As featured in #WorkforceWednesday: Health care employers face unique challenges and considerations when deciding whether to litigate non-compete agreements with physicians. However, in such a quickly evolving legal landscape, the decision to take the matter to court is not always clear.
In this episode of Spilling Secrets, Epstein Becker Green attorneys Katherine G. Rigby, Erik W. Weibust, Daniel L. Fahey, and Jill K. Bigler discuss the unique challenges involved in litigating physician non-competes.
Maryland is poised to join the growing list of jurisdictions that have enacted pay transparency requirements for job postings, which includes jurisdictions such as California, Colorado, Hawaii, Illinois, New York, Washington State, and Washington D.C. House Bill 649 was passed by the General Assembly earlier this month, and if signed by the Governor, will take effect on October 1, 2024.
Maryland’s Current Pay Transparency Law
Maryland’s current wage history and wage range law that went into effect on October 1, 2020, already requires employers to disclose the wage range for a ...
As featured in #WorkforceWednesday: This week, we’re learning more about the Occupational Safety and Health Administration’s (OSHA’s) final rule on safety inspections, new COVID-19 guidance from the Centers for Disease Control and Prevention (CDC), and minimum wage updates from California (CA), New York City (NYC), and Virginia (VA).
Recently, the Sixth Circuit found that the Fair Credit Reporting Act (“FCRA”) preempted a former employee’s state law defamation claim against his former employer. While the FCRA can impose burdensome requirements on the entities that fall within its scope, including consumer reporting agencies (“CRAs”), furnishers, or users of consumer reports, the FCRA can also serve as a shield against certain state law tort claims.
In McKenna v. Dillion Transportation, LLC, plaintiff, a truck driver named Frank McKenna, sued his former employer, Dillon Transportation, LLC, for ...
As featured in #WorkforceWednesday: This week, we’re taking a look at the Department of Labor’s (DOL’s) new white-collar overtime exemption and worker classification rules and the U.S. government’s updated race and ethnicity categorizations.
New York City’s salary transparency law, which officially took effect in November 2022, requires “an employment agency, employer, or employee or agent thereof” to include a “good faith” salary or hourly wage range for every job, promotion, or transfer opportunity advertised for positions within New York City or involving work to be performed within its jurisdiction. Employers beware: New York City is now actively enforcing this salary transparency law through enforcement actions.
Between October and December 2023, the New York City Commission on Human Rights ...
In an earlier article (found here), we discussed how a federal district court’s decision that mere 501(c)(3) status can trigger obligations under Title IX created shock waves throughout the private independent school community. A recent ruling by the United States Court of Appeals for the Fourth Circuit has reversed that decision, holding that tax-exempt status is not federal financial assistance for Title IX purposes.
The plaintiff in Buettner-Hartsoe v. Baltimore Lutheran High Sch. Ass’n (4th Cir., Mar. 27, 2024) was a student who alleged that she was sexually harassed at ...
The California Division of Occupational Safety and Health (Cal/OSHA) has issued its anticipated model Workplace Violence Prevention Plan (for non-health care settings). As we previously noted here, SB 553 added California Labor Code Section 6401.9, which requires virtually all California employers to have a written Workplace Violence Prevention Plan (WVPP) in place by July 1, 2024, either as a stand-alone section in their Injury and Illness Prevention Program (IIPP) or as a separate document.
Among other things, Cal/OSHA’s model WVPP provides some concrete examples of ...
As featured in #WorkforceWednesday: Efforts to address pay disparities have led to an increase in pay equity legislation that shows no signs of slowing down.
In this episode, Epstein Becker Green attorneys Kimberly Carter and Ann Knuckles Mahoney shed light on the dynamic shifts in pay equity laws across the nation.
From emerging trends to pivotal developments, discover how certain states are spearheading efforts to champion equal pay and enforce stringent pay data reporting requirements.
In a recent decision affirming summary judgment in favor of defendant Human Resources Agency of New Britain, Inc. (the “Agency”), the Connecticut Appellate Court (decision.pdf) provided employers with useful guidance about managing disabled employees who are also qualified medical marijuana users, and appropriately requiring reasonable suspicion drug testing.
Background
In early 2018, the Agency hired Alyssa Bartolotta (“Bartolotta”) as a teaching assistant in its early childhood division. As part of her onboarding, Bartolotta acknowledged receipt of an ...
As featured in #WorkforceWednesday: As college basketball madness sweeps across the nation this March, we’re seizing the opportunity to explore the intriguing intersection of trade secrets law and the sports world.
In this episode of Spilling Secrets, Epstein Becker Green attorneys Peter A. Steinmeyer, James P. Flynn, Daniel R. Levy, and Susan Gross Sholinsky appeal to both sports fans and lawyers alike to examine the strategic use of non-compete agreements across various sports. From scrutinizing non-competes in football and dissecting no-poaching arrangements in golf to unraveling compelling trade secrets in boxing, the team embarks on an examination of the legal dynamics shaping competitive sports.
This springtime, Washington, D.C. employers may want to spruce up their compliance checklists to stay ahead of new pay transparency obligations. On January 12, 2024, Mayor Bowser signed the Wage Transparency Omnibus Amendment Act of 2023 (the “Act”), which modifies the Wage Transparency Act of 2014. The Act imposes new pay disclosure requirements for job postings, prohibits employer inquiries into an applicant’s wage history, and directs employers to post a new notice in their workplaces. Like most legislation in D.C., the Act was subject to review for a period of 30 ...
As featured in #WorkforceWednesday: With virtual terminations on the rise, what steps should employers take to ensure they are prepared and compliant if an employee secretly records their termination?
Epstein Becker Green attorneys Marc A. Mandelman and Lauri F. Rasnick tell us more about the current landscape.
As featured in #WorkforceWednesday: This week, we’re concentrating on the flurry of challenges that federal agencies—such as the U.S. Department of Labor (DOL), the National Labor Relations Board, and the Occupational Safety and Health Administration (OSHA)—have recently faced in the courts. We’ll also discuss potential changes to the U.S. Supreme Court’s (SCOTUS’s) controversial Chevron deference doctrine.
As featured in #WorkforceWednesday: Restrictive covenants are evolving at a record pace right now at both the federal and state levels. Employers are struggling to keep up, and that’s especially true in the health care industry.
In this episode of Spilling Secrets, our podcast series on the future of non-compete and trade secrets law, Epstein Becker Green attorneys Katherine G. Rigby, Erik W. Weibust, Glenn P. Prives, and Denise Merna Dadika discuss restrictive covenants in relation to physician groups and other health care organizations employing direct care ...
As featured in #WorkforceWednesday: The SECURE 2.0 Act revolutionized retirement planning by simplifying and expanding retirement and health plan benefits.
Over a year after the legislation became law, provisions are still rolling out. So, what’s new in 2024?
Epstein Becker Green attorneys Cassandra Labbees and Mason Gardner tell us more about the recent updates and guidance on the SECURE 2.0 Act.
More than a decade ago, Epstein Becker Green (EBG) created its complimentary wage-hour app, putting federal, state, and local wage-hour laws at employers’ fingertips.
The app provides important information about overtime, overtime exemptions, minimum wages, meal periods, rest periods, on-call time, and travel time, as well as tips that employers can use to remain compliant with the law and, hopefully, avoid class action, representative action, and collective action lawsuits and government investigations.
As the laws have changed over the years, so too has EBG’s free ...
As featured in #WorkforceWednesday: This week, we present a California labor and employment update featuring the upcoming deadline for non-compete notice rules, workplace violence regulations by the California Division of Occupational Safety and Health (Cal/OSHA), and the recent Estrada decision's implications for the Private Attorneys General Act (PAGA).
As featured in #WorkforceWednesday: This week, we’re running down the U.S. Department of Labor’s (DOL’s) recently released final rule on worker classification under the Fair Labor Standards Act (FLSA), the challenges faced by the National Labor Relations Board’s (NLRB’s) joint-employer rule, and SpaceX’s groundbreaking suit against the NLRB.
As featured in #WorkforceWednesday: On an employee’s first day, employers can begin protecting trade secrets by ensuring they maintain ownership over all intellectual property (IP) that the employee will create.
In this episode of Spilling Secrets, our special podcast series on the future of non-compete and trade secrets law, Epstein Becker Green attorneys A. Millie Warner, James P. Flynn, Hemant Gupta, and Adelee Traylor dive into the key steps employers can take to maintain IP ownership, including using the right verb tense in employee IP provisions.
As featured in #WorkforceWednesday: This week, we’re breaking down the California Privacy Protection Agency (CPPA) Board’s new regulations impacting employers:
Last month, the CPPA Board met to discuss several new regulations that could impact employers in California and beyond. Among them were draft regulations for automated decision-making technology, an initiative that’s part of a larger trend across the country to regulate the use of technology in the workplace. Additionally, new cybersecurity audit regulations were discussed. Epstein Becker Green attorneys Nathaniel Glasser and Brian G. Cesaratto explain these new draft regulations and the potential impacts on employers.
As featured in #WorkforceWednesday: This week, we’re detailing the National Labor Relations Board’s (NLRB’s) request for Starbucks to reopen shuttered stores; how big tech is retreating from diversity, equity, and inclusion (DEI) programs; and why employers may start scrapping college requirements for certain positions in 2024.
As featured in #WorkforceWednesday: With such a tumultuous year of labor and employment updates behind us, it begs the question, “What lies ahead in 2024?”
In this special New Year's episode, Epstein Becker Green attorneys share insights and predictions for the 2024 labor and employment space, addressing important topics such as maintaining compliance, promoting mental health, navigating protected concerted activity policies, and staying abreast of the latest developments in artificial intelligence and non-compete guidance.
In this special year-end episode of Employment Law This Week, recorded live from our 42nd Annual Workforce Management Briefing in New York City, Epstein Becker Green attorneys discuss the biggest employment law trends and crucial workforce changes in 2023, covering everything from non-competes and National Labor Relations Board actions to union dynamics, cybersecurity, and the impacts of artificial intelligence.
Podcast: Amazon Music / Audible, Apple Podcasts, Audacy, Deezer, Google Podcasts, iHeartRadio, Overcast, Pandora, Player FM, Spotify.
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Employment Law This Week® gives a rundown of the top developments in employment and ...
On November 10, 2023, Texas Governor Greg Abbott signed into law Senate Bill 7, which prohibits private employers in Texas from imposing vaccine mandates that require employees and/or contractors to obtain a COVID-19 vaccine. The law, which takes effect on February 7, 2024, is similar, though not identical to Florida laws passed in 2021, and amended in 2023, also limiting employers from requiring vaccination against COVID-19, as a condition of employment.
Texas’ Ban on Employer-Mandated Vaccines
Texas’ new law will prohibit employers from adopting or enforcing a ...
With the potential “tendency of many to ‘overshare,’ documenting everything from their breakfast to their favorite Marvel™ villain” on social media, as recognized in at least one court opinion[1], perhaps unsurprisingly, some employers might consider social media to be a valuable source for insight about applicants or employees. Assembly Bill A836/Senate Bill S2518A (the “Personal Accounts Law”), signed into law by Governor Kathy Hochul on September 14, 2023, however, will soon place new limits on New York employers that seek access to an employee’s or ...
As previously noted, the Illinois Biometric Information Privacy Act (BIPA) has invited a great deal of litigation, often resulting in interpretations favorable toward plaintiffs. As a result, we advise employers who use biometric technology in Illinois workplaces to adhere carefully to their obligations under BIPA. While that advice won’t change, employers operating in the health care sector can take some – though not too much – comfort in a recent ruling that limits their exposure under this law.
In Mosby v. Ingalls Memorial Hospital, the Illinois Supreme Court delved ...
As featured in #WorkforceWednesday: The year 2023 was significant for trade secret and non-compete law, full of enforcement actions and rulemaking on the federal level and legislation in the states.
In this episode of Spilling Secrets, Epstein Becker Green attorneys Peter A. Steinmeyer, Katherine Rigby, A. Millie Warner, and Erik W. Weibust present their lineup for the “top 10” trade secret and non-compete developments of 2023.
As featured in #WorkforceWednesday: This week, we’re getting up close and personal with the U.S. Department of Labor (DOL) and the contentious new rules that it is rushing to put into effect:
The DOL is racing ahead with its agenda, with several rules that could change the landscape for employers, such as new workplace inspection policies and requirements for determining fiduciary status.
Epstein Becker Green attorney Paul DeCamp tells us more about the recent pushback against the DOL and recounts his testimony to the U.S. House Subcommittee on Workforce Protections ...
On October 11, 2023, the Fifth Circuit issued the first decision applying its broadened standard for Title VII claims in Narayanann v. Midwestern State University. The unanimous three judge panel ruled that a Malaysian professor could pursue his race-based case against a Texas university when his request to teach summer courses was rejected.
Under the Fifth Circuit’s new standard, a plaintiff’s Title VII claim can survive a motion to dismiss by pleading adverse actions with respect to the “terms, conditions, or privileges of employment” without showing that their ...
On November 17, 2023, New York Governor Kathy Hochul signed Senate Bill 3255 (the “Act”) into law. The Act amends Section 297-5 of the New York Executive Law (“Section 297-5”) by extending the statute of limitations for filing unlawful discrimination complaints with the New York State Division of Human Rights (the “Division”) from one to three years. According to the Act’s Sponsor Memo, the Legislature recognized that the prior time frame for victims of unlawful discriminatory practices to file administrative complaints with the Division was insufficient ...
On November 13, 2023, in USA ex rel, Morgan-Lee, et al. v. The Whittier Health Network, LLC, et al., a Massachusetts federal district judge concluded that although the plaintiff engaged in protected activity when she raised suspicions about billing fraud under the False Claims Act, her termination was not retaliatory where she engaged in erratic, confrontational, and insubordinate communication exchanges with superiors and colleagues. Morgan-Lee is a positive development for employers because it reinforces that engaging in protected activity does not shield an employee ...
As we reported in the first installment of our series on pay transparency, pay equity legislation continues to trend nationwide. While Part I focused on salary range disclosure legislation, in Part II, we highlight mandatory pay data reporting requirements that are being considered in Massachusetts.
What is Mandatory Pay Data Reporting?
Pay data reporting laws require covered employers to submit detailed compensation data reports, often broken down by race and gender, to state-designated agencies. To date, California and Illinois have adopted such laws. Under California law ...
As featured in #WorkforceWednesday: This week, we’re elaborating on the National Labor Relations Board’s (NLRB’s) controversial joint-employer rule:
The joint-employer rule published by the NLRB on October 26 expanded the definition of the rule in ways that will likely have a major impact on the workplace. However, a recent postponement means that the rule will not take effect until February 26, 2024.
Epstein Becker Green attorneys Steven M. Swirsky and Erin E. Schaefer tell us the implications this rule may have for employers and how a flurry of legal challenges ...
On November 7, 2023, the United States Court of Appeals for the First Circuit affirmed the United States District Court for the District of Massachusetts’ dismissal of a teacher’s suit against her former employer, Austin Preparatory School (“Austin Prep”), in which she claimed the school fired her for requesting extended leave as an accommodation following multiple surgeries. In Der Sarkisian v. Austin Preparatory School, the First Circuit held that Nancy Der Sarkisian’s request for extended leave, with no end date, was unreasonable considering the circumstances ...
On November 14, 2023, the Securities and Exchange Commission (“SEC”) announced its enforcement results for fiscal year 2023, boasting increases in enforcement and financial remedies across all of its programs. The SEC filed a staggering 784 enforcement actions, obtained orders for nearly $5 billion in financial remedies, and distributed nearly $1 billion to harmed investors.
The SEC’s most notable results, however, came from its Whistleblower Program: In fiscal year 2023, the SEC issued whistleblower awards totaling nearly $600 million, the most ever awarded in one ...
With the holidays right around the corner, and local governments grinding to a halt during the holiday season, the City of Evanston, Illinois recently announced that it will postpone enforcement of its Fair Workweek Ordinance (the “Ordinance”) from September 1, 2023 until January 1, 2024. Although directly affecting just a relatively small number of employers that have a presence in Chicago’s neighboring municipality, the Ordinance is complex and notable for a novel hazard pay mandate.
The Ordinance Untangled
In May of 2023, Evanston’s City Council approved ...
As featured in #WorkforceWednesday: Restrictive covenants, such as non-compete and non-solicitation agreements, are regulated differently worldwide. In this episode of Spilling Secrets, Epstein Becker Green attorneys Peter A. Steinmeyer, A. Millie Warner, and Susan Gross Sholinsky take a trip around the world with Andrew Lilley, Head of Employment Law at Deloitte Legal, to highlight some of these unique distinctions and discuss how global employers can navigate these differences.
[UPDATE: The New York State Department of Labor has now published an updated Form IA 12.3 (Record of Employment), which employers should use to comply with their notice obligations under S 4878A beginning November 13, 2023.]
For New York employers, fall has brought with it more than just cooler temperatures, thanks to a wave of activity from Governor Kathy Hochul’s desk (after a busy legislative summer). Below, we highlight six significant employment bills that the Governor recently signed into law, as well as key pieces of legislation that continue to await her review.
Employee ...
As featured in #WorkforceWednesday: This week, we’re detailing the National Labor Relations Board’s (NLRB’s) expanded “joint employer” definition, the recent confirmations of the Equal Employment Opportunity Commission’s (EEOC’s) General Counsel and the Department of Labor’s (DOL’s) Wage and Hour Administrator, and President Biden’s executive order on artificial intelligence (AI).
NLRB Expands Definition of “Joint Employer"
The NLRB recently published its long-awaited final rule, setting a new test for determining joint-employer ...
As we previously reported, this summer, the U.S. Citizenship and Immigration Services (USCIS) and U.S. Department of Homeland Security (DHS) announced significant updates to enhance the employment verification process. In addition to an alternative procedure for qualified E-Verify employers to virtually inspect employee documents, the USCIS and DHS released a new Form I-9. Employers have been able to voluntarily use the new Form I-9 since August 1, 2023, but as of November 1, 2023, such use is now mandatory. Failure to use the correct edition of the Form I-9 at the time of hire is a ...
As anticipated, the Colorado Department of Labor and Employment (CDLE) has published proposed updates to its Equal Pay Transparency Rules (the “Updated EPT Rules”), which implement the Colorado legislature’s recent amendments (the “2024 Amendments”) to the Equal Pay for Equal Work Act (the “Act”) that take effect January 1, 2024. Below, we identify four areas in which the Updated EPT Rules provide much-needed clarity to Colorado employers regarding their obligations under the 2024 Amendments.
Defined Terms
The Updated EPT Rules incorporate the 2024 ...
As featured in #WorkforceWednesday: This week, we’re focused on California’s array of new and amended laws, including non-competes, employee cannabis usage, minimum wage, and protected time off:
New laws are changing the workplace in California, with looming deadlines for employers to meet. However, what happens in California tends not to stay in California. So, how can employers in California and beyond prepare?
Epstein Becker Green’s David Jacobs and Chelsea Hadaway provide a rundown of some of the new and amended California laws and the preemptive steps ...
On October 26, 2023, the National Labor Relations Board (NLRB or “Board”) issued its Final Rule (the “Rule”) on Joint-Employer status under the National Labor Relations Act (NLRA). Slated to take effect on December 26, 2023, the Rule returns to and expands on the Obama era Browning-Ferris test, scrapping the NLRB’s 2020 Joint Employer test and setting up a potential showdown with the Supreme Court over the “major questions” doctrine and the scope of the NLRB’s administrative authority.
The Final Rule Summarized
Under the new Rule, any entity that shares or ...
On October 30, 2023, President Joe Biden signed his Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence (AI EO), which addresses artificial intelligence issues, including safety, security, privacy, civil rights, immigration, and health care. The White House also released a companion Fact Sheet summarizing the AI EO (the “Fact Sheet”). Later in the week, on November 1, 2023, the White House announced that the Office of Management and Budget will release for comment a new draft policy on Advancing Governance, Innovation, and ...
Important changes are coming to the Massachusetts Paid Family and Medical Leave law (PFML), which requires covered employers to provide eligible employees with paid time off for certain qualifying absences. First, the Massachusetts legislature recently adopted PFML amendments (HB 4053), which, effective November 1, 2023, permit employees to supplement their weekly PFML benefits with accrued paid leave, including vacation, sick time, and other paid time off (PTO). Second, the Massachusetts Department of Paid Family and Medical Leave (DFML) has released the new contribution ...
As featured in #WorkforceWednesday: In this special live episode of our Spilling Secrets podcast series, Epstein Becker Green attorneys Peter A. Steinmeyer and Erik W. Weibust sat down with guests Gina Sarracino, Chief Counsel of Employment and Labor at Thomson Reuters, and Evan Michael, Executive Vice President and General Counsel at NFP, to discuss the hectic state of non-competes in 2023.
As featured in #WorkforceWednesday: This week, we’re providing an overview of (i) the year-over-year increase in Equal Employment Opportunity Commission (EEOC) lawsuits, (ii) New York’s employee intellectual property (IP) law, and (iii) the collaborative agreement between the Federal Trade Commission (FTC) and the U.S. Department of Labor (DOL).
EEOC Lawsuits Increase
For fiscal year 2023, the EEOC reported a 50 percent increase in lawsuits filed by the agency compared to the previous year. The end of the fiscal year typically brings a spike in EEOC-filed lawsuits ...
As featured in #WorkforceWednesday: This week, we’re focusing on three recent Securities and Exchange Commission (SEC) charges against employers for violating whistleblower protection laws and how all employers should take extra steps to ensure compliance in their separation agreements:
Recent charges issued by the SEC represent a dramatic change in the enforcement of whistleblower protections. Epstein Becker Green attorney Greg Keating explains how this can impact all employers, both public and private, and should encourage them to take a closer look at their ...
On October 7, 2023, California Governor Gavin Newsom vetoed Senate Bill 403 (“SB-403”), legislation that would have been the first state-wide ban on caste discrimination in the United States. We previously reported on SB-403 here.
Governor Newsom released a veto message calling SB-403 “unnecessary.” The message further explained his rationale that “discrimination based on caste is already prohibited” under California law, which “already prohibits discrimination based on sex, race, color, religion, ancestry, national origin, disability, gender identity ...
The U.S. Equal Employment Opportunity Commission (EEOC) recently released proposed guidance on workplace harassment prohibited under federal law. The new guidance, posted on September 29, 2023, is available for public review and commentary until November 1, 2023. If finalized, this guidance will supersede five longstanding guidance documents issued from 1987 through 1999. In other words, this is the first proposed EEOC guidance on harassment in the past 25 years.
The Context
An agency press release notes that the EEOC last attempted to update its workplace harassment guidance ...
As featured in #WorkforceWednesday: This week, we’re recapping the Equal Employment Opportunity Commission’s (EEOC’s) Strategic Enforcement Plan, California’s expanded sick leave requirement law, and the ongoing worker strikes across the country.
EEOC Releases Strategic Enforcement Plan
On September 21, the EEOC published its Strategic Enforcement Plan for fiscal years 2024 to 2028. In the first enforcement plan issued under the Biden administration, the EEOC sheds light on its current priorities.
California Expands Sick Leave Requirements
California is ...
The start of autumn means cooler weather, falling leaves, and, for employers with New York employees, updates to the New York Paid Family Leave (“Paid Family Leave”) program.
The Paid Family Leave program provides eligible employees with up to 12 weeks of job-protected, partially-paid time off within a 52-week period to care for a family member with a serious health condition, bond with a newborn, or assist when a family member is deployed abroad on active military service. Since Paid Family Leave took effect in 2018, New York employers have seen several changes to the program ...
The Equal Employment Opportunity Commission (EEOC) recently proposed regulations (the “Proposed Rule”) to implement the Pregnant Workers Fairness Act (PWFA), which requires employers to provide reasonable accommodations for additional conditions relating to pregnancy, childbirth, and related medical conditions. Issued on August 11, 2023, the Proposed Rule is currently open for public comment, and has, as of this writing, already received more than 40,440 public submissions responding to the EEOC’s proposal. Many remarks address the fact that the EEOC included ...
As featured in #WorkforceWednesday: This week, we’re highlighting the Equal Employment Opportunity Commission’s (EEOC’s) EEO-1 component 1 submission deadline, the EEOC and Department of Labor’s (DOL’s) new agency partnership, and recent settlements from the U.S. Securities and Exchange Commission (SEC) reminding employers to review their separation agreements.
EEOC Announces EEO-1 Submission Deadline
According to the EEOC, employers can submit their 2022 EEO-1 Component 1 data starting October 31, 2023. The final deadline for submissions is December 5.
On July 28, 2023, Governor J.B. Pritzker signed into law House Bill No. 2068, “Transportation Benefits Program Act” (“Illinois Transit Law”), which requires employers to offer pre-tax transportation fringe benefits (“Transit Benefits”) to employees.
The Illinois Transit Law joins the growing trend of similar local and state pre-tax transportation fringe benefit laws already in effect in various cities and states, including New Jersey, New York City, Washington DC, San Francisco, and Seattle (See our previous blog post here and here).
Who is Subject to the ...
As featured in #WorkforceWednesday: This week, we bring you our special Spilling Secrets podcast series on the future of non-compete and trade secrets law:
California has some of the strongest regulations on restrictive covenants. How can employers in the state protect trade secrets and remain in compliance? Epstein Becker Green attorneys Katherine G. Rigby, David Jacobs, and Phillip K. Antablin detail some best practices for California employers.
Less than two weeks after it last penalized a private employer for alleged violations of whistleblower protection rules in its employee separation agreements, the Securities and Exchange Commission (“SEC”) once again takes aim at the language of a separation agreement it alleges violates Rule 21F-17(a) of the Exchange Act (“Rule 21F”). Just yesterday, the SEC issued an Order settling charges with a commercial real estate services and investment firm for such violations through a fine of $375,000, among other terms. The SEC’s aggressive and continued ...
As employers throughout New York State are now determining how to comply with the newest State-wide pay transparency law, which took effect on September 17, 2023, the New York State Department of Labor (DOL) released proposed regulations to facilitate the legislative goal of increasing pay transparency. As discussed in depth here and here, the law requires employers to disclose the pay range and job description (if existing) in job postings. Should these proposed regulations pass the 60-day comment period unchanged, there are several highlights worth ...
The Securities and Exchange Commission (“SEC”) continues to aggressively enforce its whistleblower program under the Biden Administration. As we have reported (here and here), the SEC has cracked down on employers’ agreements and procedures that it contends interfere with employee access to the SEC. Most recently, on September 8, 2023, the SEC issued an Order imposing a $225,000 penalty to a private energy and technology company, Monolith Resources LLC (“Monolith”), for allegedly violating whistleblower protection rules in its employee separation ...
As featured in #WorkforceWednesday: This week, we’re breaking down recent actions by the National Labor Relations Board (NLRB) that are impacting both union and non-union employers:
The NLRB is continuing its labor-friendly push with increased protections for unions, new limitations on employer rights, and significant changes that are likely to make it easier for unions to secure bargaining rights. Epstein Becker Green attorneys Steven M. Swirsky and Erin E. Schaefer tell us more about the current labor landscape and how the NLRB’s actions apply to more ...
On September 5, 2023, the California legislature passed Senate Bill 403 (“SB-403”), paving the way for a state-wide ban on caste discrimination to be signed into law by Governor Gavin Newsom.
SB-403 would amend the definition of “ancestry” under the California’s Unruh Civil Rights Act, Fair Employment and Housing Act, and certain provisions of the Education Code to include and define “caste.” According to the introductory language to the bill, rather than adding a new category of protected characteristics, the amendments “are declarative of and clarify ...
The time has come – New York employers are reminded that a statewide salary transparency law goes into effect on September 17, 2023. While many employers in New York City, Westchester County, the City of Ithaca and Albany County already contend with ordinances requiring disclosure of compensation information in job advertisements, Labor Law § 194-b (the “Law”) covers virtually all employers across the state. We previously reported on the approval of the Law here, and discussed details here and here.
What This Means
Employers throughout New York State ...
As featured in #WorkforceWednesday: This week, we’re focused on how the U.S. Supreme Court’s Students for Fair Admissions (SFFA) ruling could impact workplace diversity efforts:
Diversity, equity, and inclusion (DEI) investment has been a strong strategy for success for many employers, but after the Supreme Court’s SFFA ruling, the outlook for employment DEI is unclear.
What’s next? Epstein Becker Green attorneys Carter M. DeLorme and Shawndra G. Jones tell us more.
Podcast: Amazon Music / Audible, Apple ...
As a result of a recent Fifth Circuit decision, some employers in Texas will now face a tougher hurdle when defending against Title VII disparate treatment discrimination claims in federal court. The United States Court of Appeals for the Fifth Circuit recently held that in order to establish an actionable claim for disparate treatment discrimination under Title VII, plaintiffs need not plead an “ultimate employment decision” related to hiring, granting leave, terminations, promotions, or pay. In a significant departure from decades-old precedent, the Fifth Circuit held ...
As featured in #WorkforceWednesday: This week, we’re analyzing the National Labor Relations Board’s (NLRB’s) recent Stericycle decision, the Equal Employment Opportunity Commission’s (EEOC’s) proposed rule on pregnant workers’ rights, and the EEOC’s first-ever artificial intelligence (AI) anti-discrimination lawsuit settlement.
On August 9, 2023, the U.S. Equal Employment Opportunity Commission (“EEOC”) and iTutorGroup, Inc. and related companies (collectively, “iTutorGroup”) filed a joint notice of settlement and a request for approval and execution of a consent decree, effectively settling claims that the EEOC brought last year against iTutorGroup regarding its application software. The EEOC claimed in its lawsuit that iTutorGroup violated the Age Discrimination in Employment Act (“ADEA”) by programming its application software to automatically reject hundreds of female applicants age 55 or older and male applicants age 60 or older.
As featured in #WorkforceWednesday: This week, we bring you our special Spilling Secrets podcast series on the future of non-compete and trade secrets law:
Most restrictive covenant disputes are resolved out of court. However, what about the restrictive covenant disputes that lead not only to litigation but also to litigation beyond the injunction phase?
Our all-star panel of attorneys—Peter A. Steinmeyer, Katherine G. Rigby, A. Millie Warner, and Erik W. Weibust—discuss more.
When the pandemic abruptly shifted many employment relationships from offices and other physical workplaces to remote environments, many governmental and regulatory authorities responded by modifying existing protocols to accommodate new realities. Among those were temporary adaptations to long-standing federal requirements for inspecting identification and verifying employment eligibility, whereby employers were permitted to forego standard document inspection procedures while completing Form I-9.
As we previously reported, on May 8, 2023, the New Jersey Department of Labor and Workforce Development (“NJDOL”) published a web page providing guidance in the form of Frequently Asked Questions (the “FAQs”) to assist employers in complying with the provisions of the Temporary Workers’ Bill of Rights (the “Law”). Recently the NJDOL released proposed regulations to implement the Law (the “Proposed Regulations”) that elaborate on many of the Law’s provisions, including its pay equity requirement. Public comment on the Proposed Regulations will be accepted until October 20, 2023.
In addition to the Proposed Regulations, the NJDOL has also updated its FAQs.
With amendments to the Colorado Equal Pay for Equal Work Act (the “Act”) set to take effect on January 1, 2024 (the “2024 Amendments”), the Colorado Department of Labor and Employment (“CDLE”) has started the process of updating its compliance guidance for employers. The first update comes in the form of a revised Interpretative Notice & Formal Opinion ("INFO") #9, which the CDLE published on July 28, 2023.
On August 2, 2023, the National Labor Relations Board (“NLRB” or “Board”) announced a long-anticipated decision called Stericyle that will affect how employers craft, apply and enforce workplace policies, regardless of whether a labor union represents their employees. As we anticipated several years ago, the Stericyle Board, with a majority of members nominated by President Joseph Biden, rejected the agency’s 2017 decision in The Boeing Company, in which it adopted a balancing test to evaluate facially neutral employer rules and handbook provisions. Under The Boeing Company test, the Board weighed the nature and extent of such rules’ potential impact on employee rights under the National Labor Relations Act (“NLRA”) against employers’ legitimate justification(s) for the policies.
The majority opinion in Stericycle Inc. substantively revives the NLRB’s stance on workplace rules as established in the 2004 Lutheran Heritage decision. Under this new framework, the mere maintenance of any employer’s rule, policy, or handbook provision that has a “reasonable tendency to chill employees from exercising their Section 7 rights” may constitute an unfair labor practice in violation of the NLRA.
On July 20, 2023, U.S. Senators Bob Casey (D-PA) and Brian Schatz (D-HI) introduced the “No Robot Bosses Act.” Other than bringing to mind a catchy title for a dystopic science fiction novel, the bill aims to regulate the use of “automated decision systems” throughout the employment life cycle and, as such, appears broader in scope than the New York City’s Local Law 144 of 2021, about which we have previously written, and which New York City recently began enforcing. Although the text of the proposed federal legislation has not yet been widely circulated, a two-page fact sheet released by the sponsoring Senators outlines the bill’s pertinent provisions regarding an employer’s use of automated decision systems affecting employees and would:
The nationwide growth of the “gig economy” has provoked the enactment of laws aimed at providing economic protection to freelance workers. In May 2023, the Columbus City Council joined this national trend by amending the City’s “wage theft” Ordinance to add obligations upon a “hiring party” that engages a “freelance worker.”
The Ordinance broadly defines a “hiring party” to be “any person, including the City of Columbus, who retains a freelance worker to provide any service” and excludes only governmental entities other than Columbus. A “freelance worker” is an individual, whether or not the person has incorporated or is using a trade name.
As featured in #WorkforceWednesday: This week, we bring you our special Spilling Secrets podcast series on the future of non-compete and trade secrets law:
On May 31, 2023, National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo issued a memo stating her position that non-compete agreements violate the National Labor Relations Act. So, what does this mean for employers?
On June 30, 2023, the Supreme Court of the United States declined to weigh in on whether gender dysphoria can qualify as a disability under the Americans with Disabilities Act (“ADA”), allowing to stand the Fourth Circuit’s decision in Williams v. Kincaid, which extended ADA protection to transgender people experiencing gender dysphoria.
As the first federal appellate decision of its kind, Williams had — and will continue to have — a significant impact on employers (covered by Title I of the ADA), and places of public accommodations (covered by Title III of the ADA).
As featured in #WorkforceWednesday: This week, we break down the enforcement of the Pregnant Workers Fairness Act (PWFA), the U.S. Equal Employment Opportunity Commission’s (EEOC’s) EEO-1 report filing delay, and the U.S. Department of Labor’s (DOL’s) recent opinion on the Family and Medical Leave Act (FMLA).
Summer in the Ocean State brings with it familiar novelties: the beach, clam cakes, and the end of the General Assembly’s legislative session. In this Insight, we summarize three employment-related bills that Rhode Island Governor Daniel McKee signed into law late last month, note bills that garnered attention but ultimately did not pass, and explain what employers should do now to remain in compliance.
New Laws
It is time, again, to update your workplace posters. Coinciding with the effective date of the Pregnant Workers Fairness Act (“PWFA”), the U.S. Equal Employment Opportunity Commission (“EEOC”) released a revised “Know Your Rights” poster on June 27, 2023. The new poster replaces the one that was issued in late 2022, to add information regarding the PWFA.
As featured in #WorkforceWednesday: This week, we’re recapping recent contentious rulings by the Supreme Court of the United States (“SCOTUS” or the “Court”) that are expected to take a toll on employers across the nation.
The State of Texas infrequently regulates the workplace. This summer, however, Texas enacted two notable workplace laws about which employers should be aware.
Texas Regulatory Consistency Act
On June 13, 2023, Governor Greg Abbott signed House Bill 2127, the Texas Regulatory Consistency Act (the “Act” or “H.B. 2127”), which amends various Texas statutory codes, including the Labor Code, and preempts local lawmaking in various statutorily governed areas to assert Texas’s “sovereign regulatory powers.” Referred to by its opponents as the “Death Star Bill,” the Act is slated to take effect on September 1, 2023, and effectively prevents cities and counties from passing local ordinances beyond the scope of existing state laws in numerous fields of regulation, including labor and employment, agriculture, and finance.
As we previously reported, on July 5, 2023, the New York City Department of Consumer and Worker Protection (DCWP) began enforcing Local Law 144 of 2021 (the “Law”) regulating the use of automated employment decision tools (AEDT). In preparation for the July 5 enforcement date, last week, the DCWP published Frequently Asked Questions (FAQ) concerning the use of AEDTs on its fact page for the Law. The FAQ contain an overview of the Law and general information and guidance regarding bias audit requirements, data requirements, independent auditors, responsibility for bias audits, notice requirements, and complaints.
As explained in the FAQ, the Law applies to employers and employment agencies that use AEDT:
The Supreme Court delivered its highly anticipated consolidated decision yesterday in the two affirmative action cases on its docket, Students for Fair Admissions, Inc. v. University of North Carolina and Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (collectively, the “SFFA” cases). At issue in the SFFA cases is whether Harvard and the University of North Carolina (“UNC”) violate the Equal Protection Clause of the Fourteenth Amendment (and, in turn, Title VI of the Civil Rights Act of 1964) in their consideration of race in their admissions processes. In answering this question in the affirmative, the Court’s majority opinion significantly restricts – and, some would argue, eliminates – affirmative action programs in higher education.
On June 29, 2023, the Supreme Court of the United States issued three opinions. Of them, Groff v. DeJoy ("Groff”),in which the Court unanimously revised the standard for determining whether accommodating an employee’s religious beliefs would constitute an “undue hardship” under Title VII of the Civil Rights Act of 1964 (“Title VII”), will have the most immediate impact on employers. In Groff, the Court held that employers cannot deny a religious accommodation by demonstrating that it would result in only more than a de minimis cost, but rather must demonstrate that it would result in a substantial cost.
Governor Jared Polis recently signed into law legislation (SB 23-105 or the “Amendments”) that will soon change Colorado employers’ disclosure and notice requirements under the state’s Equal Pay for Equal Work Act (“Act”).
As we previously reported, in addition to prohibiting sex-based wage discrimination, the Act requires all employers, regardless of where they are located, with at least one Colorado-based employee to (1) notify their Colorado-based employees of internal opportunities for promotion and (2) disclose salary and benefits information in job postings for all positions that are or can be performed in Colorado. The Amendments modify the Act by:
As featured in #WorkforceWednesday: This week, we’re analyzing New York State’s proposed noncompete ban:
New York State’s noncompete ban has passed both houses of the state legislature and now awaits Governor Kathy Hochul’s signature. Epstein Becker Green attorney David J. Clark details how this proposed ban would affect employers and reveals how noncompete bans have become a growing trend throughout the country.
Michigan is the latest state to expand its legal definition of race as a protected class to include hairstyle descriptors. As we recently explained, legislation with the acronym for “Creating a Respectful and Open Work for Natural Hair” is intended to protect from discrimination individuals with hairstyles often associated with race.
On June 15, 2023, Governor Gretchen Whitmer signed Michigan’s version of the CROWN Act – S.B. 90 – into law, once again amending the state’s increasingly broad anti-discrimination statute, the Elliott-Larsen Civil Rights Act (“ELCRA”). The Michigan CROWN Act represents the third amendment to ELCRA this year: prohibitions on discrimination based on sexual orientation, gender identity, and gender expression were added in March, and protections for individuals who have an abortion were provided by amendments enacted in May.
Many employers commonly ignore requests from the New Jersey Division of Unemployment and Temporary Disability Insurance (“Division”) to provide the reason they terminated an employee’s employment. With the recent amendments to the state’s Unemployment Compensation Law (UCL), effective July 31, 2023 (the Amendments), employers should rethink that practice. This, among other changes to the UCL, should dramatically alter the way employers deal with New Jersey unemployment compensation claims.
Summarized below are key takeaways from the Amendments.
As featured in #WorkforceWednesday: This week, we’re recapping the last year of the Dobbs decision:
June 24, 2023, marks exactly one year since the widely controversial Dobbs v. Jackson Women’s Health Organization decision by the United States Supreme Court (SCOTUS).
Epstein Becker Green attorneys Susan Gross Sholinsky, Delia A. Deschaine, and Lucas Peterhans examine the impact this far-reaching SCOTUS decision has had on employee benefit plans and workplace policies, discrimination, and health care regulatory compliance.
As featured in #WorkforceWednesday: This week, we bring you our special Spilling Secrets podcast series on the future of non-compete and trade secrets law:
Trade secret and non-compete litigation can result in massive damage awards, but those cases can also be unpredictable. Many viable trade secret claims go unexplored due to financial limitations or a lack of willingness to invest in litigation.
Attorney and Spilling Secrets host Erik W. Weibust and three special guests—Epstein Becker Green’s Managing Partner, James P. Flynn; Stephanie Southwick of Omni Bridgeway; and Mary Guzman of Crown Jewel Insurance—discuss the monetization of trade secrets litigation.
Employers subject to the City of Chicago’s Sexual Harassment Ordinance must comply with the updated training requirements by June 30th or risk penalty. As we previously advised, the amended Chicago Human Rights Ordinance requires all employers with at least one employee working within the geographical boundaries of the City of Chicago to provide the following annual training:
As featured in #WorkforceWednesday: This week, we analyze how employers can benefit from artificial intelligence (AI) innovations while remaining in compliance with federal regulations:
AI is evolving faster than ever before. How can employers prepare for the future of AI in the workplace? Epstein Becker Green attorneys Alexander J. Franchilli and J.T. Wilson III tell us how looming federal regulations and diversity, equity, and inclusion concerns are creating a turbulence of compliance and innovation.
In recent years, there has been a growing movement to ban discrimination against natural hairstyles. This movement was cultivated by the introduction of the Creating a Respectful and Open World for Natural Hair (“CROWN”) Act, which seeks to prohibit discrimination in the workplace based on hair texture and protective hairstyles commonly associated with an individual’s race, such as afros, braids, twists, cornrows, tight coils, bantu knots, and locs.
On May 17, 2023, Michigan Governor Gretchen Whitmer signed SB 147 into law, amending the Elliot-Larsen Civil Rights Act (“ELCRA”) to expand its protections from workplace discrimination to those who have abortions. The law is expected take effect on March 31, 2024, ninety-one days after final adjournment of the Michigan Legislature’s 2023 Regular Session and will apply to any Michigan employer with one or more employees. This is the second time this year that the Michigan Legislature has amended ELCRA, joining SB 4 in early March 2023, which amended ELCRA to add protections for individuals based on their sexual orientation, and gender identity or expression.
As featured in #WorkforceWednesday: This week, we recap the continued rise in unfair labor practice (ULP) charge filings reported by the National Labor Relations Board (NLRB); New York City’s new prohibitions against size discrimination in employment, housing, and public accommodations; and Florida’s forthcoming E-Verify requirements for public and private employers with 25 or more employees.
It’s time for covered employers to update their Fair Labor Standards Act (FLSA) and Family and Medical Leave Act (FMLA) posters.
The U.S. Department of Labor (DOL) has issued an updated FLSA Minimum Wage Poster to reflect covered employers’ new lactation accommodation obligations under the Providing Urgent Maternal Protections for Nursing Mothers (PUMP) Act.
Chicago has amended its “Ban the Box” Ordinance (the “Ordinance”) to further align with Illinois law. The Ordinance, which originally took effect in 2015, provides protections for both prospective and current employees. Historically, the Ordinance restricted when Chicago employers with fewer than 15 employees and certain public employers could inquire about or consider an individual’s criminal record or criminal history. The new amendments, which took immediate effect, expand application of the Ordinance to almost all Chicago employers and impose significant new assessment and notice requirements thereon. The amendments also expressly incorporate into the Ordinance provisions from the Illinois Human Rights Act (IHRA) that prohibit employers from inquiring about or considering an individual’s arrest record. The amendments did not modify the Ordinance’s penalties, however, so employers are still liable for fines of up to $1,000 per violation, license-related disciplinary actions, and potential discrimination charges before the Chicago Commission on Human Relations.
On May 3, 2023, Maryland Governor Wes Moore signed into law SB 828, which amends the state’s Family and Medical Leave Insurance Program (the “Program”) that was originally established in April 2022. As we previously reported, the Program generally provides eligible employees with 12 (but in some cases, 24) weeks of paid leave to be used for certain covered family and medical-related absences. The Program and SB 828’s amendments—which will take effect on June 1, 2023—are nuanced, so below are five significant updates from the new legislation for Maryland employers to consider.
When the COVID-19 pandemic began in 2020, employers found themselves in uncharted territory – a new virus, public health emergency declarations, and legislation. Against this onslaught of emerging circumstances, the Equal Employment Opportunity Commission (EEOC) published guidance on the application of existing federal equal employment opportunity laws to COVID-19 workplace issues. Since first releasing “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act and Other EEO Laws” in March 2020, the agency has followed up with several revisions. The EEOC published its latest version of the guidance on May 15, 2023, just ten days after the World Health Organization declared an end to the COVID-19 global public health emergency and six days after the federal COVID-19 Public Health Emergency (PHE) technically concluded. Below, are the most significant updates in what the agency has called its “capstone” guidance (the “Revised Guidance”).
*UPDATE: Mayor Adams signed Int. 0209-2022 into law on May 26, 2023. It will take effect on November 22, 2023.
Mayor Eric Adams finds on his desk this week a New York City Council bill that would provide New York City based employees, visitors, and residents protection from discrimination based on their height or weight. The proposed local law would amend Section 8-101 of the Administrative Code of the City of New York, also known as the NYC Human Rights Law (NYCHRL).
On May 11, 2023, an overwhelming majority of the New York City Council (44 out of 51 members) voted to amend the Administrative Code to add two more characteristics, height and weight, to this list. The bill will take effect 180 days after Mayor Adams signs it into law. If he does so, New York City will join a small cohort of places (including Michigan, Washington State and Washington, D.C., to name a few) that have legislated on this issue.
Blog Editors
Recent Updates
- Podcast: Navigating Physician Non-Compete Litigation – Employment Law This Week
- Maryland Expected to Expand Pay Transparency Requirements in Fall 2024
- Video: Union Reps at OSHA Inspections, New COVID-19 Guidance, and Minimum Wage Updates - Employment Law This Week
- Fair Credit Reporting Act Preempts State Law Defamation Claim Over Background Check
- Video: New DOL Rules, U.S. Government Changes Race and Ethnicity Categorization - Employment Law This Week