Labor and Employment

The State of the Law Regarding Marijuana and Drug Testing [Webinar Recording]

Theresa Green Leave a comment

On Tuesday, July 18th, Dan Deacon and Ashley Mitchell presented a webinar covering The State of the Law Regarding Marijuana and Drug Testing.

Recreational and medicinal marijuana are here to stay. Each year, it seems that several new jurisdictions legalize marijuana use in some form and momentum continues to build for change on the federal level. As such, it appears to be only a matter of time before marijuana is legalized throughout the entire country. However, with these changes comes the potential for more employees to be under the influence of both legal and illegal drugs at the workplace. So, what can employers do to maintain a safe workplace? What restrictions are there for testing employees for drug use? Can employers really impose a drug-free workplace policy considering these seemingly pro-marijuana laws?

This webinar explored the changing legal landscape concerning marijuana, analyze potential issues related to zero-tolerance policies and review tips for developing effective drug testing policies that will comply with fair employment laws as well as OSHA regulations.

Participants in this webinar learned: Continue reading →

NLRB Throws Its Hat Into the Non-Compete Provision Conversation

Samuel Rose Leave a comment

By Samuel S. Rose

On May 30, 2023, Jennifer Abruzzo, General Counsel at the National Labor Relations Board (NLRB), issued Memorandum GC 23-08 regarding Non-Compete Agreements. While the guidance memo is not law, it provides employers with context for the NLRB’s enforcement position and future policy decisions. This is the latest development on the issue of non-competes, with the FTC already considering a rule that would essentially prevent employers from entering into non-compete agreements with employees.

What Does the Memo Say? Continue reading →

Pay Transparency Laws and New State Laws re: Non-Compete Agreements [Webinar Recording]

Theresa Green Leave a comment

On Thursday, April 20, 2023, Daniel Deacon and Samuel Rose presented a webinar regarding Pay Transparency Laws and New State Laws re: Non-Compete Agreements.

Pay transparency laws have taken the country by storm. In December 2021, New York City Council passed a pay transparency measure that went into effect in November 2022. California passed a similar law that went into effect in January 2023. The trend will likely spread to other states across the country. This webinar explained the laws, compliance challenges, and some tips to make compliance easier. It also covered a general overview of new state laws regarding non-compete agreements, including the District of Columbia’s Ban on Non-Compete Agreements Amendment Act, which went into effect in October 2022.

Participants in the webinar learned: Continue reading →

Strategies for Responding to Whistleblower / Retaliation Complaints [Webinar Recording]

Theresa Green Leave a comment

On Tuesday, March 21, 2023, Jordan B. Schwartz, Lindsay A. DiSalvo, and Victoria L. Voight presented a webinar regarding Strategies for Responding to Whistleblower/Retaliation Complaints.

Over the past several years, employers have seen a significant uptick in retaliation claims filed by employees and investigated by federal agencies. For example, in 2010, only approx. 30% of all charges filed with the EEOC included a retaliation claim, but that number shot up to almost 60% in FY 2021. Similarly, the vast majority of whistleblower complaints filed with OSHA in FY 2022 – about 76% – were filed under Sec. 11(c) of the OSH Act (retaliation based on protected safety acts).

When a general retaliation or whistleblower complaint is received, employers have a chance to explain why the complaint should be dismissed. The response is an opportunity for the employer to provide information so the agency investigating the complaint can close its file; whether that means OSHA decides an onsite inspection is unnecessary or the EEOC dismisses the discrimination charge. The responses can, however, create a written record of admissions that OSHA or the EEOC could use against the employer. Employers should thus be strategic about the information shared at that early stage and should ensure there is a procedure in place for managing and developing these responses.

Participants in this webinar learned: Continue reading →

[Webinar] Strategies for Responding to Whistleblower / Retaliation Complaints

Theresa Green Leave a comment

On Tuesday, March 21, 2023 at 1 p.m. EST, join Jordan B. Schwartz, Lindsay A. DiSalvo, and Victoria L. Voight for a webinar regarding Strategies for Responding to Whistleblower/Retaliation Complaints.

Over the past several years, employers have seen a significant uptick in retaliation claims filed by employees and investigated by federal agencies. For example, in 2010, only approx. 30% of all charges filed with the EEOC included a retaliation claim, but that number shot up to almost 60% in FY 2021. Similarly, the vast majority of whistleblower complaints filed with OSHA in FY 2022 – about 76% – were filed under Sec. 11(c) of the OSH Act (retaliation based on protected safety acts).

When a general retaliation or whistleblower complaint is received, employers have a chance to explain why the complaint should be dismissed. The response is an opportunity for the employer to provide information so the agency investigating the complaint can close its file; whether that means OSHA decides an onsite inspection is unnecessary or the EEOC dismisses the discrimination charge. The responses can, however, create a written record of admissions that OSHA or the EEOC could use against the employer. Employers should thus be strategic about the information shared at that early stage and should ensure there is a procedure in place for managing and developing these responses.

Participants in this webinar will learn: Continue reading →

Navigating the New Normal: Remote Work Challenges [Webinar Recording]

Theresa Green Leave a comment

On Wednesday, February 22, 2023, Jordan B. Schwartz and Darius Rohani-Shukla presented a webinar regarding Navigating the New Normal: Remote Work Challenges.

There is no doubt that the COVID-19 pandemic triggered a significant surge in remote work nationwide, allowing more and more employees to work from their homes or some other location locally or in a completely different state from the employer’s brick and mortar location. This has created significant employment hurdles for employers because remote employees are generally subject to the laws of the city and state where they are physically located and perform work. Depending on state law and conflict of law principles, there may be exceptions for employees who are temporarily located in a state or not considered “based” within a state. But certainly for those who intend to continue to work from a different state on a more long-term basis, its likely that a particular state’s laws could apply.

And the challenges created by remote work are ones that are unlikely to disappear any time soon. Statistical projections show that by the end of 2022 remote work will make up about 25% of all jobs in North America. Notably, in 2021, about 67% of white-collar workers worked either partially or exclusively from home and almost 98% of remote workers surveyed said they would like to work remotely at least some of the time for the rest of their careers.

This desire to work remotely combined with the challenges in hiring and retaining workers that many employers are experiencing, makes it likely that employers will have to continue to grapple with if and how to incorporate remote work into their current structure, including how to effectively monitor employee performance and the employment laws that may be triggered related to this unique work environment.

Participants in this webinar learned: Continue reading →

Emerging Trend in Compensation Equity: Pay Transparency Laws

Lindsay A. DiSalvo Leave a comment

The federal government and individual states have prohibited inequity in compensation based on protected categories such as sex, race, ethnicity, and many others for decades under general anti-discrimination laws. For instance, at the federal level, it is impermissible to pay someone less because of their sex under the Equal Pay Act, which requires that men and women in the same workplace be paid equally for equal work. More broadly, Title VII of the Civil Rights Act prohibits discriminating against someone in the terms and conditions of employment, including pay, based on sex, race, color, national origin, and religion. And many states have similar laws with more extensive applicability and additional protected categories. However, it is only more recently that the discussion regarding pay inequity has moved to the foreground propelled by national social movements such as the MeToo and BlackLivesMatter movements, among others. With this more recent discourse around pay equity, there have also been some accompanying changes in the law, including a number of cities and states adopting pay transparency laws that give broader, more public access to pay information.

What are Pay Transparency Laws

Pay transparency laws generally require that employers disclose specific pay information to applicants, such as the wage, salary range, or pay scale for the position. The timing of such disclosures, the context in which such disclosures are required to be made, and the content of such disclosures varies depending on the state or local law. The goal of these laws is to more effectively address existing wage gaps and prevent against future wage gaps by providing greater openness and standardization of the salary range for a specific position no matter the applicant. Indeed, per recent earnings data at the end of 2022, White women earned about 83% percent as much as their White male counterparts while Black men earned about 79.6% of the median income of White men, among several other gaps identified based on sex, race, ethnicity, and age, per data collected by the United States Bureau of Labor Statistics.

Traditionally, specific employee salaries have been a subject treated as private information, not broadly shared or discussed. However, pay transparency laws require that this information be proactively provided, often through the actual job posting or at least some time during the application process upon an offer being made or by request of the applicant. Pay transparency laws also frequently go hand in hand with limitations on the information an employer can obtain about an applicant’s own pay history to avoid the potential of perpetuating a pay gap by using that information to determine current compensation.

Most Recent States that Have Adopted Pay Transparency Laws

Continue reading →

[Webinar] Navigating the New Normal: Remote Work Challenges

Theresa Green Leave a comment

On Wednesday, February 22, 2023 at 1 p.m. EST, join Dan Deacon and Darius Rohani-Shukla for a webinar regarding Navigating the New Normal: Remote Work Challenges.

There is no doubt that the COVID-19 pandemic triggered a significant surge in remote work nationwide, allowing more and more employees to work from their homes or some other location locally or in a completely different state from the employer’s brick and mortar location. This has created significant employment hurdles for employers because remote employees are generally subject to the laws of the city and state where they are physically located and perform work. Depending on state law and conflict of law principles, there may be exceptions for employees who are temporarily located in a state or not considered “based” within a state. But certainly for those who intend to continue to work from a different state on a more long-term basis, its likely that a particular state’s laws could apply.

And the challenges created by remote work are ones that are unlikely to disappear any time soon. Statistical projections show that by the end of 2022 remote work will make up about 25% of all jobs in North America. Notably, in 2021, about 67% of white-collar workers worked either partially or exclusively from home and almost 98% of remote workers surveyed said they would like to work remotely at least some of the time for the rest of their careers.

This desire to work remotely combined with the challenges in hiring and retaining workers that many employers are experiencing, makes it likely that employers will have to continue to grapple with if and how to incorporate remote work into their current structure, including how to effectively monitor employee performance and the employment laws that may be triggered related to this unique work environment.

Participants in this webinar will learn: Continue reading →

FTC Moves to Ban the Use of Noncompete Agreements by All Employers

Kara Maciel Leave a comment

By Kara M. Maciel and Samuel S. Rose

The Federal Trade Commission (FTC) has issued a Notice of Proposed Rulemaking for its proposed rule that would essentially prohibit employers from entering into noncompete agreements with any employee, independent contractors, interns, volunteers, and other types of workers. The FTC’s self-described mission is “protecting the public from deceptive or unfair business practices and from unfair methods of competition through law enforcement, advocacy, research, and education.” This proposed rule is the latest example of the FTC, under the direction of Chair Lina Khan, attempting to control corporate power and influence. Since Khan took over control of the agency in June 2021, the FTC has challenged the Microsoft-Activision merger, worked with the Justice Department to force Epic Games Inc., developer of the popular video game Fortnite, to agree to massive privacy law violation penalties, and filed a lawsuit to block Meta from buying a virtual reality start-up.

Generally, noncompete agreements prevent an employee from joining a competitor or starting a competitive business for a specified period of time. Often, noncompete agreements are limited to a geographic area.  Many states regulate noncompete agreements in a variety of ways, including through income levels and notice requirements, but this new federal rule would supersede any state or local law that expressly allows for such restrictions.

The FTC estimates that approximately 30 million people are bound by noncompete agreements. Continue reading →

[Webinar] Practical Advice for Responding to Administrative Charges of Discrimination and Retaliation

Theresa Green Leave a comment

On Wednesday, November 16, 2022 at 1 p.m. EST, join Lindsay A. DiSalvo and Megan S. Shaked for a webinar regarding Practical Advice for Responding to Administrative Charges of Discrimination and Retaliation.

When an administrative agency, like the federal Equal Employment Opportunity Commission (“EEOC”), receives a complaint of discrimination or retaliation, the employer is given an opportunity to respond and provide information/evidence pursuant to the agency’s investigation of the complaint. In its response, the employer can explain why the action taken against the employee was legitimate or did not occur as alleged. These responses are an opportunity for the employer to provide sufficient information to avoid further action by the administrative agency or potentially litigation of the claim(s). A strong response could demonstrate there is no support for the complaint and resolve the complaint in a favorable manner for the employer. However, these responses can also create a written record of admissions to which the agency can hold the employer accountable, and any supporting documentation may be closely scrutinized and used to establish liability. Thus, employers must be thoughtful in sharing information at this early stage and should ensure there is a procedure in place for managing and developing these responses.

Participants in this webinar will learn about: Continue reading →