California employers face an abundance of new employment laws set to take effect at the start of the new year. Below find descriptions of new requirements for employee leaves of absence, pay transparency and data reporting, COVID-19 compliance, privacy rights, industry-specific requirements, and other new workplace laws. Unless otherwise stated, the obligations created by the laws below will take effect on January 1, 2023. Learn more about these and other employment developments at Troutman Pepper’s upcoming December 8 Labor + Employment webinar.

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What should employers do when they learn about harassment in the workplace? In Episode 8 of the Hiring to Firing Podcast, Troutman Pepper Partners Tracey Diamond and Leah Katz sit down with Sarah Goncher, deputy general counsel of operations for a regional health care provider, to discuss the TV series Succession and best practices in dealing with workplace harassment. Tune in for a lively discussion!

Continue Reading What Can the TV Series <em>Succession</em> Teach Us About Harassment?

Q: Did the U.S. Department of Labor (DOL) change how independent contractors are classified, and if so, what does this mean for my company?

A: Potentially. On October 11, the DOL announced a proposed new standard for determining whether a worker is an employee or an independent contractor under the Fair Labor Standards Act. The new rule classifies workers using six non-exhaustive factors: (1) the worker’s opportunity for profit and loss; (2) the employer and the employee’s investments; (3) the degree of permanence of the working relationship; (4) the nature and degree of the worker’s control over the work; (5) the extent to which the work is integral to the employer’s business; and (6) the worker’s degree of skill and initiative.

Continue Reading DOL Proposes New Standards on Independent Contractor Classification

Q. Did the EEOC update its “EEO is the Law” poster?

A. Yes. On October 19, the U.S. Equal Employment Opportunity Commission (EEOC) released a new “Know Your Rights” poster, which updates and replaces its former “EEOC is the Law” poster.

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How do office romances affect the workplace? What should employers consider when they learn of an office romance? In Episode 7 of the Hiring to Firing Podcast, Troutman Pepper Partners Tracey Diamond and Evan Gibbs sit down with Michelle Rice, senior corporate counsel, labor and employment at Yelp, to discuss the movie The Hating Game and best practices in dealing with office romances. Tune in for a lively discussion!

Continue Reading What Can the Movie The Hating Game Teach Us About Office Romances?

Q: Does Colorado have a law prohibiting an employer from requiring employees to sign a restrictive covenant agreement?

A: Yes. On August 10, a new Colorado law took effect that voids noncompete and customer nonsolicitation covenants with certain Colorado employees, depending on their compensation level. The new law places significant penalties upon noncompliant employers and will void any provision that violates the law.

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What steps should an employer take to terminate an employee properly? What is the best way to communicate the termination decision? In Episode 6 of the Hiring to Firing Podcast, Troutman Pepper Partner Tracey Diamond and Associate Brian Ellixson sit down with Barry Thrutchley, vice president of human resources at Puratos Corporation, to discuss the movie Up In The Air and best practices in conducting terminations. Tune in to hear a lively discussion about the “right” way to deliver bad news.

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In Episode 5 of the Hiring to Firing Podcast, Troutman Pepper Partners Tracey Diamond and Evan Gibbs sit down with Troutman Pepper Partners Ashley Hager and Lynne Wakefield to discuss the hit show The Handmaid’s Tale and lessons learned about corporate abortion policies. Tune in to hear a lively conversation about what companies can do if they want to offer abortion benefits, including travel benefits, and the risks and challenges of implementing such benefits.

Continue Reading What Can The Handmaid’s Tale Teach Us About Corporate Abortion Policies?

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.

Continue Reading Third Circuit Limits Nonresident Opt-In Plaintiffs’ Ability to Join FLSA Collective Actions, Deepening Circuit Split

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.

Continue Reading BLM Messaging on Face Masks in the Workplace