Court of Appeals Upholds DOL’s Interpretation of NY’s Minimum Wage Order as Applied to Live-In Home Health Aides

By Harold N. Iselin, Eric Sigda and Jennifer M. Gómez on Posted in Compensation, Department of Labor, GT Alert, home care, home health aide, minimum wage, New York Department of Labor

On March 26, 2019, in a 5-2 ruling, the Court of Appeals ruled in favor of providers in a critical decision affecting home health care. Andryeyeva v. N.Y. Health Care, Inc. and Moreno v. Future Care Health Servs. et al. was a joint appeal in a case that threatened to eviscerate an important economic constraint on the cost of providing live-in 24-hour home care, and which placed at risk the fiscal integrity of New York’s Medicaid program and the very existence of New York’s home care industry.

Home health aides challenged the New York State Department of Labor’s (DOL) 13-hour rule, which provides that live-in employees must be paid for at least 13 hours per 24-hour period, provided they are afforded at least eight hours of sleep, five hours of which must be uninterrupted, and three hours for meal times. If the aides are given the required sleep and meal times, totaling 11 hours, they are not paid for these breaks. In this case, home health aides argued that they were entitled to minimum wage for all 24 hours of their shifts, regardless of whether they were afforded opportunities for sleeping and eating. Providers long had relied on DOL’s interpretation when compensating their employees, and were suddenly in jeopardy of being held liable for retrospective pay exceeding an estimated $4.8 billion.

Click here to read the full GT Alert.

New Jersey Passes Law Eroding Bedrock of Settlement – Confidentiality Provisions Relating to Discrimination, Retaliation, and Harassment Claims No Longer Enforceable

By Kristine Feher, Noel A. Lesica and Courteney Lario on Posted in Discrimination, Employment Agreement, GT Alert, Harassment, Legislation, New Jersey, settlement agreements, Sexual Harrassment

On March 18, 2019, landmark legislation was passed that could dramatically impact the resolution of discrimination, retaliation, and harassment claims. under the New Jersey Law Against Discrimination (“NJLAD”), and “other” statutes – presently undefined. Employers: pay close attention. The bill takes effect immediately and applies “to all contracts and agreements entered into, renewed, modified, or amended on or after [March 18].” The legislation addresses – and substantially impacts – employment contracts and settlement agreements. While ostensibly intended to prevent victims of unlawful harassment from forced secrecy about their experiences – potentially perpetuating the alleged harm – the desirability of settlement rests strongly on the foundation of confidentiality. Without it, the motivation to resolve these types of claims informally may diminish considerably.

Click here for the full GT Alert.

Department of Labor Proposes Changes to Overtime Rules

By David Long-Daniels and Joshua Y. Joel on Posted in Compensation, Department of Labor, Federal Law, FLSA, GT Alert, overtime

The U.S. Department of Labor (DOL) on March 7, 2019, issued a new proposed rule raising the annual minimum salary requirements for the Fair Labor Standards Act (FLSA) overtime exemptions for executive, administrative, and professional employees. Under the new rule, the salary level for these “white collar” exemptions will increase from $23,660 per year ($455 per week) to $35,308 per year ($679 per week). The proposed rule will also raise the annual compensation requirement for an employee to be considered a “highly compensated employee” and exempt from overtime from the current $100,000 per year to $147,414 per year. The DOL did not, however, propose any changes to the duties test. In addition, the DOL did not propose automatic adjustments to the salary threshold, nor did it create differing salary levels based on region or size of employer.

Click here to read the full GT Alert.

House Zeros in on Workplace Violence in Health Care and Social Service Industries

By Michael Taylor and Brett A. Castellat on Posted in Federal Law, GT Alert, Labor & Employment, OSHA, Workplace Safety

House Democrats have set their sights on workplace violence in health care and social service industries. According to congressional findings, the health care and social service industries suffer the highest rates of injuries caused by workplace violence. Health care and social service workers made up 69 percent of all workplace violence injuries in 2017 and were nearly five times as likely to suffer a workplace violence injury than workers overall. To address this problem, on Feb. 27, 2019, the House Subcommittee on Workforce Protections considered a bill mandating that the Occupational Safety and Health Administration (OSHA) implement workplace violence protections for health care and social service workers.

The bill (titled the Workplace Violence Prevention for Health Care and Social Service Workers Act) requires that employers in these industries implement a workplace violence protection plan.

Click here to read the full GT Alert.

Greenberg Traurig’s Mark Kemple Receives National Law Journal’s Employment Law Trailblazer Award

By Greenberg Traurig on Posted in Awards and Accolades, class action, collective action, Labor & Employment

Mark D. Kemple, co-chair of global law firm Greenberg Traurig, LLP’s Labor & Employment Class and Collective Action Practice and leader of the Southern California Labor & Employment Practice, has been named a 2019 Employment Law Trailblazer by the National Law Journal.

The Employment Law Trailblazer award recognizes legal professionals who “make their mark in various aspects of legal work in employment law,” according to the National Law Journal.

To read the full press release, click here.

NYC Commission on Human Rights Issues Guidance on Race Discrimination on the Basis of Hair

By Greenberg Traurig on Posted in Discrimination, GT Alert, NYCCHR

Setting new precedent on Feb. 18, 2019, the New York City Commission on Human Rights (NYCCHR) issued new guidance prohibiting race discrimination on the basis of hair. The new guidance provides legal recourse under the New York City Human Rights Law (NYCHRL) to individuals who are discriminated against, harassed, punished, not hired, or fired based upon the style and length of their hair. The guidance extends to work, school, housing, or public spaces, and generally includes all employers with four or more employees.

The NYCHRL protects individuals working and living in New York City. The new guidance allows New Yorkers to maintain “natural hair or hairstyles that are closely associated with their racial, ethnic, or cultural identities,” regardless of the mutable nature of such characteristics. Natural hair is broadly defined to include natural texture and/or length and includes hair styled into twists, braids, cornrows, Afros, Bantu knots, fades, and/or locs.

To read the full GT Alert, click here.

Questions about this information can be directed to:

Impact of New Massachusetts Noncompete Law on Emerging Tech Companies

By Jack Gearan on Posted in Contracts, emerging technology, GT Alert, Massachusetts, non-competition agreements, start-ups

The Massachusetts Noncompetition Agreement Act, M.G.L. c. 149, § 24L, has been the law of the Commonwealth for almost four months. The statute only applies to agreements entered into between employers and certain employees and independent contractors on or after Oct. 1, 2018, so the law’s ramifications are still largely yet to be determined. Nevertheless, even in the short time the law has been operative, its implications for emerging technology and start-up companies have been significant.

To read the full GT Alert, click here.

Illinois Supreme Court Holds No Showing of Actual Harm Needed to State Claim Under Biometric Information Privacy Act

By Quinn Ford on Posted in GT Alert

In a unanimous decision issued Jan. 25, 2019, the Illinois Supreme Court held that a plaintiff need not plead or prove actual harm to bring a claim under Illinois’ Biometric Information Privacy Act (BIPA). The court’s decision in Rosenbach v. Six Flags Entertainment Corp. settles a split among Illinois’ appellate courts, which centered on what a plaintiff needs to plead to be considered “aggrieved” under BIPA.

BIPA, 740 ILCS 14/1, et seq, regulates how private entities may collect and use an individual’s biometric information (e.g., fingerprint, facial feature, or retina information). Illinois is one of a few states that has enacted a statute to protect biometric information, and it is the only state that provides a private cause of action for individuals. Under BIPA, “[a]ny person aggrieved by a violation of [the] Act shall have a right of action.” (Emphasis added.) 740 ILCS 14/20.

To read the full GT Alert, click here.

Top Massachusetts Court Rules in Favor of Employer in Wage Act Case of Calixto v. Coughlin

By David G. Thomas, Mian R. Wang and Justin Keith on Posted in earned wages, fiduciary, GT Alert, Litigation, Massachusetts, State Law, wages, WARN

On Dec. 28, 2018, in Calixto v. Coughlin, the Supreme Judicial Court of Massachusetts (SJC) issued a unanimous opinion in favor of Greenberg Traurig’s clients, former officers of a defunct company. The SJC upheld the dismissal of Calixto’s claims alleging violation of the Massachusetts Wage Act, G. L. c. 149, § 148 (Wage Act), and breach of fiduciary duty. Calixto involved an issue of first impression under Massachusetts law – whether damages awarded for a violation of the federal Worker Adjustment and Retraining Notification Act, 29 U.S.C. §§ 2101-2109 (2018) (WARN Act) constitute “earned wages” under the Wage Act, for which officers of the company can be held individually liable.

To read the full GT Alert, click here.

OSHA Continues to Increase the Maximum Penalty Amounts for Citations

By Michael Taylor and Brett A. Castellat on Posted in GT Alert, OSHA

On Jan. 15, 2019, the U.S. Occupational Safety and Health Administration issued a notice announcing another increase in the maximum penalty amounts for violations of federal Occupational Safety and Health standards and regulations. Under the new structure, the maximum penalty for “Willful” or “Repeated” violations is $132,598. Moreover, the maximum penalty for “Failure to Abate” violations is $13,260 per day after the abatement date. Finally, the maximum penalty allowed for “Serious,” “Other-Than-Serious,” and “Posting Requirements” violations is $13,260. In addition, states that operate their own Occupational Safety and Health plans are required to adopt maximum penalties levels that are at least as effective as federal OSHA’s.

To read the full GT Alert, click here.

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