No More “No Rehire” Clauses in California Settlement Agreements

In most jurisdictions, it is standard practice to include a “no-rehire” clause when negotiating a settlement agreement in an employment dispute.  “No-rehire” clauses bar the departing employee from seeking future employment with the employer or one of the employer’s related entities.  If the former employee applies for a job with the employer or a related entity, the “no-rehire” clause allows the employer to reject the former employee’s application or require the former employee to withdraw the application for employment.  In some instances, if the former employee is hired inadvertently, the “no-rehire” clause provides the employer a legitimate nondiscriminatory basis to rescind the offer.  Although the use of “no-rehire” clauses is a common practice, California recently prohibited the practice and joined Vermont, which banned “no-rehire” provisions in 2018.

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U.S. Department of Labor Issues New FMLA Guidance

On March 14, 2019, the U.S. Department of Labor (DOL) issued an opinion letter concerning the Family Medical Leave Act (FMLA). The FMLA provides eligible employees a maximum of 12 weeks of unpaid, job-protected leave for specified family and personal medical reasons and up to 26 weeks to care for a covered service member per year. In its opinion letter, the DOL addressed whether an employer may delay designating paid leave as FMLA leave or permit employees to expand their FMLA leave beyond the statutory requirements.

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How to Prepare For a Visit from ICE: I-9 Audits and Workplace Visits

On December 11, 2018, U.S. Immigration and Customs Enforcement (ICE) issued a press release reaffirming the agency’s continued commitment to prosecuting employers who knowingly hire and employ ineligible workers. The agency further announced that it will use I-9 audits and penalties to ensure that employers comply with applicable laws.

According to ICE, in Fiscal Year 2018, the agency initiated 6,848 worksite investigations, 5,981 I-9 audits, 779 criminal arrests and 1,525 administrative arrests. Given this active enforcement landscape, it is imperative that employers comply with applicable immigration laws, and understand their rights under such laws.

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Philadelphia Enacts a Fair Workweek Law

On December 6, 2018, the Philadelphia Council voted 14-3 to pass a Fair Workweek bill, which Mayor Kenney is expected to sign. Once signed, the ordinance would take effect on January 1, 2020, and is expected to impact roughly 130,000 workers. The Fair Workweek ordinance will apply to employers with more than 250 employees and over 30 locations (including Philadelphia) worldwide. It will require employers in the retail, fast-food, and hospitality industries to provide advance written notice of work schedules and predictability pay to their service workers. Other cities that enacted similar Fair Workweek laws include New York, San Francisco, San Jose, Emeryville and Seattle.

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