Workforce Bulletin

On May 13, 2020, New Jersey Governor Phil Murphy issued Executive Order 142 , which allows for the resuming of non-essential construction projects (subject to certain conditions and restrictions), the reopening of retail businesses (curbside pickup only) and permitting public gatherings of more than 10 people so long as attendees stay in closed (or socially distant) vehicles.   Some of the provisions of Executive Order 142 take effect immediately, and others at 6:00 a.m. on Monday, May 18, 2020.

Non-Essential Construction

Previously, Gov. Murphy permitted the operation of ...

New Jersey Governor Phil Murphy and Superintendent of the State Police Colonel Patrick Callahan (who also acts as the State Director of Emergency Management) issued orders this week lifting some closures and reiterating or clarifying others, as follows.

Administrative Order 2020-10

On April 27, 2020, in Administrative Order 2020-10 (“A.O. 10”) , Col. Callahan clarified and amended Executive Order 107 (which we wrote about here).  A.O. 10, which became effective immediately, permits the reopening of certain business operations now deemed “essential retail business,” ...

Our colleagues Jeffrey H. Ruzal and Carly Baratt at Epstein Becker Green have recently published a post on the Wage and Hour Defense blog that will be of interest to our readers in the retail industry: “Latest Department of Labor Opinion Letter Addresses the FLSA’s Retail/Service Establishment Employee Exemption.”

Following is an excerpt:

As background, FLSA Section 7(i) exempts a retail or service establishment employee from the FLSA’s overtime pay requirements if (i) the employee’s regular rate of pay exceeds 1.5 times the federal minimum wage for ...

The U.S. Department of Labor’s Wage and Hour Division (“WHD”) continues to issue guidance at a rapid pace, releasing a new opinion letter regarding the retail or service establishment overtime exemption under the Fair Labor Standards Act (“FLSA”).  The letter brings clarity to a recurring issue affecting retailers.

FLSA Section 7(i) Exemption

As background, FLSA Section 7(i) exempts a retail or service establishment employee from the FLSA’s overtime pay requirements if (i) the employee’s regular rate of pay exceeds 1.5 times the federal minimum wage for any week ...

This edition of Take 5 highlights compliance with cutting-edge issues—such as pay equity, workplace violence, and artificial intelligence (“AI”)—that have a significant impact on retailers. We also provide an update on National Labor Relations Act (“NLRA”) compliance and New York City drug testing to assist you in navigating an increasingly complex legal landscape.

Watercooler (and Bathroom) Conversations Among Co-Workers About Work-Related Matters Are Not Always Protected Concerted Activity Under the NLRA

RyAnn M. Hooper

Historically, a conversation ...

Please join Nathaniel M. Glasser, Elizabeth K. McManus, Jeremy M. Brown, and Joshua A. Stein for an engaging and informative discussion of topical labor and employment issues facing all retailers. The presenters will address cutting-edge employment matters and share best practices in a private forum in which all attendees can freely participate, exchange insights, and network with colleagues.

Topics will include:

Artificial Intelligence for Recruiting and Selection
We will discuss the legal and practical implications of the various types of artificial intelligence (AI ...

Our colleagues Jeff Landes, Jeff Ruzal, and Adriana Kosovych are featured on Employment Law This Week - Predictive Scheduling Laws, the New Normal? - Deep Dive Episode speaking on predictive scheduling laws and the impact on business. Taking the guesswork out of scheduling for wage workers is an attractive proposition for regulators. Laws that require employers to publish employee work schedules a certain amount of time in advance so that employees (especially those in the hospitality and retail industries) can have greater flexibility and work-time predictability to deal ...

On February 4, 2019, a divided panel of the California Court of Appeal issued their majority and dissenting opinion in Ward v. Tilly’s, Inc.  It appears to be a precedent-setting decision in California, holding that an employee scheduled for an on-call shift may be entitled to certain wages for that shift despite never physically reporting to work.

Each of California’s Industrial Welfare Commission (“IWC”) wage orders requires employers to pay employees “reporting time pay” for each workday “an employee is required to report for work and does report, but is not put to ...

Massachusetts is one of many states which have adopted legislation, commonly known as a “ban the box” law, prohibiting public and private employers from requesting criminal record information in a prospective employee’s “initial written employment application” and limiting the type and scope of questions an employer may ask a candidate following receipt of an “initial written employment application.” Yesterday, Massachusetts Attorney General Maura Healey announced that her office has settled with four businesses and issued warning letters to 17 others for ...

Because of concerns about employee theft, many employers have implemented practices whereby employees are screened before leaving work to ensure they are not taking merchandise with them.  While these practices are often implemented in retail stores, other employers use them as well when employees have access to items that could be slipped into a bag or a purse.

Over the last several years, the plaintiffs’ bar has brought a great many class actions and collective actions against employers across the country, alleging that hourly employees are entitled to be paid for the time they ...

It is no secret that California’s wage-hour laws are complex and often raise questions that employers, employees and the courts struggle with. As we wrote here more than a year ago, faced with questions regarding California’s ambiguous “day of rest” laws, the Ninth Circuit Court of Appeals threw up its hands and asked the California Supreme Court to clarify those laws.

Among the questions to be answered was one that impacts a great many employers, particularly those in the retail and hospitality industries – does the requirement that an employee be provided a “day of ...

In the new issue of Take 5, our colleagues examine five employment, labor, and workforce management issues that will continue to be reviewed and remain top of mind for employers under the Trump administration:

• Change in Labor Landscape Is Not Likely to Come Quickly

• For Wage and Hour Changes, Look Locally

• Employer Group Health Plans Post-ACA: What’s Next for Employers and Workers?

• Examination of Retirement Plans Under a Trump Administration Microscope

• Cyber Threats Are Front and Center for Employers as the Trump Administration Takes Office

A new Act Now Advisory will be of interest to many of our readers in the retail and food service industries: "Union Organizing at Retail and Food Service Businesses Gets Boost from New York City 'Labor Peace' Executive Order," by our colleagues Allen B. Roberts, Steven M. Swirsky, Donald S. Krueger, and Kristopher D. Reichardt from Epstein Becker Green.

Following is an excerpt:

New York City retail and food service unions got a boost recently when Mayor Bill de Blasio signed an Executive Order titled “Labor Peace for Retail Establishments at City Development Projects.” Subject to ...

On March 5, 2015, the United States Court of Appeals for the Ninth Circuit issued an opinion in Chapman v. Pier 1 Imports (U.S.) Inc., 2015 WL 925586 (9^th Cir. Mar. 5, 2015) that provides retailers with useful insight into how to manage the issue of “temporary obstructions” to accessible routes under Title III of the Americans with Disabilities Act (“Title III”).

Title III’s overarching obligations that retailers provide individuals with disabilities with full and equal enjoyment of their goods and services and engage in ongoing barrier removal include the requirement to ...

Very often OSHA complaints go hand in hand with union organizing campaigns and other concerted activity protected under the National Labor Relations Act, at union and nonunion operations.

Our colleague Valerie Butera has prepared a thoughtful analysis concerning OSHA’s revised recordkeeping and reporting requirements in retail: “What Do OSHA’s Revised Recordkeeping and Reporting Rules Really Mean for Retailers?”

Below is an excerpt of Valerie's tips for retail employers:

• Train your safety and human resource professionals and your managers on the new reporting ...

Retailers, get ready for OSHA’s revised recordkeeping and reporting rules, effective January 1, 2015.

As I note in my Act Now Advisory—“What Do OSHA’s Revised Recordkeeping and Reporting Rules Really Mean for Retailers?”—several additional retail industries will be required to keep records of serious occupational injuries and illnesses, and several are no longer subject to the rules. The new reporting requirements apply to all retailers, even those included in the exempt list.

See the advisory for more information – below is an excerpt of my tips for retail ...

By Eric J. Conn, Head of the OSHA Group at Epstein Becker & Green, P.C.

Last month, OSHA issued an enforcement memorandum directing inspectors to scrutinize whether employers provide and maintain adequate means of exit; i.e., unlocked, unobstructed, and clearly marked exit doors and exit routes and doors that comply with 29 C.F.R. 1910 Subpart E - Means of Egress (specifically, the various requirements of 1910.36).  The memo was issued in response to a deadly explosion and ammonia release at a poultry processing plant in China on June 4, 2013, in which at least 120 employees lost their lives, many because they were unable to exit the plant due to blocked or locked exits.

In the enforcement memorandum, OSHA announced that:

“During inspections of all workplaces [Compliance Safety & Health Officers] should be mindful of whether the employer has provided and maintained adequate means of egress from work areas; e.g., adequate number of exit routes are provided, exit routes are free and obstructed, and exit doors are not locked.”

This list of items for review is consistent with the criteria OSHA identified in its Emergency Exit Routes Fact Sheet.  Here are the basic requirements for complying with 1910.36 set forth in OSHA’s regulations and the Fact Sheet:

1. Employers must determine how many exits routes are required in its building.  As a general rule, workplaces must have a minimum of two exits, and possibly more based on the number of employees, the size of the building, and the arrangement of the workplace.  One exit route may be allowed if the size of the building, its occupancy, or arrangement allows all employees to evacuate safely.
2. Exit routes must be maintained unobstructed, and the exit doors must remain unlocked from the inside.  Specifically, exit routes must be free of stored materials, equipment, and especially explosive or highly flammable furnishings.  Exits doors must be conspicuous, visible, free of decoration, and unlocked from the inside.
3. Exit routes and doors must be properly labeled and maintained.  Proper labels include signs that read “EXIT” or “TO EXIT” in plain legible letters, and maintained with adequate lighting.  Doors or passages along the exit route that are not exits and do not lead to exits must be marked as “NOT AN EXIT” or labeled such that their non-exit purpose is obvious (e.g., store room, office, etc.).

Although the Enforcement Memorandum features the tragic anecdote about the Chinese poultry plant, OSHA’s Director of the Directorate of Enforcement specifically instructs his enforcement team to look out for egress issues in inspections at “all workplaces.” 

By Casey M. Cosentino and Eric J. Conn