It’s Time to Review and Update Safety and Compliance Regimens – OSHA Penalties Set to Surge in 2016

For the first time since 1990, the Occupational Safety and Health Administration (OSHA) has been authorized to increase its civil penalties.  The provision was inserted into the expansive Bipartisan Budget Act of 2015, which was signed this month by President Barack Obama.   Continue Reading

Second Circuit Holds That Facebook “Like” May Be Concerted Activity Under Section 7 of the NLRA

The Second Circuit recently released a summary order in Three D, LLC v. NLRB affirming the National Labor Relations Board’s (the Board) ruling that a Facebook “like” can be construed as concerted activity under Section 7 of the National Labor Relations Act (the Act). Continue Reading

Proposed Federal “Ban the Box” Legislation Receives Bipartisan Support

On September 10, 2015, the Fair Chance Act (the “Act”) was introduced by a bipartisan group of legislators from both houses of Congress. The Act would prohibit federal contractors and agencies from inquiring into an applicant’s criminal history prior to a conditional offer of employment.  The proposed legislation would allow an employer to conduct a criminal history check after the conditional offer, and does not prohibit an employer from revoking the conditional offer on the basis of such findings. Continue Reading

New Jersey Supreme Court Holds That an Employer Can Sue a Disloyal Employee To Clawback Salary Without Showing Economic Loss

In Kaye v. Rosefielde (A-93-13), the New Jersey Supreme Court recently held that an employer need not demonstrate that it suffered an economic loss in order to recoup the salary of a disloyal employee.  The Court explained that courts have the equitable power to require disgorgement for any pay periods during which the employee was disloyal. Continue Reading

California Employers Exhale Relief, Governor Vetoes Ban on Employment Arbitration Agreement

On October 11, 2015, Governor Brown vetoed Assembly Bill No. 465. AB 465 was one of the most closely watched, controversial employment related bills passed by the California Legislature in recent memory. Understandably, employers were nervous by the bill’s potential implications. Continue Reading

Second Circuit Finds EEOC Investigation Not Subject to Review

Recently, the United States Court of Appeals for the Second Circuit held in the matter of Equal Employment Opportunity Commission (“EEOC”) v. Sterling Jewelers Inc. (“Sterling Jewelers”), that the District Court erred by considering the sufficiency of the EEOC’s pre-suit investigation instead of simply considering whether an investigation occurred.   Continue Reading

Home Care Associations Seek Stay by SCOTUS of New Wage-and-Hour Rules, As the Effective Date of DOL Wage-and-Hour Regulations Quickly Approaches

Recently, the D.C. Circuit Court of Appeals ruled in Home Care Association of America, et al. v. Weil, that the Department of Labor’s (“DOL”) regulations about the inapplicability of certain statutory exemptions for third-party employers of home care workers are enforceable and that the federal minimum wage and overtime rules will apply to these types of home care workers. As a result, unless the Rule’s application is stopped or otherwise delayed, those acting in the home care industry need to be aware of changes soon to take effect, and employers in particular must be ready to meet their new obligations, as of October 15, 2015. Continue Reading

Ninth Circuit Blesses Iskanian

On September 28, 2015, the Ninth Circuit Court of Appeals issued a 2-1 decision in the long-awaited case of Sakkab v. Luxottica Retail North America, Inc. (No. 13-55184, D.C. No. 3:12-cv-00436-GPC-KSC) (“Sakkab”). The Court held that an arbitration agreement that requires arbitration of PAGA claims arising out of employment is unenforceable under California law. Continue Reading

District Court for the EDNY Denies Motion to Dismiss Selective Enforcement Gender Discrimination and Retaliation Claims Related to Enforcement of Employer’s Hair Policy

In Visecchia v. Alrose Allegria LLC, a recent decision from the United States District Court for the Eastern District of New York, the court granted in part and denied in part a motion to dismiss claims of gender discrimination and retaliation brought by a hotel chef against his former employer alleging that the employer selectively enforces a hair policy in a manner that discriminates against male employees. In his complaint, plaintiff Richard Visecchia Jr. alleged he had long hair since he began working for the Allegria Hotel (the “Hotel”) as a line cook in 2009. He also stated that, in 2012, Hotel management directed him to cut his hair because it was “too long” under the Hotel’s hair policy, which reads as follows:

Hair must be clean, trimmed, well brushed and neat at all times, Extreme style flowers [sic], colored ribbon’s [sic], beaded, braided or streaked hair is not permitted. Color should be maintained at neutral tones. Men’s hair must be above the shirt collar. Side burns should not exceed one inch in length and should be neatly trimmed. No other type of hair covering should be worn unless considered a part of the uniform.

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