Workforce Bulletin

Just hours after it became clear that Donald Trump would be returning to the White House, the majority Democratic National Labor Relations Board (“NLRB”) showed no signs of slowing down its efforts to implement the Biden Administration’s pro-labor agenda before January 20. In its latest decision the Board severely curtailed what types of statements employers can make to employees when pointing out the legal and practical effects of unionization.

On November 8, 2024, the NLRB issued a decision in Siren Retail Corp. d/b/a Starbucks, 373 NLRB No. 135, which overturned long-standing case law Tri-Cast, Inc., 274 NLRB 377 (1985). Under Tri-Cast, the Board held that it was lawful for employers to accurately explain that a union’s certification as the collective bargaining representative of employees would change the relationship between the employer and its employees, holding that, “there is no threat, either explicit or implicit, in a statement which explains to employees that, when they select a union to represent them, the relationship that existed between the employees and employer will not be as before,” regardless of “the truth or falsity of the parties campaign statements.” Tri-Cast, 274 NLRB 377, 378 (quoting Midland National Life Insurance Co., 263 NLRB 127, 133 (1982)).

On November 21, 2024, legislation will take effect in South Carolina, making that state the latest jurisdiction to regulate earned wage access (EWA) programs. EWA programs are generally targeted towards lower-wage earners, allowing employees to obtain a portion of their paycheck before the employer’s scheduled payday. While EWA can be a lifeline for employees living paycheck to paycheck, consumer advocates worry that hidden and not-so-hidden fees associated with such programs could increase users’ aggregated debt, to the detriment of their long-term financial well-being.

To combat such concerns, states have begun to implement rules requiring employers and third parties offering EWA programs to abide by certain standards. States differ, however, on whether payroll advances though EWA programs should be treated as loans. Categorizing EWA advances in this way obligates employers and third-party providers to abide by a complex set of banking regulations. Thus, it is important for employers that offer or are considering an EWA program to understand the implications, which vary depending on the states where the employer does business.

How EWA Programs Work

Advances under EWA programs are either provided directly by employers as a benefit to employees or by third-party providers directly to consumers. If an employee opts to advance a portion of their paycheck through an employer-provided program, the employer or payroll provider reduces the subsequent paycheck amount on payday to recover the advance. If an employee enrolls in an EWA through a third-party provider, the provider removes the advanced amount from the employee’s direct deposit account on payday.

As featured in #WorkforceWednesday: This week, on our Spilling Secrets podcast series, our panelists outline the benefits of intellectual property (IP) audits and trade secret assessments for employers and organizations looking to safeguard their assets.

Beyond Non-Competes: IP and Trade Secret Assessment Strategies for Employers

With non-compete agreements facing continual legal pressure, what are some other ways employers can protect their trade secrets and IP?

In this episode of Spilling Secrets, Epstein Becker Green attorneys Daniel R. Levy, Gregory J. Krabacher, and Hemant Gupta describe how IP audits and trade secret assessments can offer a uniquely targeted approach to protecting sensitive information, ensuring a company has a grasp of the full scope of their assets.

New Jersey has joined the growing ranks of jurisdictions that have enacted pay transparency laws. Senate Bill 2310 (“the Law”) was enacted on November 10, 2024, and approved on November 18, 2024 as Public Law 2024, chapter 91. The Law will take effect on June 1, 2025, i.e., “the first day of the seventh month next following the date of enactment,” and will require most New Jersey employers to disclose a wage or salary range and a general description of benefits and other compensation programs in their job postings and advertisements. The Law also will require covered employers to make “reasonable efforts to announce, post, or otherwise make known opportunities for promotion” to current employees, a feature that is not common in similar laws enacted by other jurisdictions.

Covered Employers

The Law applies to any employer that has 10 or more employees over 20 calendar weeks and does business, employs persons, or takes applications for employment within the state.

Note that employers in Jersey City with five or more employees within Jersey City are already required to comply with that city’s ordinance mandating the disclosure of salary information in postings. This ordinance remains in effect, which means that Jersey City employers with five to nine employees that will be exempt from the state’s law must still comply with the city’s law.

With 2024 winding down, New York employers should be aware of the updates to the New York State Paid Family Leave (PFL) program that take effect in 2025.

As a reminder, PFL allows eligible employees to take up to 12 weeks of job-protected, partially paid time off within a 52-week period for permitted reasons, such as to bond with a newborn, care for a family member with a serious health condition or assist when a family member is deployed abroad on active military service.

As we noted in a bulletin post last year, New York has modified its program several times since establishing PFL in 2018. While PFL’s changes for 2025, as explained below, are ministerial, it should be noted that New York recently expanded other mandatory benefits, including the provision of paid lactation breaks and the addition of paid leave for prenatal care under the New York paid sick leave program. 

On Election Day 2024, voters in six states weighed in on ballot initiatives that addressed several employment law topics. Among these were propositions to change state minimum wages and mandate paid sick leave for workers. The outcomes were mixed.

Alaska

In Alaska, voters passed by a narrow margin Ballot Measure 1, which will increase the state’s minimum wage from the current rate of $11.73 per hour to $13.00 per hour on July 1, 2025. It will subsequently rise to $14.00 per hour on July 1, 2026, and $15.00 per hour on July 1, 2027. Increases thereafter will be calculated based on inflation.

Ballot Measure 1 included other provisions affecting workplaces. Its passage means that many employers will need to comply with new paid sick leave requirements. Starting July 1, 2025, eligible employees will accrue a minimum of one hour of paid sick leave for every 30 hours worked and will be allowed to use at least 40 and up to 56 hours of accrued paid sick leave annually, depending on how many employees work for their employer.

A third portion of Ballot Measure 1, also effective July 1, 2025, prohibits so-called “captive audience” meetings. The new law will prohibit employers from retaliating against employees who refuse to attend company meetings about political or religious topics.

As featured in #WorkforceWednesday®: This week, we're analyzing how the upcoming Trump administration may affect National Labor Relations Board (NLRB) policies and enforcement priorities promoting union activity, recent court decisions on union protections, and high-profile strikes and evolving worker demands.

As featured in #WorkforceWednesday®: This week, we’re underlining the importance of managing election-related tensions in the workplace.

Both political parties have called this the most consequential election in recent history, which means that this morning in your workplace, some employees are celebrating, and others might be feeling hurt, disappointed, or maybe even fearful. What can employers do to help?

Epstein Becker Green attorneys Susan Gross Sholinsky and Michael S. Ferrell outline proactive strategies employers can adopt to prevent potential workplace incidents and describe protections surrounding political speech, as governed by laws like the National Labor Relations Act.

California continues to be the birthplace of ideas that complicate employment laws. True to form, it is the first state to adopt the concept of intersectionality in its anti-discrimination statutes.

On September 27, 2024, Governor Newsom signed Senate Bill 1137 (SB 1137) into law. This legislation amends several provisions of existing California law to clarify that unlawful discriminatory practices may include “any combination” of protected characteristics or traits – not just a single one. 

Of particular importance to companies: SB 1137 thus modifies  the Unruh Civil Rights Act, which prohibits discrimination by business establishments, and California’s Fair Employment and Housing Act (FEHA), which prohibits harassment and discrimination in employment. The updates to these laws will take effect on January 1, 2025.

Lam v. University of Hawaii

While SB 1137 is the first statutory law of its kind, the concept of intersectional discrimination is not new. Thirty years ago, the United States Court of Appeals for the Ninth Circuit addressed this challenge. In Lam v. University of Hawaii, a woman of Vietnamese descent filed a lawsuit against the University of Hawaii Richardson School of Law, alleging that the law school violated Title VII of the Civil Rights Act of 1964 by discriminating against her on the bases of her race, sex, and national origin. Lam had applied but was twice rejected from the law school’s Pacific Asian Legal Studies Program.

Election Day is Tuesday, November 5. During this election season, employers may question whether the law requires them to allow employees time off to vote, often referred to as “voting leave”, and if so, whether such leave is paid. Perhaps just as urgently, employers may need to manage workplace political talk and potential consequences.

The short answer about voting leave is the same lawyers often give: it depends! Most states and many local jurisdictions have their own laws addressing voting leave and related rights. This article is not a comprehensive, state-by-state guide, and employers should check applicable laws in their jurisdictions when in doubt. Instead, this overview is a reminder of potential issues and best practices to ensure a safe and legally sound workplace in the days before and after Election Day.

Voting Leave

State and local laws on voting leave impose varying obligations on employers. Employers should review the applicable state laws and regulations of every jurisdiction in which they have employees. To highlight a few:

• California: if an employee doesn’t have sufficient time outside of working hours to vote, the employee may take off enough working time that, when added to the voting time available outside of working hours, will enable the employee to vote. Up to two hours of working time off must be without loss of pay. The time off can be at the start or end of the working shift. If the employee knows in advance that time off will be necessary to vote, the employee must give the employer at least two working days’ notice. Note that the law requires employers to post a notice to employees advising them of their rights regarding voting leave.