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Labor & Employment Alert >> Second Circuit Rules That Title VII Prohibits Discrimination on Basis of Sexual Orientation - Alert - 05/08/2018

The Zarda decision deepens the growing split between the circuit courts on the issue of whether discrimination based on sexual orientation is prohibited under federal law. It is now more likely that the U.S. Supreme Court will ultimately have to determine whether federal law should recognize sexual orientation as a protected class. In the meantime, 22 states and at least 400 cities and counties, including New York and New York City, already have laws in place prohibiting discrimination on the basis of sexual orientation, transgender status, gender identity, and/or gender expression. Employers should consult with counsel to ensure that their anti-discrimination and anti-harassment policies comply with all applicable federal, state, and local laws. Additionally, management and HR departments should establish best practices on how to properly navigate such matters.

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Labor & Employment Alert >> New Jersey Enacts New Equal Pay Protections Effective July 1, 2018 - Alert - 05/07/2018

Effective July 1, 2018, New Jersey's equal pay law will provide several new measures aimed at preventing unequal pay among employees performing substantially similar work. New Jersey employers must re-examine employee salaries to make sure any existing pay differentials are justifiable under the Act’s new exacting standard. Employers should consult with counsel in this process, revise handbooks and trainings to address and prohibit pay discrimination and retaliation, and train managers and HR and benefits employees on the new requirements under the Act.

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Labor & Employment Alert >> NYC Expands Employee Rights to Request Temporary Work Schedule Changes and Use Paid Sick Time for "Safe Time" Purposes - Alert - 04/25/2018

New York City employers should act quickly to ensure compliance with new laws that expand employee rights to request temporary schedule changes and use paid sick time for "safe time" purposes. At a minimum, employers should update employee handbooks to: (1) explain the procedures that eligible employees should follow when requesting temporary work schedule changes and employer obligations to respond to these requests; and (2) describe the expanded "safe time" reasons for which paid sick leave may be used by eligible employees and the expanded definition of "family member" for sick and safe time purposes. Employers should also provide a revised notice to employees regarding the use of sick and safe time prior to June 4, 2018.

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Labor & Employment Alert >> New York State Imposes New Legal Requirements for Workplace Sexual Harassment Prevention  - Alert - 04/10/2018

New York State's budget legislation, expected to be signed into law shortly, contains several measures related to workplace sexual harassment that will impact nearly every employer in New York. To prepare for these changes, New York companies are advised to consult with counsel to review and evaluate: 1) whether anti-harassment policies and training programs need to be implemented and/or updated; 2) practices related to the use of nondisclosure agreements in settlement agreements involving sexual harassment claims; 3) provisions of employee arbitration agreements and/or arbitration clauses in employment contracts; and 4) the engagement of independent contractors and other non-employees as part of the company’s workforce.

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Labor & Employment Alert >> Tax Reform Eliminated Deductions for Confidential Sexual Harassment Settlements  - Alert - 04/03/2018

The TCJA now prohibits employers from taking business deductions for confidential settlements or payments related to sexual harassment or sexual abuse claims. Consulting counsel early on is critical, as this new law could increase the complexity and costs of such settlements. Additionally, the best way for a company to avoid sexual harassment claims is to prevent such claims in the first place, by implementing sexual harassment training programs and sound company policies and practices.

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Labor & Employment Alert >> Massachusetts Pregnant Workers Fairness Act Goes Into Effect on April 1, 2018 - Alert - 03/29/2018

With the MPWFA's April 1, 2018 effective date quickly approaching, Massachusetts employers should review and revise their handbook policies, onboarding notices and HR practices to ensure that they comply with the law’s notice obligations and requirements to provide reasonable accommodations for pregnancy-related conditions, including nursing breaks and nursing break rooms.

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Labor & Employment Alert >> Take Compliance Seriously When Hiring Domestic Employees in New York - Alert - 02/12/2018

The potential penalties and damages for failing to comply with the many legal requirements for hiring domestic staff serve as a reminder that, while employers may develop a great relationship with a domestic employee, things can always go sour later. When they do, the downside can be significant, easily reaching into the six figures for an employee who has been working for an employer for years. Employers of domestic employees must know and follow all of the applicable employment laws, and they would be well-served to work with payroll, accountant and legal professionals to minimize the risk of expensive legal claims.

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Labor & Employment Alert >> DOL Updates Test for Unpaid Interns and Students Under the FLSA - Alert - 01/25/2018

The DOL will now rely on the "primary beneficiary" test when determining whether interns are eligible for minimum wage and overtime pay. This is good news for employers who want to establish internship programs without running afoul of the FLSA, and also gives employers more flexibility in structuring such programs.

Nonetheless, hiring interns can still be risky, even under the new test. To minimize liability under the FLSA, employers should design internship programs with a focus on education and training for the intern and pay the intern at least minimum wage.

Employers should also review the written terms of any internship program to ensure that they comply with the requirements of the new test, and clearly communicate such terms to the intern(s). Whenever possible, employers should obtain a signed acknowledgement of such terms from each intern.

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Labor & Employment Alert >> California Enacts New Employer Requirements Effective January 1, 2018 - Alert - 12/19/2017

California employers should be aware of several new and expanded laws going into effect beginning January 1, 2018, relating to a ban on inquiries to candidates about their salary history or prior criminal convictions; expanding already-mandated, supervisor-level sexual harassment prevention training to include specific anti-harassment training based on gender identity, gender expression and sexual orientation; and new parental leave rights for workers of employers with at least 20 employees. California employers should review recruitment processes and forms, provide additional training to supervisors and recruiters and revisit employment policies.

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Labor & Employment Alert >> New York State Adopts Final Paid Family Leave Regulations - Alert - 07/26/2017

Employers should review their existing family and medical leave policies and handbooks to ensure that the specifics of PFL are included by January 1, 2018. Employers should also contact their disability insurance providers to discuss a PFL rider.

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Labor & Employment Alert >> Beginning July 1, 2017, Chicago and Cook County Employers Must Provide Paid Sick Leave - Alert - 06/26/2017

Employers with workers in Chicago and/or Cook County should review their existing paid sick leave and paid time off policies to ensure compliance with the applicable Ordinance(s) and begin preparing to comply with their accrual, carryover and notice obligations by July 1, 2017 if no such existing policies are in place. Covered employers should also decide whether they want to set a minimum use increment for the use of paid sick leave and if so, prepare and distribute a written policy to this effect. Finally, employers should consider whether it makes sense to track FMLA-eligible paid sick leave separately from paid sick leave used for more general purposes.

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Litigation Alert >> Aiding and Abetting Discrimination — Not Just For Employers and Supervisors Anymore - Alert - 06/19/2017

The Griffin opinion paves the way for plaintiffs to assert an "aiding and abetting" theory to sue their employer's corporate customers, clients and vendors for participating in conduct or decision-making alleged to be unlawful under the NYSHRL, even if such participation is limited to having a contract, policy or protocol that runs afoul of New York law. At a minimum, companies operating in New York should confirm that any contracts, policies or protocols that apply to individuals in New York do not violate New York law.

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Labor & Employment Alert >> New York City Human Rights Law Amended to Ban Employers From Requesting Job Applicant Salary History - Alert - 05/05/2017

While New York City’s law could potentially face legal challenge by business groups before October 31, 2017, employers are advised to review their hiring practices and identify where salary history is being requested. Employers may need to modify employment applications, pre-employment questionnaires, job interview guidelines and information requested from staffing agencies and recruiters. Companies are also advised to consider implementing training for human resources professionals and senior managers on these new legal requirements and best practices for documenting communications and negotiations with job applicants about their compensation and benefits.

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Labor & Employment Alert >> New Rights For New York City Freelancers Effective May 15, 2017 - Alert - 03/22/2017

New York City employers should: (a) review and update template independent contractor agreements to ensure they comply with FIFA; (b) engage with counsel before taking action that could be perceived as retaliatory with regard to a freelancer; and (c) respond in a timely manner to any administrative or civil action complaint initiated by a freelancer under FIFA. Moreover, employers should continue to carefully assess independent contractor classifications to avoid risk of misclassification claims. Misclassifications claims are now even more costly to employers in light of civil fines under FIFA against employers that exhibit a pattern or practice of violations.

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Labor & Employment Alert >> San Francisco Passes Ordinance Requiring Employers to Provide Fully Paid Parental Leave - Alert - 12/01/2016

Employers with workers in San Francisco should review any existing paid parental leave policies to ensure compliance with the Ordinance and begin preparing to comply with the Ordinance’s payment, notice and recordkeeping obligations by the applicable effective date if no such existing policies are in place. Furthermore, employers with operations across multiple states should be aware that certain other jurisdictions have also passed paid family leave laws, including New Jersey, Rhode Island and, most recently, New York. (The New York statute provides for up to 12 weeks of paid family leave per year for baby bonding, to care for a family member with a serious medical condition, or when a family member is called to active military service. Additional information on the provisions of the New York paid family leave law can be found in our previous Alert, "What Employers Need to Know About New York State's New Paid Family Leave Law").

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Labor & Employment Alert >> Complying with California Cities’ Recently Enacted Paid Sick Leave Ordinances - Alert - 12/01/2016

California employers should review their employee handbooks and personnel practices with counsel to ensure compliance with both state and local paid sick leave laws. California employers must not assume that compliance with California’s sick leave law alone is sufficient. Employers that operate in cities that are discussed in this Alert may also consider implementing training for HR staff and managers on paid sick leave requirements

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Labor & Employment Alert >> New Illinois Child Bereavement Leave Act Provides Two Weeks of Unpaid Leave  - Alert - 09/14/2016

Illinois employers with at least 50 employees should update their leave policies to provide this new child bereavement leave as required by the CBLA.

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Labor & Employment Alert >> Massachusetts Passes Pay Equity Act - Alert - 08/15/2016

Massachusetts employers have until July 2018 to correct any pay inequity between employees of different genders performing comparable work, taking into account seniority, location, travel and bona fide compensation plans. Employers should also update applicant forms and questions and interview practices to avoid asking applicants about their current salary or compensation history before they have been given an offer of employment that includes compensation.

In addition, New York, California and Maryland have also passed stronger pay equity laws requiring equal pay for employees of different genders for substantially similar work, and several other states have similar legislation pending.

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Labor & Employment Alert >> New Rights and Obligations for Employers Under the Defend Trade Secrets Act - Alert - 05/23/2016

Employers may now bring a civil action in the federal courts, under the DTSA, against employees who misappropriate trade secrets. Where employees have misappropriated trade secrets, employers may seek damages, injunctive relief and a seizure order. Employers must also revise all non-disclosure, confidentiality and other agreements that govern the use of trade secrets or confidential information to inform employees who sign the agreements of the immunity provisions either directly or by reference to a company policy containing the immunity language.

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Labor & Employment Alert >> Employers Face Significant Increase in Required Salary Level for Overtime-Exempt Employees  - Alert - 05/19/2016

Before December 1, 2016, employers should evaluate the impact of the Final Rule by identifying employees who currently earn less than $47,476 per year. For employees who are classified as exempt and meet job duties requirements, and who will be impacted by the increased salary level, employers may consider increasing their salaries to retain exempt status. Moreover, some employees may need to be converted to non-exempt, overtime-eligible status, and employers will be required to pay overtime for workweeks of more than 40 hours. Employers should also analyze and consider hours worked by impacted employees to help assess expected overtime costs, and if overtime hours for certain personnel may need to be reduced or eliminated.

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Labor & Employment Alert >> What Employers Need to Know About New York State’s New Paid Family Leave Law - Alert - 05/10/2016

New York employers should prepare to revise leave policies so that all eligible employees are provided at least eight weeks of job-protected family leave as of January 1, 2018, 10 weeks as of January 1, 2019, and eventually 12 weeks by 2021. Additionally, employers should coordinate with their payroll companies to ensure that they begin making the proper paycheck deductions to fund the state family leave insurance fund effective January 1, 2018.

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Labor & Employment Alert >> New California Anti-Discrimination and Anti-Harassment Policy Regulations - Alert - 03/21/2016

California employers should review and revise their policies, employee handbooks, and anti-discrimination/harassment training materials to comply with these new regulations before they go into effect on April 1, 2016.

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Labor & Employment Alert >> NYC Law Requiring Pre-Tax Transit Benefits Now in Effect - Alert - 02/01/2016

Employers with 20 or more full-time employees working in New York City should review their employee benefit plans to ensure that they offer all full-time employees the opportunity to use pre-tax earnings to purchase qualified transportation fringe benefits. Employers must keep records showing their compliance with this requirement for two years. However, they have until July 1, 2016 before the DCA will impose civil penalties for non-compliance.

After July 1, 2016, employers will have an opportunity to cure any violation of the ATA within 90 days before any penalty may be imposed. Employers should also note that Mayor De Blasio recently established the Office of Labor Standards, which will be responsible for enforcing the ATA. Accordingly, the current ATA rules may change.

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Labor & Employment Alert >> NYC Enacts Law Prohibiting Caregiver Discrimination - Alert - 01/11/2016

New York City employers should review their anti-discrimination policies and related training practices to cover and protect against caregiver discrimination prior to May 4, 2016.

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Labor & Employment Alert >> NY Governor Signs Bills Expanding Workplace Protections Against Sex Discrimination and Promoting Wage Equality - Alert - 12/15/2015

All New York employers should review their workplace policies and agreements to eliminate blanket prohibitions on employee discussion and/or disclosure of wage information, and update their policies and training materials to reflect the new protected classes recognized under New York law. All New York employers must also make sure to engage in the interactive process with and accommodate pregnant employees, and comply with New York State equal pay and sex discrimination/harassment laws to avoid significantly enhanced liquidated damages and/or attorneys’ fees awards.

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Labor & Employment Alert >> New York City Imposes Limits on Employer Inquiries Related to Criminal Conviction and Arrest Records - Alert - 10/06/2015

With the Fair Chance Act going into effect soon, employers in New York City should remove questions relating to arrest or criminal history from job applications. Requests for pre-employment criminal background checks should also be postponed until after a conditional offer of employment has been extended. Moreover, companies that decide not to hire a candidate based on the results of a criminal background check are advised to consult with counsel to ensure compliance with the law’s notice requirements.



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