California Department of Fair Employment and Housing (DFEH) Director Phyllis W. Cheng, speaking at the Jackson Lewis LLP-sponsored Association of Corporate Counsel (ACC) Labor and Employment Committee Meeting on Feb. 22, 2011, told the gathering of business lawyers that the agency would continue to pursue high-impact cases of “systemic discrimination†in the workplace as a means of leveraging its resources in a time of government austerity.
Articles Discussing Labor And Employment Law In All Fifty Us States And Puerto Rico.
How Illinois’ Civil Union Act Will Affect the Workplace
The Illinois Religious Freedom Protection and Civil Union Act (“Civil Union Actâ€) extends state law protections and responsibilities currently afforded to married, heterosexual couples to all committed couples in Illinois, including same-sex couples, by allowing same-sex couples to enter into a civil union. The Act will become effective on June 1, 2011.
Breaks Required under Maryland’s “Healthy Retail Employee Act,†Effective March 1
Under Maryland’s Healthy Retail Employee Act, Maryland employers who operate “retail establishments†must provide non-exempt retail employees with break periods based on the length of the shifts the employees work. Employers in violation of the Act will face a fine.
California Court Rules Employer Not Required to Pay Overtime under Explicit Mutual Wage Agreement
A California employer did not owe overtime to an employee because it had entered into an explicit mutual wage agreement that provided for base compensation and overtime in one lump sum, the California Court of Appeal has ruled. Arechiga v. Dolores Press, Inc., No. B218171 (Cal. Ct. App. Feb. 7, 2011). Affirming the dismissal of the employee’s claim, the Court upheld the validity of explicit mutual wage agreements for non-exempt employees under California law.
Punitive Damages May be Awarded for Harassment Claim Despite Employee’s Failure to Succeed on Emotional Distress Claim, New Jersey Court Rules
In a groundbreaking decision on an issue of first impression, the New Jersey appellate court has held that a plaintiff may proceed with a punitive damages claim against her former employer despite the fact that a jury found that she failed in proving the common law tort of intentional infliction of emotional distress under New Jersey law. Rusak v. Ryan Automotive, L.L.C., No. A-2002-09T1 (N.J. Super. Ct. App. Div. Feb. 8, 2011).
Washington State Legislature Targets Bullying in the Workplace
Responding to findings that approximately one in five employees “directly experience health-endangering workplace bullying, abuse, and harassment†and that “abusive work environments can have serious effects on targeted employees and serious consequences for employers,†a new bill has been introduced in both houses of Washington’s state legislature that will provide a legal remedy for employees and legal incentives for employers to address workplace bullying.
ICE to Issue Form I-9 Audit Notices to Employers in Denver
Jackson Lewis has learned that the United States Immigration and Customs Enforcement (“ICEâ€) will be issuing notices of inspection to review the hiring records of some employers based in Denver on February 14, 2011. The employers will have three days to produce I-9 forms or fines will be assessed. ICE will inspect and review hiring records to determine whether they comply with employment eligibility verification laws and regulations.
New California Law Allows Agents’ Presumption of a Serious Workplace Safety Violation
A new California law makes it easier for the California Division of Occupational Safety and Health (“Cal/OSHA”) to classify workplace safety violations as “serious” for purposes of issuing citations and proposed penalties to employers. Assembly Bill 2774, signed by Governor Arnold Schwarzenegger in September 2010, broadens the definition of “serious violation” and establishes specific procedures for Cal/OSHA to create a rebuttable presumption that a “serious violation” exists at a worksite. According to Cal/OSHA, the law will “help strengthen the Cal/OSHA program, improve enforcement efforts and better protect California’s workers.”
New York Wage Theft Act Increases Employer Obligations and Penalties for Labor Law Violations.
New York Governor David Paterson has signed into law the Wage Theft Prevention Act. The new law amends the New York Labor Law, creates new recordkeeping obligations for employers and allows employees to recover significantly greater damages for violations of the law. The new law will become effective on or about April 12, 2011.
New York Hospitality Industry Wage Order Effective January 1, 2011.
The New York State Department of Labor has issued its long-awaited final Hospitality Industry Wage Order applicable to hotels and restaurants, among others. The new Wage Order will be effective January 1, 2011. It makes substantial changes to the rules governing payment of wages to employees in the hospitality industry. It should clarify rules applicable to an industry that has been besieged with class action lawsuits for overtime pay and tip misappropriation. The December 15, 2010, final Wage Order is the culmination of nearly two years of administrative proceedings. A Wage Board held numerous public hearings throughout the State and issued recommendations to the Commissioner of the Department of Labor. The Department of Labor issued a Proposed Order on October 20, 2010 (see our article, Proposed Hospitality Industry Wage Order Would Mandate Significant Changes for New York Restaurants and Hotels). The final Wage Order is substantially similar. Highlights of the Wage Order include the following:
California Court Rules Employer Had No Right to Eliminate Reduced Sales Quotas for Senior Agents.
In a case brought by insurance agents, the California appeals court has ruled that an employer may not unilaterally eliminate certain obligations to employees contained in a policy that did not have an indefinite duration. McCaskey v. California State Auto. Ass’n, No. H032186 (Cal. Ct. App. Oct. 29, 2010). Reversing summary judgment for the employer, the Court held that a triable issue of fact existed regarding the duration of the policy and allowed the case to proceed to trial.
Debate Brewing on Effective Date of Georgia’s New Non-Compete Law.
Even though Georgia’s voter-approved constitutional amendment for a sweeping new restrictive covenant law said it would take effect upon ratification, a debate has been developing in the state over whether that is the effective date. (For more information on the new law, see our article, Georgia Voters Approve New, Employer-Friendly Non-Compete Law.)
Massachusetts Commission Against Discrimination on New Criminal Background Check Law.
Massachusetts’ new law on criminal offender record information (“CORI”) bans the use of questions about criminal history on an “initial written application” for employment. This ban became effective November 4, 2010. The Massachusetts Commission Against Discrimination (MCAD), charged with enforcement, has issued a Fact Sheet on how it intends to enforce the law. While the Fact Sheet does not have the force of a regulation or law, it provides valuable guidance for employers.
New Jersey Supreme Court Holds Pay Discrimination Claim Timely Although Act Occurred Beyond Limitations Period
The New Jersey Supreme Court has held that a wage claim may be timely even though the alleged discrimination occurred outside the New Jersey’s Law Against Discrimination’s two-year statute of limitations. Alexander v. Seton Hall Univ., No. A-87-09 (Nov. 23, 2010). According to the Court, this is because each alleged discriminatory paycheck is a separate act, re-starting the limitation period. The Court, however, limited the plaintiffs’ damages to the two-year period from the date they filed their complaint.
New Jersey Supreme Court Upholds Employee’s Pilfering Confidential Employer Records in Discrimination Suit.
The New Jersey Supreme Court has ruled 5-2 that an employee who engages in self-help and circumvents the pretrial discovery process by secretly copying her employer’s records for use in a discrimination lawsuit may be insulated from discipline and/or termination. The Court’s decision in Quinlan v. Curtiss-Wright Corp., No. A-51-09 (Dec. 2, 2010), adopting a totality-of-circumstances approach, gives employees who believe they were discriminated against more legal protections than ever while making it more difficult for employers to respond to employee misconduct.