On April 19, 2023, the California Court of Appeal held that an employer’s arbitration agreement was unenforceable because of unconscionable terms found in other documents provided to employees during the onboarding process. The decision was certified for publication on May 10, 2023. In Alberto v. Cambrian Homecare (Apr. 19, 2023, No. B314192) ___Cal.App.5th, the Court of Appeal affirmed the trial court’s decision that a standalone arbitration agreement was unconscionable based on terms contained within the employer’s confidentiality agreement. Because the arbitration and confidential ..read more

On February 6, 2023, New Jersey Governor Phil Murphy signed the Temporary Workers’ Bill of Rights, significantly expanding the rights and protections afforded to the 127,000 temporary workers in New Jersey. The new law, which will largely take effect on August 5, 2023, though certain provisions already took effect on May 7, 2023, sets new requirements for “temporary help service firms” that employ “temporary laborers” in a “designated classification placement.” Key Definitions Under the Temporary Workers’ Bill of Rights, a “temporary help service firm” is defined as “any person or entity who o ..read more

The Department of Homeland Security (“DHS”) announced on May 4, 2023 a planned end to the COVID-19 remote I-9 flexibility. The flexibility ends on July 31 and prior pandemic I-9s must be remediated by Aug 30, 2023. Therefore, employers should act quickly to review and remediate I-9s that were verified remotely in the past three years. Recommended Procedures for Remediating I-9s Completed Remotely: Create a list of all of the company’s new hires from March 20, 2020 to date. Pull all of their I-9s and determine which ones had their documents verified remotely. Also pull all of the I-9 ..read more

In a decision that had been anticipated, the National Labor Relations Board (“NLRB” or “Board”) abandoned its short-lived burden-shifting test for determining the legality of employer discipline of employees found to have engaged in abusive or inappropriate conduct. Robbed of the ability to simply demonstrate any such discipline was not in retaliation for protected conduct. Employers will once again be called upon to grapple with a list of indefinite factors that has oftentimes rendered similar outrageous workplace conduct immune from discipline.  The GM Decision As we previously cov ..read more

On March 20, 2022, National Labor Relations Board (“NLRB” or the “Board”) General Counsel Jennifer Abruzzo issued a memorandum to all Regional Directors, Officers-in-Charge, and Resident Officers updating the cases they are required to send to the NLRB Division of Advice before processing further in order to “allow the Regional Advice Branch to reexamine these areas and counsel the General Counsel’s office on whether [a] change [in the law] is necessary to fulfill the Act’s mission.” Shortly after her confirmation by the Senate, General Counsel Abruzzo issued Memorandum 21-04 in August 2021, f ..read more

On March 7, 2023, the National Labor Relations Board (NLRB) and the Consumer Financial Protection Bureau (CFPB) signed a Memorandum of Understanding (“CFPB MOU”) that created a formal partnership between the two agencies. Per the CFPB MOU, the basis for this collaboration is a shared interest in “protecting American consumers and workers” to “better root out financial practices that harm workers,” to “enhance the enforcement of federal laws,” and to coordinate interagency goals, outreach and training. According to the NLRB, the targeted practices are “employer surveillance, monitoring, data co ..read more

On April 6, 2023, the New York City Department of Consumer and Workforce Protection (“DCWP”) promulgated its final regulations (the “Final Regulations”) regarding the New York City Automated Employment Decision Tools Law (“AEDTL”). In connection with the Final Regulations, the DCWP also notified employers that it would further delay enforcement of the AEDTL from April 15, 2023 to July 5, 2023. The Final Regulations, among other things, expand the definition of “machine learning, statistical modeling, data analytics, or artificial intelligence” as used in the AEDTL and clarify specifics ar ..read more

California’s Labor Code Private Attorneys General Act of 2004 (“PAGA”) allows employees to act as an “agent” of the State of California and recover civil penalties for violations of the California Labor Code through a civil action filed on behalf of themselves and other current or former employees.” In Viking River Cruises, Inc. v. Moriana, the U.S. Supreme Court held that the Federal Arbitration Act partially preempted a California rule prohibiting employers from requiring their employees to enter into pre-dispute arbitration agreements that contractually waived the right to assert “represent ..read more

Since 2017, New York State’s Nursing Mothers in the Workplace Act has required New York State employers to provide daily paid or unpaid break time to express milk up to three years following the birth of a child, and to provide a room for expressing milk, in privacy, close to the employee’s work location. On December 9, 2022, Governor Kathy Hochul signed legislation, effective June 7, 2023, to clarify these obligations. New York City employers will be familiar with much of these clarifications, as they generally track requirements established in New York City’s 2018 lactation accommo ..read more

On March 31, the Office of Federal Contract Compliance Programs (OFCCP) rescinded a Trump Administration rule that provided a faith-based carve-out exempting federal contractors from compliance with certain anti-discrimination obligations. Federal law has long recognized a religious exemption to anti-discrimination obligations for federal contractors. The Trump Administration rule, which went into effect on January 8, 2021, expanded this faith-based carve-out. The rescission of the 2021 rule, which was published in the Federal Register on March 1, returns OFCCP to its pre-2021 religious exempt ..read more