Category Archives: New and Recent Legislation

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Are Independent Contractor Classifications Becoming “Safer”? In a Word – No.

Safer
As we will describe in this and its companion article, if you are an employer viewing such classifications optimistically in light of some recent legal developments, you should do so fully aware of the attendant perils. One might be excused for thinking (from an employer-biased point of view) that the independent contractor minefield might be … Continue reading this entry

Notwithstanding Trump’s Efforts to Narrow Joint Employment Liability, Businesses Need to Remain Vigilant When Using “Independent Contractors”

Independent
As we have focused on in this week’s articles, it is no secret that the current administration is pushing much more pro-business policies compared to the Obama administration. For example, as we previously wrote about, federal agencies under Trump’s administration have taken steps and issued guidance aimed at narrowing the circumstances under which a business … Continue reading this entry

Labor Board Moves to Clear the Confusion on Joint Employment

Independent
On Friday, September 14, 2018, the National Labor Relations Board (NLRB) issued its Notice of Proposed Rulemaking in the latest attempt to address the “joint employer” standard under the National Labor Relations Act. The proposed rule states that a separate entity will be considered a joint employer “only if the two employers share or codetermine … 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

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

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

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

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

California Changes the Rules for Calculating Overtime on Employee Bonuses

Off-the-clock
The California Supreme Court just threw employers a serious curveball with respect to how employers must calculate overtime. And it did so by claiming employers should have known of this calculation method even though the same California Supreme Court declared it void over 20 years ago.… Continue reading this entry

NLRB Reverses Obama-Era Joint Employer Test

Reverses
Over the course of one afternoon, the National Labor Relations Board (NLRB) issued two significant decisions that together overturned several of the Obama administration’s most polemic legal positions under the National Labor Relations Act (NLRA). Here we discuss the NLRB’s decision to overturn the 2015 Browning-Ferris Industries case.  In Browning-Ferris, the NLRB adopted an expansive … Continue reading this entry

NLRB Delivers Holiday Gift to Employers in the Form of New Standard for Workplace Civility Rules

Labor
As explained in this companion article, the National Labor Relations Board (NLRB) gave employers an early holiday gift with its reversal of the Obama-era joint employer test. But the Board had even more holiday cheer to spread to employers.  On December 14, it overruled its 2003 decision in Lutheran Heritage Village – Livonia.… Continue reading this entry

Is Your Background Check Too Broad? New D.C. Law Bans Requests for or Use of Credit Information

Background
Credit information is often one component of a comprehensive employment background check. As we have previously reported, employers utilizing background checks performed by a credit reporting agency are subject to a number of notice, consent, and other requirements under the Fair Credit Reporting Act (FCRA).   A new D.C. law goes even further than the FCRA, … Continue reading this entry

Expanded Joint Employer Standard Under Attack; What Employers Should Do in the Meantime

Joint Employer
It appears that the days of expanded joint employer liability may be numbered, as the National Labor Relations Board’s (NLRB) 2015 Browning-Ferris decision comes under attack on multiple fronts.… Continue reading this entry

Seventh Circuit Could Up-End Approach to Sexual Orientation Discrimination

EEOC Developments
On November 30, 2016, all of the judges of the Seventh Circuit Court of Appeals (covering Illinois, Indiana, and Wisconsin) reheard a case that could change the way federal courts treat sexual orientation-based discrimination claims. As is typical for the federal appeals courts, the case (Hivey v. Ivy Tech Community College) had already been decided … Continue reading this entry

No Stay for Other Pay-Related Regulations

Wage and Hour
A trio of recent court decisions staying implementation of the controversial persuader rule, most of the much-criticized Fair Pay and Safe Workplaces (“FPSW”) executive order, and the Department of Labor’s highly publicized overtime rule are a breath of fresh air for employers who have been struggling to keep up with the onslaught of new regulatory … Continue reading this entry

What Will Happen When the Smoke Clears? Post-Election HR Strategies for 2017 and Beyond

Trade Secrets
The long and contentious presidential campaign is over.  So, now what?  What does President-elect Trump’s victory mean for employers? To explore this question, Foley and Lardner LLP’s Labor & Employment Practice group hosted a webinar titled “What Will Happen When the Smoke Clears? HR Strategies for 2017 and Beyond” on November 10, 2016.  The team … Continue reading this entry

Think Twice Before Making Payroll Advances to Employees

Employer
It can be difficult to turn down an employee who asks for an advance on their earnings. However, there are lots of reasons for companies to think twice before making payroll advances to employees. One big and obvious reason is the administrative burden. Another is the possibility that the advances will be subject to the … Continue reading this entry

The DOL's New Rx for Federal Contractor Employees

We have reported time and time again on the national trend of mandating paid sick leave for workers. As we noted last March, in a 2015 Executive Order, President Obama directed the U.S. Department of Labor (DOL) to issue regulations requiring federal contractors to provide paid sick leave to their employees. The DOL issued a final rule … Continue reading this entry

Two Lawsuits Hope to Put the Brakes on Overtime Rule Changes

Wage and Hour
With a December 1 deadline looming, millions of employers across the country are scrambling to implement new compensation and classification practices in response to the U.S. Department of Labor’s (DOL) new overtime rule, announced in May. This past Tuesday, a duo of federal lawsuits was filed in Texas as a response to strong objections from … Continue reading this entry

Department of Labor Appeals "Persuader Rule" Order

As employers may be aware, on March 24, 2016, the Office of Labor-Management Services (OLMS), an agency in the federal Department of Labor (DOL), issued a new interpretation of the so-called “Persuader Rule” that would have imposed significantly expanded reporting obligations on employers, consultants, and attorneys during union organizing and similar activities.  OLMS “reinterpreted” its … Continue reading this entry

Governor Kasich Legalizes Marijuana After Boy Band Member Could Not

In case you missed it, Ohio Governor John Kasich signed a bill last month making Ohio the 25th state to legalize medical marijuana. This change in the law (effective September 8, 2016) comes following a failed Ohio ballot initiative in November 2015 to legalize both medical and recreational marijuana, backed by celebrity investors such as … Continue reading this entry

Wisconsin Evens the Score by Becoming the Twenty-Fifth Right-to-Work State — So What Happens Now?

Wisconsin’s Legislature passed a “right-to-work” (RTW) law on Friday, March 6, 2015, and Wisconsin Governor (and possible presidential candidate) Scott Walker promptly signed the bill into law today. Wisconsin has now become the nation’s twenty-fifth state to exercise the option to have a right-to-work law. This article provides a brief summary of the law and … Continue reading this entry

Congress Renews Its Battles Over Workplace Rights and Obligations

With Republicans now controlling both houses of Congress, we can expect to see the introduction — or reintroduction — of various pieces of legislation largely designed to advance the agenda of the majority party on issues affecting the American workplace, as well as blunt the ambitions of President Obama and the Democrats in that same … Continue reading this entry