State Law Round-Up: Wage Theft Laws (MN, NJ) and Restrictions on Non-Compete Agreements (ME, MD, NH, OR, RI, WA) (US)

Wage Theft Laws

In response to Minnesota’s wage theft law, which we previously reported about here, the city of Minneapolis has passed its own wage theft law, Ordinance No. 2019-031, which will go into effect on January 1, 2020. The law applies to any employee that works for an employer for at least 80 hours per year within the geographic boundaries of the city of Minneapolis. Continue Reading

Summer Vacation Is Definitely Over At The NLRB (US)

Between August 29 and September 10, the National Labor Relations Board (“NLRB” or “Board”) issued four decisions that resolve important issues that have been the subject of long-running disputes.  It also issued an invitation to submit briefs in a case that provides an opportunity for the current Board majority members to revise the standard for when employee conduct loses protection under the National Labor Relations Act.

Misclassification of Employees As Contractors Alone Does Not Violate Federal Law

On August 29, 2019, the NLRB decided that employers who incorrectly classify employees as independent contractors – who are not subject to the protections and benefits of the National Labor Relations Act (“NLRA”), which applies only to non-managerial, non-supervisory employees – do not violate the NLRA because misclassification “does not, in and of itself, contain any ‘threat of reprisal or force or promise of benefit.’” Specifically, the Board held that an employer only violates the NLRA in misclassifying employees as contractors when it actively relies upon or uses the misclassification to interfere with protected rights under the NLRA; therefore, employers do not interfere with workers’ organizing rights by simply misclassifying them as contractors.  Although a win for employers, employers nonetheless should remain cautious because this decision does not absolve all potential liability relating to misclassification of employees.  Employers should still take great care to avoid misclassification to protect against liability involving the Fair Labor Standards Act, tax requirements, unemployment benefits, and workers compensation. Continue Reading

California Passes Sweeping New Law Limiting Employer Use Of Independent Contractors (US)

AB 5, and its “ABC test,” expected to have greatest impact in “gig economy” jobs, but impact certain to be even more widely felt

After a summer of lobbying and debating, the California Assembly adopted AB 5, a headline-grabbing law purporting to transform the status of gig-economy workers at companies like Uber, Lyft, and DoorDash.  Proponents of the law assert that it will force those companies to treat those persons performing work as independent contractors like employees, with all of the legal protections that entails – minimum wage, overtime, workers’ compensation, paid sick leave and reimbursement of expenses just to name several.  Critics at companies like Uber are publicly declaring they do not believe it will change their relationship with gig workers while they are reportedly meeting behind closed doors with California Governor Gavin Newsom, who has stated he is still open to negotiating possible changes to the law before he signs it.  Meanwhile, spokespeople for groups representing small employers as diverse as family vineyards and synagogues are expressing concern about the impact of this law on them.  So what does it really mean? Continue Reading

EEOC Presses Pause on Collection of EEO-1 Pay Data After This Year’s September 30 Reporting Deadline (US)

As we have previously reported here, companies with at least 100 employees must collect and report 2017 and 2018 employee pay data information, broken down by race/ethnicity, sex, and job category (“Component 2 data”) as part of their annual EEO-1 report. This Component 2 data remains due to be filed with the EEOC by September 30, 2019. Continue Reading

Sexual Harassment in the Workplace, Part 2 – what about third parties? (UK)

For the second in our series on sexual harassment in the workplace, we look at how the law as it currently stands protects individuals from sexual harassment by third parties such as visitors and customers.

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UK Business Immigration Update – Changes to the Immigration Rules Announced

On 9 September 2019, the UK government announced changes to the Immigration Rules, which go on for nearly 100 pages.

Read a summary of the key changes of most direct relevance to employers, sponsors and recruiters, and view the full Statement of Changes online.

In addition to these changes, there has been another important and very recent government proposal relating to Tier 4 international students for the 2020/2021 intake – that is, that they will be able to stay in the UK for two years beyond completing their course. It is understood that such students will be issued a two year post-study work visa without needing a job offer or an employer to sponsor them and without any restriction on the type of work they can do. Since 2012, most students graduating from a UK university have had just four months from the end of their studies to change visa category (i.e. into Tier 2, which carries minimum salary thresholds and other costs and administrative burdens, and arguably makes them unattractive recruits) or leave the UK. That is not a practice adopted by most of the countries with whom the UK competes for the best international students, and so this is a move to be welcomed from that perspective. We await full details of the scheme.

TUC’s new anti-discrimination proposals lack class (UK)

In the employment world, some legislative ideas just don’t work. Some have promise initially but don’t survive their first encounter with the real world – take a look at 2001’s Dignity at Work Bill, for example, to all outward appearances a brilliant spoof of a real piece of legislation but clearly written by someone with no actual experience of the workplace whatsoever. Other ideas make it into law but are by common and unspoken consent then broadly ignored, like employee shareholder status and (for those of a certain vintage) the Statutory Grievance and Disciplinary Procedures, both introduced to great fanfare and repealed in embarrassment and confusion very shortly afterwards. On the other hand, some ideas are so clearly and irretrievably doomed from the very moment of their conception that they do not deserve to see the light of day at all.

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When employee consent is the start of the problem, not the end – the GDPR shows some teeth

The Greek Data Protection Authority has imposed a 150,000 EUR fine on PriceWaterhouseCoopers Business Solutions SA for – get this – asking their employees’ consent to process their personal data. It may strike you as counterintuitive (and going against everything your mother ever told you) that asking consent could get you into trouble, but where personal data are concerned, so it would appear to be.

As you know, each data processing activity has to have a legal basis. The principles of lawful, fair and transparent processing of personal data under the GDPR require that consent only be used as a legal basis only where the other legal bases do not apply. Continue Reading

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