This Employment Law This Week Monthly Rundown features a recap of the most important news from September 2018. The episode includes:
1. SCOTUS October Term Begins with Eight Justices
September was a busy month in employment law, the highlight of which was the contentious confirmation hearings on Brett Kavanaugh’s nomination to the U.S. Supreme Court. With the outcome of Kavanaugh’s confirmation still uncertain, the Supreme Court’s term begins today with a flashback to 2016: eight justices and a 4-4 ideological split with no clear majority. A tie decision leaves the lower-court ruling in place. The #MeToo movement has had an undeniable impact on the process, as the once nearly certain confirmation of Judge Kavanaugh was derailed by allegations of past sexual assaults and misconduct. It’s an important reminder for employers that allegations alone can create major problems for a company without the right processes in advance.
2. NLRB Action Signals Shifting Priorities
The National Labor Relations Board (“NLRB” or “Board”), with its Republican majority, has continued to undo the legacy of the Obama-era Board. The NLRB is taking steps to replace the Browning-Ferris joint-employment test with a more employer-friendly one. The agency will also likely overrule its decision in Purple Communications that established the right of employees to use employer email for organizing and other union activity. On joint employment, the Board published a proposed rule that would restore the "direct and immediate control" standard that was in place for 30 years, prior to Browning-Ferris.
For more, see here: https://bit.ly/2xVUbuB
In addition, last month, the NLRB General Counsel urged the Board to reverse Purple Communications, which could spur action soon. Legislation has been introduced in Congress to both expedite and undercut the NLRB positions so that the November midterms could have an impact on the outcomes. On top of that, over the objection of many in the business community, President Trump nominated Mark Pearce, a Democrat first nominated by President Obama, for another five-year term in one of the two seats reserved for the party not in the White House. All this illustrates just how difficult it is to turn the ship in a different direction when it comes to the NLRB, where the policy impact of presidential elections is sometimes not felt until years later.
3. Uber Drivers Head to Arbitration
Here is big news from the gig economy. The Ninth Circuit has decertified a gigantic class of Uber drivers. Several named plaintiffs sought to form a class of hundreds of thousands drivers to challenge the company’s classification of them as independent contractors. Reversing a lower court’s ruling, the three-judge panel found that the claims should be arbitrated individually by any driver who signed the company’s arbitration agreement, which included a class waiver. A majority of the drivers involved signed the agreement. The Ninth Circuit noted that the Supreme Court’s Epic Systems ruling found class waivers legal. The plaintiffs are considering an en banc appeal.
4. Sexual Harassment Laws Go Into Effect in New York
We’re just a few days away from New York State’s new sexual harassment laws taking effect. Starting October 9, all employers in the state will be required to institute a sexual harassment policy and begin annual anti-harassment training for all employees. We are awaiting final word from the state, but proposed guidance says that all current employees must complete compliant training by January 1, 2019. New hires must be trained within 30 days of hire. The law applies to all employers in the state, no matter the size. Next year, additional training requirements will be imposed in New York City.
For more, click here: https://bit.ly/2NP7Oql
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.# vimeo.com/292408953 Uploaded 11 Views 1 Like 0 Comments
Welcome to Employment Law This Week®! About this episode:
1. Preventing Harassment in the #MeToo Era - youtu.be/-09aEPAEbJU?t=6s
The #MeToo and Time’s Up movements have resulted in blockbuster allegations against titans of media, entertainment, and politics, but they have also raised the stakes for all employers. In this edition of Employment Law This Week, we look at preventing harassment in the #MeToo era.
What has #MeToo taught us? We asked Jennifer Gefsky, from Epstein Becker Green:
“I think if the #MeToo movement taught us one thing, it's that employers face significant liability and risk in the event that allegations are made against any employee or supervisor or the highest-level executive at the company. And sometimes those claims are insurmountable for a company, and they don't survive. Now, that case is rare, but it certainly has happened. But even in the case where the company does survive, it can do significant damage, not just in terms of money but in terms of reputation. And, in that way, it makes it very difficult for companies to hire new talent and to create that great culture that every company wants.”
2. Regulation on the Rise - youtu.be/-09aEPAEbJU?t=1m4s
State and local governments have been taking a much more active role in regulating the working environment, requiring transparency from employers and the infrastructure necessary to handle complaints. Ian Carleton Schaefer, from Epstein Becker Green, gives us an overview of recent legislation:
“We're seeing states and cities enacting and promulgating model anti-harassment policies, model anti-sexual harassment trainings. We’re seeing a prohibition against non-disclosure agreements, both before the employment relationship begins or the outset of the employment relationship, as well as in settlement agreements, prohibition against confidentiality for sexual harassment complaints, unless it's the choice of the plaintiff or the aggrieved employee. We're seeing required training, like in New York State and New York City, that requires employers to conduct annual anti-harassment training for all of its employees, whether you have worked there for one day or for 10 years.”
New York City now has the most robust anti-harassment and anti-discrimination protections in the country, with new laws going into effect from the city and the state in October 2018 and early 2019, respectively. The lynchpin of the NYC model is mandatory training. All employers are now required to provide annual anti-harassment training to every employee and even independent contractors. The training must meet or exceed the “model training” that the state has provided.
For more, click here: hrdive.com/news/metoo-leads-to-training-mandates-and-more/531636/
Jennifer Gefsky provides more:
“All employees in a company should understand the company’s policies on harassment and discrimination, and they should know what to do in the event they see something, hear something, or something is happening to them. Who do they go to, who do they report to? And then what they can expect to happen in the event they make a complaint.”
Ian Carleton Schaefer:
“I think you're seeing a trend, if you need to look forward in terms of what's happening, what's going to happen in the future, what can we anticipate. I think if you look at what's happening in New York State and New York City, that's going to be the model for what happens throughout the country.”
3. EEOC Guidance on Workplace Harassment - youtu.be/-09aEPAEbJU?t=3m4s
Along with training, employers and regulators are looking at cultural and institutional issues within an organization. On a federal level, the Equal Employment Opportunity Commission (EEOC) has issued guidance calling for this approach.
Both the training being mandated in New York and the cultural approach that the EEOC advocates are measures that experts say can significantly decrease a company’s exposure to risk.
For more, click here: ebglaw.com/news/with-eeocs-involvement-more-sex-harassment-suits-are-likely
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.# vimeo.com/288801024 Uploaded 10 Views 0 Likes 0 Comments
In this news development from Employment Law This Week®, attorney Ian Carleton Schaefer of Epstein Becker Green discusses how sexual harassment training is evolving in the #MeToo era. He also talks about how requirements like the recently released New York State model training guidelines could become the standard for all employers nationwide.
For more, read our recent Act Now Advisory, "New York State Provides Draft Anti-Sexual Harassment Guidance for Employers": ebglaw.com/news/new-york-state-provides-draft-anti-sexual-harassment-materials-for-employers/
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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.# vimeo.com/288415266 Uploaded 3 Views 0 Likes 0 Comments
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1. Ninth Circuit Extends CA’s Non-Compete Ban Through No-Rehire Clause
Our top story: The U.S. Court of Appeals for the Ninth Circuit considers the outer limits of California’s ban on non-competes. California’s Business and Professions Code states that any contract that prevents someone from “engaging in a lawful profession, trade, or business” is void. The case in question dealt with a physician who refused to sign a settlement agreement with a no-rehire clause that barred him from working for specific employers that might have been connected to the medical group he worked for. The Ninth Circuit found that the provision would have substantially restrained the physician’s ability to practice, in violation of the law. Jim Goodman, from Epstein Becker Green, has more.
2. Massachusetts Takes On Non-Competes
In Massachusetts, Governor Charlie Baker is expected to sign a bill that would require an employer in the Commonwealth with non-compete agreements to continue paying workers after they’ve left the company. This type of “garden leave” policy would extend through the entire period that former employees are banned from working for competitors. Intended to discourage non-compete agreements, the bill also limits the agreements to no more than one year and prohibits them outright for many employees, including low-wage workers, minors, and those who have been laid off.
3. California Tackles Wage and Hour Issues
The California Supreme Court has agreed to advise the Ninth Circuit on the application of state wage and hour laws. Among other issues, the court will evaluate whether the state’s wage statement law should apply to employees who work in California on an irregular basis and are employed by out-of-state employers. Meanwhile, a state appeals court addressed the requirement that an employee who quits without notice must receive a final paycheck within 72 hours. The court found that the 72-hour period did not begin to run when an office manager quit through an email sent after-hours on a Friday.
For more, click here: ebglaw.com/eltw127-wh
4. NLRB Streamlines Case Handling
The General Counsel’s Office of the National Labor Relations Board (NLRB) has announced a series of changes in the agency’s case-handling practices that it says will streamline processes at the NLRB’s Regional Offices and make better use of limited resources. In a six-page memo, Head of Operations-Management Beth Tursell describes a new, simpler, and faster process for Regional Offices to follow when they submit complex and novel legal issues to the Division of Advice in Washington, DC. Supervisors and investigators, not just Regional Directors, will be able to make decisions on whether to dismiss unfair labor practice charges or issue complaints. Post-hearing decision writing in representation cases will be more centralized, with regional and district teams drafting the decisions. These changes were announced July 30 and were effective immediately. The memo referred to these changes as “Part One,” suggesting more to come.
Visit EmploymentLawThisWeek.com.# vimeo.com/284429694 Uploaded 9 Views 0 Likes 0 Comments
Christopher Bona, a Partner at Finn Partners, is here with some advice on issue management programs.
This is a "Tip of the Week" segment from Employment Law This Week® (Episode 126: Week of August 6, 2018), an online series by Epstein Becker Green. youtu.be/mmQ3T7_7Vkw
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.# vimeo.com/283115960 Uploaded 74 Views 0 Likes 0 Comments
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