The New York State Department of Labor (“NYSDOL”) has issued guidance (the “Guidance”) and answers to frequently asked questions (“FAQs”) relating to various aspects of the newly-enacted legislation providing emergency sick leave, expanded New York Paid Family Leave (“NYPFL”) and expanded short-term disability benefits to certain employees unable to work because of COVID-19. Our previous analysis of this legislation (the “Act”) and what it means for employers can be found here: https://blogs.orrick.com/employment/2020/03/. READ MORE
James McQuade, an employment partner in the New York office, represents clients in high-stakes employment, trade secrets and restrictive covenant litigation throughout the United States.
Jim's practice focuses on matters involving trade secret misappropriation and the enforcement of post-employment restrictions. Jim has conducted numerous temporary restraining order and preliminary injunction hearings in connection with these types of cases. Jim also has extensive experience defending employers on a broad range of employment matters, including whistleblowing, discrimination, retaliation and wrongful termination matters.
In recognition of his career trade secrets and restrictive covenant work, Jim has been inducted into the Legal 500 Hall of Fame for Trade Secrets Litigation. Jim also serves as Co-Editor-In-Chief to Orrick's acclaimed Trade Secrets Watch blog.
Posts by: James McQuade
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On March 14, 2020, the House of Representatives passed HR 6201, the Families First Coronavirus Response Act. Now, the Senate will consider the bill. As currently drafted, the bill will go into effect no later than 15 days after it is enacted and will remain in effect until December 31, 2020. Among other proposals, the bill proposes an emergency FMLA expansion, emergency paid sick leave and an employer tax credit, all of which would apply to employers with fewer than 500 employees. READ MORE
On February 7, 2020, Chief U.S. District Judge Kimberly Mueller of the Eastern District of California issued a detailed order explaining the court’s January 31, 2020 grant of a preliminary injunction enjoining the State of California from enforcing AB 51.
As we explained in previous coverage, AB 51 was scheduled to go into effect on January 1, 2020, and would have prohibited mandatory workplace arbitration agreements. Under AB 51, employers may not, “as a condition of employment, continued employment, or the receipt of any employment-related benefit, require an applicant or employee to waive any right, forum, or procedure” for Fair Employment and Housing Act (“FEHA”) and Labor Code claims. Violations of the new statute carry hefty consequences, including criminal penalties. READ MORE
As the holiday season approaches, it is a good time for employers to review their policies and take preventative measures to ensure festivities do not get out of hand at office holiday parties. The dangers of blurring the lines between professional conduct and holiday celebrations was demonstrated in a recent case out of the United States District Court for the Eastern District of California. The lawsuit alleges that following an office holiday party, a managerial employee invited several co-workers to a second location to continue celebrating. It further alleges that toward the end of the night, the manager and one of his reports ended up alone in the hotel room and the manager sexually assaulted her.
On July 22, 2019, the Ninth Circuit withdrew its recent decision in Vazquez v. Jan-Pro Franchising International, Inc., and ordered that it would certify to the California Supreme Court the question of whether the worker classification test articulated in Dynamex Operations West v. Superior Court applies retroactively. READ MORE
As was reported late last year, the Department of Labor (“DOL”) in 2018 published an Opinion Letter (FLSA2018-27), effectively rescinding the agency’s 80/20 tip credit rule. In general, the tip credit rule permits employers in tip-producing industries, such as the restaurant industry, to compensate employees at a minimum rate of $2.13 per hour, and to take a credit against the tips an employee receives. An employer is additionally responsible for the remainder of an employee’s wages, if any, between what the employee earned in wages and tips combined, and the federal minimum wage. READ MORE
On November 8, 2018, the Department of Labor published an Opinion Letter (FLSA2018-27) reissuing its January 16, 2009 guidance (Opinion Letter FLSA2009-23) and reversing the agency’s Obama-era position on the 20% tip credit rule. The letter marks another significant shift in Department of Labor policy, and among the first major changes in federal tip credit policy over the last decade. READ MORE
On July 26, 2018, the California Supreme Court found that employers must compensate workers for the time they spend on certain menial tasks after clocking out of their shifts. In a unanimous decision, the Court held that California wage law did not bar a putative class action brought by a former Starbucks employee who routinely spent several minutes on trivial close-out tasks after his shift. READ MORE
As a result of recent activity at the D.C. Circuit and the National Labor Relations Board (the “NLRB”), the joint employer standard is in a state of flux. On April 6, 2018, the D.C. Circuit decided that it will review the NLRB’s ruling in Browning-Ferris Industries of California, Inc. (“Browning-Ferris”), a controversial decision concluding that a company and its contractor could be found to be joint employers even if the company did not exert overt control over workers’ terms and conditions of employment. In December 2017, the D.C. Circuit remanded the case in light of the NLRB’s decision in Hy-Brand Industrial Contractors, Ltd. and Brandt Construction Co. (“Hy-Brand”), which overruled the broad Browning-Ferris standard for joint employment and returned to a more employer-friendly standard. But, the NLRB recently vacated its Hy-Brand decision based on a conflict regarding one of its Members. Now, the D.C. Circuit likely will weigh in on the appropriate scope of the joint employer standard. READ MORE
As Congress considers a bill to change the definition of joint employment under two federal statutes, the Supreme Court is poised to decide whether to take up the issue under the Fair Labor Standards Act, the U.S. Department of Labor has withdrawn administrative guidance issued by the prior administration, and several states have enacted or considered joint employment legislation. In this rapidly evolving legal landscape, companies may want to keep a close eye on a doctrine that can lead to unexpected legal exposure. READ MORE