On March 22, 2023 Jennifer Abruzzo, General Counsel (“GC”) of the National Labor Relations Board (“NLRB” or the “Board”) issued a memorandum intended to assist the Regions in responding to inquiries regarding the Board decision in McLaren Macomb, 372 NLRB No. 58 (2023).
On February 2, 2023, the California Court of Appeal issued an important follow-up decision to the United States Supreme Court’s decision in Viking River Cruises, Inc. v. Moriana, — U.S. —, 142 S. Ct. 1906 (2022). Galarsa v. Dolgen California, LLC, — Cal. Rptr. 3d — , 2023 WL 2212196 (2023),addresses whether a plaintiff alleging claims under the California Private Attorneys General Act of 2004 (PAGA) retains standing to assert claims premised on California Labor Code violations suffered by other employees when the claims arising from alleged violations suffered by the plaintiff are compelled to arbitration. The Court of Appeal ordered Galarsa published on February 24, 2023, making the decision binding on state trial courts for the time being.
The Fair Labor Standards Act of 1938 (“FLSA”) created the right to a minimum wage and overtime pay. The FLSA also provides exemptions to overtime pay requirements for certain employees. Under the “bona fide executive” exemption, “highly compensated employees” are exempt from overtime if performing at least one qualifying job duty. However, on February 22, 2023, the United States Supreme Court, in its 6-3 decision in Helix Energy Solution Group, Inc. v. Hewitt, clarified that highly compensated employees paid on a “day-rate” do not qualify for this exemption because a day-rate does not satisfy the salary basis test.
On March 3, 2023, Governor Kathy Hochul signed a series of amendments to the New York Pay Transparency Law (“NYPTL”) into law. As we previously reported, the NYPTL takes effect on September 17, 2023 and will require covered employers to include the following information in advertisements for internal and external “job, promotion, or transfer opportunities”:
Continue Reading New York Amends Statewide Pay Transparency Law
As we previously reported, the National Labor Relations Board (“NLRB” or “Board”) under President Biden is working to undo much of any employer-friendly actions taken during the previous administration. On February 21, 2023, the Board continued in its trend and wiped away a Trump-era ruling which gave employers certain latitude in drafting and executing severance agreements with their employees. Specifically, the Board, in a divided decision, ruled employers can no longer offer severance agreements containing clauses that (i) prevent employees from making disparaging remarks about their former employer or (ii) compel departing employees to keep the contents of the severance agreement confidential.
Recently, Illinois became the third state to pass a mandatory paid time off law called the “Paid Leave for All Workers Act” (the “Act”), which grants employees a minimum of 40 hours of paid time off per year for any reason. Only Nevada and Maine provide similarly sweeping mandatory paid leave. Governor Pritzker has indicated he will sign the legislation. This new law, which would be effective January 1, 2024, will have a major impact on the landscape of paid leave in Illinois. It affects nearly everyone, its uses are unlimited, and it comes with new reporting and record-keeping requirements, as well as civil penalties for non-compliance. Though employers may provide more generous paid leave than the Act requires, the Act sets the new minimum standard for paid time off across the state.
Continue Reading Time to Update Your Policies: Illinois Passes Sweeping Paid Leave Legislation
Imagine paying millions to acquire a company only to later discover the restrictive covenants in the employment agreements of high-level executives were unenforceable. That’s precisely what happened in Intertek Asset Integrity Management. In Intertek, Texas’s Twelfth Court of Appeals held a company Vice President’s non-compete was unenforceable by the purchaser-entity because the underlying employment agreement lacked an assignment clause. Such language, if included, would have permitted the seller to transfer the contract’s rights and obligations without the employee’s consent. Assignability clauses are frequently buried in the “miscellaneous” section of agreements and—too often—omitted. Businesses who overlook these terms in Texas employment contracts do so at their peril.
On Tuesday January 10, 2023, the Equal Employment Opportunity Commission (“EEOC”) publicly released its Draft Strategic Enforcement Plan (“SEP”) for fiscal years 2023-2027. The SEP describes the EEOC’s top enforcement priorities, making it critical information for employers around the country.
Continue Reading EEOC Announces Enforcement Priorities for 2023-2027
In a victory for the plaintiffs’ bar, the Illinois Supreme Court has ruled that all claims under Illinois’s Biometric Information Privacy Act (“BIPA”), 740 ILCS 14/1, et seq., are subject to a five-year statute of limitations. For years, litigants and courts have grappled with whether BIPA claims must be brought within one, two, or five years of an alleged BIPA violation. The Court’s long-awaited decision in Tims v. Black Horse Carriers, Inc., 2023 IL 127801 (Ill. Feb. 2, 2023), puts an end to that pervasive uncertainty.
Continue Reading Illinois Supreme Court Rules All BIPA Claims Are Subject to Five-Year Time Limit
A five year long saga appears to be coming to a close as Washington D.C.’s alternative minimum wage for tipped employees is set to begin phasing out in May 2023. Under the new D.C. law, the minimum wage for tipped workers will rise incrementally until July 1, 2027, when their base wage will equal the minimum wage for other D.C. workers. D.C. joins seven other states that have eliminated the lower minimum wage for tipped employees – including Alaska, California, Minnesota, Montana, Nevada, Oregon, and Washington State.
The new year begins with one of the most anticipated labor cases on the high court’s docket in decades. On January 10, 2023, the U.S. Supreme Court heard oral argument in Glacier Northwest, Inc. v. International Brotherhood of Teamsters Local Union No. 174 to decide whether the National Labor Relations Act (“NLRA” or the “Act”) preempts state court lawsuits for tort damages caused by unions during strikes. Employers should gain much greater clarity into whether they can seek relief from such conduct via a damages lawsuit. If the U.S. Supreme Court finds that such conduct is not preempted and may be litigated in state court, such a ruling would go far in protecting employers’ interests in contentious labor disputes and potentially shift the balance of power toward employers during these disputes.