Starting July 1, 2015, California employers will be required to provide at least three days of paid sick leave each year under a new law. The Healthy Workplaces, Healthy Families Act of 2014 will affect employers of all sizes, with only unionized workers, home health care providers, and airline flight crews exempt from the mandate. It is anticipated that 6.5 million workers in the state will benefit from the law. Koray Bulut discusses the specifics of the new paid sick leave law in this GT Alert.
In an important decision, the Third Circuit recently held in Lupyan v. Corinthian Colleges, Inc. that an employee’s sworn statement — and nothing more — that she did not receive management’s mailed notification that her leave was designated as qualifying under the Family and Medical Leave Act (FMLA), created a fact question precluding summary judgment on plaintiff’s FMLA interference and retaliation claims. The Greenberg Traurig authors, Robert H. Bernstein, Michael J. Slocum and Stefanie D. Hilliard*, discuss the case and suggest steps employers can take to avoid facing similar claims.
*Not admitted to the practice of law.
In August of 2014, the governor of Massachusetts signed into law, An Act Relative to Domestic Violence. This law requires Massachusetts employers to provide to their employees up to 15 days of annual leave where an employee or family member is a victim of domestic violence. The Greenberg Traurig authors, Terence P. McCourt, Justin F. Keith and Jack S. Gearan, discuss key aspects of the new law and offer action items for employers to come into compliance.
The Governor of New Jersey signed into law the Opportunity to Compete Act, which prevents employers from inquiring about an applicant’s criminal history on an employment application or during the initial job interview. The “ban-the-box” law becomes effective March 1, 2015. Greenberg Traurig attorneys, Robert H. Bernstein and Andrew B. Buckman, discuss the key points of the law and suggest employers in the state of New Jersey conduct a comprehensive review of their hiring practices and procedures that relate to the use of an applicant’s criminal history.
Employers operating in the delivery and livery sectors continue to be targeted with lawsuits alleging violations of the Massachusetts Independent Contractor Statute and Wage Act. Specifically, these lawsuits allege that drivers have been misclassified as independent contractors. Damages in these types of cases can compound quickly and the Wage Act provides for the mandatory recovery of treble damages and attorneys’ fees. As a result, it is imperative that employers classify their workers correctly. The authors of this GT Client Advisory, Greenberg Traurig attorneys David G. Thomas and Jack S. Gearan, discuss the three-prong test used to determine whether an individual is properly classified as an independent contractor and related litigation. The authors suggest that Massachusetts employers consult with counsel when determining how to classify new employees or auditing existing classifications.
Illinois has joined the increasing number of states that have enacted “Ban the Box” laws (so named because they prohibit employers from including on job applications a box for applicants to check if they have ever been convicted of a crime). On July 19, 2014, the Governor of Illinois signed the Job Opportunities for Qualified Applicants Act (JOQAA). That law, with certain exceptions, prohibits Illinois employers and employment agencies from inquiring into, considering, or requiring disclosure of a job applicant’s criminal record or criminal history until the applicant has been determined qualified for the position sought and notified that he/she has been selected for an interview, or if there is no interview, until after a conditional offer of employment is made.
Continue reading this GT Alert.
On May 28, California’s Division of Occupational Safety and Health (Cal/OSHA) proposed amendments to CCR, Title 8, Section 3395 (heat illness prevention rule) that would add significant burdens to employers with employees working outdoors. The draft proposal can be found online at CA.gov’s Heat Illness Prevention Programs and Regulations page. Among other things, the changes:
- Imply that a preventative cool down rest break taken by an employee shall be treated as a period of recovery from heat illness, rather than as a preventive measure when an employee feels the need to cool down. [Section (d)(3)]
- Impose new duties to monitor employees for signs of heat illness, duties that may force employers to assess all employees for symptoms of heat illness during all breaks in temperatures over 80 degrees. In addition to the burden, they add a significant new exposure to “be a supervisor, go to jail” liability. [Sections (d)(4), (g)(3) and elsewhere]
- Force employers to draft and implement unspecified methods to acclimatize employees when temperatures rise. [Section (f)(1)(D)]
- Change the as-needed cool down rest into a mandatory recovery period every two hours for agricultural employees under high heat conditions. This unprecedented mingling of wage and hour requirements with health and safety requirements greatly facilitates private attorney actions to enforce heat illness prevention requirements, a precedent that could spread to all industries. [(e)(6)].
Greenberg Traurig attorneys Justin F. Keith, Mark E. Solomons and Laura Metcoff Klaus discuss last week’s U.S. Supreme Court decision in NLRB v. Noel Canning and what the ruling means for the hundreds of NLRB decisions issued between January 2012 and August 2013. Continue Reading
In May, this blog discussed the National Labor Relations Board (the Board or NLRB)’s potential targeting of policies regulating employee use of company email for non-business purposes. In inviting the filing of amicus briefs on the issue, (Purple Commc’ns, Inc., NLRB, No. 21-CA-95151, invitation to file briefs 5/1/14), the Board signaled that it may overturn the Bush-era Register Guard decision, 351 NLRB 1110 (2007), which held that employees do not have a Section 7 right to use their employer-provided email for union organizing.
As expected, in his Monday, June 16, 2014 brief, the NLRB’s General Counsel criticized the Register Guard decision, stating “the Board should hold that employees who use their employer’s electronic communications systems to perform their work have a statutory right to use those systems for Section 7 purposes during nonwork time, absent a showing of special circumstances relating to the employer’s need to maintain production and discipline.” Continue Reading
On May 2, 2014, the Employee Benefits Security Administration of the Department of Labor (DOL) released proposed regulations, which contain changes to the existing COBRA notice requirements. These changes are intended to incorporate applicable provisions under the Affordable Care Act into the COBRA notice requirements. The proposed regulations provide updated versions of the model general notice and model election notice forms, which are available in modifiable, electronic form on the DOL’s website at www.dol.gov/ebsa/cobra.html. Employers should consider using the updated model notices (modified, as needed, to fit the employer’s particular situation) on a going-forward basis because the DOL will consider the use of the model notices to be good faith compliance with the notice content requirements under COBRA.