On January 10, 2024, the U.S. Department of Labor (“DOL”) published a final rule that imposes a new, six-factor test (see below) for determining whether workers are “independent contractors.” The final rule takes effect on March 11, 2024, and will generally make it more difficult for businesses to classify workers as independent contractors, rather than employees. The DOL’s new rule assigns equal weight to each of its six factors, and no one factor is determinative. The purpose of the test is to determine whether, as a matter of “economic reality,” a worker is economically dependent on a poten ..read more

We frequently confront the issue of whether to institute tort-based suits in state or federal court, on behalf of an employer, seeking to recover damages suffered as a result of picketing, strikes and other activities by labor unions. Currently, that issue sits before the U.S. Supreme Court in Glacier Northwest Inc. v. International Brotherhood of Teamsters Local Union 174, 500 P.3d 199 (Wash. 2021), cert. granted, 143 S. Ct. 82 (Oct. 3, 2022) (No. 21-1449).  There, the employer sought to recover damages for the destruction of its property during a strike in ..read more

It’s that time of year for employers to make their lists and check them twice. While doing so, there are several new employment laws to consider for 2023. The following outlines the major new laws that will affect most employers with California employees. Each of these are effective January 1, 2023 unless otherwise stated herein. California Minimum Wage Increase All California employers must pay minimum wage of at least $15.50/hr.2  This is up from $14/hr. for employers with 25 or fewer employees, and $15/hr. for employers of 26 or more employees. This change also affects some exempt emp ..read more

The continuing trend of state and local government regulating more aspects of the employment relationship continues, and this time the focus is on pay transparency. These new laws require employers to disclose the pay they offer in job postings.  Colorado was first on the scene in 2021.  Since then, California and Washington have adopted new laws that take effect on January 1, 2023.  And New York City recently adopted a law that took effect on November 1, 2022. The goal of this legislation is to provide more information to applicants about the expected pay ranges, and hopefully ..read more

As a result of Arizona Senate Bill 1403, effective September 24, 2022, the Arizona worker’s compensation statute will be amended to add section A.R.S. § 23-1061(N). The new statutory provision applies when an insurance company and/or a self-insuring employer receives a written notification of an injury from an injured employee who intends to file a worker’s compensation claim.  Upon receipt of such notice, the insurance company and/or a self-insuring employer must forward the written notification to the Industrial Commission of Arizona ( “ICA”) within seven business days and inform the em ..read more

On August 8, 2022, a Kentucky federal judge granted two stipulated dismissals filed by plaintiffs in a conditionally certified Fair Labor Standards Act (“FLSA”) case—without first reviewing and approving the settlement entered into between the parties. U.S. District Judge Benjamin Beaton’s decision to decline judicial review of the parties’ FLSA settlement is significant because courts have generally held that FLSA claims can only be released with authorization by: (1) the U.S. Department of Labor (“DOL”); or (2) judicial approval by a federal judge. However, two recent decisions by federal di ..read more

In a recent case, the Court of Appeals for the 9th Circuit enforced an order of the National Labor Relations Board (“NLRB” or “Board”) requiring an employer to reimburse the union for the expenses that the union incurred during collective bargaining negotiations. NLRB v. Ampersand Publishing, 9th Cir., No. 21-71060, 8/11/22.  The bargaining negotiations expenses included the legal fees the union paid to outside counsel for consultation during negotiations. The NLRB found that the employer engaged in bad faith bargaining during the negotiations by, inter alia, making un ..read more

Since 2004, the Private Attorneys General Act (“PAGA”) has been a thorn in the side of employers in the State of California. Indeed, there are approximately 17 PAGA actions filed every day in the state. A PAGA claim allows a single employee, who alleges a single labor code violation, to step into the shoes of the state and file a “representative” action on behalf of all other employees for a countless number of other violations all as predicates for liability against a single employer. The default penalties are $100 for each aggrieved employee for each pay period and $200 for each aggrieved em ..read more

As the use of artificial intelligence recruitment and hiring tools becomes more prevalent, it is important to remember that such processes are subject to anti-discrimination laws. Employers have an obligation to inspect such tools and processes for bias based on any protected class (including disability and age) and should have plans to provide reasonable accommodations during the recruitment and hiring process. On May 12, 2022, the Equal Employment Opportunity Commission and Justice Department issued guidance for the first time regarding the use of algorithms and artificial intelligence in em ..read more

The California Senate recently pass a bill which, if enacted, would permit employees in California to refuse to report to work when they feel “unsafe.”  The bill purports to apply during major natural disasters and states of extreme peril, but contains little limit on what may constitute an emergency condition permitting an employee to refuse to report to work. In fact, the bill is not limited to declared “states of emergency”, but expands to “emergency conditions”, including any event that poses a “serious danger” to a worker’s immediate health and safety. Presumably, it is up to the emp ..read more