Proposed Massachusetts Consumer Data Privacy Law Takes Lessons From Illinois’ Biometric Law

Amy HarwathBy Amy Harwath on Posted in Privacy

After Illinois passed its Biometric Information Privacy Act in 2008 (“BIPA”), other states have begun enacting legislation regulating business activities relating to biometric information. Texas and Washington were next, followed by California in 2018. Now, Massachusetts has proposed legislation regulating the use of a consumer’s personal and biometric information.

Bill SD.341, “an Act relative to consumer data privacy,” draws much of its language from the California Consumer Privacy Act of 2018 (“CCPA”), and also has some parallels to BIPA. However, there are several differences between the Bill and BIPA worth noting. Continue Reading

The NLRB Continues To Chip Away At Individual Protected Concerted Activity

Keahn MorrisJohn BolestaBy Keahn Morris and John Bolesta on Posted in National Labor Relations Act, National Labor Relations Board, NLRB

An employee’s right to engage in concerted activities for the purpose of mutual aid and protection is basic to the National Labor Relations Act’s (NLRA) Section 7. Although these concepts, “concertedness” and “mutual aid or protection”, sound similar and are often closely related, they are distinct statutory requirements, each calling for two different inquiries and requiring proof. Whether an employee’s conduct qualifies as “concerted” depends on if and how their actions can be linked to those of their coworkers. In contrast, the concept of “mutual aid or protection” focuses on the goal of concerted conduct, chiefly, whether the employee(s) involved are seeking to improve their conditions of employment or otherwise improve their lot as employees. Continue Reading

SCOTUS To Rule On Whether Title VII Prohibits Sexual Orientation And Gender Identity Discrimination

Lindsay Colvin StoneBy Lindsay Colvin Stone on Posted in Discrimination, SCOTUS

On April 22, 2019, the United States Supreme Court granted certiorari in a trio of cases challenging the scope of Title VII of the Civil Rights Act of 1964’s (“Title VII”) prohibition on discrimination on the basis of sex.  The definition of “sex” in Title VII, and particularly whether the term incorporates sexual orientation and/or gender identity, is currently the subject of uncertainty and a hotly debated judicial and administrative divide.  Specifically, while the Equal Employment Opportunity Commission (“EEOC”) and United States Court of Appeals for the Second and Seventh Circuits have each determined that the term “sex” encompasses sexual orientation, the United States Court of Appeals for the Eleventh Circuit has held that Title VII does not prohibit discrimination on the basis of sexual orientation.  While the court has notably declined to hear cases aimed at resolving the meaning of “sex” in Title VII in recent years, its grant of certiorari signals that the Court is now prepared to address the issue. Continue Reading

New York City Council Passes Legislation Banning Marijuana Testing of Job Applicants

Sean KirbyBy Sean Kirby and Jamie Moelis* on Posted in Discipline, Discrimination, Hiring, New York Employment Legislation

On April 9, 2019, New York’s City Council passed legislation, available here, which will prohibit employers from requiring prospective employees to submit to testing for tetrahydrocannabinols (THC), the active ingredient in marijuana, as a condition of employment. If, as expected, Mayor Bill de Blasio signs the law into effect, the New York City Human Rights Law will be amended to make it a discriminatory practice to require pre-employment marijuana testing of employees in New York City. Continue Reading

Aiming for Clarity, DOL Proposes to Update the FLSA’s “Joint Employer” Regulations

Garen DodgeKeith GoodwinBy Garen Dodge and Keith Goodwin on Posted in Department of Labor, Fair Labor Standards Act (FLSA), New York Employment Legislation

Hoping to clarify when entities should be treated as “joint employers” under the FLSA, the Department of Labor (“DOL”) recently announced its intent to revise its so-called “joint employer” regulations under the Fair Labor Standards Act (“FLSA”). Under the FLSA, covered employers must pay nonexempt employees at least the federal minimum wage for all hours worked and overtime wages for all hours worked in excess of 40 hours in a workweek. Since 1939, the DOL has recognized that two or more entities may sometimes “jointly” employ a single employee and share legal responsibility for that employee’s wages for hours worked for either entity. However, the DOL has not formally addressed the conditions under which “joint employment” relationships exist since 1958. Continue Reading

It’s Perfectly Clear Once Again— NLRB Limits “Perfectly Clear” Successor Exception

Keahn MorrisJohn BolestaBy Keahn Morris and John Bolesta on Posted in National Labor Relations Act, National Labor Relations Board

The circumstances under which an asset buyer has a duty to bargain with an incumbent union may be changing. In NLRB v. Burns Security Services, Inc., 406 U.S. 272 (1972), the Supreme Court held that an employer who purchases the assets of a unionized business (and who may ultimately qualify as a successor employer with a duty to recognize and bargain with a union) is still free to set the initial wages, hours and working conditions of those it offers employment to unless the new employer clearly plans to retain all of its predecessor ’s unionized employees, rendering the new employer what is known as a “perfectly clear” successor. According to the Burns court, “perfectly clear” successors are not free to establish initial terms without first consulting the union representing the workforce the new employer intends to hire. Where the new employer is not a “perfectly clear” successor, it is free to establish any initial terms it wishes, provided the terms satisfy the minimum requirements of law. However, where a new employer is required to consult with the incumbent union before fixing their initial employment terms, the starting point of such consultations are the terms found in the predecessor’s collective bargaining agreement. Given this framework, the issue of whether or not a new employer qualifies as a “perfectly clear” successor is of critical economic and strategic importance. Continue Reading

The Potential For Stemming BIPA Suits Waits Another Day

Shawn D. FabianBy Shawn D. Fabian on Posted in Attorneys' Fees and Costs, Class Actions, Hiring, Illinois Employment Legislation, Labor and Employment

In the aftermath of the Illinois Supreme Court’s Rosenbach decision, Illinois employers have faced a wave of class action litigation filed under the Biometric Information Privacy Act (“BIPA”). Employers hoping for relief from the statute’s private right of action must wait for another day (or another session) as Senate Bill 2134 (“SB 2134”) did not report out of committee by the March 28, 2019 deadline. Continue Reading

Deputy Lawyer; WGA Tries Preemption Route in ATA Dispute

Richard KopenheferMichelle JuenBy Richard Kopenhefer and Michelle Juen on Posted in Collective Bargaining, National Labor Relations Act, National Labor Relations Board

The ongoing dispute between the Writers’ Guild of America (“WGA”) and the Association of Talent Agencies (“ATA”) took a new turn recently when the WGA announced that it would use the authority granted to it under the National Labor Relations Act (“NLRA”) to “preempt” California state law and effectively “deputize” attorneys and managers to perform acts that only licensed talent agencies can provide under California state law. While an interesting and novel approach, the underpinnings of the argument appear to be flawed and could place managers and lawyers who attempt to provide licensable talent agency services in danger—to such an extent that lawyers (in particular) may find their “deputized” activities to be outside of the coverage of their malpractice insurance policies[1]. Continue Reading

Equal Pay Act Amendment Passes House of Representatives

Eric RaphanLindsay Colvin StoneBy Eric Raphan and Lindsay Colvin Stone on Posted in Discrimination, ERISA, Fair Labor Standards Act (FLSA), Fair Pay and Safe Workplaces, Payroll, Reporting Requirements, Wage and Hour

On March 27, 2019, the U.S. House of Representatives voted to pass the Paycheck Fairness Act, an act designed to amend and strengthen the existing federal Equal Pay Act (“EPA”), 29 U.S.C. § 206(d). The Paycheck Fairness Act, which passed the House by a vote of 242-187 on a largely party-line basis, is sponsored by Representative Rosa DeLauro (D-CT), and would make sweeping changes to existing law. Continue Reading

Did New Jersey Just Try to Ban Employment Arbitration Agreements?

James HaysBy James Hays on Posted in Arbitration Agreements, Discrimination, New Jersey Legislative Update

On March 18, 2018, the New Jersey Law Against Discrimination (NJLAD) was amended to prohibit prospective waivers of substantive and procedural rights or remedies relating to a claim of discrimination, retaliation, or harassment and that provisions in employment contracts waiving such rights shall be deemed against public policy and unenforceable. The new amendment further provides that “no person shall take any retaliatory action, including but not limited to failure to hire, discharge, suspension, demotion, discrimination in the terms, conditions, or privileges of employment, or other adverse action, against a person, on grounds that the person does not enter into an agreement or contract that contains a provision deemed against public policy.” Continue Reading

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