On September 25, 2018, the Ninth Circuit Court of Appeals ended an aggressive five-year legal battle between Uber and its drivers regarding whether or not drivers should be considered employees versus independent contractors. In O’Connor v. Uber, the court avoided the central issue of the proper classification of drivers by ruling that drivers suing for expenses and tips must submit their claims to arbitration in accordance with Uber’s driver agreement. The Ninth Circuit’s opinion, which relied upon the U.S. Supreme Court’s ground breaking decision in Epic Systems v. Lewis, dealt a significant blow to drivers who can no longer pursue employment claims against Uber via a class-action claim in federal court, and instead must bring their claims individually to arbitration.
A spate of new state and local regulations is making it tougher to be an employer in the City That Never Sleeps. As previously covered by HR Legalist, new requirements for sexual harassment policies went into effect across New York State on October 9, 2018, and burdensome new requirements for harassment-related training will go into effect statewide on October 9, 2019. In addition, New York City employers must comply with the Stop Sexual Harassment Act, which includes its own training requirements, beginning in April 2019.
If that wasn’t enough to keep employers in The Big Apple busy, a new amendment to the NYC Human Rights Law (NYCHRL), effective October 15, 2018, adds new requirements for how employers must respond when employees request workplace accommodations. The new rule requires employers to engage in a “cooperative dialogue” with employees who request accommodations, similar to the “interactive process” required under federal law (including the Americans with Disabilities Act). However, NYC’s requirements significantly expand on the ADA’s requirements.
As previously covered by HR Legalist, employers across New York State have until October 9, 2018, to implement sexual harassment policies that meet specific minimum requirements defined in the law. On Monday afternoon, the State of New York issued final guidance which granted employers a significant reprieve on the portion of the law governing mandatory sexual harassment prevention and training. Thanks to this new guidance, employers in New York State now have until October 9, 2019 to provide the requisite training (a significant extension from the previous training-related deadline of January 1, 2019). However, the deadline for the adoption of compliant sexual harassment policies remains October 9, 2018.
In April 2018, Governor Cuomo signed the 2019 New York State budget, which includes sweeping new requirements for sexual harassment policies and training for private employers of all sizes. The October 9th deadline for all New York State employers to create, publish and implement sexual harassment policies is fast approaching. Even more burdensome for employers in New York State, is the January 1, 2019 deadline for all employees to have completed sexual harassment training (NOTE: this deadline has been extended to October of 2019, as noted in our blog update here). The next phase of implementation for the New York City area begins on April 15, 2019. The New York City training mandate includes far more extensive training requirements that will force employers to invest in sexual harassment training beyond cursory videos or training materials. Continue Reading
On July 3, 2018 the United States Court of Appeals for the Third Circuit ruled on the case of Minarsky v. Susquehanna County et al, 17-2646 (Jul. 3, 2018). The case clarifies and limits the scope of the Faragher-Ellerth affirmative defense in workplace harassment cases.
Established by the Supreme Court in 1988, the Faragher-Ellerth defense provides the employer a defense to workplace harassment claims when it can show that (1) it exercised reasonable care to prevent harassment and to promptly correct it when it might occur; and (2) that the employee failed to reasonably take advantage of preventative or corrective measures provided by the employer, or to otherwise avoid harm. Usually, this means that if the employer implements a policy prohibiting harassment, and the employee fails to report harassment that violates that policy, then the employee cannot successfully bring a harassment claim. Because this is an affirmative defense, the employer must prove both of the above elements to avoid liability. Continue Reading
Some employers require employees to enter into non-competition agreements at the time of hire, preventing them from competing with their employer during employment and during a certain time period after their employment ends. Non-compete agreements are often presented to employees with access to intellectual property, trade secrets, customer lists, business plans and strategies, and other valuable information that could potentially allow the employee to engage in unfair competition after leaving employment. Along with confidentiality, non-disclosure, and non-solicitation agreements, non-compete agreements are important tools to protect an employer’s business. However, asking a foreign worker with an H-1B visa to enter into non-compete agreement can present additional complications. Continue Reading
The fluctuating workweek (FWW) method is a way for employers to calculate overtime pay for salaried employees who are eligible for overtime pay, but whose working hours fluctuate each week. The FWW method has two components that reduce the amount of overtime payments due to eligible employees: (1) the “regular rate” used to compensate the employee is based upon all hours worked during the workweek (instead of the standard 40 hours); and (2) the employee is only paid an overtime rate of one-half of the regular rate for any hours worked over 40 during that workweek (instead of the standard “time and a half” overtime requirement).
Today the Supreme Court ruled, in a 5-4 decision, that public sector employees who are not members of a union cannot be forced to pay union fees covering the costs of collective bargaining (Janus v. AFSCME). In doing so, the Court overruled a 1977 case that allowed these so-called “agency fees,” and held that these fees violated the free speech rights of non-union employees. This ruling will have a significant impact on the finances of unions that represent public sector employees across the country. Continue Reading
Earlier this year, New Jersey Governor Phil Murphy passed landmark equal pay legislation, which will take effect on July 1, 2018 and impact employers statewide. The Diane B. Allen Equal Pay Act (Act), expands employee rights under the New Jersey Law Against Discrimination (LAD), and prohibits employers from paying an employee who is a member of any protected class a lower rate of compensation or benefits than an employee who is not protected and who performs “substantially similar work.” Unlike some equal pay laws that focus on gender, the Act applies to employees of all protected categories under state law, including, but not limited to: gender, race, national origin, ancestry, age, sexual orientation, military status, disability, and marital status. The law does not specifically define “substantially similar work”; however, the statute states that it this term will be viewed in light of the employees’ respective skills, effort and responsibility. Continue Reading
On Monday, the U.S. Supreme Court reversed a ruling of the Colorado Civil Rights Commission (the “Commission”) that a cake shop violated the state’s anti-discrimination act by refusing to bake a wedding cake for a same-sex couple for professed religious reasons. This case is the latest in a series of high-profile cases pitting the religious beliefs of business owners against the rights of LGBTQ customers. Continue Reading