Rojgar Job News

Update: Governor Lamont vetoed this bill on July 12, 2019.   Bear with me because this is a story about how a little provision slipped in at the last minute and buried deep in a innocuously-titled bill will have big implications for the restaurant industry in Connecticut. You might have missed House Bill 5001 (now Public Act 19-198) titled “AN ACT ESTABLISHING A TASK FORCE TO STUDY WORKFORCE TRAINING NEEDS IN THE STATE.” There was no legal analysis of the bill by the the Office of Legislative Research because “it does not analyze Special Acts.”  This must just be a bill about a task force, right? Well not exactly. Through an amendment that was adopted and passed by the House unanimously at 7:07p on the last day of the General Assembly session, two little noticed sections — Section 5 and 7 — were added to this bill.  Three hours later, the Senate also passed it unanimously. These provisions don’t have anything to do with a stu...

Illinois Restricts Use of Artificial Intelligence in Hiring On May 29, 2019, the Illinois Legislature unanimously passed the Artificial Intelligence Video Interview Act , which, not surprisingly, addresses how employers use artificial intelligence to analyze job applicant video interviews to determine the applicant’s fitness for the position.  Under the new law (assuming it is signed by the Governor, as anticipated), before requesting an applicant submit to a video interview, employers will be required to: notify applicants for positions based in Illinois that it plans to have their video interview analyzed electronically; explain how the artificial intelligence analysis technology works and what general characteristics it will use to evaluate candidates; and obtain the applicant’s consent to these procedures (note: consent does not have to be in writing). Under the bill, employers are required to destroy all copies, including back-ups, of an applicant’s video int...

As a part of the Unified Agenda of Regulatory and Deregulatory Actions (“Unified Agenda”) issued Wednesday, May 22, 2019, the National Labor Relations Board (“NLRB”) announced its regulatory road map, indicating three areas of the National Labor Relations Act (“NLRA”) under which the agency intends to develop new or modified rules: access to an employer’s private property; standards to determine when students who perform work at a private college or university in connection with their studies are “employees” within Section 2(3) of the NLRA; and representation election regulations, including the Board’s current procedures for blocking an election petition after the filing of an unfair labor practices charge, voluntary recognition, and the formation of Section 9(a) bargaining relationships in the construction industry. Each of these issues has been the subject of abundant litigation before the NLRB in the recent past. On the issu...

In a recently-released Advice Memorandum dated April 16, 2019, the National Labor Relations Board’s (“NLRB”) Office of the General Counsel (“GC”) determined that drivers utilizing Uber Technologies’ smartphone application-based rideshare platform are independent contractors, not employees, under the National Labor Relations Act (“NLRA”).  In arriving at this conclusion, the GC utilized the independent contractor test announced earlier this year in the NLRB’s decision   SuperShuttle DFW, Inc. , which we reported about here.  In SuperShuttle , the NLRB reinstated the common law agency test, a ten-factor test in which no one factor is determinative.  Applying those factors in the Uber memorandum, the GC noted that the overarching principal to consider under the SuperShuttle test is a worker’s “entrepreneurial opportunity” – workers who have significant control over their profits and losses ar...

On June 25, 2019, Illinois governor J.B. Pritzker signed HB 1438, the Illinois Cannabis Regulation and Taxation Act (“CRTA”), which, as of January 1, 2020, legalizes recreational use and possession of marijuana by adults aged 21 or older.  Illinois is now the eleventh US state to adopt a general law authorizing adult recreational use of marijuana (joining Alaska, California, Colorado, Maine, Michigan, Massachusetts, Oregon, Nevada, Vermont, and Washington, plus the District of Columbia).  And thirty-three states have enacted medical marijuana laws.  (We have posted about these and other marijuana-related developments impacting the workplace, for example, here, here, and here.)  What makes Illinois’ new law unique among these other states’ laws is its breadth.  For example, the CRTA addresses and attempts to create remedies for social inequities created through past enforcement of drug-related laws by authorizing the expungement of crimina...

AB 5, and its “ABC test,” expected to have greatest impact in “gig economy” jobs, but impact certain to be even more widely felt After a summer of lobbying and debating, the California Assembly adopted AB 5, a headline-grabbing law purporting to transform the status of gig-economy workers at companies like Uber, Lyft, and DoorDash.  Proponents of the law assert that it will force those companies to treat those persons performing work as independent contractors like employees, with all of the legal protections that entails – minimum wage, overtime, workers’ compensation, paid sick leave and reimbursement of expenses just to name several.  Critics at companies like Uber are publicly declaring they do not believe it will change their relationship with gig workers while they are reportedly meeting behind closed doors with California Governor Gavin Newsom, who has stated he is still open to negotiating possible changes to the law before he signs ...

On September 24, 2019, the U.S. Department of Labor (“DOL”) announced its long-awaited final overtime rule. Under the current DOL rules implementing the Fair Labor Standards Act (“FLSA”), to be exempt from overtime pay under the “white collar” exemptions (e.g., executive, administrative, professional), an employee generally must be paid a predetermined, fixed, non-fluctuating salary of $455/week. However, as we reported on March 7, earlier this spring, the DOL proposed a rule to raise the FLSA salary threshold. After thousands of public comments on the Notice of Proposed Rulemaking, the DOL announced on September 24 that it will increase the FLSA salary threshold even further than the DOL had proposed earlier this year, to $684/week, or the equivalent of $35,568/year. The methodology the DOL used to determine the salary threshold is similar to that it used in 2004 when the threshold was last updated, tying the salary level to the 20th percentile of ea...

Our colleague Brent Owen at the FrESH Law Blog (which covers perspectives on Environmental, Safety, and Health law) recently provided an update to his prior post addressing the US Supreme Court’s then-pending decision in  Kisor v. Wilkie .  In that case, decided in late June 2019, the Court addressed the  Auer  standard of deference that is applied by courts to administrative agencies’ interpretations of their regulations.  Although  Kisor did not involve an employment dispute per se , the decision has broad implications for agency action, including those taken by agencies that regulate employment matters, i.e., the U.S. Department of Labor, Equal Employment Opportunity Commission, and National Labor Relations Board.  Since the Court’s decision, district courts have begun applying the  Auer  standard post- Kisor, including in employment cases, as discussed in Brent’s insightful post, which appe...

California Governor Gavin Newsom just signed a new batch of worker-friendly laws sponsored by Democrats in the California Assembly and Senate.  These laws cover a range of topics from arbitration agreements to workplace safety. AB 51 will garner particular attention because not only does it substantially prohibit arbitration agreements, it criminalizes them.  The new law applies to contracts for employment entered into after January 1, 2020.  It precludes requiring an applicant or employee, “as a condition of employment, continued employment or receipt of any employment-related benefit . . . to waive any right, forum or procedure” for any claim arising under California’s Labor Code and its Fair Employment and Housing Act.  The lawmakers anticipated that employers might try to sidestep this law by including an opt-out provision in otherwise mandatory arbitration programs.  To that end, the law also provides that “an agreement that requires...

Rule establishes standard under which two employers will be deemed jointly and severally liable under the Fair Labor Standards Act as of March 16, 2020 In January 2016, we posted about an Administrator’s Interpretation issued by the US Department of Labor’s (DOL) then-Wage and Hour Division Administrator that provided guidance for when two or more employers should be considered “joint employers” under the Fair Labor Standards Act (FLSA).  (The FLSA is the primary federal statute that regulates minimum wage and overtime compensation for US workers.)  This guidance noted the “growing variety and number of business models and labor arrangements,” and suggested that because of this, more direction was needed “to hold all responsible parties accountable for their legal obligations.” Now, four years later, the DOL has issued its Final Rule on Joint Employer Status under the FLSA.  The rule specifically addresses two types of poten...

January 10, 2020 Update to AB 5 Challenges Trucking Industry :  On Wednesday, January 8, 2020, a California state court ruled that AB 5 does not apply to the trucking industry because the state statute is preempted by federal law.  This state court ruling lays a solid foundation for the federal court hearing on the trucking industry’s request for a preliminary injunction on January 13, 2020 based on the same federal preemption argument.  The Federal Aviation Administration Authorization Act of 1994 prevents states from enacting laws that affect the prices, routes, or services of trucking companies in transporting goods.  The court found on January 8 that AB 5 does just this because it effectively bars trucking companies from using independent contractor drivers. Uber and Postmates :  Also on January 8, 2020, Uber, Postmates, and two of their drivers moved for a preliminary injunction to bar AB 5 from being enforced against gig-economy companies a...

Memos provide guidance on a variety of topics, including employer confidentiality policies and arbitration agreements As you may recall from our previous blog posts, National Labor Relations Board (“NLRB” or “Board”) advice memoranda are issued by the agency’s Division of Advice, which is part of the NLRB’s Office of the General Counsel (the “General Counsel”).  The purpose of advice memoranda is to provide guidance to NLRB regional offices when presented with novel or complex fact patterns on how the National Labor Relations Act (“NLRA”) should be interpreted and applied to those fact-specific situations.  Although they are non-binding and non-precedential, advice memoranda are regarded as authoritative guidance from the General Counsel, and often indicate how the Board may interpret the NLRA in the future.  Advice memoranda are confidential and non-public when issued, but the NLRB often releases them to the pub...

Return to Prior “Substantial Direct and Immediate Control” Test Goes Into Effect April 2020 Back in September 2018, the National Labor Relations Board (NLRB or Board) published a Notice of Proposed Rulemaking that would define, by administrative rule, the standard for determining when two unrelated employers are deemed “joint employers” of a group of employees under the National Labor Relations Act.  (See our prior post here.)  The Board’s initiation of the rulemaking process came after several years of contentious litigation resulting from its controversial 2015 decision in Browning-Ferris Industries , which changed the standard that had governed joint employer determinations for decades and allowed for a joint employer finding based on only indirect, and even unexercised control, by one employer over the terms and conditions of another employer’s employees.  (Our discussion of the Browning-Ferris Industries decision is here.) After an...