The United States Equal Employment Opportunity Commission (“EEOC”) has published proposed revisions to the requirements associated with the Employer Information Report (EEO-1). The EEO-1 already requires employers with more than 100 employees to provide certain employment information to the federal government, including the ethnic, racial and gender breakdown of their employees.  The proposed revisions would require employers to include in their EEO-1 reports information regarding aggregate data on pay ranges and hours worked. 
Continue Reading EEOC Proposes New Pay Data Reporting Requirements for Employers

For the first time since 1990, the Occupational Safety and Health Administration (OSHA) has been authorized to increase its civil penalties.  The provision was inserted into the expansive Bipartisan Budget Act of 2015, which was signed this month by President Barack Obama.  
Continue Reading It’s Time to Review and Update Safety and Compliance Regimens – OSHA Penalties Set to Surge in 2016

On September 10, 2015, the Fair Chance Act (the “Act”) was introduced by a bipartisan group of legislators from both houses of Congress. The Act would prohibit federal contractors and agencies from inquiring into an applicant’s criminal history prior to a conditional offer of employment.  The proposed legislation would allow an employer to conduct a criminal history check after the conditional offer, and does not prohibit an employer from revoking the conditional offer on the basis of such findings.
Continue Reading Proposed Federal “Ban the Box” Legislation Receives Bipartisan Support

In Kaye v. Rosefielde (A-93-13), the New Jersey Supreme Court recently held that an employer need not demonstrate that it suffered an economic loss in order to recoup the salary of a disloyal employee.  The Court explained that courts have the equitable power to require disgorgement for any pay periods during which the employee was disloyal.
Continue Reading New Jersey Supreme Court Holds That an Employer Can Sue a Disloyal Employee To Clawback Salary Without Showing Economic Loss

In furtherance of its agenda to extend minimum wage and other wage-hour protections as broadly as possible, on July 15, 2015, the Department of Labor issued a far-reaching interpretive memorandum expressing the DOL’s belief that “most workers [classified as independent contractors] are employees under the FLSA’s broad definitions.”
Continue Reading DOL Says Most Independent Contractors Actually Employees

On March 25, 2015, the Supreme Court of the United States issued a long-awaited decision in Young v. United Parcel Service, Inc., wherein the Court vacated the Fourth Circuit’s decision to affirm UPS’s successful motion for summary judgment.  The plaintiff, Peggy Young, had worked as a part-time driver for United Parcel Service (“UPS”).  Part of her job required her to be able to lift packages of up to 70 pounds.  After becoming pregnant in 2006, however, Young’s doctor advised her that she should not lift more than 20 pounds.  UPS maintained a light duty policy (the “Policy”) which provided accommodations to employees who suffered on-the-job injuries or had disabilities covered under the Americans with Disabilities Act (“ADA”).  Young requested an accommodation under the Policy for her lifting restriction, but UPS refused, causing Young to stay home for most of her pregnancy without pay.  Young eventually filed a discrimination lawsuit, relying on the Pregnancy Discrimination Act (“PDA”), an amendment to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, (“Title VII”), claiming that UPS failed to accommodate the lifting restriction stemming from her pregnancy while still “accommodat[ing] other drivers who were similar in their . . . inability to work.”
Continue Reading Supreme Court Crafts Modified McDonnell Douglas Analysis to Handle Pregnancy Discrimination Claims

In December 2014, the National Labor Relations Board (“NLRB”) announced new rules governing “Representation—Case Procedures.”  The new rules—set to take effect in just under a month, on April 14, 2015—have been commonly referred to as “quickie” or “ambush” election rules, as they will significantly increase the speed at which the union election process moves.  The Republican-led Congress has been working to block the new rules from taking effect, but the expectation is that even if such a bill passes both the House and the Senate, it is likely to be met with a Presidential veto.  Legal challenges to the new rules are also pending in federal courts, including one lawsuit by the U.S. Chamber of Commerce and other trade organizations in the U.S. District Court for Washington D.C. (Case No. 1:15-cv-9), and another by a group of trade associations in U.S. District Court for the Western District of Texas (Case No. 1:15-cv-26).  As of this writing, however, no court has acted to stop or delay implementation of the rules, and although motions for summary judgment are pending in both cases, no hearings have been set and it is not clear when either Court will rule on the respective motions.  At this point, employers should operate under the assumption that the new rules will indeed take effect on April 14, 2015.
Continue Reading NLRB “Quickie Election” Rule Accelerates the Union Organizing Process

On January 14, 2015, the Supreme Court of New Jersey decided which independent contractor classification test should be used in determining a person’s employment status under the New Jersey Wage Payment Law (WPL) and Wage and Hour Law (WHL).  In Hargrove v. Sleepy’s, LLC, No. A-70-12 (072742) (N.J. Jan. 14, 2015), the court concluded that the “ABC” test should be used for classifying a person as either an employee or independent contractor.
Continue Reading Supreme Court of New Jersey Rules on Test for Independent Contractors

UPDATE: California Supreme Court grants review in Augustus v. ABM Security

On April 29, 2015, the California Supreme Court granted review of Augustus.  Accordingly, the published decision is no longer citable and the Supreme Court will decide whether an employer must relieve employees of all duty during paid rest breaks.  We will keep you posted as the case progresses.

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In 2012, the California Supreme Court issued its highly-anticipated opinion in Brinker Restaurant Corporation, et al. v. Superior Court, 53 Cal. 4th 1004, which provided substantial clarity to California employers regarding the obligation to provide meal and rest breaks. While the Brinker court held that employers need only make such breaks “available” to employees, it left a number of questions unanswered. One open issue was whether employees must be “relieved of all duty” during paid rest breaks. On January 29, 2015, the California Court of Appeal, Second District, published a landmark decision in Augustus v. ABM Security Services holding that employees are not “working” while on-call during rest breaks.


Continue Reading Employers Are Not Required to Relieve Employees of All Duty During Rest Breaks

Mid-way through 2012, the Hotel Association of New York City and the New York Hotel & Motel Trades Council, AFL-CIO (the “Union”), renewed a seven-year collective bargaining agreement known as the Industry Wide Agreement, or IWA.  While the IWA controls nearly all aspects of the employer-employee relationship for covered hospitality organizations, it does much more and can potentially bind the unsuspecting.  One important part of the agreement which hospitality employers must heed is the “accretion clause,” which has the potential to bind non-signatory parties to the terms of the IWA.  An already powerful document, the renewed IWA increased the reach of the accretion clause to not only signatory corporations and individuals, but also to related companies and entities.  This can complicate an already multi-layered industry whose members often use third-parties to manage or operate their businesses—as well as potentially increase the labor costs exponentially for those businesses.
Continue Reading AFL-CIO’s Industry Wide Agreement May Have Wide Reach in Hospitality Industry