United States: Web Exclusive: August 2018: The Top 15 Labor And Employment Law Stories

It's hard to keep up with all the recent changes to labor and employment law. While the law always seems to evolve at a rapid pace, there have been an unprecedented number of changes for the past few years—and this past month was no exception.

In fact, there were so many significant developments taking place during the past month that we were once again forced to expand our monthly summary well beyond the typical "Top 10" list. In order to make sure that you stay on top of the latest changes, here is a quick review of the Top 15 stories from last month that all employers need to know about:

  1. Government Revises Pay Bias Standards For Federal Contractors – The agency overseeing federal contractors issued a revised pay bias directive that somewhat loosens the standards by which it will evaluate employer compensation practices during compliance investigations. The Office of Federal Contractor Compliance (OFCCP) released DIR 2018–05, also known as "Analysis of Contractor Compensation Practices During a Compliance Evaluation," to replace a 2013 directive which had ratcheted up the heat on contractors and scrutinized their compensation practices to identify and root out pay bias. The August 24 directive has two main functions:
    Whereas the previous directive only required statistical data when investigating potential pay discrimination, the new standard announces that the value of statistics in such situations may be tied to their ability to be corroborated by other evidence—meaning that raw numerical data will not necessarily be the be-all and end-all when it comes to a final conclusion. This significant revision stops short of the requiring anecdotal evidence, which had been the standard before the now-rescinded Directive 307, but it is a significant improvement.

    • Whereas the previous directive only required statistical data when investigating potential pay discrimination, the new standard announces that the value of statistics in such situations may be tied to their ability to be corroborated by other evidence—meaning that raw numerical data will not necessarily be the be-all and end-all when it comes to a final conclusion. This significant revision stops short of the requiring anecdotal evidence, which had been the standard before the now-rescinded Directive 307, but it is a significant improvement.
    • Contractors will now be able to submit explanations to the agency to provide context about any identified pay gaps between men and women in order to demonstrate the lack of gender bias ( read more here).
  2. One If By Land, Two If By Sea, Noncompete Reform Is Coming! Midnight Session In Massachusetts Legislature Alters Noncompete Landscape – After nearly 10 years of start-and-stop efforts on Beacon Hill, Governor Charlie Baker signed "An Act Relative to Economic Development in the Commonwealth" on August 10, which includes sweeping changes to the way the Commonwealth treats noncompetition agreements. Among other things, the bill prohibits enforcement of noncompetition agreements against non-exempt employees, limits their length to just 12 months, and precludes the use of "continued employment" as acceptable consideration in any noncompetition agreement entered into on or after October 1, 2018 ( read more here).
  3. Picking Up The Pace: USDOL Tackling Overtime Updates And New Opinion Letters – As we wrote about earlier this year, the Wage and Hour Division of the United States Department of Labor has been very active this year. That hot streak continued in August, as one week alone saw the USDOL took two big steps. First, on August 27, the agency issued a press release announcing that it will hold "listening sessions" in Atlanta, Seattle, Kansas City, Denver, and Providence, "to gather views" on the white collar exemptions. Although it is not clear what, if any, new information USDOL will share during these sessions, USDOL says it "plans to update the Overtime Rule and is interested in hearing the views and ideas of participants on possible revisions to the regulations." Second, on August 28, USDOL released six new Opinion Letters, four of which interpret the FLSA. The Opinion Letters involve (1) the application of a motion theater exemption to an establishment that is both a movie theater and a restaurant; (2) the volunteer status of "global credentialing examiners" (which is a fancy term for people who voluntarily grade tests); (3) the definition of a retail or service establishment under Section 7(i) of the FLSA; and (4) the compensability of time spent at wellness benefit fairs ( read more here).
  4. Federal Appeals Court Overturns Decades Of Precedent To Revive Workplace Claim – Overturning 40 years of precedent, the 10th Circuit Court of Appeals ruled that an employee's failure to file an EEOC charge does not necessarily bar consideration of a private discrimination lawsuit. By concluding that an Equal Employment Opportunity Commission (EEOC) charge is not a jurisdictional prerequisite to suit, the federal appeals court's August 17 decision provides a new lifeline for disgruntled employees and former employees to bring suit against their employers (Lincoln v. BNSF Railway Company, Inc.) ( read more here).
  5. The EpicSequel: Federal Appeals Court Extends Class Waiver Victory To Wage Claims – On the heels of the Supreme Court's decision in Epic Systems Corporation v. Lewis, which held that the National Labor Relations Act (NLRA) does not bar class or collective action waivers in arbitration agreements, the 6th Circuit Court of Appeals took up the corollary question of whether the Fair Labor Standards Act (FLSA), and its specific collective action mechanism, would invalidate arbitration agreements with collective action waivers. Relying on the lessons learned from the Supreme Court in Epic, the 6th Circuit held on August 15 that the FLSA likewise did not bar collective action waivers in arbitration agreements ( Gaffers v. Kelly Services, Inc.). For employers, the 6th Circuit's decision comes as a relief. There was a fear that the victory in Epic could be diminished by an inability to avoid costly FLSA collective actions on a broad—and sometimes nationwide—scale via individual arbitration agreements. The Gaffers decision puts that fear to bed, at least for those employers with operations in the 6th Circuit's jurisdiction (Ohio, Tennessee, Michigan, and Kentucky) ( read more here).
  6. Strip Club Win Shows The Power Of The EpicSCOTUS Ruling For Misclassification Cases – On August 23, the 6th Circuit Court of Appeals (hearing federal cases arising out of Ohio, Tennessee, Kentucky, and Michigan) struck down a proposed class-action lawsuit filed by a group of exotic dancers hoping to prevail on an argument that they were misclassified as contractors, relying on the Supreme Court's Epic decision for the proposition that the workers' arbitration agreements precluded class litigation. This is welcome news for gig companies and all businesses that hire independent contractors, as the ruling demonstrates that this standard can apply to federal misclassification proceedings, and is a good reminder that there are significant benefits associated with arbitration agreements with class waiver provisions ( read more here).
  7. New York Releases Model Training And Policy To Comply With New Sexual Harassment Laws – Employers in New York have been eagerly awaiting the state's anticipated model sexual harassment training and policies ever since the state passed significant new sexual harassment laws back in April. That day has finally arrived. New York released drafts of a model sexual harassment prevention policy and a model sexual harassment training program on August 23, along with other key documents in connection with the new sexual harassment laws. Employers, and other members of the public, now have the opportunity to weigh in on these requirements, as the state has invited comments on the proposed materials. What do you need to know about these materials? ( read more here)
  8. Missouri Voters Block Right-To-Work Law – In a sweeping victory for labor unions, Missouri voters overwhelmingly rejected a right-to-work law which sought to ban unions from requiring union fees as a condition of employment in Missouri. By capturing 67% of the August 7 vote, opponents of the measure prevented employees in unionized workplaces from opting out of joining a union or paying union dues if they were so inclined. What does this development mean for Missouri employers? ( read more here)
  9. Workers In High-Risk Industries At Greater Risk For Opioid Deaths, Study Says – It is well known that prescription use of opioids for specific medical problems can turn into addiction and dependency for some, and many of the prescriptions for opioids originate from workplace injuries. Now, a new study in Massachusetts has confirmed the connection, finding that workers in higher-risk industries are at greater risk for opioid deaths. On August 8, the Massachusetts Department of Public Health issued a report that broke down opioid-related overdose deaths by industry and occupation from 2011 through 2015. While finding that the rate of fatal opioid overdoses vary considerably by occupation and industry, it found the "rate of fatal opioid-related overdose was higher among workers employed in industries and occupations known to have high rates of work-related injuries and illnesses" ( read more here).
  10. Inartful Wording Dooms Employer's Arbitration Agreement – A New York judge recently rejected an employer's attempt to force an employment claim into arbitration due to a poor choice of wording in the written agreement. The August 7 decision might draw attention because of the identity of the employer—the Trump for President campaign organization—but it should be on your radar screen solely because it provides a lesson about the value of carefully drafted employment agreements ( read more here).
  11. Will He or Won't He? California Employment Arbitration Ban Proposal Heads to Governor Brown – The #MeToo movement and the national focus on sexual harassment have sparked significant legislative activity at the state level designed to address these issues. The most significant California bill to address the situation, which passed the legislature on August 23 and is now on the governor's desk, is Assembly Bill 3080 by Assemblywoman Lorena Gonzalez Fletcher (D-San Diego). Among other things, AB 3080 would prohibit mandatory arbitration agreements for nearly all types of employment law claims in California. AB 3080 is the most closely watched employment bill on the governor's desk and, if signed into law, will potentially have significant and widespread impacts on California employers across all industries. The lingering question: will Governor Brown sign the bill or won't he? We'll soon have our answer ( read more here).
  12. OFCCP Issues 2 Directives Affecting Federal Contract Compliance Reviews – A focus on equal employment opportunity and the protection of religious freedom will become part of future reviews for federal supply and service contractors' compliance with regulations under two policy directives issued by the Office of Federal Compliance Programs (OFCCP) on August 10. One directive adds to the agency's enforcement activity reviews, focusing on federal contractors' compliance with workforce antidiscrimination laws. The other requires OFCCP personnel to follow, in all their activities, recent court rulings and White House executive orders protecting the rights of organizations in the exercise of religion ( read more here).
  13. NYC Regulates Ride-Sharing Businesses With Minimum Wage Base And License Limits – We've been asking for increased regulation of the gig economy, and we got it—just not the kind of regulation businesses were hoping for. While gig businesses are craving a modern regulatory approach to misclassification issues, the New York City Council instead issued a series of new lawson August 8 that could serve to cool off the growth that we've been seeing for the past few years. Among the new laws, ride-sharing drivers will soon be entitled to what appears to be the nation's first minimum payment wage rates, and the number of licenses for permissible ride-sharing drivers will be artificially capped for the first time ( read more here).
  14. California Supreme Court Forces Employers To Comply With Strictest Background Check Standard -- In a case involving the potential overlap between the Investigative Consumer Reporting Agencies Act (ICRAA) and the Consumer Credit Reporting Agencies Act (CCRAA), the state's high court ruled that employers must comply with the more restrictive of the two laws. In a unanimous decision, the California Supreme Court ruled that an employer obtaining an investigative background check must comply with the stricter of two state laws—which requires it to obtain the individual's prior written authorization before doing so. Connor v. First Student, Inc.(No. S229428). The August 20 decision will impact those employers, lenders, and landlords who frequently conduct background checks under these two laws when making any number of hiring, employment, credit, and housing decisions ( read more here).
  15. Senator Warner Once Again Hopes To Provide Portable Benefits For Gig Workers – Senator Mark Warner (D-Va) introduced an amendment to the pending congressional appropriations package ( H.R. 6157) on August 22 that would move us one step closer to allowing gig workers to maintain portable benefits. According to Bloomberg's Ty Richardson, Warner's amendment would establish a $20 million grant program through the Department of Labor that would allow for some experimentation with the concept of health care, retirement, and other portable benefits for the contingent workforce. If this sounds familiar, you're right. It essentially mimics the same proposal he introduced last year, which is stalled out in committee and doesn't seem very likely to proceed ( read more here).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions