Tuesday, June 28, 2022 at 12:30pm ET

The pandemic has solidified many employees’ preference for remote work. As companies roll out their return-to-office plans, they are faced with increasing employee demands for remote and hybrid work arrangements. There’s no question that the future workplace may require a combination of in-office and remote work in order to retain a strong and cohesive workforce, reduce turnover and attract top talent. But how can employers facilitate a new, hybrid workplace without resulting in a compliance nightmare?

This webinar will cover:

  • Important considerations when building a hybrid work model and for supporting remote workers
  • Wage and hour concerns with a hybrid workforce
  • Necessary policies and procedures to sustain an effective hybrid workplace

To RSVP for this webinar, please click here.

Join Kelley Drye’s Labor and Employment team for the 2022 WORKing Lunch Series, which includes five webinars focused on the latest trends and developments in workplace law. Sign up for one, some, or all of the programs below. Invite a colleague, grab your lunch and let’s take a deep dive into these timely employment topics.

Tuesday, June 28, 2022 at 12:30pm ET
How to Avoid Legal Pitfalls With A Hybrid Workforce

The pandemic has solidified many employees’ preference for remote work. As companies roll out their return-to-office plans, they are faced with increasing employee demands for remote and hybrid work arrangements. There’s no question that the future workplace may require a combination of in-office and remote work in order to retain a strong and cohesive workforce, reduce turnover and attract top talent. But how can employers facilitate a new, hybrid workplace without resulting in a compliance nightmare?

This webinar will cover:

  • Important considerations when building a hybrid work model and for supporting remote workers
  • Wage and hour concerns with a hybrid workforce
  • Necessary policies and procedures to sustain an effective hybrid workplace Continue Reading Complimentary L&E Webinar Series

On July 1, 2022, new obligations will be placed on Chicago employers under the City’s heightened sexual harassment protections for employees. The amendments to the Chicago Human Rights Ordinance (Ord. 2022-665) were only passed by the City Council on April 27, 2022 – are you and your business compliant? A quick guide for a seamless transition for your HR department into the new summertime protections follows below.

Who needs to keep reading?

The Ordinance applies to any business, partnership, entity, or person that employs at least one employee in the City of Chicago in the current or preceding calendar year (in 2021 or 2022), and is subject to City licensing requirements or maintains a business facility within the City limits.

An employee under the Ordinance means anyone who is engaged to work within the City limits for monetary or other valuable consideration.

Continue Reading Compliance Alert – City of Chicago Employers

Employers use arbitration agreements to avoid costly and protracted litigation. And, in turn, employers can often rely on courts to enforce their arbitration clauses, either dismissing or staying the case pending completion of arbitration. A California-based employee, however, recently convinced the California Courts of Appeal that his arbitration agreement was too unfair to be enforced, and the court agreed. In Nunez v. Cycad Mgmt. LLC (“Nunez”), 77 Cal. App. 5th 276 (Cal. Ct. App. 2022), the California Courts of Appeal held that an employer’s arbitration clause was unconscionable—that is, too unfair—and, as a result, the arbitration clause was invalid and unenforceable.

That decision was rooted in the doctrine of unconscionability. Originally a contract defense, the doctrine unconscionability excuses a party from compliance with a particular contractual provision when that provision both was negotiated in an oppressive manner and would involve an overly harsh or one-sided result. A plaintiff invoking the doctrine of unconscionability must demonstrate both procedural and substantive unconscionability. Continue Reading California Arbitration Agreements: Greater Hurdles To Enforceability

Courts have little leeway to avoid enforcement of an arbitration clause. Indeed, the United States Supreme Court has spilt much ink reinforcing the power and scope of the Federal Arbitration Act (“FAA”), the legislation requiring that courts compel arbitration of claims subject to an arbitration clause. In California, however, employees can circumvent their arbitration clauses by asserting Private Attorneys General Act (“PAGA”) claims, a loophole that two California Courts of Appeal decisions have recently reinforced. The United States Supreme Court, nonetheless, appears poised to step-in and potentially close this loophole for good. Continue Reading CA Courts Still Reluctant to Enforce Arbitration Agreements For PAGA Claims

On May 23, 2022, the California Supreme Court issued a long-awaited decision in Naranjo v. Spectrum Security Services, Inc., 40 Cal. App. 5th 444 (2019). The Court reversed in part the decision of the Court of Appeal by holding that premium pay for missed meal and rest breaks constitutes “wages” that can give rise to derivative claims for inaccurate wage statements (Labor Code section 226) and waiting time penalties (Labor Code section 203). The Court also affirmed that the default prejudgment interest rate of seven percent set forth in the state Constitution applies to such premiums. The Court’s ruling as to derivative claims will have significant impact, including increasing the exposure for employers in class action lawsuits involving unpaid meal and rest break premiums.

Gustavo Naranjo, a former security officer for Spectrum Security Services, Inc., filed a class action lawsuit alleging that Spectrum failed to provide its employees with meal and rest breaks. Naranjo’s suit sought damages and penalties for Spectrum’s alleged failure to report the premium payment on the employees’ wage statements  and failure to timely provide the payments to the employees upon their discharge or resignation. The Court of Appeal held that employees are not entitled to pursue derivative waiting time and inaccurate wage statement penalties for meal and rest break premiums because such premiums are “penalties” not “wages.”  Mr. Naranjo appealed the Court of Appeal’s decision.

Continue Reading CA Supreme Court Holds Meal and Rest Break Premiums are “WAGES”

As of May 7, 2022, new amendments to the New York Civil Rights Law (linked here) requiring New York employers to provide notice of electronic monitoring to employees went into effect.  If your company has not already taken necessary steps towards compliance, here is what you need to know.

Who does the law apply to?

Basically everyone –  the new law applies to “[a]ny employer who monitors or otherwise intercepts telephone conversations or transmissions, electronic mail or transmissions, or internet access or usage of or by an employee by any electronic device or system . . .”

The law defines “employer” broadly, covering “any individual, corporation, partnership, firm, or association with a place of business in the state.”  As such, most private employers, regardless of size, are covered by the new law.

Continue Reading NY Requires Notice of Electronic Monitoring to Employees — Are You In Compliance?

Concerning the ongoing assault on mandatory arbitration agreements, we recently blogged about the passage of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (P.L. 117-89), colloquially the “MeToo” law. The MeToo law formally amended the Federal Arbitration Act (“FAA”) to ban mandatory arbitration agreements for sexual assault and harassment claims. The MeToo law is “partially” retroactive: it bars mandatory arbitration of sexual harassment claims arising from conduct that occurred after the law went into effect, but not of claims where the alleged conduct occurred before the law’s passage.

On March 17, 2022, a mere two weeks after the MeToo Law’s passage, the U.S. House voted to advance the Forced Arbitration Injustice Repeal, or FAIR Act (H.R. 963), a bill which could effectively void all pre-dispute mandatory arbitration agreements in employment, antitrust, consumer and civil rights disputes as well prohibit waivers of joint, class, or collective action in such matters. So from an employment perspective, the FAIR Act, if enacted, would go far beyond the MeToo law’s prohibition against arbitration of sexual harassment claims—it would bar mandatory arbitration of all employment-related claims. Continue Reading The FAIR Act: A New Bill Banning Mandatory Arbitration Agreements

President Biden just signed into law the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021,” known informally as the “Me Too” law. It becomes effective immediately, and amends the Federal Arbitration Act (FAA) to ban the mandatory arbitration of sexual assault and harassment claims.

What does the new law mean for the future of employment arbitration? Can employers still have any type of a mandatory arbitration program? The answers to these questions are not immediately obvious, but you can be assured that the Me Too Bill will make harassment claims more expensive and more complicated to resolve. It is also not a surety that the end of arbitration will be good for victims or potential plaintiffs.

What the law will mean for your business will depend on a number of factors, including where you are doing business (as mandatory arbitration is already prohibited in some states), and whether your company had a mandatory arbitration program in place for customers or employees. However, all businesses may see an uptick in harassment claims, as that often happens whenever there is a very public legal development in this area.

What does the Me Too law say?

The main provision of the law is short enough to reproduce here:

“[A]t the election of the person alleging conduct constituting a sexual harassment dispute or sexual assault dispute, or the named representative of a class or in a collective action alleging such conduct, no predispose arbitration agreement or predispose joint-action waiver shall be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to the sexual assault dispute or the sexual harassment dispute.”

The terms “sexual assault dispute” and “sexual harassment dispute” are not confined to federal claims, but is any such claim as defined according to “applicable Federal, Tribal, or State law.” Continue Reading The End of Arbitration? What the “Me Too” Law Means for the Future of Employment Arbitration

The start of a new year is the time for annual retrospectives, predictions, and promises to get back into the gym. Although we can’t help with that last one, we wanted to take this opportunity to offer our own analysis on the state of employment law in 2021, and to see if we can predict the hot-button issues for the rest of 2022.

COVID Concerns

For now, the headline issue remains COVID. 2021 had seemed to offer a glimmer of hope that the pandemic was coming to an end, only for those hopes to be dashed by the virulent Delta and Omicron variants. Big cities like New York implemented sweeping vaccine mandates for businesses and customers, while some states and even the federal government issued more targeted mandates for healthcare workers and contractors. Earlier this year, we saw the Supreme Court issue two seemingly divergent rulings on vaccine mandates, eliminating President Biden’s requirement for employers with 100+ employees to mandate vaccination or masking for those in the workplace. Meanwhile, a New York judge in Nassau County struck down the state’s masking requirement for public spaces (the order is currently stayed pending appeal).

Employers are left with a hodgepodge of COVID-related rules and regulations depending on where they and their workers reside. New laws and lawsuits are inevitable, but they only amplify the collective wish for the pandemic to be extinguished—here’s hoping.

Restrictive Covenants

The onset of COVID-19 ushered in the remote-work revolution. But this phenomenon, coupled with the so-called “great resignation” has led to employers confronting some novel legal issues. When seeking to enforce a restrictive covenant against a former worker, which law applies? The question was a simpler one in the Before Times—back when it was obvious that the worker lived and worked in the same state as the employer. But now, a vague restrictive covenant might no longer apply to an employee who made a big move.

Even after confronting choice-of-law issues, expect to see more arguments over what restrictions are now viable in a world where an employee can work remotely for a competitor across the country just as easily as your competitor down the block.

Of course, these are just the issues exacerbated by the pandemic. As ever, restrictive covenants remain a thorny issue and fodder for frequent legislation. For instance, Oregon has passed a law making any restrictive covenant lasting for more than a year to be unenforceable. Expect a lot of activity in this area throughout 2022. Continue Reading Top 5 Employment Law Trends for 2022