The New Year brings new laws for Illinois employers. Some laws go into effect this Summer, while others are effective as of this month. For employers who have not yet revised handbooks, policies and agreements, the time is now. Below is a brief summary of the new laws. Continue Reading
Effective February 10, 2020, the top ten members of an out-of-state limited liability company (“LLC”) can be held personally liable for violations of New York’s wage and hour laws. The bill, signed on December 12 by Governor Andrew Cuomo, amends New York’s LLC Law which previously only extended individual liability for unpaid wages to owners of domestic LLCs (text available here). Continue Reading
On December 12, 2019, for the first time in 60 years, the U.S. Department of Labor (DOL) announced a final rule clarifying the types of benefits that must be included in determining an employee’s “regular rate of pay” when calculating overtime wages. This new rule becomes effective January 15, 2020. Continue Reading
The Trump National Labor Relations Board (Board or NLRB) gifted employers a significant win on the eve of the Christmas holiday with its December 23 decision in United Parcel Service, Inc., 369 NLRB No. 1 (UPS), which announced a return to the decades-old standard for deferring to arbitral decisions in unfair labor practice cases alleging discharge or discipline in violation of Section 8(a)(1) and (3) of the National Labor Relations Act (NLRA or Act). The Board continues to reshape the Act with new decisions that reverse precedents and undo legal restrictions placed on employers during the Obama administration, and its decision in UPS is just the latest in a string of employer-friendly decisions issued this month alone, including Caesars Entertainment, 368 NLRB No. 143 (December 17, 2019)(overruling Purple Communications and freeing up employers to ban employees from using Company-owned computers during their non-work time to engage in protected concerted or union activities); Apogee Retail, LLC, 368 NLRB No. 144 (December 17, 2019)(overruling Banner Health, allowing employers to require employees to keep workplace investigations confidential and banning them from discussing them with other employees); and Valley Hospital Medical Center, 368 NLRB No. 139 (December 16, 2019)(holding that an employer is free to unilaterally cease union dues checkoff after a CBA expires). Our recent blog article addressing these critical decisions can be found here. Continue Reading
The end of the year is often a time of self-reflection to determine if one has ended up on the “Nice” or “Naughty” List. In appellate practice, ending up on the “Naughty List” can result in serious consequences, including the dismissal of a pending appeal and a forfeiture of substantive legal rights, regardless of the merits of the underlying appeal. Continue Reading
The Trump National Labor Relations Board (NLRB) continues to reshape the National Labor Relations Act (NLRA or Act) with new decisions that reverse precedents and undo legal restrictions placed on employers during the Obama administration. Over the past week alone and coming on the heels of the current Board’s issuance of new more employer friendly election regulations, the Board issued three important cases that warrant management’s attention. What follows is a brief summary of these new cases and an explanation of how they are likely to effect the workplace. Continue Reading
As peer-to-peer payment applications proliferate and on-demand technologies reach new facets of people’s lives, it is only natural that these programs now offer services geared particularly for employees. On-demand, daily pay apps, also known as “instant pay” or “earned wage access” are the outgrowth of two fundamental truths: (1) millions of Americans live paycheck to paycheck; and (2) employees perform their actual work and earn their actual wages up to two weeks before they receive their paychecks.
Instant pay apps offer to bridge the gap between when one’s expenses come due and one’s paycheck issues, by allowing employees to withdraw the wages they have already earned for work performed in a pay period, before the regular pay date. Hailed as a panacea by employees, who otherwise would be vulnerable to predatory payday loans, these instant pay apps unsurprisingly implicate multiple California wage and hour laws that an employer must comply with. As a result, employers considering rolling out these programs must carefully balance their potential legal risk against the benefit these apps offer employees, and should understand the potential protections available to an employer. Continue Reading
As reported here and here, California recently enacted new legislation – Assembly Bill 5 – that expanded the scope of an “employee” under state law. Beginning January 1, 2020, the answer to whether a person providing services in California is an independent contractor (as opposed to an employee) under the California Labor Code, the Industrial Welfare Commission (“IWC”) Wage Orders, and the California Unemployment Insurance Code, will generally depend on whether they satisfy all three prongs of the so-called ABC Test:
- The worker must be free from the control and direction of the hirer in connection with the performance of the work.
- The worker must perform work outside the “usual course” of the hirer’s business.
- The worker must be customarily engaged in an independent established trade, occupation, or business of the same nature as the work performed.
There are a myriad of occupational and industry exemptions to the application of the ABC Test, many of which are highlighted here.
Having tightened independent contractor classification standards, the next big target for the state legislature may be joint employer liability.
On the eve of the holidays, the National Labor Relations Board (NLRB) delivered an early Christmas present to employers with its issuance of new regulations governing the NLRB election process. While not scraping the Obama Board’s controversial 2014 election regulations wholesale, the current Board’s new rules moderate the election processing time frames considerably, allow employers to raise issues of supervisory status before an election is held and give employers a greater opportunity to campaign amongst employee voters in an effort to maintain their union free status. These procedural changes which will become effective in early April 2020 are welcome news for they go a long way towards re-leveling the playing field for employers when they litigate election issues and conduct election campaigns. Continue Reading
On December 6, 2019, the Second Circuit issued a decision that will have a strong impact on the settlement of wage and hour actions under the Fair Labor Standards Act (FLSA). In Yu v. Hasaki Restaurant, Inc., the U.S. Court of Appeals for the Second Circuit reversed a district court ruling and held that FLSA settlements pursuant to a Rule 68 offer of judgment do not require court approval. This decision departs from the conventional view that settlements of FLSA claims generally require formal approval from a court or the Department of Labor (DOL) in order to be enforceable. Continue Reading