An Employee Whose Individual Claims Are Time-Barred Can Still Pursue a PAGA Action

On July 21, 2021, the California Court of Appeal, Fourth Appellate District, held in Johnson v. Maxim Healthcare Services, Inc., that an aggrieved employee whose individual claim was time-barred had standing to pursue a representative claim under the Private Attorney General Act of 2004 (PAGA) on behalf of other allegedly aggrieved employees. The court’s decision was based on its interpretation of the California Supreme Court’s 2020 ruling in Kim v. Reins, wherein the high court held an aggrieved employee who settled his individual claims nonetheless had standing to maintain a representative PAGA action. This decision is poised to have a significant impact on all employers in California by expanding the scope of individuals with standing to bring a PAGA action.

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Global Neurodiversity: A Workplace Primer on Attracting and Retaining Neurodiverse Talent

Neurodiversity is the inherent differences in neurological structure and function. The term encompasses neurocognitive differences such as autism, attention deficit hyperactivity disorder (ADHD), dyslexia, Tourette’s syndrome, anxiety, obsessive-compulsive disorder, depression, intellectual disability and schizophrenia. Although most governments do not provide neurodiverse individuals with the support necessary to enter and remain in the workforce, multinational employers are becoming aware of the benefits of having a neurodiverse workplace and are developing hiring and retention initiatives to support neurodiverse applicants and employees.

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Minnesota: Parentally Signed Exculpatory Waivers Are Binding After Adulthood

This past year, exculpatory waivers had their moment in the sun as businesses and educational institutions raced to put waivers in place to protect against claims stemming from the COVID-19 pandemic. A Minnesota Court of Appeals decision published this week, Carter Justice v. Marvel, LLC d/b/a Pump It Up Parties, provides clarity and confidence for the Minnesota businesses and educational institutions that utilize waivers for persons under 18. In an issue of first impression, the appellate court held that an exculpatory waiver signed by a parent on behalf of his or her minor child is binding on the child after the child becomes an adult. The court also reinforced the standard for determining whether a waiver is enforceable under Minnesota law and the effect of an overly broad waiver.

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California Supreme Court: Paying Meal and Rest Period Penalty Based on Employee’s Base Hourly Rate Is Not Enough

On July 15, 2021, the California Supreme Court ruled that an employee’s “regular rate of compensation” for the purposes of meal and rest break penalties includes all nondiscretionary payments, not just hourly wages. This decision will have significant impact on all employers in California because (1) going forward, employers cannot simply pay the employee’s base hourly rate for meal and rest break violations, and (2) this decision is retroactive.

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President Biden Targets Non-Compete Agreements in New Executive Order on Promoting Competition

As part of “a whole-of-government effort to promote competition in the American economy,” President Biden’s July 9 Executive Order on Promoting Competition in the American Economy encourages the Federal Trade Commission to ban or limit non-compete agreements. In doing so, President Biden continues — and potentially accelerates — what to date has been a piecemeal effort conducted almost exclusively at the state level to limit, and in some cases prohibit, the use of non-competes, particularly for low-wage workers.

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New York Issues NY HERO Act Standard and Model Plan — A Playbook for the Next Pandemic

This week, the New York State Department of Labor issued the new Airborne Infectious Disease Exposure Prevention Standard and model template plan under the NY HERO Act. However, with no current designation for COVID-19 as a “highly contagious communicable disease” by the New York State Commissioner of Health, the model plan is more of a playbook for the next outbreak.

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