For several years now, union and non-union employers have been stuck between a rock and a hard place because of dissonance between anti-discrimination laws and the National Labor Relations Act (NLRA). Consider the following situation: An employer can discipline its employees based on discriminatory or harassing behavior and then face an unfair labor practice charge if the employees claim that their conduct was protected concerted activity under the NLRA. Alternatively, an employer can choose not to discipline its employees for such conduct and then get caught in the crosshairs of the Equal Employment Opportunity Commission or a state agency for violating a federal or state fair employment law. Continue Reading Companies Walk a Fine Line Between Disciplining Staff and Violating NLRA
Last week’s decision in Ward v. Tilly’s Inc. means that California employers with on-call policies are required to pay a minimum of two hours reporting time pay, even if the employee is told there is no need to come in to work that day.
A California Court of Appeal held that a company’s on-call scheduling policy requiring employees to call the employer in advance of a shift to find out if they need to appear for work triggered “reporting time” pay obligations under the California Industrial Welfare Commission’s (IWC) Wage Orders.
Under the Wage Orders, an employee who is required to report for work and does report must be paid for half the employee’s usual or scheduled day’s work, but in no event less than two hours’ pay, nor more than four hours’ pay, at the employee’s regular rate of pay. Continue Reading Reporting for Duty: In California, It’s Compensable, Even When Employees are Told Not to Come to Work
On January 25, the Illinois Supreme Court held that a person can seek liquidated damages based on a technical violation of the Illinois Biometric Information Privacy Act (BIPA), even if that person has suffered no actual injury as a result of the violation. Rosenbach v. Six Flags Entertainment Corp. No. 123186 (Ill. Jan. 25, 2019) presents operational and legal issues for companies that collect fingerprints, facial scans, or other images that may be considered biometric information. Continue Reading Six Flags Raises Red Flags: Illinois Supreme Court Weighs In On BIPA
Schiff Hardin’s Labor and Employment Group presents our annual legislative update, summarizing legislation slated to take effect in 2019 under federal law and in Illinois, California, New York, Michigan, and District of Columbia. Continue Reading 2019 Labor and Employment Legislative Developments
As climate change is integrated more and more into the planning of corporate opportunities and risks, the Fourth National Climate Assessment released last week may be a valuable resource to assess how climate change may impact your business strategy on the horizon. Continue Reading Four Themes from the National Climate Assessment that May Impact Your Business Strategy
Both New York State and New York City have recently passed a series of laws that significantly increased the protections against sexual harassment in the workplace. These laws outline additional and specific requirements that employers must comply with over the next year. Continue Reading New York State and City Raise Bar for Employers in Handling Sexual Harassment Allegations
Rather than wait for another case to come before it to address the requirements for joint employer status, the majority of the National Labor Relations Board (NLRB) members have opted to take the little-used rulemaking route. The proposed rule, which was released on September 14, 2018, would amend 29 CFR part 103 to add §103.40, defining joint employers. The proposed definition is only two sentences long:
An employer, as defined by Section 2(2) of the National Labor Relations Act (the Act), may be considered a joint employer of a separate employer’s employees only if the two employers share or codetermine the employees’ essential terms and conditions of employment, such as hiring, firing, discipline, supervision, and direction. A putative joint employer must possess and actually exercise substantial direct and immediate control over the employees’ essential terms and conditions of employment in a manner that is not limited and routine.
As of August 21, 2018, the Nursing Mothers in the Workplace Act, 820 ILCS 260, has been amended to provide that Illinois employers that are subject to the Act must provide reasonable break time whenever the employee needs to express milk. The break time may (but not “must”) run concurrently with break time already provided. Continue Reading Expanded Protection for Nursing Mothers in Illinois
The Office of Federal Contract Compliance Programs (OFCCP) released three new directives late last week, which provide insight into its approach with respect to two key facets of contractor compliance under new Acting Director Craig Leen: compensation analysis and affirmative action programs (AAPs). “Directives” do not create or change laws, but provide guidance on the agency’s enforcement and compliance policies.
Federal contractors or subcontractors subject to affirmative action requirements under Executive Order 11246, Section 503 of the Rehabilitation Act, or the Vietnam Era Veterans’ Readjustment Assistance Act should pay attention to these developments. Continue Reading OFCCP Issues New Directives to Boost Contractor Compliance
California has broken with federal precedent once again in favor of its state employees, rejecting application of the Fair Labor Standard Act’s de minimis rule in a lawsuit seeking recovery of unpaid wages under California state law. Under the de minimis doctrine, employers are excused, in some circumstances, from paying employees under the federal Fair Labor Standards Act (FLSA) for small amounts of otherwise compensable time worked when that time is administratively difficult to track. The California Supreme Court held last week in Troester v. Starbucks Corporation, that the de minimis doctrine does not apply to claims for unpaid wages under California state law where an employer requires its employees to work small amounts of time off the clock on a regular basis or as a regular feature of the job. Continue Reading California Supreme Court Rejects FLSA’s De Minimis Doctrine