As previously reported in a prior article, in May 2018, New York City Mayor Bill de Blasio signed into law the Stop Sexual Harassment in NYC Act (the “Act”). The Act provides, among other things, starting September 6, 2018, all New York City employers must display the New York City Commission on Human Right’s (“NYCCHR”) new anti-sexual harassment poster in a conspicuous place in the workplace and provide the information to employees at the time of hire. On August 10, 2018, the NYCCHR published an English-language version of the required poster, which can be found here. While the Act also requires the poster to be displayed in Spanish, the NYCCHR has yet to issue a Spanish-language version of the poster. Continue Reading
New Massachusetts Law Limits Non-Competes
Posted in Non-Competition CovenantsOn August 10, 2018, Massachusetts Governor Baker signed into law a bill regulating non-competes, limiting their enforceability and codifying express requirements they must meet. The law goes into effect on October 1, 2018, and Massachusetts now joins the likes of states such as Utah and Idaho who have also recently passed laws regulating employee non-compete agreements.
The new law, which applies to both employees and independent contractors, generally bans employment-related non-compete agreements in Massachusetts unless they meet certain statutory requirements. Specifically, the agreement must be in writing, signed by both the employer and employee, and state the employee has the right to consult counsel prior to signing. The employer must also provide notice of the agreement to the employee, the form and timing of which depends on when the employee is asked to sign the agreement: Continue Reading
Hands Off-Pants On Ordinance In Effect in Chicago; California May Be Next
Last October, we wrote about a Chicago ordinance requiring hotel employers to, among other things, equip hotel employees assigned to work in guestrooms or restrooms with portable emergency contact devices. The ordinance took effect July 1, 2018. Hotel employers in Chicago should ensure compliance with the mandates of the ordinance as penalties may reach $500 for each offense. Each day a violation continues is deemed a new offense. Continue Reading
National Labor Relations Board Signals That It May Leave Purple Communications Black and Blue
On August 1, 2018, the National Labor Relations Board (“Board”) issued a Notice and Invitation to File Briefs, inviting the public to file briefs on whether the Board should overrule its 2014 decision in Purple Communications, Inc., 361 NLRB 1050 (2014), in which the Board held, absent special circumstances, employees who have been given access to their employer’s e-mail system have a right to use that e-mail system during non-working time for union organizing and other activities protected under Section 7 of the National Labor Relations Act (“Act”). The decision in Purple Communications overruled the standard set out in the Board’s 2007 Register Guard decision, where the Board held that employers may lawfully impose Section 7–neutral restrictions on employees’ nonwork-related uses of their email systems, even if those restrictions have the effect of limiting the use of those systems for communications regarding union or other protected concerted activity. Continue Reading
New NYC Law Requires Employers to Engage in “Cooperative Dialogue” for Workplace Accommodations
As of October 15, 2018, NYC employers with four or more employees will be required to engage in a “cooperative dialogue” with a person who may be entitled to a workplace accommodation. The “cooperative dialogue” resembles the “interactive process” that most employers are familiar with under the Americans with Disabilities Act, but the NYC law applies to more than disability-related accommodations and, importantly, requires employers to document the cooperative dialogue process. We have prepared this short Q&A to help employers understand their obligations under the new law. Continue Reading
California Supreme Court Issues Narrow Holding In De Minimis Case, Leaving Many Issues Unresolved
On July 26, 2018, the California Supreme Court issued its long awaited decision in Troester v. Starbucks Corporation (S234969) on whether California wage and hour law recognizes the de minimis doctrine established by the United States Supreme Court in Anderson v. Mt. Clemens Pottery Co. 328 U.S. 680 (1946) for wage claims arising under federal law. Under the federal de minimis rule, small amounts of otherwise compensable work time are not actionable when tracking and paying for it is impractical. Anderson held: “When the matter in issue concerns only a few seconds or minutes of work beyond the scheduled working hours, such trifles may be disregarded. Split-second absurdities are not justified by the actualities of working conditions or by the policy of the Fair Labor Standards Act. It is only when an employee is required to give up a substantial measure of his time and effort that compensable working time is involved.” Id. at 692. In deciding whether compensable work time is de minimis, federal courts consider “(1) the practical administrative difficulty of recording the additional time; (2) the aggregate amount of compensable time; and (3) the regularity of the additional work.” See e.g. Lindow v. U.S. 738 F.2d 1057, 1063 (9th Cir. 1984); Kellar v. Summit Seating Inc., 664 F.3d 169, 176 (7th Cir. 2011); Kosakow v. New Rochelle Radiology Assocs., P.C. 274 F.3d 706, 719 (2d Cir. 2001). Ten minutes or less is generally considered de minimis under federal law. See Lindow, 738 F.2d at 1062. The issue before the California Supreme Court in Troester (certified from the Ninth Circuit) was whether California wage and hour law recognizes the same or a similar rule. Even though de minimis worktime is (by definition) small and insignificant, whether or not a de minimus exception to the requirement to pay for all time worked applies has major implications because relatively small amounts of unpaid wages have the potential to trigger substantial penalties and liability for plaintiffs’ attorneys’ fees in California. Continue Reading
New York City Temporary Schedule Change Law Now in Effect
Posted in Wage and HourAs of July 18, 2018, New York City law requires employers to grant employees up to two temporary schedule changes per calendar year for qualifying “personal events.” We have prepared this short Q&A summary to help employers understand the requirements of the new law. Continue Reading
National Labor Relations Board Seeks To Increase Participation in Alternative Dispute Resolution Program With New Pilot Program
On July 10, 2018, the National Labor Relations Board (“NLRB” or “Board”) announced the start of a new pilot program to increase participation in its Alternative Dispute Resolution (“ADR”) program. Established in 2005, the Board’s ADR program provides free mediation services to parties who wish to attempt to settle cases that are pending before the Board through the use of a mediator from the Federal Mediation and Conciliation Service or the ADR program director. It is the Board’s position that the ADR program provides parties with greater control over their cases and more “creative, flexible, and customized settlements,” and will save the parties time and money. A settlement is reached in approximately 60% of the cases that participate in the ADR program, and the Board has always approved the settlement reached between the parties. However, regardless of the purported benefits of the ADR program and its “proven track record,” the Board’s Office of the General Counsel stated in its October 15, 2015 Memorandum OM 16-02 that “many cases that are excellent candidates for the program are not brought to the program by counsel for respondent or the General Counsel.” Continue Reading
California Court Reaffirms And Extends Rounding Rules
Posted in Class Actions, Wage and HourIn AHMC Healthcare, Inc. v. Superior Court, the California Court of Appeal, Second Appellate District, Division Four, extended a prior line of California cases holding that California law follows federal law with respect to evaluating the lawfulness of time clock rounding systems. You can read our prior article about See’s Candy Shops I here. Specifically, California follows 29 C.F.R. § 785.48, which permits employers to compute employee worktime by rounding “to the nearest 5 minutes, or the nearest one-tenth or quarter of an hour,” so long as the rounding system adopted by the employer “is used in such a manner that it will not result, over a period of time, in failure to compensate the employees properly for all the time they have actually worked.” Continue Reading
Preparing For New Calif. Hotel Housekeeper Regs
Posted in California Legislative UpdateThis post originally appeared in Law360 on June 14, 2018.
Earlier this year, the California Occupational Safety and Health Administration Standards Board and Office of Administrative Law approved a “Hotel Housekeeping Musculoskeletal Injury Prevention Program” that may result in sweeping changes to hospitality employers’ written policies and training practices concerning workplace injuries. The regulations take effect July 1, 2018, and affected employers have until Oct. 1, 2018, to complete their initial “work site evaluation.”
