National Labor Relations Board Deviates from Typical Practice and Announces that It is Considering Rulemaking to Address Joint Employer Standard

On May 9, 2018, the National Labor Relations Board (“NLRB”) announced it is considering rulemaking to address the standard for determining joint-employer status under the National Labor Relations Act (“NLRA”). As Chairman of the NLRB John Ring explained in the NLRB’s press release:

“The current uncertainty over the standard to be applied in determining joint-employer status under the Act undermines employers’ willingness to create jobs and expand business opportunities. In my view, notice-and-comment rulemaking offers the best vehicle to fully consider all views on what the standard ought to be. I am committed to working with my colleagues to issue a proposed rule as soon as possible, and I look forward to hearing from all interested parties on this important issue that affects millions of Americans in virtually every sector of the economy.” Continue Reading

U.S. Supreme Court Upholds Enforceability of Mandatory Employment Class Action Waivers

On May 21, 2018, the United States Supreme Court upheld the legality of arbitration agreements containing class action waivers. In a 5-4 decision written by Justice Gorsuch, the Court held that arbitration agreements providing for individualized proceedings were valid, and neither the Federal Arbitration Act’s (“FAA”) savings clause, nor the National Labor Relations Act (“NLRA”) suggest otherwise. Continue Reading

Court Rejects Plaintiffs’ Attempt to Double-Dip in Settlement Pool

It is a rare occasion that the phrase “joint employer” has positive implications for any business. However, a panel sitting on the California Court of Appeals recently gave one party in a joint employer arrangement cause to celebrate when it held in Castillo v. Glenair, Inc., 22 Cal. App. 5th 348 (2018) [1], that the settlement of an earlier wage and hour class action filed against the party’s retained staffing company barred the instant suit alleging the same claims on behalf of the same class. Continue Reading

Utah and Idaho Limit Non-Competes and Vermont and Pennsylvania Work to Ban Them

Several states have recently enacted modifications to their respective non-compete laws or have legislation in the pipeline. Most continue the trend of limiting enforceability of non-competes, which are agreements between an employee and employer where the employee agrees not to enter into competition with the employer following the employee’s termination of employment. In this two-part series, we first examine recently enacted employee-friendly non-compete laws in Utah and Idaho and certain efforts to ban non-competes, including those in Vermont and Pennsylvania. In part two of this blog, we will examine the practical application of these recently enacted and proposed laws, and further examine the trend of limiting enforceability of non-competes. Continue Reading

New Jersey Enacts Paid Sick Leave Act

On Wednesday, May 2, 2018, Governor Phil Murphy signed into law the New Jersey Paid Sick Leave Act (the “Act”). The Act, which goes into effect on October 29, 2018, preempts all existing New Jersey municipal earned sick leave laws and, like the New York City Earned Sick Time Act, allows employees to accrue one (1) hour of sick leave time per thirty (30) hours worked. Continue Reading

New Jersey Equal Pay Act Signed Into Law

On Tuesday, April 24, 2018, New Jersey Governor Phil Murphy signed into law the Diane B. Allen Equal Pay Act (the “Act”), which amends the New Jersey Law Against Discrimination (“NJLAD”) to provide enhanced equal pay protections for New Jersey employees. The Act, which becomes effective on July 1, 2018, prohibits pay disparities based upon characteristics protected by the NJLAD, such as race, creed, color, national origin, nationality, ancestry, age, sex, etc. Specifically, the Act makes it an unlawful employment practice “[f]or an employer to pay any of its employees who is a member of a protected class at a rate of compensation, including benefits, which is less than the rate paid by the employer to employees who are not members of the protected class for substantially similar work, when viewed as a composite of skill, effort and responsibility.” Continue Reading

The Dynamex Decision: The California Supreme Court Restricts Use of Independent Contractors

On Monday, April 30, 2018, the California Supreme Court issued a landmark decision in the matter of Dynamex Operations West, Inc. v. Superior Court of Los Angeles. In a voluminous, 82-page decision, the California Supreme Court reinterpreted and ultimately rejected the Borello test for determining whether workers should be classified as either employees or independent contractors for the purposes of the wage orders adopted by California’s Industrial Welfare Commission (“IWC”) in favor of a worker-friendly standard that may upend the existing independent contractor labor market.

In particular, the Court embraced a standard presuming that all workers are employees instead of contractors, and placed the burden on any entity classifying an individual as an independent contractor of establishing that such classification is proper under the newly adopted “ABC test” which will be discussed in further detail below. Continue Reading

California Legislature Introduces Bill That Could Result In Massive Penalties For Employers For Late Payment of Wages

Currently working its way through the California Legislature is AB 2613, a potentially massive expansion of liability on employers and individuals for underpayment of wages.

AB 2613 seeks to amend the California Labor Code in three separate ways. First, Labor Code Section 210 would be amended to provide that an employer “or other person acting individually or as an officer, agent, or employee of another person” who fails to timely pay an employee’s wages (not merely final wages) owes a penalty of $200 to each affected employee for each pay period when the wages are late. Not only is this a substantial monetary penalty, but, importantly, the new requirements would impose this liability on individuals, not just the corporate employer. The new provision also makes clear that this new penalty is in addition to, and entirely independent of, any other damages or penalties under the Labor Code. The provision also explains that the $200 penalty cannot be waived by agreement of the employee. Interestingly, the bill further provides that the $200 penalty can be imposed against individuals who violate Labor Code Section 1197.5, which prohibits sex discrimination in wages. Continue Reading

Labor Board Back to Five Member Composition – What Obama-Era Precedent Is Next on the Chopping Block?

On April 11, 2018, former management lawyer John Ring was confirmed via a 50-48 party-line vote to serve on the five-member National Labor Relations Board (“Board”). Ring will replace Chairman Marvin Kaplan, another member of the Board’s Republican majority appointed by President Trump. Ring’s confirmation sets the stage for undoing many Obama-era rulings that have sparked controversy within the employer community. However, not all Obama-era cases may be fair game. Continue Reading

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