On Monday, the Ninth Circuit vacated a judgment for Grubhub, Inc. and against a former food delivery driver, Raef Lawson, who claimed that he was misclassified as an independent contractor when he performed food delivery services.  Lawson had asserted claims for minimum wage, overtime, and expense reimbursement.

Continue Reading Ninth Circuit Reversed Grubhub’s Victory on Independent Contractor Classification in Light of the Retroactive Application of Dynamex

As we previously reported, the National Labor Relations Board (“NLRB” or the “Board”) has been undergoing a seismic change of direction. With two memoranda published September 8th and September 15th, NLRB General Counsel (“GC”) Jennifer Abruzzo looks to take further progress toward fulfilling President Biden’s promise to be the “strongest labor President you have ever had.” Following NLRB Chairman McFerran expressly stating her willingness to explore new remedies for unfair labor practice violations, GC Abruzzo has instructed the regional offices to seek expanded remedies in Unfair Labor Practice (“ULP”) litigation and settlement negotiations.

Continue Reading NLRB General Counsel Issues Memos Calling for New Harsher Penalties for Unfair Labor Practice Violations

A divided Ninth Circuit panel dealt a blow to California employers recently in holding that a state law prohibiting mandatory arbitration agreements is largely not preempted by the Federal Arbitration Act (“FAA”).  California employers often have employees enter into such mandatory arbitration agreements as a condition of employment.

Continue Reading Ninth Circuit Upholds in Part California’s Ban on Mandatory Arbitration

Continuing the trend of recognizing Illinois’ Biometric Information Privacy Act (“BIPA”) as a muscular privacy-protective statute, the Illinois Appellate Court for the First District has ruled that the most common statutory violations of BIPA are subject to a five-year statute of limitations. BIPA imposes several duties on companies that collect, store or use biometric data—e.g., fingerprints, facial geometry scans—from Illinois residents. Prevailing plaintiffs may recover liquidated damages ranging from $1,000 to $5,000 for each BIPA violation (plus attorneys’ fees), and these provisions incentivize plaintiffs’ lawyers to bring BIPA claims as class actions.

Continue Reading Illinois Appellate Court Affirms 5-Year Statute of Limitations Period for Certain BIPA Claims

On September 9, 2021, California’s Court of Appeal issued an important decision in Wesson v. Staples The Office Superstore, LLC (“Wesson”), holding that trial courts have discretion to strike claims brought under the Private Attorneys General Act (“PAGA”) when a trial of the action would be unmanageable.  Unless the California Supreme Court grants review, Wesson will be binding upon California state courts and federal district courts.

Continue Reading Manageability – a New Weapon to Stave Off Unmanageable PAGA Claims

Since taking office, New Jersey Governor Phil Murphy has prioritized eliminating misclassification of employees as independent contractors.  In furtherance of this goal, on July 8, 2021, Governor Murphy signed four bills into law which make it easier for the state to (i) identify employers who misclassify employees as independent contractors, and (ii) penalize employers for such misclassification.  Highlights from each of these four laws are summarized below:

Continue Reading New Laws Passed in New Jersey Designed to Identify and Penalize Employers Who Misclassify Employees as Independent Contractors

On September 9, 2021, the White House released a memorandum titled “Path Out of the Pandemic,” which detailed President Biden’s COVID-19 Action Plan.  The memorandum contains six priorities for combatting the COVID-19 pandemic, including a requirement that all employers with 100 or more employees must implement a vaccine mandate and/or require weekly testing of unvaccinated workers.

Continue Reading President Biden and OSHA to Require Vaccine Mandate or Weekly Testing for Employers with 100+ Employees

On September 6, 2021, New York Governor Kathy Hochul announced that COVID-19 has been designated as a highly contagious communicable disease that presents a serious risk of harm to the public health under New York State’s HERO Act (“HERO Act” or the “Act”). At the time of the publication of this article, the Commissioner of Health’s designation is only effective until September 30, 2021. On September 30, the Commissioner will review the level of COVID-19 transmission in the state and make a further determination.

Continue Reading NY HERO Act Plans Must Be Activated as COVID-19 Designated a Highly Contagious Communicable Disease

The American Rescue Plan Act (“ARPA”) requires the full cost of COBRA premiums to be subsidized for COBRA continuation coverage during the period from April 1, 2021 through September 30, 2021 (“Subsidy Period”) of certain assistance-eligible individuals (“AEI“) whose COBRA qualifying event was due to an involuntary termination or reduction in hours. Our prior blog post, COBRA Premium Assistance Under the American Rescue Plan Act of 2021 – What Employers Should Know, provides information about the ARPA COBRA subsidy and associated notice requirements. ARPA also required employers to comply with certain notice obligations, first at the outset of the Subsidy Period to make the AEIs aware of the subsidy, and now to inform AEIs that the subsidy is nearing expiration through what is known as the Notice of Expiration of Period of Premium Assistance (“Expiration Notice”).

Continue Reading Reminder: ARPA COBRA Subsidy Expiration Notice Due by September 15

Total Planetary Alignment. Halley’s Comet. A Full Solar Eclipse. Texas Enacting Heightened Employee Protections Beyond Federal Law.

What are “things that rarely happen in your lifetime?”

In Texas, the general rule is that employee-facing legal protections overlap with—and extend no further than—its federal counterparts. But newly-enacted state legislation concerning workplace sexual harassment has bucked that trend.


Continue Reading New Texas Law Expands Employee Rights and Employer Liability for Sexual Harassment Claims