In a long-awaited decision, the United States Supreme Court, by a 5-to-4 vote, overturned the National Labor Relations Board’s (the “Board”) ruling that class action waivers violate the National Labor Relations Act (NLRA) because they interfere with the right to engage in “protected activity,” which, according to the Board, includes the ability to bring class or collective actions. Epic Sys. Corp. v. Lewis, No. 16-0285, 2018 WL 2292444, at *23 (U.S. May 21, 2018).
On March 6, the U.S. Department of Labor’s Wage and Hour Division (“WHD”) announced a new pilot program through which employers may settle potential overtime and minimum wage claims under the FLSA by paying back pay owed to the affected employee(s), but without paying civil penalties or liquidated damages. The Payroll Audit Independent Determination (PAID) program will be available for six months, after which the Department will evaluate the viability of the program. This program is purely voluntary, both for employers, in that they would need to self-disclose the violation(s) to the WHD, and employees, who may choose to accept the back pay being offered by the employer as full settlement of the potential claim, or decline the offer and file suit, thus preserving the right to recover liquidated damages if successful. If the employee chooses to accept the back pay, and thus settle the potential claim by signing a release of that claim, the WHD will only approve a release if it is tailored to the identified violations and the time period covered by the back wages payment. Employers are not eligible for the program if they are already under investigation by the WHD, involved in litigation or arbitration regarding the particular claim, or the employee has already communicated an interest in litigating or settling the issue. Claims that could be resolved through this program include misclassification of employees as exempt from overtime or failure to pay for “off the clock” work.
Allegations of sexual misconduct against celebrities and high-profile individuals continue to occupy the national spotlight. State legislators around the country have started to propose new laws which ban confidentiality and nondisclosure provisions in settlement agreements that resolve disputes arising from sexual harassment allegations. As we wrote about in an early blog post, critics of confidentiality provisions claim these clauses enable victimizers to conceal and continue long-running patterns of sexual misconduct, and prevent discussion of the accusations among the victims and co-workers.
We have summarized the proposed legislation here:
*Originally published by CalCPA in the January/February 2018 issue of California CPA — the original article can be found here.
You may not have expected that the California Legislature in 2017 designated an official state dinosaur (Augustynolophus morrisi) and four state nuts (almond, pecan, walnut and pistachio), which are technically seeds, but that’s a separate article. Less surprising is that employer regulation and employee rights continue to expand in our state, the sixth-largest economy of the world. The rate of expansion, however, seems to have taken another pendulum swing: 304 bills introduced in 2017 mention “employer,” compared to 569 bills in 2016 and 224 in 2015. Most of those bills did not pass, and of the ones that did, most were not signed into law by Gov. Brown. Essential elements of several bills that became law affecting private employers, effective Jan. 1, 2018, unless noted otherwise, follow.
Governor Jerry Brown signed several laws in 2017 that will impact California employers next year. A summary of some of the key new laws follows, in numerical order by Assembly Bill (AB) and/or Senate Bill (SB). All of the laws outlined below are effective beginning January 1, 2018.
Philadelphia is poised to strengthen the enforcement powers of the Philadelphia Commission on Human Relations (“PCHR”), the City’s primary civil rights and anti-discrimination agency. Under legislation that passed City Council on May 8, 2017, the PCHR would have the authority to issue cease and desist orders—closing a business’s operations for an unspecified length of time—if the agency determines the business has engaged in “severe or repeated violations” of the Philadelphia Fair Practices Ordinance (“the Ordinance”). The authority to shut down a business’s operation is an unheard of remedy for employment related civil rights violation and—given the significant ramification for employers—it is critical for Philadelphia employers to be aware of the potential consequences of the PCHR’s enhanced powers for their business operations.