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Labor & Employment Alert >> New York State Provides Additional Guidance on Expanded Workplace Harassment Prevention Requirements - Alert - 11/15/2019

Employers in New York State should prepare a Sexual Harassment Prevention Notice for their workplace attaching and/or linking to their harassment prevention policy and training materials, and ensure that this Notice is included in their onboarding and training materials. Employers should also ensure that the harassment prevention policy attached to the Notice is consistent with the updated model policy on the State’s website, which has been revised to account for the expanded protections that went into effect earlier this year.

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Labor & Employment Alert >>California Expands Final Pay Timing Exemption to Print Productions - Alert - 10/28/2019

California’s new Photo Shoot Pay Easement Act now relieves print production employers from the rigid California law that subjects employers to harsh penalties if they do not pay employees immediately upon discharge. However, print production employers should be careful about payroll practices, as they are still subject to waiting time penalties for failing to follow other California payroll requirements.

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Labor & Employment Alert >> DOL Confirms Federal Salary Level for Overtime-Exempt Employees - Alert - 09/25/2019

Before January 1, 2020, employers should evaluate the impact of the 2019 Final Rule by identifying exempt administrative, executive and professional employees who earn less than $35,568 per year, as well as employees who earn less than $107,432 per year and are categorized as exempt based on the highly compensated employee test. This is an ideal time for employers to revisit employee classifications to ensure Fair Labor Standards Act (FLSA) compliance.

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Labor & Employment Alert >> New York City Bans Discrimination Based on Reproductive Choice - Alert - 09/20/2019

In light of the recent expansion to the New York City Human Rights Law, New York City employers should review and amend employer handbooks and discrimination policies to acknowledge “sexual and reproductive health decisions” as a protected category, and ensure that managers and human resources personnel are aware of the new protected category and what to do if an employee asserts an allegation of sexual or reproductive health decision-related discrimination or harassment.

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Labor & Employment Alert >> New Jersey Prohibits Employers from Requesting Job Applicant Salary History - Alert - 08/07/2019

New Jersey’s salary history ban makes it an unlawful employment practice for companies to screen job applicants based on salary history, require applicants to disclose their salary history in the hiring process or consider as part of any employment decision a job applicant’s refusal to volunteer compensation information.

Employers with operations in New Jersey are advised to review their hiring practices, including job applications, background check protocols, interview guidelines and information requested from recruiters to ensure compliance with the new law.

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Labor & Employment Alert >> California and New York Ban Workplace Hair Discrimination, While New Jersey and Michigan Propose the Same  - Alert - 07/31/2019

California, New York State and New York City have implemented prohibitions on workplace policies that restrict haircuts, hairstyles or hair textures that are linked to a particular racial group. California and New York employers should take a close look at their workplace policies to ensure compliance with the new laws and guidance requiring that any bans, limits or restrictions on hair be race-neutral and have no disproportionate impact on any legally protected group. New Jersey and Michigan employers should watch for any developments regarding proposed bills addressing hair discrimination in those states and ensure compliance with the same.

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Employment Litigation Alert >> Employers Need to Promptly Raise Plaintiff’s Failure to File Charges with the EEOC - Alert - 07/17/2019

With Fort Bend, the Supreme Court has set limits on an employer’s ability to dismiss a Title VII claim when the employee failed to raise a parallel claim with the EEOC. The Fort Bend decision serves as a warning that employers should promptly conduct a careful review of a Title VII claim raised against them to ensure it was raised in the corresponding EEOC complaint and, if a discrepancy exists, promptly assert the affirmative defense that the complainant failed to raise the claim before the EEOC.

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Labor & Employment Alert >> New York State Bans Salary History Inquiries and Expands Equal Pay Protections - Alert - 07/16/2019

New York’s new laws prohibit employers from inquiring about job applicants’ salary history, or from paying employees in any protected class less for substantially similar work. Employers should consider providing new training to human resources professionals and hiring managers regarding best practices for compliance with the new restrictions.

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Labor & Employment Alert >> New York State Legislation Significantly Expands Workplace Harassment Protections - Alert - 07/08/2019

New York State’s new legislation will provide workers with significantly expanded protections against workplace harassment, including a lower standard for asserting — and prevailing — on harassment claims and the availability of punitive damages and attorneys’ fees for successful claims. These changes build on the state’s 2018 reforms to the New York State Human Rights Law and other state laws, which required mandatory anti-harassment policies and training, as well as restrictions on the use of confidentiality and mandatory arbitration clauses with respect to sexual harassment claims. Governor Cuomo is expected to sign the bill into law; as such, employers should be aware of and prepare for the impending changes.  

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Labor & Employment Alert >> Massachusetts Issues Revised Regulations and Agency Guidance in Preparation for Paid Family and Medical Leave Law Taking Effect - Alert - 06/03/2019

Massachusetts employers should prepare for the state’s Paid Family and Medical Leave program taking effect by reviewing the updated draft regulations and agency guidance clarifying various issues under the law. In the short term, employers should particularly note the June 30, 2019 deadline to notify employees of the new law and the July 1, 2019 deadline to begin deducting contributions.

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Labor & Employment Alert >> New York Manual Workers Who Are Not Paid Weekly Can Bring an Action for Damages - Alert - 05/23/2019

New York employers should review and assess their pay practices in light of the recent interpretation of New York Labor Law’s frequency of pay requirements. Violation of the frequency of pay requirements may result in significantly monetary liability for liquidated damages, attorneys’ fees, costs, costs and interest.

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Labor & Employment Alert >> EEOC Requires Employers to Collect and Submit Pay Data by September 30, 2019 - Alert - 05/16/2019

Employers should immediately begin preparing to collect 2017 and 2018 employee pay and hours worked information (Component 2 Data) for submission by the September 30, 2019 deadline. To do so, employers should coordinate with their human resources and information technology teams, as well as their payroll providers, to ensure that the Component 2 data can be prepared in the appropriate format for reporting.

Employers should also keep in mind that sex and race/ethnicity reporting (Component 1 Data) is still due by May 31, 2019 as part of the annual EEO-1 report.

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Labor & Employment Alert >> New Jersey Expands Scope of Paid Family Leave and Benefits - Alert - 05/01/2019

New Jersey employers should review and revise their leave policies as necessary to comply with the new requirements. They should also be prepared to field increased requests for leave, given the expanded circumstances under which employees may take family leave. Additionally, smaller employers who previously may not have met the 50-employee threshold for the NJFLA should review the size of their workforce to determine whether they now have obligations under the NJFLA.

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Employment Litigation Alert >> Employers Risk FMLA Claims for Terminating Employees Whose Unexplained Absences May Be Medically Related - Alert - 04/15/2019

The Villagomez decision highlights the legal risks in automatically firing an “AWOL” employee. Under the FMLA, employers have an obligation to follow up on facts, however scant, suggesting that unexplained absences may be due to medical reasons. HR and supervisors should share what they know about the reasons for employee’s absences, and if any medical issue is revealed, gather more information or risk an FMLA lawsuit.

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Employment Litigation Alert >> Enhancing Enforceability of Restrictive Covenants Against Terminated Employees - Alert - 03/27/2019

Employers seeking to enforce post-employment restrictions against terminated employees will face an uphill battle if they are unable to demonstrate that the employee was terminated with cause. There are two ways for employers to mitigate this situation. First, they should maintain employee performance management systems and contemporaneously document performance issues. Second, they should ensure that separation agreements with terminated employees provide sufficient severance to the employee, with the employee re-affirming in the severance agreement the binding nature of the restrictive covenant.

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Labor & Employment Alert >> California Employee Non-Solicitation Provisions Face Unpredictability - Alert - 03/14/2019

The California Court of Appeal rejected an employee non-solicitation provision for recruiters, and one federal court in California has taken a broad reading of that decision and concluded that all employee non-solicitation provisions are invalid. This development serves as a reminder to employers to review their existing restrictive covenant agreements, particularly in California, to ensure that they are lawful and enforceable.

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Labor & Employment Alert >> New York City Law Expanding Employers’ Lactation Accommodation Obligations Goes Into Effect on March 18, 2019 - Alert - 03/06/2019

Before March 18, 2019, New York City employers with four or more employees should review their written policies and HR practices in advance to ensure that they have the appropriate space to satisfy the law’s lactation room requirements and that they provide a compliant lactation room accommodations policy to all new hires.

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Labor & Employment Alert >> California Employers Required to Provide Sexual Harassment Prevention Training to All Employees by January 1, 2020 - Alert - 11/05/2018

California employers should begin preparing to comply with the bill’s training requirements by the January 1, 2020 deadline. This is particularly important for smaller employers who may not have any sexual harassment prevention training programs in place due to the 50-employee threshold previously established by the state. Employers with operations across multiple states should be aware that certain other jurisdictions – including New York State, New York City and Delaware – have also recently passed sexual harassment prevention training requirements, each with their own employee thresholds and mandatory timeframes. (For instance, the New York State and New York City laws both require annual training; the New York State law mandates that the first such training be conducted by October 9, 2019. Additional information on the New York State law can be found here).

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Labor & Employment Alert >> Beginning October 29, 2018, New Jersey Employers Must Provide Paid Sick Leave - Alert - 10/10/2018

Before October 29 2018, New Jersey employers should review and revise their sick leave and paid time off policies to ensure compliance with the New Jersey Paid Sick Leave Act's requirements, including its carryover versus payout requirements. Employers will also need to revise their onboarding practices to include the form notice of rights that will be issued by New Jersey’s Commissioner of Labor and Workforce Development.

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Labor & Employment Alert >> New York City Law Requiring "Cooperative Dialogue" for Reasonable Accommodation Requests Goes into Effect on October 15, 2018 - Alert - 10/08/2018

New York City employers should act quickly to ensure compliance with new laws that expand employee reasonable accommodation and disability rights. At a minimum, employers should update employee handbooks to: (1) explain the procedures that eligible employees should follow when requesting reasonable accommodations; and (2) describe the cooperative dialogue process. Furthermore, employers should review the City's legal guide and model forms and consider how these materials can be utilized to ensure an effective reasonable accommodation and cooperative dialogue process for both employees and the company.

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Labor & Employment Alert >> New Massachusetts Law Specifies Requirements for Noncompetition Agreements  - Alert - 09/26/2018

With this Act going into effect on October 1, 2018, it is critical that employers in Massachusetts: (1) review their existing restrictive covenant agreements to ensure that they are enforceable, and (2) update their form documents to comply with the Act going forward.

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Employment Litigation Alert >> Employers May be Required to Accommodate Employees Who Request to Work Part Time Due to a Disability, Even if They had Previously Worked in Full-Time Roles - Alert - 09/06/2018

The fact that less than half of disabled individuals of typical working age report having jobs, despite protective laws like the ADA, means that courts are increasingly sympathetic to the requests of the disabled for accommodations. The Hostettler decision highlights a common problem for employers: namely how do they say "yes" to what other employees will characterize as "special treatment" for one employee, especially if the accom­modation is working from home and part-time, without having the remainder of their workforce becoming resentful or asking for similar treatment. Yet, the ADA, and many state statutes, make clear that the employer's priority, and legal obligation, is to make exceptions to company policies and practices for employees with disabilities, if such an accommodation is reasonable and will allow an otherwise disabled person to be able to do their job. Employers should resist "no" as a default answer to an accommodation request, even if they are otherwise tempted to dismiss a request to work part-time and remotely as out of the question.

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Labor & Employment Alert >> Stop Sexual Harassment Act Poster and Information Sheet Issued by NYC Commission on Human Rights  - Alert - 08/22/2018

To prepare for the new sexual harassment prevention requirements imposed by New York City law, employers should post the mandatory anti-sexual harassment rights and responsibilities poster in both English and Spanish. Employers should also incorporate the mandatory information sheet, either as a stand-alone document or in an employee handbook, as part of their onboarding packet for all new hires.

In addition, companies with employees in New York City and other jurisdictions are advised to consult with counsel on training options, strategies for incorporating both New York State and New York City anti-harassment training requirements into annual training programs, and recommended timing for rolling out training to current and new employees.

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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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