Laborsphere

DOL Extends FLSA Final Joint Employment Rule Effective Date

The federal Fair Labor Standards Act (FLSA) requires employers to pay non-exempt employees at least minimum wage plus overtime compensation. If an employee is unpaid or underpaid — due to a calculation error or an employee’s unreported time worked, including remote work arrangements during the pandemic — the employee may recover back pay, liquidated damages, attorneys’ fees and litigation costs. If two or more employers have a relationship with an employee — for example, if an employee works for a staffing agency and is assigned to work at the agency’s customer or an employee performs work for two with common ownership or management — the law may deem the employers to be joint employers with joint and several liability, depending on the facts. If one joint employer fails to comply with the FLSA, both joint employers may be held liable. Different laws use different tests for joint employment.

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COVID-19 Travel to the United States: International Travel Restrictions May Be Eased from November 2021

The travel restrictions implemented by the U.S. government during the height of the pandemic may be easing. However, there is not a concrete list of rules for what will be required of travelers coming directly into the U.S. In this alert, we examine previous entry restrictions, how those may change going forward and which vaccines will be recognized by the U.S.

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Illinois Appellate Court Clarifies BIPA Statutes of Limitations

On September 17, 2021, the First District of the Illinois Appellate Court — which covers appeals from Cook County, Illinois — addressed a hotly contested issue under the Illinois Biometric Information Privacy Act (BIPA): which statutes of limitations apply to BIPA claims? In Tims v. Black Horse Carriers, Inc. (2021 IL App (1st) 200563), the court concluded that a five-year limitations applies to some BIPA claims and a one-year limitations period applies to others.

There is no statute of limitations in BIPA which has led to litigation over which limitations period under Illinois law should apply to BIPA claims. In Tims, the plaintiff, a former employee of defendant, filed a class action complaint alleging that defendant did not comply with certain BIPA provisions in connection with its so-called biometric time clocks. The defendant moved to dismiss, arguing these claims were untimely under Illinois’ one-year limitation period for “slander, libel or for publication of matter violating the right of privacy” under 735 ILCS 5/13-201. The trial court denied the motion, concluding instead that the Illinois “catch-all,” five-year limitation period under 735 ILCS 5/13-205 for “all civil actions not otherwise provided for” applied to the plaintiff’s BIPA claims.

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California Court of Appeal Upholds Dismissal of ‘Unmanageable’ PAGA Claim

On September 9, 2021, the Second District of the California Courts of Appeal ruled in Fred Wesson v. Staples the Office Superstore, LLC that trial courts have “inherent authority” to strike claims under the California Private Attorneys General Act (PAGA) if they will not be manageable at trial. As the first precedential decision on this issue from a California court, this case provides employers with a welcome potential defense to some PAGA claims.

Facts and Background

Under PAGA, employees in California are empowered to bring claims on behalf of other employees (and the state of California) for violations of the California Labor Code. Critically, plaintiffs need not meet class action requirements or go through class action procedures to bring claims under PAGA on behalf of other employees. As a result, unlike class actions, employers have had relatively limited recourse to challenge wide-reaching PAGA claims, sometimes brought on behalf of hundreds or thousands of employees.

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President Biden’s COVID-19 Action Plan Mandates Vaccines for Many Employees

On September 9, 2021, President Biden announced his six-pronged COVID-19 Action Plan, which will have a significant impact on employers across the country by mandating vaccinations for many employees. Many key details — including what exemptions may apply to mandatory vaccinations — remain unknown until additional federal guidance is provided in the upcoming weeks.”

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NJ Cannabis Regulatory Commission Presses Pause on Physical Evaluation Requirement for Drug Testing

As we discussed in a previous alert, the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA) brought new employment protections for job applicants and employees who lawfully use cannabis off-duty. In addition, CREAMMA preserved an employer’s right to conduct drug testing of its workforce, but added a new requirement: testing for suspected use of cannabis must be accompanied by a physical evaluation to determine the employee’s level of impairment while engaged in performing job duties, as conducted by an individual certified to opine on the employee’s state of impairment.

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