1. On October 1, New York State released final guidance and updated materials in connection with the state’s newly enacted laws concerning sexual harassment measures that mandate enhanced policies as well as training for all employees. New York’s new sexual harassment laws will take effect on Tuesday, October 9, 2018, and mandate that employers must complete compliant training for all current employees no later than October 9, 2019. Employers also must provide such training for all new hires within a reasonable time of their hire dates. Meeting these deadlines to provide and complete compliant training should now be top of mind for all employers.

    The New York guidance came the day after California Governor Jerry Brown signed four new #MeToo-inspired laws.

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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.

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  2. 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

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

    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.

    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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  4. 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

    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.

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

    1. OSHA Proposes Rolling Back Reporting Rule

    Our top story: The Occupational Safety and Health Administration (“OSHA”) plans to roll back a controversial reporting rule initiated at the end of the Obama administration. OSHA has proposed rescinding parts of a 2017 rule that requires companies with 250 or more employees to submit detailed reports on workplace injuries. OSHA says this move would protect employee privacy and reduce the burden for employers. Three organizations have filed suit over the proposed changes, saying that the data from the detailed reports helps improve workplace safety procedures. Corey Argust, from Epstein Becker Green, has more:

    “On July 25, 2018, Public Citizen, which is a progressive consumer rights advocacy organization, which was originally founded by Ralph Nader, was joined by two other public health organizations and sued OSHA to try and seek to actually enforce the electronic reporting rule requirements. OSHA had announced that it was suspending the deadline of July 1, 2018, for submitting the required forms and had actually stopped accepting these forms. So, OSHA is now being sued by Public Citizen, who's arguing they violated the law by suspending the deadline and is now seeking to enforce the requirement that employers actually submit these forms to OSHA.”

    2. California Clarifies Salary History Ban

    Governor Jerry Brown has signed a law that gives employers new clarity on California's salary history ban, which went into effect in January of this year. The new legislation defines such terms as “pay scale,” “applicant," and “reasonable request.” The law also clarifies that employers are allowed to ask applicants about salary expectations.

    3. NYC Employers Required to Grant Temporary Schedule Changes

    New York City employers are now required to accommodate some employee schedule changes. As of July 18, employees in New York City can request temporary schedule changes, or permission to take unpaid time off for personal events like a caregiving emergency. Employees may request up to two separate schedule changes of up to one business day each, or one schedule change for up to two business days each year. However, employees must be on the job for a minimum of 120 days to be eligible. A new poster has also been issued by the City.

    For more, click here: https://bit.ly/2vcmd4b

    4. Model FMLA Forms Have Expired

    Employers take note—the current Family and Medical Leave Act (“FMLA”) forms have gotten a short reprieve. The Department of Labor’s model FMLA notices and medical certification forms were set to expire July 31, but that date was pushed back to the end of August. Once the Federal Office of Management and Budget approves new model FMLA forms, they will be valid through 2021.

    For more, click here: https://bit.ly/2vvWrY1

    5. Tip of the Week

    Christopher Bona, a Partner at Finn Partners, is here with some advice on issue management programs:

    “Issues management is a communications leadership function within a company that allows a company to spot emerging trends that can crystallize over time into issues . . . issues that may compel the company to communicate to a variety of its key audiences. How can organizations be prepared and have some sort of a framework for identifying and responding to issues that might affect the business? The first thing that they should do is identify all of the issues that could possibly happen that would come up in the business, that would compel the business to communicate in some fashion. Analyze those issues and prioritize them. Then, take that list and create responses that are ready to go or can be adapted so that when the issue emerges and occurs, the organization is ready to respond. And then lastly, make sure to evaluate the impact of the execution of those responses to the issue.”

    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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