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New York State’s new sexual harassment prevention laws will require action by all New York employers

On April 12, 2018, New York State  Governor Andrew Cuomo signed into law new measures aimed at preventing sexual harassment. We summarized these provisions in detail in our legal update, New York employers should get ready to comply with New York State’s new sexual harassment prevention laws, published on April 11th, in anticipation of the bill being signed into law.  The new law requires New York State employers to adopt sexual harassment prevention policies and conduct annual training on such policies, restricts the use of non-disclosure and arbitration provisions related to claims of sexual harassment, and extends workplace protections … Continue Reading

The #MeToo Movement: When Employees Take Their Complaints to Social Media

As we are all aware, the news has been populated with stories concerning allegations of sexual harassment and misconduct, particularly in the entertainment and media industries as well as government institutions. These stories have contributed to the “#MeToo” movement, which originated on Twitter and other social media websites in late 2017 and has since become a widespread message on social media encouraging individuals to share their stories and speak out against sexual harassment and abuse. But while its purposes are laudable, the #MeToo movement is a touchy subject for employers, who ever-more-frequently find themselves accused of sexual harassment or other … Continue Reading

Norton Rose Fulbright’s online guide to global employment law is now available

More and more organisations are growing their global footprint and need to move their people around the world. In this global environment, it is essential to know, understand and comply with employment and labour laws in place across all of the jurisdictions in which organisations engage people. This will help to protect business from unnecessary risk, whether legal, financial or reputational.

We have launched a new interactive online version of our Global employment law guide first published in 2015.

Featuring 28 jurisdictions, our interactive guide helps clients navigate the often disparate and diverse national employment and labour laws, in particular … Continue Reading

Sexual harassment settlements (and attorneys’ fees) may no longer be tax deductible for employers

As a result of the new tax reform legislation, employers may no longer deduct on their tax returns any “settlement or payment related to sexual harassment or sexual abuse if such settlement or payment is subject to a nondisclosure agreement” (emphasis added) or any “attorney’s fees related to such a settlement or payment.”

This change in the tax law became effective on December 22, 2017, when the law was enacted.  Previously, employers who settled sexual harassment claims typically did so confidentially and deducted the settlement payments and related attorneys’ fees as business expenses.

Now, the new rule prohibits such … Continue Reading

DOL takes first step to rescind Obama-era persuader rule

After announcing the withdrawal of two union friendly administrator interpretations issued by the Obama Administration, the US Department of Labor delivered anotheDOL takes first step to rescind Obama-era persuader rule - Global Workplace Insiderr blow to unions by announcing that it will take public comment beginning June 12, 2017, on a proposed rule to rescind the Obama-era version of the persuader rule which requires companies to report  union persuader activities.

The Obama-era version of the persuader rule was first introduced on June 20, 2011 and the final rule was scheduled to take effect April 25, 2016. However, implementation of the rule was barred by a nationwide permanent injunction.

The persuader rule, … Continue Reading

How are pregnant employees in California protected in the event of a redundancy?

Both federal and California laws provide numerous safeguards to protect pregnant employees before, during, and after childbirth. Protections include prohibitions against discrimination during hiring and employment, and against termination based on pregnancy or pregnancy-related conditions, even if legitimate bases also exist for the employer’s conduct. When federal and California laws differ, the employer must provide the greater protection.

General rights and protections owed to a pregnant California employee

Federal and California laws explicitly prohibit discrimination in any term or condition of employment based on pregnancy, childbirth, or other related conditions and require an employer to provide reasonable accommodations (e.g., under … Continue Reading

Expanding definition of “sex discrimination” under Title VII

The Judiciary continues to act where Congress will not

All employment attorneys—and most employers—know that Title VII bars discrimination based on certain enumerated personal characteristics: race, color, religion, sex, and national origin. It has long been the case that “sex” meant biological sex only, i.e., discriminating against a woman because she is a woman, or against a man because he is a man, is plainly illegal under Title VII.

By contrast, unlike some equivalent state laws, it has long been clear that Title VII does not guard against discrimination based on sexual orientation.  Indeed, Congress has on a number … Continue Reading

DOL to appeal injunction against new overtime regulations

Despite the fact that the U.S. Department of Labor’s new overtime regulations were set to go into effect on December 1st, the validity of the regulations remains unsettled. We previously reported that on November 22nd, Judge Amos Mazzant of the United States District Court for the Eastern District of Texas granted a nationwide injunction precluding the Department of Labor from implementing and enforcing the regulations on November 22nd in Nevada v. U.S. Department of Labor.  On December 1st, the very same day that the regulations were supposed to go into effect, the Department of Labor announced that it would … Continue Reading

OSHA workplace injury and illness tracking will go forward

Last week, a Texas federal judge handed the Occupational Safety & Health Administration (OSHA) a victory by refusing to grant an injunction that sought to delay the implementation of the Agency’s rule regarding workplace injuries and illnesses. The new rule, entitled “Improve Tracking of Workplace Injuries and Illness,” requires most employers to submit workplace injury and illness information electronically.  This information will then be shared on a publically accessible website.  The rule also incorporates OSHA’s existing statutory prohibition of retaliation against an employee who reports workplace injuries and illnesses and requires employers to inform employees of their right … Continue Reading

Texas federal judge puts the brakes on the DOL’s new overtime regulations

Employers who had been searching for a way to best  implement the Department of Labor’s new overtime regulations (the “Final Rule”), which are set to go into effect on December 1, 2016, received an early holiday gift on Tuesday, and from one of President Obama’s appointed jurists, no less.  On November 22nd, Judge Amos Mazzant of the U.S. District Court for the Eastern District of Texas granted a nationwide preliminary injunction against implementation of the overtime regulations.  As a result, the Department of Labor will not  be able to enforce the regulations as of  December 1, 2016.

The Final Rule, … Continue Reading

US DOL Persuader Rule permanently benched

Hailed by the US Department of Labor as a regulatory change to promote transparency and to help employees make well-informed decisions about union representation, the Department of Labor’s final rule on reporting union persuader activities has been permanently blocked by Texas US District Court Judge Sam R. Cummings.

The new rule attempted to narrow the scope of advice that would be exempt from the reporting requirements under the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA).

Under the new rule, employers and labor relations consultants, including lawyers, were required to disclose information and report any activities undertaken with the … Continue Reading

Title VII sexual orientation claims are gaining traction with more courts

On November 4, 2016, a federal judge in Pennsylvania became the latest jurist to side with the U.S. Equal Employment Opportunity Commission (EEOC) in endorsing the viability of claims based on sexual orientation under Title VII of the Civil Rights Act of 1964. In U.S. EEOC v. Scott Medical Health Center, the EEOC brought suit on behalf of a gay male employee based on a sexually hostile work environment allegedly caused by his male supervisor.  During the EEOC’s investigation into charges filed by the employee’s co-workers, the agency learned of sex-based comments being directed towards the employee, including terms … Continue Reading

Time to update your employee handbook

For many employers, the arduous task of reviewing and revising an employee handbook may occur as infrequently as every leap year, or worse, only after a law suit has been filed. However, recent decisions by the National Labor Relations Board (Board) should cause employers to take a much closer look at their employee policies and the frequency with which they update them.  Technological advances and changes have created new arenas for protected “concerted activity” under Section 7 of the National Labor Relations Act (Act) and have caused the Board to take a closer look at employer policies that may violate … Continue Reading

Overtime overhaul – small businesses want more time to prepare

With just about 90 days to go before the U.S. Department of Labor’s final rule dramatically updating overtime regulations is scheduled to go into effect, small business owners have petitioned the DOL’s Wage and Hour Division seeking more time to prepare for and implement changes to the way they operate their businesses so that they can remain compliant with wage laws. In a parallel move, on September 28, 2016, the U.S. House of Representatives also voted in favor of the Regulatory Relief for Small Businesses, Schools and Nonprofits Act, which would delay implementation of the DOL’s final overtime rule … Continue Reading

Second Circuit’s decision expands liability for discrimination under “cat’s paw” doctrine

You may be familiar with the Aesop fable in which a monkey convinces a naïve cat to burn his paw in order to pull chestnuts from a hot fire for their mutual satisfaction but then eats all the chestnuts himself. This “cat’s paw” doctrine, as it has been coined in employment litigation, has been applied by courts where a decision maker is manipulated by an employee with bad motives into taking an adverse action against another employee.

The United States Supreme Court first validated employer liability under the “cat’s paw” theory in Staub v. Proctor Hospital in 2011, where it … Continue Reading

Ninth Circuit adds to circuit split regarding enforceability of class action waivers

On August 22, 2016, the U.S. Court of Appeals for the Ninth Circuit joined the Seventh Circuit in finding that an employer violates the National Labor Relations Act (“NLRA”) by requiring employees to sign an agreement including a class arbitration waiver.

In Morris v. Ernst & Young, plaintiffs were required to sign “concerted action waivers” as a condition of their employment.  The “concerted action waiver” required employees to (1) pursue legal claims against Ernst & Young exclusively through arbitration and (2) arbitrate only as individuals and in “separate proceedings.”

Plaintiffs argued that the “separate proceedings” clause contravened three federal … Continue Reading

“Promising practices” encouraged by EEOC to prevent retaliation

The U.S. Equal Employment Opportunity Commission (EEOC) has issued its final “Enforcement Guidance on Retaliation and Related Issues” following a six-month public comment period. The guidance replaces the EEOC’s 1988 Compliance Manual section on retaliation.

Workplace retaliation claims have been on the rise in recent years and have been the focus of several opinions of the U.S. Supreme Court in the past two decades. In fact, charges of retaliation exceeded race discrimination claims in 2009 and comprised nearly 45 percent of all charges received by the EEOC in 2015.

In addition to defining retaliation and providing over thirty … Continue Reading

Fair pay, safe workplaces, and federal contractors telling it like it is

On August 24, 2016, the U.S. Department of Labor (DOL) and the Federal Acquisition Regulatory (FAR) Counsel issued a final rule to implement President Obama’s Executive Order 13673, entitled “Fair Pay and Safe Workplaces,” first announced by the President over two years ago on July 31, 2014.

According to the Federal Acquisition Institute, the purpose of E.O. 13673 is “to help [federal] contractors come into compliance with labor laws – not to exclude contractors.” The final rule implementing the order requires both current and prospective federal contractors and subcontractors to disclose labor law violations and establishes how federal … Continue Reading

NLRB allows student assistants to form union

In the much anticipated Columbia University decision, the National Labor Relations Board reversed its most recent precedent and held that student teaching assistants at private colleges and universities are statutory employees under the National Labor Relations Act and may therefore vote to form a union.  This decision is a return to an earlier decision by the Board which overturned a decade-old standard of viewing student teaching assistants as students rather than a part of the teaching faculty.  This decision is sure to invite a rush of union organizing efforts at private universities and colleges across the country.

The Board’s decision … Continue Reading

Does Title VII cover sexual orientation claims? It depends.

In July 2015, the EEOC officially took the position that sexual orientation claims may be brought under the non-discrimination provisions of Title VII of the Civil Rights Act of 1964. However, in the recent case of Hively v. Ivy Tech Community College, the Seventh Circuit refused to accept the EEOC’s position and affirmed the dismissal of a sexual orientation discrimination claim holding that such claims are not cognizable under Title VII.

Following the United States Supreme Court’s 1989 decision in Price Waterhouse v. Hopkins, federal courts have consistently recognized sexual stereotype or gender non-conformity claims as a species … Continue Reading

DOL issues sex discrimination final rule

On June 14, 2016, the United States Department of Labor (DOL) Office of Federal Contract Compliance Programs (OFCCP) issued a Final Rule to revise its sex discrimination policies, updating its guidelines to provide additional guidance on what constitutes discrimination based on sex. The updated guidelines define “sex” to include gender identity, transgender status, pregnancy, and sex stereotyping.  OFCCP also clarified some aspects of the old rule, including which parts contractors are subject to, whether a contractor’s good-faith efforts to expand employment opportunities for women could result in a violation of the Rule, and whether contractors may seek exemptions under the … Continue Reading

Minnesota addresses architectural barriers to public places: 2016 amendments to its Human Rights Act

Introduction

Minnesota businesses may soon see differences in disability access claims.

wheelchair

On May 22, 2016, Minnesota’s Governor Mark Dayton signed into law a new amendment to the Minnesota Human Rights Act (“MHRA”). The amendment governs what must occur before attorneys can bring suit under the MHRA challenging architectural barriers that limit accessibility to public spaces. The new law is set forth in Minn. Stat. § 363A.331 (“Section 331”) and is entitled “Actions Involving Architectural Barriers that Limit Accessibility.” Human Rights Act, Ch. 363A, § 28, § 331, 159 H.F.No. 2955 (2016) (amending § 28 and creating new § 331, the … Continue Reading

US DOL finalizes new rule expanding overtime coverage

The US Department of Labor (DOL) has finalized a new rule expanding the number of employees entitled to receive overtime pay for work in excess of 40 hours in a regular workweek, by doubling the salary needed for executive, administrative, and professional workers to qualify as exempt and by raising the compensation needed to qualify as a highly compensated employee.

The rule will take effect December 1, 2016 and is expected to affect at least 4.2 million full-time exempt employees.

It supposedly represents the DOL’s effort to better distinguish overtime-eligible white collar employees, whom Congress intended to protect under the … Continue Reading

DOL’s new salary rule is a mixed bag for employers

Adding to the recent flurry of federal regulatory activity, on May 18, 2016, the United States Department of Labor‘s Wage and Hour Division issued a final rule on overtime that raises the salary threshold for exempt employees under the Fair Labor Standards Act.

Defining and delimiting the exemptions for executive, administrative, professional, outside sales and computer employees under the Fair Labor Standards Act, the Department of Labor’s final rule updates overtime regulations, automatically extending overtime pay protections to “over 4 million workers within the first year of implementation.”

Learn how this new DOL final rule will impact your … Continue Reading

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