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.

New York State Sexual Harassment Guidance Finalized

By Amanda Van Hoose Garofalo and Amy J. Traub on October 2, 2018 Posted in Harassment, New York

UPDATE – On Oct. 1, 2018, the state of New York released final guidance on the anti-sexual harassment measures that were passed in the 2018-2019 New York state budget. Perhaps the most important (and welcomed) change in the guidance is that employers now have until Oct. 9, 2019, to provide employees with the mandated training.

New York Attorney General’s Office Reaches Another Settlement Over Non-Competes

By Saima Sheikh on September 25, 2018 Posted in New York, Non-Compete

Last week, the Office of the New York Attorney General (NYAG’s Office) reached a settlement with WeWork, a New York City-based company that provides shared “co-work” spaces nationwide and internationally – and, notably, is one of the largest office tenants in New York City – regarding its use of non-compete restrictions with its employees. Recently, the NYAG’s Office has investigated and reached settlements with several other employers on the subject of non-competes, including a sandwich chain, a legal news website and a national medical information services company.

In the Recent Flurry of New Laws, Don’t Forget Salary History Bans

By Amanda Van Hoose Garofalo on September 18, 2018 Posted in Wage and Hour

As the year winds down and many employers scramble to ensure that they are on top of the many new laws that have been passed/enacted in the past year, we want to bring to your attention a few more related to salary history. Perhaps with all the attention on the flurry of anti-sexual harassment bills that passed in the wake of #MeToo, you may have missed that several states have now passed laws related to inquiring about an applicant’s salary history.

New York State Issues Guidance for Compliance with New Sexual Harassment Law

By Shawn Butte and Amy J. Traub on August 28, 2018 Posted in Harassment, New York

Earlier this year, Gov. Cuomo signed into law the 2018-2019 New York State Budget, which included new requirements for both private and government employers intended to combat sexual harassment in the workplace.

As reported in our previous post, the new law mandates that starting October 9, 2018, all New York employers must adopt a sexual harassment prevention policy and provide sexual harassment prevention training to employees. Both the policy and training must meet or exceed minimum standards set by the New York State Department of Labor together with the New York State Division of Human of Rights (collectively hereinafter, “New York state” or “the state”). Employers must provide sexual harassment prevention training to all current employees by January 1, 2019. Additionally, employers who are state contractors must submit an affirmation to New York state confirming that they have distributed the requisite sexual harassment prevention policy and provided the necessary training.

Lessons Learned From the EEOC’s First Parental Leave Lawsuit

By Saima Sheikh on August 20, 2018 Posted in EEOC, Leave of Absence

In the U.S., many employers’ parental-leave programs prioritize birth mothers and offer limited benefits to fathers, adoptive parents, foster parents and LGBT parents. In 2015, the Equal Employment Opportunity Commission (EEOC) issued Enforcement Guidance for Pregnancy Discrimination and Related Issues, which includes parental leave policies. However, not all employers have followed this guidance. Consequently, just last year, the EEOC commenced a landmark lawsuit targeting a parental leave policy that purportedly gave greater benefits to new mothers than to new fathers.

Changing the Competition – Massachusetts Enacts Comprehensive Non-compete Reform

By Shawn Butte on August 13, 2018 Posted in FLSA

After nearly a decade of debate, Massachusetts has passed comprehensive legislation limiting the use of noncompetition agreements. Last Friday, Gov. Charlie Baker officially signed “An Act Relative to the Enforcement of Noncompetition Agreements” (the Act) into law after the bill passed the Massachusetts Legislature last week.

The Act, which goes into effect on Oct. 1, 2018, comes after years of discussion surrounding the effects of non-compete agreements on employee mobility and competition in the Massachusetts labor market. Many advocates calling for non-compete reform often point to California, where non-compete agreements are not enforceable, to support the position that eliminating these restrictions will bring the Bay State closer to competing with Silicon Valley. Despite the failure of previous attempts to pass similar legislation, the Massachusetts Legislature finally drafted a compromise bill that satisfied both sides of the aisle.

Massachusetts Enacts Comprehensive Paid Family and Medical Leave and Sets Sights on $15 Minimum Wage

By Shawn Butte on July 19, 2018 Posted in FMLA

On June 28, Massachusetts Governor Charlie Baker signed a comprehensive bill requiring employers in the state to provide workers with paid family and medical leave. The bill, titled “An Act Relative to Minimum Wage, Paid Family Medical Leave and the Sales Tax Holiday,” also sets a schedule to increase the state’s minimum wage to $15 per hour by 2023 and phase out time-and-a-half pay on Sundays and holidays.

The enactment of the bill, which will take effect on July 1, 2019, gives Massachusetts one of the most generous paid family and medical leave programs in the country, rivaling legislation passed in California, Hawaii, New Jersey, New York, Rhode Island, Washington and Washington, D.C. The bill establishes a Department of Family and Medical Leave within Massachusetts’s Executive Office of Labor and Workforce Development, which will be responsible for administering the paid leave program.