Information and guidance on every phase of employment
Q. What is the current standard for determining whether an individual is an employee or independent contractor for purposes of the NLRA?
A. On Jan. 25, 2019, the Republican-led National Labor Relations Board affirmed the acting regional director’s decision that drivers of a shared airport ride service were independent contractors,…
Q: Can my company refuse to hire or terminate an individual because the individual is a medical marijuana user?
A: Not necessarily. While we have not seen any laws to date explicitly requiring employers to accommodate employees’ use of marijuana for medicinal purposes while at work, in some states at least, employers may not terminate employees for their use of medical marijuana outside of the workplace, even if it means that the employee tests positive in a drug screen.
Q. Can two business entities agree not to hire each other’s employees?
A. On January 11, an en banc panel of the Superior Court of Pennsylvania affirmed a trial court’s decision declaring that a no-hire provision in a commercial contract between two businesses was void and unenforceable under Pennsylvania law.…
Q. I’m the HR Director of a large company that is planning a reduction in force in one of our divisions. We intend to offer early retirement incentives to some of the individuals, contingent on them signing an agreement to waive all future claims against the company under the applicable discrimination laws, including the Age Discrimination in Employment Act (ADEA). What information needs to be included in the waiver to comply with ADEA requirements?
A. Companies with plans to implement a reduction in force should proceed with caution following a recent decision in which the court found that a waiver and release of claims signed by an outgoing employee violated federal age discrimination laws. On January 11, 2019, in Ray v. AT&T Mobility Services, LLC, a federal judge in the Eastern District Pennsylvania held that AT&T violated the ADEA by giving employees a waiver that failed to meet the strict informational requirements of the Older Worker Benefit Protection Act (“OWBPA”). The court found that the waiver lacked sufficient details regarding members of the overall decisional group, and therefore, affected employees did not have the information necessary to make an informed decision about whether to waive their right to assert claims against the company under the ADEA.
Q: Does using social media advertisements targeted to younger potential applicants raise age discrimination concerns?
A: The Age Discrimination in Employment Act (“ADEA”) makes it illegal to discriminate against workers over the age of 40 in employment advertising, recruiting, hiring, and other employment opportunities. The publication provision of the ADEA generally makes it unlawful to “print or publish” job notices or advertisements “indicating any preference, limitation, specification or discrimination, based on age.” Age preferences for younger employees are only appropriate when age is demonstrated as a bona fide occupational qualification that is reasonably necessary for the normal operation of the business.
Q: I have employees in Connecticut. What do I need to know about the new pay equity law?
A: Effective January 1, 2019, employers are not allowed to: (1) inquire (whether directly or through a third party) about a prospective employee’s wage history; or (2) prohibit employees from disclosing or discussing the amount of their wages or the wages of another employee that has been voluntarily disclosed by the other employee.
Q. Can you explain to me Philadelphia’s new Fair Workweek Ordinance?
A. In late December 2018, Philadelphia Mayor Jim Kenney signed an Ordinance that will require large fast-food chains, retailers, and hotels to provide employees with advance notice of their schedules and a variety of other protections. The Ordinance—known as the “Fair Workweek” Ordinance—requires certain Philadelphia employers to provide employees with at least two weeks’ advance notice of their schedules, offer remuneration to employees if their schedules are changed, and provide minimum periods of rest in between shifts. The Ordinance is similar to ordinances adopted in New York, San Francisco, and other large cities. It is scheduled to become effective on January 1, 2020.
Q. My company conducts operations in several locations throughout New York State. What do I need to know about the upcoming minimum wage increases and new salary threshold requirements for our administrative and executive level employees?
A. Employers in New York State should prepare to ring in the New Year with yet another increase in the minimum wage, as well as substantial increases in the salary thresholds for exempt executive and administrative employees. In 2016, as part of a sweeping overhaul of the state’s wage and hour law, the New York Department of Labor amended the rules to provide for annual increases across the spectrum of wages, with the third phase set to go into effect on December 31, 2018.
Q. Are there any steps we should take to protect our company from liability in the #MeToo era?
A. A year ago, sexual assault allegations against movie mogul Harvey Weinstein rocked the entertainment industry and quickly led to the rise of the #MeToo movement, sparking an upsurge of reports and claims of sexual harassment in workplaces across America. In many cases, the alleged misconduct is not new. But the intensity, tone, and tenor of the claims — and the sheer volume of allegations — has been dramatically different and has had significant effects on businesses caught in the cross-hairs.
Q. Are there any limitations on my company’s ability to require employees to submit to drug and alcohol testing after an accident?
A. In May 2016, OSHA published a final rule that, among other things, amended the Occupational Safety & Health Act (OSH Act) to prohibit employers from retaliating against employees for reporting a work-related illness or injury. In the preamble to that final rule, OSHA cautioned that a blanket rule that mandates drug/alcohol testing after every accident, injury or illness could be seen as retaliatory. Instead, before requiring an employee to submit to post-accident testing, OSHA said that there must be a “reasonable possibility” that drug or alcohol use caused or contributed to the reported injury or illness. Thus, for example, it would not make sense to test an employee who reported a repetitive strain injury from typing, since drug or alcohol use is not likely to be involved.
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