WISE

Workplace Initiatives and Strategies for Employers

Latest from WISE - Page 2

Uber drivers are “independent contractors” and not “employees” under the National Labor Relations Act (“NLRA”), according to an Advice Memorandum issued on May 14, 2019, by the Office of the General Counsel (“OGC”) of the National Labor Relations Board (“NLRB”).  Acknowledging the virtually unfettered control Uber drivers’ have over their cars, work schedules, and log-in locations, as well as their freedom to work for Uber’s competitors, the OGC determined that such autonomy provides the drivers with significant entrepreneurial opportunity, making them independent contractors. Three separate unfair labor practice charges had been filed with the NLRB by UberX and UberBLACK drivers,…
In an opinion letter released on April 29, 2019 the Department of Labor Wage and Hour Division (WHD) provided guidance on the standards for establishing an employment relationship in today’s modern gig economy. In doing so, the WHD took a narrow view, and found that digital platforms that connect individual service providers to customers are better characterized as “referral services,” than employers. The letter addressed a question posed by an unnamed internet/smartphone gig economy platform, which, by the description, calls to mind companies like Uber, TaskRabbit and Care.com. The question the WHD sought to answer was whether the service providers…
On Wednesday, April 24, 2019, the U.S. Supreme Court struck another blow to employees who seek to arbitrate class claims against their employer under employment arbitration agreements.  In a 5-4 decision, the Court ruled that class arbitration should not be allowed unless the arbitration agreement clearly authorizes class claims.  This case stems from a 2016 phishing attack against Lamps Plus, Inc., which resulted in the theft of employee tax and income statements. Frank Varela, a Lamps Plus employee, filed suit in federal court on behalf of himself and a putative class of approximately 1,300 employees, alleging that Lamps Plus failed…
Most New York employers know about the state’s election leave law, but may have never thought much about it since hanging the required poster in the break or copy room. However, new changes passed by the state legislature will require employers to give this law their attention soon, and that poster will need an update. Under the prior version of N.Y. Election Law 3-110, employees registered to vote had a right to “up to two hours” of paid time off to vote, if the employee did not have “sufficient time” outside of the working hours to make it to the…
A federal judge in the Eastern District of Pennsylvania dismissed a lawsuit last week where a former employee alleged that she was fired because she was a lesbian, in violation of Title VII of the Civil Rights Act. The judge dismissed the case by upholding Third Circuit precedent (to which Pennsylvania federal courts are bound) from 2001 holding that Title VII does not protect employees because of their sexual orientation. The case is Doe v. Parx Casino, Case No. 2:18-cv-05289 The Case In her complaint, the former employee who was a table dealer at Parx Casino, alleged numerous instances of…
A federal judge in the Eastern District of Pennsylvania dismissed a lawsuit last week where a former employee alleged that she was fired because she was a lesbian, in violation of Title VII of the Civil Rights Act. The judge dismissed the case by upholding Third Circuit precedent (to which Pennsylvania federal courts are bound) from 2001 holding that Title VII does not protect employees because of their sexual orientation. The case is Doe v. Parx Casino, Case No. 2:18-cv-05289 The Case In her complaint, the former employee who was a table dealer at Parx Casino, alleged numerous instances of…
On April 9, 2019, the New York City Council approved a bill which will prohibit employers from testing prospective employees for marijuana in a pre-employment drug test. While there are exceptions in the bill for safety sensitive positions and other specific types of employment, this bill demonstrates a change in pre-employment drug testing in New York City and employers should take note. The bill is expected to be signed into law by Mayor DeBlasio imminently.  The language in the bill specifically prohibits employers, labor organizations, and employment agencies from requiring a “prospective employee to submit to testing for the presence…
On March 28, 2019, the General Assembly overrode the gubernatorial veto to enact the Minimum Wage Act, which raises Maryland’s minimum hourly wage to $15.00 by 2025. Maryland now becomes the sixth state to enact a $15.00 hourly minimum wage. It is estimated that around 570,000 Maryland workers (about 22 percent of the state’s workforce) will receive a raise under the new law. The annual raises in minimum wage are: January 1, 2020: $11.00/hour January 1, 2021: $11.75/hour January 1, 2022: $12.50/hour January 1, 2023: $13.25/hour January 1, 2024: $14.00/hour January 1, 2025: $15.00/hour For “small employers,” the minimum wage…
New Jersey Employers May Not Discriminate For Employees’ Use of Medical Marijuana On March 27, 2019, the New Jersey Appellate Division reversed the lower court’s dismissal of a complaint that alleged discrimination based on an employee’s use of medical marijuana. In doing so, the Appellate Division held that employers may be required to accommodate an employee’s use of medical marijuana. Accordingly, employers should take note of this decision in New Jersey regarding an employee’s medical marijuana use and the interplay of the New Jersey Law Against Discrimination and the New Jersey Compassionate Use Medical Marijuana Act. In Wild v. Carriage…
New Jersey Governor Signs Bill Impacting Non-Disclosure Agreements in Harassment Settlements and Arbitration Provisions Over a year after its initial introduction, and after enough time to draw speculation (and perhaps some dust) on Governor Murphy’s desk, the Governor has signed Bill S121 into law.  The primary function of the law, which passed the Senate in June of 2018 with a near-unanimous 34-1 vote, is to prohibit and render unenforceable non-disclosure agreements in employment contracts or settlement agreements that conceal details of discrimination, retaliation or harassment claims. Such clauses will now “be deemed against public policy and unenforceable.”  The law will…
The Family and Medical Leave Act (FMLA) entitles eligible employees of covered employers to take up to 12 weeks of unpaid, job-protected leave per year for specified family and medical reasons. It is the employer’s obligation to designate leave as FMLA-qualifying. The employer must provide notice to the employee within five business days after the employer has information to determine that the leave is being taken for a FMLA-qualifying reason.  The FMLA also permits employers to adopt policies more generous than the FMLA. However, an employer may not designate more than 12 weeks of leave as FMLA-protected. Employers may require,…
On March 1, 2019, the New York State Department of Labor announced its withdrawal of proposed predictive scheduling regulations, which comes as a relief to businesses state-wide. Two years ago, the Department announced its intent to adopt predictive scheduling regulations. In 2018, the Department issued revised proposed regulations regarding “call-in” scheduling. The regulations aimed at limiting “on-call” scheduling practices and provided employees premium pay if shifts were changed and/or canceled. After receiving “extensive feedback” during the comment period which highlighted “significant issues” with the proposed regulations, the Department decided to let the process expire and will re-evaluate regulations in the…
Courts Sanctions Defense for Ex-Parte Communications With Potential Class Members On March 4, 2019, a federal court sanctioned a company for interviewing warehouse workers to obtain declarations in support of its opposition to an FLSA opt-in collective and PA Minimum Wage Act class action certification where there were no plaintiff’s attorneys present for the meetings. Because Pennsylvania law treats potential class action members as represented parties until the court decides whether to certify the class, the communications between the defense attorneys and workers violated the state Rules of Professional Conduct. The Facts The underlying lawsuit was filed in the Eastern…
On March 7, 2019, the Department of Labor released its long-promised proposed rule raising the minimum salary threshold required for workers to qualify for the Fair Labor Standards Act’s exemption threshold to $35,308 annually.  Based on a 40-hour work week, the increase equates to about a $17.00 per hour rate.  The new rule would apply to executive, professional, and administrative workers—also known as”white collar” exemptions. The new threshold is an $11,648 increase from the current threshold of $23,660, but is about $12,000 lower than the Obama administration’s threshold.  The Obama administration’s rule was enjoined by a Texas federal judge and…
The Fourth Circuit put employers on notice in a recent ruling that emphasizes the importance of training supervisors to identify and properly handle gender-based rumors that can lead to hostile work environment claims. In Parker v. Reema Consulting Services, the Fourth Circuit permitted a plaintiff to continue pursuing her hostile work environment claim where her supervisor participated in spreading a false rumor that she obtained a promotion only because she slept with a manager. According to the complaint, after receiving a promotion, the plaintiff learned of an unfounded rumor circulating around the office that she had a sexual relationship with…
Please Join Us: “Hiring and Firing Without Headaches” a Pennsylvania Apartment Association Hosted Program The Pennsylvania Apartment Association (PAA) hosts, “Hiring and Firing Without Headaches” on March 19, 2019 at our Firm’s Philadelphia office. The program will discuss human resource practices within the multifamily industry. Saul Ewing Arnstein & Lehr’s Labor and Employment Vice Chair and Partner, Dena Calo and Labor and Employment Associate Erik Pramschufer will present on this current and captivating topic. Click here for more information and link register.…