On January 25, 2019, the Illinois Supreme Court issued a highly anticipated decision, Rosenbach v. Six Flags Entertainment Corporate et al., extending the reach of the Illinois Biometric Information Privacy Act (BIPA). BIPA is an Illinois privacy law that regulates the collection, use, and retention of biometric data such as fingerprints, face, and eye scans by imposing procedural requirements on corporations that collect the data. Though not an employment case, the decision impacts employers using biometric time-keeping systems in Illinois.

Continue Reading Unanimous Case For Class Actions: Illinois Supreme Court Finds BIPA Violations Actionable Even Without “Actual Injury”

This article was originally published on Law360.com.

Taking advantage of an unaddressed area of law, and his virtually unfettered discretion to control the prosecution of unfair labor practice allegations, the general counsel of the National Labor Relations Board has returned the board’s deferral policy to its historical practice. Once again, unfair practice charges in a union-represented workplace will be deferred to the parties’ grievance and arbitration process whenever a grievance has been filed or could have been filed.

The new Memorandum GC 19-03 reverses much of a prior memorandum, issued during the final year of the Obama administration which precluded deferral unless the parties had expressly agreed to the arbitration of the unfair labor practice. The ability of unions to force litigation in two forums had not existed since the passage of the National Labor Relations Act.

Click here to read on.

On January 25, 2019, the National Labor Relations Board reaffirmed its adherence to the traditional common law independent contractor test for determining whether a worker is an employee or an independent contractor under the National Labor Relations Act.

In SuperShuttle DFW, Inc., the Board expressly overruled its 2014 FedEx Home Delivery decision. In FedEx, the Board drastically reduced the significance of entrepreneurial opportunity in the determination of independent contractor status. FedEx emphasized the right to control factors relevant to the so-called “economic realities” test and gave weight to whether a worker was in fact “seizing” actual opportunities and rendering services as part of their own independent business.

SuperShuttle DFW, Inc. is significant as it abandons the Obama-era standard and gives a boost to companies using contract labor by elevating the importance of entrepreneurial opportunity in the independent contractor analysis. Insodoing, the Board returns the legal framework to its traditional common law roots and adds the examination of entrepreneurial opportunity. The decision suggests that moving forward, the Board “evaluate the common-law factors through the prism of entrepreneurial opportunity when the specific factual circumstances of the case make such an evaluation appropriate.”

Continue Reading Emphasizing “Entrepreneurial Opportunity,” The NLRB Returns To Business-Friendly Independent Contractor Test

What are the people implications of Brexit under a no-deal scenario compared to what is likely to happen if a deal can be reached?

Download our full analysis of the implications for employees, including the impact on the right to travel and work across the EU, employment rights and social security.

In summary

  • Little change is expected to UK employment rights on 29 March 2019, whether or not a deal is reached.
  • Any new deal which is approved is likely to contain the same people provisions as those set out in the current draft UK-EU Withdrawal Agreement, although this is not guaranteed. We explain those provisions in our full analysis.
  • In a no-deal scenario, EU citizens in the UK will be able to apply to remain in the UK using the New EU Settlement Scheme but it is unclear whether UK nationals working in the EU will benefit from similar protection.
  • If a deal is reached, there will be a transition period during which all EU employment law will continue to apply. After that, despite long-term scope for future watering-down or dismantling of EU-derived worker rights, this is not the current UK government’s stated intention and any future trading agreement may involve some form of continuing commitment to shared employment standards.

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(With thanks to Stephen Ratcliffe and Tony Haque in our London office.)

In the wake of the #MeToo movement, a number of states (and New York City) now mandate workplace sexual harassment prevention training.

The chart below is intended to help multi-state employers keep track of their obligations across the country.

Continue Reading Quick Guide To Harassment Prevention Training Requirements Across The US

The recent attention to the gender pay gap has exposed the extent to which women are underrepresented in senior and highly paid roles, but there is similar cause for concern in many parts of the globe in relation to underrepresentation of certain ethnic groups. While this issue is more complex in many regards, there is a clear business case for action.

Click here to read the article which discusses the complexity of the ethnicity pay gap and spotlights two jurisdictions: South Africa and the United Kingdom.

Many thanks to Johan Botes, Monica Kurnatowska and Gemma Taylor for this article.

Explosive growth in emerging markets has created a significant demand for companies to move workers around the globe to explore and seize new opportunities. At the same time, there has been an equally significant demand for companies to reduce their mobility costs. As a result, traditional employees are now more likely to be sent on short trips to fill specific business or customer needs, and project-based assignments are often more likely to be filled by a modern workforce that includes a variety of nonemployees.

A large majority of companies have seen an increase in these new types of assignments. Nevertheless, many still do not have formal guidelines for managing frequent crossborder travelers, and they admittedly fall short of properly educating their managers and mobile workers on the potential risks of these arrangements. Consequently, many vulnerabilities and misconceptions persist. Additionally, the growing prevalence of accidental expats has led to heightened scrutiny, incentivizing governments to crack down on business travelers and, with the assistance of technology, to become more adept at catching transgressions.

Continue Reading Modern Mobile Workers & The Accidental Expat

Co-authored by Mike Leggieri (Employment & Compensation Partner, SF) and Steven Chasin (Litigation Associate, DC)

To paraphrase Pharaoh Ramses II, so it is written, so it shall be done.

In Schein, Inc. v. Archer and White Sales, Inc., 586 U.S. __ (January 8, 2019), the first opinion by Justice Kavanaugh, a unanimous Supreme Court reiterated this principle of the Federal Arbitration Act. Specifically, the Court confirmed that when an arbitration agreement delegates to an arbitrator the question of whether the agreement applies to a particular dispute, courts have no power to decide this question, even if a court considers the arbitrability argument to be “wholly groundless.”

Continue Reading US Supreme Court Rejects A “Wholly Groundless” Exception To Clauses Delegating Arbitrability

To help multi-state employers determine the minimum amount they must pay non-exempt employees, our chart below summarizes state and local increases this year. (Unless otherwise indicated, the following increases are effective January 1, 2019.)

This chart is intended to discuss rate changes that affect employers generally, and may not necessarily cover all industry-specific rate changes.

Continue Reading New Year, New Minimum Wage Rates Across The US

Join us at 3:00 pm Thursday, January 24 for our California Employment & Compensation Update in our new Los Angeles office. A range of topics will be covered during our program which will begin with a panel discussion addressing emerging trends in advancing corporate Diversity & Inclusion goals, followed by your choice of updates on California employment law issues or on global share plan developments. After the program, we invite everyone to join for cocktails and hors d’oeuvres at Javier’s Century City.

Click here to view the full invitation for more details, including a description of the panel discussion and choice of updates. Click here to register.

Hope to see you there!