In 2011 and 2013, Peri Domante’s personal information was stolen and fraudulently used to open two accounts with Dish Networks, LLC (“Dish”), a provider of television services. After being alerted to the fraud, Domante sued Dish for violation of the Fair Credit Reporting Act (“FCRA”).  The parties settled the lawsuit.  As part of the agreement, Dish promised to flag Domante’s Social Security number to preclude further unauthorized attempts to obtain Dish services. To implement this provision, Dish entered Domante’s personal information, including her date of birth and Social Security number, into an internal system designed to prevent unauthorized accounts from being opened. Continue Reading Eleventh Circuit Weighs in on FCRA “Legitimate Business Purpose,” Affirms Dismissal in Favor of Defendant Who Accessed Credit Report to Verify Identity and Eligibility

Q: What do I need to know about conducting workplace diversity and racial sensitivity training in light of Executive Order 13950?

Conscientious employers understand the importance of offering training to their workforces on diversity, equal employment opportunity, and unlawful discrimination and harassment prevention. Many employers are reviewing and refreshing their training programs considering recent social justice activities and the Black Lives Matter movement, and still more have issued related public statements regarding diversity, equity, and inclusion. But some of these employers (federal contractors) were thrown for a loop when President Trump issued Executive Order 13950 on September 22, titled “Combating Race and Sex Stereotyping.”

The executive order, which seeks to “combat offensive and anti-American race and sex stereotyping and scapegoating” and end so-called “divisive concepts” promulgated in workplace employee trainings, prohibits certain covered government contractors from conducting diversity and inclusion trainings that cover topics suggesting people of a certain race or gender are “inherently racist, sexist, or oppressive, whether consciously or unconsciously.”

The order applies to all contractors and subcontractors covered by Executive Order 11246 and over whom Office of Federal Contract Compliance Programs (OFCCP) has jurisdiction. It does not define or limit the term “contractor.” Thus, it appears that the new training requirements apply to all employees of a covered contractor, not only those in the division that transacts business with the federal government.

Many questions remain about the executive order’s implications, including whether it will survive legal challenges or the upcoming presidential election.  For the time being, however, Executive Order 13950 is in effect, and the OFCCP has confirmed that its requirements for federal contractors and subcontractors will apply to contracts entered into on or after November 21, 2020. Continue Reading Diversity, Equity, and Racial Sensitivity Training After Executive Order 13950

Q: What should my company know about employers’ voting leave obligations?

A: With Election Day only a few weeks away, now is a great time for a refresher on employers’ voting leave obligations. Federal law does not require giving employees time off to vote, but most states (30 at last count) provide employees with the right to take time off from work to vote. Continue Reading Employer Voting Leave Obligations

Q: What do I need to know about the proposed federal rule on independent contractor classification?

A: The U.S. Department of Labor (DOL) issued a proposed rule, making it easier for workers to be classified as independent contractors under the Fair Labor Standards Act (FLSA).

When evaluating independent contractor classifications under the FLSA, courts traditionally have applied the “economic realities” test, which relies on balancing seven factors. However, this has resulted in inconsistent court rulings and confusion among companies and individuals. The DOL’s proposed rule adopts a modified version of this test, focusing on certain factors, while clarifying others. Continue Reading DOL Proposes New Rule Clarifying Independent Contractor Status

Q: Did the Pennsylvania Department of Labor & Industry amend regulations to increase the minimum salary employees must receive in 2021 and beyond?

A: The Pennsylvania Department of Labor & Industry recently amended Pennsylvania Minimum Wage Act (PMWA) regulations to increase the minimum salary employees must receive in 2021 and beyond to qualify for one of the so-called “white collar” (i.e., executive, administrative, and professional) exemptions from overtime pay. The final rule became effective on October 3 after its publication in the Pennsylvania Bulletin. Consequently, the state overtime regulations under the PMWA will now differ from the federal overtime regulations under the Fair Labor Standards Act (FLSA) in two important ways. First, starting on October 3, 2021, the PMWA will require a higher minimum salary than required by federal law. Second, the minimum salary required under the PMWA will adjust automatically every three years starting in 2023. Continue Reading Minimum Salary Threshold for Pennsylvania White Collar Exemptions to Increase in 2021 and Beyond

Q: What do I need to know about the recently enacted Philadelphia ordinance providing Philadelphia employees with paid public health emergency leave?

A: On September 17, Philadelphia Mayor Jim Kenney signed an ordinance, providing paid “public health emergency” leave benefits to workers in Philadelphia who physically report to their jobs and who may not have been covered by the Families First Coronavirus Response Act (FFCRA) — including employees working for businesses with more than 500 employees. The ordinance applies to all employees (and some nonemployees, including independent contractors) working within the geographic boundaries of the City of Philadelphia for at least 40 hours in a year. Potential nonemployees covered by the ordinance include domestic workers (e.g., housekeepers), health care professionals, home care workers, and gig workers (e.g., individuals driving for rideshare or food delivery services). Continue Reading Philadelphia Adopts Public Health Emergency Leave Ordinance

Q: Is there new legislation that expands COVID-19 protections to California employees?

A: Since the beginning of 2020, employers have had to make significant changes to their operations due to an increasing number of newly enacted legislation and requirements in response to the COVID-19 pandemic. As we enter the final quarter of 2020, California employers must again quickly respond to new legislation that expands COVID-19 protections to California employees and imposes stringent requirements on California employers. This month, California Governor Gavin Newsom signed three COVID-19-related bills into law that affect employee rights: (1) SB 1159, (2) AB 659, and (3) AB 1867.

Senate Bill 1159: “Workers’ Compensation: COVID-19”

Effective immediately for California employers with 5 or more employees, Senate Bill 1159 creates a presumption of entitlement to workers’ compensation benefits for employees infected with COVID-19 if:

  • The employee tested positive for or was diagnosed with COVID-19 within 14 days after performing labor or services at the employee’s “place of employment” (excluding the employee’s residence) at the employer’s direction; and
  • The employee tests positive during an “outbreak” at the specific place of employment (as determined by the employer’s claims administrator).

Continue Reading California Governor Expands COVID-19 Protections for California Employees and Imposes Additional Requirements on California Employers

Q: What are the details of Assembly Bill (AB) 2257 and how does it change the way I utilize independent contractors?

A: On September 4, 2020, Gov. Gavin Newsom signed Assembly Bill (AB) 2257, which substantially revises and clarifies the exemptions to AB 5, a recently passed California statute that effectively precludes many industries from being able to utilize independent contractors.

AB 5 was signed into law on January 1, 2020, and requires using the “ABC Test” to determine whether a worker in California is an employee or independent contractor under the Labor Code, the Unemployment Insurance Code, and the Industrial Welfare Commission wage orders. Under the ABC Test, to defeat claims premised on independent contractor misclassification, a defendant must demonstrate: (A) the worker is free from control and direction of the hiring entity in connection with performing the work, both under contract and in fact; (B) the worker performs work outside the usual course of the hiring entity’s business, and; (C) the worker customarily engages in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity. Many industries have complained about component (B), which effectively precludes independent contractors from performing work in the business of the hiring company. Continue Reading AB 2257: A Significant Expansion of California Independent Contractor Laws

Q: What does the latest decision on joint employer liability mean for businesses?

A: On September 8, 2020, the United States District Court for the Southern District of New York issued a decision overturning the U.S. Department of Labor’s (DOL) March 2020 Final Rule, which had adopted a narrow four-factor test for determining joint employer liability in “vertical” employment relationships, such as contractor/subcontractor, franchisor/franchisee and company/staffing agency relationships. The test set forth in the Final Rule looked at whether the putative joint employer (i) hires or fires the employee; (ii) supervises and controls the employee’s work schedule or conditions of employment to a substantial degree; (iii)  determines the employee’s rate and method of payment; and (iv) maintains the employee’s employment records. These factors looked to the degree of control as the standard for determining joint employment, which was a sharp departure from prior DOL guidance which looked more broadly at the economic dependence between the parties. Continue Reading Southern District of New York Judge Strikes Down Department of Labor Standard for Joint Employment

HiringToFiring.Law is your go-to blog for information and guidance on every phase of employment — from interviewing potential candidates, to the first day of work, to the difficult decision to let someone go. Our authors cover the intersection of employment law, human resources counseling and employment litigation, where no question is too small in the effort to protect employers from risk.

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