On January 7, 2021, the U.S. Department of Labor (“DOL”) announced its final rule (the “Final Rule”) setting the standard to determine whether an individual is an employee or an independent contractor under the Fair Labor Standards Act (“FLSA”). The employee versus independent contractor debate has garnered significant attention over the years as more workers desire the flexibility that comes with contractor status. While the Final Rule – the DOL’s first codification of the independent contractor test – offers businesses, workers, regulators, and courts predictable guidance, it is unlikely to remain in its current form since it does not take effect until over one month after President-elect Biden takes office. Nonetheless, employers and businesses should understand the import of the Final Rule and continue to monitor federal and state law developments on this important topic.
Continue Reading U.S. Department of Labor Finalizes New Rule Setting Forth Test to Assess Employment Versus Contractor Status; But Will It Survive Under the Biden Administration?

In yet another decision concerning gig economy businesses, the New York Supreme Court, Appellate Division, Third Judicial Department upheld a decision of the Unemployment Insurance Appeal Board (the “Board”), which held that Uber exercised sufficient control over its drivers to qualify as their employer.  Accordingly, it found Uber to be liable for unemployment insurance contributions with respect to the drivers at issue.
Continue Reading Battle Over Rideshare Worker Classification Continues: New York Supreme Court Holds Uber Drivers Are Employees, Entitled to Unemployment Insurance

Frontline workers of certain large grocery and pharmacy retailers in Los Angeles County and other municipalities across the state may soon receive an additional $4.00 to $5.00 an hour in “hero pay” or “hazard pay” during the COVID-19 pandemic.
Continue Reading California Municipalities Move Closer to Requiring Hazard Pay for Grocery and Pharmacy Workers

For much of the ongoing COVID-19 pandemic, many California employees have utilized leave entitlements through federal, state, and local paid sick leave statutes and ordinances.  As of December 31, 2020, however, the federal Families First Coronavirus Response Act (“FFCRA”), California’s COVID-19 supplemental paid sick leave (“CSPSL”) — and many local supplemental paid sick leaves (“LSPSL”) — have expired.  With coronavirus cases still surging nationwide and no additional guidance on the new exclusion pay requirements under the Division of Occupational Safety and Health’s (“Cal/OSHA”) COVID-19 emergency temporary standards (“ETS”), California employers are left wondering what paid leave laws may apply to their employees in 2021.
Continue Reading What the Expiration of COVID-19 Paid Leave Laws Means for California Employers

The New York State Paid Sick Leave law (“NYSPSL”) and the amendments to the New York City Paid Safe and Sick Leave law (“ESSTA”) expanding employees’ paid sick leave entitlements
Continue Reading New Year, New Rules: New York Employees May Begin Taking Paid Sick Leave January 1, 2021

On December 22, 2020, the U.S. Department of Labor (DOL) issued its final rule modifying federal regulations concerning compensation for “tipped employees.”  The new final rule follows 2018 federal legislation, which amended the Fair Labor Standards Act (FLSA) to, among other things, prohibit employers from keeping their employees’ tips “for any purposes, including allowing managers or supervisors to keep any portion of employees’ tips” even if they do not claim a tip credit.

Continue Reading Share The Tip Jar: Department of Labor Finalizes Rule Opening Tip Pooling To Back-of-the-House Workers

The Equal Employment Opportunity Commission (EEOC) released its long-awaited COVID-19 vaccine guidance for employers on December 16, 2020, providing answers related to workplace requirements about COVID-19 vaccines. With COVID-19 vaccinations underway in the U.S., the deployment poses complex questions for employers determining whether to mandate vaccines for all employees and how to manage such mandates. Although the EEOC acknowledges that federal employment laws do not prevent employers from following guidelines from public health authorities, the administration of vaccines to employees raises legal issues employers should consider. This article discusses the EEOC’s new guidance and the process required for employers mandating COVID-19 vaccines for their workforces.
Continue Reading EEOC Takes a Shot at COVID-19: Unvaccinated Employees Can be Excluded From the Workplace

Employers operating, even on a limited basis, in Colorado should be aware of Colorado’s recent wage disparity and discrimination bill, which takes effect in 2021 and imposes widespread requirements related to record-keeping, disclosure, and transparency.

In May of 2019, Colorado Governor Jared Polis signed the Equal Pay for Equal Work Act into law.  The Act will go into effect on January 1, 2021.  The Act was enacted to address pay disparities affecting women and minorities, and includes several provisions aimed at preventing wage discrimination, such as:
Continue Reading What Employers Need to Know About Colorado’s New Equal Pay Act

On November 16, 2020, California implemented an accelerated application of its Blueprint for a Safer Economy metrics. Under the Blueprint Framework, every county in California is assigned to a tier based on its test positivity and adjusted case rate. Each tier has its own set of restrictions. Three days later, on November 19, 2020, the state issued a limited Stay at Home Order.
Continue Reading California Department of Public Health Issues New Statewide Stay At Home Order Linked to ICU Bed Capacity

On November 11, 2020, Governor Cuomo signed an amendment (the “Amendment”) to the New York State Worker Adjustment and Retraining Notification Act (“NY-WARN Act”).  The Amendment significantly expands the governmental entities that an employer must notify concerning a NY-WARN triggering event, such as a mass layoff, plant closing, reduction in hours, or relocation.
Continue Reading New York State Amends WARN Act to Require Additional Notifications

On November 19, 2020, the California Occupational Safety and Health Standards Board unanimously adopted emergency temporary standards on COVID-19 prevention in the workplace.  For much of the pandemic, California’s Division of Occupational Safety and Health (“Cal/OSHA”) has advised employers to follow its general and industry-specific guidance on various measures to implement to minimize the risk of employees’ exposure to COVID-19.  However, the new emergency standards will be binding and enforceable against nearly all California employers.  The emergency standards will become effective immediately on November 30, 2020, if approved as expected by the Office of Administrative Law (“OAL”) after the required 10-day review period.  Thus, employers must act quickly to ensure they are in compliance with the new standards and the requirement to prepare and implement a written COVID-19 Prevention Program.
Continue Reading Cal/OSHA Adopts New COVID-19 Emergency Standards Requiring Immediate Action by Employers in California