Are your employees consistently taking extended lunch breaks? Are they frequently absent or keeping their cameras off during video conferences? If so, they might be “moonlighting” while on the clock. Listen in as Partners Tracey Diamond and Evan Gibbs chat with Exelon Business Services Company Assistant General Counsel Amy Bashore about the popular movie Julie and Julia, the risks associated with moonlighting, how employers can effectively monitor moonlighting within their organizations, and if gas stoves are better than electric.

Continue Reading Managing “Moonlighting” in the Workplace: <em>Julie and Julia</em>

Q. Are there any updates related to New Jersey’s Temporary Workers’ Bill of Rights?

A. Yes. As previously reported, in February, New Jersey Governor Phil Murphy signed into law the Temporary Workers’ Bill of Rights (the Bill of Rights), which established several new labor and employment protections for New Jersey’s 125,000+ temporary workers. On July 21, the New Jersey Department of Labor and Workforce Development Division of Wage and Hour Compliance published a set of proposed regulations implementing the Bill of Rights. While there is a 60-day comment period before the regulations become final, the state has represented that, at this time, it intends to enforce the Bill of Rights in accordance with the proposed regulations.

Continue Reading New Jersey Published Proposed Regulations Implementing the “Temporary Workers’ Bill of Rights”

Companies can profit off their top employees by using their name, image, and likeness. However, there are limitations on an employer’s rights to do so. Troutman Pepper Partners Tracey Diamond and Evan Gibbs chatted with fellow Partner Cal Stein about the popular movie Air and the implications surrounding employee name, image, and likeness.

Continue Reading How to Manage Name, Image, and Likeness: <em>Air</em>

For better or worse, generative AI is everywhere. Many companies are asking themselves: “Do we run from it or embrace it? What role can generative AI play in the workplace, and what should we do to stay ahead of the curve?”

Continue Reading The Pros and Cons of Generative AI in the Workplace: <em>The Matrix</em>

Published in Law360 on August 7, 2023. © Copyright 2023, Portfolio Media, Inc., publisher of Law360. Reprinted here with permission.

In a survey of 3,000 workers, 82% said they would consider quitting their job because of a bad manager.

Continue Reading Water Cooler Talk: Insights From ‘The Bear’ on Right and Wrong Ways to Manage Employees

Corporate theft can happen in any workplace. What type of employee is most likely to steal from the company or its customers? What can companies do to combat this? Partners Tracey Diamond and Evan Gibbs chatted with Troutman Pepper Partner Chris Willis about the popular movie Office Space, employee misconduct and creative uses of technology to protect against corporate theft.

Continue Reading How to Combat Corporate Theft: <em>Office Space</em>

Q: Are there any risks to using AI to enhance diversity in the workplace?

A: The use of artificial intelligence (AI) has become increasingly prevalent in hiring decisions, particularly as a means to increase diversity in employment. In January 2023, the chair of the Equal Employment Opportunity Commission (EEOC) estimated that 83% of employers rely on artificial technology in decision-making. When used thoughtfully, AI tools can help employers more effectively analyze data and trends necessary to improving diversity, such as employee retention, pay inequality, and bias in job postings and hiring practices. For instance, generative AI platforms can enhance diverse employee retention by preparing career path guides specific to an employee’s skills and values, which allows diverse employees to view opportunities for internal career growth with transparency. Additionally, employers may use AI to assist in screening candidates during the recruiting process to avoid the unconscious biases that human screeners bring to the process. Despite the benefits and growing adoption of AI, however, the EEOC and the Biden administration have recently warned of the inherent risks that employers should be aware of when leveraging AI to enhance workplace diversity. 

Continue Reading Are There Any Risks to Using AI to Enhance Diversity in the Workplace?

Q: Does the federal Pregnant Workers Fairness Act (PWFA) require workplaces to change their accommodation and leave practices in a significant way?

A: Potentially. The PWFA requires covered employers to provide “reasonable accommodations” to a worker’s known limitations related to pregnancy, childbirth or related medical conditions unless the accommodation will cause the employer an “undue hardship.” While 46 states offer some protection to pregnant employees, 26 states already have laws that have requirements that mirror the PWFA. Workplaces that do not already have accommodations for pregnant workers in place must change their accommodation policies to comply with the new law that went into effect on June 27.

Continue Reading Accommodation Requirements for Pregnant Employees Are Similar to ADA Protections

Q. As part of the employee onboarding process, my company requests that employees sign several documents, including an arbitration agreement and confidentiality agreement, on the first day of employment. Is the arbitration agreement enforceable?

A. In the famous words of all attorneys, it depends. Even if an arbitration agreement is otherwise enforceable, California courts may consider terms of other documents presented with the arbitration agreement to render the arbitration agreement unconscionable and unenforceable.

Continue Reading California Court of Appeal Holds That Onboarding Documents Affect Enforceability of Otherwise Valid Arbitration Agreement

Q: Are student athletes considered employees under the Fair Labor Standards Act (FLSA)?

A: Not under current law, but it is widely suspected that before long, courts will deem at least some types of student athletes to be employees under the FLSA. Courts determine whether an employment relationship exists under the FLSA by looking at whether the “economic realities” of the relationship are consistent with employment (although there is no agreement among the circuit courts of which test best determines these economic realities). In the 2021 decision NCAA v. Alston, the Supreme Court characterized student athletes as participants in a labor market for purposes of federal antitrust laws. The Alston opinion left little reason to doubt that the Court would arrive at the same conclusion when considering the “economic reality” of student athletes as employees under the FLSA. The bigger question is where the Court will ultimately draw a line to separate student athlete-employees from truly amateur sports. The Third Circuit is currently considering an appeal that raises this very question, which may be the vehicle by which this appears before the Supreme Court.

Continue Reading Are Student Athletes Considered Employees Under the Fair Labor Standards Act?