United States: Web Exclusive - April 2018: The Top 19 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 all through 2017. And if the first four months of 2018 are any indication, things won't be slowing down anytime soon.

In fact, there were so many significant developments taking place during the past month that we were 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 19 stories from last month that all employers need to know about:

  1. Labor Board Poised To Even Playing Field Once Again – With the Senate's confirmation of John Ring to the National Labor Relations Board on April 11 and the administration's subsequent announcement on April 12 that he will be designated as the agency's Chair, the Board is once again in a position to restore balance to the nation's labor laws. During most of the eight years of the Obama administration, the Board was stocked with a majority of Democratic appointees, and the NLRB issued decision after decision tilting the playing field decidedly in favor of unions and workers. However, now that the NLRB has a full complement of five members, three of whom were nominated by President Trump, changes are soon to follow. What do employers need to know about this latest development? (read more here)
  2. Contractor Apocalypse: California Supreme Court Adopts Broad New Misclassification Test – In a groundbreaking decision, the California Supreme Court adopted a new legal standard on April 30 that will make it much more difficult for businesses to classify workers as independent contractors, drastically changing the legal landscape across the state. The decision will directly affect the trucking and transportation industry because the workers involved in the case were delivery drivers, but also has the potential to affect nearly every other industry—including the emerging gig economy. Specifically, the court adopted a new standard for determining whether a company "employs" or is the "employer" for purposes of the California Wage Orders (read more here). 
  3. Supreme Court Gives Dealerships The Green Light: Service Advisors Are Exempt From FLSA Overtime Requirements – The Supreme Court handed auto dealerships—especially those on the west coast—a long-awaited 5-4 victory on April 2 by holding that service advisors are exempt from the Fair Labor Standards Act's overtime-pay requirement because they are "salesm[en]...primarily engaged in... servicing automobiles" (Encino Motorcars, LLC v. Navarro). The ruling returns the law to the place it had been for decades prior to a stunning and controversial 2011 agency decision that upended what had been standard practice at many dealerships. The Supreme Court's ruling brings finality to a legal battle that had contained more twists and turns than a Formula One race track, including two separate trips to the Supreme Court by a dealership represented by attorneys from the  Fisher Phillips Automotive Dealership Practice Group (read more here).
  4. Appeals Court Says Salary History Can't Block Equal Pay Act Claims – In a landmark decision that will accelerate the growing pay equity movement, especially for employers on the west coast, the 9th Circuit Court of Appeals became the latest federal court of appeals to rule that employers cannot justify a wage differential between men and women by relying on prior salary. By tightening the language contained in the Equal Pay Act, the 9th Circuit made it more difficult for employers to justify pay differentials and defend pay equity claims. The April 9 ruling is a wake-up call for all employers to ensure their compensation structures do not unfairly limit the amount of money women earn at their organizations (read more here).
  5. New Jersey Becomes Latest State To Pass Equal Pay Legislation – New Jersey became the latest state to mandate a comprehensive equal pay law when Governor Phil Murphy signed the "Diane B. Allen Equal Pay Act" into effect on April 24, 2018. What makes this law different and more robust than laws in other states is that the New Jersey equal pay law will soon extend legal protections beyond gender and provide relief to all classes of employees protected under the state's antidiscrimination law. New Jersey's existing wage and hour law  already prohibits employers from "discriminat[ing] in any way in the rate or method of payment of wages to any employee because of his or her sex." The new law, which will take effect on July 1, 2018, expands this protection and amends the New Jersey Law Against Discrimination to make discrimination in wages on the basis of any protected class an unlawful employment practice. With the new law soon taking effect, you need to carefully analyze your existing pay practices to ensure compliance (read more here).
  6. Another Misclassification Win For Gig Economy Businesses – In another victory for gig economy companies reliant upon the independent contractor business model, a Pennsylvania federal court ruled on April 11 that a collection of UberBLACK drivers were properly classified as contractors and could not maintain wage and hour claims against the ride-sharing company. Here are the top 10 things you can glean from the Razak v. Uber Technologies  decision (read more here).
  7. And the H-1B Goes To ... USCIS Completes the FY2019 Annual H-1B Lottery Selection Process – Were you one of the lucky few to "win" one of the 85,000 H-1B visa numbers in this year's random selection process held by the U.S. Citizenship and Immigration Services (USCIS) lottery? The USCIS held its annual lottery drawing on April 11 to pick the congressionally mandated 65,000 Bachelor's cap and 20,000 Master's cap petitions that will be processed this year for the 2019 fiscal year. The agency will begin sending out receipt notices for the selected petitions. As in years past, the USCIS will reject and return all unselected petitions with the uncashed filing fee checks. The agency announced that it received 190,098 H-1B petitions during the 2018 lottery application period. This is the second year in which we have seen a decline in the number of H-1B petitions submitted under this annual lottery process (down from 199,000 in FY2018 and 236,000 in FY2017). This downward trend may represent a reluctance by U.S. employers to invest in foreign workers, perhaps due to increased visa costs, security concerns, and concerns about the future of immigration legislation under the Trump administration (read more here).
  8. Department Of Labor Resurrects Opinion Letters – As promised by the new administration, the U.S. Department of Labor (USDOL) revived the practice of issuing opinion letters to enable employers to better understand their obligations under the Fair Labor Standards Act (FLSA). On April 12, the USDOL published opinion letters—on the topics of rest breaks, travel time, and garnishments—for the first time since 2009. While the FLSA is often too cumbersome to be tied up in a nice and neat opinion letter, it is encouraging to see the USDOL provide some measure of guidance to help employers avoid violations (read more here).
  9. New York State Employers Face Significant New Sexual Harassment Laws – Employers operating in New York will soon face a raft of new sexual harassment laws. The state budget bill for the 2019 fiscal year approved by the New York State Legislature on March 31 and signed into law by Governor Andrew Cuomo on April 12 contains a host of significant provisions to strengthen the state's sexual harassment laws. As previously reported, the New York State Senate passed a bill last month aimed at strengthening and reforming the state's sexual harassment laws. Now, through the 2019 budget bill, many of these provisions have become the law of the land—along with additional requirements beyond those contemplated by the Senate's bill. For employers in New York City, these new laws are in addition to  recently enacted legislationincreasing sexual harassment protections citywide (read more here).
  10. Gig Worker's Hopes Of Arguing Case In Court Are Dashed By Arbitration Agreement A delivery driver for gig economy company DoorDash has been ordered by the 5th Circuit Court of Appeals to take his misclassification case to a private arbitrator instead of court pursuant to a valid arbitration agreement he entered into. The April 25 decision is a solid win for gig employers and could provide a template for how other similar businesses should structure their own arbitration agreements (read more here).
  11. NYC Lawmakers Aim To Curb Sexual Harassment With Sweeping Legislation – On the heels of the #MeToo and #TimesUp movements, the New York City Council passed a slate of legislation on April 11 aimed at preventing sexual harassment in the workplace. Entitled the "Stop Sexual Harassment in NYC Act," the package of 11 separate bills is the first major legislative initiative undertaken by new City Council Speaker Corey Johnson. The bills confirm that New York City is looking to be a leader as jurisdictions everywhere grapple with combatting sexual harassment in the workplace. Mayor Bill de Blasio is expected to sign the legislation into law in the very near future. Once signed into law, the Stop Sexual Harassment Act will significantly expand the obligations of New York City employers to prevent sexual harassment. What do you need to know to prepare for these laws? (read more here)
  12. Court Rules That Disclosure Of Trade Secrets Not Necessary To Violate DTSA – Many defendants attempt to defend claims for trade secret misappropriation by claiming that they never used or disclosed the information in question. Based on an April 5 ruling by a federal district court in New York, however, that may not matter. In AUA Private Equity Partners, LLC v. Soto, an employer filed suit against one of its former employees, asserting claims for trade secret misappropriation under the Defend Trade Secrets Act (DTSA), the federal law enacted in May 2016. The employer alleged that shortly before her termination, the employee uploaded files containing confidential and proprietary business information from her company-issued laptop to her personal cloud storage account on Google Drive. The employee moved to dismiss the employer's DTSA claim on grounds that the employer did not allege that she ever used or disclosed the files, only that she acquired them. The court rejected the employee's argument, finding that neither "use" nor "disclosure" was a required element of the DTSA claim (read more here).
  13. Spring Is In The Air! But Telling Your Employees You Love Them Could Cost You $5 Million – 19th-century British poet Alfred Tennyson once said, "In the Spring, a young man's fancy lightly turns to thoughts of love." And while you might hold a certain amount of affection for your employees this time of year and want to show them how much you care, you might want to refrain from saying "I love you" to them. That's because an employer who did just that, and encouraged its workforce to share the same sentiments with coworkers on a regular basis, learned the hard way that such comments are not necessarily appropriate for the workplace.

    On April 25, a federal jury in New York delivered a $5 million verdict against that employer in part because of this peculiar workplace practice. Read on to learn more about what happened and to avoid falling into the same trap this spring (read more here).

  14. Second Time's The Charm: Court OKs Revised Pay Equity Class Action Against Google – A California state court just breathed new life into a class action lawsuit against Google that could have a significant impact on pay equity claims across the country. The recent ruling  gave the stamp of approval to an amended complaint filed by former female Google employees alleging unequal pay practices. The court ruled that the amendments, which focused on Google's supposed uniform pay practices, were sufficient to meet the pleading standard and state a cause of action for a class-wide unequal pay claim (read more here).
  15. Don't Go Overboard with Overbroad Non-Competes: Illinois Federal Court Strikes Down Non-Compete Clause – A federal court in Illinois recently found that a non-compete clause that restricted a departing employee from being connected in any manner "with the ownership, management, operation or control" of any business in competition with his former company was improperly overbroad. The April 17 decision presents a good lesson regarding the recommended scope of restrictive covenants and good drafting techniques (read more here).
  16. NY Governor Wants Employers to Say No to Salary History – On April 10, Equal Pay Day, New York Governor Andrew Cuomo unveiled proposed legislation banning all employers in New York from asking job applicants about their salary history. The legislation is aimed at closing the gender wage gap in New York. The proposed legislation would prohibit New York employers from asking about the salary history of a job applicant or relying on salary history in determining whether to make a job offer to that applicant or what salary to offer the applicant. If the applicant voluntarily and without prompting discloses their salary history, the employer would be permitted to consider that information. Additionally, employers would not be restricted from discussing the candidate's expectations or requirements for salary, benefits and other compensation (read more here). 
  17. Proposed California Law Would Establish Portable Benefits For Gig Companies And Address Misclassification Issue – As we have previously discussed, one of the hottest gig economy issues to dominate political and public policy debate 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. States and local governments are increasingly moving forward on their own with proposals to explore the provision of benefits to individual performing work in the gig economy. Most notable are proposals that have been set forth in the state legislatures in  Washington New York  and New Jersey. The movement also got a boost in January when Uber and SEIU announced a  joint call for the state of Washington to develop a portable benefits system that would cover gig economy workers. Not to be outdone, California recently entered the discussion with the introduction of legislation that would establish a portable benefits system for "digital marketplaces." Notably, the California proposal would also provide that individuals that provide services through such a digital marketplace would be "treated as" independent contractors (read more here).
  18. Westchester County (NY) Prohibits Salary History Inquiries – Westchester County has enacted a Wage History Anti-Discrimination Law which will soon make it illegal for employers to ask potential employees their salary history. The law was passed by the County Board of Legislators on April 9 and signed into law by County Executive George Latimer the following day. It will take effect July 9, 2018. Under the new law, employers will be prohibited from asking job applicants their salary history or relying on the applicant's salary history in determining the salary to offer the applicant, unless it is voluntarily provided by a prospective employee to support a higher wage than that offered by the employer. Employers will no longer be permitted to ask the applicant's current or former employer for the salary history of the applicant, unless an employer is seeking to confirm wage information after a candidate voluntarily discloses it to support a higher wage than that offered by the employer. In these circumstances, written authorization must be obtained from the applicant before seeking confirmation (read more here). 
  19. Fear And Trade Secrets On The Campaign Trial: Demoractic National Committee Files Trade Secrets Lawsuit – The Democratic National Committee filed a lawsuit against Russia, WikiLeaks, the Trump Campaign, and a bunch of individuals (including Julian Assange, Jared Kushner, and a hacker named "Guccifer 2.0") that includes claims of trade secret violations. The April 20 lawsuit  alleges an alphabet soup of claims—CFAA, SCA, DMCA, RICO, among others—mostly based on the premise that Russian operatives successfully hacked the DNC's computers, stole politically sensitive information, and then destabilized the American political system in conjunction with the Trump campaign and WikiLeaks (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
Steven M. Bernstein
Benjamin M. Ebbink
William Brian London
Richard R. Meneghello
Ashton M. Riley
Todd B. Scherwin
Shanon R. Stevenson
Julia H. Wilson
Similar Articles
Relevancy Powered by MondaqAI
Fisher Phillips LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Fisher Phillips LLP
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