Employment & Labor

On March 8, 2022, a federal court in the Northern District of Illinois held an Employment-Related Practices Exclusion in a general liability policy does not preclude a defense obligation for a proposed class action brought by the insureds’ employees under the Illinois Biometric Information Privacy Act. The court further found that a jury needs to decide whether the insureds breached the “as soon as practicable” notice condition in the policy by waiting 20 months to provide notice to the insurer.

Conflicting federal district court decisions highlight that the outcome of duty to defend claims under the Illinois Biometric Information Privacy Act (BIPA) may hinge on venue and/or choice of law considerations. Insurers should evaluate these considerations closely and examine how various jurisdictions handle certain general liability exclusions in other contexts in an effort to predict how a particular court may rule on coverage for BIPA claims.

Institutions for higher education are common targets for web accessibility claims. The constantly rotating mix of students who apply to and attend school each year present a bevy of new potential plaintiffs with different disabilities and unique experiences. As such, schools must monitor compliance and continually strive to be accessible.

Both houses of Congress have passed H.R. 4445, an amendment that restricts employers from forcing sexual harassment and sexual assault claims into arbitration. The Bill gives individuals alleging sexual harassment or sexual assault the right to void pre-dispute joint-action waivers and proceed in the appropriate court or agency under federal, state or tribal law.

The Court of Appeal for the State of California recently took up the question of whether an individual who contracts COVID-19 from a family member who contracted the illness at work can sue their family member’s employer for civil damages.

Those acting as general contractors in the state of New York need to exercise extra vigilance to ensure that all workers on a project, even those they do not directly employ, are paid proper wages in accordance with the New York Labor Law.

The U.S. Supreme Court on January 13, 2022, halted the Biden Administration’s vaccine mandate for the nation’s largest employers, and allowed a more limited mandate to go forward that requires vaccinations for healthcare workers at the facilities that receive Medicaid and Medicare funds.

Beginning December 27, 2021, employees in New York City who perform in-person work or interact with the public must show proof that they have received, at a minimum, the first dose of a primary series or a single-dose COVID-19 vaccine. Employees will then have 45 days to show proof of their second dose of a primary series vaccine.

The Marijuana Regulation and Taxation Act effectively requires employers to engage in a wholesale reassessment of their current policies around use and testing, codifies certain judicial holdings around medical use, and folds New York’s medical use law, the Compassionate Care Act, into the auspices of the Office of Cannabis Management governed by the Cannabis Control Board.

The New York Health and Essential Rights Act was triggered on September 6, 2021, when Governor Kathy Hochul declared COVID-19 an airborne infectious disease. Employers who did not implement a plan as required by the Act in May need to do so now, and those who met the initial deadlines should review their plans to ensure they comport with the New York Department of Labor’s new model plans issued on September 23.

The Nevada Supreme Court examined conflicting rulings in federal and state courts and concluded “gross income is the most workable and realistic measure of what salary would be used to support” a loss-of-income claim.

Newly released updated EEOC guidance addresses COVID-19 vaccination questions only from the perspective of the EEO laws. There may be other federal, state and local laws that could impact the guidance provided by the EEOC. Employers should consult legal counsel regarding specific circumstances for individualized legal advice on COVID-19 vaccinations and related issues.

A recent amendment passed by the New York City Council and signed by Mayor DeBlasio expands the City’s Fair Chance Act to impose on employers further prohibitions on adverse actions against applicants or employees based on their criminal history. The amendment goes into effect on July 29, 2021.

As the country awaits final FDA approval for emergency use of additional COVID-19 vaccines, employers are rapidly confronting the implications. For long-term care facilities in particular, availability of a COVID-19 vaccination raises urgent questions regarding the treatment of employees and residents.

While it is tempting to get together and celebrate the Holidays as we have in the past, it is important to follow Centers for Disease Control and Prevention guidance and choose activities with less risk to avoid giving the unwanted gift of COVID-19 to employees, families and friends. Skipping the mistletoe this year is a workplace best practice!

Wilson Elser attorneys present the current statutory framework, recent changes to the law in response to the novel coronavirus pandemic.

The U.S. Department of Labor has issued new rules addressing the issues raised by the Southern District of New York’s August decision that invalidated key rules. The new rules will be in effect from the date of publication in the Federal Register through December 31, 2020.

The Equal Employment Opportunity Commission recently issued updates to its technical assistance guidance to clarify its position on common workplace issues as businesses begin to resume in-person operations. Employers should consult legal counsel regarding specific circumstances for COVID-19-related return-to-work issues.

Employers should be prepared to address employee inquiries regarding eligibility for Families First Coronavirus Response Act child care leave. New guidance addresses whether employees may qualify for paid leave when a child attends a school operating on an alternate-day basis, when a parent chooses remote learning even though in-person instruction is available, and when a school begins the academic year with remote learning but shifts to in-person instruction if conditions permit.

Recent guidance issued in response to the prevalence of remote working arrangements due to COVID-19 applies to all remote work arrangements. The new guidance reaffirms an employer’s obligation under the Fair Labor Standards Act to track the number of hours of compensable work performed by employees who are working remotely to ensure those employees are compensated for all hours worked.

The State of New York brought suit against the U.S. Department of Labor regarding the latter’s “Final Rule” on implementation of the Families First Coronavirus Response ACT (FFCRA). The U.S. District Court for the Southern District of New York substantively agreed with the State, concluding that the DOL had overreached its authority and struck down the contested rules.

While the Occupational Safety and Health Administration has not mandated the wearing of facemasks in the workplace, the practice is highly recommended. There may be state and local legislative developments that could impact the guidance provided by OSHA, including state directives requiring individuals to wear facemasks in public

Significant changes in Virginia’s employment laws will become effective on July 1, 2020. Employers should take time to familiarize themselves with these new laws and seek advice where necessary.

On June 26, 2020, the U.S. Department of Labor issued guidance stating leave under the Family First Coronavirus Response Act is available when a parent is unable to work or telework because of the need to care for a child after summer camp or summer enrichment program closes due to COVID-19 concerns.

Relying on interim guidelines published by the U.S. Centers for Disease Control and Prevention, the EEOC has taken the position that an antibody test constitutes a medical examination under the ADA but does not meet the “job related and consistent with business necessity” standard for permissible medical inquiries. The EEOC reiterated that COVID-19 viral tests are permissible under the ADA.

The U.S. Supreme Court has held in no uncertain terms that a statutory violation of Title VII occurs where an employer terminates an employee merely for being gay or transgender because the termination decision intentionally relies in part on an employee’s sex.

The U.S. Equal Employment Opportunity Commission reminds employers to remember that guidance from public health authorities is likely to change as the COVID-19 pandemic evolves. Therefore, employers should continue to follow the most current information on maintaining workplace safety.

While the guidance on reopening businesses recommended by the Centers for Disease Control and Prevention is not mandatory, employers should incorporate the measures applicable to their operations and ensure compliance with directives issued by state and local authorities. Employers also should consult legal counsel regarding specific circumstances that may arise in the jurisdictions of their workplaces.

Employers are advised to consult the guidance that summarizes the CDC’s initiatives, activities and resources; proposes a general three-phase plan for reopening; and provides specific guidelines for high-risk workers, child care programs, schools and day camps, restaurants and bars, and mass transit administrators.

Beginning on May 26, 2020, employers are required to record cases of COVID-19 under guidance issued by the Occupational Safety and Health Administration. The guidance reiterates that the recording of a COVID-19 case does not in and of itself mean that an employer has violated an OSHA standard.

The publication provides a summary of the national responses of the United States, the United Kingdom, Canada, New Zealand and Australia, along with some of the issues they raise for employers.

The U.S. Department of Labor has provided guidance to state workforce agencies regarding the implementation of the Pandemic Unemployment Assistance (PUA) program. It states that an employee who refuses to return to work when called back by the employer or an individual who refuses an offer of work are no longer eligible for the PUA program, unless the individual remains unable to work as a direct result of COVID-19.

Recent updates to the EEOC’s COVID-19-related guidance address the return to work and accommodation of employees who may have underlying conditions that put them at greater risk. State and local legislative developments could impact the guidance provided by the EEOC, so employers should consult legal counsel regarding specific circumstances that may arise in the workplace.

Due to the difficulties COVID-19 restrictions may cause those renewing identification documents, beginning May 1, 2020, identity documents found in List B that are set to expire on or after March 1, 2020, and not otherwise extended by the issuing authority, may be treated the same as if the employee presented a valid receipt for an acceptable document for Form I-9 purposes.

The U.S. Department of Labor published guidance about the notice requirements of the federal Worker Adjustment and Retraining Notification (WARN) Act during the COVID-19 pandemic. The guidance takes the form of frequently asked questions posed by employers, employees and state agencies.

The Federal Coronavirus Task Force issued a three-stage plan last week to reopen the economy, where authorities in each state will decide when it is safe to reopen businesses. Once a state adopts phase one, businesses that reopen will need to be prepared to take certain precautions to meet their common law duty to provide and maintain reasonably safe premises.

Our Q&A document reviews laws and local guidance, discusses workplace safety and other issues that may arise when workers return from furlough & addresses “frequently asked questions” from the employer perspective.

The latest EEOC update on COVID-19-related workplace guidance pertains to disability-related inquiries and medical exams and advises that employers may, consistent with the requirements of the Americans with Disabilities Act, administer COVID-19 testing to employees before they enter the workplace.

The Equal Employment Opportunity Commission has updated its technical assistance guidance regarding Equal Opportunity laws in the areas of reasonable accommodation, pandemic-related discrimination and harassment, and return to work issues.

The document answers questions posed by employers who are navigating an uncertain business environment and advises on new state and federal regulations.

Many workplaces that traditionally have had few recordable or reportable work-related illnesses must now educate themselves on their obligations under federal and state health and safety laws or face expensive fines from regulators and greater exposure to workers’ compensation claims and liability lawsuits. By preparing an infectious disease preparedness and response plan, the employer will engage in the necessary exercise of creating clear lines of communication, identifying where and how workers might be exposed and implementing workplace controls. Performed properly, this exercise should result in better workplace morale, lower absenteeism, less business disruption and liability defenses if needed.

New York employers continue to grapple with the sudden and long-term effects of the coronavirus pandemic, and much consideration has centered on what businesses can do to weather this and similar unanticipated events without losing a number of trusted and trained employees via layoffs. The Shared Work Program is an initiative under which an employer may reduce employee work hours and thus the employees’ wages while the business is under temporary hardship.

Wilson Elser has compiled information on the state laws in all 50 states and the District of Columbia with respect to certain key issues that employers must or may need to address in terminating or reducing their workforce during the COVID-19 pandemic.

American companies thinking about how to structure their workforce in the coming weeks will need to understand how to access the benefits of the Coronavirus Aid, Relief and Economic Security (CARES) Act, which provides $2 trillion in relief to address the expected economic impacts of the COVID-19 pandemic.

Subsequent to Governor Cuomo’s PAUSE order – intended to increase “social distancing” and to be a “blunt” instrument (in the governor’s words) to slow the spread of the contagious coronavirus – guidance provided by the Governor’s Office gives certain businesses the opportunity to be deemed “essential” by filing a request.

Employers may be faced with new challenges in not having direct oversight of employees who must work from home during the COVID-19 pandemic. Employers must therefore take action to ensure that nonexempt employees are not performing work off the clock and not working overtime without authorization.

When confronted with crisis conditions and medical equipment shortages, medical professionals should be allowed flexibility to provide real-time solutions to complicated medical decision-making – within a crisis standards of care framework that incorporates elements of fairness, transparency, consistency, proportionality and accountability, consistent with AMA and state guidelines.

Congress has passed and the president has signed the Emergency Family and Medical Leave Expansion Act amends the Family and Medical Leave Act, which require unprecedented actions on the part of employers and government in the face of COVID-19 pandemic.

Wilson Elser has compiled a reference guide for employers that, while not comprehensive, provides general information and links to resources that can help employers determine a thoughtful course of action during the current state of emergency declared due to the COVID-19 pandemic.

This article contains common questions recently fielded by Wilson Elser attorneys, along with an explanation of the various legal implications involved. It is important to stay abreast of the legal developments on all fronts as businesses face this emerging threat.

New Jersey’s recently enacted Honig Act states “it shall be unlawful to take any adverse employment action against an employee who is a registered qualifying patient based solely on the employee’s status as a registrant with the Cannabis Regulatory Commission established pursuant to the law. The Act defines “adverse employment action” as “refusing to hire or employ an individual, barring or discharging an individual from employment, requiring an individual to retire from employment, or discriminating against an individual in compensation or in any terms, conditions, or privileges of employment.”

Wilson Elser’s Cannabis Law and Employment & Labor practices have joined forces to produce the first comprehensive, state-by-state review of current laws and resulting trends across the nation

The Illinois Cannabis Regulation Tax Act permits personal and recreational cannabis use for all individuals 21 years of age or older. While there will be much to work out as Illinois navigates its new cannabis laws, employers may maintain the same standards at work that they had before the law became effective. But, they need to know and follow the new law’s requirements.

A new Connecticut law concerning revisions to, and regulation of, gratuities permitted or applied as part of the Minimum Fair Wage recently passed in part due to the rise of class actions by restaurant employees involving tip credit regulations, some of which threatened to close several Connecticut businesses with mounting legal fees and penalties.

A proposed Florida bill highlights the inherent conflict between the rights of the individual to accept and undergo treatment for legitimate medical conditions in contradiction to employers’ desire to have a “drug-free” working environment in order to maintain certain standards of work quality and safety.

The New York Legislature has passed a bill significantly expanding the state’s Human Rights Law. While press around the bill has focused on issues of sexual harassment, the bill in fact expands all employee protections under the state law and prohibits mandatory arbitration of all discrimination claims, regardless of protected class. Employers should begin preparing for both the immediate and incremental effects of the anticipated new law.

A recent decision by the Colorado Court of Appeals might be viewed as creating a windfall in favor of injured employees and rendering pre-suit settlement negotiations with workers’ compensation carriers significantly less meaningful. Nonetheless, this decision appears to be in line with Colorado courts’ propensity for providing unavoidable windfalls to an injured plaintiff rather than insurance carriers or tortfeasors.

With more than 12 million residents, Illinois has a population twice the size of Colorado. Although the official approval is still pending, Illinois is poised become the eleventh state to approve the adult use of marijuana, and it would be the first to legalize it through the state legislature.

In this case the plaintiff worked on drilling platforms off the California coast on the outer continental shelf and was paid for his time on duty but not for his time on standby, during which he could not leave the platform, which is legal under federal law. The plaintiff filed under California law alleging that California’s wage-and-hour laws entitled him to standby pay.

The bill prohibits New York City employers from requiring a prospective employee to submit to a marijuana drug test as a condition of employment. The bill includes exceptions for safety and security sensitive jobs; those tied to a federal or state contract or grant; and law enforcement, commercial drivers, construction workers; and any position requiring the supervision and care of children, medical patients or vulnerable persons.

While not yet passed into law, several proposed bills in Connecticut should signal employers to be proactive about evaluating their employee handbooks. With a Democratic majority in the House and Senate and a newly elected Democratic governor, it seems likely that the employee-friendly bills will pass.

With new legislation looming, some observers expect New Jersey to act soon to prevent New York from gaining a first-mover advantage in legalizing adult-use recreational cannabis in the lucrative tri-state market. On the other hand, last year’s optimism proved to be premature and the many predictions of imminent action never came to fruition.

The Illinois Supreme Court gave the state’s Biometric Information Privacy Act more “punch” in a recent opinion holding that an individual does not need to prove harm to recover − a technical violation of the Act is sufficient to constitute standing.

Whatever one’s position on California Section 5032, there is no disputing it will serve to disrupt the current California cannabis market and cause many existing business relationships to change or cease. While the industry waits for clarity, the prudent course is to embrace full disclosure.

This holding is significant for employers because it clarifies the relationship between federal and Connecticut state laws concerning marijuana use and provides guidelines for drug testing in the employment realm.

The extra-territorial reach of the EU’s new General Data Protection Regulation means that non-EU companies that collect, store, transfer or otherwise process personal data of EU residents may be required to obtain express consent to use an individual’s personal data, in addition to maintaining internal records of the company’s personal data processing activities. Moreover, companies may have a mere 72 hours to notify EU regulatory authorities of a data breach involving the personal data of EU residents.

Should employers be allowed to insist that workplace disputes be handled in one-on-one arbitration or should employees always have an option of bringing claims in collective actions? A 5−4 opinion for the U.S. Supreme Court holds that arbitration agreements containing class and collective action waivers must be enforced pursuant to the Federal Arbitration Act and are not otherwise nullified by the FAA’s savings clause or the National Labor Relations Act.

While Attorney General Jeff Sessions’s January 4, 2018, memo indicates that the federal government continues to maintain the belief that marijuana is an illegal substance, the extent to which federal law will be enforced in Colorado remains uncertain at this time. 

DACA Renewals in the Wake of the Federal Court Preliminary Injunction.

Keeping track of California’s employment-related legislation can confound even the most diligent employers. A quick review of the topics covered here can set your business on the road to compliance and give you peace of mind.

A new U.S. Department of Homeland Security regulation improves the ability of U.S. employers to hire and retain highly skilled foreign workers and increases the ability of those workers to pursue new employment opportunities upon losing their jobs. 

The U.S. Department of Labor has withdrawn its 2015 and 2016 Administrative Interpretations regarding joint employment and independent contractors, which many businesses had argued were unduly burdensome on employers. While an attempt to limit the expansive definition of “employment,” this move does not relieve companies of their legal obligations under the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act.   

Effective October 31, 2017, employers in New York City are prohibited from asking about a job applicant’s salary history during all stages of the employment hiring process. The new law also prohibits an employer who knows of a job applicant’s salary history from relying on that information in the determination of future salary.

Based on a recent U.S. Supreme Court decision, employers who have challenged the enforceability of an EEOC subpoena at the district court no longer have to be concerned about the Ninth Circuit “second guessing” the lower court’s decision de novo. That said, lower court decisions will be harder to overturn on appeal based on the abuse of discretion standard.

“Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers” – a final rule published by U.S. Citizenship and Immigration Services – is designed to improve employment-based, nonimmigrant and immigrant visa programs. Amended regulations will enable employers to retain high-skilled workers who are beneficiaries of approved immigrant visa petitions, but are not able to obtain permanent residency for 8-10 years due to crushing backlogs caused by per-country, annual limits on green cards.  The new regulation will benefit workers from over-subscribed countries, namely India, China and the Philippines.

The New York Department of Labor’s proposed Wage Order increases the minimum salary requirement necessary for executive and administrative employees to be exempt from overtime. Employers will need to fast-track their re-budgeting efforts. New York’s minimum wage increase has already been enacted and will be in effect on December 31, 2016.

A federal district judge issued a nationwide preliminary injunction that blocks DOL’s new overtime regulations from taking effect on December 1, 2016. This nationwide injunction stays the effective date for the new regulations until further action by the courts.

Newly issued guidance and changes to Equal Employment Opportunity Commission regulations are designed to facilitate employer-sponsored wellness programs, a worthy benefit for employers and employees alike. However, employers who sponsor such programs must be in complete compliance with complex legal requirements to avoid liability under federal legislation. 

The Department of Homeland Security published a final rule on March 11, 2016, allowing foreign national students who receive advanced degrees in the United States in science, technology, engineering or mathematics to apply beginning on May 10, 2016, for a 24-month extension of their post-completion optional practical training. This 24-month extension replaces the current 17-month extension.

In a recent decision, the New Jersey Appellate Division held that the presence of language in an employee handbook stating that nothing in the handbook was contractually binding against the employer meant that the employer could not enforce a mandatory arbitration procedure also included in the handbook. The court felt that the employer wanted to have the benefit of a contract binding the employee on the subject of arbitration but avoid a contract when other parts of the handbook were at issue. 

In a recent decision, the Ninth Circuit Court of Appeals said that a restaurant located in the Court’s jurisdiction may no longer impose a tip pool that allows employees who are not directly in the line of service to be a part of a tip-pool arrangement. Back of the house employees such as cooks, kitchen staff and dishwashers who have no contact with customers are barred from sharing in a tip pool going forward.  

Two recent lawsuits will allow the EEOC to test the persuasiveness of its current interpretation of Title VII’s prohibition of sex discrimination, but it is unlikely that either action will clarify the ongoing jurisdictional split on this issue in federal courts. While the appellate circuits have thus far agreed that Title VII does not prohibit harassment or discrimination because of sexual orientation, recent decisions at the district court level have embraced the EEOC’s interpretation.

The short-term tax benefits related to independent contractor status may not outweigh the financial penalties imposed on a company should a judicial or administrative body determine that the workers were misclassified. Additionally, a company may open itself up to investigation by state tax, unemployment insurance and workers’ compensation authorities and, if the misclassification was intentional, criminal penalties.

Since the 1980s, the National Labor Relations Board has followed a definition that requires joint employers to exercise “direct and immediate” control over the terms and conditions of employment. Finding that this standard has failed to keep pace with changes in the workplace and economic circumstances, the Board has issued a decision that may have far-reaching implications for any company that uses contractors, including large franchisors, which may now be required to bargain with the unionized employees of their franchisees.

New York City’s Fair Chance Act alters provisions of the City’s Human Rights Law to prohibit employers from inquiring about a candidate’s criminal record until after they have made a conditional offer of employment. The new law, however, provides exemptions for public and private employers who are required by law to conduct criminal background checks and for several City agencies.

The San Francisco Board of Supervisors has passed two ordinances, codified as Hours and Retention Protections for Formula Retail Employees, San Francisco Police Code Article 33F, and Fair Scheduling and Treatment of Formula Retail Employees, San Francisco Police Code Article 33G. Under the designation “Retail Workers’ Bill of Rights,” the new legislation will regulate employee hours, scheduling and retention and the treatment of part-time employees at certain standardized retail establishments in San Francisco.    

The Supreme Court’s ruling granting same-sex couples nationwide the constitutional right to marry strikes down same-sex marriage bans in 13 states and mandates that all 50 states must recognize same-sex unions. Employers should review benefits programs, handbooks and employment policies and practices to ensure they treat all married couples in the same manner.

A recent ruling by the Colorado Supreme Court addresses in the employment context the conflict between federal and state law that arises when states legalize medical and retail marijuana. Colorado’s Supreme Court issued what appears to be a per se determination that the use of medical marijuana is not a “lawful” activity protected by Colorado’s “lawful activities statute” because marijuana remains prohibited under federal law as a Schedule I substance. Therefore, it is not an unfair or discriminatory practice for an employer to discharge an employee based on the employee’s use of medical marijuana, even outside of the workplace.

The California Supreme Court ruled in a June 2014 case that if it is found during the discovery phase that a plaintiff is actually unauthorized to work in the United States, such a discovery would result in an eradicated future lost wage award. Given the potential savings, an employer should seek to ascertain a former employee’s work eligibility status when defending against discrimination claims.

Effective March 27, 2015, employers will be required to allow FMLA leave for an employee in a legal same-sex marriage, provided that the employee was married in a state or country where same-sex marriage is recognized. Employers should ensure that management and human resources staff are aware of the regulatory change and that FMLA policies are in compliance with the new rule.

The “no pet” policy under the Fair Housing Amendments Act and section 504 of the Rehabilitation Act applicable to recipients of financial assistance from HUD may be subject to modification upon review of HUD’s April 2013 Guidance on “assistance animals.”

In a case of first impression in New Jersey, a trial court has ruled that school districts defending bullying cases under New Jersey’s Anti-Bullying Bill of Rights Act and the New Jersey Law Against Discrimination can seek contribution from students accused of bullying and their parents.

Employers and insurers need to be in compliance with the 2014 ACA mandates and understand how compliance with the final regulations just issued by the U.S. Department of the Treasury regarding the Employer Shared Responsibility provisions can best be ensured. Many are overwhelmed by the volume and impact of ACA regulations and other issues relative to adherence to the ACA requirements.

Navigators provide in-person assistance to individuals, families and small businesses interested in applying for health insurance coverage through the New York Marketplace. At present, New York has nearly 500 trained and federally regulated Navigators dispersed throughout the state's 62 counties, with 48 different languages represented.

Penn State followed the ACA requirements and, so it believed, implemented an effective tool to fight health care inflation. But it lost the public relations battle as opponents of the university’s wellness program claimed that certain aspects of the program violated a number of privacy and civil rights laws.

Evaluating Employer Insurance Coverages to Defend against Claimed Violations of the Affordable Care Act
Employers should review their professional lines insurance policies along with outside benefits consultants and attorneys to determine whether additional or different coverage may be appropriate to guard against the new ACA risks. Additionally, employers should become educated as to any new insurance products that may be available or in development to address ACA liabilities.

Small businesses will be required to wait until November to complete their online purchases of health coverage at federally facilitated health insurance exchanges. Paper applications will be manually processed on schedule, beginning October 1, 2013.

Utah’s enactment of HB 100 simultaneously contracts and expands employers’ rights to access their employees’ social media presence and, importantly, represents a growing trend among state legislatures taking an affirmative position on the assessment of the rights of both employers and employees/job applicants in the expanding world of social media.

Although federal courts apply Rule 23 certification standards in Title VII employment discrimination cases, many courts have used a relaxed application of these standards. This article lists some of the decisions rendered after the Dukes case that reflect both the effectiveness of the “localized” policy argument and the ever-increasing rise of successful class-certification motions.

If an employer with an anti-drug policy fires an employee who admittedly used marijuana the night before at home, the conflict between the express rights outlined in the recently passed Amendment 64 and the prohibition on terminating someone’s employment for otherwise legal conduct may spin the conflict into protracted litigation.

The proliferation of social media in the workplace has increased the risk of potential liabilities for companies. Specifically, there is a growing amount of litigation arising out of the use of confidential or proprietary information shared on social media websites.

Courts are responding to the broader scope of coverage afforded to individuals, including obese individuals, under the ADAAA.

California’s governor has signed Assembly Bill 1875, which limits the length of depositions in civil cases. The new law will go into effect on January 1, 2013.

The EEOC’s recent guidance provides that employers may violate Title VII if they treat criminal history information differently for applicants or employees. This does not mean that employers should abandon background screening altogether. In fact, to do so could run afoul of an employer’s obligation to use reasonable care when hiring employees and lead to liability if third parties are harmed by an employee.

In the past few years several U.S. Supreme Court cases have effectively expanded the scope of retaliation claims and lowered the requisite standard for a retaliation charge. The EEOC's latest enforcement and litigation report confirms that claims of retaliation against employers are significantly increasing.

Two U.S. senators and Facebook, Inc. express outrage at the practice by some employers in requesting social media passwords from applicants for employment. The senators have asked for an investigation to determine the potential for a violation of discrimination laws, and Facebook asserts that the practice is a violation of Facebook’s Statement of Rights and Responsibilities.

Because the California Supreme Court has provided some specific guidance regarding employers’ obligations in reference to meal and rest breaks, it is very important that employers review their policies and practices to ensure they are in compliance with the requirements set forth in a recent decision.

The Employee Relations Law Journal, a quarterly employment law newsletter, recently published an article by Kevin C. Donovan that first appeared in the Wilson Elser employment newsletter

Two of the most misapplied exemption categories to the FLSA’s overtime requirements are the executive and administrative exemptions, which are often referred to as the “supervisory” and “managerial” exemptions. To avoid DOL audits and fines, employers need to determine whether an employee is exempt under the FLSA, which is a function of analyzing individual employees’ actual job duties.

Along with the marketing benefits inherent in using social media, management should realize the stakes may be too high to sit on the sidelines when it comes to dealing with the labor issues arising from increased employee social media usage.

In the Federal Courts Jurisdiction and Venue Clarification Act of 2011, Congress clarifies many issues that are often subject to conflicts between (and sometimes within) the various circuits of the federal courts. The new law applies, prospectively only, to cases commenced in state or federal court on or after January 6, 2012.

The EEOC’s proposed regulations are intended to clarify the “reasonable factors other than age” (RFOA) defense to a disparate impact claim. It is critical that employers considering work force reductions or changes in policies that may have a negative impact on older workers be aware of these regulations and engage in an appropriate analysis to allow effective utilization of the RFOA defense provided by the Supreme Court if faced with a disparate impact claim based upon age.

The National Labor Relations Board in 2007 established a process by which an employer’s voluntary recognition of a union could be challenged promptly. That decision was recently overturned, making it easier for unions and employers voluntarily to enter into exclusive bargaining relationships that are not subject to quick challenge and without a secret ballot election to determine the employees’ choice.

In a decision published on August 8, 2011, the United States Court of Appeals for the Second Circuit ruled that a requirement that an employee notify his employer directly of the need for a leave of absence under the FMLA is in direct conflict with the less stringent notification requirements of the FMLA.

Delivery drivers are often misclassified as independent contractors, which has led to claims for failure to comply with the obligations owed to this class of employees under the FLSA, including tip credit and expense reimbursement. Various lawsuits brought by pizza delivery drivers exemplify the challenges to employers in properly compensating this type of worker.

Effective May 24, 2011, the final regulations under the ADA Amendments Act increase employers' challenges in meeting their obligations under both federal and state laws governing disability determinations and leave obligations.

On June 3, 2011, the Connecticut House of Representatives passed Senate Bill 913. The act, mandating that employers provide paid sick leave to service workers, was signed by the Governor July 1, 2011, and takes effect January 1, 2012, making Connecticut the first state to have mandatory paid sick days.

Employers across the nation breathed a sigh of relief as the U.S. Supreme Court found that the Ninth District Court's certification was not consistent with Rule 23's requirements that a class action must have common "questions of law and fact."

Arizona employers were placed on alert as the U.S. Supreme Court, amid challenges from the business community, upheld an Arizona law that (1) mandates use of the federal E-Verify program and (2) uses language in the Legal Arizona Workers Act of 2007, which relies on an exception in the 1986 Immigration Reform and Control Act, to impose "the business death penalty" on employers who "employ, or recruit or refer for a fee for employment, unauthorized aliens."

U.S. Supreme Court Ruling May Expand Employer Liability In Staub v. Proctor Hospital, a decision that speaks directly to a greater potential for employer liability in discrimination and retaliation claims, the U. S. Supreme Court ruled that an employer is now responsible for an adverse employment decision if a supervisor under his/her authority has an illegal motive and influences, though does not actually make, the decision to terminate.

The chapter, entitled "Privacy, Discrimination, and Establishment of NLRB Authority: Recent Decisions in Employment Law," examines four U.S. Supreme Court decisions, pending U.S. Supreme Court cases, and trends in labor law.

A U.S. Supreme Court ruling upholds background checks on employees working for a NASA contractor – an important decision affecting workers’ constitutional privacy rights.

Steven L. Young (Partner-White Plains) has co-authored an article entitled "Preventing Wrongful Termination Employment Claims" that appeared in the fourth quarter issue of FLAME. FLAME is the official publication of the The National Franchisee Association (NFA), which serves the BURGER KING® franchisee community through advocacy, education and training, networking and member-focused programs, services and benefits.

New rules are in place for a federal law that prohibits discrimination on the basis of information derived from genetic tests. The Genetic Information Nondiscrimination Act sets standards for employers in the gathering, use and disclosure of this sensitive information. Care must be taken in order that no adverse employment decisions are made based on a person having, or being susceptible to, a hereditary disease.

When foreign companies operating in the United States employ personnel from their own countries in key positions, U.S. workers may file discrimination lawsuits.

Payment Obligations Under FLSA for “Waiting Time” and “On-Call Time" In 2009, the federal government significantly increased the budget of the U.S. Department of Labor Wage and Hour Division, resulting in an increase in wage and hour audits.

The Patient Protection and Affordable Care Act (PPACA) became effective earlier this year. The PPACA contains a provision requiring reasonable breaks for nursing mothers.

The U.S. Supreme Court’s decision in City of Ontario, California, et al. v. Quon, et al. restricts an employee’s expectations of privacy in electronic communications made using the employer’s equipment.

Over the past year, the federal government and many states have been stepping up actions to enforce wage and hour laws.

The population of the United States is becoming increasingly diverse.  Recent surveys reflect that Hispanics currently comprise more than 15 percent of the population – more than 46 million people – making them the country’s largest minority group.  As such, employers should make it a priority to become more knowledgeable about issues pertaining to Hispanic-Americans and other non-native English speakers in the workplace in order to avoid potential legal problems now and in the coming years.

A recent ruling by the New York Supreme Court, Albany County, in Held v. State of New York Workers' Compensation Board regarding Group Self-Insured Workers' Compensation Trusts is a decision that all providers of workers' compensation insurance in New York should pay special attention to.  In particular, the court addresses important issues of liability, constitutionality, and relatedness in connection to Group Self-Insured Trusts.

On February 23, 2010, the United States Supreme Court in Hertz Corp. v. Friend, et. al., unanimously held that a corporation's "principal place of business" for the purposes of federal diversity jurisdiction shall be determined by the "nerve center" test.  This refers to the corporation's center of direction, control and coordination, as opposed to the "business activities" test used in the Ninth Circuit and elsewhere.

After the frenzy of the holiday season, January is the perfect time to reassess employment policies.  This includes making modifications to comply with changes in the laws and implementing any updates appropriate for the ever-changing needs of the workplace.

Recently, President Barack Obama signed into law the National Authorization Act for Fiscal Year 2010, which extends military caregiver leave provisions to veterans.  Under the new law, a worker will be able to take up to 26 weeks of leave from employment to care for a veteran for up to five years after the service member leaves the military.  The leave could be taken by the caregiver if the veteran suffered a qualifying injury or illness in the line of active duty (or had an existing injury or illness aggravated in the line of active duty).  The injury or illness could manifest itself before or after the service member became a veteran.

This California Employment newsletter discusses employment claims on the rise, employee's waiver of class action rights, an interview with Debra Mellinkoff, a prominent California employment mediator, and more.

Concern over spread of the H1N1 flu virus ("swine flu") in the workplace does not relieve employers of their obligations under employee protection laws, including the federal Americans With Disabilities Act (ADA).  Indeed, as the Equal Employment Opportunity Commission (EEOC) recently noted, swine flu raises a number of potential disability discrimination issues of which employers must be aware.

This California Employment newletter discusses California Supreme Court review of meal and rest period rules, discrimination lawsuits, increasing retaliation claims, Military families leave time and additional protection under new Final Rules and Regulations, and more.

This California Employment newsletter discusses the broadened ADA expands § 504 and employee accommodation exposure. A recent change in the Americans with Disabilities Act (ADA) will expand school district obligations to accommodate students and employees. Addressing case law that narrowly interpreted "disability," effective January 1, 2009, the ADA has been broadened (Public Law, 110-32s, September 25, 2008) to enlarge the universe of disabled individuals.

With the recent signing of the Lilly Ledbetter Fair Pay Act, President Obama effectively overturned a U.S. Supreme Court ruling in 2007 that severely restricted the amount of time an employee had in which to assert a pay discrimination claim. An employee can now file a complaint of pay discrimination long after learning of any pay discrepancy.