In the UK, and most of Europe, employees have statutory rights to holiday leave and the question of holiday pay (and how to calculate it) has been a challenging issue for a long time.  The Supreme Court in London has provided much-needed clarity by ruling in Harpur Trust v Brazel that holiday pay for part-year workers, including term-time or casual workers, should not be pro-rated.  It has been confirmed that such workers are entitled to 5.6 weeks’ statutory holiday pay, the same as employees who work full-time all year.  This decision will have a significant impact on employers of part-year workers who have been pro-rating holiday pay using the now discredited “12.07% method”.  Going forward, employers will now need to average holiday pay over a 52-week reference period and change their policies to reflect this decision.

Widening the split among circuit courts, the Third Circuit recently rejected attempts by two out-of-state employees to join an FLSA collective action as opt-in plaintiffs because their claims did not “arise out of or relate to” the defendant’s contacts with the state in which the case is pending.  

Continue Reading The Third Circuit Decides “We’re (Not) Nationwide”

Employment practitioners will be waiting with bated breath now that the California Supreme Court has granted the defendant’s petition for review in Uber Technologies, Inc. v. Adolph, S274671.  This is the second PAGA case California’s top court will review since the U.S. Supreme Court decision in Viking River Cruises v. Moriana, which held that the Federal Arbitration Act requires courts to enforce parties’ arbitration agreements and preempts conflicting state laws that invalidate contractual waivers of the right to assert representative claims under PAGA.  See our prior coverage of Viking River Cruises here.

Continue Reading California Supreme Court to Address <i>Viking River Cruises</i>

Effective July 14, 2022 (pursuant to legislation amending the New York State Human Rights Law that was signed by New York State Governor Kathy Hochul in March 2022), New York established a telephone hotline that employees can use to report incidents of sexual harassment to the New York State Division of Human Rights.   The hotline number is 800-HARASS-3 ((800) 427-2773) and will be staffed, on a pro bono basis, by NYS attorneys who have expertise in employment law and sexual harassment issues.  The hotline can be called Monday through Friday, 9:00 a.m. to 5:00 p.m.

Continue Reading NYS Sexual Harassment Hotline Goes Live

On July 12, 2022, the Equal Employment Opportunity Commission (EEOC) updated its COVID-19 guidance for the workplace, most notably, its guidance regarding COVID-19 testing of employees. Prior to last week, the EEOC took the position that mandatory COVID-19 testing would always be “job related and consistent with business necessity” – a requirement for permissible medical examinations under the Americans with Disabilities Act (ADA).  Given the evolving nature of the pandemic, the EEOC has changed course and has determined that employers now must make an individualized assessment as to whether current pandemic and workplace circumstances justify mandatory testing of employees to prevent workplace transmission of COVID-19.  In other words, employers can no longer simply assume that mandatory COVID-19 viral testing of employees is lawful under the ADA.

Continue Reading The EEOC Issues Updated Guidance on COVID-19 Testing

Starting January 1, 2023, Illinois employers are required to provide employees with unpaid bereavement leave following the loss of a family member or planned family addition. The Family Bereavement Leave Act (FBLA) amends Illinois’ Child Bereavement Leave Act of 2016 (CBLA) and adds Illinois to a short list of states (which includes only Oregon and Maryland) that require employers to provide for bereavement leave.

Continue Reading State Bereavement Laws and their Impact on Employers

Paid Time Off Requirements

As of July 1, 2022, West Hollywood, California, home to the famous Sunset Strip and Melrose shopping district, is now one of a handful of cities in California that requires employers to provide paid time off to employees (rather than just paid sick time).

West Hollywood’s Minimum Wage Ordinance, passed late last year, requires that qualifying employees who work at least two hours of work per week in the City are entitled to paid time off.  Full-time employees who work at least 40 hours per week are entitled to 96 hours of paid time off per year, totaling 12 full days off.  The time is pro-rated for employees who work less than 40 hours per week.

Continue Reading West Hollywood Requires Paid Leave and Hikes Minimum Wage

Is the right to compel arbitration waived only when the plaintiff can show prejudice from the defendant’s inconsistent actions and delay?  In Morgan v. Sundance, Inc., No. 21-328 (2022), the Supreme Court found that the Federal Arbitration Act (“FAA”) does not permit courts to create tests to favor arbitration over litigation, and that a showing of prejudice is not required for a claim of waiver.

Continue Reading U.S. Supreme Court Rejects Prejudice Element for a Claim of Waiver