Q: What are the risks to a company when making a public statement about ongoing employment litigation?

A: A federal judge in Washington, DC recently allowed a pair of married former law firm associates, suing the firm for sex discrimination, to add retaliation claims to their lawsuit for allegedly “false and malicious” statements the firm made about them in an August 2019 press release. See Savignac, et al v. Jones Day, et al, U.S. District Court for the District of Columbia, No. 19-cv-02443.

By way of background, plaintiffs Julia Sheketoff and Mark Savignac sued Jones Day over a parental leave policy they claimed illegally discriminates against men by offering biological mothers eight more weeks of leave than biological fathers. They also accused the firm of firing Savignac because he challenged the firm’s policy and underpaying Sheketoff because of her sex. After they filed the highly publicized lawsuit in August 2019, the firm circulated a press release about the lawsuit. Continue Reading A Company’s Press Release May Be Used Against It In Employee’s Retaliation Litigation

Register Here
Thursday, July 15 • 2:00 – 3:30 p.m. ET

Please join members of the Troutman Pepper Labor and Employment and Employee Benefits and Executive Compensation Teams, along with guest Steve Kapper, Associate Client Partner at Korn Ferry, as they discuss the “new” workplace and how to prepare for the next pandemic/economic recession.

Our team will discuss:

  • Employee Benefits and Executive Compensation
  • Health and Well-being Programs
  • Mental Health Programs
  • Independent Contractors
  • Terminations/Reductions in Force
  • Telework and Other Staffing Arrangements

Q: Are there any state laws employers should think about when implementing COVID-19 vaccine policies?

A: Yes, multiple states have passed or are considering laws related to COVID-19 vaccine policies.

Savvy employers tracking the latest guidance likely know the many sources of federal guidance pertaining to COVID-19 vaccines in the workplace. For instance, the Centers for Disease Control and Prevention (CDC) made headlines with its May 13 guidance loosening face mask and distancing restrictions for fully vaccinated individuals, as did the Equal Employment Opportunity Commission (EEOC) with its updated COVID-19 vaccine Q&As. Just recently, the Occupational Safety and Health Administration (OSHA) announced an emergency temporary standard for health care employers and updated guidance for employers in other sectors. As if that wasn’t enough, multiple states also have passed laws impacting employers looking to implement a COVID-19 vaccination program. Continue Reading Move Over, CDC: State Laws May Impact Employers’ COVID-19 Vaccine Plans

* Michael T. Byrne is a 2021 summer associate at Troutman Pepper. He is not admitted to practice law.

Q: Are California employers required to rehire employees they laid off for reasons related to the COVID-19 pandemic?

A: Yes, but only if the employer falls within certain industries and establishes an open job position for which one of its laid-off employees is qualified. Under California’s Senate Bill No. 93 (SB 93), if a covered employer opens a job position and has previously laid off workers due to reasons related to the COVID-19 pandemic, the employer must first offer the position to eligible laid-off employees within five days of establishing the position.

Continue Reading California Provides Right to Recall to Certain Employees Laid off Due to COVID-19

* Sean M. Craig is a 2021 summer associate at Troutman Pepper. He is not admitted to practice law.

Q: Does Philadelphia have any laws regulating drug testing for marijuana? 

A: Philadelphia recently passed an ordinance that prohibits employers from requiring “a prospective employee to submit to testing for the presence of marijuana in such prospective employee’s system as a condition of employment.” The ordinance will take effect on January 1, 2022, and applies to any person doing business in the city who employs one or more employees.

The ordinance does not prohibit pre-employment testing of certain types of employees, including police and other law enforcement positions, any position requiring a commercial driver’s license, and any position that requires the supervision or care of children, medical patients, disabled people, and other vulnerable persons. Also, there are exceptions from the pre-employment testing prohibition, for instance, where drug testing would otherwise be required by applicable law, including a federal or state statute or regulation; where the federal government requires testing as a condition of the receipt of a contract or grant; or where testing is pursuant to a valid collective bargaining agreement. Continue Reading New Philadelphia Ordinance Prohibits Pre-Employment Marijuana Testing

Q: I heard that companies entering into commercial contracts in Pennsylvania can no longer restrict each other from hiring their employees. Is that true?

A: On April 29, the Supreme Court of Pennsylvania held in Pittsburgh Logistics Systems, Inc. v. Beemac Trucking LLC, et. al. that a no-hire provision (commonly referred to as a “no-poach” provision) in a service contract between two business entities was unenforceable as an impermissible restraint of trade because it was overbroad and created a likelihood of harm to nonparties to the contract (i.e., affected employees and the general public). This decision comes at a time where there has been considerable concern that no-poach agreements violate federal and state antitrust laws. In this case, however, the Court did not conclude that all no-hire provisions found in commercial contracts are void as a matter of state law. Continue Reading Pennsylvania Supreme Court Voids No-Hire Provision in Service Contract Between Two Employers

Q: Do Trump-era FLSA regulations governing independent contractor classification and joint employer status (still) apply?

A: The U.S. Department of Labor (USDOL) announced its decision to reverse a Trump-era rule governing the employee/independent contractor distinction under the Fair Labor Standards Act (FLSA) that was scheduled to go into effect on March 8. The decision comes on the heels of another recent announcement by the Biden administration that requested public comment about its intention to rescind the Trump-era regulations governing joint employment under the FLSA, which went into effect in March 2020. Both reversals have significant implications for whether a company is considered an employer under the FLSA and thus subject to minimum wage, overtime, and recordkeeping requirements under the statute. Continue Reading Biden Administration Eliminates Key Trump-Era Regulations for Employment Relationships Under FLSA

Q: Is medical marijuana an expense reimbursable by the employer?

A: For New Jersey employers, the answer is likely yes. Weednews reports that as of January 9, New Jersey and 34 other states have legalized marijuana for medical use, although it remains a Schedule 1 controlled substance at the federal level. As a result, patients have had to pay out of pocket for medical marijuana, as insurers contend that covering the cost would violate the federal prohibition on marijuana under the Controlled Substances Act (CSA). Recently however, the New Jersey Supreme Court unanimously affirmed the ruling in Hager v. M&K Construction, 462 N.J. Super. 146 (App. Div.), that an employee injured in the workplace is eligible to have medical marijuana costs reimbursed by his/her employer under New Jersey’s state workers’ compensation laws. Continue Reading New Jersey: Medical Marijuana Costs Reimbursable in Workers’ Compensation Scenario

This article was originally published by the EACCNY. It is republished here with permission.

Authors
Jessica Rothenberg, Associate, Troutman Pepper
Dr. Tobias Polloczek, Partner, CMS Hasche Sigle
Dr. Justus Redeker, Partner, CMS Hasche Sigle

As COVID-19 vaccination roll-outs become more widespread in the United States and the European Union, employers should proactively consider the impact of vaccinations on return to work policies and practices. The extent to which employers are allowed to dictate vaccination policies varies by country, and the practical approaches employers are taking also varies by country. This article discusses key aspects of the legal landscape for workplace vaccination policies in the U.S. and the EU,[1] as well as important practical considerations. For more details on the legal situation regarding vaccination and testing in the individual EU member states, please also see the recently published “CMS Expert Guide to Vaccination and Testing for Employers.” Continue Reading COVID-19 Vaccination in the EU and the U.S.: The Employer Perspective