Starting January 1, 2018, nearly all private employees in New York State will be eligible for Paid Family Leave so the employee can (1) bond with a newly born, adopted or fostered child; (2) care for a family member with a serious health condition; or (3) assist loved ones when a family member is deployed abroad on active military duty. Paid Family Leave will phase in over four years, starting at 8 weeks in 2018 and increasing to 12 weeks by 2021.

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To better protect hotel workers against sexual harassment and assault, Chicago passed the “Hands Off Pants On” Ordinance. The Ordinance requires Hotels in the City of Chicago to adopt (1) a “panic button” system and (2) anti-sexual harassment policy.

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An amendment to the New York City Human Rights Law, effective October 31, 2017, prohibits New York City employers from considering job applicants’ salary histories. Here are the details:

The Amendment Prohibits Employers From:

  • Inquiring about an applicant’s salary history; or
  • Relying on an applicant’s salary history when making decisions about an applicant’s salary at any time during the hiring process.

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Governor Brown, Jr., recently signed five employment bills into law that affect all California employers. The following laws are effective starting January 1, 2018.

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California’s Division of Occupational Safety and Health (“Cal-OSHA”) recently increased its penalties in response to Federal OSHA’s increased penalty hikes last year.

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On September 6, 2017, in Marsh v. J. Alexander’s, LLC, the Ninth Circuit refused deference to the United States Department of Labor’s (the “DOL”) 80/20 Rule, which interprets the “tip credit” under the Fair Labor Standards Act (“FLSA”). The Ninth Circuit held that the 80/20 Rule is inconsistent with the FLSA because the Rule improperly focuses on an employee’s individual duties, rather than an employee’s distinctive dual positions.

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The Department of Labor (DOL) has announced an intent to rescind the notorious 2011 Federal Tip-Pooling Rule, which currently prevents service-industry employers from allowing front-of-house servers to share tips with back-of-house employees (i.e., cooks and dishwashers). Under the 2011 regulation, tip-pools must only include front of house staff. Given the prevalence of tip-pooling in the service industry, the 2011 rule has been the subject of numerous legal challenges, including two petitions that are currently pending before the United States Supreme Court.

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On July 17, 2017, the United States Citizenship and Immigration Services (“USCIS”) released a revised Form I-9.

While the revised form does not change storage and retention rules, it does include subtle changes to the form’s instructions. For instance, the instructions to Section 1 have been revised to remove “the end of” from the phrase “the first day of employment.” Also, the form introduces a new name for the Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices: The Immigrant and Employee Rights Section.

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In a recent newsletter, we reported that the United States Supreme Court would decide the hotly contested issue of whether class waivers are valid in arbitration agreements sometime this year.

The Court recently announced that it would hear oral argument on the issue on October 2, 2017. Stokes Wagner will keep you informed as things progress with this hot issue.

For more legal updates, check out our update for September 2017!

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In Stragapede v. City of Evanston, Illinois, the Seventh Circuit upheld the nearly $580,000 jury verdict in favor of the former City employee. Stragapede, a 14-year veteran of the City’s Department of Water Services, suffered a traumatic brain injury at home in 2009.

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As we wrote in our June update, the Obama administration raised the minimum salary requirement for major “white collar” exemptions from $455/week to $913/week. In July 2017, the Department of Labor (“DOL”) filed its long-awaited reply brief with the 5th Circuit regarding the new minimum requirements. The DOL did not seek to reinstate the Obama’s minimum salary level. The DOL did, however, ask the Court to find that the DOL has authority to set a salary test.

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For the first time ever, the California Labor Commissioner fined a general contractor nearly $250,000 for wage and hour violations committed by its subcontractor, who had been hired for a hotel construction project in Southern California. This decision is significant for businesses that use subcontractors.

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Ever wonder if you can recover litigation costs in employment cases? On August 15, 2017, in Sviridov v. City of San Diego, the court made it clearer for employers.

Two years ago, in Williams v. Chino Valley Independent Fire Dist., the Supreme Court explained that prevailing employers in employment cases can generally only recover costs if the employee’s action was objectively without foundation – an extraordinarily high standard. However, Williams was not asked to consider and did not answer the question of whether costs may properly be awarded in a FEHA action pursuant to a Section 998 offer. That issue was before the court in Sviridov.

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Employees who sue for unpaid wages can either file (1) a civil lawsuit or (2) a wage claim with the Division of Labor Standards and Enforcement (“DLSE”). An employee who files a wage claim with the DLSE may participate in a settlement conference with his/her employer. If the case does not settle, the DLSE will set the case to an administrative hearing, known as a “Berman Hearing”. Berman Hearings are mini, informal trials with a Labor Commissioner. Berman Hearings, compared to civil lawsuits, are designed to provide a speedy, informal, and affordable method for employees and employers to resolve wage claims.

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Starting January 1, 2018, San Francisco requires employers to ensure that any space offered for lactation also includes a place to sit, a surface on which to place a breast pump and/or other personal items, access to electricity, and a nearby refrigerator in which the employee can store expressed milk. An employee’s lactation break time may be unpaid if it is not taken within or during an already-specified paid break. The Ordinance strictly prohibits retaliation against anyone who requests lactation accommodation or files a complaint with San Francisco’s Office of Labor Standards Enforcement (“OLSE”).

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Effective July 19, 2017, San Francisco became the first city in California to ban employers from asking job applicants about their salary history. This is the latest in a nationwide movement to promote gender pay equality. As cited in the San Francisco Ordinance, census data shows that women in San Francisco are paid 84 cents for every dollar a man makes, and women of color are paid even less. The ban seeks to stop the “problematic practice” of relying on past salaries to set new employees’ pay rates, which perpetuates the historic gender pay gap.

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Effective 3/13/2017, San Jose employers must offer additional hours of work to current part-time employees before agreeing to hire additional, outside workers. These current part-time employees must in “good faith and reasonable judgment” have the necessary skills and experience to perform the work. Employers are not required, however, to offer hours to part-time employees if doing so would require overtime pay.

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Local 25 Teamsters (Union) were recently acquitted of charges of conspiracy to extort and attempted extortion. In June 2014, the Teamsters allegedly slashed tires, used sexist and racist slurs, and threatened to “bash” celebrity host Padma Lakshmi’s “pretty little face in.”

Federal prosecutors accused the Union members of trying to shut down the filming if the show did not hire Teamsters to drive production vehicles. The prosecutors specifically had to prove that the Teamsters’ labor objectives, however egregious their actions, were illegitimate.

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Massachusetts recently passed the Pregnant Workers Fairness Act, which protects women from discrimination based on pregnancy, childbirth, and expressing milk. Effective April 1, 2018, it is unlawful for an employer to deny reasonable accommodations related to pregnancy, childbirth, or related conditions upon request unless the employer can demonstrate that the accommodation would impose an undue hardship on the employer.

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Employers in Massachusetts may not terminate employees who use medical marijuana in accordance with a prescription according to the Massachusetts Supreme Judicial Court’s recent ruling in Barbuto v. Advantage Sales and Marketing, LLC. Barbuto, a former Advantage employee, disclosed her medical marijuana usage at the time of her hire. Ms. Barbuto worked for only one day before she was terminated for failing the company’s mandatory drug test. The company’s drug policies followed the federal drug schedule, not local Massachusetts law. The court found for Ms. Barbuto by stating that, in terminating her employment, the company illegally discriminated against her.

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On August 5, 2017, the New York City Commission on Human Rights published final regulations which expand on and clarify the already burdensome requirements of the Fair Chance Act (“FCA”). These newly released regulations will make background checks particularly difficult for national employers and/or employers with a consolidated hiring process in multiple states.

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The City of New York enacted several bills affecting fast-food employers, effective November 26, 2017.

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We are pleased to present the Legal Update for our latest Quarter!

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EEO-1 Amendments on Pause, Working Families Flexibility Act May Convert Overtime to Comp Time, Update on Proposed Change to Federal Overtime Regulations, and more.

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This quarter’s newsletter includes useful information about Federal and California law updates.

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EEOC on Retaliation, Class Action Waivers and the NLRA, New Information for EEO-1 Filings, and more.

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