Today, October 26, 2023, the National Labor Relations Board issued a final rule that rescinds and replaces the Trump Administration’s 2020 rule establishing the current test for determining whether two entities are joint employers. This new rule will result in more findings that two entities are joint employers. Under federal labor law, a joint employer is required to bargain with a union selected by its jointly-employed workers and may be held liable for the unfair labor practices committed by the other employer.Continue Reading NLRB Returns to a More Expansive Joint Employer Standard
The Maryland General Assembly’s 2023 session ended at midnight on Monday, April 10. Although there were fewer employment bills passed this year compared to recent years, several of them will have a significant impact on employers, including an expedited increase to the minimum wage rate and some clarification around and a delay to the new paid family and medical leave benefits program. There was also an expansion to the non-compete ban, as well as new authority for the Maryland Attorney General to pursue discrimination claims against employers. Finally, although the cannabis reform bill does not directly speak to the general workplace impact, there are developments of which employers should be aware. We will be holding a webinar with the Maryland Chamber of Commerce at noon on May 3, 2023 to provide guidance on compliance with these new laws.Continue Reading New Employment Laws in Maryland – Expedited Minimum Wage Increase, Changes to Paid Family and Medical Leave, and More (and a Webinar!)
As has been widely reported, including in our February E-Update, the National Labor Relations Board recently asserted that severance agreements may not contain general non-disparagement or confidentiality/non-disclosure clauses, based on its premise that such clauses violate the rights of employees under Section 7 of the National Labor Relations Act to engage in concerted activity for their mutual aid or protection (i.e. “protected concerted activity”). This ruling was troubling for unionized and non-union employers alike. General Counsel Jennifer Abruzzo has now issued a memo expressing her views regarding the practical impact of this ruling. Continue Reading NLRB General Counsel Provides (Some) Clarification on Severance Agreement Non-Disparagement and Confidentiality Provisions
On February 22, 2023, the U.S. Supreme Court issued its opinion in Helix Energy Solutions Group, Inc. v. Hewitt, clarifying that, in order to qualify for the highly compensated employee (HCE) exemption from the Fair Labor Standard Act’s overtime mandate, the employee must be paid on a salary basis, and the payment of a daily rate does not constitute a salary.Continue Reading Supreme Court Provides Clarification on the Highly Compensated Employee Exemption’s Salary Requirement
In the latest salvo in the battle over the classification of workers as independent contractors or employees, the U.S. Department of Labor announced the publication of a new proposed interpretation. The final document set forth in Notice of Proposed Rulemaking will not be an actual rule or regulation, because the DOL has no statutory authority to define the distinction between independent contractors and employees in a way that is binding on courts. Rather, the interpretation is published as a guide as to how the Department will enforce the Fair Labor Standards Act, and in the hope that courts will defer to the DOL’s views on the subject.
Continue Reading Department of Labor Proposes Independent Contractor Interpretation
A new federal law allows employees to avoid arbitration agreements with respect to sexual harassment or sexual assault claims. The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 applies to pre-dispute arbitration agreements, such as those included in employment contracts or stand-alone arbitration agreements entered into at the time of hire. Many employers have adopted arbitration agreements because such agreements can contain enforceable waivers of the right to bring collective or class actions. They also avoid the risk of run-away jury verdicts.
Continue Reading New Law Lets Sexual Harassment Claimants Get Out of Arbitration Agreements
As many employers implement a COVID-19 vaccination-or-weekly-testing mandate (soon to be required of all employers with 100+ employees, as we discussed here), a recurring issue is whether the time that employees spend getting that weekly test must be paid under federal and state wage and hours laws. And the answer is a lawyerly, “Well, it depends.” (Of course).
Continue Reading Do Employers Have to Pay For COVID-19 Testing Time?
In addition to the voluntary extension of the Families First Coronavirus Response Act’s paid leave provisions, which we discussed in our December 22, 2020 E-lert, the Coronavirus Response and Relief Supplemental Appropriations Act (the Act), included in the massive (5593 page) stimulus bill signed into law on December 27, 2020, expands or extends relief benefits under the Coronavirus Aid Relief and Economic Security (CARES) Act, discussed in our March 27, 2020 and March 30, 2020 E-lerts. Specifically, the Act clarifies the tax treatment of Paycheck Protection Program (PPP) loans, permits second PPP loans to certain borrowers, expands eligibility for first PPP loans, adds to the list of forgivable expenses; expands the employee retention credit, and extends enhanced unemployment benefits.
Continue Reading Beyond Voluntary Paid Leave: What Are the Other Employment-Related Provisions of the Coronavirus Relief Act?
My Zoom Trial
Last week I had my first Zoom trial in state court. It was a bench trial in a breach of contract case. I worked from my home office.Continue Reading My Zoom Trial
The U.S. Department of the Treasury issued, on August 28, 2020, a Notice concerning President Trump’s Presidential Memorandum concerning employers’ deferral of payroll taxes. Here are the key points:
Continue Reading Treasury Department Provides Guidance on President Trump’s Deferral of Payroll Taxes