Electronic monitoring of employees’ remote work has increased in the last few years as employers have become concerned with employee productivity during the Covid-19 pandemic.  Monitoring technology can track the websites an employee visits and for how long, the number of keystrokes or mouse movements an employee has in a given time period, when an employee is away from their computer and even what an employee is typing, reading or watching.  Though generally legal, the use of this technology has prompted California to propose a bill aimed at, among other things, restricting employers’ use of such technology to specific times of day, activities and locations.

Continue Reading Who is Watching The Watchers? California Seeks to Limit Monitoring of Remote Employees

As of Tuesday, November 1, 2022, all New York City employers with at least four employees are required to include a wage range in job postings.  The law, referred to as Local Law 59, is just one of many similar laws across the country aimed at increasing pay transparency.

Continue Reading New York City Joins Growing Number of Jurisdictions Requiring Pay Transparency

On October 19, 2022, the U.S. Equal Employment Opportunity Commission (EEOC) released an updated “Know Your Rights” poster, replacing the previous “EEO is the Law” poster.  Federal law requires all covered employers to prominently display updated posters at their workplaces. Employers should take this time and check to see if the EEOC posters placed or distributed in their workplaces are the most recent versions.

Continue Reading EEOC Releases Updated “Know Your Rights” Poster

On 3 October 2022, at the Conservative Party Conference, Michelle Donelan, the Secretary of State for Digital, Culture, Media and Sport, made a speech announcing that the UK Government intends to replace the UK GDPR with a new “British data protection system”.  During her speech, Ms. Donelan suggested that the current data protection laws shackled businesses “by unnecessary red tape”; in particular, she referred to the impact it has on smaller organisations.

As a result of this announcement, we think it likely that the Data Protection and Digital Information Bill, which is awaiting its second reading, will be withdrawn. 

Continue Reading The End of UK GDPR?

On October 11, 2022, the Department of Labor (“DOL”) unveiled a proposed rule to define the test for independent contractor status under federal wage and hour law.  The proposed rule is the latest in a series of back-and-forth political maneuverings and seeks to replace a proposed Trump administration regulation that sought to classify workers as independent contractors if they own their own businesses or have the ability to work for competing companies (the “Contractor Rule”).  The DOL’s new proposal mirrors guidance from the Obama administration that the Trump administration had sought to withdraw and replace with a more business-friendly test.  

Continue Reading DOL’s Proposed Independent Contractor Rule Would Classify More Workers As Employees

On September 30, 2022, the National Labor Relations Board (“NLRB”) held that employers violate Section 8(a)(5) of the National Labor Relations Act when they cease dues checkoff after the expiration of a collective bargaining agreement. Valley Hospital Medical Center, Inc., 371 NLRB No. 160 (“Valley Hospital II”). The split decision came on remand from the Ninth Circuit after protracted litigation in federal courts.

Continue Reading NLRB Rules No Unilateral Changes to Dues Checkoff After Contract Expiration

Previously, we discussed the Seventh Circuit’s August 2022 decision applying the context-specific language in the Supreme Court’s Hughes v. Northwestern decision to affirm the dismissal of an excessive fee case brought against the Oshkosh Corporation. On September 22, 2022, a federal judge in the Northern District of Illinois dismissed a similar excessive fee case brought against the Exelon Corporation.  In Baumeister, et al. v. Exelon Corp., plaintiffs claimed breach of fiduciary duty by Exelon’s 401(k) plan fiduciaries based on the failure to monitor recordkeeping, investment advisory, and investment management costs under Exelon’s 401(k) plan. The district court dismissed the case, stating that, similar to Albert v. Oshkosh, the plaintiffs’ pleadings did not include sufficient context-specific facts to rise to the level of plausibility required to survive a motion to dismiss.

Continue Reading Illinois Federal Court Applies Seventh Circuit’s <i>Albert v. Oshkosh</i> Decision to Dismiss ERISA Excess Fee Case

The National Labor Relations Board (NLRB) has updated the test to be used by its Regional Offices for determining whether purported safety concerns related to COVID-19 justify conducting a union election by mail ballot rather than by an in-person manual election.  In a move most employers view as long overdue, the NLRB will no longer review the 14-day trend in new reported cases and the local testing positivity rate, and will instead look to the Centers for Disease Control and Prevention’s (CDC) Community Risk Tracker which designates counties as having “Low,” “Medium,” or “High” community transmission risk.  Starbucks Corporation, 371 NLRB No. 154 (Sept. 29, 2022).  Under the new test, mail ballots will ordinarily be ordered when the CDC’s tracker shows a “High” community risk level. A level of “Low” or “Medium” would not ordinarily warrant a mail ballot.  The new test should result in an immediate decrease in the number of mail ballot elections directed by the NLRB and a corresponding increase in the number of in-person manual elections.

Continue Reading NLRB Ditches COVID Positivity Rates as Factor Justifying Mail Ballot Elections

As we predicted in our prior post (here), California passed new pay transparency legislation requiring employers to report contractor compensation data and list employee pay ranges (salary or hourly rates of pay) on job postings.  Effective January 1, 2023, Senate Bill 1162, known as the Pay Transparency for Pay Equity Act, mandates that employers submit pay data reports to the California Civil Rights Department revealing compensation paid to contractors broken down by gender, race, and ethnicity.  Following Colorado, Washington, and New York City, California employers with 15 or more workers also must disclose salary ranges on all job advertisements, whether posted by the employer or a third party.  Employers of any size must provide existing employees with the salary range for their positions if requested.

Continue Reading California Passes Public Pay Disclosure Reporting Requirements for Employers Hiring Contract Workers

Chancellor Kwasi Kwarteng announced in his Autumn Statement last week that the recent changes to the “off-payroll” working rules (otherwise known as “IR35”) are going to be repealed.

Although the new Prime Minister, Liz Truss, made tax-cutting and a “smaller state” a pillar of her leadership campaign, this announcement has caught many by surprise given there has been no prior consultation and the most recent reforms applicable to the private sector were brought in only last year.

Continue Reading UK Government to Reverse Recent IR35 Reforms by Spring 2023