Employment

For the first time since the early days of the COVID-19 pandemic, employers are implementing a new wave of layoffs, particularly in the tech world, and it is anticipated that there are more to come as recession worries loom. Mintz attorney Emma Follansbee provides a brief refresher on how the WARN Act applies to plant closings and mass layoffs, and what, if anything has changed since 2020.

The U.S. Supreme Court has given businesses with California employees the option (at least for now) to avoid employee-initiated court proceedings under California’s Private Attorneys General Act (PAGA). The California-based members of Mintz’s Employment, Labor & Benefits team share what California employers need to know.

This alert covers the key components, concerns, and considerations of the United States Equal Employment Opportunity Commission’s (“EEOC”) recently issued technical guidance, addressing how an employer’s use of software, algorithmic decision-making tools and AI to assist them in hiring workers, monitoring worker performance, determining pay or promotions, and establishing the terms and conditions of employment could violate the Americans with Disabilities Act (“ADA”). 

 

California's statutory governance initiatives were dealt another blow after both corporate governance diversity efforts — a female representation mandate and underrepresented community mandates — were struck down.  Now that both statutes have been invalidated corporate boards and the stakeholders and communities those boards serve are asking what is next for statutory governance initiatives?

The New York City Council has amended the New York City Salary Range Transparency Act.  The Mayor has 30 days to sign the amended law.  The Act amended the New York City Human Rights Law, creating an obligation on employers to disclose salary ranges in job advertisements for any position located in New York City. 

The Massachusetts Supreme Judicial Court (“SJC”) recently held in Devaney v. Zucchini Gold that employees who prove only a violation of the federal Fair Labor Standards Act (“FLSA”) are not entitled to the automatic treble damages under the Commonwealth’s untimely wage payment statute, the Massachusetts Wage Act (“Wage Act”).  Rather, employees are limited to a damages recovery only as provided by the FLSA, which in some circumstances can be, in addition to other remedies, double (not triple) wage damages.

The Massachusetts Department of Family and Medical Leave (the “Department”) has issued a series of updates concerning Massachusetts Paid Family and Medical Leave (“MAPFML”).  These updates reflect the latest changes made to MAPFML since the Department’s last quarterly briefing, as discussed in our prior coverage of the MAPFML.

The Massachusetts Supreme Judicial Court (“SJC”) – Massachusetts’ highest court – recently held that under the Massachusetts Wage Act (“Wage Act”) employees are entitled to automatic treble wage damages – that is, three times the amount of the unpaid wages –for any late wage payments, even if the employer fixed the payment error before the employee commenced a proceeding.  This post reviews the SJC's decision and the key takeaways.

Jen Rubin, chair of Mintz’s ESG practice group, looks at the recent California court decision striking down the state’s law mandating corporate board seats for underrepresented communities. She says boards still need to dedicate themselves to a meaningful process for seating the right board and offers suggestions for ways to ensure community representation.

The New York City Commission on Human Rights has released a Fact Sheet entitled Salary Transparency in Job Advertisements, which provides much-welcomed guidance to employers on the NYC Salary Range Transparency Act.  Some questions, however, remain unanswered.

On March 17, 2022, the designation of COVID-19 as an airborne infectious disease that presents a serious risk of harm to the public health under the HERO Act ended.  The New York State Department of Labor (“NYSDOL”) declined to extend this designation.  The most immediate effect of this designation ending is that the activation of workplace exposure prevention plans mandated under the HERO Act is over.

In recently issued Compliance Assistance Release No. 2022-01 (the “Release”), the Department of Labor addressed cryptocurrencies as 401(k) plan investments.  To the surprise of some and the delight of others, the Department did not shut the door on these investments.  It did, however, counsel extreme caution.

The EEOC has once again updated its guidance and answers regarding the ongoing COVID-19 pandemic’s interaction with anti-discrimination laws. We previously discussed this guidance here. This guidance, updated on March 1, 2022, provides additional detail to Section L (Vaccinations – Title VII and Religious Objections to COVID-19 Vaccine Mandates). We discuss the key details below.

The Consolidated Appropriations Act, 2021 (the “Act”) adopted a series of transparency requirements that apply to employer-sponsored group health plans. These transparency rules impose a series of new and complex obligations on plan fiduciaries that mirror the rules that have governed retirement plan fiduciaries for the last decade. While both pension and welfare plans are subject to ERISA’s fiduciary standards, fiduciary committees, which are common in the case of retirement plans, are far less common where welfare plans are concerned. The new law provides compelling reasons for this to change.

Congress has passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, marking a milestone in the #MeToo movement. This legislation (which President Biden is expected to sign into law) will effectively end mandatory arbitration of sexual assault and harassment disputes. Employees will now have a choice to proceed with their claims via arbitration or in court.

The Supreme Court recently handed down its much-anticipated decision in Hughes v. Northwestern University. The question before the Court is whether the petitioners – current and former participants in two retirement plans maintained by the University – plausibly stated a claim for breach of fiduciary duty. This post reports on the decision and considers its significance to retirement committees and other fiduciaries who oversee and administer plans with participant-directed investments.

Now that OSHA has withdrawn its vaccine or test rule, many employers are considering the use of mandatory vaccination policies in their workplaces. Employers have met this development with varied responses – some employers have rescinded vaccination requirements that were compliant with the more stringent OSHA Emergency Temporary Standard (“ETS”) requirements, some have retained mandatory vaccination policies compliant with the now-withdrawn ETS, and still others have created mandatory vaccination policies without reference to the ETS.

Last year, New York State joined an ever growing number of states requiring certain employers to either offer employees a retirement savings plan or enroll in the applicable state program. More specifically, the New York State Secure Choice Savings Program (“NY Secure Choice”) provides a retirement savings program in the form of an automatic enrollment payroll deduction IRA (similar to a Roth IRA) that allows employees to opt-out from participation. New York State employers, whether for profit or not for profit, with at least ten employees in the state at all times during the previous calendar year, who have been in business at least two years, and have not offered a qualified retirement plan in the last two years, are subject to the participation requirements of the NY Secure Choice (“Applicable Employers”).

Section 108, Division BB of the Consolidated Appropriations Act, 2021 requires the Departments of Labor, Health & Human Services and the Treasury (the “Departments”) to issue regulations under Section 2706(a) of the Public Health Service Act (the “Provision”). The Provision bars group health plans and health insurance carriers from discriminating, with regard to participation under a plan or coverage, against any health provider that acts “within the scope of its license or certification under applicable state law.” Once issued, these rules will have important consequences for group health plans and other stakeholders.

The Supreme Court has stayed OSHA from enforcing its vaccine-or-test rule for large private employers. In its opinion, the Court found that Congress did not grant OSHA the authority to issue such a sweeping rule. Empowered to issue a workplace safety rule? Yes. But, according to the Supreme Court, OSHA did not impose such a rule; instead, it attempted to impose a broad public health measure, which the Court considered outside of the agency’s purview. In short, as the Court noted: “imposing a vaccine mandate on 84 million Americans in response to a worldwide pandemic is simply not ‘part of what the agency was built for.’”