As we’ve previously advised, make sure you are prepared for interns this summer! This summer there’s a new legal trend about interns. While wage and hour lawsuits are still hot, the new “it” trend seems to be laws that extend protection against discrimination and harassment for interns. Recently, states and cities have been adding interns to the protected individuals under their human rights laws.
Retailers have long used interns, both to provide training opportunities for the interns and to supplement their workforce over the summer months ...
In its Agency Rule List for Spring 2014, the U.S. Department of Labor (DOL) has proposed to amend the Regulations implementing the Family and Medical Leave Act (FMLA) by revising the definition of "spouse" in light of the United States Supreme Court's decision in United States v. Windsor, No. 12-307 (U.S. June 26, 2013). In Windsor, the Supreme Court struck down the provisions of the Defense of Marriage Act (DOMA) that denied federal benefits to legally married, same-sex couples. The FMLA entitles eligible employees of covered employers to take unpaid, job-protected ...
The federal Equal Employment Opportunity Commission (“EEOC” or “Agency”) has been spending a fair amount of time in recent months challenging the validity and legality of employers’ separation agreements. This is apparently part of the EEOC’s core priorities, including “targeting policies and practices that discourage or prohibit individuals from exercising their rights under employment discrimination statutes, or which impede the EEOC’s investigative or enforcement efforts.” Retail employers have not been exempted from the agency’s scrutiny. A ...
Our colleague Allen B. Roberts recently wrote a client advisory entitled “Unions Swim Against the Tide as Pension Issues Surface for Negotiations and Organizing,” which appears on Epstein Becker Green's website.
Following is an excerpt:
Contributions to multiemployer defined benefit pension plans have been a mainstay, legacy feature of union negotiations in many industries. But the fabric of such staples may be tearing apart as employers contemplate the potential of escalating contributions to amortize unfunded liabilities that increase costs but may have ...
By: Jeffrey M. Landes and Susan Gross Sholinsky
The presentation slides and the recording for the webinar - Creating and Maintaining a Lawful Internship Program - are now accessible for your viewing. If you would like to review, please contact Kiirsten Lederer to obtain instructions.
During this timely and important webinar, we discussed how to minimize both your organization's liability and the risk of wage and hour lawsuits. Specifically, participants walked away with answers to the following questions:
- What are the best practices for recruiting and hiring interns, and what ...
By Jeffrey Landes, Susan Gross Sholinsky, and Nancy L. Gunzenhauser
A hot topic for every summer – but particularly this summer – is the status of unpaid interns. You are probably aware that several wage and hour lawsuits have been brought regarding the employment status of unpaid interns, particularly in the entertainment and publishing industries. The theory behind these cases is that the interns in question don’t fall within the “trainee” exception to the definition of “employee” under the federal Fair Labor Standards Act (“FLSA”), as well as applicable ...
Our colleagues Michelle Capezza, Jeffrey M. Landes, and Susan Gross Sholinsky will host Epstein Becker Green's retail roundtable summit from 12:00 p.m. - 2:00 p.m. on May 21. Join us for an open discussion among retail industry executives. The summit will be devoted to retail industry labor and employment issues that general counsel and human resources executives are facing.
Topics to include:
- Legal, logistical, ethical, and other factors to consider when creating and implementing internship programs
- Ramifications of newly-enacted state and local laws on handbook policies ...
Noncompliance with the Americans with Disabilities Act just became costlier. Pursuant to an inflation-adjustment formula, on March 28, 2014 the Department of Justice (“DOJ”) issued a final rule raising the civil monetary penalties assessed or enforced by the Civil Rights Division, including those assessed under Title III of the ADA (“Title III”).
Title III prohibits public accommodations from discriminating against disabled individuals with respect to access to goods, services, programs and facilities, and (with limited exceptions) requires ...
For 2 days, the National Labor Relations Board (NLRB) heard from speakers on its proposed rules to accelerate the processing of union representation petitions and quicken the timing of elections. The speakers ranged from several labor unions, including the UFCW, SEIU, CWA and AFL-CIO as well as a number of trade associations, including National Federation of Independent Businesses, Coalition for a Democratic Workplace, National Association of Manufacturers, U.S. Chamber of Commerce, and EBG client, National Grocers Association (NGA). The positions of the parties were ...
Our colleague Kara Maciel will speak on behalf of EBG client, National Grocers Association (“NGA”), at the National Labor Relations Board’s public meeting, scheduled for April 10-11, 2014 regarding the Notice of Proposed Rulemaking (“NPRM”) on the “ambush election” representation procedures.
The panels will address the following topics:
- Panel B.2: Requirement for written statement of position
Address issues related to the proposed requirement for a written statement of position. - Panel E.1 & E.3: Election date
Please describe the standard to be applied for ...
Our Epstein Becker Green colleagues Susan Gross Sholinsky and Nancy L. Gunzenhauser discuss "Five New Challenges Facing Retail Employers" in this month’s Take 5 newsletter. Below is an excerpt:
Retailers face new challenges every day as a result of legislation, litigation, and technology. This Take 5 addresses some of these challenges. …
In a complimentary webinar on February 20 (1:00 p.m. ET), our colleagues Frank C. Morris, Jr., and Adam C. Solander will review the ongoing impact of the Affordable Care Act (ACA) on employers and their group health plans.
The Treasury Department and the Internal Revenue Service recently issued highly anticipated final regulations implementing the employer shared responsibility provisions of the ACA, also known as the employer mandate. The rules make several important changes in response to comments on the original proposed regulations issued in December 2012 and provide ...
By Steven M. Swirsky, Adam C. Abrahms, Kara M. Maciel and Casey M. Cosentino
As previously predicted by the Management Memo on August 1, 2013 and October 30, 2013, the National Labor Relations Board (the “Board”) issued a second Notice of Proposed Rulemaking (“NPRM”) to amend its existing rules and regulations governing union elections procedures. If they look familiar when you see them, there is a good reason for that: you have seen them before.
As readers of the Management Memo are well aware, the NPRM is the latest development in the long saga of organized labor’s attempts ...
- H-1B Nonimmigrant Season Opens on April 1, 2014, for Fiscal Year 2015
- H-1B Petition Amendments May Be Required Due to Changed Job Location
- DOL's Administrative Review Board Applies "Bona Fide Termination" Rule to E-3 Worker
- Infosys Pays Record $34 Million in Settlement
- New York Federal District Court Awards Undocumented Immigrants FLSA Damages
- California Passes "Immigrant Friendly" Legislation
- OCAHO Provides ...
By: Lisa M. Watanabe
The recent holiday shopping season was not so merry and bright for a number of U.S. retailers due to price discounts, stagnant wage growth and low consumer spending. The disappointing results have prompted several retailers to close their stores and announce layoffs. Employers considering such an action should familiarize themselves with the federal Worker Adjustment and Retaining Notification (WARN) Act and related state laws that require employers to provide notice in advance of any closings or layoffs. The following is a brief overview of those ...
By: Maxine Neuhauser
Retail industry employers are likely to be particularly impacted by amendments to the New Jersey Law Against Discrimination (“LAD”), which became effective January 22, 2014. The primary focus of the amendments was the addition of pregnancy as a protected classification and the requirement for employers to provide reasonable accommodation to allow women to maintain a healthy pregnancy or to recover from childbirth.[1] Employers should be aware, however, that the new law also added a provision to the LAD expressly prohibiting employer retaliation ...
By David Jacobs and Amy B. Messigian
We would like to call your attention to a significant change to the whistleblower statute in California that went into effect on January 1. The statute, Cal. Lab. Code section 1102.5, has been substantially expanded beyond its prior form to now protect employees from retaliation for making internal complaints or even potential complaints about suspected violations of federal, state or local law.
California previously protected employees from retaliation for reporting reasonably suspected violations of state or federal laws to a ...
Our colleague Frank C. Morris, Jr., at Epstein Becker Green wrote the December issue of Take 5, with five key action items for employers in 2014. Following is an excerpt:
It’s December, and human resources professionals and law departments are reflecting on the issues addressed in 2013 and giving thanks for incident-free holiday parties. But the big question is this: What issues should get priority attention for 2014 as part of a proactive approach to workplace issues and limiting potential employment and labor law claims? This month’s Take 5 provides a “Top 5″ list of action ...
By: Jamie Friedman
This week, the Equal Employment Opportunity Commission (“EEOC”), the agency responsible for enforcing federal employment anti-discrimination and retaliation laws, released its Fiscal Year 2013 Performance Accountability Report (the “Report”). According to the Report, in 2013, the EEOC secured a record-breaking $372 million dollars from private employers for workplace discrimination, despite receiving 6,000 fewer charges of discrimination during FY 2013 (with a total of 93,727 charges) as compared to the prior year, and despite resolving ...
By: Anna A. Cohen and Nancy L. Gunzenhauser
A number of states and localities will require paid sick and bereavement leave, as well as caregiver leave benefits in 2014.
Paid Sick Leave
New York City, Jersey City, New Jersey and Portland, Oregon will require employers, with some exceptions, to provide paid sick leave in 2014. Portland’s law becomes effective on January 1, 2014, Jersey City’s law becomes effective on January 24, 2014, and New York City’s law becomes effective April 1, 2014. As we previously reported, these cities join San Francisco, California, Seattle ...
By Jennifer Nutter and Amy Messigian
’Twas the night before the holiday party and all through the halls,
Human Resources was stirring, and posting on walls!
The policies were hung on the blackboard with care with the knowledge that 2014 soon would be there!
Like a holiday carol sung every December, a tune repeats this December for California employers as in years past: review your policies. In light of the bevy of new laws that take effect on January 1, it is time to conduct a handbook and policy review to ensure compliance as the new laws roll out.
Employers should be mindful of the ...
By: Anna A. Cohen and Nancy L. Gunzenhauser
It’s that time of year! As the new year rolls in, 13 states are increasing their minimum wage. Unless noted otherwise, all increases to the minimum wage reflected below will become effective on January 1, 2014.
| State | Current | New* |
| Arizona | $7.80 | $7.90 |
| California | $8.00 | $9.00 (effective 7/1/14) |
| Connecticut | $8.25 | $8.70 |
| Florida | $7.79 | $7.93 |
| Missouri | $7.25 | $7.50 |
| Montana | $7.80 | $7.90 |
| New Jersey | $7.25 | $8.25 |
| New York | $7.25 | $8.00 (effective 12/31/13) |
| Ohio | $7.85 | $7.95 |
| Oregon | $8.95 | $9.10 |
| Rhode Island | $7.75 | $8.00 |
| Vermont | $8.60 | $8.73 |
| Washington | $9.19 |
With the Supreme Court’s influential decision in June, declaring the Defense of Marriage Act unconstitutional, the tides are moving in favor of federal legislation on gay, lesbian, and transgender workplace rights. On November 7, 2013, the Senate passed the Employment Non-Discrimination Act (“ENDA”), prohibiting employment discrimination on the basis of both sexual orientation and gender identity.
ENDA has quite the history in Congress; it has been introduced in every legislative session since 1994, except for one year. Throughout the ...
By: Andrew J. Sommer
San Francisco has just become the first municipality in the country to pass a law providing working parents and caregivers the “right to request” flexible or predictable work schedules. The law, which will take effect on January 1, 2014, applies to employers with 20 or more employees within the City of San Francisco. Known as the Family Friendly Workplace Ordinance, the new law allows San Francisco-based employees, after completing six months of employment, to request a flexible or predictable working arrangement so that they can assist with caregiving ...
Our colleague Kara M. Maciel of Epstein Becker Green wrote a wage and hour update in this month’s Take 5 labor and employment newsletter.
Here’s a preview of the five items:
1. IRS Will Begin Taxing a Restaurant's Automatic Gratuities as Service Charges
2. The New DOL Secretary, Tom Perez, Spells Out the WHD's Enforcement Agenda
3. DOL Investigates Health Care Provider and Obtains $4 Million Settlement for Overtime Payments
4. Federal Court Strikes Down DOL Tip Pooling Rule
5. Take Preventative Steps When Facing WHD Audits
Read the full article here.
After settling two religious discrimination suits with the Equal Employment Opportunity Commission (“EEOC”) last month, clothing retailer Abercrombie & Fitch scored a big win this week in another religious discrimination case before the Tenth Circuit Court of Appeal, which found that the EEOC did not prove its failure to accommodate claim for a Muslim job applicant denied hire by an Abercrombie store in Oklahoma because she wore a hijab (a religious headscarf), reversing a lower court.
Ordering judgment for Abercrombie, the Tenth Circuit found that the EEOC ...
We recommend this recent client alert on Epstein Becker Green's website: "Special Immigration Alert: The Immigration Ripple Effect of a Government Shutdown," by Robert Groban, Jr., Pierre Georges Bonnefil, Patrick Brady, Jang Im, and Greta Ravitsky, our colleagues at Epstein Becker Green.
Following is an excerpt:
The looming prospect of a Government shutdown will have a significant impact on the immigration process. Activities of the U.S. Citizenship and Immigration Services (USCIS) will be largely unaffected because it is funded by the fees it collects. The shutdown ...
A common complaint from retail employers is that employees requesting FMLA leave often submit Certifications from health care providers that are incomplete (one or more of the entries are blank) or insufficient (the information provided is vague, ambiguous, or non-responsive). Employers are not required to automatically grant a leave of absence upon receipt of a deficient Certification. Rather, there are several things an employer can do to ensure that it is granting leave for a qualifying reason and for an appropriate duration.
If the Certification is ...
On September 12, 2013, the Consumer Financial Protection Bureau (CFPB) issued a bulletin warning employers that they cannot require their employees to receive wages on payroll cards. The CFPB's bulletin was issued amid the growing unrest among workers about the high and unexpected fees often associated with payroll cards. Critics say that the fees may be so high that employees end up making less than the minimum wage.
In recent years, there has been an increasing amount of employers (especially in the retail and food-service industries) who have adopted this ...
We’d like to recommend an upcoming complimentary webinar, “Addressing and Responding to Workplace Violence and Active Shooter Scenarios to Protect Your Employees” (Oct. 2, 2:00 p.m. EDT), by our Epstein Becker Green colleagues Kara M. Maciel, Susan Gross Sholinsky, and Christopher M. Locke, with Daniel Hess and Lynne Cripe of The KonTerra Group, an employee assistance program provider that regularly counsels employees undergoing stressful life events that can lead to violence.
Below is their description of the event:
Violence in the workplace can range from bullying and ...
In this month’s Take 5 newsletter, I discuss how California is unique for making numerous types of protected leaves of absence available to employees. All of these options can add up to a lot of protected leave.
Following is from the introduction:
National employers often find it challenging to navigate the employment laws of the various states in which they do business. In most cases, the easiest solution may be to adopt national policies that follow federal law. This process will not work, however, for employers that do business in California, where state protections are often more ...
We recommend this recent post on the Hospitality Labor and Employment Law blog: “IRS Releases Proposed Rules on Employer's Information Reporting Requirements Under the Employer Mandate of the Affordable Care Act,” by Kara Maciel, Adam Solander, and Brandon Ge, our colleagues at Epstein Becker Green.
Following is an excerpt:
On September 5, 2013, the Internal Revenue Service (“IRS”) released two proposed rules to implement important reporting requirements under the Patient Protection and Affordable Care Act (“ACA”), which will help determine penalties under the ...
Until recently, California retail employers could leverage the threat that employees suing them for nonpayment of wages (including sales commissions), fringe benefits, or health and welfare or pension fund contributions would have to pay the employer’s attorneys’ fees in the event that the claim was unsuccessful. Labor Code Section 218.5 provided that the court “shall” award the “prevailing party” its attorneys’ fees in such cases (assuming a request was made at the beginning of the suit).
It had long been argued by attorneys representing ...
By: Robert Groban and Susan Gross Sholinsky
Recent settlements with Forever 21 and Macy’s announced by the U.S. Justice Department’s Office of Special Counsel (“OSC”) underscore the importance to retail employers of training staff regarding the anti-discrimination provisions of the Form I-9 requirements.
Most employers are familiar with the Form I-9 requirements that direct employers to obtain original documentation establishing the identity and work authorization of all new employees hired since November 7, 1986. In their eagerness to satisfy their Form I-9 ...
Our blog contributor Anna A. Cohen, an Associate in the Labor and Employment practice at Epstein Becker Green, was quoted in an article titled “TGI Fridays Busted for Family Leave Violations.”
Following is an excerpt:
The leave policy of TGI Fridays violates the Family and Medical Leave Act, and the popular restaurant chain has agreed to change its company-wide policy and pay one employee back wages, according to the Department of Labor (DOL).
The DOL announced the company's agreement on Aug. 7, following an investigation of a TGI Fridays restaurant in Shreveport, La. There, an ...
A recent article in Bloomberg BNA's Health Insurance Report will be of interest to retail industry employers: "ACA's Employer 'Pay or Play' Mandate Delayed - What Now for Employers?" by Frank C. Morris, Jr., and Adam C. Solander, colleagues of ours, based in Epstein Becker Green's Washington, DC, office. Following is an excerpt:
The past few weeks have changed the way that most employers will prepare for the employer ‘‘shared responsibility'' provisions of the Affordable Care Act (ACA). Over the past year or so, employers have scrambled to understand their obligations with ...
Earlier we posted about the increase in domestic violence and the reauthorization of the Violence Against Women Act, which was extended in February 2013, and expanded to provide coverage to both male and female victims of various types of domestic violence. (See “With Domestic Violence Increasing, What Should Employers Do?”) A growing number of states have followed the federal lead and undertaken steps to protect domestic violence victims. On July 17, 2013, New Jersey joined those states and enacted the New Jersey Security and Financial Empowerment Act
Our Epstein Becker Green colleague Stuart M. Gerson recently commented in an article titled "4th Circuit Upholds ACA's Employer Mandate, Says Insurance Regulation Within Commerce," by Mary Anne Pazanowski, in Bloomberg BNA's Health Care Daily Report. Following is an excerpt:
A unanimous U.S. Court of Appeals for the Fourth Circuit July 11 declared the Affordable Care Act's employer mandate a valid exercise of Congress's power to regulate commerce under the U.S. Constitution's Commerce Clause (Liberty University Inc. v. Lew, 4th Cir., No. 10-2347, 7/11/13).
In an opinion ...
Bloomberg BNA's Daily Labor Report recently published an article coauthored our Epstein Becker Green colleagues Kara M. Maciel and Adam C. Solander: "For Employers with High Turnover and Large Numbers of Seasonal Workers, the ACA Creates Unique Compliance Issues." (Click to download the article in PDF format.)
Following is an excerpt:
The Affordable Care Act provides unique compliance obligations for employers in certain industries, such as the retail, lodging, restaurant, and grocery sectors, many of which employ large numbers of part-time and seasonal employees, and may ...
Our colleagues Kara Maciel, Frank C. Morris Jr., Elizabeth Bradley, and Adam Solander have posted a client advisory on the recent ACA employer mandate delay, exploring the ramifications and unresolved issues that employers should consider. Following is an excerpt:
In reaction to employers' concerns about the many difficulties posed in efforts to comply with the Employer Mandate provisions of the Affordable Care Act ("ACA"), the Obama administration ("Administration") announced late yesterday that it is delaying the implementation of the penalty provisions and other aspects ...
Our colleague Amy B. Messigian at Epstein Becker Green recently posted “Supreme Court Decision Sets High Bar for Establishing Retaliation Claims Under Title VII” on the Health Employment and Labor blog, and we think retail employers will be interested.
Following is an excerpt:
In University of Texas Southwestern Medical Center v. Nassar, one of two employment-related opinions issued on Monday by the Supreme Court, a narrow majority held that a retaliation claim brought under Title VII of the Civil Rights Act of 1964 must be proved according to a strict but for causation ...
In a 5-4 decision the dissent termed “decidedly employer-friendly,” the Supreme Court held on June 24, 2013 that only employees who have been empowered by the employer to take tangible employment actions against a harassment victim constitute “supervisors” for the purpose of vicarious liability under Title VII. Per the holding in Vance v. Ball State University, employees who merely direct the work activities of others, but who lack the authority to take tangible employment actions, will no longer be considered supervisors under Title VII.
Under ...
By Jennifer A. Goldman
As the summer internship season gets underway, unpaid interns are continuing to file a spate of lawsuits claiming violations of the federal Fair Labor Standards Act (“FLSA”) and state wage and hour laws. On May 29, 2013, fashion designer Norma Kamali was slapped with a lawsuit from a former apprentice filed in New York federal court. This lawsuit continues a trend of unpaid interns suing employers including the Hearst Corporation, Fox Searchlight Pictures, Elite Model Management, and the Charlie Rose Show.
According to the Complaint, former apprentice ...
In recent years, retailers, grocery stores and banks have been hit with a wave of lawsuits over California’s suitable seating requirements set forth in §14 of the Industrial Welfare Commission’s Wage Orders. (See http://www.dir.ca.gov/iwc/wageorderindustries.htm for § 14 in 16 of the 17 industry-specific Wage Orders). Despite the surge in lawsuits, there continues to be several unanswered questions regarding the interpretation of subsections (A) and (B) to §14 which state the following:
- All working employees shall be provided with suitable seats when ...
By Gretchen Harders and Michelle Capezza
On May 8, 2013, the Employee Benefits Security Administration of the Department of Labor (the “DOL”) issued Technical Release 2013-02 (the “Release”) providing important guidance under the Patient Protection and Affordable Care Act, as amended by the Health Care and Education Reconciliation Act of 2010 (the “Affordable Care Act”) with regard to the requirement that employers provide notices to their employees of the existence of the Health Insurance Marketplace, generally referred to previously as the Exchange. These ...
On March 8, 2013, the USCIS published a notice in the Federal Register announcing that it had recently revised the Employment Eligibility Verification form (“Form I-9”), and that employers must start using this new form by May 7, 2013. Employers using prior versions of the Form I-9 on or after May 8, 2013, will violate the law and be subject to worksite enforcement fines and other penalties.
[Excerpt from EBG April 2013 Immigration Alert. Click here to read the entire Immigration Alert.]
By Marisa S. Ratinoff and Amy Messigian
In a matter of first impression, the California Court of Appeal held last month that an employee who exhausts all permissible leave under the Pregnancy Disability Leave (“PDL”) provisions of the California Fair Employment and Housing Act (“FEHA”) and is terminated by her employer may nevertheless state a cause of action for discrimination.
In Sanchez v. Swissport, Inc., the plaintiff, a former employee of Swissport, alleged that she was diagnosed with a high risk pregnancy requiring bed rest in February 2009 and was due to give birth in ...
Epstein Becker Green is pleased to announce the availability of a Wage and Hour Division Investigation Checklist, which provides retail employers with valuable information about wage and hour investigations and audits conducted by the U.S. Department of Labor (DOL). Like EBG’s first-of-its kind Wage and Hour App, which provides detailed information about federal and state laws, the Checklist is a free resource offered by EBG.
The Checklist provides step-by-step guidance on the following issues: preparation before a Wage and Hour Division investigation of the DOL; ...
Last month, the California Court of Appeal ruled that a former employee of Forever 21 must try her claims against the retailer in arbitration, enforcing the company’s employment arbitration policy and reversing a lower court decision finding the agreement unconscionable under California law. The plaintiff, Maribel Baltazar, alleged that she had been discriminated against by the retailer due to her race and sexually harassed by a supervisor and coworker. She filed a complaint against Forever 21 and several of its employees in the Los Angeles Superior Court and ...
For the second time since the enactment of New York's Wage Theft Prevention Act ("WTPA"), New York employers must issue a written annual notice and acknowledgment of pay rates and pay dates ("Notice") to all New York employees between January 1, 2013, and February 1, 2013.
In February 2012, after a flurry of negative feedback from employers statewide, the New York State Senate passed a bill striking the annual Notice requirement from the list of employer responsibilities set forth in Section 195.1 of the New York State Labor Law. However, because the bill remains dormant in the New York ...
Please join Epstein Becker Green’s Health Care & Life Sciences and Labor & Employment practitioners as we continue to review the Affordable Care Act and its ongoing impact on retail employers and their group health plans.
In less than a year, retail employers employing at least 50 full-time employees will be subject to the Employer Shared Responsibility provisions. Under these provisions, if retail employers do not offer health coverage or do not offer affordable health coverage that provides a minimum level of value to their full-time employees, they may be subject to a tax ...
By: Michael S. Kun
The latest wave of class actions in California is one alleging that employers have not complied with obscure requirements requiring the provision of “suitable seating” to employees – and that employees are entitled to significant penalties as a result.
The “suitable seating” provisions are buried so deep in Wage Orders that most plaintiffs’ attorneys were not even aware of them until recently. Importantly, they do not require all employers to provide seats to all employees. Instead, they provide that employers shall provide “suitable seats when ...
On Tuesday, December 18, Epstein Becker Green attorneys Gretchen Harders, Frank C. Morris, Jr., and Adam C. Solander offered a one-hour webinar titled “What Employers Need to Know Now!” as the second webinar in a series on the New ACA Implementation Regulations: Employer Impact.
The webinar included:
- ACA implementation timeline
- Structure of the law and basic concepts affecting retail employers
- Critical employer decision making and planning for 2014
- Alternative plan design options available to retail employers
The webinar recording and presentation slides for “What ...
Please join Epstein Becker Green’s Health Care & Life Sciences, Employee Benefits, and Labor & Employment practitioners as we continue to review the Affordable Care Act and its ongoing impact on retail employers and their group health plans and programs.
Since the Presidential election, The U.S. Department of Health and Human Services is moving quickly to implement the Affordable Care Act. Rules have been released in the past few weeks concerning participation in federal exchanges, discrimination based on pre-existing conditions, essential health benefit requirements, and ...
Please join Epstein Becker Green’s Health Care & Life Sciences and Labor & Employment practitioners in a webinar series for retail employers. Registration is complimentary.
On Friday, November 30, Epstein Becker Green attorneys Frank C. Morris, Jr., and Adam C. Solander offered a one-hour webinar titled “The New Wellness Program Regulations, Part of a Webinar Series on the New ACA Implementation Regulations: Employer Impact.”
The webinar discussed:
- Proposed regulations and the impact these regulations could have on your overall wellness strategy
- Areas where employer ...
Our colleagues Maxine Neuhauser and Amy E. Hatcher have written a client advisory: "Employer Posting Requirements Under New Jersey Law." Following is an excerpt:
The list of employee notices that New Jersey employers are required to post has grown this year. Accordingly, as 2012 comes to a close, New Jersey employers should take some time to review the notification requirements relating to employees' workplace rights and responsibilities under state law.
Employers are mandated under New Jersey law to display official posters informing their employees of the law relating to ...
In rolling out arbitration policies, retail employers should heed the recent California Court of Appeal decision Gorlach v. The Sports Club Co. That case gives employers reason to be cautious when asking employees to sign agreements requiring them to arbitrate any disputes arising out of their employment. In that case, the trial court found the former Director of Human Resources, who was responsible for obtaining employees’ signatures on a mutual agreement to arbitrate claims, intentionally misled the company into believing that had signed the agreement ...
On September 8, 2012, California Governor Jerry Brown signed the Workplace Religious Freedom Act into law. The law, which becomes effective on January 1, 2013, amends the California Fair Employment and Housing Act (the “Act”) to include a religious dress practice or a religious grooming practice as a belief or observance covered under the Act’s protections against religious discrimination.
The new law also specifies that it is not reasonable to segregate an employee from the public or other employees as an accommodation of the individual’s religious ...
On October 11, 2012, the California Supreme Court granted review of Patterson v. Domino's Pizza to address the circumstances in which a defendant franchisor may be held vicariously liable for tortious conduct by a supervising employee of a franchisee.
Like many fast food chains, Domino’s Pizza (“Domino’s”) is a franchising operation in which individual franchisees operate storefronts under the Domino’s name.
In Patterson, the plaintiff, a sixteen-year-old employee of a Sui Juris, a Domino’s Pizza franchisee (“Sui Juris”), alleged that she ...
By: Michael S. Kun, as appeared on the Wage & Hour Defense blog
Employers with operations in California have become aware in recent years of an obscure provision in California Wage Orders that requires “suitable seating” for some employees. Not surprisingly, many became aware of this provision through the great many class action lawsuits filed by plaintiffs’ counsel who also just discovered the provision. The law on this issue is scant. However, at least two pending cases should clarify whether and when employers must provide seats – a case against Bank of America that is ...
We are pleased to announce today that the Employer Defense Law Blog has a new look and a more focused approach. The Employer Defense Law Blog will now be known as the Retail Labor and Employment Law Blog, which will provide insights, news, updates, and commentary on labor and employment law developments affecting employers in the retail industry.
For more than three decades, Epstein Becker Green attorneys have been advising and representing retail clients on a wide array of matters that impact their businesses. Our services have included, among other things, drafting worldwide ...
by Barry Asen
New York management-side attorneys and their clients were surprised and chagrined when they read Bennett v. Health Management Systems, Inc., a case decided in December 2011 by the New York State Supreme Court, Appellate Division, First Department (“the First Department”), which sits in Manhattan. Writing for the unanimous five-judge court, Justice Rolando Acosta directed that because the New York City Human Rights Law (“NYCHRL”) explicitly provides that it should be liberally construed, summary judgment motions should only be granted in the ...
by: Lauri F. Rasnick and Margaret C. Thering*
Title VII of the Civil Rights of 1964 (“Title VII”) not only prohibits employers from discriminating against employees or prospective employees because of their religion, but it also requires employers to “reasonably accommodate” the religious practices of employees provided that such reasonable accommodations do not cause the employer “undue hardship.” According to the EEOC Compliance Manual, reasonable accommodations may include, among others, scheduling changes, voluntary shift swaps, lateral transfers, and ...
The Seventh Circuit Court of Appeals recently held, in a case of first impression, that a manager who was not the actual decision-maker in an employee’s discharge could still be held personally liable under Section 1981 of the Civil Rights Act of 1866 under a “cat’s paw” theory of liability.
In Smith v. Bray, Darrel Smith claimed that he had been subjected to racial harassment by his immediate supervisor, James Bianchetta, and that he was fired because he reported this harassment to a human resources manager, Denise Bray. The employer’s liability was ...
As further evidence of the Equal Employment Opportunity Commission’s (“EEOC”) focus on “caregiver” discrimination, the EEOC has signaled its strong support for protecting working women from discrimination based on lactation or breastfeeding in a case now pending before the U.S. Court of Appeals for the Fifth Circuit.
The EEOC maintains that discriminating against a woman for lactation or breast pumping is prohibited sex discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”) as amended by the Pregnancy ...
by Frank C. Morris, Jr., and Allen B. Roberts
The U.S. Department of Labor (“DOL”) Administrative Review Board (“ARB”) has sounded an alarm that needs to be heard by accounting firms, law firms, and other consultants, advisors, and providers of services to publicly traded companies. With its recent decision in Spinner v. David Landau & Associates, LLC, ARB Case Nos. 10-111, 10-115 (May 31, 2012), the ARB continued its expansion of whistleblower protection, holding that Sarbanes-Oxley (“SOX”) whistleblower protections extend to employees of privately held ...
Continuing its effort to “outreach” to non-union employees and educate them on their rights under the National Labor Relations Act, the NLRB has launched a new webpage on Concerted Activity. The NLRB’s announcement of its new webpage made clear the page is designed to inform employees of their rights “even if they are not in a union.”
The webpage, in addition to giving basic descriptions of concerted activities, asserts that “The law we enforce gives employees the right to act together to try to improve their pay and working conditions or fix job-related ...
by Margaret C. Thering and Lauri F. Rasnick
Violence against women has been in the headlines lately – the reauthorization of the Violence Against Women Act is engendering vigorous debate, and as of last month, federal agencies were ordered to implement policies to assist their employees who are victims of domestic violence. Also last month, the National Institute for Occupational Safety and Health and the Injury Control Research Center at West Virginia University published a paper entitled “Workplace Homicides Among U.S. Women: The Role of Intimate Partner Violence” in the ...
Epstein Becker Green is proud to announce that it has received the 2012 Chambers USA Award for Excellence in the Healthcare category. The results were announced at an awards dinner held on Thursday, June 7, 2012, in New York. Other firms nominated in the Healthcare category included Akin Gump Strauss Hauer & Feld LLP; Hogan Lovells US LLP; King & Spalding LLP; McDermott Will & Emery LLP; Ober Kaler Grimes & Shriver PC; and Proskauer Rose LLP.
The Chambers USA Awards for Excellence are based on research for the 2012 edition of Chambers USA: America's Leading Lawyers for Business and reflect ...
by James S. Frank, Steven M. Swirsky, Adam C. Abrahms, Donald S. Krueger, and D. Martin Stanberry
In a sharp setback for the National Labor Relations Board (the "Board"), a federal district court in Washington, D.C. (the "Court"), struck down the Board's election rules, which took effect on April 30, 2012, on technical grounds, holding that the Board did not have a properly constituted quorum of three members when it voted to change its election rules and procedures. See Chamber of Commerce v. NLRB, No. 11-2262 (JEB), Slip Op., 2012 WL 1664028 (D.D.C. May 14, 2012). This decision comes ...
by Anna A. Cohen and Desiree E. Busching
On April 20, 2012, in a noteworthy decision, the Equal Employment Opportunity Commission (“EEOC”) ruled that Title VII of the Civil Rights Act of 1964 (“Title VII”) protects transgender individuals from disparate treatment. Macy v. Holder, Appeal No. 0120120821, Agency No. ATF-2011-00751 (EEOC, Apr. 20, 2012). The case therefore opens up a new protected category which, while already recognized under many state and local anti-discrimination statutes and by some federal courts, had not previously been formally recognized by the ...
by Jeffrey M. Landes, Susan Gross Sholinsky, and Jennifer A. Goldman, with Teiko Shigezumi
The On April 25, 2012, the U.S. Equal Employment Opportunity Commission ("EEOC") issued an enforcement guidance document titled "Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et. seq." (the "Guidance"), with respect to employers' use of arrest and conviction information in connection with employment decisions.
Disparate Treatment v. Disparate Impact
by Carrie Corcoran, Matthew T. Miklave, and Susan Gross Sholinsky
The U.S. Equal Employment Opportunity Commission ("EEOC") has issued a long-awaited final rule ("Final Rule"), which amends the regulation on the "reasonable factors other than age" ("RFOA") defense available under the Age Discrimination in Employment Act ("ADEA"). The Final Rule is available at 29 C.F.R. Part 1625. The EEOC previously published proposed rules regarding the RFOA defense on March 31, 2008, and then on February 18, 2010. The Final Rule takes into account public comments received on those proposals.
Like it or not, we live in a digital-age, and how people choose to define themselves is often readily showcased on social networking sites such as Facebook. Given the candid manner many individuals express themselves on their social networking profiles, it's only natural that employers have started to pay attention. Why wouldn't they? Employers want to pick the right person for the job and that their employees do not disparage the company or act in a manner that threatens workplace security. But when news spread that a few employers were demanding access to ...
by Amy J. Traub, Anna A. Cohen, and Jennifer A. Goldman
Effective April 3, 2012, the Equal Employment Opportunity Commission ("EEOC") extended its existing recordkeeping requirements under Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act to employers covered by Title II of the Genetic Information Nondiscrimination Act of 2008 ("GINA"). The burden on employers to comply with the recordkeeping requirements under GINA will likely be minimal, as employers should already have recordkeeping policies in effect for personnel and other employment ...
by Peter M. Panken and Jennifer A. Goldman
Gary Ehrhard, an air traffic controller for the Federal Aviation Administration asked for Family Medical Leave Act (“FMLA”) leave to care for his children, 8 and 10 years old. Because they did not suffer from a serious health condition, he was denied FMLA leave, and he claimed that he was later retaliated against for asking for the time off. He discovered that female air traffic controllers were allowed the kind of leave he sought. He sued the Department of Transportation (”DOT”) for sex discrimination and retaliation for ...
The New York Court of Appeals recently upheld a jury verdict in favor of a brokerage firm employee who claimed that his employer breached an oral promise (and violated New York wage law) when it failed to pay him a guaranteed bonus of $175,000, to be paid at the end of his first year of employment. The discussions with the hiring manager regarding compensation were not put in writing. Nevertheless, the employee subsequently signed an acknowledgment in the formal employment application that “compensation and benefits are at will and can be terminated, with or ...
(Revised as of 4/12/12)
On March 28, 2012, legislation was introduced before the New York City Council (“NYC Council”) that, if enacted, will extend employment discrimination protections to unemployed job seekers. In a climate of persistently high unemployment rates and many discouraged – and disgruntled – jobless persons, it should come as no surprise that, along with New York City, legislatures across the nation are considering drastic measures. Some of these laws have even passed.
A year ago, New Jersey was the first state out of the gate when it ...
by Michael A. Kalish and Adam Tomiak
Sens. Tom Harkin, D-Iowa, Chuck Grassley, R-Iowa, and Patrick Leahy, D-Vt. recently introduced the Protecting Older Workers Against Discrimination Act, a bill intended to lessen the burden on age discrimination plaintiffs under the Age Discrimination in Employment Act (“ADEA”). The bill seeks to return age discrimination plaintiffs to the standard the Senators believe they were subject to prior to the Supreme Court’s ruling in Gross v. FBL Financial Services, Inc., 557 U.S. __, 129 S. Ct. 2343 (2009).
In Gross, the Supreme Court held ...
By Lauri F. Rasnick and Margaret C. Thering
The Equal Employment Opportunity Commission (“EEOC”) has once again turned its focus to caregiver discrimination. On February 15, 2012, for the first time in nearly 30 years, the EEOC held a meeting about caregiver and pregnancy discrimination. As “caregivers” are not specifically included as a “protected category” under any federal law, the EEOC discussed the various laws which would possibly prohibit certain caregiver discrimination, such as the Pregnancy Discrimination Act, the Americans with Disabilities Act and ...
by Steven M. Swirsky and Michael F. McGahan
On January 25, 2012, the National Labor Relations Board's ("NLRB") Acting General Counsel ("AGC") Lafe Solomon issued a second report on unfair labor practice cases involving social media issues. We discussed his earlier report in our Act Now Advisory of October 4, 2011.
The new report covers an additional 14 cases, all of which fall into the same two categories as the cases discussed in the earlier report, namely: (1) termination of employees resulting from statements made in social media forums about their working conditions or their ...
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Recent Updates
- Video: How Modern Workplaces Navigate Generational Shifts: One-on-One with Jeff Landes
- Updated New York Retail Worker Safety Act Takes Effect Soon
- Video: Independent Contractor Rule, EEO-1 Reporting, and New York Labor Law Amendment - Employment Law This Week
- Colorado’s Historic AI Law Survives Without Delay (So Far)
- Disparate Impact Liability Under Fire