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Workplace Initiatives and Strategies for Employers

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Happy New Year, Employers! From Your Friends at the NLRB. In December, the National Labor Relations Board (NLRB) issued a flurry of employer-friendly decisions.  Management can toast the following end-of-year gifts and look forward to continuing success at the Board in the new year. Ambush Election Rule Out with the old:  In 2014, the Obama-era Board instituted its infamous “ambush election” rules, which set very tight election time limits, foreclosed employers from litigating critical issues of bargaining unit scope and voter eligibility before the election, and effectively limited an employer’s ability to educate its workers about the pitfalls of unionization.…
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2020 Preview: Minimum Wages Rise in 24 States Plus D.C. In 2019, we saw significant activity in state legislatures passing employment-related laws in areas where federal government efforts had stalled, like paid sick leave, non-compete agreements and workplace discrimination. Another important area where states took action concerns the raising of minimum hourly wages. In fact, workers in half the states (25 including D.C.) will see an increase in hourly minimum wage rates at some point in 2020. The chart below details which states are affected by minimum wage increases in 2020 and what those increases will be. States in which…
According to data from the Equal Employment Opportunity Commission (“EEOC”), in 2018, 6.9% of all sexual harassment charges submitted to the EEOC were filed in Illinois, representing the third highest concentration for any state, behind Texas (9.7%) and Florida (9.6%). Notably, that number has increased each year since 2014. Enter the Illinois legislature, which, earlier this year, passed an extensive new law designed to weed out discrimination and harassment in the workplace. The law, dubbed the Workplace Transparency Act (“WTA”), combats unlawful employment practices through a variety of methods, including limits on non-disclosure agreements, mandatory reporting of certain claims, and…
As referenced in our prior WISE blog article here, earlier this year Illinois enacted legislation legalizing recreational marijuana for adults, effective January 1, 2020 (the “Adult Use Act”).  However, given the ambiguity in the original legislation as it related to employer liability and, more specifically, the liability for terminating (or withdrawing a job offer for) employees for testing positive for marijuana, the Illinois legislature recently passed (and the Governor signed into law), an amendment (SB 1557) that clarifies what employers can and cannot do under the Adult Use Act. The primary source of confusion for employers under…
Pennsylvania Court Finds Employee Can Assert Claim Against Employer Under State’s Medical Marijuana Act The Lackawanna Court of Common Pleas in Pennsylvania held, in a matter of first impression, that language in the state’s Medical Marijuana Act (“MMA”) creates a private right of action for an employee that is terminated for off-site use of medical marijuana.  In Palmiter v. Commonwealth Health Systems, et al. , the court decided that although that statute does not expressly provide a private right of action, its explicit language that “[n]o employer may discharge, threaten, refuse to hire or otherwise discriminate or retaliate against…
On November  20, 2019, the Commonwealth’s highest court issued a significant decision regarding overtime compensation, which makes it illegal for employers to use the “fluctuating work week” method (“FWW”) to calculate overtime.  In this significant departure from longstanding wage and hour practices and federal law, the Supreme Court of Pennsylvania outlawed the FWW method because it does not guarantee non-exempt employees at least one-and-one-half times their regular rate for working more than 40 hours per workweek, as required by state law.  GNC Store Managers Bring Suit for Overtime Violations This decision arose from the matter of Tawny Chevalier et al.…
Pennsylvania Seeks to Raise Minimum Wage, Scrap Salary Increase for Overtime Exemption The Pennsylvania Senate passed Senate Bill 79 on November 20, 2019, which would raise the minimum wage but also halt the state Department of Labor and Industry (“DLI”) from raising the salary threshold for overtime wages. The bill, which still needs to pass the house and be signed by the governor, is expected to pass and represents a compromise between the Republican-controlled legislature and Democratic governor. Under the proposed law, Pennsylvania’s minimum wage would gradually raise over the next three years to: $8.00/hour effective July 1, 2020 $8.50/hour…
On September 24, 2019, the U.S. Department of Labor (“DOL”) revised the salary threshold for the Fair Labor Standards Act (“FLSA”) exemptions. The change could cause millions of Americans to be reclassified as non-exempt.The FLSA requires employers to pay overtime wages for all time worked in excess of 40 hours per week. However, certain positions can be classified as “exempt,” allowing employers to disregard the overtime requirement. The exemptions are available for executive, administrative, and professional employees. To qualify, the employee must perform specific duties and be paid on a salary basis that meets a minimum salary level. Pursuant to…
On October 8, 2019, the Department of Labor (“DOL”) issued long awaited rules that could have a significant impact in the restaurant industry. The proposed rules would broaden employers’ abilities pay tip credit wages for non-tipped work and to include both front and back of the house employees in certain tip pooling programs.  Background The Fair Labor Standards Act (“FLSA”) requires employers to pay at least the federal minimum wage, which is currently $7.25 per hour. However, employers are allowed to pay a lower “tip credit” minimum wage to employees that regularly receive tips, by crediting some of the employees’…
Wages Employers frequently face a rash of absences and call-offs in the wake of a natural disaster. Generally, whether a business is required to pay an employee who misses work depends on whether the employee is exempt or non-exempt under the Fair Labor Standards Act (“FLSA”). If an exempt employee misses work for personal reasons, but the business remains open, the employer may deduct a full day’s salary. This includes absences due to transportation problems caused by weather. Likewise, a business is not required to pay a non-exempt employee for time not worked. If a business is closed due to…
Following on the heels of a much publicized incident in high school athletics, the New Jersey Division of Rights (“DCR”) issued enforcement guidance (“Guidance”) clarifying and explaining discrimination based on hairstyles, “with a particular focus on hairstyles closely associated with Black people.” The Guidance follows an incident where a high school African-American wrestler was told by a referee that he must choose between cutting his dreadlocks or forfeiting the match. According to the DCR the New Jersey Law Against Discrimination’s (“LAD”) “prohibition on discrimination based on race encompasses discrimination that is ostensibly based on hairstyles that are inextricably intertwined with…
On September 20, 2019, the Tenth Circuit held that cannabis industry employers are subject to the Fair Labor Standards Act (FLSA). Defendant contended that because the employer’s employment activities are in violation of the Controlled Substances Act, the FLSA’s protections to do not apply to its workers.  This argument was soundly rejected by the Tenth Circuit – putting cannabis industry employers on notice that the FLSA and most likely other federal workplace protections apply to workers in the cannabis space.     Earlier this year we discussed the case, Kenney v. Helix TCS, Inc., at the time the appeal was first argued. …
On October 2, 2019, the Supreme Court declined to review a 9th Circuit decision in a website accessibility lawsuit, Robles v. Domino’s. The 9th Circuit decision had reversed a grant of summary judgment and held that ADA Title III did potentially require that services of a place of public accommodations offered through websites and mobile apps, such as ordering pizza for delivery, be accessible, and remanded the case. Domino’s, supported by many major business groups, asked the Supreme Court to take the case and to provide direction on the application of the ADA to websites and other digital platforms. Many…
Labor Law Update: Contractors Lawfully Prohibited From Leafleting on Third Party Premises On August 23, 2019, the National Labor Relations Board (“NLRB”) determined that property owners may prohibit non-employees from accessing their premises to engage in conduct that could be protected by federal labor law. This ruling is consistent with other decisions recently issued by the NLRB, which have overturned longstanding precedent in favor of more employer-friendly standards. In February 2017, the Tobin Center for the Performance Arts (“Tobin Center”) refused to let off-duty workers employed by the San Antonio Symphony (“Symphony”), a licensee of the Tobin Center, use Tobin…
On August 8, 2019, the Department of Labor (DOL) released an Opinion Letter clarifying that parents of students with special education needs may take leave under the Family Medical Leave Act (FMLA) to attend a meeting related to addressing those needs. Importantly, the DOL stated that its analysis and conclusion apply to “any meetings held pursuant to the [Individuals with Disabilities Education Act], and any applicable state or local law, regardless of the term used for such meetings.” The individual who requested the opinion letter stated that their two children had serious health conditions under the FMLA, and that their…
New York State Overhauls Harassment Laws Making it Easier to Bring Employers to Court Earlier this summer the New York State Senate and Assembly passed a bill aimed to amend the New York State Human Rights Law (NYSHRL) and the N.Y. Civil Practice Law and Rules (CPLR) to combat harassment and provide substantial new protections for workers. Governor Cuomo signed the bill into law on August 12, 2019. The following provisions highlight the major changes that employers should immediately prepare for: Lowering the Standard to Prove Harassment Traditionally courts have held that hostile work environment claims under the NYSHRL are…