On June 13, 2022, the Ninth Circuit Court of Appeals held in Johnson v. WinCo Foods Holdings, Inc, et al. that class members who were not yet employed by WinCo were not entitled to compensation for the time required to take a pre-employment drug test, nor was WinCo required to cover the travel expenses associated with undergoing the test.

Continue Reading Time Is Not Always Money: Ninth Circuit Holds That Pre-Employment Drug Testing Is Not Compensable Under California Law

Since President Biden’s July 2021 direction to the Federal Trade Commission (“FTC”) to “curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility,” the FTC has ratcheted up its scrutiny of and investigations into non-compete agreements and other restrictive covenants. Now, the FTC has expanded beyond post-employment restrictive covenants to tackle “sale of business” non-competes. Most recently, the FTC voted in favor of a deal-changing proposed order against ARKO Corp. related to its 2021 acquisition of sixty fuel outlets from Corrigan Oil Company.

Continue Reading Buyer (and Seller) Beware: The FTC Is Coming for Your M&A Non-Competes

On June 6, 2022, a unanimous United States Supreme Court issued another key decision interpreting the Federal Arbitration Act (“FAA”) that will have a significant impact on certain employers going

Continue Reading United States Supreme Court Rules Certain Airline Employees Exempt From Federal Arbitration Act

On May 12, 2022, the Equal Employment Opportunity Commission (“EEOC”) issued guidance addressing the application of the Americans with Disabilities Act (“ADA”) to employers utilizing software, algorithms, and artificial intelligence in hiring and employment decisions.  Produced in connection with the EEOC’s launch of its Initiative on Artificial Intelligence and Algorithmic Fairness in October 2021, the EEOC’s latest guidance reflects its goal of ensuring that employers utilizing technology in hiring and employment decisions are complying with federal civil rights laws.  Notably, the guidance was issued a few days after the EEOC filed a complaint against a software company alleging age discrimination, potentially signaling similar actions related to the use of artificial intelligence in the employment context.  Below are some key takeaways on the new guidance.

Continue Reading EEOC Issues Guidance Regarding How Employer Software and Artificial Intelligence May Discriminate Against Individuals With Disabilities

For those larger Illinois employers who have not yet reported payroll and diversity data to the Illinois Department of Labor (the “IDOL”), now may be the time.  The IDOL recently issued guidance to help employers navigate their reporting requirements (the “Guidance”).

Continue Reading Now is the Time for Employers to Report Pay Equity Data to the Illinois Labor Department

On July 13, 2022, San Francisco’s amended Family Friendly Workplace Ordinance (FFWO) goes into effect.  All employers who conduct business and have employees working in the City and County of San Francisco or employees who telework, will need to comply with the FFWO.  It gives employees the right to request “flexible or predictable work arrangements” to assist with caregiving responsibilities.  The amendment creates significant changes to the existing FFWO – it enlarges the scope of an employer’s obligation under the ordinance, while also making it easier for employees to obtain modified schedule arrangements so they can effectively work and perform their caregiving responsibilities with relative ease.  Covered employers should take note of these changes to avoid scrutiny from the San Francisco Office of Labor Standards Enforcement (OLSE) and costlier penalties.

Continue Reading Reminder: San Francisco’s Family Friendly Workplace Amended Ordinance Takes Effect July 2022

On May 23, 2022, in Naranjo v. Spectrum Security Services, Inc., P.3d (2022), the California Supreme Court issued an important wage-and-hour decision.  In Naranjo, the Court held that meal break premiums that an employer pays to an employee for missed, late, or short meal breaks constitute wages.  Consequently, an employer must report those premium payments on an employee’s wage statement pursuant to Labor Code section 226 and must promptly pay any owed premiums when an employee terminates employment or face waiting time penalties under Labor Code section 203.  Naranjo also concluded that the California Constitution’s default prejudgment interest rate of seven percent applies to calculating the prejudgment interest on claims for meal and rest break premiums.

Continue Reading California Supreme Court Holds Meal Period Premiums Are “Wages” and May Trigger Wage Statement and Waiting Time Penalties

On May 13, 2022, a law requiring publicly held corporations headquartered in California to have women on the board of directors was enjoined from being enforced and declared unconstitutional after a bench trial in Los Angeles Superior Court.  In Crest v. Padilla, a judge ruled that the law violated the Equal Protection Clause of the California Constitution because it created a suspect gender classification without a compelling state interest, and the law was not necessary or narrowly tailored to achieve the State’s goals of remedying gender discrimination or benefiting the economy. 

Continue Reading Court Enjoins Law Requiring California Businesses Have Women on Their Board of Directors

In March, U.S. Department of Treasury issued its annual General Explanations of the Administration’s Revenue Proposals, commonly known as the “Green Book.”  Among other revenue proposals, the Treasury addressed the treatment of on-demand pay arrangements or earned wage access (EWA) programs, which have risen in popularity in recent years (previously discussed in our Labor and Employment Blog).  EWA programs generally allow employees to access accrued wages before the end of their regular pay cycle.
Continue Reading Treasury Department Proposes Non-Loan Status for Earned Wage Access

Over the past two years, employee mobility seems to be at an all-time high.  In fact, the labor market is so fluid that pundits and experts often refer to it as the “Great Resignation.”  Although employee mobility can be a great opportunity for both employees and prospective employers, employers hiring new employees should always beware of potential problems such as restrictive covenants, which may follow an employee to a new job.
Continue Reading Void vs. Voidable: The Distinction That Can Make or Break a Tortious Interference Claim in Light of the Great Resignation