As reported by our sister blog, ADR: Advice from the Trenches, a federal district court in New York held that an arbitrator could not certify a “class” that included non-appearing members. While neither the U.S. Supreme Court nor various Courts of Appeal have grappled with the viability of a class arbitration award, courts in the Second Circuit are taking the lead in addressing such issues.

As we reported in an earlier blog post, the Federal Trade Commission and Department of Justice issued guidance in the waning days of the Obama administration reminding HR professionals and others that the antitrust laws could apply in the employment arena, particularly with respect to hiring and compensation matters. There was some question about how vigorously the Trump Administration’s antitrust enforcement would be in this area, but those questions should no longer exist. 2018 is already turning out to likely be an important year regarding antitrust attacks on “no-poach” agreements between businesses, with a class being certified in a major damage action and the head of the Department of Justice Antitrust Division indicating last month that criminal indictments based upon such agreements would be shortly forthcoming. Executives and HR Departments should recognize the significant risks associated with express or implied agreements or “understandings”—or even “gentlemen’s agreements”—where businesses agree not to hire (or poach) each other’s employees or executives.

Continue Reading Antitrust Attacks on “No-Poach” Agreements Between Employers Accelerating

Recently proposed Department of Labor (Department) regulations governing Association Health Plans (AHPs) would, if made final, permit small employers to be regulated under more favorable, large group rules. The proposed regulations modify the rules governing fully-insured AHPs; they do not change the way that self-funded AHPs are regulated. But in the preamble to the proposal, the Department invites comments on whether the standards that govern fully-insured AHPs should be extended to self-funded AHPs. Such an extension would be a step into unchartered regulatory territory—which is the topic of this post.

Continue Reading Association Health Plans: Self-Funded vs. Fully-Insured

The Massachusetts Supreme Judicial Court recently ruled in Mui v. Massachusetts Port Authority that payment for accrued, unused sick time is not a “wage” under the state wage act, M.G.L. c. 149, s. 148, and therefore a failure to pay for sick time upon a termination of employment is not subject to the Act’s treble damages and other remedies. Importantly, the state’s highest court also reinforced its position that it is not inclined to expand the reach of the Wage Act to types of compensation beyond the express language of the statute.

Continue Reading Massachusetts Highest Court Holds Sick Pay is Not a Wage Under the Massachusetts Wage Act

Now that January has come to an end, and we’ve navigated compliance with our own resolutions and employment obligations (as discussed on our latest post on The Bubbler), we’re going to take a look at a few topics of legislation that are brewing on the state and local level. While federal law does not govern these areas, the activity within state and local governments should catch all of our attention, particularly as employers with operations in multiple states deal with the overlapping (and, at times, seemingly in conflict) provisions of these various laws. These will, quite undoubtedly, continue to expand.

Continue Reading The Bubbler – February 2018

As reported by our sister blog, ADR: Advice from the Trenches, the Sixth Circuit determined that an employer’s notice of its mandatory arbitration policy — without more to secure the employee’s knowing assent to this employment term — is not enough to compel arbitration. While this only applies in the Sixth Circuit (for now), it’s an important development in this area of the law.

On January 12, 2018, the Maryland Senate joined the Maryland House in voting to override Governor Hogan’s veto of House Bill 1, the Maryland Healthy Working Families Act, which requires employers to provide paid sick and safe leave to hundreds of thousands of Maryland workers. The bill was enacted upon the Senate’s override and will become effective on February 11, 2018, unless the General Assembly passes emergency legislation that was introduced on January 23, 2018 to delay implementation of the law by an additional 60 days.

This emergency bill is designed to give both employers and state administrative agencies more time to implement the law’s requirements. It is not yet known whether there are enough votes to delay implementation of the sick and safe leave law, but we will continue to provide updates on the status of this bill in the coming days.

The sick and safe leave law requires employers with 15 or more workers to allow them to earn up to five days per year of paid leave, which employees may use for their own illnesses or to attend to issues related to domestic violence or sexual assault. Employers with fewer than 15 employees would be required to allow workers to earn the same amount of unpaid leave. We will update this post when more information becomes available.

In last week’s post we explained the changes made by a newly proposed Department of Labor regulation, the purpose of which is make it easier for small employers to band together to form “association health plans” (“AHPs”). In that post, we promised to examine the impact of the proposed regulation on the small group and individual health insurance markets, which we will do in this post.

Continue Reading The Department of Labor’s Proposed Association Health Plan Regulation: Who Wins, Who Loses?

Did you get your first request for paid family leave yet?  Well it’s finally here – New York State’s Paid Family Leave law finally touched down in workplaces across the state on New Year’s Day.  As of this writing, millions of New York employees are now entitled to eight weeks of paid family leave benefits and the job protection rights that come along with it.  This is a significant development for the State, legally and culturally.  Employers have spent many months preparing (and we’ve spent many months helping them prepare) for the new law’s arrival and now it’s time to execute on those implementation plans.

We wrote extensively about the new law and its interpreting regulations here.  We encourage you to read or revisit that post as it serves as a guide for employers seeking to comply with the new law.  For specific questions, please feel free to contact us directly.  And stay tuned as we will be updating this blog with new developments in the coming months.  In the meantime, for those of you who are getting a bit of a late start, here is a brief summary of the new entitlement and what is required to comply.

Continue Reading Reminder: New York Paid Family Leave Is Now In Effect

2017 is in the books and 2018 is now upon us.  A dramatic close to 2017 on Capitol Hill ushered in sweeping changes to the tax code that will begin to impact both employers and employees in a number of ways – some more immediately – from employers losing deductions for sexual harassment settlement payouts, to penalties for high nonprofit executive compensation, to tax deferral on exercise of stock options for public company executives, to employee benefit plans.  Wage and leave-related issues are also likely to dominate in 2018, as more states (and employers on their own initiative) increase wage thresholds and broaden employee paid and unpaid leave entitlements (even for some smaller employers).  Salary history bans, such as those already enacted in New York City, Massachusetts, and California, will continue to get traction in 2018 as more states and municipalities jump on that bandwagon.  We also expect to continue to witness a significant shift in the NLRB’s enforcement policy and decision-making; the NLRB’s new General Counsel has already announced a number of changes that are sure to make employers sigh with relief.  Also in 2018, employers could continue to face rising uncertainty with respect to health plans in the wake of the tax bill’s repeal of the individual mandate that was central to keeping health plans affordable under the Affordable Care Act.  Finally, so that we can help keep you accountable to the five New Year’s resolutions we made for you over the holidays (that we know you were eager to adopt as your own), we have collected them for you here:  (1) review and refresh your non-harassment policies and training; (2) update your leave policies; (3) make sure your job applications comply with new state ban-the-box laws and salary history inquiry bans; (4) assess the strength and enforceability of your post-employment covenants under changing state law; and (5) make sure your employee benefit plans are compliant.