Deadline for Compliance with New EEO-1 Form Stayed Indefinitely

The White House Office of Management and Budget (“OMB”) has indefinitely stayed the deadline for compliance with the new Employer Information Report (EEO-1 Form) for collection of annual pay and hours worked information. As previously reported, the EEO-1 Form was revised in 2016 to require certain employers to submit additional aggregate data on W-2 earnings and hours worked by employees. Specifically, the proposed revision to the EEO-1 Form, published by the United States Equal Employment Opportunity Commission (“EEOC”) in February 2016, would require every employer with 100 employees or more to submit demographic information along with the W-2 wages and hours worked for all of its employees grouped in broad EEO-1 job categories, subdivided into twelve bands. Continue Reading

Lessons Learned: Tips on How to Allege and Argue Trade Secret Misappropriation at a Preliminary Injunction Hearing

Since its passage in 2016, the Defend Trade Secrets Act (DTSA) has increasingly become a valuable tool for employers seeking to enjoin former employees and competitors from misappropriating trade secrets. However, in requests for preliminary injunctive relief, companies often struggle with adequately alleging a likelihood of success on the merits of their claims under both the DTSA and state trade secret laws. A recent case filed in the Northern District of Illinois, Cortz, Inc. v. Doheny Enterprises, Inc., exemplifies this struggle and offers valuable lessons when moving for a preliminary injunction on a trade secret misappropriation claim. Continue Reading

Court Of Appeal Holds That Claims To Recover Wages Under Labor Code Section 558 Brought Through The Private Attorneys General Act May Be Arbitrated

In Esparza v. KS Industries, L.P., 2017 WL 3276363 (2017), the Fifth District Court of Appeal recently clarified the arbitrability of certain claims brought under the Private Attorneys General Act (“PAGA”).  Previously, in Iskanian v. CLS Transp. Los Angeles, LLC, 59 Cal.4th 348 (2014), the California Supreme Court held that PAGA representative actions for civil penalties are not subject to arbitration (the “Iskanian rule”). This decision led to a spate of actions by plaintiffs who signed valid and enforceable arbitration agreements asserting only PAGA claims, in an attempt to circumvent arbitration. This has been a significant hurdle to many employers, who have been forced to defend PAGA-only actions in civil court, despite the fact that their employees signed valid and enforceable arbitration agreements. Esparza offers a potential carve out to Iskanian that employers should be aware of. Continue Reading

Bay Area Local Law Update: Emeryville’s “Fair Workweek Ordinance”; San Francisco Bans Salary History Inquiries; And Additional Accommodations For Lactating Employees

Over the past few years, one of the biggest trends in employment law has been the proliferation of local ordinances imposing workplace standards beyond those mandated by state and federal laws. While many state governments have moved to preempt such regulations, California’s legislature has openly encouraged them, particularly in the wage and hour context. Unsurprisingly, California cities have passed a flurry of new workplace ordinances in recent years. Three new developments are worth noting for employers with employees working or living in the San Francisco Bay Area. Continue Reading

USCIS Issues New I-9 Form: Commentary and I-9 Checklist for Employers

On July 17, 2017, U.S. Citizenship and Immigration Services (“USCIS”) issued a revised Form I-9. The new form must be used by September 18, 2017.

The revised form has only one substantive change. A new List C Document was added as an acceptable document – a Consular Report of Birth for a U.S. citizen who was born abroad.

The new I-9 form can be accessed here.

Employers must maintain a completed Form I-9 on file for every employee on their payroll who was hired after November 6, 1986 and for terminated employees during the required retention period. The purpose of the Form I-9 is to require the employer to establish the employee’s identity and authorization to work in the U.S. Continue Reading

Now in Effect: California Employers Must Provide New Hires with Written Notice of Victim Rights

As reported in our new laws for 2017 post, employers must give written notice to new employees (and to current employees upon request) explaining the rights of victims of domestic violence, sexual assault and stalking. All California employers with at least 25 employees must be in compliance, effective July 1, 2017. Continue Reading

California Supreme Court Reaffirms Broad Right to Discovery in PAGA Actions

The California Supreme Court issued its long awaited ruling in Williams v. Superior Court, in which it clarified the scope of discovery in actions brought under the Private Attorneys General Act of 2004, Labor Code § 2698 et seq., also known as PAGA. (Williams v. Superior Court, __ Cal.5th __ (July 13, 2017, S227228) (“Williams”).) At first glance employers may be concerned by the breadth of discovery the California Supreme Court permits under PAGA, however, in reality the case generally reaffirms the status quo by holding that the scope of discovery in PAGA actions is essentially the same as the scope of discovery in class actions. Specifically, the Court holds that as in class actions, the contact information of the individuals a PAGA plaintiff purports to represent is generally discoverable in the same manner as it has been for many years in wage and hour class actions. While trial courts cannot condition disclosure of employee contact information on the plaintiff making a prima facie showing on the merits of his claims, the same defenses that exist in class actions to such discovery also exist in PAGA actions. While the employer has a substantial burden of proof, the California Supreme Court reaffirmed that employers still have defenses based on undue burden and the need to protect employee privacy rights to limit such discovery. With the overall discussion of discovery issues, the Court also makes pronouncements that can be helpful to employers in other aspects of PAGA litigation, such as its statements indicating that a PAGA action must be manageable to proceed to trial.

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UPDATE: NYC Adopts New Rules Implementing Freelance Law

Earlier this year, we reported that New York City adopted The Establishing Protections for Freelance Workers Act, also known as the Freelance Isn’t Free Act, (the “Freelance Law”). As explained in our prior blog, under the Freelance Law, a company must: (1) provide a written contract when it contracts with a freelance worker for services worth $800 or more, (2) ensure that all payments to freelance workers are made on a timely basis and paid in full, and (3) prohibit any type of retaliatory or adverse action against freelance workers for exercising the rights granted to them under the Freelance Law.

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“Ban the Box” and Background Checks – Recent Trends and Movements

Overview

Retailers and other employers regularly consider the backgrounds of job applicants and employees when making personnel decisions. It is not illegal for employers to ask questions about an applicant’s criminal history, or to require a background check. However, whenever an employer requests background information about a job applicant or employee, the employer must comply with federal and state laws. Within the last five years, employers have been put under increased scrutiny, especially when they require criminal background checks during the hiring process. This article summarizes recent legal trends regarding criminal background checks in the employment context, and discusses how employers—particularly those within the retail industry—can ensure compliance with the law. Continue Reading

Dear Congress: Your District Needs a New E-4 Visa for Promising Entrepreneurs

Procedural History

In August 2016, the Department of Homeland Security proposed an “International Entrepreneur” parole rule that would allow qualifying foreign entrepreneurs to develop and grow their start-up companies in the United States. After public comment, the rule was finalized and released in the closing days of the previous Administration. Continue Reading

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