United States: Web Exclusive: January 2018: The Top 18 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 were an unprecedented number of changes each month in 2017—and if January is any indication, 2018 will be no different. There were so many significant developments taking place during the past month that we were forced to expand our monthly summary 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 18 stories from last month that all employers need to know about:  

  1. Nationwide 7-Eleven Immigration Raids Herald New Worksite Enforcement Strategy – Slurpees are not the only ICE-y things being served at 7-Eleven these days. For the second time in five years, Immigrations and Customs Enforcement (ICE) raided dozens of 7-Eleven stores across the country in search of undocumented workers and managers who knowingly employ them. The raids carried out on January 10 involved 98 stores in 17 states from coast to coast, and resulted in at least 21 arrests. In conjunction with the raids, ICE also announced its new worksite enforcement strategy, with which all employers should immediately familiarize themselves (read more here).  
  2. Chronic Dispute: What The Sessions Marijuana Memo Means For Employers – Attorney General Jeff Sessions issued a one-page memorandum on January 4 rescinding Obama-era guidance that had allowed states to legalize medical and recreational marijuana with marginal federal interference, eliminating any doubt about his position against the trend towards legalization. The bad news is that the current state of the law regarding the legality of marijuana use remains confusing, to say the least: it is dependent on the state you are in, and while the legislatures and courts across the country continue to revisit and shape the laws at issue, marijuana continues to be classified as an illegal Schedule I drug pursuant to the Federal Controlled Substances Act. The good news for employers: the memorandum doesn't seem to have impacted your approach to the issue from a workplace law perspective. Where state law had permitted you to take a zero tolerance approach to those testing positive for marijuana, you can continue on the same course. And if you took a more relaxed approach—whether due to state law or your own company philosophy—you can likely carry on with business as usual. But there could be turbulence ahead, so you will want to get up to speed on the latest and pay close attention to the upcoming developments on this topic (read more here).
  3. What A Government Shutdown Meant For Employers – Starting on midnight on January 20, the federal government experienced its first shutdown since 2013. It was brief in nature but had a dent in the lives of employers across the country. Moreover, it may only be a brief reprieve given that another deadline looms in early February and another shutdown may be right around the corner. How did it impact employers and what might another shutdown look like for workplace law? Read more here.
  4. Growing Number Of Employers Are Removing Pay History Questions From Job Interviews And Applications – In this past month alone, Bank of America and Amazon have joined Google, Facebook, and Cisco Systems Inc., as companies that will no longer ask applicants about salary history in an effort to help address the gender pay gap. Cheryl Pinarchick, who co-chairs the Fisher Phillips Pay Equity Practice Group, stated in a January 29 interview for the Washington Post that companies "don't want to have to keep up with what's happening, quite literally, on a day-to-day basis." She advised employers to adopt the policies more widely: "Unless you have a team of people who can be tracking this, even on a daily basis, you could find yourself violating a law where you didn't even know a law existed," she said. "It's best practice going forward" (read more here).
  5. Grubhub Trial Decision Could Be Delayed For A Very Scary Reason – The first few days of 2018 did not go to plan for those gig economy businesses hoping that the new year might bring some relief in the seemingly never-ending misclassification struggle. As we sit on pins and needles waiting for a decision from the trial court judge in the blockbuster Grubhubtrial (you can familiarize yourself with the trial  here and  here if you need a refresher), the plaintiff's attorney is asking for a delay in the court's ruling. On January 2, plaintiff Raef Lawson's attorney provided the court with a quick one-page filing that might otherwise seem innocuous; after all, it was just a "Notice of Supplemental Authority," a common legal tool intended to alert the court to some additional legal precedent that might impact the case. But its contents could signal that a bombshell is on the way (read more here). 
  6. SCOTUS Ruling Helps Plaintiffs Get Second Bite At The Apple Through Supplemental State Claims – In a 5 to 4 decision, the U.S. Supreme Court ruled that any statute of limitations applicable to an employee's state law claims are suspended during the pendency of a federal lawsuit in which the state law claims are included. The January 22 decision in Artis v. District of Columbia gives employees additional time to refile claims in state court once a federal court declines to decide them. As a result, employers may be stuck in state court re-litigating issues previously litigated years before in federal court. By granting these plaintiffs a second bite at the judicial apple, the Supreme Court has made life more challenging for employers defending workplace law claims in court (read more here).
  7. New Jersey Now Bans Breastfeeding Discrimination – New Jersey Governor Chris Christie began his final week in office by signing 40 bills into law, including an amendment to the New Jersey Law Against Discrimination that immediately bars discrimination against breastfeeding employees. The new law also requires employers to provide such employees with reasonable accommodation. New Jersey employers should take steps to familiarize themselves with the new legal requirements, signed into law on January 8, and adjust policies and practices to ensure compliance (read more here).
  8. New York City Employers Will Soon Be Obligated To Talk Out Reasonable Accommodations With Employees – The New York City legislature enacted an amendment to the New York City Human Rights Law (NYCHRL) on January 19 which codifies an employer's obligation to engage in a cooperative dialogue with any employee who may be entitled to a reasonable accommodation. Although the amendments do not take effect until October 15, 2018, you should start the process of adjusting to this new reality right away (read more here). 
  9. Take Two: Pay Equity Plaintiffs Attempt To Resurrect Class Action Against Google – A group of former Google employees filed an amended complaint in California federal court in an attempt to breathe new life into their  equal pay class action lawsuit, which had been  demonstrating an ascertainable class. The pay equity world will now have its collective eyes on Google to see how the company responds to the January 3 filing, and to follow the latest chapter in one of the most high-profile pay equity claims ever filed (read more here). 
  10. Labor Department's Inflexible Intern Test Headed To The Shredder – The U.S. Department of Labor (USDOL) announced that it will abandon its six-part test for determining whether interns qualify as employees after yet another court favored the alternative, primary beneficiary test. As we have blogged about  before, the agency historically has taken the position that six factors control whether an intern of a for-profit employer is, in fact, an employee. The USDOL's articulated test required that each and every factor be met to exclude the individual from the FLSA's minimum wage and overtime protections. But with the January 5 announcement, the agency instead lined up with a number of federal courts that have adopted a more flexible approach (read more here).
  11. Labor Department Initiative Could Permit Gig Workers To Obtain Healthcare Benefits – There is another federal move afoot that could make it more hospitable for your average American to throw their hat into the gig economy ring. On January 4, the Department of Labor announcedthat it would make some changes that would clear the path for small businesses and solo entrepreneurs to link together for the purpose of creating association health plans (AHPs). Our firm's Employee Benefits Practice Group wrote about this development in a newsletter a few months back; you can  read about AHPs in more depth here if you are so inclined. As a gig business, you really only need to know one thing: the move is primarily meant to make it easier for smaller employers to offer health benefits to their workers while also steering clear of Obamacare requirements. But It also appears to give gig workers the ability to join together to create their own health plans (read more here). 
  12. Lawyers Suing Lawyers: $300 Million Pay Equity Claim Filed Against National Law Firm – Call it ironic, but even providers of legal services are targets for pay equity litigation. Case in point: a $300 million dollar class action lawsuit filed against a labor and employment law firm in a California federal court. A female non-equity shareholder at Ogletree Deakins alleges in her January 12complaint that male non-equity shareholders earn more, receive more business development and networking opportunities, and get more credit for the business that they originate than their female counterparts. In addition to its pay discrimination claims, the lawsuit alleges causes of action for gender discrimination and retaliation. The plaintiff seeks $100 million for underpayment, $100 million for compensatory damages, and $100 million in punitive damages. Additionally, she has filed a separate declaratory relief action alleging that the arbitration agreement that Ogletree circulated to its employees via email is not enforceable against her because she did not sign it. The Ogletree litigation is one of several cases filed against large law firms recently that allege that less-deserving male partners outearned their female colleagues (read more here).
  13. Key Portion Of NYC's Fair Workweek Law Put On Pause – One of the key provisions of New York City's Fair Workweek Law was put on hold while a federal judge sorts out a constitutional challenge brought by two restaurant advocacy organizations. The "Deductions Law" portion of the new city statute allows certain employees of fast food establishments to authorize a portion of their wages to be paid to registered and approved not-for-profit organizations, and also directs fast food establishments to deduct, collect, and remit those employee wages to the designated organizations. However, thanks to a lawsuit brought by the Restaurant Law Center and the National Restaurant Association, enforcement of the Deductions Law was put on pause on January 17, and could be permanently scrapped if found unconstitutional (read more here).
  14. Feds Announce Increase To FLSA Penalties – In the first week of the New Year, the U.S. Department of Labor publishedincreases in the civil money penalties it can impose for certain violations of the federal Fair Labor Standards Act (FLSA). These new levels, approximately two percent higher than those established last year, apply to any penalties assessed after the effective date of January 2 for predicate violations that occurred after November 2, 2015 (read more here).
  15. Recent PAGA Case Provides Rare Procedural Victory For California Employers – If you're a California employer, perhaps no single law strikes fear into your heart quite as much as the Labor Code Private Attorneys General Act of 2004 (PAGA). The law allows individual "aggrieved employees" to bring representative actions on behalf of themselves and other aggrieved employees to recover civil penalties for Labor Code violations, sometimes extracting staggering amounts from employers. However, a January 4 appellate court decision in Khan v. Dunn-Edwards Corp. granted a significant procedural "win" to employers in PAGA cases. While this might be a limited victory, California employers should celebrate any good news on the PAGA front (read more here). 
  16. Supreme Court Accepts Travel Ban Ban Case (Again) – For the second time, the Supreme Court has accepted a case for review that will allow it to rule, once and for all, on the legality of the president's immigration travel ban. The first such case was dismissed after the travel ban was revised, but now the third iteration of his executive action limiting those permitted to enter or stay in the country will be argued before the Supreme Court this term after the Court accepted review on January 19. Expect a final decision by late June (read more here).
  17. Uber-Union Partnership May Jumpstart the "Portable Benefits" Movement in the Gig Economy – Of all the public policy debates surrounding the gig economy of late, one of the hottest topics has been "portable benefits" – the concept that gig economy workers should have flexible, portable benefits that they can take with them from job to job, or "gig to gig." This push just got a major jumpstart that may turn out to be a game-changer. On January 23, Uber and the Service Employees International Union (SEIU) jointly called for the state of Washington to develop a "portable benefits system" that would cover gig economy workers (read more here).
  18. Discovery In FLSA Cases May Soon Hit The Fast-Track – Early discovery in cases brought under the Fair Labor Standards Act (FLSA) may be changing significantly if courts begin to adopt the new Initial Discovery Protocols For Fair Labor Standards Act Cases Not Pleaded As Collective Actions. The Federal Judicial Center's FLSA Protocols Committee, which includes judges as well as lawyers engaged in FLSA matters, developed and released discovery protocols in January that seek to change a party's initial disclosure requirements to include additional documents and information specifically relevant to FLSA cases (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
Cheryl Behymer
Steven M. Bernstein
Benjamin M. Ebbink
Howard A. Mavity
Lisa McGlynn
Richard R. Meneghello
Melissa Osipoff
Thomas P. Rebel
Shanon R. Stevenson
Julia H. Wilson
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must 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