Davis+Gilbert PERKS

In honor of the 34th anniversary of the passage of the Americans with Disabilities Act, the EEOC is launching a new webpage: https://lnkd.in/e6iDCKQA, which is dedicated to providing resources for workers with intellectual and developmental disabilities. For more information see below from the EEOC. #ADA #DGPERKS

Employers who have been following the legal challenges to the Federal Trade Commission’s (FTC) proposed non-compete ban may recall that on July 3rd, a federal court in Texas granted a motion for a preliminary injunction to stop the ban from going into effect (which applied to just the parties in that case). Yesterday, a Pennsylvania federal court went the opposite way, denying a plaintiff company’s motion to preliminarily enjoin the ban from going into effect, finding that the company had not established that it would suffer irreparable harm if the requested injunctive relief was not issued. The company had alleged that it would be harmed by complying with the ban because doing so would cause it to incur “non-recoverable costs” (including notifying employees as required by the ban’s notice provision and being forced to modify its business strategy and training programs) and lose the “contractual benefits” of its existing non-compete agreements. The court found these alleged harms either insufficient or too speculative. The court also rejected the company’s arguments that it was likely to succeed on the merits of its claims because the FTC did not have the authority to issue the proposed ban.  The Pennsylvania court did not address the July 3rd decision by the federal court in Texas, which has indicated that it plans to issue a final decision on the merits of that case by August 30, 2024. As of now, the FTC’s proposed ban is scheduled to go into effect by September 4, 2024.  Stay tuned #FTC #noncompeteban #DGPERKS

In October 2023, the National Labor Relations Board (“NLRB”) published a new rule relaxing the standard for determining whether two employers can be considered “joint employers” under the National Labor Relations Act (“NLRA”). That rule found that an entity could be considered a joint employer “if the employers share or codetermine those matters governing employees’ essential terms and conditions of employment” – i.e., that an employer “possess[ed] the authority to control (whether directly, indirectly, or both), or…exercis[ed] the power to control (whether directly, indirectly, or both), one or more of the employees’ essential terms and conditions of employment” (emphasis added). This was a significant departure from the NLRB's 2020 rule, which stated that an employer would be considered a joint employer “only if the two employers share or codetermine the employees’ essential terms and conditions of employment" (based on possessing and exercising substantial direct and immediate control over one or more essential terms or conditions of their employment) warranting a "finding that the entity meaningfully affects matters relating to the employment relationship with those employees” The October 2023 rule was significant because joint employers under the NLRA may be obligated to participate in collective bargaining for the other entity’s employees and may be responsible for unfair labor practices committed by either employer, among other things. The October 2023 rule was scheduled to go into effect in early 2024.  In November 2023, the United States Chamber of Commerce and a coalition of business groups filed suit against the NLRB in the Eastern District Court of Texas, challenging the October 2023 rule as arbitrary and capricious, and therefore unlawful, under the Administrative Procedure Act (“APA”). The district court eventually ruled against implementation of the October 2023 rule – finding that it was overly broad and violated federal labor law – at which point the NLRB filed a notice of appeal with the United States Court of Appeals for the Fifth Circuit. On July 19, 2024, the NLRB voluntarily dismissed that pending appeal before the Fifth Circuit. In its Notice of Voluntary Dismissal, the NLRB stated that it still believes that the October 2023 rule satisfies the requirements of the APA and the NLRA but that it wanted to further consider the issues raised by the district court in its decision blocking implementation of the October 2023 rule. Therefore, the October 2023 will not go into effect at this time. #NLRB #JointEmployer #StayTuned #DGPERKS

Labor laws are constantly evolving. Recent changes made to the Fair Labor Standards Act (FLSA) have been a driving factor in how companies make decisions and manage risks related to compensation setting. Join Davis+Gilbert LLP and KPMG US for a 60-minute webcast providing valuable insights and practical guidance on the FLSA changes, key lessons learned, and downstream impacts across other compensation-related crucial topics. Meet the speakers: 1. Caroline Libby, Labor + Employment Associate at Davis+Gilbert 1. Jessica Golden Cortes, Labor + Employment Partner at Davis+Gilbert 2. Bobby Berkowitz, Managing Director, People Strategy at KPMG 3. Managing Director, Human Capital Advisory (HCA) at KPMG The speakers will cover many topics such as pay compression and pay transparency, as well as how to develop strategies in these areas to positively impact your organization. Whether you're directly involved in HR, legal compliance, or strategic management, you won’t want to miss out on this dynamic and informative event! Register below: https://hubs.li/Q02H7Kvk0 #FLSA #RiskManagement #Transparency

Staying on top of ever-changing labor and employment laws and requirements is critical for employers looking to remain in compliance with the most up-to-date standards. Recent changes made to the Fair Labor Standards Act (FLSA) will impact how companies navigate compensation-related decisions and manage potential risks.   Davis+Gilbert LLP is teaming up with KPMG US for a 60-minute informative webcast, “FLSA Evolution: Navigating from Compliance to Strategy,” next Wednesday, July 24, where the panelists will discuss a number of key areas from decision-making and risk management to communications, transparency, and change management.   Meet the speakers: 1. Caroline Libby, Labor + Employment Associate at Davis+Gilbert 2. Jessica Golden Cortes, Labor + Employment Partner at Davis+Gilbert 3. Bobby Berkowitz, CEP, Managing Director, People Strategy at KPMG 4. Daniel Seto, Ph.D., Managing Director, Human Capital Advisory (HCA) at KPMG   This webcast will help guide you through relevant, valuable insights and downstream impacts across other compensation-related crucial topics. Don’t miss out on learning about how these updates may affect your organization!   Learn more about this event by registering from the link down below.   Register below: https://lnkd.in/ehSvvMtG   #Compensation #PayTransparency #LaborLaw

NJ Employers: Several recent decisions out of NJ serve as a strong reminder to tread very carefully before taking an adverse action against an applicant or employee for suspected or actual off-duty marijuana use. In one recent case, the NJ Attorney General preliminarily found that a telecom company violated New Jersey’s anti-discrimination law by refusing to hire a job applicant after he tested positive for marijuana as a result of medical marijuana use. In another recent case, an administrative law judge reinstated a Jersey City police officer to her job after she was fired for off-duty marijuana use. Without getting into the weeds of either of these cases (pun intended), the takeaway message for employers is to review their drug-related policies and protocols to ensure that they do not run afoul of the ever-changing legal landscape. Generally speaking, in many states including NY, NJ, and CA, an employee’s off-duty use of marijuana cannot be the reason for any adverse employment action, whether the employee is using marijuana for medical or recreational purposes. Given the vigorous enforcement of such laws we are now seeing, and the fact that there are many nuances to such laws of which employers need to be aware, employers would be wise to work closely with legal counsel to ensure compliance.  #marijuanalaws #offdutyuse #medicaluse #employeeprotections #DGPERKS

Employers have been on edge about how November's polarizing presidential election may impact their workplace and its culture. Tensions are now further heightened following the attempted assassination of former President Trump last weekend during a rally in Butler, Pennsylvania. Employers should take this moment to review policies and procedures regarding overall respect and tolerance in the workplace, parameters for using employer technology systems (email, internal messaging systems like Slack, Teams etc.) to communicate with coworkers about non-work-related matters such as politics, and the potential impact of employee conduct outside of work (including social media) on the workplace environment. While it may be tempting to implement a strict “no discussing politics in the workplace” policy, some employers may find such a policy overly restrictive, contrary to the company’s culture and/or otherwise difficult or unrealistic to enforce in practice. Additionally, many, if not most, "political" topics also touch on many protected characteristics, such as gender, race, national origin and religion, leading to a delicate balance between what communications would fall under such a policy (notably under federal law and in most state and local jurisdictions, political affiliation is not a protected class under the workplace anti-discrimination and anti-harassment laws. Washington state and the District of Columbia are notable exceptions). At a minimum, employers should clearly establish when expressing a political opinion at work can turn into workplace bullying or harassment, in violation of company policy. Employers should likewise ensure that clear lines of communication are open for employees to freely report any such misconduct without fear of retaliation.  #workplacecommunications #DGPERKS

Vermont Employers: Vermont recently joined a number of states that require pay transparency in the hiring process. Under Vermont’s new law, companies must include the compensation or range of compensation for any job opening in Vermont. Compensation range includes the minimum and maximum annual salary or hourly wage that the employer expects in good faith to pay for the advertised job. Any posting for a role paid on commission should include that fact but the range of commission-based compensation is not required in the posting. Additional guidance will be issued by the Vermont Attorney General’s office by January 1, 2025. #paytransparency; #Vermont #DGPERKS

Generative AI technology can provide significant opportunities to employee benefit plan administrators and the employers that utilize them. From automating enrollment processes to providing personalized employee support, AI technology promises to improve efficiency, accuracy, and tailor benefits options to users. However, there are significant risks that come with the use of the technology ranging from privacy concerns, bias, and compliance. Employers and TPAs should look at these risks closely. Alan Hahn, Gary Kibel, Samantha Rothaus and William Szanzer outline key considerations for employers working with third-party administrators benefiting from the use of generative AI. https://lnkd.in/e2te86Vf #EmployeeBenefits #AITechnology #BenefitsPlan #ERISA #DGPERKS

Employers have been closely following legal challenges to the Federal Trade Commission's (FTC) proposed ban on non-competes On July 3rd, a federal court in Texas ruled in favor of a company and other interested parties by granting a motion for a preliminary injunction to stop the FTC ban from going into effect. According to the judge who issued the ruling, the main rationale for the decision is that the FTC lacks authority to create substantive rules regarding unfair methods of competition. While the ruling only applies to the parties in the Texas case, the court noted that a decision on the merits of the FTC’s non-compete rule would be issued on or before August 30, 2024.  #staytuned #FTC #noncompetes #DGPERKS