The Trump NLRB Finally Issues Its Much Awaited “Joint Employer” Rule

Today, the National Labor Relations Board (NLRB or Board) followed through on its earlier promise and issued its Joint Employer Final Rule, officially reversing the Board’s 2015 Browning-Ferris Industries (BFI) decision[1] and conclusively establishing the legal ground rules under which otherwise separate business entities may be legally joined and determined to be joint employers for the purposes of the National Labor Relations Act (NLRA or Act).  Prospective only in effect, this new rule will be published in the Federal Register and go into effect on April 27, 2020. Continue Reading

DHS Issues New I-9 Form — Required by May 1 for New Hires and Reverifications

DHS recently issued a new I-9 form. This new version is mandated starting May 1. The old form expired last year and DHS had temporarily extended its validity. The new form is essentially the same as the older version. DHS made minor technical updates to the instructions. All of the pre-existing I-9 rules and regulations remain intact. The new I-9 form can be found at:  https://www.uscis.gov/i-9

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Proposed Bill Would Ban Employee Non-Compete Agreements in Illinois

On February 6, Representative Natalie Manley filed House Bill 4699 with the Illinois House of Representatives. If enacted, the bill would amend the Illinois Freedom to Work Act (“IFWA”) with respect to the legality of non-compete agreements. Currently, under the IFWA, employers are prohibited from entering into non-compete agreements with low-wage employees. Low-wage employees are those whose earnings do not exceed the greater of either the minimum hourly rate or $13.00 per hour. HB4699 would amend the Act to remove the “low-wage” requirement and prohibit employers from entering into covenants not to compete with any employee. Continue Reading

The Heart of Employee Rights Under CCPA: Attorney General Modifies Guidance

Transparency and communication are cornerstones of a successful relationship—and the employment relationship is no exception.  The California Consumer Privacy Act (“CCPA”) came into effect on January 1, 2020, bestowing two landmark rights on California employees, applicants, contractors, emergency contacts, and dependents: (1) the right to notice about what personal information an employer collects and the purpose of collection; and (2) the right to sue with statutory damages if sensitive data is compromised.

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New Jersey Significantly Modifies the New Jersey WARN Act to Require Severance Pay for Mass Layoffs

On January 21, 2020, New Jersey Governor Phil Murphy signed Senate Bill 3170 (the “amendments” or “NJ WARN Act”) into law making New Jersey the first state in the nation to require severance pay for mass layoffs.  The law, scheduled to go into effect on July 19, 2020, will make it dramatically more expensive for companies to conduct a large scale reduction in force in New Jersey. Continue Reading

Is BIPA Preempted? – Illinois Appellate Court Considers Workers’ Compensation Exclusivity Question

As class actions brought under Illinois’ Biometric Information Privacy Act (“BIPA”) proceed through litigation, defendants have made a variety of arguments attempting to push courts to define the limits of the somewhat vague statute. The Illinois Supreme Court’s 2019 decision in Rosenbach v. Six Flags Entertainment Corp. was the first opinion to provide interpretive guidance of BIPA, and specifically, what type of injury is required for a person to have standing to bring a private right of action under the statute. (We explain BIPA and the Rosenbach opinion here.) Continue Reading

Expect More Pro-Business Rulings From NLRB This Year

This article originally appeared on Law360 on January 27, 2020.

The current National Labor Relations Board was extremely kind to employers during 2019, issuing a multitude of precedent-setting decisions and new rules that reversed many of the excesses of the Obama board and returned the National Labor Relations Act to its more neutral legislative intent.

The board’s current composition will change this coming August when member Marvin Kaplan’s term expires. But with the Republicans in control of both the White House and the Senate, at least, through the end of the year, 2020 is shaping up to be another year of decisions and rules that give employers further hope that additional business-friendly decisions are on the way.

These anticipated cases and rule changes include but certainly are not limited to the following. Continue Reading

The Cost and Burden of Discovery for California Employers Will Likely Increase in 2020

A new change to California’s Civil Discovery Act has all of the trappings of a burdensome and costly requirement for employer defendants litigating in California state court. In addition to a litany of new California employment laws discussed in prior blog posts, Governor Gavin Newsom also signed into law SB 370, which became effective on January 1, 2020. SB 370 now requires the producing party in a civil litigation to identify the specific document request number to which documents are responsive. Although this new requirement will likely increase defense costs for many employers, as we discuss below, it can also be used to help streamline document demands while providing greater opportunities to incorporate technological solutions into the discovery process. Continue Reading

New Jersey Court Commands Cannabis Reimbursement in Workers’ Compensation Dispute

In a case of first impression, the New Jersey Appellate Division determined that employers in the state must reimburse employees for medical cannabis following a workplace accident, despite federal prohibitions against cannabis distribution.  The January 13, 2020 decision in Hager v. M&K Construction, Case No. A-0102-18T3, is the first time a court in the state has required reimbursement for a cannabis prescription in the workers’ compensation context, and may signal a fresh judicial focus on the scope of lawful medical cannabis use in the employment context both in New Jersey and in states with similar laws.

The Hager decision has clear implications for New Jersey employers, who are now required to reimburse injured employees for medical cannabis (at least under circumstances similar to those presented in the case).  Employers in other states that have legalized medical cannabis but have yet to rule on the interplay between the Controlled Substances Act (“CSA”) and state law in workers’ compensation disputes should also take note in the event that similar reimbursement requests arise.

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The Time Is Now for Employers in Illinois to Abide by New Laws

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

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