Q: Can an employee opt into an FLSA collective action if the employee does not reside in the state in which the action is pending?

A: Unless an action is filed in the state in which an employer is incorporated or headquartered, the answer to this question varies by jurisdiction. In August 2021, both the Sixth Circuit (covering federal courts in Kentucky, Michigan, Ohio, and Tennessee) and the Eighth Circuit (covering federal courts in Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota) answered this question in the negative, requiring that opt-in plaintiffs under the Fair Labor Standards Act (FLSA) reside in the state in which an action was filed for a court to exercise personal jurisdiction. Earlier this year, the First Circuit (covering federal courts in Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island) reached the opposite conclusion, reasoning that disallowing nonresident opt-in plaintiffs from joining FLSA collective actions would frustrate the purposes of the collective action mechanism.

On July 26, the Third Circuit (covering federal courts in Delaware, New Jersey, and Pennsylvania) sided with the Sixth and Eighth circuits, further nudging the existing circuit split in favor of employers.

Q: Have any courts addressed a company’s ability to regulate the type of masks that employees wear at work?

A: At the height of the pandemic and after the death of George Floyd in June 2020, many employers grappled with whether they could and should regulate the type of face masks worn in the workplace. The appellate courts for the First and Third circuits recently addressed this issue, reaching different conclusions. The First Circuit ruled that an employer is permitted to discipline employees for wearing Black Lives Matter (BLM) face masks in the workplace in violation of its dress code. In a Third Circuit decision, the court enjoined the employer from enforcing a dress code policy, banning employees from wearing BLM face coverings. The differences in outcome can be attributed mainly to the fact that the employer in the First Circuit case was a private employer, and the employer in the Third Circuit case was a public employer.

Q: Does federal antitrust law bar independent contractors from engaging in a group boycott to increase wages and alter conditions of employment?

A: No. The First Circuit Court of Appeals recently held that an individual’s independent contractor status does not bar application of the labor-dispute exemption to antitrust law, which exempts collusion among potential competitors for the purpose of increasing wages or improving conditions of employment.

Work-life balance — does it exist? In Episode 4 of the Hiring to Firing Podcast, Troutman Pepper Partners Tracey Diamond and Evan Gibbs sit down with Debbie Epstein Henry, best-selling author, public speaker, consultant, and host of the Inspiration Loves Company podcast, to discuss the hit TV show Severance and lessons learned about work-life balance. Tune in to hear a lively discussion about ways companies can help workers find work-life balance to increase happiness and satisfaction, while maximizing effectiveness.

Why is confidentiality in the workplace so important? What employee information needs to be kept confidential? In Episode 3 of the Hiring to Firing Podcast, Troutman Pepper Partners Tracey Diamond and Evan Gibbs sit down with Richard Eskew, executive vice president, general counsel, and chief privacy officer of Accolade, Inc., to discuss the hit T.V. show Squid Game and lessons learned about confidentiality agreements and restrictive covenants. Tune in to hear a lively discussion about the balance between corporate confidentiality and employee engagement, different types of corporate confidential materials (and the methods used to maintain their secrecy), the risks of employees taking such materials, as well as what companies can do to protect themselves.

Q. Have any courts addressed companies’ obligations under the WARN Act, particularly in light of COVID-19?

A. Yes. Since COVID-19 was first confirmed in the United States more than two years ago, employers have faced many challenges, including, in some cases, the difficult decision to lay off or furlough employees. This decision has not been without legal implications. For example, depending on a variety of factors, companies that lay off employees may be required to provide written notice of the layoff under the Workers Adjustment and Retraining Notification (WARN) Act and similar state law. Specifically, the WARN Act requires employers to provide written notice to workers at least 60 calendar days ahead of “plant closings” or “mass layoffs.” The WARN Act defines a plant closing as the permanent or temporary shutdown of a single site of employment, or one or more facilities or operating units within a single site of employment, if the shutdown results in an employment loss at the single site of employment during any 30-day period for 50 or more employees (excluding part-time employees). The WARN Act defines a mass layoff as a reduction in force that does not result from a plant closing, and results in an employment loss at the single site of employment during any 30-day period for: (1) at least 50-499 employees if they represent at least 33% of the total active workforce (excluding part-time employees) or (2) 500 or more employees (excluding part-time employees).

Are you making the best hiring and firing decisions? Is improving employee engagement and retention a challenge? How can you use data to leverage and get the most out of your most valuable asset – your employees?

In Episode 2 of the Hiring to Firing Podcast, Troutman Pepper Partners Tracey Diamond and Evan Gibbs sit down with Spring International CEO Fiona Jamison to discuss the hit movie Moneyball and the use of people analytics in the workplace.

Q: What is New York’s Adult Survivors Act?

On May 24, New York State enacted the Adult Survivors Act, which provides a one-year “revival window,” commencing on November 24, 2022, for adult victims of sexual abuse. Enactment of such “revival statutes” (a/k/a revival window or lookback period statutes) is the latest trend for #MeToo era legislatures grappling with shifting societal views of limitations periods for sexual abuse claims. Although the parameters of revival statutes can differ, essentially, they provide a limited period, usually at least one year, for sexual abuse victims to file civil claims that would otherwise be time-barred. Often these statutes also include prospective enlargements of civil and criminal limitations periods or otherwise expand the scope of potential liability going forward. In recent years, nearly half of U.S. state legislatures have passed laws opening revival windows for sexual abuse cases.

Q. What do companies with employees in Delaware need to know about Delaware’s paid family leave law?

A. On May 10, Governor Carney signed the Healthy Delaware Families Act into law, making Delaware the eleventh state in the country to offer paid family leave when the law goes into effect in 2026. The law will provide 12 weeks of paid parental leave and six weeks of paid medical, family caregiving, and military leave to eligible Delaware employees through a state-run paid family and medical leave insurance program.

Q: In a unanimous opinion, the U.S. Supreme Court held that employers who do not act promptly to invoke an arbitration clause may be held to waive arbitration. What does this mean for my company?

A: As noted in our colleagues’ blog post, on May 23, in a unanimous opinion, the U.S. Supreme Court held that employers who do not act promptly to invoke an arbitration clause may be held to waive arbitration. In so holding, the Court resolved a circuit court split over whether a party arguing waiver had to demonstrate prejudice. The Court held that prejudice was not a requirement. The Court’s holding departs from its generally pro-arbitration holdings over the last 15 years.