On Wednesday, December 4th, Barbara Hoey, Co-Chair of Kelley Drye’s Labor and Employment Practice and David Frulla, Chair of the firm’s Campaign Finance and Political Law Practice hosted a one hour webinar focused on best practices of handling all aspects of politics in the workplace. They reviewed federal and state rules regarding employees’ political activity and speech in the workplace, and compliance issues related to federal campaign finance laws when a company or its executives engage in political activity. Additional topics covered include:

  • Political statements on social media,
  • When talking politics can turn into discrimination and harassment,
  • Corporate partisan and non-partisan political communications,
  • Employee volunteer activity, and
  • Do’s and don’ts for executive fundraising.

To view a recording of the webinar, click here.

What’s happening at McDonald’s should serve as an important lesson for many employers.  In the past two weeks, it was reported that its CEO resigned or was terminated (depending on what news outlet you read) because he exercised “poor judgment” by having an affair with a subordinate.  McDonald’s is facing a brave new world without its CEO with the added expense and distraction of defending new and outstanding sexual harassment lawsuits. What lessons can be learned?

In my management training I have been very direct with executives – do not date people in your division or line of report.  Full stop.  I now have many clients who – like McDonald’s – have enacted polices that prohibit workplace romances.

Why are these policies good and why should you consider one?  Several reasons: workplace romance is often a distraction to the business; it takes up time; it causes resentment and jealousy, and it is simply bad for business.

Continue Reading It Starts at the Top

Date: Tuesday, October 8, 2019
Time: 12:30 pm ET | 11:30 am CT

Managing employee requests related to disabilities (actual, perceived or alleged) remains a trap for the unwary Human Resources department. Requests may involve leave for extended or unlimited periods of time, workplace changes and more. Employers must consider numerous laws, including the Family and Medical Leave Act, the Americans with Disabilities Act, and state and local counterparts. Know your legal obligations and reduce your risk.

RSVP HERE

So imagine that your biggest pothead friend from college has opened up a cannabis dispensary that sells weed for recreational use. Your old pal would be selling something that remains utterly unlawful under federal law, the recent and sweeping changes to state law notwithstanding. But two wrongs don’t make a right, according to the Tenth Circuit Court of Appeals:  if you’re going to sell something that federal law treats just like heroin, you’d at least better comply with federal wage and hour laws. Yes, cannabis sellers: thou shalt not rip off your employees for wages, even when they’re doing something illegal under federal law.

In its recent decision in Robert Kenney v. Helix TCS, Inc. (September 20, 2019), the Tenth Circuit affirmed the notion that an employer does not escape its responsibilities under federal law by virtue of its violations of other federal laws. Ergo:  a cannabis company cannot deem its employees exempt from the protections of the Fair Labor Standards Act (“FLSA”) solely on the basis that their job functions violate the Controlled Substances Act (“CSA”).

Continue Reading Federal Wage Laws Protect Cannabis Workers? Yes, They Do

The labor movement sent a powerful and potentially revolutionary signal to the tech industry this past week on September 24: contract employees of HCL Technologies, working under a renewable contract with Google, voted to unionize for better salaries, benefits, and working conditions. Nearly 80 contract HCL employees stationed in Google’s Pittsburgh office joined the United Steelworkers trade union, which represents more than 850,000 American employees across various industries. Significantly, this marked the first time contract tech workers have unionized in the United States in an industry that is almost entirely non-union.

The vote for union representation strikes at the heart of the business model used by companies like HCL, a multinational Indian IT services company. Although the HCL employees who have been contracted out to Pittsburgh work alongside Google employees in similar positions, they contend that they receive less favorable benefits and less compensation for their work than do those employed directly by Google. This is often the case for contract workers, who are heavily utilized in the technology industry thanks to the lower costs of employing them. But these same contract employees have historically been less inclined to unionize, fearing that their employers will respond by declining to renew their contracts when the time comes. Indeed, some HCL Technologies employees expressed this exact concern, recognizing the possibility that Google would decline to renew its contract with HCL as a result of Tuesday’s vote.

Continue Reading A Union Strikes a Revolutionary Blow in Tech

A Los Angeles jury awarded a black former UCLA phlebotomist nearly $1.6 million in damages for being subjected to racial harassment by co-workers. Birden v. The Regents of the University of California, No. BC6681389 (Los Angeles Superior Court May 30, 2017).

Birden, who worked at UCLA as a per diem phlebotomist for approximately one year, alleged that she was subjected to racial slurs and disparaging remarks by Latino co-workers who referred to her as “lazy,” a “dark woman,” and used the “N” word in her presence. Birden claims that she reported the harassment to her supervisors but the school did not take action.

In his opening statement at trial, the attorney for the UC Board of Regents described one of Birden’s co-workers as a “good guy,” claimed “[h]e wasn’t doing it to try to offend somebody” with the use of the “N” word and argued that Birden was fired because of a clear pattern of performance issues. Birden’s counsel argued that Birden had no disciplinary history and offered testimony of Birden’s strong work ethic.

Ultimately, the jury agreed that Birden was subjected to severe and pervasive harassment by her co-workers due to her race and awarded Birden (1) $500,000 for past emotional distress and mental harm, (2) $800,000 for future emotional distress and mental harm, (3) more than $190,000 for past economic loss and (4) more than $86,000 for future economic loss. However, the jury did reject Birden’s claim that she was terminated because of her race.

Continue Reading Employers’ Non-Action Resulted in $1.6 Million Awarded in Harassment Claim

The Departments of Labor, Health and Human Services and Treasury recently issued joint final regulations expanding the availability of health reimbursement arrangements (“HRAs”) by introducing two new types of HRAs – Individual Coverage HRAs and Excepted Benefit HRAs. The following is a brief overview of the requirements employers must satisfy in order to offer HRA coverage to their employees, and employees’ dependents, under one of these new arrangements.

Background

HRAs constitute group health plans that are subject to various Affordable Care Act (“ACA”) rules. The ACA rules include prohibitions on capping or requiring cost-sharing for certain benefits (the “Market Reforms”).

Under prior guidance, in order to comply with or avoid the Market Reforms, HRAs generally had to be integrated with other qualifying group health plan coverage or limit the scope of reimbursable expenses to benefits excepted from compliance (e.g., limited scope dental or vision coverage). The new regulations make it easier for employers to offer HRA coverage by providing two new options that do not require integration with a group health plan or limiting the scope of reimbursable expenses.

Continue Reading Employers Have New Ways to Offer Health Reimbursement Arrangements

In the first post-Epic Systems decision regarding arbitration agreements, the NLRB has underscored just how pro-arbitration courts and regulators have become. In Cordúa Restaurants, the Board put its stamp of approval on employers revising arbitration provisions even after employees file a claim. In doing so, employers can exercise more control as to how employees must bring their claims and—particularly, as in the case of Cordúa Restaurants, by limiting class and collective actions.

FACTS

In Cordúa Restaurants, employees, as a condition of their employment, had to sign arbitration agreements waiving “their right to file, participate or proceed in class or collective actions.” Despite this agreement, some employees still filed collective wage and hour actions in federal court. Additional employees began “opting-in” to these collective actions.

In response, the employer revised its arbitration agreement so that employees waived their right to opt-in to a collective action. The agreement was revised to say “I agree that I cannot file or opt-in to a collective action under this Agreement, unless agreed upon by me and the Company in writing.” Employees had to sign this new arbitration agreement as a condition of employment.

Continue Reading NLRB: Employers Win When Their Employees Can’t “Opt-In”

Governor Cuomo signed the groundbreaking harassment legislation that we previously covered here on August 12, 2019. The law profoundly alters the landscape of harassment claims in New York and how employers should be prepared to handle them. Key provisions include eliminating the “severe or pervasive” standard for discriminatory and retaliatory harassment cases, prohibiting mandatory arbitration for all discrimination claims (not just sexual harassment), and banning non-disclosure agreements for all discrimination claims.

Continue Reading BREAKING NEWS: Governor Cuomo Signs Off On Groundbreaking Harassment Legislation

Last week, the Chicago City Council passed the Chicago Fair Workweek Ordinance (“the Ordinance”), which requires employers to give workers early notice of their schedules or face penalties if they change shifts without sufficient notice.  For employers, this may present an administrative challenge, but employers should be prepared to address this national trend.  New York City, Philadelphia, Seattle, San Francisco, Oregon, and the District of Columbia have already enacted laws to protect worker schedules and limit employer discretion in adjusting employee schedules. Mayor Lightfoot is expected to formally sign the bill and it will subsequently be effective July 1, 2020. The highlights follow:

Who’s Covered?

  • The Ordinance requires employers in any “Covered Industry,” which includes building services, healthcare, hotels, manufacturing, retail, or warehouse services with more than 100 employees globally (250 in the case of non-profits) with at least 50 covered employees, to provide certain protection around the scheduling of an employee’s shifts.
  • For restaurants, the law is applicable for businesses with 30 locations globally and at least 250 employees.
  • The Ordinance applies to all employees, within Covered Industries, who make less than $26 per hour or receive an annual salary of under $50,000.

Continue Reading Predictive Scheduling for Chicago Too.