Summertime is vacation time. And vacation time means headaches for employers who engage in vacation float. Vacation “float” is the practice of advancing vacation to employees before they actually accrue it under an employer’s vacation policy. So the question becomes, if you allow an employee to take vacation time the employee hasn’t actually earned, how do you get the value of that time back if the employee leaves before “repaying” it?
The Supreme Court is set to hear oral argument in October on whether class and collective action waivers are enforceable. While employers await the Supreme Court’s decision, other courts continue to weigh in on the matter. Just last week, a New York State appellate court in Gold v. New York Life Ins. Co., 2017 NY Slip Op 05695 (App. Div. 1st Dep’t, July 18, 2017), found itself aligned with those federal circuit courts of appeal invalidating these waivers. Given the continuing disagreement among courts across the nation – both federal and state – as to whether the Federal Arbitration Act’s policy favoring arbitration should trump the National Labor Relations Act’s prohibition on contracts that restrict the rights of employees to engage in collective action, the need for clarity from the Supreme Court is more urgent than ever. Employment Matters will of course continue monitoring these important developments, so please check back in for regular updates.
Regulations implementing the Paid Family Leave Act became effective on Wednesday, July 19, 2017. No substantive changes were made to the proposed regulations that were published back in May 2017 (which we addressed here).
As our readers know, we have been monitoring decisions regarding the ability of employers to take disciplinary action against employees for using marijuana at work (like this decision here). The most recent high court to weigh in on this topic is the Massachusetts Supreme Judicial Court, which looked at whether an employer may violate that state’s anti-discrimination law when it fires an employee because of a failed drug test based on the employee’s use of medical marijuana. The Court concluded that employers must accommodate medical marijuana users in the normal course under these circumstances to avoid a violation of that law. We discuss this important new decision – Barbuto v. Advantage Sales and Marketing, LLC – below.
Spurred by a recent change in a Massachusetts wage and hour regulation, plaintiffs’ attorneys are aggressively pursuing class action lawsuits seeking unpaid overtime premium pay on behalf of car salespeople across the Commonwealth. In Massachusetts, successful wage and hour lawsuits entitle plaintiffs to not only unpaid wages, but also automatic treble damages (i.e., three times owed wages) and a payment of their reasonable attorney’s fees. As a result, this recent trend poses significant risks to Massachusetts car dealers.
New job to-do list: (1) send goodbye email; (2) attend goodbye party; (3) update LinkedIn account; and (4) then use said LinkedIn account to send old colleagues new contact information. This sounds like a pretty standard modus operandi for the modern job-hopper, right? In fact, this last act, that LinkedIn contact, provided the nub of a recent non-solicit case out of Illinois state court.
In Bankers Life v. American Senior Benefits, an appellate court found that an ex-employee’s invitation to connect with old colleagues via LinkedIn did not violate his non-solicitation agreement with his former employer. The Bankers Life opinion, though not designated for publication by the Illinois appellate court, provides insight into the line between the permissible and the prohibited in the context of solicitation via social media.
In a decision that will provide some solace to employers asked to permit remote work as a reasonable accommodation under the Americans with Disabilities Act, the United States Court of Appeals for the Fifth Circuit recently held that the ADA did not require the Louisiana Attorney General’s Office to permit a litigation attorney to work from home indefinitely. In Credeur v. State of Louisiana, No. 16-30658 (5th Cir. June 23, 2017), the court determined that the employer did not fail to accommodate the attorney’s disability in violation of the ADA by denying her request to work remotely because it considered regular on-site attendance an essential function of her job and the statute and regulations required the court to “give the greatest weight to the employer’s judgment” on this issue.
Last week, lawyers for the federal government told an appeals court that the Department of Labor plans to revise the currently-blocked overtime rule issued during the Obama administration last year. But it won’t do so, it said, until the Fifth Circuit Court of Appeals confirms that it has the right to set that threshold.
After the Eleventh Circuit denied a petition for rehearing en banc last week in Evans v. Georgia Regional Hospital, LGBT advocacy group Lambda Legal announced that it will appeal the dismissal of its client’s complaint to the United States Supreme Court. Evans will petition the Court to hear the case and to hold that Title VII’s prohibition against sex discrimination includes a prohibition against sexual orientation discrimination. The Seventh Circuit created a circuit split on this issue in April when a majority of its judges decided that sexual orientation discrimination is per se sex discrimination; we wrote about that decision here.
The Paid Family Leave Act will provide, when fully implemented, employees in the state of New York with up to 12 weeks of job-protected paid family leave to (1) care for a family member (including a child, parent, grandparent, grandchild, spouse or domestic partner) with a serious health condition; (2) bond with the employee’s newborn or newly-placed adoptive or foster child during the first 12 months following birth or placement; or (3) address any qualifying exigency relating to a spouse, domestic partner, child or parent who is serving on active military duty. The Act will be funded by employee contributions and, when fully implemented, the employee will be entitled to income replacement of up to 2/3rds of the state average weekly salary.
January 1, 2018 was established as the date upon which benefit payments begin but the Act allowed employers to begin taking deductions as of July 1, 2017 to offset the cost of acquiring the mandated insurance policies.
The New York State Workers’ Compensation Board recently revised its proposed regulations (described in our previous blog post here) to the law. The revisions were in response to over 100 written comments. Here is a quick summary of those revisions: