Is Religious Freedom on a Collision Course with Newly Gained Civil Rights?

Since the United States Supreme Court issued Obergefell in 2015, there have been dark predictions that religious freedom and other, more recently gained, civil rights protections are on a collision course. Recent developments might cause this course to run through the employment arena. In August, the Office of Federal Contract Compliance Programs (“OFCCP”) issued a directive to “incorporate recent developments in the law regarding religion-exercising organizations and individuals.” Specifically, the Directive aims to update federal policy to align it with recent Executive Orders and Supreme Court decisions.

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Webinar: Mandatory Harassment Training: What Employers Need to Know

Please join us on October 3, 2017 1:00 pm (10:00 am, Pacific Daylight Time) for a webinar to discuss this growing trend and to ensure that your practices and policies are compliant.

Avoiding harassment claims continues to be one of the most significant issues facing employers.  While many savvy employers are proactive in training their employees to act in a way that minimizes the risk of having a harassment complaint filed, a growing number of states (and some cities) have begun to pass laws mandating training.  California, Maine and Connecticut have led the way with Delaware and New York (and New York City) ready to join the ranks of the states/cities imposing their own various training requirements on employers.  More are sure to follow.

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NLRB Announces Intent to Change Joint-Employer Test

On Thursday, September 13, 2018, the National Labor Relations Board (NLRB) announced its intent to change the standard to determine joint-employment. In a September 13, 2018, news release, the Board stated that it will publish a proposed rule clarifying and restricting the standard to determine when two entities are considered a single “joint-employer” over a group of employees.  The proposed changes would limit joint-employment to employers that possess and exercise “substantial, direct and immediate control over the essential terms and conditions of employment” of another employer’s employees.  The proposed changes would also require that an employer must have exercised its control over the group of employees in more than a “limited and routine” manner.

The current standard was provided in the Board’s decision on Browning-Ferris Industries of California, Inc. d/b/a BFI Newby Island Recyclery, 362 NLRB No. 186 (2015).  The Browning-Ferris standard broadened the joint-employer standard to include employers that possess the right to control another entity’s employees regardless of whether the employer exercised that control.  Under the proposed new standard, “indirect influence and contractual reservations of authority would no longer be sufficient to establish a joint-employer relationship.”

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New Noncompete Agreement Law in Massachusetts

Introduction

On July 31, 2018, after years of debate and attempts at compromise, the Massachusetts legislature finally passed a bill that will fundamentally alter the use of noncompete agreements in the Commonwealth.  The bill was signed by Governor Baker on August 10, 2018, and the law will go into effect on October 1, 2018.  The new law will apply only to agreements that are signed on or after October 1, 2018.

The law does not prohibit the use of noncompete agreements altogether, but it does create specific standards regarding the enforceability of such agreements.

Coverage

The new law applies to employees who work or reside in Massachusetts.  A choice of law clause providing that the law of some other jurisdiction will apply will not be effective with regard to employees who have worked or lived in Massachusetts for at least 30 days prior to termination.  The law includes independent contractors within the definition of “employee” and noncompete agreements with contractors are therefore covered.  As an aside, entities engaging independent contractors should ensure that they satisfy the stringent requirements of the Massachusetts Independent Contractor law.  (M.G.L. c. 149 § 148B.)

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Noncompete Agreement Bill Finally Passes in Massachusetts

On July 31, 2018, after years of debate and attempts at compromise, the Massachusetts legislature finally passed a bill that will fundamentally alter the use of noncompete agreements in the Commonwealth.  If the bill is signed by Governor Baker, the law will go into effect on October 1, 2018, and will apply only to agreements that are signed after that date.  The bill does not prohibit the use of noncompete agreements altogether, but it does create specific standards regarding the enforceability of such agreements.  Click here for the full alert.

Webinar: What Employers Should Know About Class Waivers After Epic Systems Decision

Join LeClairRyan on Thursday, August 23 starting at 1 pm ET for this upcoming event.

In a decisive 5-4 opinion, the Supreme Court held in Epic Systems Corp. v. Lewis that class action waivers in employment arbitration agreements must be enforced under the Federal Arbitration Act (FAA), and neither the FAA’s saving clause nor the National Labor Relations Act (NLRA) suggest otherwise. This case reaffirms longstanding federal policy favoring arbitration.

This complimentary one hour webinar will discuss the Court’s findings, its potential impact on both employers and employees, the pros and cons of employment arbitration agreements, and best practices designed to maximize the enforceability of employment arbitration agreements.

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What Will Janus Mean for Employers?

In recent decades unions have faced several challenges.  First, union membership continues to decline.  As of 2017, 14.8 million workers in America (10.7% of the workforce) were represented by a union, which is down from 17.7 million in 1983 (20.1% of the workforce).1  Second, more than half the states have passed “right-to-work” legislation, which prohibits employees from being required to join a union or pay an agency fee as a condition of employment.2  With Kentucky and Missouri enacting legislation in 2017, 28 states are now “right-to-work” states.

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States Continue To Pass Equal Pay Legislation

While the Federal Equal Pay Act, which mandates employers to pay men and women the same pay for the same work, has been the law for 55 years, salary surveys continue to show that women are paid less than men.  In an effort to address this pay gap, states around the country are passing their own legislation.  Some of the states have enacted similar provisions, while a few have enacted unique provisions.

Ban On Salary History Inquiries

Studies have shown that one factor contributing to ongoing pay discrepancies is that an employee’s starting salary with an employer is often based upon the individual’s salary with their previous employer.  Consequently, discriminatory pay discrepancies may follow an individual through his or her career.  In an effort to address this issue, a growing number of states have banned employers from inquiring into an applicant’s salary or compensation history during the hiring process.  These states include:

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So You Think You’ve Got Independent Contractors? Well, Think Again

Virginia law requires most employers to carry workers’ compensation insurance in order to provide specific benefits to workers injured during the course of their work and to provide employers with protection from civil suits for those work-related injuries. Generally, an employer with more than three employees is required to carry workers’ compensation coverage. However, in the last decade especially, employers have more frequently misclassified employees as independent contractors in an effort to keep the number of employees below three and to avoid purchasing workers’ compensation coverage.

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The Tip Income Protection Act — Changes to Tip Pooling

The Tip Income Protection Act of 2018 (“the Act”) was signed into law on March 23, 2018 as part of the omnibus spending bill. The Act, buried in the 2,323 pages of the bill, amends the Fair Labor Standards Act (FLSA) and rolls back the Department of Labor’s 2011 regulation on tip pools.

The Act allows for employees who do not customarily receive tips to participate in tip pools, where the employer does not take a tip credit. The “employees” referred to in this act also include the back of the house employees like busboys, chefs, line cooks, and janitors. The Act makes it very clear that tips belong to the employees, and not employers, stating:

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