California Adopts Emergency Regulation to Protect Outdoor Workers From Wildfire Smoke

Posted in California, GT Alert, OSHA, State Law

Last year was the most destructive fire season in California’s history. Over 7,600 wildfires burned nearly two million acres. As a result, on July 18, the California Department of Industrial Relations (DIR) Occupational Safety Health Standards Board adopted an emergency regulation to protect workers from hazards associated with wildfire smoke. The regulation is now in effect, following its approval on July 29, 2019, by the Office of Administrative Law.

The emergency regulation will be effective for one year, and applies where the current Air Quality Index (AQI) for airborne particulate matter (PM) 2.5 is 151 or greater (the AQI scale is from 0 to 500, and a 151 AQI is considered “unhealthy”), or where employers should reasonably anticipate that employees could be exposed to wildfire smoke.

Click here for the full GT Alert.

Out-of-State Workers Can Assert Claims Under New Jersey Anti-Discrimination Law

Posted in Discrimination, GT Alert, New Jersey

On June 27, 2019, New Jersey’s Appellate Division ruled that New Jersey’s Law Against Discrimination (NJLAD) can extend “in appropriate circumstances” to plaintiffs who reside or work outside of the state where New Jersey has the “most significant relationship” to the claims. Calabotta v. Phibro Animal Health Corp., et al.

In 2008, New Jersey-based Phibro Animal Health Corporation hired plaintiff David Calabotta to serve as vice president of marketing and technology deployment for Prince Agri Products Incorporated, a Phibro subsidiary located in Quincy, Illinois.

In June 2016, Phibro created a new position based at its headquarters in New Jersey for a senior vice president of marketing and product management. Plaintiff alleged that despite expressing interest in the new position, he was not interviewed because of his wife’s terminal breast cancer diagnosis. Plaintiff was terminated in August 2016, following allegations he acted inappropriately at a national conference.

Plaintiff filed a complaint in the Superior Court of New Jersey against Phibro, his supervisor, and the senior VP of human resources, who investigated the allegations and terminated his employment. Plaintiff alleged defendants discriminated against him in violation of NJLAD “on account of his association with a person with a disability” when (1) they refused to consider him for a promotion in New Jersey, and (2) they subsequently terminated his employment. The trial court originally dismissed plaintiff’s complaint, reasoning he had no viable cause of action under NJLAD as an Illinois resident who worked for the company’s subsidiary in Illinois.

Click here for the full GT Alert, which summarizes the Appellate Division’s decision.

Recapping the Many Legal Developments Affecting Private Employers in New York and New Jersey, So Far, in 2019

Posted in Labor & Employment, New Jersey, New York Department of Labor, NLRB, Sexual Harrassment, State Law

There have been many significant developments in the first half of 2019 impacting private employers in New York and New Jersey. Federal, state, and local legislatures and agencies have been particularly busy in the employment arena, promulgating sweeping laws and regulations affecting a broad range of well-entrenched employment practices. For instance, New Jersey adopted prohibitions against non-disclosure provisions in settlement agreements resolving discrimination and harassment claims (with, as discussed in this GT Alert, New York expected to follow shortly), and New York enacted its Gender Expression Non-Discrimination Act.

So too have our courts been active, rendering decisions fleshing out some of these recent laws, as well as revisiting other, more familiar questions under longstanding principles. If you overlooked any of these developments, or need a quick and easy reference of what has occurred and what is on the horizon, we hope this topline recap helps.

Click here to read the full GT Alert.

Nevada Mandates Paid Time Off for Workers

Posted in GT Alert, Labor & Employment, Legislation, Nevada, Paid Leave, Retaliation, wages

On June 13, 2019, Nevada Governor Steve Sisolak signed SB 312 into law to require Nevada employers to provide paid leave to workers. Specifically, the bill requires that employees receive 0.01923 hours of paid leave for each hour worked. Under this formula, a worker who works 40 hours per week for 52 weeks will be entitled to approximately 40 hours of paid leave. Workers must receive the same rate of pay for the paid leave as paid for hours worked, and be paid at the same time they would have been paid had the hours been worked.

With passage of the bill, Nevada joins seven other states that have mandated paid time off: Arizona, California, Connecticut, Massachusetts, Oregon, Vermont, and Washington.

  • Who will be required to provide paid time off to employees?
  • What obligations are placed on employers?
  • What rules may employers impose?
  • What restrictions are imposed on employers?
  • What obligations do employees have?
  • How will the requirement be enforced?
  • When does the requirement for paid leave go into effect?

Click here for the full GT Alert, which answers these questions.

Greenberg Traurig Attorneys Recognized by Human Resource Executive Lawdragon

Posted in Awards and Accolades

Twelve attorneys from global law firm Greenberg Traurig, LLP were recognized by Human Resource Executive in a 2019 report researched by the Lawdragon organization. Human Resource Executive and Lawdragon, a networking site for lawyers and clients, conduct research to identify “the most powerful attorneys for employment law, benefits law, traditional labor and employment law, and immigration law.”

In 2019, Kate Kalmykov joins the “Nation’s 20 Most Powerful Employment Attorneys – Immigration.” In addition, Naomi G. Beer, Mark D. Kemple, and Todd D. Wozniak join the “Nation’s 100 Most Powerful Employment Attorneys.” Kalmykov and Wozniak were recognized on the list of the “Nation’s 40 Most Powerful Employment Attorneys – Up-and-Comers” in 2018.

To read the full release, click here.

Greenberg Traurig Attorneys Recognized by Human Resource Executive Lawdragon

2019 Mexican Federal Labor Law Amendment

Posted in GT Alert, Unions

On May 1, 2019, Mexico’s Federal Official Gazette published a decree setting forth major amendments to Mexico’s Federal Labor Law (FLL) (Decree). The Decree follows and articulates the February 2017 amendment to the Federal Constitution that, among other things, (i) confirmed union freedom and confidential voting by union members, (ii) set forth the creation of labor courts to replace the conciliation and arbitration boards as the entities in charge of labor and employment dispute resolution, and (iii) provided for the creation of an autonomous entity to rule collective labor issues.

To read the full GT Alert, click here.

For more on Unions, click here.

Equal Employment Opportunity Commission (EEOC) Reinstates Collection of EEO-1 Component 2 Data: Pay Data Collection for Calendar Years 2017 and 2018

Posted in EEOC, GT Alert

September is coming, and a chilly wind is blowing for employers with more than 100 employees. By Sept. 30, 2019, employers must submit EEO-1 Component 2 data, employee wage and hour data organized by job category, gender, race, and ethnicity, for calendar years 2017 and 2018 to the Equal Employment Opportunity Commission (EEOC). A 2017 moratorium on the EEOC’s collection of employee pay data was lifted in a recent court order that requires the EEOC to collect employee pay data by the end of September. While the EEOC has not yet set a firm date for when employers will be able to submit EEO-1 Component 2 data, the EEOC expects the EEO-1 Component 2 Survey to open in mid-July 2019.

Because the EEOC is not currently accepting Component 2 data, it is unclear what the EEO-1 Component 2 Survey will look like. However, the EEO-1 Component 2 form is expected to require employers to submit summary pay data for all employees, including the total number of full and part-time employees employed during the year, in each of 12 pay bands listed for each job category identified on the EEO-1 form. The pay data submitted is to be based on employee W-2 forms. The form is expected to be designed so that employers may simply count and report the number of employees in each pay band. The form is not expected to require employers to submit individual pay or salary data. Additionally, the form is expected to require employers to submit the number of hours worked during the year by employees in each pay band.

To read the full GT Alert, click here.

For more on EEOC, click here.


July 1, 2019 Deadline Looms for Employers Under Massachusetts Paid Family and Medical Leave Act

Posted in Employment Agreement, GT Alert, Legislation, Massachusetts, Paid Leave, State Law

The Massachusetts Paid Family and Medical Leave Act (PFML) provides eligible workers with paid medical and family leave benefits effective Jan. 1, 2021. See July 2018 GT Alert here. Specifically, individuals will be entitled to up to 20 weeks of paid medical leave and 12 weeks of paid family leave per year. The maximum amount of combined family and medical leave an individual may take under the PFML is limited to 26 weeks per year. The benefit amount is based on an employee’s earnings and is capped at $850 weekly.

While entitlement to benefits for employees does not begin until 2021, employers are obligated to comply with the funding and notice aspects of the law beginning in 2019. Starting on July 1, 2019, employers are required to determine contribution amounts for their workforces and make employee deductions as applicable. Contributions will be made to the newly created Family and Employment Security Trust Fund to be administered by the state treasurer.

Click here to read the full GT Alert.

IRS Expands Retirement Plan Self-Correction Program

Posted in Benefits, Compensation, Department of Labor, Employee Policies, Federal Law, GT Alert, Retirement

Our January 2019 GT Benefits and Compensation Alert addressed the unprecedented level of potential liability for compliance failures in 401(k) and other retirement plans and the importance of performing a plan compliance review and correcting plan document or operational failures before an IRS auditor knocks on the door. Doing nothing and playing the audit lottery is no longer an acceptable risk, with one out of three employers (and half of large employers with at least 25,000 employees) likely to have their retirement plan audited by the IRS or DOL (See 2016 WillisTowersWatson Retirement Plan Governance Survey).

Fortunately, the IRS and DOL have programs allowing employer plan sponsors to perform compliance reviews and self-correct plan document and operational failures rather than requiring them to file a correction submission with the IRS or DOL for approval and paying fees or negotiating sanctions on audit.

The IRS has just released new self-correction procedures with the issuance of Revenue Procedure 2019-19, effective as of April 19, 2019, which increases the number and type of errors that can be self-corrected without filing and paying a fee.

To read the full GT Alert, click here.

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

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.