Effective September 17, employers with four or more employees in New York state must include a compensation range in all advertisements for new jobs, promotions and transfer opportunities. A pay transparency fact sheet and FAQ document are available on the NYSDOL website with additional information and guidance on the new law.
Since July 1, 2023, the California Privacy Protection Agency has the power to bring administrative enforcement actions under the California Consumer Privacy Act (CCPA) (see our post on California Privacy Law Action Items for Employers).
While a June 30, 2023 ruling by the Sacramento County Superior Court stays enforcement of the March 29, 2023…
In June, New York Senate Bill S5640 unanimously passed both houses of the NY legislature. It seeks to enact restrictions on invention assignment agreements used in the employment. S5640 now moves to the desk of Governor Kathy Hochul and if signed into law, it will amend the New York Labor Law effective immediately.Continue Reading Creating IP in New York? Watch out! Your employee may soon own more than you think
The Road Ahead Following the April 10 End of the National Emergency
We have all grown accustomed to hand sanitizer, 6-feet distance markings in hallways, face masks–and the back and forth of surging and waning COVID-19 levels in the workplace and the community. But with President Biden’s April 10 termination of the COVID-19 national emergency, can these pandemic mainstays–and employers’ pandemic policies and procedures–finally be relegated to a distant memory? Should they be? As Dr. Anthony Fauci said in a recent interview, “Everybody wants this outbreak behind us.”
Mapping the Road Forward
With little fanfare, on April 10, President Biden quietly signed a GOP-led resolution terminating the COVID-19 national emergency. Separately, on May 1 the Biden Administration announced an end to the federal COVID-19 vaccination requirements for federal employees, federal contractors, and international travelers on May 11, the same day the COVID-19 Public Health Emergency ends. The US Department of Health and Human Services and the US Department of Homeland Security also announced they will start the process to end vaccination requirements for Head Start educators, CMS-certified healthcare facilities, and certain noncitizens at the land border.
So can employers throw out all of their COVID-19 policies and procedures? Not quite.Continue Reading Can US Employers Finally Leave COVID-19 in the Rearview Mirror?
New Jersey may have started a trend. As of April 10, covered New Jersey employers must now comply with new requirements under the New Jersey mini-WARN Act (see our blog here). New York and California are giving chase, with proposed amendments to New York State’s WARN Act regulations, New York State’s WARN Act, and California’s WARN Act. And New York employers should take note: New York’s WARN Portal is set to go live this month.
Proposed Amendments to NYS WARN Regulations–And a New NYS WARN Portal
The New York State Department of Labor has proposed amendments to the New York State WARN Act (“NYS WARN”) regulations that are intended to account for the post-pandemic workforce, including clarifying how remote work impacts NYS WARN compliance and simplifying language to ensure employers understand their obligations under the law. The Department of Labor is accepting comments to the proposed regulations until May 30, 2023.
Key items in the proposed amendments to the NYS WARN regulations include:
- Remote employees included in threshold count: The employers covered by NYS WARN has been expanded to include any employer who employs 50 or more full-time employees, who work at the single site of employment plus individuals that work remotely but are based at the employment site, which may include remote employees in New York as well as other states.
- Certain notices must be provided electronically: Notices being sent to the New York State Department of Labor Commissioner (“Commissioner”) must be provided electronically and are no longer required to have original signatures.
- Notice must include additional information: The notice to the Commissioner must include more detailed information about the affected employees, including telephone numbers, job titles, and whether they are paid on an hourly, salary or commission basis. The notice to affected employees must include any other information relevant to their separation, such as information related to any financial incentives an employee may receive if they remain employed by the employer until the effective date of the employment loss, as well as available dislocated worker information.
- The exceptions for notice are changing:
- Faltering company exception reduced: The faltering company exception will apply only to plant closings, and will no longer apply to mass layoffs, relocations or reductions in hours.
- Unforeseeable business circumstances exception expanded: The unforeseeable business circumstances exception will be expanded to expressly include in certain circumstances a public health emergency (including a pandemic) or a terrorist attack.
- Exception to notice requires determination by Commissioner: The 90-day notice period can be reduced in limited circumstances (including under the faltering company, unforeseeable business circumstances, and natural disaster exceptions) only if:
- The employer submits a request for consideration for eligibility of an exception to the Commissioner within 10 business days of providing the required notice under NYS WARN to the Commissioner (unless the Commissioner grants an extension);
- The employer provides a reason for reducing the notice period in addition to any other documents the Commissioner may require; and
- The Commissioner determines that the employer has established all of the elements of the claimed exception.
- The calculation of back pay is being clarified for hourly employees: The calculation to be used to determine the average rate of compensation and final rate of compensation for hourly employees is clarified. Such calculation uses the number of hours worked instead of the number of days worked. The days worked method of calculation should still be used for non-hourly employees.
- The use of payment in lieu of notice is being clarified: Liability for an employer’s failure to give the required notice to employees under NYS WARN will be reduced by amounts paid to an employee in lieu of notice, except where the following conditions are met (then such payments will be considered wages for the notice period):
- There is an employment agreement or uniformly applied company policy that requires the employer to give the employee a certain amount of notice before a layoff or separation;
- The employee is laid off without the required notice; and
- The employer pays the employee an amount equal to the employee’s wages and any benefits for the required notice period.
California employers may soon need to rethink and revise their time-rounding policies–even if they’re neutral. In Camp v. Home Depot, USA, the California Supreme Court is set to weigh in on whether, under California law, employers may use neutral time-rounding practices to calculate employees’ work time for purposes of paying wages. A decision limiting or prohibiting the practice could require major changes to common timekeeping practices for payroll purposes, so employers–especially those engaging in time rounding–will want to keep a close eye on developments.
Here’s what’s happened so far, and what employers should do now.Continue Reading Is Time Rounding Over for California Employers? The California Supreme Court Will Weigh In
California’s latest attempt to restrict employment arbitration was foiled by the Ninth Circuit Court of Appeals last Wednesday. On February 15, 2023, a three-judge panel decided that AB 51 (which prohibits employers from “forcing” job applicants or employees to enter into pre-dispute employment arbitration agreements covering certain discrimination and retaliation claims) is preempted by the Federal Arbitration Act (FAA). In doing so, the Ninth Circuit reversed its prior decision in the same case, issued by the same three-judge panel, which partially upheld AB 51 in 2021. While we expect the California Attorney General to challenge the Ninth Circuit’s February 15 decision, California employers can breathe a sigh of relief for now knowing it’s still lawful for most to continue to require arbitration agreements.Continue Reading California Employers Still Can Require Arbitration. For Now.
New year, new Cal/OSHA COVID-19 regulations. The non-emergency COVID-19 prevention regulations (“New Regulations”) still await the Office of Administrative Law’s approval, but will likely take effect in the next few weeks. Employers eagerly await the end of the Emergency Temporary Standard’s (“ETS”) more burdensome requirements, such as exclusion pay and reporting outbreaks to local health…
The new year always brings new challenges for employers, but California employers in particular face a world of change in 2023.
In our 75-minute “quick hits” format, we help you track what California employers need to keep top-of-mind for 2023 and provide practical takeaways to help you navigate the new landscape.
This webinar helps to…
In our latest Global Immigration and Mobility video chat, Melissa Allchin provides a year-end review of essential immigration and mobility updates for employers. Melissa highlights equal pay transparency laws and the impact on an employer’s obligations under existing immigration law, COVID-related travel considerations, immigration compliance considerations employers should keep top-of-mind with respect to remote or…