Over the next two weeks we will release our Year in Review segment, which will look at the key labor & employment law developments from 2016 in New York, the DC Metro Area, Massachusetts, and California while offering our thoughts about 2017.  Today we kick off this segment with New York.  In addition, please join us in NYC on April 6, 2017 for Mintz Levin’s Third Annual Employment Law Summit as we address some of the key labor & employment issues impacting employers in 2017.  Register here

2016 brought big changes for New York State and City employers, including expansive new discrimination protections and substantial increases in the minimum wage and exempt salary thresholds.  While New York employers who successfully navigated 2016’s rush of legislative, regulatory and judicial obstacles might feel they’ve earned the right to shift their focus back from compliance issues to running their businesses, they should not lose sight of the additional challenges expected in 2017.

Continue Reading 2016 New York Employment Law Year In Review

The Fourth Circuit recently ruled that a general contractor was the joint employer of employees of its subcontractor for purposes of the Fair Labor Standards Act.  Salinas v. Commercial Interiors, Inc. has broad implications for the wage and overtime responsibilities of employers located within the Fourth Circuit, which has jurisdiction over appeals from federal courts located in Maryland, Virginia, North Carolina, South Carolina, and West Virginia.

Continue Reading Fourth Circuit Offers New Test for Joint Employment under FLSA

UPDATE: On February 8, 2017, the Supreme Court announced that it would delay until its October 2017 term oral arguments in the consolidated cases concerning the enforceability of class arbitration waivers in employment agreements.  (This updates our Blogpost dated Jan. 31, 2017.)

Many anticipate that Judge Gorsuch will have been confirmed by the Senate by then, which likely explains the Supreme Court’s decision to delay oral argument. Because the Court granted certiorari based upon a Circuit split, it presumably hopes to avoid a possible 4-4 vote by the current Justices, which would permit the various Circuit Court rulings to stand, leaving the matter unresolved nationally.

While we expect that Justice Gorsuch, a reputed strict constructionist, will in effect be a pro arbitration judge, his questions during oral argument will offer a glimpse of how he might decide the particular issues presented here concerning employment class arbitration.

By Michael Arnold, Brent Douglas and Audrey Nguyen

Beginning next year, employers may no longer force their California employees to resolve their employment-related disputes outside of California or use non-California law when doing so.  With limited exceptions, the new law, codified at Labor Code Section 925, will be applicable to all employment agreements entered into, modified, or extended on or after January 1, 2017.  The new law is yet another attempt by California policymakers to provide added protections to employees working in their state.

Continue Reading Another Employee-Friendly Law: New California Law Aims to Keep Employment-Related Disputes Centered in California

Many employers are familiar with the fact that the EEOC regularly conducts on-site workplace investigations after receiving charges of discrimination or harassment.  A recent federal court decision, however, may lead to an uptick in such on-site investigations – even if the EEOC does not have an administrative warrant for the investigation and even if the employer does not consent.

A federal court in Kentucky recently held that the EEOC has the authority to conduct a warrantless, nonconsensual search of a private employer’s commercial property to investigate a discrimination claim.  This marks the first decision in which a federal court confronted this issue.  Though this is not a favorable decision for employers, the court delineated several limitations and safeguards that help fetter the EEOC’s on-site inspection authority.

Continue Reading Federal Court Allows the EEOC to Conduct Investigation on Employer’s Premises Without Employer Consent or a Warrant

Does this sound familiar: employee disregards a non-compete and joins a competitor; former company calls foul and initiates a lawsuit; parties fight it out, but by the time litigation has run its course, the non-compete period in the underlying contract has expired.  The dispute is moot, right?  Not necessarily according to the Ninth Circuit in Ocean Beauty Seafoods v. Pacific Seafood Acquisition Company.  There, the Court applied the doctrine of equitable extension to tack on a non-compete period to an agreement after the original period had run.

Continue Reading Pescetarian’s Delight: Ninth Circuit Extends Non-Compete Term Beyond Contractual Period

Last Thursday, Uber settled two closely-watched class actions contesting Uber’s classification of approximately 385,000 drivers in California and Massachusetts as independent contractors as opposed to employees. While the plaintiffs viewed the settlement as a victory, so likely did Uber, as it allows Uber to continue to pursue an on-demand independent contractor service business model.  The court, however, still needs to approve the settlement and whether it will do so is not clear. Continue Reading Uber Aims to Settle Two Class Actions; Approximately 385,000 Uber Drivers in California and Massachusetts to Remain Independent Contractors – At Least for Now

The Western District of Washington recently emphasized that the obligation under the Americans with Disabilities Act (“ADA”) to engage in good faith interactive dialogue when seeking an accommodation that will permit an employee with a disability to perform his or her job applies to employees as well as employers. In Huge v Boeing Co. (W.D. Wash. March 4, 2016), following a bench trial the court found the employee had failed to present evidence that her employer, Boeing Co., did not take reasonable measures to accommodate her Asperger’s Syndrome where the record showed the employee repeatedly engaged in obstructive and uncooperative behavior in response to Boeing’s proposed accommodations.   Continue Reading Employee’s Failure to Participate in Interactive Process in Good Faith is Fatal to ADA Accommodation Claim, Says Washington Federal Court

Just last month, two federal district courts reached different conclusions, further contributing to the confusion as to whether notes taken during a Human Resources department investigation of a discrimination or harassment complaint are protected from disclosure in subsequent litigation. Continue Reading Are Your HR Investigation Notes Protected Against Disclosure? Maybe, Maybe Not.