Q. My company uses dash-cams to monitor driver conduct, but the company is not located in Illinois. Do I still have to comply with the Biometric Information Privacy Act?

A. Yes, as long as the company has drivers who are Illinois residents, you must comply with BIPA. The good news, however, is that as long as your company fully complies with the statute, it can continue to use telematics.

Continue Reading Drivers’ Telematics Violates BIPA

Q: Now that 2021 is behind us, what are the new California employment law changes for 2022?

A: While employers continued to grapple with the effects of COVID-19 on their businesses, last year’s California legislative actions led to relatively fewer employment law changes than usual for the upcoming 2022 year. Below find descriptions of new employment-related changes, including new rules for severance agreements, expanded limitations on confidentiality and nondisparagement provisions in settlement agreements, extended recordkeeping requirements, changes to the California Family Rights Act, arbitration, COVID-19 compliance, wage and hour, and industry-specific developments.

Continue Reading Overview of New California Employment Laws

Q: Has New York City provided any additional details on the employer vaccination mandate?

A: As we previously discussed, effective December 27, all private employers in New York City will be required to implement a vaccine mandate for their employees. The policy must provide that all employees who work in-person in a workplace with other co-workers are required to have at least one dose by December 27.

Employers must complete an Affirmation of Compliance with Workplace Vaccination Requirements (available here) and post the completed affirmation in a public place.
Continue Reading NYC Releases Guidance on December 27 Vaccination Mandate

Q: I heard New York City just announced an employer vaccination mandate. What do I need to know?

A: On December 6, Mayor Bill de Blasio announced that effective December 27, all private employers in New York City will be required to implement a vaccine mandate for their employees. Employers will be required to implement a policy under which all employees who work in-person in a workplace with other co-workers are required to have at least one dose by December 27. Although many details have not yet been announced, based on Mayor de Blasio’s comments thus far, no alternate testing option is expected. The mandate is expected to affect approximately 184,000 businesses in New York City.
Continue Reading NYC Implements Employer Vaccination Mandate Effective December 27

Q: Is proof of conspiracy required to state a claim that a no-poach agreement violated antitrust laws?

A: Many recent no-poach agreement antitrust claims have risen within the franchise context, where the alleged agreement was plainly described in the operative franchise agreements. In those cases, the parties fought over what standard of review should apply to the undisputed agreement. However, franchise cases are the exception not the norm. Many, if not most, Sherman Act Section 1 claims rise or fall on the plausibility of the allegations of an agreement, often oral, between the accused firms. Recently, the Ninth Circuit affirmed a district court’s dismissal of a factually threadbare no-poach antitrust claim. In Fonseca v. Hewlett-Packard Co.,[1] a former employee of Hewlett-Packard Co. (HP), who was fired by HP and not hired by one of HP’s competitors, alleged HP had entered into an illegal no-poach agreement with the competitor. Highlighting that no-poach antitrust cases require more than simply allegations of agreements and parallel conduct, the Ninth Circuit upheld the district court’s dismissal because the allegations of a conspiracy did not make sense and were not plausible. The decision serves as a poignant reminder that despite the class action bar’s and various government enforcement agencies’ (FTC, DOJ, and states attorneys general) stated desire to use the antitrust laws to protect employees’ wages and mobility, the law requires sufficient proof of a conspiracy to get beyond the pleadings stage of litigation.
Continue Reading No-Poach Case Against HP Dismissed for Failure to Allege a Plausible Conspiracy

Q: What new employment laws impact Oregon employers?

A. The employment law landscape is shifting in Oregon, with this year’s legislative session bringing several noteworthy changes to the state’s employment laws. In this blog post, we explore some of the more significant changes passed in 2021 and forecast what may come our way in the months ahead.

Continue Reading Oregon Employment Law Update

* Faith Simms is a 2021 summer associate at Troutman Pepper. She is not admitted to practice law.

Q: Can an employer be found liable for terminating an employee for misconduct after an investigation initiated by a biased supervisor?

A: In a recent decision issued by the Seventh Circuit, Vesey v. Envoy Air, Inc., the court held that the employer was not liable under the cat’s paw theory even though the investigation leading to the employee’s termination was initiated by a biased manager. The cat’s paw theory of liability applies to circumstances where a biased individual, who lacks decision-making power, influences the decision-maker into taking adverse employment action against the employee.

Continue Reading Seventh Circuit Dismisses Retaliation Claim Brought Under Cat’s Paw Theory of Liability

Q: I understand the NY DOL recently released model plans for the NY HERO Act. What do employers need to do to comply?

A: The New York Health and Essential Rights Act (NY HERO Act or Act) requires employers to implement workplace health and safety measures to protect employees during a future airborne infectious disease outbreak. The Act applies to all private employers and to all worksites.

Continue Reading New York DOL Releases Model Plans Under HERO Act

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: I received an email from an employee stating that he is sick, but will be working from home.  Should I allow my employee to work remotely while sick?  What are the FLSA implications of allowing an employee to work from home while sick?

A: The practice of working remotely or telecommunicating has become increasingly popular given technological advancements like smart phones, videoconferencing, and instant messaging services.  While telecommuting provides several benefits for employers and employees, it can also create new challenges such as when employees opt to work from home while sick.
Continue Reading FLSA Implications When Telecommuting Due to Illness