Texas Expands Employer Liability for Sexual Harassment

Posted in Employee Handbooks & Policies, Employment Counseling & Workplace Claims Prevention, Employment Discrimination Harassment & Retaliation, Uncategorized

Texas employers of ALL sizes should be aware that Texas has significantly expanded employee protection for sexual harassment claims with two new bills signed into law by Governor Abbott. The first opens the door for Texas employers of all sizes to be liable for sexual harassment. The second extends the statute of limitations for sexual harassment claims in Texas from 180 days to 300 days. Both are effective September 1, 2021.

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The Cost of Meal and Rest Break Violations Just Went Up for California Employers

Posted in Employment Counseling & Workplace Claims Prevention, Wage & Hour

California employers finally have clear guidance on the implications of failing to comply with California’s meal and rest break requirements under the Labor Code. Most businesses in California are familiar with meal and rest break requirements, and, equally so, with the penalty mandated by Section 226.7 of the Labor Code for violations—one hour of pay at the employee’s “regular rate of compensation” for each non-compliant break. What has been less clear, however, is how an employee’s “regular rate of compensation” should be calculated. This ambiguity has left employers struggling for years over best practices, often at the cost of expensive class action lawsuits. Finally, the California Supreme Court has resolved this issue: penalties for meal and rest break violations must be paid at the “regular rate of pay,” which includes an employee’s hourly wage rate plus any non-discretionary pay earned over the pay period.

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Biden Order: Consider a Federal Rule on Non-Competes

Posted in Employment Counseling & Workplace Claims Prevention, Non-Compete & Trade Secret Litigation

Don’t be misled: President Biden’s July 9 Executive Order does not bar non-compete agreements. Rather, it “encourages” the Chair of the Federal Trade Commission to use rule-making to limit their use.

In fact, the only text in the Order addressing non-competes reads, in its entirety: “To address agreements that may unduly limit workers’ ability to change jobs, the Chair of the FTC is encouraged to consider working with the rest of the Commission to exercise the FTC’s statutory rulemaking authority under the Federal Trade Commission Act to curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility.”

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Tipped and Non-Tipped Work Back Under the Microscope

Posted in Employee Benefits, Employment Counseling & Workplace Claims Prevention, Wage & Hour

The old “80/20 rule” is back again for tipped workers under the latest proposed Final Rule issued by the Department of Labor (DOL) last month. Employers in the service industry, especially those employers who take a tip credit and/or implement a tip pool for their employees, should keep an eye on this latest Final Rule. Under the Trump Administration, the DOL had issued a different Final Rule in its final weeks which was intended to formally incorporate a 2018 tip credit amendment to Section 3(m)(2) of the Fair Labor Standards Act (FLSA) into the DOL’s tip regulations and guidance. That version of the Final Rule was set to go into effect on March 1, 2021, until the Biden Administration asked the DOL to postpone its implementation pending review. The DOL’s Notice of Proposed Rulemaking, issued on June 23, 2021, proposes to withdraw and amend the portion of the Trump Administration version of the Final Rule concerning when an employer can take a tip credit for an employee performing tipped and non-tipped work/dual jobs. Comments on the proposed Final Rule are due by August 23, 2021 and can be submitted here. Continue Reading

Luck Strikes Twice for Certain FY 2021 H-1B Petitioning Employers

Posted in Immigration Planning & Compliance

Certain U.S. employers now have a second chance to refile Fiscal Year 2021 H-1B lottery visa petitions that were rejected or administratively closed solely because of the requested employment start on the petitions. Employers must refile eligible FY 2021 H-1B cap petitions, with all applicable fees, before October 1, 2021.

Employers petitioning for cap-subject H-1B candidates are required each year to register electronically through the myUSCIS portal and pay a $10 registration fee to be entered in the yearly lottery. Only employers with selected lottery registrations are then able to file complete H-1B petitions with USCIS within 90 days of selection notification. In practice, employers filing cap-subject H-1B petitions must request an employment start date of October 1 during the relevant fiscal year. In an unprecedented move, during FY 2021 the U.S. Citizenship and Immigration (USCIS) randomly selected H-1B lottery registrations during two separate periods to reach the congressionally mandated annual cap of 85,000 H-1B visas—a move that ultimately left employers confused about which employment start date to request for H-1B hopefuls. Continue Reading

Union Organizing Trends: Use of Technology and Social Issues

Posted in Labor Relations

Union organizers are effectively using technology and capitalizing on prominent social issues to dramatically increase union organizing in the technology industry and elsewhere. No longer do union organizers have to meet employees face-to-face in their homes, their employer’s parking lot, or in a public gathering location such as in a restaurant or bar. The widespread use of smart phones, email and social media has enabled union organizers to recruit members virtually. These much less time-intensive organizing techniques have allowed union organizers to be more efficient and organize more employees in far less time.

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OSHA Issues COVID-19 Standard for Healthcare Employers

Posted in Employment Counseling & Workplace Claims Prevention, Workplace Safety & OSHA

OSHA has issued a 916-page COVID-19 Healthcare Emergency Temporary Standard (ETS) setting forth a myriad of requirements for covered healthcare entities, including implementation of a comprehensive COVID-19 plan identifying and addressing hazards, patient screening and management protocols and transmission-based precautions, protocols for providing and requiring use of personal protective equipment (PPE), aerosol-generating procedure controls, requirements for physical distancing, physical barriers, cleaning and disinfection, ventilation, health screening and medical management, training, anti-retaliation, recordkeeping, and reporting. The ETS also requires covered employers to provide reasonable time off and paid leave for employee vaccinations and any side effects. Further, it includes a respiratory protection program that applies when respirators are used in lieu of required facemasks.

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Supreme Court: Employees Do Not “Exceed Authorized Access” By Misusing Computer Data They Are Otherwise Authorized To Access

Posted in Employment Counseling & Workplace Claims Prevention, Non-Compete & Trade Secret Litigation

The scenario is familiar, and frustrating, to employers: an employee, preparing to leave to join a competitor, accesses sensitive product, customer, and sales data using his or her own credentials, copies it to a flash drive, and takes it to a competing firm. Employers have had a variety of legal tools available to take action in response, but one previously potent tool is now seemingly off the table due to a June 3, 2021 opinion by the United States Supreme Court. That decision, Van Buren v. United States, reminds employers that litigation, even under expansive anti-hacking statutes such as the Computer Fraud and Abuse Act (CFAA), is no substitute for strong preventative actions to protect sensitive competitive information.

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New Federal Guidance: Employers May Offer Incentives for Vaccination

Posted in Employee Benefits, Employment Counseling & Workplace Claims Prevention, Employment Discrimination Harassment & Retaliation, Genetic Information Nondiscrimination Act, Workplace Safety & OSHA

An employer may offer an incentive to employees to voluntarily provide documentation or other confirmation that they received a vaccination on their own from a pharmacy, public health department, or other health care provider in the community, according to new guidance issued by the EEOC on May 28, 2021. Continue Reading

NY Employers: Note New NY COVID-19 Guidance

Posted in Employee Handbooks & Policies, Employment Discrimination Harassment & Retaliation, Workplace Safety & OSHA

With the COVID-19 landscape in New York changing rapidly, employers may be understandably confused about what rules to abide by when it comes to things like masks, social distancing, and safety protocols. Significant changes may be on the horizon, but employers should not pull the trigger on any sweeping changes to their policies just yet. Despite recent guidance from the CDC, New York employers should continue to stay their course and follow the previous industry-specific guidelines issued by the State, which are still in effect at this time.

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