Update to NYC Salary History Inquiry Ban

In our prior post, we reported that the New York City Council had approved an amendment to the New York City Human Rights Law (“NYCHRL”) prohibiting New York City employers from inquiring about a prospective employee’s salary history during the hiring process. At the time, it was awaiting Mayor de Blasio’s signature. On May 4, 2017, Mayor de Blasio signed the proposed amendment into law. It is now scheduled to take effect on October 31, 2017. Continue Reading

New Freelancer Law Imposes Additional Requirements For NYC Companies Contracting With Freelancers

The Establishing Protections for Freelance Workers Act, also known as the Freelance Isn’t Free Act, (the “Freelance Law”), which was touted by New York City Mayor Bill de Blasio as the first law in the nation aimed at protecting wage payment rights of freelance workers, became effective last Monday, May 15, 2017. The Freelance Law imposes specific requirements on companies located in New York City that contract with freelance workers, including requiring a written freelance contract, requiring companies to pay freelancers timely and in full, prohibiting retaliation against freelancers who exercise their rights under the Freelance Law, and creating penalties against companies who fail to comply with these requirements.   Continue Reading

Comp Time for the Private Sector: House Passes “The Working Families Flexibility Act”

On May 2, 2017, the House of Representatives passed H.R. 1180, better known as The Working Families Flexibility Act. The bill proposes to amend the Fair Labor Standards Act (“FLSA”) to permit private sector employees to “bank” overtime hours for later comp time use. For example, an employee working 50 hours in a workweek could, instead of receiving overtime pay for those 10 overtime hours, roll those hours into his or her comp time bank for later use. Each hour banked would be banked at an overtime rate, meaning that in this example, those 10 overtime hours would be equivalent to 15 banked hours. Continue Reading

Buy American and Hire American – New Executive Order Promises to Put American Workers First, But Practical Impacts Remain Unclear

On April 18, President Trump signed a new executive order (EO) at a ceremony in Kenosha, Wisconsin. The EO is entitled “Buy American and Hire American” and focuses on these two themes, with the President’s stated goal of ending the “theft of American prosperity” by focusing on American workers and products. While the details of how the new EO will be applied will undoubtedly take months to implement (pending numerous agency-level reviews), companies doing business with the federal government, or with an interest in foreign high-skill workers, should be aware of these new developments so that they can prepare for the adjustments they will need to make in the near future, as the President’s efforts to put American workers first take shape. Continue Reading

NYC Council Approves Salary History Inquiry Ban

On Wednesday, April 5, 2017, the New York City Council approved an amendment to the New York City Human Rights Law (“NYCHRL”) prohibiting New York City employers from inquiring about a prospective employee’s salary history during the hiring process.  If signed by Mayor Bill DiBlasio – which is expected – the law will become effective sometime in October 2017, depending on the date the law is signed. Continue Reading

In California, The Statutory Right To Seek Public Injunctive Relief Is Unwaivable

On April 6, 2017, in the matter Sharon McGill v. Citibank, N.A., the California Supreme Court ruled unanimously that an arbitration agreement that waives a statutory right to seek public injunctive relief in any forum, is contrary to California public policy and is therefore unenforceable under California law.  In arriving at its ruling, the Court distinguished between class action waivers and the waiver of the right to public injunctive relief.  The Court held that class actions are a procedural device that enforces substantive law, while the right to public injunctive relief is an unwaivable substantive statutory remedy that the Legislature has expressly made available under certain laws.  Although this is not an employment case, the Court’s holding is important in the employment context because it distinguishes between the waiver at issue in the agreement, which it ruled was unenforceable, and class action waivers, which many employers include in their mandatory arbitration agreements. Continue Reading

Sheppard Mullin Secures Major Victory for Chipotle in Nationwide Misclassification Action By Demonstrating Variations Among Proposed Class Members

The Court’s opinion in Scott v. Chipotle Mexican Grill demonstrates how employers can successfully combat class action claims that employees were misclassified as exempt. The successful defense of the class certification motion relied chiefly on deposition and declaration testimony to highlight inconsistencies, variations, and individualized inquiries that prevented resolution of the claims at issue on a class-wide basis.

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For Your Consideration: Recent State-to-State Developments on Sufficient Consideration for Employee Non-Compete Agreements

The various laws, statutes, and policies governing non-compete agreements are nuanced, inconsistent, and sometimes downright contradictory from state-to-state.  The issue of consideration is no different.  Like other contracts, non-compete and restrictive covenant agreements must be supported by adequate and sufficient consideration at the time of execution.  However, what constitutes adequate consideration for a restrictive covenant, especially a non-compete provision, varies from state to state.  And, more importantly, the concept of adequate consideration has shifted in recent years reflecting an increasingly strict approach to enforcing non-compete agreements post-employment.

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Congress Considers Limiting Pre-dispute Arbitration Agreements in the Employment Context

Many employers require employees to sign arbitration agreements at the inception of the employment relationship and prior to any disputes, such as part of their new hire packets or as a condition of their employment.  Recently, Congressional Democrats have introduced legislation to invalidate such pre-dispute arbitration agreements.

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