As we enter the holiday season, we gather around the bubbler to sing about a few of our favorite (and not so favorite) things in the world of employment and labor law.  Unfortunately, they’re not as sanguine as raindrops on roses or whiskers on kittens…

Some retail employers will be on Santa’s naughty list after the Sixth Circuit found that sales employees paid on a 100% commission or draw basis cannot be required to repay outstanding draws after termination of employment.  The Senate decked the halls of the NLRB by confirming a new General Counsel, who will serve a critical policy role and is expected to move away from enforcement of the NLRB’s broadened joint-employer standard.   This could be the last Christmas employees have to visit EEOC offices in person to file discrimination charges after the EEOC launched a new online portal, putting employers on alert of the possibility of increased charge filings in 2018.  It’s a wonderful Christmas time for minimum wage workers in Montgomery County, Maryland, in DC’s metro area, who joined the small but growing ranks of jurisdictions increasing its minimum wage to $15.00 per hour beginning in 2021. Retail employees in New York might get a silent night away from work thanks to new employee scheduling regulations proposed by the New York State Labor Department that will limit “just in time” or “on call” scheduling and require additional pay for employees scheduled on short notice.  While California employers may have longer than 8 nights, they don’t have quite a month to prepare for new regulations that will take effect January 1, 2018, which expressly prohibit employers from inquiring about an applicant’s criminal history prior to a conditional offer of employment.

Welcome (almost) to the New Year: a time of renewal, a fresh start, a clean slate, and a time to make and hopefully keep resolutions. A “New Year’s Resolution” is, of course, a commitment in the coming year to change an undesired trait or behavior, to accomplish a goal or otherwise make a material improvement.

Toward this end, we thought it appropriate to launch a mini-series of some compliance-related resolutions employers might consider for 2018. In fact, we can’t think of a better way to close out 2017 than with a series devoted to a collective resolution to make 2018 a year devoted to cleaning out the cobwebs and achieving (better) employment law compliance.

We recognize, given the complexity of our legal landscape and the challenges of managing human relationships in the workplace, complete employment compliance is a worthy but perhaps unattainable goal. But that doesn’t mean 2018 can’t begin on the right foot.

We thought it appropriate to start our resolutions mini-series with this headline: Don’t let your workplace BE the next headline.

Continue Reading An Employer’s Resolutions for the New Year – A Mini-Series from the Employment Matters Blog. Resolution #1: Don’t let your Workplace be the Next Headline: Review and Refresh your Non-Harassment Policies and Training.

Just six months after California modified its regulations concerning past criminal convictions for applicants, California has taken the additional step of modifying the Fair Employment and Housing Act (“FEHA”) to expressly prohibit employers from inquiring about an applicant’s criminal history prior to a conditional offer of employment, and strictly limiting an employer’s use of an applicant’s criminal history following a conditional offer.

Continue Reading California “Ban-the-Box” Law Significantly Limits Employers’ Ability to Obtain and Use Information About Criminal Convictions in Recruiting and Hiring

Hurricanes. Fires. Floods. Shootings. The evening news seems consistently laden with catastrophe.

In times like these, a federal agency called the National Disaster Medical System (NDMS) often springs into action. The NDMS, created in 2002 under the Public Health Security and Bioterrorism Preparedness and Response Act of 2002, is a corps of volunteer reservists who perform a variety of disaster-relief services. While NDMS members are often medical clinicians providing health services (including doctors, nurses, paramedics, physician assistants, and pharmacists), teams may also include other non-medical professionals such as logistical specialists, information technologists, fatality management, veterinary professionals, and communication and administrative specialists.

Relevant to employers, NDMS reservists are protected by the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA).

Continue Reading Some Disaster Relief Workers Are Protected Employees under USERRA

Recent cases in New York and Pennsylvania demonstrate that, at least in some jurisdictions and under some circumstances, a plaintiff can state a valid claim for unlawful gender discrimination based on a spouse’s jealousy.

Continue Reading Spousal Jealousy Can Lead to a Viable Claim of Unlawful Gender Discrimination

Governor Jerry Brown has signed the New Parent Leave Act, which will become effective January 1, 2018 and requires California employers with 20 to 49 employees within 75 miles to provide up to 12-weeks of job-protected unpaid parental leave. We summarize the new law below.

Continue Reading Smaller Employers in California Required to Provide Job-Protected Unpaid Parental Leave Starting January 1, 2018

California has joined a growing list of jurisdictions, including New York City, Massachusetts, Delaware and Oregon, among others, banning salary history inquiries from job applicants. Governor Brown signed the law into effect last week and it becomes effective on January 1, 2018.

Continue Reading California Bans Salary History Inquiries

On Thursday, October 5, 2017, Mintz Levin will host a webinar entitled “Handling Human Resources Data Under Privacy Shield and the GDPR,” which will address EU laws concerning the transfer of employee personal data to the US and the penalties for getting it wrong, which are set to increase dramatically when the GDPR goes into effect in May 2018.

For more information and to register, please click here.

What is happening in employment law? We will be providing you with quick employment law updates on a bi-monthly basis in a new series called “The Bubbler.”  It will let you know what’s what and who’s who in the continually-evolving, ever-important, hard-to-keep-track-of employment law world. The Bubbler delivers current events and other important news to our readers without the time or the interest to piece through the recent legislation, the ever-growing release of regulations and other agency guidance and the lengthy court decisions. We’re your colleagues at the water cooler who tell you just enough to pique your interest (but then provide links to satisfy your curiosity). Enjoy!

Continue Reading The Bubbler: September 6, 2017

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?

Continue Reading Vacation Float: Managing (and Recouping) Unearned Vacation Time