In the past few years, the American workforce has shifted dramatically. By some estimates, as many as 53 million Americans are now self-employed. Many of them work in the “gig” or “on demand” economy, which has emerged as the new norm for doing business. In general, the gig economy offers traditional services, such as transportation, food delivery, and housing, in a more efficient way by connecting consumers directly to service providers. But, as with many innovations, gig economy companies face challenges from multiple fronts due to mounting legal pressures. Employment laws written in the 1930s haven’t kept up with the pace of innovation, and trying to apply them to the way services are delivered today is like trying to fit a square peg into a round hole. READ MORE
On Friday, June 16, 2017, the United States Department of Justice (DOJ) filed an amicus brief reflecting a change of heart when it comes to the enforceability of class waivers in arbitration agreements. In an unprecedented move, President Trump’s acting solicitor general, Jeffrey B. Wall, said his office had “reconsidered the issue and has reached the opposite conclusion” as the Obama administration in a set of consolidated cases currently before the U.S. Supreme Court, NLRB v. Murphy Oil USA Inc. (Docket Nos. 16-285, 16-300, and 16-307).
Earlier this month, the United States Department of Labor (“DOL”) announced its intent to rescind the Obama-era regulations regarding persuader activity and reporting requirements pursuant to Section 203(c) of the Labor-Management Reporting and Disclosure Act (“LMRDA”). Under the Obama administration, persuader activity was considered activity by anyone engaged to help management discourage employees from forming or joining a labor union, including lawyers hired to advise management on how to discourage union organizing activity. The official rescission of the Rule was published in the Federal Register on June 12, 2017.
Effective June 7, 2017, the Department of Labor (“DOL”) has withdrawn informal guidance on independent contractors and joint employment. The guidance on independent contractors came from an Administrator’s Interpretation released in 2015 and was the result of the DOL’s renewed focus on worker misclassification. In it, the DOL seized upon a broad definition of “employ” under the Fair Labor Standards Act (“FLSA”)—“to suffer or permit to work”—to conclude that “most workers are employees under the FLSA.” The DOL’s guidance on joint employment was released in 2016 and also came from an Administrator’s Interpretation. The guidance provided a broad interpretation of joint employment in the wake of the NLRB’s Browning-Ferris decision. It also distinguished between “horizontal” joint employment, which occurs when the employee has an employment relationship with two or more sufficiently related employers, and “vertical” joint employment, which occurs when the employee has an employment relationship with one employer (such a staffing agency or subcontractor), but economic realities show that he or she is economically dependent upon another entity.
In a press release announcing the withdrawn guidance, the DOL noted, “Removal of the administrator interpretations does not change the legal responsibilities of employers under the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act, as reflected in the department’s long-standing regulations and case law. The department will continue to fully and fairly enforce all laws within its jurisdiction, including the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act.”
Paid sick leave remains an epidemic that won’t quit. Since California enacted the Healthy Workplaces, Healthy Families Act of 2014 (Cal. Lab. Code § 245, et seq.) (“California Paid Sick Leave”), paid sick leave laws have spread to both state and local levels, requiring employers to maneuver a patchwork of laws. These laws left several unanswered questions in their wake. Indeed, the unanswered questions were so numerous that the California Legislature passed a fix-it bill of amendments revising and clarifying California Paid Sick Leave only a few months after it took effect. Despite the fix-it bill, several questions remained.
On March 29, 2017, the California Labor Commissioner, through the Division of Labor Standards Enforcement (the “DLSE”), attempted to provide further guidance by issuing an update to its California Paid Sick Leave: Frequently Asked Questions (“FAQs”). The updated FAQs address questions regarding the use of “grandfathered” paid time off (“PTO”) policies and the intersection of California Paid Sick Leave and employer attendance policies. Here are the takeaways: READ MORE
Effective November 26, 2017, retail employees in New York City will be entitled to advance notice of their scheduled shifts, and the practice of “on-call shifts”–where an employee is required to be available to work but not necessarily called to work–will be prohibited. These provisions are part of new “Fair Workweek” legislation aimed at providing “predictable schedules and predictable paychecks” for retail and fast food workers in New York City.
Last week the Sixth Circuit upheld a grant of summary judgment in the employer’s favor on a former employee’s sex discrimination claim, finding plaintiff failed to meet her burden to establish a prima facie case of discrimination.
Dr. Jean Simpson was a professor at Vanderbilt University School of Medicine. While teaching at the University, Dr. Simpson started her own private consulting practice doing breast-pathology. Upon learning of Dr. Simpson’s consulting practice, the University instructed her the external employment violated the Conflict of Interest Policy, the Vanderbilt Medical Group (“VMG”) By-Laws and the VMG Participation Agreement and asked her to cease the consulting work. She refused. The University later terminated Dr. Simpson because of these violations. READ MORE
As employers well know, the Fair Labor Standards Act (“FLSA”) permits employees to file suits on behalf of themselves and others who are “similarly situated.” 29 U.S.C. 216(b). In practice, this often means large employers find themselves defending against a single or handful of employees attempting to certify a collective action that includes hundreds or thousands of employees nationwide. Many times, the collective group includes employees in states where the plaintiffs have never worked. However, as a NY federal court recently reminded us, while plaintiffs’ evidentiary burden is not onerous at this stage, lack of knowledge about the employees in other states continues to be an obstacle for plaintiffs in obtaining conditional certification. On the opposite side of the coin, this failure of evidence can be utilized by defendant employers to narrow the proposed collective group or altogether prevent the conditional certification of a collective action. READ MORE
The Commodity Futures Trading Commission (CFTC), published updated regulations Monday to bring its whistleblower bounty efforts more in line with the SEC’s. The rules were proposed last August and generally provide more robust protections to would-be whistleblowers. According to an agency press release, “In addition to strengthening anti-retaliation protections, the new amendments will add efficiency and transparency to the process of deciding whistleblower award claims and will, in many respects, harmonize the CFTC’s rules with those of the U.S. Securities and Exchange Commission’s whistleblower program.” READ MORE
Last year, the California Fair Employment and Housing Council proposed new regulations on an employer’s consideration of criminal history in making employment decisions. Those regulations were approved this year by the Office of Administrative Law after a period of public comment and are due to become effective on July 1.
New Clarification on Adverse Impact Claims READ MORE