Following a June 19, 2018 vote by District of Columbia residents to pass Initiative 77, which would provide a single minimum wage for all employees including tipped workers, the D.C. Council has voted to overturn the voter-approved Initiative.
On Sunday, September 30, 2018, Governor Jerry Brown signed into law a number of bills that will have a significant impact on litigation and legal counseling in the employment context. Many of the new laws are a response to the traction gained by the “me-too” movement and are summarized herein. Continue Reading
On October 1, 2018, New York State released final model sexual harassment materials and compliance guidance in response to comments received during its open comment period, discussed in more detail in a previous blog article. The new materials provide important guidance for future compliance and include new employer requirements, as detailed below. Continue Reading
On September 30, 2018, California Governor Jerry Brown signed into law a bill that prohibits a provision in settlement agreements that prevents the disclosure of information pertaining to sexual harassment and sex discrimination. The law goes into effect on January 1, 2019, and serves as an extension of the already-existing law that prohibits provisions in settlement agreements that prevent the disclosure of acts that could be prosecuted as felony sex offenses and certain sex offenses against children. Continue Reading
The National Labor Relations Board has made good on its recent promise to move forward with rulemaking to re-establish the decades-old joint employer standard in place prior to the Board’s 2015 decision in Browning-Ferris Industries of California, Inc., d/b/a BFI Newby Island Recyclery, 362 NLRB No. 186 (2015) (Browning-Ferris or BFI), petition for review docketed Browning-Ferris Indus. of Cal. v. NLRB, No.16-1028 (D.C. Cir. filed Jan. 20, 2016). On Sept. 13, the Board announced that it is issuing a proposed rule (to be published in the Federal Register on September 14, 2018) to establish an updated standard for determining joint employer status under the National Labor Relations Act. Under the proposed rule, “[a]n employer, as defined by Section 2(2) of the National Labor Relations Act (the Act), may be considered a joint employer of a separate employer’s employees only if the two employers share or codetermine the employees’ essential terms and conditions of employment, such as hiring, firing, discipline, supervision, and direction.” Notably, the Board’s proposed rule clarifies that a putative joint employer “must possess and actually exercise substantial direct and immediate control over the employees’ essential terms and conditions of employment in a manner that is not limited and routine.” No doubt relieved to see a return to the pre-BFI standard, employers will be further delighted to discover that under the proposed rule, the Board is “presently inclined to find, consistent with prior Board cases, that even a putative joint employer’s ‘direct and immediate’ control over employment terms may not give rise to a joint-employer relationship where that control is too limited in scope.”
On Thursday, August 23, 2018, New York State released draft model sexual harassment materials in preparation for October 9, 2018 employer compliance with its new sexual harassment laws, discussed in detail in a previous blog article.
New York State published the following draft materials on August 23, 2018:
- A new informational webpage
- A model sexual harassment prevention policy
- A model complaint form
- Model sexual harassment training materials
- A frequently asked questions guide to the new sexual harassment laws
All model materials are currently in draft form, pending a comment period set to end on September 12, 2018. Therefore, all model materials are subject to change prior to the October 9, 2018 effective date. Members of the public, as well as employers and employees, are encouraged to provide comments on the new materials via this link. Continue Reading
As previously reported in a prior article, in May 2018, New York City Mayor Bill de Blasio signed into law the Stop Sexual Harassment in NYC Act (the “Act”). The Act provides, among other things, starting September 6, 2018, all New York City employers must display the New York City Commission on Human Right’s (“NYCCHR”) new anti-sexual harassment poster in a conspicuous place in the workplace and provide the information to employees at the time of hire. On August 10, 2018, the NYCCHR published an English-language version of the required poster, which can be found here. While the Act also requires the poster to be displayed in Spanish, the NYCCHR has yet to issue a Spanish-language version of the poster. Continue Reading
On August 10, 2018, Massachusetts Governor Baker signed into law a bill regulating non-competes, limiting their enforceability and codifying express requirements they must meet. The law goes into effect on October 1, 2018, and Massachusetts now joins the likes of states such as Utah and Idaho who have also recently passed laws regulating employee non-compete agreements.
The new law, which applies to both employees and independent contractors, generally bans employment-related non-compete agreements in Massachusetts unless they meet certain statutory requirements. Specifically, the agreement must be in writing, signed by both the employer and employee, and state the employee has the right to consult counsel prior to signing. The employer must also provide notice of the agreement to the employee, the form and timing of which depends on when the employee is asked to sign the agreement: Continue Reading
Last October, we wrote about a Chicago ordinance requiring hotel employers to, among other things, equip hotel employees assigned to work in guestrooms or restrooms with portable emergency contact devices. The ordinance took effect July 1, 2018. Hotel employers in Chicago should ensure compliance with the mandates of the ordinance as penalties may reach $500 for each offense. Each day a violation continues is deemed a new offense. Continue Reading
On August 1, 2018, the National Labor Relations Board (“Board”) issued a Notice and Invitation to File Briefs, inviting the public to file briefs on whether the Board should overrule its 2014 decision in Purple Communications, Inc., 361 NLRB 1050 (2014), in which the Board held, absent special circumstances, employees who have been given access to their employer’s e-mail system have a right to use that e-mail system during non-working time for union organizing and other activities protected under Section 7 of the National Labor Relations Act (“Act”). The decision in Purple Communications overruled the standard set out in the Board’s 2007 Register Guard decision, where the Board held that employers may lawfully impose Section 7–neutral restrictions on employees’ nonwork-related uses of their email systems, even if those restrictions have the effect of limiting the use of those systems for communications regarding union or other protected concerted activity. Continue Reading