Employment Matters Blog

San Francisco Board of Supervisors Continues to Reshape Working Environment for Low-Wage and Part-Time Workers; Becomes First Jurisdiction in Nation to Approve So-Called “Retail Workers Bill of Rights”; Forces Large Retailers to Address Automated Scheduling Practices

Posted in California, Employment Legislation, staffing, Wage and Hour

San Francisco Retail Workers Bill of RightsWritten by Michael Arnold and Brent Douglas

Just before the Thanksgiving break, as retailers were gearing up for “Black Friday,” “Cyber Monday,” and the newly-minted “Gray Thursday,” the San Francisco’s Board of Supervisors unanimously approved two new ordinances collectively known as the “Retail Workers Bill of Rights” – the first of its kind in the nation.

This controversial new law, which will go into effect next summer, is the latest in a series of laws enacted by the Board, including laws regarding the payment of a living wage, the provision of paid sick leave, flexible working arrangements and healthcare, and the curbing of background checks, all of which are designed to provide protections to the growing number of low-wage and part-time workers in San Francisco.  This time, the Board said it believed the Retail Workers Bill of Rights was necessary to limit a retailer’s ability to force individuals to work part-time, unpredictable, and often fluctuating hours.

Below, we discuss (i) the basis for the new law; (ii) the obligations it imposes on large retailers; (iii) its potential impact; and (iv) recommendations for compliance.

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Update to the Update: New York Employers Will Likely Be Relieved of the Requirement to Distribute Annual Pay Notices in January 2015 After All

Posted in New York, New York Labor Law, notices

Written by Michael Arnold

Okay, so despite our previous post saying the opposite, employers likely will not have to distribute New York State Wage Theft Act Annual Pay Notices after all.  We had good reason to report it the other way a couple of weeks ago as the Governor still had not signed the bill repealing this requirement and even if he did so, it wouldn’t have taken effect for 60 days – well after this January’s notice distribution requirement.

But we just learned, courtesy of Bond, Schoeneck & King’s John Bagyi, Esq., that the legislature just sent the bill to the Governor who is expected to sign it.  At the same time, apparently the legislature and the Governor have agreed to amend the bill in early 2015 to make the repeal effective immediately so that employers will be relieved of the need to distribute the notices. This is welcome news for employers (even those who have already taken steps to prepare their notices and are probably rightfully frustrated).

We will confirm when the Governor signs the bill and if the repeal is actually effective immediately.  Stay tuned.

Supreme Court Finds that Post-Shift Employee Security Screenings Noncompensable Activity Under the Fair Labor Standards Act

Posted in FLSA, Litigation, staffing, Supreme Court

Written by Frank Hupfl

Last week, in Integrity Staffing Solutions, Inc. v. Busk, the United States Supreme Court issued a rare unanimous opinion holding that post-shift employee security screenings were noncompensable activities under the Fair Labor Standards Act because those screenings were neither the principal activity the employees were hired to perform nor integral or indispensable to the principal activity they were hired to perform.

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EEOC’s Attempt to Limit Reach of Severance Agreements Hits Roadblock… Again

Posted in discrimination, EEOC, Litigation

Written by Daniel Long with Michael Arnold

A federal judge in Colorado has once again stymied the EEOC’s efforts to successfully challenge an employer’s standard separation agreement as violating the Age Discrimination in Employment Act.  The decision in Equal Employment Opportunity Commission v. CollegeAmerica Denver, Inc., comes on the heels of another recent federal court decision in Illinois dismissing similar claims against CVS.  As in the CVS decision, the judge here also faulted the EEOC for failing to engage in conciliation with CollegeAmerica before filing a lawsuit.

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The Affordable Care Act—Countdown to Compliance for Employers, Week 2: Explaining the Look-Back Measurement Method to Employees

Posted in ACA Compliance Series, Affordable Care Act, DOL, IRS

Written By Alden J. Bianchi and Edward A. Lenz

Many applicable large employers—i.e., employers that are subject to the Affordable Care Act’s (ACA) employer shared responsibility rules—have a pretty good sense of what these rules are, how they work, and what they plan to do to comply. A subset of these employers has gained a sophisticated understanding of the employer shared responsibility rules, while another (hopefully much smaller) subset has only a vague sense that they need to do something by or in 2015 in connection with extending coverage to full-time employees.

Employers with large groups of employees who were previously not offered coverage, or those with large variable and contingent workforces, have generally been relieved to learn that, in the case of employees with unpredictable hours, they may be able to determine the employee’s status as full-time using the “look-back measurement method.” (For a description of the look-back measurement method, please see the IRS’ “Questions and Answers on Employer Shared Responsibility Provisions Under the Affordable Care Act,” Question 15). Even after having the particulars of the look-back measurement method explained to them more than once, the H.R. and finance professionals with front-line responsibility for compliance sometimes confess confusion about how these rules work. And even among those with a firm grasp of the particulars, there remains a lingering worry. Once management and H.R. have a grasp of the rules and have settled on a compliance strategy, they must next figure out how to explain the rules to employees in a way that complies with applicable law and actually works for employees (the two are not necessarily the same).

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Staffing Companies Hit with Class Action Alleging Violation of Fair Credit Reporting Act

Posted in background checks, Litigation, staffing

Written by Gauri Punjabi

Fair Credit Reporting Act class actions remain on the rise.  The latest one of note was recently filed in Maryland federal court against staffing agencies Aerotek, Inc. and Allegis Group, Inc., alleging that they violated the FCRA after they fired an employee without providing him with advance notice and an opportunity to dispute certain criminal history information identified on a background report.

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Back at it Again: NLRB Invalidates Employer’s “Overbroad” Solicitation Rule

Posted in Administrative, NLRB, Traditional Labor

Written by David Katz

We have posted extensively about the NLRB’s crusade against overbroad workplace policies (see our most recent posts here and here), ranging from social media policies to workplace conduct and disciplinary policies and everything in between.  Well the Board is back at it again — handing down two solicitation decisions in the past couple of weeks.  On November 26, it invalidated Mercedes-Benz’s seemingly innocent solicitation and distribution policy in its employee handbook.  On December 11, the NLRB handed down a controversial decision regarding an employee’s right to use company-provided email systems on non-working time to send NLRA-protected communications.  Today we cover the former decision; later this week, the latter.

So let’s take a look at Mercedes-Benz’s offending handbook policy:

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Massachusetts Becomes the Latest Jurisdiction to Require Paid Sick Leave

Posted in Massachusetts, sick leave

Written by George Patterson

Massachusetts voters recently approved a ballot initiative amending the Commonwealth’s labor statute to require employers to provide workers with up to 40 hours of paid sick time per year.  The new law follows the enactment of similar statewide measures in California and Connecticut and city ordinances in various municipalities across the country, including New York City.

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NLRB Again Attempts to Invalidate Mandatory Arbitration Clauses for Employment Claims

Posted in Arbitration, California, NLRB, Second Circuit, Supreme Court

Written by Brent Douglas

In its Murphy Oil decision, the National Labor Relations Board affirmed its 2012 holding in D. R. Horton, which found an employer violates the NLRA when it requires employees “as condition of their employment, to sign an agreement that precludes them from filing joint, class, or collective claims addressing their wages, hours, or other working conditions against the employer.” Employment attorneys were waiting to see how the NLRB would react to the Fifth Circuit Court of Appeals’ reversal of its 2012 D. R. Horton decision.  Unpersuaded, the Board indicated it “independently reexamined” D. R. Horton and concluded: “Today we reaffirm that decision.”

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Update: New Jersey Supreme Court to Address Contractually-Shortened Statute of Limitation Provisions

Posted in New Jersey

Written by David Katz

Over the summer, we posted about an interesting New Jersey appellate court decision (Rodriquez v. Raymours Furniture) enforcing a provision in a job application that reduced the period in which an employee could sue an employer to six months from the date of the adverse employment action.  We also noted a 2013 New York appellate decision involving the same employer, the same policy and the same result.  Well, not so fast on revising those job applications to abridge limitations periods (at least in New Jersey).  We learned that just last week New Jersey’s highest court granted the plaintiff’s petition for certification, agreeing to review the June 2014 appellate court decision.  We will of course follow the New Jersey Supreme Court proceedings so stay tuned.