On April 29, 2019, the U.S. Department of Labor’s (DOL) Wage and Hour Division issued an opinion letter finding that “virtual marketplace company” workers (of an unnamed business) were independent contractors rather than employees. While not binding, the opinion signals that DOL is taking a less aggressive approach than in recent years to the hot-button … Continue Reading
Following two years of anticipation, after a similar but more aggressive rule was proposed by President Obama’s administration and then squashed by federal courts in Texas, the Department of Labor (DOL) has issued the long-awaited Notice of Proposed Rulemaking that, if enacted, would expand access to overtime pay for certain employees under the Fair Labor … Continue Reading
Over three decades ago, in Loral Corp. v. Moyes, a California Court of Appeal held that employee non-solicitation agreements, which bar former employees from soliciting the employer’s existing employees, could be enforceable. In 2008, the California Supreme Court in Edwards v. Arthur Andersen LLP held that non-competition agreements are unlawful restraints on trade and void … Continue Reading
Ten months ago the California Supreme Court rendered its unanimous decision in Dynamex Operations West, Inc. v. Superior Court, a case that articulated a new standard for classifying employees and independent contractors. Given the importance of this decision, we provided analysis on this case when it was first decided. However, once issued, this new Dynamex … Continue Reading
On October 1, 2018, the Massachusetts Noncompetition Agreement Act (the “Act”) came into effect, creating several new requirements for noncompetition agreements between employers and service providers based in Massachusetts. The new law does not impact agreements entered into before October 1; however, going forward, employers should evaluate when to seek a noncompetition agreement from a … Continue Reading
The Supreme Court put to rest years of uncertainty regarding the enforceability of class action waivers for employees when it decided Epic Systems Corp. v. Lewis, 582 U.S. ___ (2018) on May 21. In a 5-4 decision, the majority held that employers do not violate the National Labor Relations Act (NLRA) or the Federal Arbitration … Continue Reading
California’s highest court recently pronounced a new worker classification standard in Dynamex v. Lee, a case involving wage and hour requirements under the California Labor Code. Compared with the old rule, the new standard is simpler, arguably more predictable—and will make it more difficult for businesses to classify workers as independent contractors. Dynamex will have … Continue Reading
The U.S. Department of Labor (DOL) recently announced that it will apply a new, more flexible test for determining whether interns working for “for-profit” companies are entitled to minimum wage and overtime protection under the federal Fair Labor Standards Act (FLSA). The new test is set forth in DOL Fact Sheet #71 (updated January 2018). … Continue Reading
Existing rules in Europe require, and proposed rules in the U.S. would require, companies and financial institutions to have in place effective clawback policies. Under such policies, employers have the ability to recover compensation paid to employees when certain events occur or information comes to light that could have an adverse effect on the employer. … Continue Reading
Long considered to be at the forefront of providing benefits to employees who take family and medical leave, California recently enacted a new law aimed at increasing the benefits paid out to employees who take time off to care for an ill or injured family member or for new child bonding. Meanwhile, San Francisco’s Board … Continue Reading
On January 20, the Department of Labor’s Wage and Hour Division (WHD) issued new guidance on joint employment under the Fair Labor Standards Act (FLSA). The guidance marks the third time in recent years that WHD has stressed the broad definition of “employment” under the FLSA, following June 2014 guidance on joint employment in the … Continue Reading
The classification of workers as employees or independent contractors is an ongoing headache for employers. Different government agencies use different tests to determine a worker’s status. The one thing the tests have in common is that they are subjective: two people applying the same test to the same worker will often reach different conclusions about … Continue Reading
The Department of Labor has proposed a rule (available here) that would significantly increase the minimum salary threshold required to qualify for the FLSA’s so-called “white collar” exemptions for executive, administrative, and professional employees. The finalized rule is expected to take effect in 2016. The current salary threshold, set in 2004, is $455 per week … Continue Reading
After years of confusing and sometimes contradictory signals (described in previous posts here and here), the Equal Employment Opportunity Commission has finally proposed a regulation explaining how employment-based wellness programs can satisfy the Americans with Disabilities Act.… Continue Reading
By Helena Milner-Smith, Kamakshi Venkataramanan and Jenna Wallace Vodafone announced recently a new progressive and generous mandatory minimum global maternity policy. According to the company, under the new policy, to be in effect by the end of this year, female employees of Vodafone in 30 countries will be offered two maternity benefits: (1) at least 16 … Continue Reading
On March 26, 2015—just one day before the Final Rule for the Family Medical Leave Act (“FMLA”) was to take effect—a federal court in Texas blocked the Final Rule’s application to the states of Texas, Arkansas, Louisiana, and Nebraska, pending a full determination of the issue on the merits in Texas v. United States. The … Continue Reading
The Supreme Court held on March 25, 2015 in Young v. UPS that a plaintiff alleging pregnancy discrimination based upon the denial of an accommodation may proceed under the familiar McDonnell Douglas framework generally applied to Title VII discrimination claims. The Court’s decision, which resulted in a remand to the Fourth Circuit, surprised many observers … Continue Reading
By Richard Shea and Barbara Hoffman These days, many employment agreements, severance agreements, releases, plan documents, SPDs, and other compensation and benefits arrangements impose confidentiality requirements on employees, both current and former. Yesterday the SEC issued its first order addressing how employee confidentiality obligations can be phrased consistent with the agency’s regulations implementing the Dodd-Frank … Continue Reading
Under a Final Rule recently adopted by the Department of Labor (“DOL”), legally married same-sex couples will be included in the definition of “spouse” under the Family and Medical Leave Act (“FMLA”) and will be eligible to use FMLA leave to care for their spouse or family member, regardless of whether their marriage would be … Continue Reading
In a recent Delaware Chancery Court case, the court declined to grant a preliminary injunction to enforce a noncompetition covenant against a California resident and former employee, finding the covenant would be unenforceable under California law, despite an explicit choice of law provision in the relevant contract designating Delaware law as the governing law of … Continue Reading
We previously noted that the National Labor Relations Board (“NLRB”) takes the position that the National Labor Relations Act (“NLRA”) protects employees’ use of social media for certain purposes, and these protections apply regardless of whether the employees are covered by a collective bargaining agreement. Our colleagues at InsidePrivacy recently posted a blog post discussing … Continue Reading
The Equal Employment Opportunity Commission has issued new enforcement guidance explaining when an employer’s policies affecting pregnant employees might violate federal law. The new guidance appears in an updated chapter of the EEOC’s enforcement manual, and in a related set of questions and answers. Among other topics, the new guidance addresses the rights of pregnant … Continue Reading
Reflecting on the labor market on this Labor Day, we note that many economists are predicting that, unlike prior recessions, employment and wages will not bounce back after the current economic downturn that began in 2008. Employers will retain significant bargaining power in US and overseas labor markets, likely leading to diminishing job security and … Continue Reading
In two closely watched cases, the Second Circuit has ruled that the Fair Labor Standards Act (“FLSA”) does not preclude the waiver of class action claims (known technically as “collective actions” under the FLSA). In decisions issued on August 9th and 12th, the Second Circuit reversed lower court rulings that had refused to enforce individual … Continue Reading
