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The Bubbler - May 2018

May 7, 2018| Blog

The California Supreme Court issued an important decision this week addressing the test for whether a worker is an independent contractor or an employee.  The U.S. Supreme Court declined to review a Seventh Circuit decision upholding an employer’s rule that a months-long leave of absence was not a reasonable accommodation.
Following in the footsteps of neighboring jurisdictions such as New York City, Albany County, and Massachusetts, on April 10, 2018, Westchester County enacted legislation to ban inquiries into a job applicant’s salary history.
New Jersey Governor Phil Murphy recently signed into law a bill that provides equal pay protections for members of certain protected classes. Governor Murphy also signed into law a bill that requires New Jersey employers to provide paid sick leave to employees.
This week, the California Supreme Court rejected the old “totality of circumstances” test to determine if a worker was properly classified as an independent contractor in favor of a new “ABC test” under which employers will be required to classify most workers as employees.
In a series of recent posts (available here and here), we discussed the expanded Massachusetts Employer Medical Assistance Contribution (EMAC) requirements, including the adoption of a new EMAC supplemental contribution.
In the wake of the #MeToo movement and the nationwide discourse over the prevalence of sexual harassment in the workplace, New York State and New York City have taken aggressive steps to implement stronger protections against workplace harassment.
In the wake of the #MeToo movement and the nationwide discourse over the prevalence of sexual harassment in the workplace, New York State and New York City have taken aggressive steps to implement stronger protections against workplace harassment.
The Ninth Circuit Court of Appeals issued an important decision last week in Rizo v. Yovino, holding that an employer may not use an employee’s prior salary history to justify gender pay disparity under the federal Equal Pay Act. Aileen Rizo was hired as a school teacher in Fresno County in 2009.
On April 3, 2018, the Department of Justice Antitrust Division (“DOJ” or “Antitrust Division”) filed an antitrust complaint against Knorr-Bremse AG (“Knorr”) and Westinghouse Air Brake Technologies Corporation (“Wabtec”) for agreeing not to “solicit, recruit, hire without prior approval, or otherwise compete for employees” (collectively, “no-poach agreements”).
As reported by our sister blog, ADR: Advice from the Trenches, the Northern District of Illinois recently issued an unusual decision. After finding that both plaintiffs were bound by arbitration agreements with the defendant and after finding that the plaintiffs’ claims were within the scope of the arbitration clauses, it denied defendant’s motion to compel arbitration.
The Massachusetts Department of Unemployment Assistance (DUA) has begun assessing Employer Medical Assistance Contribution (EMAC) supplemental payments for the first quarter.
On April 19, my colleague Andrew Bernstein and I will be discussing the increasingly complex web of federal, state, and local leave and accommodation laws that employers must navigate.

The Bubbler - April 2018

April 11, 2018| Blog

Lots to talk about in the Labor & Employment world!  The Massachusetts Pregnant Workers Fairness Act went into effect on April 1, 2018, imposing stricter non-discrimination rules on employers of pregnant workers.
What’s a financial advisor to do? On March 15, 2018, the Fifth Circuit Court of Appeals in Chamber of Commerce of the U.S. v. U.S. Dep’t. of Labor, No. 17-10238, 2018 U.S. App. LEXIS 6472 (5th Cir. Mar. 15, 2018) vacated – thereby invalidating – a series of seven rules (which we collectively refer to in this post as the “fiduciary rule”) issued in April 2016.
Back in July 2016, the Massachusetts legislature passed an Act to Establish Pay Equity (Mass. Gen. Laws c. 149 § 105A, referenced herein as the “Law”), which amends the Massachusetts Equal Pay Act (“MEPA”) and serves to bolster gender-based pay inequity protections provided to employees and to generally address gender pay inequality in the Commonwealth.
Last week, the U.S. Supreme Court declined to review a decision by the Seventh Circuit Court of Appeals holding that a multi-month leave of absence is beyond the scope of a reasonable accommodation under the Americans with Disabilities Act (ADA).
Given the ever-increasing reliance on digital technology, employees are more and more tethered to their smartphones – checking email during their commute, at the dinner table, and even from their beds – essentially creating a never-ending work day.  A bill filed by a New York City councilman aims to curtail this trend.
In a March 30, 2018 Bloomberg BNA article, Mintz Levin Employment, Labor and Benefits attorney Gauri Punjabi discusses Massachusetts’ new protections for pregnant workers and compares them with the existing federal requirements. This is an important development in Massachusetts, and one that we expect to expand to other jurisdictions.
On Monday of this week, the U.S. Supreme Court reversed the Ninth Circuit when it ruled in Encino Motorcars, LLC v. Navarro that auto dealership service advisors are exempt from the FLSA’s overtime requirements.
Now that the Massachusetts Pregnant Workers Fairness Act (PWFA) went into effect April 1, 2018, it is time for employers to confirm that they are taking steps to ensure compliance with the PWFA.

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