Employee Relations

• Trump 2.0

  11.07/Alert

  Former President Donald J. Trump won the U.S. presidential election on November 5, prevailing in the key “battleground states” necessary to win the Electoral College.

• California Employers Required to Have a Workplace Violence Prevention Plan

  09.25/Alert

  According to the Occupational Safety and Health Administration (OSHA), workplace violence affects nearly two million American workers annually. In 2021, 57 people died from acts of workplace violence in California.

• District Court Ruling Bars Federal Trade Commission Non-Compete Rule for the Near Term

  09.10/Alert

  The Federal Trade Commission (FTC) and the Non-Compete Clause Rule (Rule)
  Under Section 5 of the FTC Act, “[t]he Commission is [] empowered and directed to prevent persons, partnerships, or corporations … from using unfair methods of competition in or affecting commerce and unfair or deceptive acts or practices in or affecting commerce.” 15 U.S.C. § 45(a)(2). As such, Section 6 of the FTC Act, grants the FTC the power to “[f]rom time to time classify corporations and … to make rules and regulations for the purpose of carrying out the provisions” of the FTC Act.

• OSHA’s First Federal Heat Standard for Outdoor and Indoor Work

  08.27/Alert

  On July 2, 2024, the Occupational Safety and Health Administration (OSHA) issued a proposed rule for Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings. If finalized, the proposed Section 1910.148 would be OSHA’s first federal heat standard. It would apply to all employers conducting outdoor and indoor work in all general industry, construction, maritime and agriculture sectors where OSHA has jurisdiction.

• Landslide Election Victory for UK Labour Party Marks Seismic Shift in UK’s Political Terrain

  07.15/Alert

  Following 14 years of Conservative Party rule in the UK, Sir Keir Starmer’s Labour Party has formed His Majesty’s Government with a widely anticipated and substantial election victory at the ballot box on July 4, 2024, marking a seismic shift in the UK’s political terrain. There is now much speculation as to those areas on which Sir Keir Starmer will look to focus, and the earliest concrete signal we will see on his priorities will be the King's Speech, scheduled for the morning of July 17, 2024, which will set out the government's legislative agenda for the coming parliament.

• Summer Is Here, and So Is Cal/OSHA’s Indoor Heat Illness Standard (Almost)

  06.12/Alert

  With summer in full swing, California employers should prepare to comply with the California Occupational Safety and Health Administration’s (Cal/OSHA) new indoor heat illness standard.

• The Department of Labor Significantly Increases Salary Thresholds for Overtime Exemptions

  05.10/Alert

  On April 23, 2024, the Department of Labor’s Wage and Hour division issued a final rule (the “Rule”) increasing the salary thresholds for the exemption from the Fair Labor Standards Act’s overtime requirement for bona fide executive, administrative, and professional (EAP) employees. The Rule also increased the minimum salary for exemptions for highly compensated employees and changed the methodology the Department will use to determine the applicable salary thresholds in the future. Barring court action blocking the Rule, the increases will go into effect in two phases, with the first phase taking effect July 1, 2024, and raising the minimum salary by $8,320 annually above the current minimum, and the second phase taking effect on January 1, 2025, when the new minimum annual salary for EAP employees to be exempt from overtime will be $23,088 higher than it is today.

• Working Around OSHA’s New Walkaround Rule

  05.01/Alert

  Both employers and employees have the right to have a representative accompany OSHA compliance officers (CSHOs) during physical inspections of worksites for the purpose of aiding such inspections. (See 29 CFR 1903.8.) The new Worker Walkaround Designation Process (Walkaround Rule) clarifies that employees, like employers, have the right to designate a non-employee third party to be their representative. The Walkaround Rule places certain conditions on non-employee third-party representatives to ensure their presence aids the inspection.

• Employers Beware: FTC Announces Final Rule Banning Worker Non-Competes

  04.25/Alert

  On April 23, 2024, the Federal Trade Commission (FTC) voted along party lines to issue its Final Rule prohibiting almost all non-competes with workers—both those entered into in the past and in the future. The Final Rule is set to become effective 120 days after it is published in the Federal Register (the Effective Date). The Rule rests on the FTC’s authority to interpret and enforce sections 5 and 6(g) of the Federal Trade Commission Act (FTC Act), which prohibits unfair methods of competition.

• SCOTUS Relaxes Standards for Title VII Plaintiffs in Workplace Discrimination Claims

  04.19/Alert

  In Muldrow v. City of St. Louis, No. 22-193, 2024 WL 1642826 (U.S. Apr. 17, 2024), the U.S. Supreme Court ruled that an employee alleging that an involuntary lateral job transfer constituted workplace discrimination in violation of Title VII of the Civil Rights Act of 1964 need only show that the transfer resulted in “some harm,” rejecting as “extra-textual” any heightened threshold of harm required by certain lower courts. As Justice Elena Kagan held in the majority opinion, a Title VII plaintiff “does not have to show … that the harm incurred was significant. Or serious, or substantial, or any similar adjective.” This is because “Title VII’s text nowhere establishes that high bar.” Justice Kagan’s opinion was joined by Chief Justice Roberts and Justices Sotomayor, Gorsuch, Barrett and Jackson. Justices Thomas, Alito and Kavanaugh each filed concurring opinions.

• Cal/OSHA Approves Stricter Standards for Occupational Exposure to Lead

  02/27/2024

  On February 15, 2024, the California Occupational Safety & Health Standards Board approved revisions to regulations for occupational exposure to lead. (Employers in the construction industry are governed by 8 C.C.R. section 1532.1, and employers in general industry are governed by 8 C.C.R. section 5198.) The revisions are now with the Office of Administrative Law and are expected to go into effect on January 1, 2025.

• Proposed FAR Clause Prohibits the Use of Compensation History in Hiring and Requires That Federal Contractors and Subcontractors Post Salary Ranges in Job Postings

  02.05/Alert

  On January 30, 2024, the Department of Defense (DoD), General Services Administration (GSA), National Aeronautics and Space Administration (NASA) and Office of Federal Procurement Policy proposed a new rule to implement a new government-wide policy regarding the hiring of employees by federal contractors and subcontractors. The proposed rule seeks to implement President Biden’s Executive Order 14069. The new policy will apply to recruitment and hiring for any position to perform work “on or in connection” with any federal prime contract or subcontract.

• Employers Face Greater Misclassification Risk Under Resurrected Federal Independent Contractor Rule, Opening Door to Substantial Liability

  01.17/Alert

  The Fair Labor Standards Act (FLSA) requires employers to provide minimum wage and overtime pay to qualified employees—but not to independent contractors. Many employees, especially full-time employees, are also entitled to various statutory benefits, such as state law paid sick leave entitlements, workers’ compensation benefits, unemployment benefits, and to benefits under an employer’s ERISA-governed benefit plans, such as group health insurance policies and 401(k) plans. Failure to properly classify workers as employees can therefore result in substantial damages and penalties, even if the misclassification is unintentional, as described in more detail below. Correctly classifying workers is therefore of significant importance.

• New OSHA Electronic Injury and Illness Reporting Requirements for 2024

  10.24/Alert

  In July 2023, the Occupational Safety and Health Administration (OSHA) finalized its “Improve Tracking of Workplace Injuries and Illnesses” rule, which requires establishments with 100 or more employees in certain designated high-hazard industries (including agricultural, food production, manufacturing, retail, wholesale, transportation, medical and entertainment) to electronically submit information from their OSHA Form 300 (Log of Work-Related Injuries and Illnesses) and Form 301 (Injury and Illness Incident Report) once a year. Specifically, employers must submit detailed information about each recordable injury and illness, including the date, physical location and severity of the injury or illness; details about the worker who was injured; and details about how the injury or illness occurred. The rule is effective on January 1, 2024, and annual reporting is due March 2, 2024, through OSHA’s Injury Tracking Application (ITA).

• Practical Implications of the DOL’s Proposed Increase to the Minimum Salary Level for Exempt Employees

  09.08/Alert

  On August 30, 2023, the U.S. Department of Labor (DOL) issued a Notice of Proposed Rulemaking (NPRM), proposing to update and revise regulations under section 13(a)(1) of the federal Fair Labor Standards Act (FLSA), which governs minimum salary thresholds for employees to be exempt from the FLSA’s minimum and overtime wage requirements.

• California Courts Continue Allowing Employees and Consumers to Return to Court Following Late Payment of Arbitration Fees

  08.17/Alert

  Sections 1281.97 through 1281.99 of the California Code of Civil Procedure set strict penalties for nonpayment of arbitration fees in employee and consumer arbitrations. Under those sections, the drafter of an employee or consumer arbitration agreement is in material breach of the agreement if it does not pay arbitration fees within 30 days. Following such a breach, employees and consumers may withdraw their claim from arbitration and proceed in court, and are also entitled to their attorneys’ fees and costs incurred both during the abandoned arbitration and in withdrawing from arbitration.

• Pointers for Employers on the Proposed Regulations Interpreting the PWFA

  08.16/Alert

  The Pregnant Workers Fairness Act (PWFA), which went into effect in June 2023, requires employers, absent undue hardship, to provide reasonable accommodations to a qualified employee or applicant for employment for any known limitations related to, affected by or arising out of pregnancy, childbirth or related medical conditions.

• Virtual Examination of I-9 Documentation Now Permitted for Employers Enrolled in E-Verify

  08.02/Alert

  Federal immigration law requires that, within three days after an employee’s first day of employment, an employer must confirm an employee’s identity and work authorization by physically examining the employee’s proof of identity and employment authorization documents. Employers must then complete Section 2, “Employer Review and Verification,” of Form I-9. Since March 2020, due to the COVID-19 pandemic, the Department of Homeland Security (DHS) and the U.S. Citizenship and Immigration Services (USCIS) had temporarily authorized employers to conduct virtual inspections of the documentation required to complete new employees’ Forms I-9. In May 2023, however, the DHS announced that the virtual inspection option would end on July 31, 2023, and in-person, physical examination requirements would resume on August 1, 2023. In addition, employers would be required to re-inspect any remotely inspected I-9 documents by August 30, 2023.

• Adolph v. Uber Technologies, Inc.: Plaintiffs Compelled to Arbitrate Their Individual PAGA Claims May Still Litigate Representative PAGA Claims

  07.25/ Alert

  In Adolph v. Uber Technologies, Inc., the California Supreme Court ruled that plaintiffs who have been compelled to arbitrate their own individual Labor Code violations under the Private Attorneys General Act of 2004 (PAGA), Lab. Code, § 2698 et seq., continue to have standing to pursue other employees’ PAGA claims as their representative.

• New York Legislature Votes to Ban Non-Competes, Will Become Law if Governor Signs

  06.22/Alert

  On June 20,2023, the New York State Assembly passed a bill banning employee non-competes (A01278) in New York. The New York State Senate had already passed the companion bill (S3100A) earlier this month. If signed by Governor Hochul, the bill will take effect 30 days thereafter.

• U.S. Court of Appeals for the DC Circuit Allows Claims Based on Association CEO’s Comments About Employee Departure

  06.16/Alert | dc-circuit-allows-claims-ceo-employee-departure

  On May 23, 2023, the U.S. Court of Appeals for the District of Columbia issued a decision in the matter Wright v. Eugene & Agnes E. Meyer Foundation, et al., No. 22-7004 (May 23, 2023, D.C.Cir.), reversing a district court’s dismissal of a former employee’s breach of contract, 42 U.S.C. § 1981 (“Section 1981”), and defamation claims, in relation to an employer’s alleged violation of a severance agreement’s mutual non-disparagement clause. The Wright decision serves as a reminder that employers must carefully craft the scope of non-disparagement clauses and ensure that post-separation statements by officers and employees regarding any former employee are neutral and circumscribed. Executives and board members who try to explain away rumors or criticisms by making unfavorable comments about departed employees also expose themselves to potential personal liability for such remarks. The Court’s decision yields important lessons for how employers and associations can minimize the risk of finding themselves in similar legal jeopardy.

• AI Users Beware: Federal, State and Local Legislators and Regulators to Crack Down on AI-Related Employment Discrimination

  05.31/Alert

  According to a 2022 survey from the Society for Human Resource Management, approximately one in four organizations use automation and/or AI to support employment-related activities, such as recruitment and hiring. AI tools used in employment decision-making include chatbots that guide applicants through the application process, algorithms that screen resumes and predict job performance, and even facial recognition tools used in interviews to evaluate a candidate’s attention span. For employers, these tools may offer an efficient and effective way to recruit promising talent, but federal, state and local governments are increasingly focused on the potential for discrimination.

• Congress Contemplates Creating a New Federal AI Regulatory Agency

  05.26/Alert

  In a hearing of the Senate Judiciary Subcommittee on Privacy, Technology and the Law on May 16, multiple U.S. senators—including Senators Richard Durbin (D-IL), Lindsey Graham (R-SC), Peter Welch (D-VT) and Cory Booker (D-NJ)—supported the idea of a federal artificial intelligence (AI) agency to regulate the transformative technology.

• Outlook on AI and Civil Rights Law and Policy

  05.25/Alert

  The Administration’s October 2022 launch of the AI Bill of Rights: A Vision for Protecting Our Civil Rights was the first step toward cementing equity and civil rights with respect to artificial intelligence (AI) as core values upon which the Administration has built a series of guidance documents and executive actions.

• Where Employment and Trade Compliance Intersect—Protecting Your Company in a World of Dueling Enforcement Risks for Export Controls and Anti-Discrimination

  05.16/Alert

  On April 18, 2023, the U.S. Department of Justice (DOJ) announced a settlement agreement with GM to resolve allegations that the company violated the Immigration and Nationality Act (INA). The DOJ found that the company’s employment eligibility verification process violated U.S. law in part due to overbroad attempts to comply with export control laws. Specifically, the DOJ found that:

  During onboarding, GM required non-U.S. citizens who were lawful U.S. permanent residents, and who therefore are “U.S. persons” for export control purposes, to provide an unexpired foreign passport as a condition of employment, imposing a discriminatory barrier in the hiring process; and GM improperly combined its I-9 process to verify permission to work in the United States with its export compliance assessment, which required non-U.S. citizens to provide specific documents that were not strictly necessary to prove their permission to work.

• Don’t Let Bank Uncertainty Delay Payroll: Considerations for Employers

  03.16/Alert

  With bank uncertainty making headlines, we answer employers’ most frequently asked questions about the consequences of payroll delays, strategies for mitigating risk and more.

• New DOJ Clawback Policy Brings Compensation and Employment Questions Front and Center for Companies

  03.07/Alert

  On March 2, 2023, Deputy Attorney General (DAG) Lisa Monaco announced a new Criminal Division policy for Department of Justice (DOJ) prosecutors to consider the implementation of compensation clawback policies as an important factor in corporate criminal resolutions. This policy is aimed at incentivizing both public and private companies to incorporate clawback clauses into contracts and compensation policies for employees, officers and directors.

• NLRB Invalidates Common Confidentiality and Non-Disparagement Clauses in Severance Agreements

  02.28/Alert

  Section 7 of the National Labor Relations Act (NLRA) confers broad rights to non-supervisory employees to engage in “protected, concerted activity” for their “mutual aid and protection,” which generally includes discussing the terms and conditions of their employment both with other employees and, more generally, with the public (“Section 7 rights”). Section 8(a)(1) of the NLRA makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of” their Section 7 rights.

• Federal Court Ends California’s Ban on Mandatory Employment Arbitration Agreements

  02.22/Alert

  In 2019, California enacted Assembly Bill 51 (AB 51) which made it a criminal offense for an employer to require an employee or applicant to consent to arbitration as a condition of employment. In an effort to avoid preemption under the Federal Arbitration Act (FAA), an Act which bars states from treating arbitration agreements differently than other contracts, AB 51 included a provision stating that if the parties mutually entered into an arbitration agreement, it would be enforceable. Thus, an employer could be subject to criminal prosecution for requiring an employee to enter into an arbitration agreement, but if the employee signed the arbitration agreement, it would be enforced.

• Employment Law in the Golden State: 2023 Updates

  02.10/Alert

  As California employers update employee policies and handbooks for the coming year, it is critical that they are aware of new employment laws in 2022 and understand how these changes will potentially affect their operations in the year ahead. From key legislative, case law and wage-and-hour developments to “post”-pandemic pointers and the impacts of new and proposed federal laws, the following updates provide practical guidance to help employers ensure they are in compliance with the new laws that are generally applicable to most California employers.

• New OSHA Enforcement Guidance Could Subject Employers to More Citations and Increased Associated Penalties

  02.02/Alert

  On January 26, 2023, the Occupational Safety and Health Administration (OSHA) announced new enforcement guidance to effectively increase the number of citations it can issue. OSHA’s current typical practice is to issue a citation containing multiple “instances” of an alleged violation. For example, a citation alleging violation of a machine guarding standard will contain an instance for each machine not properly guarded. Following the new enforcement guidance, OSHA is now encouraged to issue a separate citation for each instance, naturally multiplying the associated penalties.

• Employers Take Note: FTC Releases Notice of Proposed Rulemaking Banning Worker Non-Competes

  01.06/Alert

  Citing its interest in promoting competition and opening up “better employment opportunities” for workers, the Biden Administration is moving forward with a proposal to prohibit a feature of many U.S. employment relationships valued by employers and of significant importance in M&A transactions: non-competition agreements. Rather than looking to Congress to enact legislation to achieve this goal, the Administration is relying on the authority of the U.S. Federal Trade Commission (FTC) to enforce and engage in rulemaking under existing antitrust laws.

• New York City’s Pay Transparency Law Takes Effect November 1, 2022: Are You Ready?

  10.25/Alert

  On May 12, 2022, New York City Mayor Eric Adams signed into law amendments to the New York City Human Rights Law (NYCHRL) now requiring pay transparency in job advertisements. This pay transparency law takes effect on November 1, 2022.

• New California Law Expands Pay Transparency and Reporting Requirements

  10.14/Alert

  As of January 1, 2023, California will require most employers to disclose “pay scale” information in job postings. SB 1162 also imposes a host of new reporting and pay transparency requirements for larger employers, including filing annual pay data reports beginning in May 2023.

• Modified DC Non-Compete and Anti-Moonlighting Law to Take Effect October 1, 2022

  09.28/Alert

  In January 2021, DC enacted a sweeping ban on almost all employer restrictions against employees engaging in other compensated work either during or after employment. In response to employer concerns, the applicability date of that law was repeatedly pushed back, so it never went into effect. On July 27, 2022, Mayor Bowser signed into law the Non-Compete Clarification Amendment Act of 2022 (the Act), which significantly updates and narrows the scope of the prior restrictions. Most notably, the Act:

• Federal Court Blocks Enforcement of Florida “Stop WOKE Act” 

  08.22/Alert

  The court finds that the addition to the Florida Civil Rights Act turns the First Amendment “upside down.”

• Workplace Safety Hazards in Retail Industry

  08.09/Alert

  OSHA has been turning its attention to workplace safety hazards in warehouses and retail stores.

• Department of Labor Proposes Rule to Give Service Employees a Right of First Refusal under Successor Contracts

  07.19/Alert

  To avoid displacement of current service employees, the proposed rule will require contractors and their subcontractors to offer qualified employees a right of first refusal of employment under the successor contract.

• Changes to DC’s Universal Paid Leave Program and a Forthcoming Maryland Paid Leave Program

  07.13/Alert

  As part of the Fiscal Year 2023 Budget Support Act of 2022, the District of Columbia Council has voted to amend the DC Universal Paid Leave Act (UPLA) in ways likely to please both employers and employees.

• See You in Court? Under New Federal Law, Sexual Harassment Claims Are Not Subject to Mandatory Arbitration

  03.07/Alert

  On March 3, 2022, President Biden signed HR 4445, also known as the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021,” into law, and it went into effect immediately. The Act, which is described more fully below, is consistent with President Biden’s “Agenda for Women,” wherein the Biden administration stated its determination to “end [] [] forms of workplace discrimination and harassment,” and end violence (including sexual assault) against women. Thus, although the Act is currently limited to sexual harassment and assault, the Biden administration will likely be looking to take action on other forms of discrimination and unfair employment practices in the future.

• Bipartisan Senators Introduce the Cyber Incident Notification Act of 2021

  07.27/Alert

  On July 21, 2021, Senator Mark Warner (D-VA), chair of the Senate Intelligence Committee, and a bipartisan group of co-sponsors including Senator Marco Rubio (R-FL) and Senator Susan Collins (R-ME), formally introduced the Cyber Incident Notification Act of 2021. In light of high-profile cybersecurity incidents such as the Colonial Pipeline attack, the Act aims to require companies and federal agencies to quickly report cybersecurity intrusions to the Federal Government.

• Recalculating the Cost of Lunch

  07.23/Alert

  The California Supreme Court unanimously determines that premium pay for missed meal and rest breaks must be based on the more inclusive “regular rate.”

• A Warning to Contract Counterparties: A Debtor Can Sell Your Fully Performed Contract Without Curing Defaults and Paying Your Claim in Full

  07.07/Alert

  There was no “silver lining” for a producer of the 2012 critically acclaimed film Silver Linings Playbook and his $400,000 claim to a portion of the film’s profits in a dispute before the Third Circuit Court of Appeals. See Spyglass Media Grp., LLC v. Bruce Cohen Prods., 997 F.3d 497 (3d Cir. 2021). Notwithstanding the purchase of film and related production/distribution rights and contracts in a bankruptcy sale and the buyer’s commitment to cure all defaults on the executory contracts acquired, the Third Circuit held that the producer had only an unsecured claim against the Weinstein Company’s estate because the producer’s contract was not executory. The decision serves as a stark reminder that contract counterparties do not always receive full payment on their claim when their contract is sold in bankruptcy. 

• DoD Issues Proposed Rule on Enhanced Debriefing Procedures

  05.24/Alert

  The Department of Defense (DoD) recently issued a proposed rule to implement Section 818 of the FY18 NDAA. Under Section 818, Congress required the DoD to issue new regulations in the Defense Acquisition Regulation Supplement (DFARS) on the procedures for enhanced debriefing rules within six months. 

• ASBCA Confirms the “Goldilocks Principle” in Government Contract Appeals

  05.05/Alert

  Contractors must ensure that they do not appeal a contracting officer’s decision too early or too late lest they find that the courts and board have no jurisdiction. Yet, the government continues to issue directions that provide no certainty on the issue and, indeed, serve only to muddle the question of what constitutes an appealable final decision. Last month, the Armed Services Board of Contract Appeals (ASBCA or Board) issued a decision in the appeal of Northrop Grumman Corporation, ASBCA No. 62189, dismissing the appeal for lack of jurisdiction and highlighted what these authors will refer to as “the Goldilocks Principle” for when contractors can appeal a contracting officer’s decision that certain costs are not allowable. Frustratingly, the Government often issues unclear decisions that can leave contractors wondering whether the timing for appeal is too early, too late or just right.

• President Biden Issues an Executive Order Increasing the Minimum Wage for Many Employees of Federal Contractors to $15.00

  04.28/Alert

  On April 27, 2021, President Biden signed an Executive Order raising the minimum wage paid by Federal contractors and subcontractors to $15.00 per hour, beginning on January 30, 2022. The Federal minimum wage currently is $10.95 per hour for all workers on Federal construction and service contracts, based on President Obama’s 2014 Executive Order 13658, which had raised that minimum wage to $10.10 per hour and provided for adjustment for inflation. These Executive Orders do not change the current minimum wage of $7.25 under the Fair Labor Standards Act (FLSA) applicable to non-exempt employees who do not work for government contractors, and to employees of government contractors who do not work on or in connection with Federal construction and service contracts.

• COVID-19 Business Interruption Losses: Time is of the Essence to Pursue Coverage

  02.12/Alert

  The United States declared a national emergency in response to COVID-19 on March 13, 2020, and states quickly followed with stay-at-home orders that impacted businesses and institutions nationwide. More than 10 months have passed since the COVID-19 pandemic emerged in the United States and the prevalence of the virus has had significant impacts, not only with respect to the number of people infected and lives lost, but also to the widespread physical damages and economic losses suffered by businesses.

• Congressional and Government Investigations in 2021: What to Expect from the Biden-Harris Administration and How to Prepare

  01.27/Alert

  Government investigations pose many risk management challenges. They are unpredictable, political and often public. If handled incorrectly, they can last for many years, spiral into multiple Congressional, criminal, and/or regulatory investigations at the state and federal levels, and generate serious reputational harm. Potential targets can take proactive steps to mitigate their risks.

• California Executive Power and Industrial Facilities in the Wake of COVID-19

  03.23/Alert

  The COVID-19 pandemic has rapidly become one of the world’s most serious public health challenges, and has caused unprecedented disruption to industries in the United States and across the globe. Industries doing business in California have felt the impacts more acutely than most, as the state has become one of the nation’s “hotspots” for new COVID-19 cases. These impacts have sparked numerous efforts by state and local authorities in California to attempt to address the virus, encompassing everything from suspension of all public gatherings, to mass cancellation of sports and entertainment events, to citywide quarantines.

• New York State Enacts Mandatory Sick Leave Law with Job Protection During COVID-19 Quarantine

  03.23/Alert

  On March 18, 2020, Governor Andrew Cuomo signed Senate Bill S8091 into law to provide sick leave and job protection for New York workers during the COVID-19 crisis. Under the new law, effective immediately, companies cannot fire or penalize employees who are unable to work while subject to “a mandatory or precautionary order of quarantine or isolation due to COVID-19.” The order must be issued by the state of New York, the department of health, local board of health, or any governmental entity with authority to issue such orders. The job protection lasts for the duration of the period that employees are self-isolating under a mandatory or precautionary order. Employees who are able to work remotely while under the “stay at home” orders and who are asymptomatic or not yet diagnosed are not covered by the new law.

• DC’s UPL Law Regulations Present Choices and Challenges for Employers

  02.11/Alert

  Universal Paid Leave Benefits Become Available in July
  On July 1, 2020, the District of Columbia’s Department of Employment Services (DOES) will begin administering paid leave benefits as part of the Universal Paid Leave Amendment Act. These benefits—called variously Universal Paid Leave (UPL) or Paid Family Leave (PFL) benefits—will permit eligible employees working in the District to receive partial wage replacement benefits from the D.C. government for qualifying absences from work. Lower-wage employees may receive 90% of their average weekly wage—up to $840 per week. Employees who are paid more than 150% of minimum wage will receive larger benefits checks, although reflecting a smaller percentage of their earnings, up to a maximum of $1,000 per week. The benefits will be funded through a 0.62% payroll tax imposed on covered employers that went into effect on July 1, 2019.

• Significant Changes Ahead for California Employers, Effective January 1, 2020

  11.21/Alert

  The New Year will bring with it many new legal requirements for California employers. Although much of the focus has been on the passage of AB 5 and its new, onerous standards for independent contractor classification, there are numerous other laws that employers must be aware of and take measures to comply with in advance of their January 1, 2020 effective date.

• IRS Reopens Determination Letter Program for Hybrid and Merged Plans

  05.29/Alert

  Since January 2017, the IRS has significantly limited the ability of employers to submit individually designed plan documents for approval under the IRS’s determination letter program. Newly established plans can still be submitted, and existing plans that have previously received a favorable determination letter can be submitted if the plan is being terminated, but all other existing plans have been prohibited from seeking IRS approval.

• The IRS Issues 83(i) Guidance: Opportunity to “Opt Out”

  04/15/2019

  Internal Revenue Code Section 83(i) was introduced as part as of the Tax Cuts and Jobs Act of 2017. Under Section 83(i), if certain requirements are satisfied, employees of private companies who receive nonstatutory stock options (NSOs) or restricted stock units (RSUs) may elect to defer federal income tax on the exercise of the NSOs or settlement of the RSUs for up to five (5) years (referred to as an 83(i) election).

• How Employers Should Respond to the Trump Administration’s Proposed Overtime Rule

  03.18/Alert

  On March 7, 2019, the U.S. Department of Labor (DOL) issued its much-anticipated Notice of Proposed Rulemaking (NPRM) for amending the federal Fair Labor Standards Act (FLSA) regulations for exemptions from overtime pay requirements for the so-called “white collar” exemptions. The Obama Administration had previously published a regulation that would have more than doubled the minimum salary level for executive, administrative, and professional employees to be classified as exempt from overtime and minimum wage requirements (the EAP exemption) and increased the minimum salary level by a third for highly compensated employees (the HCE exemption), with further automatic increases every three years (the “2016 Final Rule”). On November 22, 2016, just nine days before that regulation would have become effective, a United States District Court in Texas issued a nationwide preliminary injunction against enforcement of the 2016 Final Rule, followed by a permanent injunction on Aug. 31, 2017. The current salary minimum for the EAP exemption is $23,660, below the federal poverty level for a family of four, and there was widespread support among both employers and employees for increasing that minimum. Until publication of the NPRM, however, uncertainty reigned about what level the Trump Administration’s DOL would propose. For EAP employees, the DOL has proposed a minimum salary level almost at the midpoint between level sought by the 2016 Final Rule and the current level, and it has proposed raising the minimum salary for highly compensated employees above the salary level first stated in the 2016 Final Rule.

• Winning Say-on-Pay: Top Ten Executive Compensation Proxy Tips For 2019

  02.26/Alert

  As calendar year companies complete their Compensation Discussion & Analysis (CD&A) in their proxy statement for spring shareholder meetings, they may wish to consider the following tips for a favorable Say-on-Pay result:
   
  1.  Run the ISS CEO Pay-for-Performance Test Before Year End Decisions Are MadeThe pay-for-performance test of Institutional Shareholder Services, in part, compares TSR and CEO compensation against an ISS-constructed peer group. If relative shareholder return ranks in the lower tier of that peer group, ISS may criticize CEO pay that ranks at or above the peer group median and issue a no-vote recommendation. Companies should carefully consider the risk of a no-vote before setting year end pay. Such results may also behoove companies to summarize next year decisions, to the extent made, for helpful context.

• New York Employment Law Outlook 2019

  01.16/Alert

  2018 was a year of sweeping change for employers and employees in New York. In the wake of the #MeToo movement, New York State and New York City reacted quickly to pass a series of laws to reduce sexual harassment in the workplace. The New York Paid Family Leave Benefits Law went into effect, providing employees eight weeks of partially paid leave funded by employee paycheck deductions. New York City amended its Earned Sick Time Act to allow employees to take “safe leave” to seek redress for victims or family members of victims of sexual assault, domestic violence, or stalking.

• Pillsbury's Post-Election Outlook

  11.07/Alert

  The 2018 Midterm Election played out as most poll forecasters speculated. Although several races have yet to be decided, Republicans have retained control of the Senate, but lost at least 29 seats, allowing the Democrats to wrest back control of the House for the first time since 2010.

• 2018 Election Night Guide

  11.02/Article

  Pillsbury’s Political Law and Government Law & Strategies groups break down the need-to-know numbers for this year’s election. Pillsbury’s biennial Election Night Guide examines the potential outcomes for the 2018 Congressional and Governor’s races. Our Public Policy team is also preparing a post-election guide that will be useful in navigating potential changes in Congress.

• New EU Data Laws—What Nonprofit Organizations Need To Know

  04.23/Alert

  Nonprofit organizations can often handle large amounts of data originating in the EU. Though it is a common misconception that nonprofits are exempt from GDPR compliance, the fact is they are not.

• The Future of the ERISA Fiduciary Rule

  04.11/Alert

  With the future of the Fiduciary rule still uncertain, retirement plan fiduciaries must stay apprised of the rule's viability and carefully monitor the services provided by their plans’ investment advisors.

• Top Ten Emerging Trends in Pay Ratio Disclosure

  03.21/Alert

  Preliminary trends are emerging from the pay ratio disclosures filed by U.S. public companies in 2018.

• Recent and Upcoming Changes to 401(k) Plans

  03.08/Alert

  The rules governing 401(k) plans are steadily evolving. Both the Tax Cuts and Jobs Act (the Act) and the Bipartisan Budget Act of 2018 (the Budget) contain a number of changes to the 401(k) plan rules.

• Human Trafficking Raises Corporate Liability Concerns for the Hospitality Industry

  02.05/Alert

  Not sure if an anti-human trafficking compliance program is necessary for your business? A recent lawsuit illustrates just how important these programs can be.

• A Sexual Harassment Sea Change for Employers?

  01.12/Alert

  Thanks to movements like #MeToo and Times Up, workplace harassment victims may be more empowered than ever before to make their voices heard. Even companies with clearly established zero tolerance policies need to be prepared to address such crises publicly, or else be exposed to significant reputational damage.

• Department of Labor Changes Rules on Unpaid Internships

  01.11/Alert

  The U.S. Department of Labor has announced a new seven-factor test to determine whether an intern is entitled to payment under the FLSA’s minimum wage provisions.

• Five Things Employers Should Know about Tax Reform

  01.04/Alert

  The final Tax Cuts and Jobs Act will require employers to address a number of  changes to equity compensation and employee benefits laws. Here are five major ones.

• DOL Again Delays Implementation of ERISA Fiduciary Rule

  12.14/Alert

  The latest postponment comes amid Department of Labor concerns that financial institutions and advisors may incur undue expense. Is a more comprehensive revision--or total repeal--next?

• Prime Contractors Take Note of New California Law Imposing Liability for Subcontractors’ Employees’ Unpaid Wages

  11.22/Blog

  A new California law requires prime contractors on private projects to be as involved in monitoring their subcontractors’ payroll practices as their public works counterparts.

• Without Further Delay: The ERISA Fiduciary Rule

  06.09/Alert

  On April 7, 2017, the Department of Labor (DOL) published a final rule delaying the applicability date of the “Fiduciary” rule and certain related “Prohibited Transaction Exemption” rules until June 9, 2017. Although there was speculation as to whether the DOL would further delay the applicability date of the Rules, on May 22, 2017, the DOL issued Field Assistance Bulletin 2017-02 and Conflict of Interest FAQ (the May 2017 Guidance) confirming that the applicability date will remain June 9, 2017.

• Acquirers Beware: Salary History Bans Impact Employment Diligence and Arrangements

  10.16/Alert

  In a new law taking effect October 31, New York City has made it an unlawful for employers to inquire about prospective employees’ salary history (all compensation, benefits, bonuses and retirement plans), or to consider a job applicant’s salary history when determining compensation. Employers across the country should pay particular attention to developments in this growing area of law.

• House Judiciary Committee Votes to Advance Controversial ADA Amendment

  10.02/Blog

  The House of Representatives has proposed legislation that would limit Americans with Disabilities Act lawsuits based on a business’s failure to proactively remove obstacles that impede access to existing public accommodations. Disabled persons’ groups oppose the bill.

• Possible Further Delay of ERISA Fiduciary Rule

  08.21/Alert

  In August, the Department of Labor (DOL) and Secretary of Labor submitted a proposal to the Office of Management and Budget (OMB) to delay the applicability date of certain parts of the “Fiduciary” rule until July 1, 2019. While the full rule’s future is unclear, until the DOL issues further guidance, plan sponsors and named fiduciaries should expect that its remaining portions, including BICE and the Principal Transactions Exemption, will become applicable January 1, 2018.

• New York City’s “Freelance Isn’t Free” Act Also Isn’t Waivable

  08.03/Alert

  A New York City law that went into effect on May 15, 2017 requires any person or entity hiring an individual independent contractor who will perform work in New York City to put the terms of the independent contractor relationship in writing if the contractor will be paid $800 or more. This article reviews the final rules for implementing the Freelance Isn’t Free Act.

• Startups Beware: California Expands Workers’ Comp to Include Corporate Officers, Directors and Working Partners

  07.31/Blog

  In January 2017, the California legislature expanded the scope of mandatory Workers’ Comp coverage to include a business’s corporate officers, directors and working partners. This article outlines the new coverage requirements.

• PFLL Withholding Begins: New York Employers May Begin Deducting from Employees’ Pay to Fund Paid Family Leave

  07.06/Alert

  On January 1, 2018, New York’s Paid Family Leave Law (PFLL), which is funded entirely through payroll deductions and is the most expansive in the nation, will go into effect. New York employers should start withholding from employee paychecks and obtaining PFLL insurance in 2017, to prepare for full compliance.

• The Rapidly Evolving Legal Landscape for New York Employers

  05.24/Alert

  New York employers need to prepare for compliance with the most expansive paid leave law in the country and need to ensure compliance with New York’s wage transparency law and minimum wage and salary thresholds for exemptions from overtime, which are significantly higher than those under federal law.

• Human Rights and Global Supply Chains

  02.02/Alert

  Fashion retailers need to be vigilant to prevent human rights abuses in their supply chains whilst complying with their legal obligations.