1. A breaking news segment from Employment Law This Week®, featuring attorney Tzvia Feiertag, Member of the Firm:

    On Friday, December 14, 2018, a Texas federal judge ruled that the Affordable Care Act (ACA) should be invalidated. If the decision is upheld, it could have a major impact on employers, especially those sponsoring group health plans. For now, employers should remain in compliance with the ACA as the appeal process continues.

    We invite you to view Employment Law This Week® - tracking the latest developments that could impact you and your workforce. The series now features three components: Breaking News, Deep Dives, and Monthly Rundowns.

    Watch the series and subscribe for email notifications: 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. This Employment Law This Week Deep Dive episode addresses the heightened focus on equal pay and executive compensation in the wake of the #MeToo movement and what that means for employers as they evaluate bonuses and pay structures for the upcoming year. Attorneys Gretchen Harders, Jeffrey Landes, and Marc Mandelman of Epstein Becker Green discuss the following topics: how comparable salaries may not always result in equal pay, recent equal pay law activity, pay transparency and compensation, salary history inquiries, and what’s next for the #MeToo movement.

    1. The #MeToo Movement Brings Equal Pay into Focus

    The #MeToo movement has brought with it a heightened focus on equal pay and executive compensation. As employers are evaluating bonuses and comp structures this year-end, Gretchen Harders, from Epstein Becker Green, explains how even comparable salaries may not always result in equal pay.

    "Looking at overall compensation, particularly in the industries where maybe salary is lock-step by position, and where the pay differentials can come into play are in the bonuses. The only way to completely ensure that you're in compliance over compensation and bonuses is to do an equity pay audit. There are a number of consultants out there that can come in and look at all the different positions, do the comparisons, run the numbers, and be able to come up with results that really tell you where a company might have some issues."

    Click here for more: ebglaw.com/pay-equity/

    2. Equal Pay Laws Go Local

    In 1963, Congress passed the Equal Pay Act, which amended the Fair Labor Standards Act to require equal payment for “substantially similar” work. States and cities have largely taken it upon themselves to clarify the EPA, and that trend continues today in the context of #MeToo. Jeffrey Landes, from Epstein Becker Green, has more about recent equal pay law activity.

    "We've seen acceleration of the trend with respect to state and local equal pay changes. Particularly, we've seen a broadening of equal pay laws. For example, the federal equal pay law focuses on equal pay for substantially equal work. However, that standard has now been loosened in a number of states. The New Jersey Equal Pay Act that went into effect on July 1 stands out and may be used by others as a model going forward. It is, without question the most robust equal pay legislation we've seen today. For example, while we typically think of pay equity as a gender issue and addressing the gender gap, New Jersey prohibits pay discrimination based on 20 protected categories."

    3. Pay Transparency and Compensation

    We’re also seeing more legislative activity around pay transparency.

    Gretchen Harders:

    "The pay transparency idea is that you don't want to prevent employees from speaking to each other about their compensation and disclosing to each other what their salary and wages and compensation is in any given time. And under these state and local laws, employers are not allowed to fire or take any adverse employment action against an employee because they told somebody what their salary was or what their compensation or bonus was."

    4. Salary History Inquiries

    And more efforts are underway to ban salary history inquiries. Marc Mandelman, from Epstein Becker Green, has more.

    "The premise behind salary history legislation is that, on average, women and minorities have historically been paid less than their male or non-minority counterparts, and that basing a person's pay on what he or she has previously been paid will only perpetuate that trend. A number of jurisdictions have enacted salary history bans and pay transparency laws, and many employers have had to change longstanding hiring and compensation practices in the name of equality. And there isn't really any proof that these laws will have the desired effect. So there is some skepticism out there."

    Click here for more: ebglaw.com/news/reminder-starting-january-1-2019-connecticut-employers-cannot-ask-candidates-about-salary-history/

    5. What’s Next for #MeToo

    Where #MeToo will lead next is uncertain. But moving forward, employers who are proactive put themselves in the best position to succeed. When it comes to equal pay, that means conducting pay audits and making sure the proper policies are in place to ensure compliance with federal, state and local requirements.

    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. In this news development from Employment Law This Week®, attorney Richard J. Frey from Epstein Becker Green discusses the California Business and Industrial Alliance’s lawsuit alleging that the state’s Private Attorneys General Act (also known as “PAGA”) constitutes an improper delegation of state power.

    We invite you to view Employment Law This Week® - tracking the latest developments that could impact you and your workforce. The series now features three components: Breaking News, Deep Dives, and Monthly Rundowns.

    Watch the series and subscribe for email notifications: 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. This Employment Law This Week® Monthly Rundown features a recap of the most important news from November 2018. The episode includes:

    1. DOL Releases New Guidance on Minimum Wage for Tipped Workers

    The Department of Labor (“DOL”) rolls back the 80/20 rule. The rule prohibited employers from paying the tipped minimum wage to workers whose untipped side work—such as wiping tables—accounted for more than 20 percent of their time. In the midst of a federal lawsuit challenging the rule, the DOL reissued a 2009 opinion letter that states that the agency will not limit the amount of side work a tipped employee performs, as long as that work is done “contemporaneously” with the tipped work or for a “reasonable time” before or after that work. The letter was previously withdrawn by the Obama administration. Epstein Becker Green’s own Paul DeCamp, who played a leading role in litigation opposing the rule, has more:

    “The new guidance should lead to victories for employers in these cases where plaintiffs are seeking relief premised on the validity of the 80/20 guidance, which has now been withdrawn. By eliminating the 80/20 rule, the courts will see that the Department of Labor does not adhere to its position that it's had since 1988, off and on. What this will mean is that claims against the restaurant industry that rely on the 80/20 guidance will probably fail, because there is now no longer any legal basis, at least under federal law, to pursue those claims.”

    Click here for more: https://bit.ly/2zw08jv

    2. Transgender Rights in the Workplace

    The national debate over legal protections for transgender workers could be coming to a head. The U.S. Supreme Court will soon decide whether to resolve a circuit court split over whether Title VII of the Civil Rights Act of 1964 protects gay and transgender employees. Recent media reports suggest that the Trump administration is considering establishing a legal definition of “sex” that could have the effect of rolling back all federal protection for gay and transgender individuals, as well as any recognition of transgender status. In response to those reports, nearly 180 companies have signed a statement opposing “any administrative and legislative efforts to erase transgender protections through reinterpretation of existing laws and regulations.”

    3. Tech Companies End Mandatory Arbitration of Sexual Harassment Claims

    Technology companies will allow sexual harassment claims to go to court. In November, several tech companies, including Airbnb, eBay, and Square, announced that they would make arbitration optional for individual sexual misconduct claims. Microsoft and Uber have also made similar changes in the past year. While the trend is most notable in the tech industry, there has been some movement in other sectors with competitive talent markets. But in light of the Supreme Court’s Epic Systems decision earlier this year, which allowed employers to require such claims to be arbitrated, it is unclear how widespread the shift will be.

    4. NLRB Moves Forward on Joint Employment

    The National Labor Relations Board (“NLRB” or “Board”) moves forward with its new rule to redefine “joint employer” status. The extended comment period for the rule ends on December 13. Board Member William Emanuel has been cleared of any conflicts of interest for his role, so the rulemaking process should now continue on schedule. Not so fast with potential changes to the so-called “quickie election rule,” though. That Obama-era rule significantly shortened the average time between the filing of a petition and the date of votes on union representation. While many saw a 2017 Request for Comments on the rule as a sign that the Board might move forward with changes, the agency recently announced that reconsidering the election rule has been downgraded to a “long-term” action item.

    Click here for more: https://bit.ly/2xVUbuB

    5. Tip of the Week

    Finally, Michele Robertson, Vice President and General Counsel for Hospital Therapies at Mallinckrodt Pharmaceuticals, has some advice on assessing potential conflicts of interest.

    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. This Employment Law This Week Monthly Rundown features a recap of the most important news from October 2018. The episode includes:

    1. EEOC Publishes Sexual Harassment Data

    Our top story: The EEOC publishes sexual harassment data. Coinciding with the first anniversary of the start of the #MeToo movement, the Equal Employment Opportunity Commission has released preliminary data on sexual harassment claims in fiscal year 2018. The agency filed 66 harassment lawsuits in 2018, 41 of which were claims of sexual harassment. The latter represents a 50% increase, the first increase in at least eight years. David Garland, from Epstein Becker Green, has more:

    "Employers have been aware for some time that there have been more internal issues alleging sexual harassment brought forward to Human Resources. Lawyers representing employers have been aware that there's an increase in the number of demand letters from lawyers representing individuals making sex harassment allegations. But what this data shows is we've gotten to the next phase. That phase is that charges of discrimination are being filed with the EEOC and specifically alleging sexual harassment, and we're also seeing, and this should not be minimized, it's also quite apparent in the data, that the EEOC is taking an aggressive position, filing complaints against employers making claims of sexual harassment in the workplace, as well.

    2. Paid Sick Leave in New York and New Jersey

    Paid sick leave continues to catch on across the country with some new developments in the Tri-State Area. New York City recently adopted amendments to its Earned Safe and Sick Time Act, including new requirements for employers’ written sick time policies. Just to the North, Westchester County passed its own paid sick leave law which is expected to go into effect next April. And on October 29th, New Jersey became the tenth state to implement a statewide paid sick leave law. New Jersey employers of all sizes must now provide up to 40 hours of paid sick leave per year to employees. Nancy Gunzenhauser Popper, from Epstein Becker Green, has more:

    Click here for more: https://bit.ly/2JvhXmm

    3. Seventh Circuit: Class Arbitration Decisions Belong in Courts

    The Seventh Circuit holds that the validity of class waivers should be decided by the courts. The Circuit relied on the Supreme Court’s landmark Epic Systems ruling to reverse a district court decision invalidating a mortgage company’s class action waiver. In doing so, the Seventh Circuit took on one of the ancillary issues that has emerged from the Epic ruling. The court held that the availability of class or collective proceedings is a fundamental, gateway issue and therefore should be decided by the courts and not arbitrators. The ruling aligns the Seventh Circuit with the Fourth and the Ninth Circuits. The Supreme Court is currently considering the issue this term in Schein v. Archer.

    Click here for more: https://bit.ly/2Jz6Itg

    4. The NLRB in Transition

    Changes at the NLRB are picking up pace as President Trump’s appointees settle in. The recently proposed joint-employer rule would return to the “indirect control” standard and do away with expansions under the Obama administration. The General Counsel’s office is implementing organizational changes that will centralize decision-making on cases. At the same time, the GC recently published some guidance for employers that was developed by the previous administration. Jay Sharma, Associate General Counsel for Tesla, tells us how employers like his are navigating this transition:

    "What we've seen with the recent appointments that the Board has taken a shift back to being a bit more employer friendly and balancing a little bit more rights of employers. One of the significant decisions of the recent Board was the Boeing case, which dealt with workplace rules. And the General Counsel for the Board issued some guidance, which has been very helpful for employers in dividing workplace rules into three categories. So employers now can and should review all their workplace policies with labor counsel to see where the policies fall and hopefully make them fall, revise them to make them fall into the first category, which would be upheld."

    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®

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Welcome to Employment Law This Week®, presented by Epstein Becker Green. This online video program – among the first of its kind in the legal industry – will deliver the most significant stories and developments in employment, labor, and workforce management…


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Welcome to Employment Law This Week®, presented by Epstein Becker Green. This online video program – among the first of its kind in the legal industry – will deliver the most significant stories and developments in employment, labor, and workforce management issues in about five minutes, each week.

Tune in each week for developments that may affect your business. Learn more at ebglaw.com/employment-law-this-week/

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