On December 29, 2022, the Providing Urgent Maternal Protections for Nursing Mothers Act (“PUMP”) was signed into law. PUMP further amends the federal Fair Labor Standards Act (“FLSA”) by extending protections for employees who need to express breast milk at work. PUMP broadens the available remedies for violations and extends employee coverage requirements. The U.S. Department of Labor Wage and Hour Division (the “DOL”) recently issued guidance on PUMP’s requirements.
Continue Reading The Department of Labor Issues Guidance for Employers Concerning the PUMP Act

As we previously reported, the Equal Employment Opportunity Commission (“EEOC”) has had on its radar potential harms that may result from the use of artificial intelligence technology (“AI”) in the workplace. While some jurisdictions have already enacted requirements and restrictions on the use of AI decision making tools in employee selection methods,[1] on May 18, 2023, the EEOC updated its guidance on the use of AI for employment-related decisions, issuing a technical assistance document titled “Select Issues: Assessing Adverse Impact in Software, Algorithms, and Artificial Intelligence Used in Employment Selection Procedures Under Title VII of the Civil Rights …
Continue Reading The Use of Artificial Intelligence in Employee Selection Procedures: Updated Guidance From the EEOC

As we wrote about previously here, in October 2022, the Sixth District of the California Court of Appeal in Camp v. Home Depot U.S.A., Inc., 84 Cal.App.5th 638 (2022), ignored a decade of precedent and found Home Depot’s total time rounding for its non-exempt employees was unlawful. In so holding, the court held, “if an employer, as in this case, can capture and has captured the exact amount of time an employee has worked during a shift, the employer must pay the employee for ‘all the time’ worked.” The court rejected at least half a dozen prior appellate opinions and…
Continue Reading Home Depot Files Opening Brief in California Supreme Court Case Set to Determine Validity of Time Clock Rounding

On April 19, 2023, the California Court of Appeal held that an employer’s arbitration agreement was unenforceable because of unconscionable terms found in other documents provided to employees during the onboarding process. The decision was certified for publication on May 10, 2023. In Alberto v. Cambrian Homecare (Apr. 19, 2023, No. B314192) ___Cal.App.5th, the Court of Appeal affirmed the trial court’s decision that a standalone arbitration agreement was unconscionable based on terms contained within the employer’s confidentiality agreement. Because the arbitration and confidentiality agreements were presented to the employee at the time of hire and related to the employee’s employment, the…
Continue Reading It Is Time to Check Your Onboarding Documents – Employer’s Confidentiality Agreement Renders Its Arbitration Agreement Unenforceable

On February 6, 2023, New Jersey Governor Phil Murphy signed the Temporary Workers’ Bill of Rights, significantly expanding the rights and protections afforded to the 127,000 temporary workers in New Jersey. The new law, which will largely take effect on August 5, 2023, though certain provisions already took effect on May 7, 2023, sets new requirements for “temporary help service firms” that employ “temporary laborers” in a “designated classification placement.”…
Continue Reading New Jersey Significantly Expands Rights and Protections of Temporary Workers Through the Recently Enacted Temporary Workers’ Bill of Rights

The Department of Homeland Security (“DHS”) announced on May 4, 2023 a planned end to the COVID-19 remote I-9 flexibility. The flexibility ends on July 31 and prior pandemic I-9s must be remediated by Aug 30, 2023. Therefore, employers should act quickly to review and remediate I-9s that were verified remotely in the past three years.
Continue Reading ICE Announces July and August Deadlines for Employers: Preparing for the DHS Planned Sunset of the COVID Pandemic Remote I-9 Verification Accommodations

In a decision that had been anticipated, the National Labor Relations Board (“NLRB” or “Board”) abandoned its short-lived burden-shifting test for determining the legality of employer discipline of employees found to have engaged in abusive or inappropriate conduct. Robbed of the ability to simply demonstrate any such discipline was not in retaliation for protected conduct. Employers will once again be called upon to grapple with a list of indefinite factors that has oftentimes rendered similar outrageous workplace conduct immune from discipline. …
Continue Reading …But Words Will Never Harm Us? The NLRB Restores Precedent Protecting Abusive Workplace Speech by Employees While They Are Engaged in Protected Concerted and Union Activities

On March 20, 2022, National Labor Relations Board (“NLRB” or the “Board”) General Counsel Jennifer Abruzzo issued a memorandum to all Regional Directors, Officers-in-Charge, and Resident Officers updating the cases they are required to send to the NLRB Division of Advice before processing further in order to “allow the Regional Advice Branch to reexamine these areas and counsel the General Counsel’s office on whether [a] change [in the law] is necessary to fulfill the Act’s mission.”…
Continue Reading NLRB General Counsel Issues Memo Updating Prosecutorial Priorities

On March 7, 2023, the National Labor Relations Board (NLRB) and the Consumer Financial Protection Bureau (CFPB) signed a Memorandum of Understanding (“CFPB MOU”) that created a formal partnership between the two agencies. Per the CFPB MOU, the basis for this collaboration is a shared interest in “protecting American consumers and workers” to “better root out financial practices that harm workers,” to “enhance the enforcement of federal laws,” and to coordinate interagency goals, outreach and training. According to the NLRB, the targeted practices are “employer surveillance, monitoring, data collection, and employer-driven debt,” which can include employee-purchased equipment, supplies or…
Continue Reading It’s Not Just the NLRB Watching You – NLRB Adds the Consumer Financial Protection Bureau to Its Ever Growing List of Interagency Collaborations

Last summer, the Washington D.C. Council unanimously passed a bill that prohibits employers from refusing to hire, terminating, suspending, failing to promote, demote, or otherwise penalizing any employee who uses marijuana, even if they fail a drug test. In October 2022, the bill, referred to as the D.C. Marijuana Protections Amendment Act of 2022, was signed by Mayor Bowser. The law goes into effect on or after July 13, 2023.[1] …
Continue Reading On the Horizon: Broad Employment Protections for Marijuana Users in the District of Columbia

On April 6, 2023, the New York City Department of Consumer and Workforce Protection (“DCWP”) promulgated its final regulations (the “Final Regulations”) regarding the New York City Automated Employment Decision Tools Law (“AEDTL”). In connection with the Final Regulations, the DCWP also notified employers that it would further delay enforcement of the AEDTL from April 15, 2023 to July 5, 2023. The Final Regulations, among other things, expand the definition of “machine learning, statistical modeling, data analytics, or artificial intelligence” as used in the AEDTL and clarify specifics around the bias audits required by the AEDTL.
Continue Reading NYC Issues Final Regulations for Automated Employment Decision Tools Law, Delays Enforcement to July 5, 2023

California’s Private Attorneys General Act of 2004 (“PAGA”) allows employees to act as an “agent” of the State of California and recover civil penalties for violations of the Labor Code through a civil action filed on behalf of themselves and other current or former employees. In Viking River Cruises, Inc. v. Moriana, the U.S. Supreme Court held that the Federal Arbitration Act partially preempted a California rule prohibiting employers from requiring their employees to enter into pre-dispute arbitration agreements that contractually waived the right to assert “representative” claims under PAGA. Viking River held that while California could validly prohibit pre-dispute arbitration…
Continue Reading Fording Viking River, Another California Court of Appeal Holds That PAGA Plaintiffs Maintain Standing to Pursue “Representative” Claims Even if Compelled to Arbitrate “Individual” Claims

Since 2017, New York State’s Nursing Mothers in the Workplace Act has required New York State employers to provide daily paid or unpaid break time to express milk up to three years following the birth of a child, and to provide a room for expressing milk, in privacy, close to the employee’s work location. On December 9, 2022, Governor Kathy Hochul signed legislation, effective June 7, 2023, to clarify these obligations. New York City employers will be familiar with much of these clarifications, as they generally track requirements established in New York City’s 2018 lactation accommodations law previously reported here. But the…
Continue Reading New York State Catches up to New York City, Expanding Accommodations for Nursing Mothers in the Workplace