Many state legislatures spent 2017 tinkering with post-employment covenants. Given the growing trend to legislate locally and the employee mobility issues that seem to nag every employer, we thought the New Year would be a perfect time to review and revisit your post-employment covenants. So for our multi-jurisdictional employers (which seems to be everyone these days), how do your post-employment covenants legally measure up?
This past year, a growing number of states and municipalities banished the Ghost of Christmas Past from haunting job applicants. As a result, employers in those jurisdictions must resolve now to bid auld lang syne to asking applicants about their salary and criminal histories. Employers should take a fresh look at their job applications, and hiring practices, policies and procedures and update them now to remain in compliance in the New Year.
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.
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.
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.
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.
California’s new Ban the Box regulation became effective last week. Effective July 1, 2017, questions by public employers concerning an applicant or employee’s criminal convictions will now be subject to the new regulation that employers can locate here. That regulation raises the bar employers must clear in order to pose criminal conviction-related questions to applicants and employees. And it raises it significantly. We discuss the new regulation below.
We had such a spirited panel discussion on pay equity at our Third Annual Employment Law Summit recently that we wanted to follow up with a post addressing the current state of play on pay equity legislation, particularly with respect to salary history disclosure laws. This is a rapidly advancing area of the law in which we continue to see new developments.
My colleague Jessica Catlow was quoted in the SHRM article, Is Banning Salary History Discussions a Game Changer? in which she analyzes a recent Massachusetts law that prohibits employers from asking job applicants about their salary history. Catlow highlights the law’s impact on the way women negotiate salary during the hiring process. The article provides an overview of the law and examines the likelihood of a nationwide ban on pre-hire salary questions.
Being connected to not just your friends, but their friends and their friends’ friends (it’s all six degrees of separation, right?) means that it’s become increasingly hard to stay anonymous when using an online dating platform. Just ask one recent male user of OkCupid who made vulgar and inappropriate comments to a female user. Her response? Post the conversation and the man’s profile picture to her Facebook account. He insulted her, she publicized him. So far, there are no legal implications.
Her friend, an independent recruiter for tech startups, saw the post and recognized the man’s profile picture. As it turns out, it was also his LinkedIn profile picture, and he had just applied for a position with one of her clients. Her response? Withdraw his application from consideration and tell him to treat women better online. He insulted her friend, she withdrew his application for employment. Here is where the criticism started.
The question: Can a recruiter reject a potential applicant based on inappropriate comments made on a dating site?