1. Paid leave goes local. The year 2017 saw the passage of a slew of new state and local paid leave laws, many of which go beyond what is required under the Family and Medical Leave Act (FMLA). Employers in these jurisdictions may find that their own policies are not in compliance with these new laws, even when they are more generous than what is required under the FMLA. New laws include amendments to the California Family Rights Act; universal paid leave in Washington, D.C.; and paid family leave in New York State. Nancy Popper, from Epstein Becker Green, has more.

    This is an extended interview from Employment Law This Week® (Episode 98: Week of December 18, 2017), an online series by Epstein Becker Green. youtu.be/wLNm5MXs7Ns

    Visit EmploymentLawThisWeek.com.

    These materials have been provided for informational purposes only and are not intended and should not be construed to constitute legal advice. The content of these materials is copyrighted to Epstein Becker & Green, P.C. EMPLOYMENT LAW THIS WEEK® is a registered trademark of Epstein Becker & Green, P.C. ATTORNEY ADVERTISING.

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  2. Welcome to Employment Law This Week®! Subscribe to our channel for new episodes every Monday!

    (1) 2017: Paid Leave Goes Local

    Our top story: Paid leave goes local. The year 2017 saw the passage of a slew of new state and local paid leave laws, many of which go beyond what is required under the Family and Medical Leave Act (FMLA). Employers in these jurisdictions may find that their own policies are not in compliance with these new laws, even when they are more generous than what is required under the FMLA. New laws include amendments to the California Family Rights Act; universal paid leave in Washington, D.C.; and paid family leave in New York State. Nancy Popper, from Epstein Becker Green, has more:

    “We've seen, with the new paid family leave laws, pay associated with leave laws. Previously, they were unpaid leave. We've also seen expanded reasons for the use of this type of leave, not just for one's own serious health condition, but also to care for family members, like grandparents and grandchildren. The federal FMLA also only provides leave for employers with 50 or more employees. These new state and family paid leave laws are providing leave for much smaller employers.”

    (2) Equal Pay Legislation Ramps Up

    Pay equality is on the march. Continuing a trend that began in 2016, we saw a lot of activity this year around equal pay. Approximately 100 bills were introduced this year, in more than 40 jurisdictions. Most legislation centered around three major actions: expanding existing equal pay regulations, banning questions about salary history, and increasing transparency around pay. The trend is likely to continue next year, including on the federal level, where the Equal Employment Opportunity Commission (EEOC) has made “Ensuring Equal Pay for All Workers” one of its top six priorities moving forward.

    (3) Workplace Sexual Harassment in the Current Climate

    Sexual harassment scandals in the entertainment, news, and political spheres were at the forefront this year, and the “#MeToo” movement made clear just how universal the problem is. Employers that fail to take affirmative steps to prevent harassing behavior or respond to allegations of harassment risk exposure to EEOC charges or litigation. Recent studies indicate that less than a quarter of employers have reevaluated the risks of sexism or harassing behavior in light of recent revelations in the media, but we expect those numbers to grow in 2018.

    (4) Cybersecurity Evaluation

    There are increasing threats to cybersecurity. The year 2017 brought us the Equifax security breach, one of the worst data thefts in history. Data security has never been more important, or challenging, to address. Some vulnerabilities that employers should consider are the lack of stringent remote access management, a failure to regularly assess risks, and the absence of an insider threat program, since most data breaches come from employees or trusted third parties.

    (5) Big Changes for Wage & Hour

    Labor Secretary Acosta has withdrawn the joint-employer and independent contractor guidance and has announced a return to the practice of issuing opinion letters. The Department of Labor was enjoined from enforcing new regulations more than doubling the minimum salary for white-collar overtime exemptions before the regulations were finally withdrawn. Acosta has also proposed rescinding some limitations on tip pooling. And the stage is set for even more changes in 2018. Paul DeCamp, from Epstein Becker Green, tells us what we’re likely to see in the coming months:

    “In 2018, I think employers are going to get some answers to a number of the questions that were raised in 2017. We're going to see a decision from the Supreme Court on the enforceability of these class waivers in arbitration agreements. We will get clarity, almost certainly, on the issue of what will be the salary threshold for the executive, administrative, and professional exemptions, and then we're also going to see where exactly is the Department of Labor going in its enforcement policy, in terms of how it handles investigations, imposes penalties, seeks liquidated damages, and that sort of thing. So we're going to see more guidance about where the Department will be in its enforcement.”

    Visit EmploymentLawThisWeek.com.

    These materials have been provided for informational purposes only and are not intended and should not be construed to constitute legal advice. The “Tip of the Week” offers one perspective on possible human resource ideas or business practices. It presents the perspective of an individual not affiliated with Epstein Becker Green and should not be considered legal advice. The content of these materials is copyrighted to Epstein Becker & Green, P.C. EMPLOYMENT LAW THIS WEEK® is a registered trademark of Epstein Becker & Green, P.C. ATTORNEY ADVERTISING.

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  3. A new direction at the National Labor Relations Board (“NLRB” or “Board”) under General Counsel (GC) Peter Robb. Robb has issued a memo outlining which cases must be submitted by regional offices to the Division of Advice for guidance. The memo indicates areas in which the new GC will likely ask the NLRB to overturn Obama-era decisions. Robb specifically mentions the joint-employer definition that was expanded in Browning-Ferris and the Purple Communications ruling that employees have a right to use their employers’ email systems for union activity, among other controversial issues. Don Krueger, from Epstein Becker Green, has more.

    This is an extended interview from Employment Law This Week® (Episode 97: Week of December 11, 2017), an online series by Epstein Becker Green. youtu.be/zC_K_IGRzro

    Visit EmploymentLawThisWeek.com.

    These materials have been provided for informational purposes only and are not intended and should not be construed to constitute legal advice. The content of these materials is copyrighted to Epstein Becker & Green, P.C. EMPLOYMENT LAW THIS WEEK® is a registered trademark of Epstein Becker & Green, P.C. ATTORNEY ADVERTISING.

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  4. Barbara Harris, Senior Labor and Employment Editor at Thomson Reuters Practical Law, is here with some advice on drafting restrictive covenants and confidentiality agreements:

    “When drafting restrictive covenants, it's really important to be wary of relying on old precedence or forms. There have been many recent developments in the law that make forms that were drafted even one or two years ago outdated already. For example, the Defend Trade Secrets Act, which was passed in 2016, requires employers to include a notice of whistleblower immunity in their non-compete agreements or any agreements containing confidentiality provisions. Confidentiality provisions are another area where these agreements have to be evolving and changing, because they've come under serious scrutiny from many regulatory agencies that are charged with enforcing the whistleblower laws, such as the SEC, FINRA, and OSHA. To avoid potentially substantial penalties, employers should include carve-outs allowing employees to report suspected wrongdoing to these agencies. The bottom line is your old forms probably don't cover any of these issues adequately, so don't rely on them.”

    This is a "Tip of the Week" segment from Employment Law This Week® (Episode 97: Week of December 11, 2017), an online series by Epstein Becker Green. youtu.be/zC_K_IGRzro

    Visit EmploymentLawThisWeek.com.

    These materials have been provided for informational purposes only and are not intended and should not be construed to constitute legal advice. The “Tip of the Week” offers one perspective on possible human resource ideas or business practices. It presents the perspective of an individual not affiliated with Epstein Becker Green and should not be considered legal advice. The content of these materials is copyrighted to Epstein Becker & Green, P.C. EMPLOYMENT LAW THIS WEEK® is a registered trademark of Epstein Becker & Green, P.C. ATTORNEY ADVERTISING.

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  5. Welcome to Employment Law This Week®! Subscribe to our channel for new episodes every Monday!

    (1) New Memo from NLRB GC Peter Robb

    Our top story: A new direction at the National Labor Relations Board (“NLRB” or “Board”) under General Counsel (GC) Peter Robb. Robb has issued a memo outlining which cases must be submitted by regional offices to the Division of Advice for guidance. The memo indicates areas in which the new GC will likely ask the NLRB to overturn Obama-era decisions. Robb specifically mentions the joint-employer definition that was expanded in Browning-Ferris and the Purple Communications ruling that employees have a right to use their employers’ email systems for union activity, among other controversial issues. Don Krueger, from Epstein Becker Green, has more:

    (2) Supreme Court Lifts Injunctions on Third Travel Ban

    The Supreme Court has stayed two nationwide injunctions on President Trump’s travel ban. As a result, the third iteration of the ban is now in effect, at least temporarily. The ban restricts travelers from six predominantly Muslim countries, along with North Korea and Venezuela, from entering the United States. Waivers may be granted, and the ban does not apply to green card holders or dual nationals traveling on a passport from a country that is not on the list. This action by the Supreme Court does not resolve the legal challenges to the ban but allows it to take effect while the U.S. Courts of Appeals for the Fourth and Ninth Circuits review the challenges. Both courts heard arguments on the issue last week.

    (3) Paid Leave Credit to Employers Expected in Tax Bill

    Paid leave credits included in the tax bill. As the House and Senate negotiate tax reform, experts believe that a measure offering tax credits to companies that provide paid family and medical leave to employees is likely to survive. Some critics have noted that the credit would only be in effect for two years before it’s up for re-evaluation, and they question whether it will incentivize more companies to offer paid leave or just give a tax cut to companies already providing the benefit.

    (4) Final Rule on ERISA Disability Benefits Delayed

    The final rule on Employee Retirement Income Security Act of 1974 (ERISA) disability benefits has been delayed. Last year, the Department of Labor (DOL) released a final rule on claims and appeals for ERISA plans that provide disability benefits. The rule was set to go into effect January 1 of next year, but it will now be effective as of April 1, 2018. The rule adds safeguards and protections, but stakeholders have argued that it will increase plan costs and administrative expenses. The DOL will use the extra time to consider these and other comments.

    (5) Tip of the Week

    Barbara Harris, Senior Labor and Employment Editor at Thomson Reuters Practical Law, is here with some advice on drafting restrictive covenants and confidentiality agreements:

    “When drafting restrictive covenants, it's really important to be wary of relying on old precedence or forms. There have been many recent developments in the law that make forms that were drafted even one or two years ago outdated already. For example, the Defend Trade Secrets Act, which was passed in 2016, requires employers to include a notice of whistleblower immunity in their non-compete agreements or any agreements containing confidentiality provisions. Confidentiality provisions are another area where these agreements have to be evolving and changing, because they've come under serious scrutiny from many regulatory agencies that are charged with enforcing the whistleblower laws, such as the SEC, FINRA, and OSHA. To avoid potentially substantial penalties, employers should include carve-outs allowing employees to report suspected wrongdoing to these agencies. The bottom line is your old forms probably don't cover any of these issues adequately, so don't rely on them.”

    Visit EmploymentLawThisWeek.com.

    These materials have been provided for informational purposes only and are not intended and should not be construed to constitute legal advice. The “Tip of the Week” offers one perspective on possible human resource ideas or business practices. It presents the perspective of an individual not affiliated with Epstein Becker Green and should not be considered legal advice. The content of these materials is copyrighted to Epstein Becker & Green, P.C. EMPLOYMENT LAW THIS WEEK® is a registered trademark of Epstein Becker & Green, P.C. ATTORNEY ADVERTISING.

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Employment Law This Week® tracks the top developments in employment and labor law and workforce management in a matter of minutes every #WorkforceWednesday. Presented by law firm Epstein Becker Green. Learn more at ebglaw.com/employment-law-this-week/

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