Category Archives: Human Resources/ Employer Matters

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Termination Documentation

Termination
When terminating an employee, an employer should create documentation showing the reason for and circumstances relating to the termination. The documentation serves two purposes. First, it helps the employer remember why it terminated the employee, especially in situations where the original decision makers are no longer with the employer. Second, it will help the employer … Continue reading this entry

Massachusetts Legislature Passes Comprehensive Noncompetition and Trade-Secrets Reform

noncompetition
The Massachusetts General Court has passed legislation that, if signed by the governor, will comprehensively reform the law governing employee noncompetition agreements and trade-secret misappropriation. If enacted, these laws will become effective October 1, 2018, giving Massachusetts employers only two months to assess their current practices and adapt to the new laws.… Continue reading this entry

California Supreme Court Says Employers Must Pay for Several Minutes of Off-the-Clock Work

Off-the-clock
Last Thursday, July 26, the California Supreme Court issued an opinion concluding that coffee retailer Starbucks must pay its employees for off-the-clock duties that take several minutes per shift. In issuing its opinion, the Court rejected Starbucks’ request to invoke a federal wage rule (known as the de minimis doctrine) that excuses employers from paying … Continue reading this entry

Online Forum Activity = Protected Concerted Activity

online
Much can be (and has been) made about the newly constituted National Labor Relations Board overturning many precedents of the prior Board, which was largely appointed by President Obama. Nonetheless, even with a more “conservative” (i.e., pro-employer) Board, some employers still cross the line. In one recent case, it all came down to what an … Continue reading this entry

The Heat Is On: Is Your Company in Compliance with State Sun and Heat Worker Protections?

heat
With summer in full swing and heat waves sweeping the country, it is important that employers comply with any state regulations protecting employees who work outdoors from suffering from heat-related illnesses. Just last week, with the National Weather Service issuing excessive heat warnings for California, Cal/OSHA reminded all employers with outdoor workers to be mindful … Continue reading this entry

Invention Assignment Agreements – How to Avoid Pitfalls

invention
Intellectual property assets are the lifeblood of many businesses today. No employer wants to see those assets walk out the door when an employee leaves. Employee invention assignment agreements are one crucial tool for protecting intellectual property, but the laws governing them contain traps for the unwary. If the agreement is too narrow or ambiguous, … Continue reading this entry

Good News for Private Employers in California: Federal Court Temporarily Enjoins Several Provisions of New Law Prohibiting Cooperation with Immigration Enforcement Agents

immigration
Private employers received good news this month when a federal court temporarily stopped the state of California from enforcing most of a new law that restricts an employer’s ability to cooperate with officers who enforce federal immigration laws. This new California law is known as Assembly Bill 450 or the “Immigrant Worker Protection Act”.  It … Continue reading this entry

No Summer Break for New York State’s and New York City’s Anti-Sexual Harassment Protections

New York
With the summer (and many vacations) now in full swing, it would be easy for employers to miss the anti-sexual harassment protections that were added to the New York Civil Practice Law and Rules (NY CPLR) and New York’s General Obligation Law, effective July 11, 2018, as well as the additional training, policy and other … Continue reading this entry

How Do I Report Non-Qualified Plan or Severance Payments to a Former Employee? Hint: You Should Probably Use a W-2, Not a 1099!

Payments
Employers commonly make payments to former employees for a number of reasons. Two of the more routine payments are those from a non-qualified deferred compensation plan (such as payments from a supplemental executive retirement plan or a 401(k) restoration-type plan) or pursuant to a severance arrangement, and sometimes both. (Other termination- or settlement-type payments, such … Continue reading this entry

Employers Are Allowed to Choose Alternative Reasonable Accommodations if Effective

Reasonable
Employers generally understand their obligation to provide a reasonable accommodation to qualified individuals with disabilities as required under the Americans with Disabilities Act (ADA), as well as a number of state and local laws. A recent federal court case reminds employers that they may choose among reasonable accommodations and that as long as the selected … Continue reading this entry

When is a “Bonus” Really a “Commission”? A Helpful Reminder to Ensure Your Pay Plans Comply with State Laws

Commission
In the past, we have highlighted some of the legal risks of employing commission-based employees, as well as some of the methods for limiting those risks.  A new court decision out of Illinois provides a good reminder that vaguely described policies and restrictive payment rules can expose employers to large liabilities.… Continue reading this entry

Do You Really Need to go to That Seminar?

Seminar
With only a few exceptions (e.g., harassment training in California), employment-related training is voluntary, not mandatory.  We all have so many demands on our time and not enough time in the day to meet them.  As an HR professional, sometimes the last thing you want to do is go to another seminar about harassment, or … Continue reading this entry

Are Unions Facing the Eve of Destruction? Supreme Court Outlaws Agency Fees in the Public Sector

Since dues are the lifeblood of all labor unions, it wouldn’t be surprising to find the leadership of the American labor movement singing a refrain from a 1960’s protest song: “my friend . . . we’re on the eve of destruction.” As was widely expected, on Wednesday, June 27, 2018, the U.S. Supreme Court issued … Continue reading this entry

Looking at an Expanding Landscape: Multiemployer Plan Withdrawal Liability

withdrawal
If an employer withdraws from a multiemployer pension plan such that the employer no longer has an obligation to contribute to the plan, the withdrawing employer is generally responsible for its share of the plan’s underfunding. This is referred to as withdrawal liability. Typically, in the context of an asset sale transaction, the seller is … Continue reading this entry

Massachusetts Poised to Become the Latest State Offering a Paid Family Leave Program

noncompetition
The Paid Family Leave trend is gathering speed in states around the country. Currently, California, New Jersey, New York, Rhode Island, and Washington have paid family leave programs, as does Washington, D.C. Unlike state and municipal sick leave laws, the paid family leave programs generally are administered by the state, not the employer. Many of … Continue reading this entry

Pay Equity Law Update

Pay
New Connecticut Pay Equity Law On May 22, 2018, Connecticut Gov. Dannel P. Malloy signed Public Act No. 18-8, “An Act Concerning Pay Equity,” into law. The new Connecticut law follows a recent trend by states to enact laws prohibiting employers from seeking salary history from prospective employees. Connecticut now joins California, Delaware, Massachusetts (see below), … Continue reading this entry

It’s a Topsy-Turvy Workplace – Right Now, Common Sense is on Top

Common
Breaking news – sometimes agency guidance, or even enforcement positions, change! A recent example comes from the National Labor Relations Board (NLRB) with its June 6, 2018, memorandum regarding “Guidance on Handbook Rules Post-Boeing.” While the lack of consistency can be frustrating for employers, there is good news this time: Common sense seems to have … Continue reading this entry

Details Matter: Medical Plan Anti-Assignment Clauses Protect Employers

Details
Yes, details matter. This is true on many fronts, including whether the documents governing the medical plan offered to employees prohibit employees and their dependents from assigning their plan benefit rights to a health care provider.… Continue reading this entry

Complying with Hardship Withdrawal Rules Makes Retirement Plan Administration Easy (Well, Easier, Anyway)

Retirement
In a February 2018 article, my colleague Kathleen Dreyfus Bardunias encouraged retirement plan sponsors to implement annual “operational checkups” in order to ensure their plans were administered in compliance with the plan’s terms and applicable law. That article described various retirement plan administration errors that review might uncover, including: failing to timely deposit employee contributions, … Continue reading this entry

Summer (and with it, summer vacations) is coming!

Summer
As we head into the start of summer and employees begin to request more time off for vacation, this is a great time to review your vacation policies to ensure they are legally compliant and meet business needs. With the exception of certain state or local paid sick leave laws, employees generally do not have … Continue reading this entry

You Have a Creative Genius in the Workplace. Who Owns the Creative Works?

Creative
The cardinal principle of copyright law is deceptively simple. It protects a creative work as it passes from the fevered brow of its creator to something more tangible – a writing pad, an electronic manuscript, a sound recording, a stone tablet, etc., and, at that moment, ownership vests in the creator. But, of course, deceptively … Continue reading this entry

“High” Stakes for Employers Dealing With Evolving Cannabis Laws

Marijuana
The evolving legalization of marijuana for both medical and recreational uses continues to cause workplace issues for employers. Nine states and the District of Columbia have legalized recreational marijuana, and 32 states have legalized medical marijuana under varying circumstances. In addition, three more states have 2018 ballot initiatives considering either recreational or medical marijuana uses.  … Continue reading this entry

Supreme Court Ends the Debate and Upholds Class Action Waivers

Waivers
Welcome news for many employers rolled out of Washington, D.C. earlier this morning. The Supreme Court has ended a long-running debate over the enforceability of arbitration agreements with class action waivers in the employment context, particularly as applied to the wage and hour class action litigation. In short, such waivers are enforceable and do not … Continue reading this entry

Intermittent FMLA Leave is So Easy to Administer. Yeah, Right!

FMLA
Block FMLA leave has its own challenges. But intermittent FMLA leave can be downright painful – including the fact that intermittent leave claims are the most common type of lawsuit under the FMLA. When employees need to take scheduled time off for an entire day, week, or even month, an employer has more notice and … Continue reading this entry