In 2022, Washington D.C. voters passed Initiative 82, or the “District of Columbia Tip Credit Elimination Act,” which later became law in February 2023. As we previously reported, the law will gradually phase out the “tip credit” that allows employers to pay tipped employees a lower wage while using gratuities to cover the difference between the lower wage and Washington D.C.’s minimum wage. Under this law, the tip credit is set to be gradually phased out by 2027, at which time employers will be required to pay tipped employees the Washington D.C. minimum wage.Continue Reading Washington D.C. Attorney General Offers Guidance for Restaurant Employers Amidst Spike in Service Fees

On September 29, 2023, the U.S. Equal Employment Opportunity Commission issued long-awaited enforcement guidance on workplace harassment. The “Proposed Enforcement Guidance on Harassment in the Workplace,” published in the Federal Register on October 2, 2023, advises employers on handling new workplace realties, including LGBTQ rights, online misconduct, abortion, and a number of different types of harassment. Continue Reading EEOC Issues Long-Awaited Guidance on Harassment in the Modern Workplace

On September 6, 2023, New York Governor Kathy Hochul signed legislation amending the New York Penal Law making wage theft a criminal larceny. Under the penal code, “[a] person steals property and commits larceny when, with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof.” N.Y. Penal Law § 155.05(1). The amendment adds “compensation for labor services” to the definition of “property” applicable to larcenies. Id. § 155.00(1).Continue Reading New York Makes Wage Theft a Criminal Larceny in New Amendment to Its Penal Law

On August 4, 2023, the New York legislature introduced Senate Bill 07623 (“S07623”), which would dramatically restrict employers’ ability to use both electronic monitoring and automated employment decision-making technology in the state. As currently written, S07623 would apply to all New York employers regardless of size, including an employer’s labor contractors. While S07623 is currently being reviewed by the Rules Committee and still must work its way through the legislative process, it is expected to pass in some form. Because S07623 would create significant new obligations and restrictions for New York employers, they should take note of its requirements and track its progress.Continue Reading Rage Against the Machine: New York Bill Would Dramatically Limit Employers’ Ability to Use Electronic Monitoring and Automated Employment Decision Tools

On August 30, 2023, the National Labor Relations Board (the “Board”) released a pair of decisions: Wendt Corporation, 372 NLRB No. 135 (2023) and Tecnocap, LLC, 372NLRB No. 136 (2023), overruling different aspects of the 2017 decision in Raytheon Network Centric Systems, 365 NLRB No. 61 (2017).[1] According to the Board, it reaffirmed and preserved the long-standing principles of the defense of past practice that employers have utilized to escape a finding of a violation of 8(a)(5) of the National Labor Relations Act (the “Act”) when they have implemented unilateral changes to the terms and conditions of employment for employees who are represented by a union.Continue Reading Pair of Board Decisions Significantly Limit Employers’ Power to Act Unilaterally and Past Practice Defense

On May 26, 2023, New York City Mayor Eric Adams signed into law an amendment to the New York City Human Rights Law (NYCHRL) that bans employment discrimination on the basis of an individual’s height and/or weight. The amendment thus further expands the comprehensive list of characteristics already protected under the NYCHRL. The law will become effective November 22, 2023.Continue Reading Beyond Appearances: New York City Enacts Legislation Prohibiting Discrimination Based on Height and/or Weight

On August 31, 2023, the National Labor Relations Board (“NLRB” or “Board”) adopted a broader test for what is considered “protected concerted activity” under the National Labor Relations Act (“NLRA” or the “Act”). Section 7 of the NLRA protects employees’ right to engage in concerted activities for the purpose of mutual aid or protection, otherwise known as “protected concerted activity” or “PCA.” Whether an employee’s conduct qualifies as “concerted” depends on whether their activity is linked to those of other employees. On the other hand, whether the employee’s activity is for “mutual aid or protection” focuses on whether the employee(s) involved are seeking to improve their conditions of employment. This standard applies to union and union-free settings. Continue Reading NLRB Expands Scope of What Is Considered Protected Concerted Activity in Workplaces

As you have no doubt seen in the news, and may have even experienced first-hand, there have been extreme weather conditions throughout the country, including fires, hurricanes, tornadoes, and floods. When natural disasters strike and employees cannot work because of them, companies are faced with numerous employment-related issues that require immediate attention. In addition to various federal laws being implicated, including those below, state-specific employment laws may also be triggered, and a unionized workforce may also prompt additional considerations. Continue Reading Employers Under Fire: How to Address Employee Pay and Related Issues When Faced with Natural Disasters

On August 21, 2023, the California Supreme Court held in Raines v. U.S. Healthworks Medical Group that a business entity acting as an employer’s agent can be held directly liable under California’s Fair Employment and Housing Act (FEHA) for claims of employment discrimination. Continue Reading California Supreme Court Finds That an Employer’s Third Party Agents May Be Held Directly Liable for Violations of California’s Fair Employment and Housing Act

The Pregnant Workers Fairness Act (PWFA), which was signed into law on December 29, 2022, went into effect on June 27, 2023. The EEOC has started to accept PWFA charges and has issued guidance and resources to help employers comply with the expanded requirements. On August 11, 2023, the EEOC also published a Proposed Rule to implement the PWFA, which outlines the agency’s interpretation of the PWFA, and includes specific examples of possible reasonable accommodations. Public comments concerning the Proposed Rule can be submitted until October 10, 2023.Continue Reading Pregnant Employees More Protected Than Ever as the PWFA Goes into Effect and the EEOC Releases Resources, Guidance, and Proposed Regulations