FLSA). The DOL has been rushing to publish the new rule before Inauguration Day 2021, in case of a change in the Oval Office. Continue Reading

DC City Council Passes Broad Noncompete Ban

On Dec. 15, 2020, a unanimous District of Columbia City Council approved a broad ban on noncompete agreements and “moonlighting” policies that would be among the most restrictive in the nation. Since adoption of the Defend Trade Secrets Act in 2016, 11 states have enacted legislation regulating the use of noncompetes, including prohibiting them for lower-wage employees, which recently occurred both in nearby Maryland (in 2019) and Virginia (in 2020), but no state has chosen to join California in prohibiting the enforcement of employment-based noncompetes across the board.

Under the approved bill, following its enactment, any “non-compete provision contained in an agreement that was entered into on or after the applicability date … between an employee and an employer shall be void as a matter of law and unenforceable.” Additionally, the law prohibits employers from having a workplace policy that prohibits employees from being “employed by another person,” performing “work or providing services for pay for another person” or operating “the employee’s own business.” Thus, it would appear that the legislation might allow employees to work for their employer’s competitor even while employed by their employer. Continue Reading

Coloradans Vote to Give All Employees in the State Paid Family and Medical Leave

On November 3, 2020, Colorado voters placed their ballots in favor of Proposition 118 – a first-of-its-kind ballot initiative. In passing the Paid Family and Medical Leave Insurance Act (FAMLI), Colorado joined just eight other states and the District of Columbia in creating a state-level paid family and medical leave program. The benefits under FAMLI begin in 2024, with more clarity coming in January 2022. Despite that timeline, we already have some insight into what FAMLI means for Colorado employers and employees.

As its name suggests, FAMLI provides paid leave. This immediately sets it apart from the federal Family and Medical Leave Act (FMLA), which provides only unpaid leave. FAMLI also has greater reach than the FMLA. While the FMLA is applicable to employers with 50 or more employees, FAMLI is effectively applicable to all employers. Any employer with at least one employee falls under the Act. Specifically, FAMLI provides 12 weeks of paid family and medical leave for employees, but that’s not all. It also provides for an additional four weeks of leave in the event of pregnancy or childbirth complications. All told, that is 16 weeks of paid leave. Continue Reading

NYC Earned Safe and Sick Time Amendments Effective September 30, 2020

On September 28, 2020, New York City Mayor Bill de Blasio signed into law a bill (Intro. 2032-A (Cohen)) amending the New York City Earned Safe and Sick Time Act (ESSTA) to align it with the New York State Sick Leave Law (NYSSLL), which went into effect on September 30, 2020. For more information about the NYSSLL, please refer to our client alert. The effective date of the amended ESSTA law is also September 30, but some employers can require that their employees refrain from using any additional paid safe or sick leave until on or after January 1, 2021 Continue Reading

California Expands Family Leave to Employees of Small Employers

California passed a new law expanding family leave rights to employees working for employers with five to 50 employees. The family leave rights were previously limited to employees of employers with more than 50 employees.

Under this new law, employees of small employers would be entitled to up to 12 weeks of unpaid leave during any 12-month period to:

  1. Bond with a new child.
  2. Tend to the employee’s own “serious health condition.”
  3. Care for a child, parent, grandparent, grandchild, sibling, spouse or domestic partner who has a “serious health condition.”
  4. Undergo various duties related to active duty service in the U.S. armed forces by the employee or the employee’s spouse, domestic partner, child or parent.

A “serious health condition” is a physical or mental condition involving either inpatient care or continuing treatment or supervision by a health care provider. An employee qualifies for these rights upon 1,250 hours of service for the employer during the previous 12-month period.

The law takes effect January 1, 2021.

Whaddaya Call It? DOL Proposes New Independent Contractor Test

Soda or pop? Pill bug or roly poly? What you call things depends on where you live. In 2014, the New York Times published this 25-question dialect quiz that will tell you, with startling accuracy, where you or your parents are from.

The test is fun, and you can see how words and dialects vary from region to region.

But some things should not vary from region to region — federal laws.

The Fair Labor Standards Act (FLSA) has one definition of “employ,” but when it comes to deciding who is an employee and who is an independent contractor, different courts in different states apply different standards.  The DOL is trying to fix that.

Under a proposed new rule, released on September 22, the same test would be used in all parts of the country, regardless of whether you call your lunch sandwich a hoagie, sub, or grinder. Continue Reading

Texas Announces Plan to Ease Restrictions and Allow Expanded Operations of Most Businesses Statewide

Citing a continued decline in the rate of hospitalizations throughout the state, Texas Gov. Greg Abbott issued a pair of executive orders on Thursday, Sept. 17, 2020, aimed at easing restrictions on businesses and hospitals throughout the state. Most notably, most businesses throughout the state will be allowed to operate at 75 percent capacity beginning Monday, Sept. 21, 2020.

Executive Order GA-30’s Expanded Occupancy Levels

Since June 28, 2020, Texas businesses have been allowed to reopen, but only at 50 percent capacity of their facilities. Under Executive Order GA-30, restaurants, retail stores, nonessential office buildings and manufacturing facilities, gyms and exercise facilities and classes, museums, and libraries will be allowed to operate at 75 percent capacity of their indoor facilities. The order also completely eliminates occupancy limitations on outdoor areas, establishments and venues, including restaurant patios and outdoor dining areas, as long as social distancing is maintained between different groups. Bars, however, will remain closed, since they are considered hot spots for the spread of COVID-19. Continue Reading