NLRB Finalizes Joint Employer Rule

Joint EmployerOn February 26, 2020, the National Labor Relations Board (“NLRB”) published its final joint employer rule in the Federal Register, which tightens the test used to analyze whether workers are jointly employed by affiliated businesses. The final rule is intended to roll-back the stricter Obama-era standard that business interests have longed to overturn.

History of Joint Employer Rule

Under longstanding NLRB precedent, two employers could be joint employers if they shared or codetermined matters governing the employees’ essential terms and conditions of employment. Until 2015, to be a joint employer, a business had to exercise “direct and immediate” control over these employment matters

Then, the Obama-era NLRB overruled the old standard in its decision in Browning-Ferris, and substantially relaxed the standards for proving joint Continue reading

[Webinar] Illinois and DC Area State Law Update

On Thursday, February 20, 2020 at 1:00 PM Eastern, Aaron R. Gelb and Daniel C. Deacon will present a complimentary webinar regarding “Illinois and DC Area State Law Update.”

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The New Year brings a host of changes and challenges for Illinois employers as the legislature passed and Governor Pritzker signed, in 2019, a variety of new labor and employment laws that go into effect in 2020. These new laws promise to keep employers busy as they revise and update employee handbooks, develop new training programs, reevaluate their arbitration agreements and deal with the decriminalization of marijuana. Beginning in January 2020, employers will be faced with an expanded Illinois Human Rights Act that applies beyond the physical workplace, covers non-employee contractors and protects against discrimination based on perceived (in addition to actual) protected status. Continue reading

Time’s Up:  Illinois Employers Are On The Clock To Provide Sexual Harassment Training

Late last year, we summarized the many new employment laws with which Illinois employers would have to comply in 2020, including the requirement to provide sexual harassment training by the end of the year.  Now that 2020 is not so new anymore, employers should begin preparations to comply, so they are not left scrambling later this year.  This article will summarize the key points you need to know to stay compliant.

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  • Does this law apply to me—what is the threshold for coverage?

One and done—in other words, if you have at least one employee, the law applies to your company and you must train that employee… presumably in a one-on-one session.

  • What must we cover in the training session(s)?

Presently, we know that employer-provided training must cover, at a minimum, the following topics:

  1. an explanation of sexual harassment consistent with the Illinois Human Rights Act (IHRA);
  2. examples of conduct that constitutes unlawful sexual harassment;
  3. a summary of relevant federal and state statutory provisions concerning sexual harassment, including remedies available to victims of sexual harassment; and
  4. a summary of responsibilities of employers in the prevention, investigation, and corrective measures of sexual harassment.
  • Who must be trained and when?

The law went into effect on January 1, 2020, but employers have until the end of the year—December 31, 2020—to provide the required training to both employees and managers.  There is no exception Continue reading

The PBGC Acts to Level Withdrawal Liability’s Procedural Playing Field

shutterstock_pensionThe recent action by the Pension Benefit Guaranty Corporation (“PBGC”) to rein in run-away filing fees imposed by the American Arbitration Association (“AAA”) brings to mind Homer Simpson’s declaration that alcohol was “the cause of, and solution to, all of life’s problems.” In a like manner, the PBGC can be seen as the cause of, and now (happily) the solution to, the very steep filing fees previously imposed by the AAA on withdrawn employers.

By way of background, for many years, employers assessed withdrawal liability faced a Hobson’s choice: either pay the fees demanded by the AAA to initiate arbitration, or forego any chance to challenge the assessment. Of course, by failing to initiate arbitration, the amounts demanded by the pension fund become, in the words of the statute, “due and owing on the schedule set forth by the plan sponsor.”

This unpleasant situation for employers – pay up, or else – was set in motion by a PBGC regulation that allows pension funds to impose the AAA rules (and the required filing fees) on withdrawn employers. That regulation purports to allow Continue reading

How Employers Can Respond to the 2019 Novel Coronavirus Outbreak

By:  Kara M. Maciel and Beeta B. Lashkari

Medical ExamThe 2019 Novel Coronavirus (“2019-nCoV” or “coronavirus”) is a respiratory illness that, with its spread to the United States, is raising important issues for employers.  This guide explains the outbreak, the legal implications of it, and how employers should be responding now to employees who might have the virus, are caring for affected family members, or are otherwise concerned about their health in the workplace.

The Coronavirus Outbreak

First detected in Wuhan, Hubei Province, China, 2019-nCoV is a respiratory virus reportedly linked to a large outdoor seafood and animal market, suggesting animal-to-person spread.  However, a growing number of patients reportedly have not had exposure to animal markets, indicating person-to-person spread is occurring.  At this time, it is unclear how easily the virus is spreading between people.  Symptoms of coronavirus include fever, cough, difficulty breathing, runny nose, headache, sore throat, and the general feeling of being unwell.  The incubation period is approximately 14 days, during which time an individual may see no symptoms but may still be contagious. Continue reading

Challenges to New California Independent Contractor Law and Ban on Mandatory Arbitration Agreements Wind Through the Courts

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As expected, there have been a number of legal challenges to California Assembly Bills 5 and 51, both of which were signed into law by California Governor Gavin Newsom and set to go into effect on January 1 of this year.

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DC Paid Family Leave: February 1st Posting/Notice Requirement and More

As of July 1, 2020, eligible employees in the District of Columbia (“DC”) will be entitled to paid leave up to a designated period depending on the qualifying leave event.DC Flag for Blog  Covered employers should have begun making paid family leave contributions beginning July 1, 2019.  Specifically, covered employers must contribute a quarterly payroll tax of 0.62% of covered employees’ total gross wages from the immediate past quarter.  In addition to paying the required quarterly payroll tax, there are several other aspects of the law of which employers should be aware.  Here, we review and highlight important aspects of DC’s Paid Family Leave law, including the February 1st posting/notice deadline.  For additional discussion on the DC Paid Family Leave law and frequently asked questions, please also see our prior post.

Covered Events and Applicable Leave Periods

As you may know, the DC Paid Family Leave law provides leave benefits to eligible employees for three types of leave: (1) parental leave; (2) family leave; and (3) medical leave.  “Parental leave” includes events associated with the birth of a child, placement of a child with the employee for adoption or foster care, and placement of a child with an employee who legally assumes and fulfills parental responsibility for the child.  “Family leave” is leave taken to care for a family member with a diagnosis or occurrence of a serious health condition.  And “medical leave” is leave taken to attend to one’s own diagnosis or occurrence of a serious health condition. Continue reading