Spoiler Alert! It’s Going to Be a Roaring 2020 With Many Impactful Laws On The Horizon (US)

Who will be cheering and who will be jeering in this new decade may depend on the outcome of several key cases, pending regulations, and potential state and local law reforms. Below, we provide you with a brief overview of some key issues that may dominate the legal landscape in 2020 and beyond.

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US Department Of Labor Issues Final Rule On Joint Employer Status Under The FLSA (US)

Rule establishes standard under which two employers will be deemed jointly and severally liable under the Fair Labor Standards Act as of March 16, 2020

In January 2016, we posted about an Administrator’s Interpretation issued by the US Department of Labor’s (DOL) then-Wage and Hour Division Administrator that provided guidance for when two or more employers should be considered “joint employers” under the Fair Labor Standards Act (FLSA).  (The FLSA is the primary federal statute that regulates minimum wage and overtime compensation for US workers.)  This guidance noted the “growing variety and number of business models and labor arrangements,” and suggested that because of this, more direction was needed “to hold all responsible parties accountable for their legal obligations.”

Now, four years later, the DOL has issued its Final Rule on Joint Employer Status under the FLSA.  The rule specifically addresses two types of potential joint employment scenarios.  Continue Reading

NLRB Must Consider An Employer’s Obligation To Maintain A Harassment-Free Workplace When Evaluating An Employee’s Allegedly Protected Conduct (US)

The U.S. Court of Appeals for the D.C. Circuit recently refused to enforce a decision by the National Labor Relations Board (NLRB) that involved a conflict between an employer’s obligation to maintain a harassment-free workplace under federal and state equal employment opportunity laws (such as Title VII of the Civil Rights Act of 1964 which, among other things, creates liability for employers who create or permit a sexually hostile work environment) and its obligation to comply with Section 7 of the National Labor Relations Act (NLRA), which prohibits employers from interfering with employees’ right to engage in concerted activity for mutual aid or protection. Continue Reading

Can an Employer Implement a Nicotine-Free Hiring Policy?— It Depends on State Law (US)

Nicotine products are highly addictive and have been linked to a variety of serious health issues, including lung cancer and other respiratory illnesses.  In addition to the numerous health risks associated with nicotine use, there is also a causal connection between employee nicotine use and lower productivity in the workplace, as well as higher healthcare costs for employers.  In response to these issues, and in an effort to promote and empower a healthy workforce, more employers are enacting health-conscious workplace policies and anti-smoking/vaping initiatives.

In fact, over the last decade, employers—particularly hospitals and businesses in the medical field—have adopted anti-smoking/vaping policies in those states in which it is lawful to do so, with the goal of encouraging a more healthy work environment, as well as to increase worker productivity and reduce healthcare costs.  As the health risks associated with nicotine use become increasingly apparent (particularly with the recent wave of vaping-related illnesses), it is likely that more employers will consider their policies toward these important health issues.  Continue Reading

Veganism as a protected belief – putting flesh on the bones for UK employers

Much noise in the press last week about the decision of the Norwich Employment Tribunal that veganism is a philosophical belief protected under The Equality Act, so the obvious question is what this all means in practice.

First, less than it looks.  The decision applies to “ethical veganism” only, not a regime adopted on fashion or dietary grounds.  If you forswear animal products because they make you ill or you want to lose weight or all your friends do it or you think it makes you sound more interesting, that will not count.  Ethical veganism as practised by Mr Casamitjana in his claim against the League against Cruel Sports (oh, the irony) means taking the avoidance of animal exploitation very seriously.  He would avoid leather clothing, touching things made from animal skin, and even travelling by vehicle where possible so as not to be party to the death of the insects splatted on the windscreen.  It is hard to know at present whether these extremes are necessary pre-conditions of establishing ethical veganism but it is unlikely, just as the religious belief cases do not deny protection to those not at the fundamentalist end of their faith’s spectrum of observance.  That said, if you evince no interest at all in animal exploitation beyond not actually eating them, it may be harder to show that your veganism is generally based on an ethical belief as opposed to something less impacting on your way of life.

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California’s New Arbitration and Independent Contractor Laws Stayed, Conditionally and Temporarily For Now (US)

Sunset Coronado Beach

January 10, 2020 Update to AB 5 Challenges

Trucking Industry:  On Wednesday, January 8, 2020, a California state court ruled that AB 5 does not apply to the trucking industry because the state statute is preempted by federal law.  This state court ruling lays a solid foundation for the federal court hearing on the trucking industry’s request for a preliminary injunction on January 13, 2020 based on the same federal preemption argument.  The Federal Aviation Administration Authorization Act of 1994 prevents states from enacting laws that affect the prices, routes, or services of trucking companies in transporting goods.  The court found on January 8 that AB 5 does just this because it effectively bars trucking companies from using independent contractor drivers.

Uber and Postmates:  Also on January 8, 2020, Uber, Postmates, and two of their drivers moved for a preliminary injunction to bar AB 5 from being enforced against gig-economy companies and on-demand workers while their case to invalidate AB 5 proceeds.  The hearing is scheduled for February 8, 2020.  In support of their request, they argue that if AB 5 is enforced, harm will be done to the “..companies, drivers, consumers, merchants, and to the public at large.”  The drivers allege that the law interferes with their constitutional right to “follow a chosen profession free from unreasonable governmental interference.”

As of January 10, 2020, there are three hearings scheduled to hear requests for preliminary injunctions to stay enforcement of AB 5 in three different industries: (1) trucking; (2) the so-called “gig-economy,” including Uber and Postmates, and (3) freelance journalists and photographers.  The hearings are scheduled for January 13, February 8, and March 9, respectively.  The outcome of these hearings will demonstrate the courts’ temperament in regards to AB 5’s restrictive independent contractor analysis.

****** Original Post – January 7, 2019 *******

As expected, two new California laws relating to arbitration and independent contractor status that were set to take effect on January 1, 2020 were promptly challenged in court as unconstitutional. District courts have already issued temporary restraining orders blocking the laws from taking full-effect immediately.  We expect these forays into court will merely be the first step in protracted legal proceedings that could very well end up at the Supreme Court.  This post summarizes each law, the legal challenges made, and the current status of the law. Continue Reading

Polish employment law year-end roundup: get ready for 2020!

As 2019 has come to an end, it is time for employers to get ready for 2020. Below we present a short summary of changes in Polish employment law, covering such areas as salaries, taxes, benefits and employee litigation.

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ICO tightens screw on DSAR deadlines, possibly (UK)

Unheralded and unannounced, recently revised GDPR guidance from the ICO removed one small source of comfort for employers facing DSARs from employees. It used to say that the 30-day time limit was paused, the clock stopped, if you asked the requester for information to clarify his DSAR and it was not provided. This was not carte blanche to delay things – the request for clarification had to be made as soon as possible (i.e. not Day 29) and it had to relate to information you genuinely and reasonably needed in order to comply with the DSAR. Still, it was better than nothing in a tight corner. You also had to do your best to comply in a timely manner with those parts of the DSAR not covered by your request for further information.

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DHS New Fee Schedule and Other Changes Proposal (US)

The Proposed Rule

On November 14, 2019, the Department of Homeland Security (DHS) published a notice of a proposed rule that will considerably alter the fees associated with US filings and immigration benefits. The proposal also includes significant changes to some of the immigration forms published by the US Citizenship and Immigration Services (USCIS). DHS originally announced that it would accept public comments on the proposal for 30 days after publication; however, later extended the comment period until December 30, 2019. After comments are reviewed, a final rule will be published, which may differ from the original proposal. Continue Reading