New York Releases Package of Draft Model Policies for Employers and State Contractors in Response to Sexual Harassment Law Adopted in April 2018

On August 23, 2018, the New York State Department of Labor (“NYSDOL”) released written guidance addressing new requirements under New York State law that are designed to prevent sexual harassment in the workplace.  The material outlines proposed minimum standards, training requirements and other compliance materials for the new state law.  This release comes as the October 9, 2018 deadline for compliance approaches for all employers in the state as well as for state contractors, who must comply by Jan 1, 201,9 as part of a comprehensive sexual harassment law passed earlier this year.  (See our prior blog regarding this topic here.)  The draft templates are open for public comment until September 12, 2018, after which the NYSDOL will review comments, make any revisions it deems necessary, and release final versions of these materials.  The documents just released by the State include a model sexual harassment prevention policy, a model sexual harassment training script; a model sexual harassment complaint form; additional explanations of employers’ legal obligations, and FAQs concerning compliance with the new statutory requirements. (These documents can be accessed here.)  The documents have been released in draft form, but employers can anticipate that the State will finalize the published documents shortly before the law’s October 9 effective date. Continue Reading

California Legislature Passes Bill Prohibiting Arbitration Agreements and Non-Disclosure Agreements Regarding California Employment Law Claims

On August 22, 2018, the California State Senate passed AB 3080, which, if signed into law by Governor Jerry Brown, would invalidate two types of commonly-used employment contracts that have been the subject of significant dialogue in the vast wake of the #metoo movement.

First, the bill proposes to prohibit employers from requiring employees to sign any agreement as a condition of employment or employment benefit that bars them from:

  • disclosing an instance or other facts pertaining to claims of sexual harassment about which the employee is aware,
  • opposing unlawful employment acts,
  • participating in investigations or other proceedings regarding unlawful discrimination or harassment, or
  • exercising any other right or obligation pertaining to claims of unlawful harassment or discrimination.

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NLRB Clarifies Key Developing Issues for Union and Non-Union Employers (US)

As most union and non-union employers know, the National Labor Relations Board has updated its standards in several respects over the past year. For some of these updates, the Board has not comprehensively clarified how far they extend or when they apply. In an effort to help clarify employers’ obligations, the Board’s top prosecutor, General Counsel Peter Robb, recently issued several “advice memoranda” explaining how his office views certain developing issues. Although these memos are not binding law, they show how Board attorneys and regional officials will interpret several important issues. Continue Reading

State Law Round-Up: New Sick Leave, Sexual Harassment Laws and Other State Law Developments (MA, MD, MN, NJ, NYC, TX, VT)

Massachusetts Imposes One-Year Cap and Other Restrictions On Non-Compete Agreements

The Massachusetts Noncompetition Agreement Act (see link, at Section 24L) (“MNAA”) effective October 1, 2018, places new restrictions on the length and applicability of non-compete agreements between employers and employees who work within the state of Massachusetts. (Note that the law defines employees to include independent contractors.) Post-termination non-competes are prohibited for (1) non-exempt employees, (2) employees who are terminated without cause (including as a result of a layoff), (3) interns and (4) minors. Continue Reading

Hot air from ACAS on the UK heat wave

If you have been one of the many wilting at work in the Great British Heatwave of 2018 (or what I believe many other countries just call “summer”), panic not – Acas has issued new guidance to help ease your working day.

Or not. Including such gems as “check with your local train company” to see if the hot weather will affect your journey to work, and the priceless “if you have air conditioning, switch it on”, it is hard to believe that any of these recommendations will revolutionise anyone’s heat wave experience, or that there are employers out there who won’t have taken these steps anyway to protect their staff as a matter of course. Besides, my local train company has no need at all of hot weather as a pretext to “affect my journey to work”.

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Social Security Administration to Resume Social Security Mismatch Letter Notification Program in 2019 (US)

The Social Security Administration (“SSA”) recently announced that in 2019, it will restart its mismatch letter notification program.  Through “mismatch” letters, formally titled “Employer Correction Requests,” the SSA notifies employers that the social security number (“SSN”) and name reported for one or more employees does not match SSA records.  These notification letters advise employers that a SSN mismatch is not an assumption of SSN falsification or other misconduct.  Mismatches can be caused by typographical errors, unreported name changes, incomplete records, or SSN misuse.  In any event, employers who receive such letters must act promptly and are advised to document the steps taken to resolve the discrepancy.  Continue Reading

Upcoming NLRB Developments Should Significantly Affect Employer Property Rights and the Processing of Unfair Labor Practice Charges (US)

Over the last week, the National Labor Relations Board has sent signals that it will significantly change how it addresses certain employer property rights and processes unfair labor practice charges. Although these developments concern relatively nuanced issues, they likely will affect both union and non-union employers in important ways. Continue Reading

Practical Guide to the GDPR – Part 8

Part 7 of this series looked at how far an employer might be exposed if employees whose images were used in internal or external marketing or other corporate communications then withdraw their consent to that processing.

Our Global IP and Technology team has now provided some useful further thoughts on this risk, accepting that the practical import of the new law in this area remains unclear, but offering some guidance in the meantime.

Essentially, the team recommends that you make your use of the employees’ images the subject of free-standing contracts to run in parallel with the employment relationship. So what would that separate contract look like? Remember that GDPR consent must be “freely-given, specific, informed and unambiguous”, so ideally it would:-

  • be in writing for obvious evidential purposes;
  • specify (perhaps even attach) the particular images to be used. Only the least self-aware among your staff will be happy with indiscriminate use of shots of them yawning, frowning or wearing the arresting green pallor of the morning after a night on the tiles;
  • identify where those images will be used (website, brochure, marketing flyer, etc.) and in conjunction with what text or other images;
  • identify also to whom those materials will be distributed (job candidates, existing employees, potential customers, general public, etc.) and in the case of hard copies, in approximately what numbers;
  • make clear for how long the images will be used – only until a particular date or product launch, for example – but noting that hard copies of brochures already in circulation at that time cannot and will not then be traced or recalled;
  • perhaps offer some notional payment to the employees to reinforce to them the significance of the consent being given. However, do note that the making of a payment does not override the employees’ GDPR rights to withdraw consent, nor (as the IPT blog makes clear) does it give the employer any realistic rights of recourse against the employees if they choose to do so. You could provide that the employees might withdraw consent at any time on the repayment of a pro-rated part of that sum, but if that is still a number significant enough to act as a deterrent to withdrawal, you have almost certainly paid far too much to start with;
  • if the agreed duration of use of the images is lengthy, and the hard copies of them are produced in batches, then perhaps provide the employee with a right to withdraw consent on a certain period of notice in the interim, allowing the employer a reasonable opportunity to use up existing stocks of hard-copy materials and to replace the relevant digital images without rush; and
  • last, an express acknowledgement by the employees that their entering a parallel contract was voluntary and that they had not been placed under any pressure or threat to do so.

Sweating the small stuff – proposed expansion of gender pay reporting regime (UK)

So now the House of Commons Business Energy and Industrial Strategy Committee has recommended the extension of Gender Pay Gap reporting to employers with over 50 staff, a colossal expansion from the 10,000 or so businesses caught by the current minimum 250 employees requirement. When those smaller businesses turn their attention to compliance with those Regulations, what will they find awaits them? Without in any way seeking to undermine the very worthy objectives of the GPG Regulations, here are my thoughts:-   Continue Reading

Mind the gap – tips for your next gender pay report (UK)

At present there is no legal obligation to do anything more with your pay gap than publish it on your website, not necessarily accompanied by any form of explanation or other comment at all. Most employers caught by the current gender pay gap regulations (about 10,000 of them) have added some form of narrative, but these vary very widely in terms of length, style and in particular, statements of intention to do anything concrete about it.

We will soon be approaching the point where the first generation of GPG reports need to be updated, so what can you say you have done or will do to address your pay gap? Continue Reading