Workforce Bulletin

On July 21, 2017, New Jersey Governor Chris Christie vetoed legislation that would have amended the New Jersey Law Against Discrimination to prohibit employers from requesting salary history information from prospective employees.  The legislation had passed easily though the State’s Democratically controlled Senate and Assembly, with votes along party lines.  With the upcoming gubernatorial election in November, employers may expect to see the bill revived and quite possibly enacted – particularly if the next governor is a Democrat. The proposed amendment may be ...

Employers across all industries are deep in the midst of exciting but unchartered and fluid times. Rapid and unforeseen technological advancements are largely responsible for this dynamic. And while there is a natural tendency to embrace their novelty and potential, the reality is that these advancements are often outpacing our regulatory environment, our bedrock legal constructs, and, in some cases, challenging the traditional notions of work itself.

For employers, this presents numerous challenges and opportunities—from the proper design of the portfolio of the modern ...

Today marks the 27^th Anniversary of the Americans with Disabilities Act (ADA).  Unfortunately for businesses, two recent developments in the context of website accessibility suggest that there is no reason to celebrate and every reason to believe the ever-increasing wave of demand letters and lawsuits in this area will continue unabated.

First, in Lucia Marett v. Five Guys Enterprises LLC (Case No. 1:17-cv-00788-KBF), the U.S. District Court for the Southern District of New York has finally issued a decision directly speaking to the applicability of Title III of the ADA (Title ...

Our colleagues Katrina J. Walasik and Amy B. Messigian, at Epstein Becker Green, have a post on the Health Employment and Labor blog that will be of interest to many of our readers in the retail industry: “DFEH Publishes Materials to Assist Employers With Handling Harassment Allegations.”

Following is an excerpt:

The Department of Fair Employment and Housing (DFEH) recently released a brief, nine-page guide for California employers, which was prepared in conjunction with the California Sexual Harassment Task Force.  This guide is intended to assist employers in developing an ...

Our colleague Brian W. Steinbach at Epstein Becker Green, has a post on the Wage and Hour Defense Blog that will be of interest to many of our readers in the retail industry: “Tenth Circuit Rules Tips Belong to the Employer If Tip Credit Is Not Taken.”

Following is an excerpt:

When an employer pays the minimum wage (or more) instead of taking the tip credit, who owns any tips – the employer or the employee? In Marlow v. The New Food Guy, Inc., No. 16-1134 (10^th Cir. June 30, 2017), the United States Court of Appeals for the Tenth Circuit held they belong to the employer, who presumably can ...

On May 15^th, the Freelance Isn’t Free Act (“FIFA”) went into effect in New York City. The Department of Consumer Affairs (“DCA”) recently issued guidelines to help employers comply with the law.

Coverage and Immigration Status

FIFA protects all freelance workers regardless of their immigration status.

Contract Value Threshold

As previously explained, FIFA requires parties that retain freelance workers to provide any service where the contract between them has a value of $800 or more to reduce their agreement to a written contract. Under the DCA guidelines, the value of ...

This issue of Take 5 encapsulates the incredible breadth of societal changes and challenges facing the entire retail workplace. The topics addressed below reflect a microcosm of the many issues currently facing our overall society, covering growing political activism in the workplace, increasing expectations to accommodate religious beliefs, otherwise outrageous employee speech that may very well enjoy protection under the law, and the ever-increasing requirements for criminal background checks enacted piecemeal by states and cities. These extremely topical subjects ...

Chipotle recently obtained decertification of a conditionally certified collective action of salaried “apprentices” under Section 216(b) of the Fair Labor Standards Act (“FLSA”) in Scott et al. v. Chipotle Mexican Grill, Inc. et al., Case No. 12-CV-8333 (S.D.N.Y. Mar. 29, 2017), a case in New York federal court involving claims of unpaid overtime based on misclassification.  In that case, Chipotle effectively leveraged disparities between the job duties and activities of putative class and collective action members across six states to show that they were not ...

Employers often struggle to provide employees with their requested accommodations and to comply with disability laws while still effectively running their business. This struggle has been compounded with the Equal Employment Opportunity Commission’s aggressive pursuit of litigation in this area in recent years.  A New York federal court recently weighed in on the issue in Kelly v. Starwood Hotels & Resorts Worldwide, Inc., 15 Civ. 6309 (DLC), 2017 U.S. Dist. LEXIS 43485 (S.D.N.Y. Mar. 24, 2017), holding that an employer is only required to provide an employee with a “plainly ...

Howard Gerver is a self-proclaimed human capital data geek.  His “day job” specializes in finding innovative and practical ways to save money by identifying “golden nuggets” mined from Big HR Data sets, such as claims and human capital data.  A lot of this work includes analytics, claim auditing and eligibility auditing.  His “nights and weekend” job focuses on helping clients leverage their HR, Benefits, Leave and Time & Attendance data to help improve compliance with the Affordable Care Act (Obamacare).   Throughout his career, he has focused on improving the ...