D.C. Circuit to Take on OSHA Authority to Regulate Workplace Violence

By Michael Taylor and Genus Heidary on Posted in GT Alert, OSHA, Workplace Safety

On Jan. 9, 2020, the U.S. Court of Appeals for the District of Columbia heard oral argument in BHC Nw. Psychiatric Hosp. LLC v. Sec’y of Labor, a case that asks the court to decide how far the Occupational Safety and Health Administration (OSHA) can go when directing a hospital to put in place measures to protect nurses and other staff members from patient attacks.

The hospital appealed to the D.C. Circuit, challenging an order from the Occupational Safety and Health Review Commission (Commission), in which Chief Judge Covette Rooney found that the hospital breached the OSHA general duty clause because (1) its measures for addressing patient on staff violence were insufficient, and (2) the hospital had not taken feasible measures to materially reduce the recognized hazard.

Click here to read the full GT Alert, “D.C. Circuit to Take on OSHA Authority to Regulate Workplace Violence.”

OSHA Is Raising Its Maximum Penalty Amounts, Again!

By Michael Taylor and Adam Roseman on Posted in GT Alert, OSHA

On Jan. 10, 2020, the U.S. Occupational Safety and Health Administration (OSHA) announced another increase in the maximum civil monetary penalties for violations of federal Occupational Safety and Health standards and regulations. The new monetary penalties will be nearly 2% higher than the current maximum penalty amounts.

Effective Jan. 15, 2020, the maximum penalty for “Willful” or “Repeated” violations is $134,937, a more than $2,000 increase from the 2019 maximum for the same kinds of violations. The maximum penalty for “Failure to Abate” violations is $13,494 per day after the abatement date. Finally, the maximum penalty allowed for “Serious,” “Other-Than-Serious,” and “Posting Requirements” violations is $13,494, an increase of over $200 from the 2019 maximum amounts. Importantly, 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.

Click here to read the full GT Alert, “OSHA Is Raising Its Maximum Penalty Amounts, Again!”

AB 5 Update: The California Supreme Court Will Likely Decide if Dynamex Is Retro in 2020

By Charles O. Thompson and Yoon-Woo Nam on Posted in AB 5, California

On Jan. 15, 2020, the California Supreme Court granted, and then deferred further action on, the appeal of a lower appellate court’s opinion in Gonzales v. San Gabriel Transit, Inc. pending its disposition of Vazquez v. Jan-Pro Franchising Int’l, Inc., which takes up the common issue of whether the Dynamex decision applies retroactively.

Last year, the governor of California signed Assembly Bill 5 (AB 5) into law, which codified and clarified the California Supreme Court case Dynamex Operations West, Inc. v. Superior Court of Los Angeles. The ABC test established in Dynamex dramatically changed the standard for determining whether workers in California should be classified as employees or as independent contractors. Under the ABC test, a hiring entity must prove that a worker is in fact an independent contractor by demonstrating: (A) the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact; (B) the worker performs work that is outside the usual course of the hiring entity’s business, and (C) the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity. San Gabriel Transit, Inc. is one of several AB 5-related cases before state and federal courts in California that have workers, employers, and trade associations hotter than 1.21 gigawatts. While lawsuits filed by “gig economy” drivers, truck drivers (CTA preliminary injunction granted in USDC- Southern District) and freelance journalists (American Society of Journalists and Authors, Inc. and National Press Photographers Association lawsuit filed in USDC- Central District) present an existential threat to AB 5 in the long run, the California Supreme Court will likely decide the retroactivity issue in Jan-Pro Franchising Int’l and San Gabriel Transit, Inc. this year. The impact of the rulings in both cases will extend up and down the Golden State, and employers, especially franchisors (See GT Alert, AB 5 Update, Sept. 24, 2019), and their counsel should be prepared. Continue Reading

First Circuit Concludes That Two Private Equity Funds Were Not Liable for Pension Fund Withdrawal Liability of Portfolio Company

By Steven B. Lapidus and Ian A. Herbert on Posted in Benefits, ERISA & Employee Benefits Litigation, GT Alert, Litigation, Retirement

In its recent decision in Sun Capital Partners III, LP v. New England Teamsters & Trucking Indus. Pension Fund, the First Circuit Court of Appeals decided that two investment funds established by a private equity firm to acquire and provide management services to various portfolio companies were not liable for the withdrawal liabilities for unfunded benefits under a union pension plan contributed to by one of their portfolio companies. Under the Multiemployer Pension Plan Amendment Act of 1980 (MPPAA), all “trades or businesses” under “common control” are jointly and severally liable for the withdrawal liability of any member of that controlled group. The First Circuit held that neither of the funds were under “common control” with the portfolio company, since neither separately owned 80% or more of the stock of the portfolio company, and based upon the facts and circumstances, the funds had not formed a de facto partnership to acquire and own the stock.

The decision suggests that if the facts are right, bifurcating ownership to keep a fund’s ownership of the portfolio company below the 80% “common control” threshold may still be a viable approach to prevent a fund from being obligated to pay the withdrawal liability of the portfolio company. The summary that follows of the facts and circumstances involved in this case, and the court’s analysis of those facts, are instructive for those private equity firms wishing to follow this approach. The First Circuit’s analysis of the “trade or business” prong of the controlled group test also is important for any private equity fund that owns 80% or more of the portfolio company.

Read the full GT Alert.

Amendments to Illinois Cannabis Regulation and Tax Act Clarify Limitations of Employer Liability

By Tiffany Fordyce and Laura Luisi on Posted in Discrimination, drug testing, Employee Policies, GT Alert, Illinois, Legalization of Marijuana, State Law, Workplace Safety

On December 4, 2019, Illinois Governor JB Pritzker signed into law Senate Bill 1557, which makes various changes to the Illinois Cannabis Regulation and Tax Act (the “Cannabis Act”), including providing much-needed clarity with respect to potential employer liability.

The Cannabis Act, which legalizes (under Illinois state law) the adult recreational use of cannabis, goes into effect January 1, 2020. It permits employers to adopt reasonable zero-tolerance or drug-free workplace policies so long as those policies are applied in a nondiscriminatory manner, in addition to affirming an employer’s right to discipline or terminate an employee for violating an employer’s workplace drug policies.

Read the full GT Alert.

New Jersey Joins Jurisdictions in Banning Salary History Inquiries for Applicants

By Kristine Feher and Danielle E. Gonnella on Posted in GT Alert, New Jersey, salary history

On July 25, 2019, Acting Governor Sheila Oliver signed NJ A1094 (the “Law”), banning salary history requests in New Jersey. Consistent with the growing trend, New Jersey joins the ranks of many other cities and states that have enacted salary history bans to combat pay inequity.

Effective Jan. 1, 2020, New Jersey employers will no longer be able to inquire about a job applicant’s salary history, benefits, and other compensation during the hiring process. The Law makes it unlawful for an employer to: (1) screen a job applicant based upon the applicant’s salary history, including, but not limited to, the applicant’s prior wages, salaries, or benefits; or (2) require the applicant’s salary history to satisfy any minimum or maximum criteria.

Read the full GT Alert, which lays out exceptions to the law, penalties for violations, and employer preparation for Jan. 1, 2020. 

Second Circuit Holds Judicial Approval Not Required When Settling FLSA Claim Pursuant to Rule 68(a) Offer of Judgment

By Eric Sigda on Posted in Federal Law, FLSA, GT Alert, Labor & Employment, Litigation, Wage & Hour

On Dec. 6, 2019, the Second Circuit issued a decision in Yu v. Hasaki Restaurant, Inc. that will likely impact settlement of wage and hour actions under the Fair Labor Standards Act (FLSA). In a split decision, the court reversed a district court ruling and held that judicial approval is not required when settling an FLSA claim pursuant to a Federal Rule of Civil Procedure 68(a) offer of judgment.

Click here for the full GT Alert, “Second Circuit Holds Judicial Approval Not Required When Settling FLSA Claim Pursuant to Rule 68(a) Offer of Judgment.”

New York Seasonal and Holiday Employees

By Eric Sigda on Posted in Compensation, GT Alert, minimum wage, New York, New York Department of Labor, overtime, Paid Leave, Sexual Harrassment, State Law

The holidays are upon us, NYC is bustling with tourists, and, with the typical surge in business this time of year, employers may be thinking about adding a few employees to their December and January schedules. This GT Alert provides important considerations with respect to those seasonal employment offers, including minimum wage, sexual harassment training, NYC’s Paid Safe and Sick Leave Law, New York’s Workers’ Compensation Law, disability benefits, and child labor laws.

Click here to read the full GT Alert.

Reminder: Jan. 1, 2020, Effective Date Quickly Approaching for New Overtime Rules

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

The U.S. Department of Labor (DOL) final rule raising the annual minimum salary requirements for the Fair Labor Standards Act (FLSA) overtime exemptions for executive, administrative, and professional employees is effective Jan. 1, 2020.

Employers who have not yet begun or completed their audit and review of their employee classifications should immediately start the process to be prepared for the implementation of this significant new rule, which could result in the reclassification of as many as 1.3 million currently exempt employees as non-exempt.

For details on the final rule, including the salary level for these “white collar” exemptions, see our September 2019 GT Alert, Department of Labor Announces Final Changes to Overtime Rules.

Contact your Greenberg Traurig attorney for guidance on compliance with the new rule.

For more on overtime rules, click here.

2019 Employment Law Snapshot: New Jersey, New York, and Pennsylvania

By Robert Bernstein, Jim Boudreau, Jerrold Goldberg, Mark D. Lurie, Michael J. Slocum, Noel A. Lesica and Ryan P. O'Connor on Posted in GT Alert, Labor & Employment, Legislation, minimum wage, New Jersey, New York, overtime, Paid Leave, Pennsylvania

In 2019, New Jersey, New York, and Pennsylvania each enacted substantial legislation affecting companies that employ individuals in those states. This GT Alert provides a summary of the most significant of these legislative changes and will help employers stay abreast of the changes relevant to their businesses. Please note that the laws described extend protections to employees who work in the state and therefore can affect out-of-state employers.

Click here for the full GT Alert, “2019 Employment Law Snapshot: New Jersey, New York, and Pennsylvania.”

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