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

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last week that the recent changes to the “off-payroll” working rules (otherwise known as “IR35”) are going to be repealed.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

The UK’s longest-reigning monarch, Her Majesty Queen Elizabeth II, has passed away, leaving the nation and people across the world in mourning.  The Government has now confirmed that Monday, 19 September 2022, will be a national public holiday (otherwise known as a “bank holiday”) to coincide with Her Majesty Queen Elizabeth II’s State Funeral.  The bank holiday will mark the last day of the period of national mourning.

Continue Reading Bank Holiday Announced for Her Majesty Queen Elizabeth II’s State Funeral

In January 2022, the Supreme Court held in Hughes v. Northwestern University, 142 S. Ct. 737, that courts must apply a context-specific inquiry to determine whether plan participants state plausible breach of fiduciary duty claims against plan fiduciaries for violations of the Employee Retirement Income Security Act (“ERISA”) when selecting and monitoring investment funds and recordkeeping services under a plan.  In so doing, the Supreme Court reversed the Seventh Circuit’s decision in Divane v. Northwestern University, 953 F.3d 980 (7th Cir. 2020) (now known as Hughes), stating “The Seventh Circuit erred in relying on the participants’ ultimate choice over their investments to excuse allegedly imprudent decisions by [Northwestern fiduciaries].”  142 S. Ct. at 742.  Hughes is pending before the Seventh Circuit on remand.

Continue Reading Seventh Circuit Applies Hughes v. Northwestern University to Dismiss

The National Labor Relations Board (“NLRB”) on Monday concluded that employers, absent special circumstances, can no longer enforce neutral uniform or company shirt policies in a manner that  “in any way” prohibits employees from wearing union shirts, hats or other union clothing. In a split decision applying this rule, the NLRB found that the National Labor Relations Act was violated when an employer required employees to wear company t-shirts or all black clothing in its manufacturing facilities in a manner that prohibited them from wearing union shirts.  Tesla, Inc., 371 NLRB No. 131 (Aug. 29, 2022).

Continue Reading NLRB Rules Neutral Uniform Policy Improperly Restricts Pro-Union Attire

The three-judge panel that decided AB 51 was (mostly) lawful, and that employers could not retaliate against employees who refused to sign arbitration agreements as a condition of employment, withdrew the decision and agreed to take another look.  On August 22, 2022, two of three members of the panel that decided Chamber of Commerce of the U.S. v. Bonta voted to withdraw the ruling sua sponte and agreed to a rehearing in light of the U.S. Supreme Court’s ruling in Viking River Cruises v. Moriana.

Continue Reading Prohibiting Mandatory Arbitration:  Ninth Circuit Agrees to a Re-Do

On July 27, 2022, the District of Columbia substantially limited employers’ use of non-compete agreements in D.C. (the “Non-Compete Clarification Amendment Act of 2022”).  The original bill (the “Ban on Non-Competes Amendment Act of 2020”) would have resulted in a near total ban on non-compete agreements, but in response to complaints from the business community, the City Council instead limited non-competes to those employees deemed “highly compensated.” 

Continue Reading District of Columbia to Implement Broad Restrictions on Non-Compete Agreements

On August 16, 2022, a split Fourth Circuit panel became the first federal appellate court to hold that gender dysphoria qualifies as a disability under the Americans with Disabilities Act (“ADA”).  In Williams v. Kincaid, the panel’s majority held that gender dysphoria, a disabling medical condition that affects many transgender people, is distinct from the “gender identify disorders” Congress excluded from the law’s protections upon passage in 1990, meaning the ADA’s protections in employment settings, public accommodations and transportation now extend to people with gender dysphoria under the circuit’s jurisdiction.[1] 

Continue Reading Fourth Circuit Holds ADA Protections Cover Gender Dysphoria

On August 12, 2022, the Seventh Circuit held Wal-Mart Stores East LP did not discriminate against pregnant employees by failing to offer them light duty under its Temporary Alternate Duty policy (“TAD Policy”).

Continue Reading Walmart’s Policy to Exclude Pregnant Employees from Temporary Light Duty Assignments Was Not Discriminatory