The U.S. District Court for the District of Arizona recently evaluated the reasonableness of two restrictive covenants—the nonsolicitation of customers and the nonsolicitation of employees—along with claims related to violation of the company’s confidential information policy.

The U.S. Department of Labor issued a final rule on April 23, 2024, increasing the minimum salary and compensation thresholds for certain overtime exemptions under the Fair Labor Standards Act. The Final Rule has a stated effective date of July 1, 2024.

On April 15, 2024, the U.S. Equal Employment Opportunity Commission issued its Pregnant Workers’ Fairness Act Final Rule, scheduled to take effect on June 18, 2024. The Final Rule largely leaves in place the expansive protections for applicants and employees outlined in the Proposed Rule published on August 11, 2023.

Los Angeles County adopted a new Fair Chance Ordinance for Employers on February 27, 2024, which supplements California’s 2018 Fair Chance Act (located in California Government Code Section 12952 et. seq.). The Ordinance’s stated purpose is to “provide equitable protections for individuals with criminal history seeking opportunities for gainful employment in the unincorporated areas of Los Angeles County” by restricting employers’ use of criminal background checks. The Ordinance goes into effect September 3, 2024.

Courts continue to explore whether the threshold for actionable “adverse employment actions” under Title VII of the Civil Rights Act of 1964 has been construed too narrowly. Upending several decades of precedent, in 2023, the U.S. Court of Appeals for the Fifth Circuit broadened the scope to permit claims of discrimination that would have been rejected in the past for failure to constitute an “ultimate” employment decision.

The United States District Court for the Eastern District of Texas vacated the National Labor Relations Board’s final rule addressing the standard under which two entities may be considered joint employers under the National Labor Relations Act, on March 8, 2024. Chamber of Commerce of the United States of America, et al. v. National Labor Relations Board, et al., Case No. 6:23-CV-00553, 2024 WL 1045231 (E.D. Tex. Mar. 8, 2024).

California’s Division of Occupational Safety and Health published a model workplace violence prevention plan and fact sheets for applicable industries to help employers comply with SB 553.

California recently updated two pamphlets that employers must provide to employees. The new pamphlets are (1) a “Time of Hire Pamphlet” pertaining to workers’ compensation (to be provided at the time of hire) and (2) a “For Your Benefit” pamphlet, pertaining to unemployment insurance (to be provided at the time of an employee’s involuntary termination or leave).

The Federal Acquisition Regulatory Council issued a Proposed Rule, “Pay Equity and Transparency in Federal Contracting,” on January 30, 2024. The Proposed Rule would amend the Federal Acquisition Regulations, which apply to federal government commercial contracts to be principally performed in the United States and its territories.

Certain construction workers and other employees in the construction industry must be paid the entire balance of accrued and unused paid sick leave if those workers separate from employment before they reach their 90th day of employment.

AB 1076 went into effect on January 1, 2024, and codifies existing case law by making it expressly unlawful for employers to utilize any noncompete agreement with employees that does not satisfy an exception to Section 16600.

The U.S. Department of Labor published its final independent contractor rule on January 10, 2024. The final rule revises the Trump administration’s interpretation of “employee” under the Fair Labor Standards Act to determine whether a worker is an employee or independent contractor.

The Washington Supreme Court recently considered whether it would adopt the "apex doctrine." This doctrine is a framework used by some courts to evaluate whether a party may take the deposition of a company's executives and officers.

Following Chicago’s last-minute changes to its much-discussed Paid Leave Ordinance, Cook County has joined the recent flurry of legislating in Illinois to amend its own leave requirements.

In welcome news for employers, the Chicago City Council passed an amendment to the new Chicago Paid Leave and Paid Sick and Safe Leave Ordinance, which will delay implementation of paid leave requirements from December 31, 2023, to July 1, 2024.

Multiple new laws will take effect in Washington state beginning January 2024, bringing changes to the state’s minimum wage laws and adding requirements under the state’s Paid Sick Leave Law.

The National Labor Relations Board and Occupational Safety and Health Administration executed a Memorandum of Understanding on October 31, 2023, that will help facilitate interagency coordination and cooperation.

This summer, the National Labor Relations Board issued a decision in Cemex Construction Materials Pacific, LLC that upended decades of precedent regarding the representation election process.

Beginning in 2024, both Washington and California will prohibit employers from basing hiring decisions on an applicant’s legal marijuana use.

The City of Chicago approved the Chicago Paid Leave and Paid Sick and Safe Leave Ordinance on November 9, 2023, providing all employees working in the city with up to five annual days of paid leave that can be used for any purpose and five annual days of paid sick leave that can be used for specified purposes.

Recently, in Matthews v. City of Tempe, 2023 WL 6880652, the Arizona Federal District Court considered whether an employer discriminated against a former employee when it denied him an opportunity to telecommute on certain days but allowed female employees to take advantage of remote work.

The Arizona Court of Appeals recently held in Papias v. Parker Fasteners LLC that a discharged employee could proceed with his retaliation claim against his former employer. The employee alleged that he had been terminated when he attempted to use earned paid sick time under Arizona’s Fair Wage and Healthy Family Act.

The National Labor Relations Board released a final rule on October 26, 2023, which addresses the standard under which two entities may be considered joint employers under the National Labor Relations Act.

With the 2023 California legislative year closed, it is once again time to summarize the new legislation that will affect businesses operating within the state and highlight relevant action items related to these bills.

California Governor Gavin Newsom signed SB 848 on October 10, 2023. This new law expands California’s Fair Employment and Housing Act (FEHA) to provide covered employees with protected leave after a reproductive loss.

Connecticut Paid Sick and Safe Leave was expanded to add two additional permitted uses, effective October 1, 2023.

In a recent decision, the Arizona Court of Appeals considered the claim that an employee was discharged for disclosing allegedly unsafe conditions in violation of the Arizona Employment Protection Act. The court considered whether each disclosure by the employee qualified as protected activity and concluded that the reported violation of the Arizona Administrative Code could constitute protected activity, while the others, including a reported violation of state regulations of the National Electric Safety Code, were not protected activity.

New York Governor Kathy Hochul signed into law bill A836 on September 14, 2023, prohibiting employers from requesting or requiring employees or job applicants to disclose the login credentials for their personal social media accounts, or from retaliating against employees or job applicants who refuse to do so.

Absent specific exceptions, under California Business and Professions Code section 16600, California generally prohibits employers from entering into contracts with employees that preclude those employees from engaging in a lawful profession, trade, or business of any kind.

Governor J.B. Pritzker signed into law HB 3129, an amendment to the Illinois Equal Pay Act that changes how employers can advertise for position openings in Illinois, on August 11, 2023.

The recently enacted Pregnant Workers Fairness Act requires covered employers to provide reasonable accommodations to “qualified” employees or candidates with a known limitation related to pregnancy, childbirth, or related medical conditions, absent an “undue hardship.”

The U.S. National Labor Relations Board issued a decision in Cemex Construction Materials Pacific, LLC on August 25, 2023, upending decades of precedent regarding the representation election process.

A federal court in Arizona recently rejected a defense for Arizona employers seeking to avoid liability for unpaid wages under the Arizona Wage Act (AWA).

California’s Civil Rights Council, a branch of the California Civil Rights Department, issued proposed revisions, earlier this year, to the Fair Employment and Housing Act regulations governing an employer’s use and consideration of a job applicant’s criminal history in employment decisions.

Governor J.B. Pritzker signed into law HB 2862 on August 4, 2023, which amends the Illinois Day and Labor Services Act by adding new equal pay obligations and safety and training requirements for employers who hire temporary workers and for staffing agencies that place them—all of which are effective immediately.

In June 2022, in Viking River Cruises, Inc. v. Moriana, 142 S. Ct. 1906 (2022), the U.S. Supreme Court held that the Federal Arbitration Act preempts the rule that precludes the use of an agreement to divide PAGA claims into individual and representative claims.

The California Supreme Court unanimously ruled in Kuciemba v. Victory Woodworks, Inc. on July 6, 2023, that California employers cannot be held liable by their workers’ household members when workers contract COVID-19 in the workplace and spread the disease to their household members. This decision prevents millions of potential plaintiffs from bringing claims against California employers.

The U.S. Department of Labor issued Field Assistance Bulletin No. 2023-2 on May 17, 2023, to provide guidance to its field staff regarding enforcement of the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act), which was passed last year.

The National Labor Relations Board issued a decision on June 16, 2023, returning to an Obama-era standard used to determine whether a worker is an employee or an independent contractor under the National Labor Relations Act. While employees have rights under the NLRA, independent contractors do not.

The Supreme Court of the United States issued its opinion in Groff v. DeJoy on June 29, 2023, holding that Title VII requires an employer denying a religious accommodation to show that granting the accommodation would result in “substantial increased costs in relation to the conduct of its particular business.”

The California Supreme Court issued a unanimous decision on May 22, 2023, in the case of People ex rel. Garcia-Brower v. Kolla’s, Inc. The ruling broadened the interpretation of “disclose” under California Labor Code Section 1102.5, which protects employees from retaliation for “disclosing information” the employee has reasonable cause to believe is a violation of a state or federal statute.

The state of Minnesota enacted a labor bill (SF 3035) on May 24, 2023, that prohibits employers’ use of noncompetes. This ban becomes effective July 1, 2023, but does not apply retroactively to noncompetes signed before this date.

As previously outlined in an earlier Illinois employment law roundup, the July 1, 2023, deadline is fast approaching for completion of Chicago’s additional sexual harassment and bystander training requirements.

The Washington Employment Security Department adopted new rules for the state’s Paid Family and Medical Leave Act regarding employer reporting requirements, child placement, and self-employment elective coverage requirements. The new rules become effective July 1, 2023.

The U.S. Department of Labor issued an opinion letter on May 30, 2023, clarifying how employers should calculate Family and Medical Leave Act leave taken by employees during weeks when the employer is already providing employees with a holiday. This Update discusses key takeaways of the letter.

The city of Chicago published an amended ban-the-box ordinance on April 24, 2023, that further restricts employers’ use of criminal records for job-screening purposes. Effective immediately, the city’s new ordinance requires employers with a Chicago business operating license or who maintain a facility in Chicago to provide new pre- and post-adverse action notices and engage in individualized assessments when using criminal history for employment screening.

The Texas CROWN Act, effective September 1, 2023, prohibits employers, labor unions, and employment agencies from discriminating against Texas employees because of hairstyles associated with race. Employers in the state should take appropriate steps to review and update their employee handbooks and hiring, grooming, and dress code policies.

The National Labor Relations Board General Counsel Jennifer A. Abruzzo issued a memorandum on May 30, 2023, opining that noncompete agreements contained in employment agreements and severance agreements violate the National Labor Relations Act except in limited circumstances.

The National Labor Relations Board recently reinstated setting-specific standards to determine whether employers have violated the National Labor Relations Act by unlawfully disciplining or discharging employees who allegedly engaged in “abusive conduct” in connection with activities protected by Section 7 of the Act.

Over the past year, several states have rolled out plans to defund diversity, equity, and inclusion efforts. While these initiatives are focused on state agencies and state-funded higher education, they may cause concern for private employers.

The California Joint Legislative Audit Committee has moved to audit the persistent backlog of wage theft cases at the Division of Labor Standards Enforcement. The audit is set to begin September 1, 2023, absent developments demonstrating to the Committee an investigation is no longer necessary. 

California’s enhanced pay data reporting requirement under SB 1162 for 100 or more employees or 100 or more workers hired through labor contractors is due May 10, 2023 for Reporting Year 2022.

Following delays due to the COVID-19 pandemic, Cal/OSHA has finally revisited its indoor heat illness prevention standard.

New York State Governor Kathy Hochul signed an amendment to the New York State Pay Transparency Law on March 3, 2023. The law, which Governor Hochul first signed on December 21, 2022, requires employers to list compensation ranges for certain job, promotion, or transfer opportunities. The amendments clarify some aspects of the original law and is scheduled to go into effect on September 17, 2023.

The National Labor Relations Board recently ruled in McLaren Macomb that employee severance agreements with overly broad confidentiality and nondisparagement provisions violate the National Labor Relations Act. Recently, NLRB General Counsel Jennifer A. Abruzzo issued a memorandum to all regional directors, officers-in-charge, and resident officers to “assist Regions in responding to inquiries from workers, employers, labor organizations, and the public about implications stemming from the case.”

Illinois Governor Jay Pritzker signed into law the Paid Leave for All Workers Act , making Illinois the third state that allows employees to take paid time off from work for any reason.

In a recent ruling, the National Labor Relations Board found an employer violated the National Labor Relations Act when it offered furloughed employees a severance agreement that included overbroad nondisparagement and confidentiality provisions.

The Seattle City Council became the first U.S. jurisdiction to identify caste as a protected class under its Human Rights Code on February 21, 2023, when it passed CB 120511, “An Ordinance Relating to Human Rights; Including Protections Against Discrimination Based on an Individual’s Caste.”

California employers with employees and job applicants subject to the Federal Arbitration Act can once again require such individuals to sign arbitration agreements as a condition of employment.

The National Institute of Standards and Technology, the White House, and the Equal Employment Opportunity Commission are warning companies that uncritical reliance on AI can have legal consequences, including potentially building in bias that can lead to claims of employment discrimination.

Multiple new laws took effect in Washington at the beginning of the year, including several that increased the minimum wage in various locations across the state. This Update summarizes those new wage-related laws.

Illinois employers will face a host of new requirements in 2023. This Update summarizes aspects of the new labor and employment landscape in Illinois.

The Illinois legislature passed the Paid Leave for All Workers Act on January 10, 2023, which Governor Pritzker announced he will sign into law. Should the bill be enacted, Illinois will become the third state (after Maine and Nevada) to require private employers to provide employees with earned paid leave to use for any reason.

U.S. President Joe Biden signed the Pregnant Workers Fairness Act and the Providing Urgent Maternal Protections for Nursing Mothers Act into law on December 29, 2022. This combined legislation aims to bridge the gap in federal legal protections for employees who are affected by pregnancy or related conditions or who are breastfeeding.

The Federal Trade Commission announced its proposal of a new rule that would ban employers from imposing noncompete clauses on their workers and invalidate nearly all existing noncompetes currently in effect. According to the FTC, this will affect 30 million, or one in five, American workers currently covered by a noncompete agreement.

The National Labor Relations Board released its notice of proposed rulemaking to establish a new “joint employer” legal standard under the National Labor Relations Act on September 6, 2022. This standard is consequential for both unionized and nonunionized entities because if an entity is deemed an employer under the NLRA, it must recognize collective bargaining efforts and can be liable for violations arising from unfair labor practice allegations. The comment period closed on December 21, 2022, so a final rule can be expected in early 2023.

This Update provides six best practices to help companies conduct excellent workplace investigations.

The Washington Department of Labor and Industries has released administrative guidance on the Equal Pay and Opportunity Act Amendments.

In 2022, California again passed assembly bills related to COVID-19. The recent legislation extended some employer obligations while easing others. Touching upon many topics, these bills address supplemental paid sick leave, testing requirements, workers’ compensation, and notification requirements for positive cases.

Recent news has shined a spotlight on the legal consequences of mass layoff situations. Employers should take steps now to prepare for possible reductions in their workforce.

The Washington Employment Security Department has recently been auditing Seattle restaurants, resorts, hotels, and nightclubs and claiming that, under Washington law, their musicians are employees of the company unless they have a written independent contractor agreement. 

On October 14, 2022, CDPH changed the definition of “close contact." CDPH’s revised definition left employers with large facilities with more questions than answers.

The National Labor Relations Board issued a decision on September 29, 2022, in Starbucks Corporation, updating the considerations that guide regional directors when deciding whether union elections should be conducted by mail-ballot due to COVID-19 concerns.

With Congressional, state, and local elections fast approaching on November 8, employers should ensure that their supervisors and human resource departments understand applicable election-related leave laws.

California Governor Gavin Newsom signed Assembly Bill 2188 into law on September 18, 2022. AB 2188 will amend the state’s employment anti-discrimination law—the Fair Employment and Housing Act—and make it an unlawful practice for an employer to discriminate against an adult applicant or employee based upon the “person’s use of cannabis off the job and away from the workplace.”

The U.S. Court of Appeals for the Ninth Circuit held, in Cariene Cadena et al. v. Customer Connexx, LLC et al., that the time a group of call center workers spent booting up their computers was compensable time under the federal Portal-to-Portal Act.

With the 2022 California legislative year closed, it is once again time to examine the new legislation that will affect entities operating within the state. This Update provides summaries of key legislation as well as action items to consider.

Effective January 1, 2023, AB 1949 adds section 12945.7 to the Government Code to require employers with more than five employees to provide eligible employees with five days unpaid bereavement leave.

On October 31, 2022, Washington Governor Jay Inslee will end the statewide COVID-19 emergency declaration and rescind all remaining COVID-19 emergency proclamations. Despite the governor’s action, however, Washington’s Health Emergency Labor Standards Act will remain in effect for now.

The U.S. Department of Labor published a Notice of Proposed Rulemaking on October 13, 2022, that proposes guidance on determining employee or independent contractor classification under the Fair Labor Standards Act.

After more than a year of delays and revisions, the long awaited Ban on Non-Compete Agreements Amendment Act of 2020 (the Act) took effect beginning October 1, 2022, following the passage of the Non-Compete Clarification Amendment Act of 2022.

Effective July 12, 2022, many San Francisco employers face new requirements to comply with the city’s amended Family Friendly Workplace Ordinance to provide flexible or predictable working arrangements to eligible employees.

Seattle’s new Independent Contractor Protections Ordinance took effect on September 1, 2022. The law imposes new requirements on employers who work with independent contractors. Employers must now provide certain notices and information both before a contractor begins work and each time a contractor is paid. Hiring entities with independent contractors working for them as of September 1, 2022, must provide the required notice of rights and pre-work written notice to the contractor by September 30, 2022, or by the date of compensation, whichever is sooner.

Last year, the West Hollywood City Council approved an ordinance establishing a citywide minimum wage and guaranteed leave provisions. On May 16, 2022, the city amended the ordinance, clarifying numerous provisions.

Employers in West Hollywood, California, who employ any individual for two or more hours per week should be prepared for significant changes, which became effective as of July 1, 2022.

The Creating a Respectful and Open World for Natural Hair Act, or the CROWN Act, went into effect in Louisiana on August 1, 2022. The CROWN Act prohibits employment discrimination based on hairstyles and hair textures historically associated with race. The CROWN Act amends the definition of unlawful discrimination in employment under the Louisiana Employment Discrimination Law (LEDL), specifically, La. R.S. 23:332, so that it includes discrimination in employment based on a person’s “natural, protective, or cultural hairstyle.”

Illinois Governor JB Pritzker signed Senate Bill 3120 into law on June 9, 2022. The law significantly amends the state’s Child Bereavement Leave Act, now named the Family Bereavement Leave Act. The FBLA expands leave to cover the bereavement of an employee’s family member, as well as certain pregnancy, fertility, and adoption-related events such as miscarriages, stillbirths, failed IVF procedures, and failed adoption agreements. The law goes into effect on January 1, 2023.

The National Labor Relations Board and the Federal Trade Commission, on July 19, 2022, jointly issued a Memorandum of Understanding regarding information sharing, cross-agency training, and outreach of common regulatory interests.

Earlier this year, Washington Governor Jay Inslee signed into law amendments to the state’s Paid Family and Medical Leave Act (PFML Amendments), which permit additional paid leave opportunities for new parents. The PFML Amendments became effective on June 9, 2022.

With summer underway, Washington state employers are reminded to follow the new emergency outdoor heat exposure rules, which went into effect on June 15, 2022. These rules apply through September 29, 2022, and are an addition to the state’s permanent outdoor heat exposure rules effective May 1 to September 30 every year.

Some employers in Florida will be prohibited from requiring their employees to attend activities that promote or otherwise endorse certain concepts related to race and sex beginning July 1, 2022.

A Los Angeles Superior Court judge struck down California’s board gender diversity statute on May 13, 2022. The court found that Senate Bill 826 violated the California Constitution’s Equal Protection Clause.

California’s Private Attorneys General Act is a statute that authorizes employees to bring an action for civil penalties on behalf of the state against an employer for Labor Code violations committed against the employee and fellow current and former employees.

Ohio’s new firearm law, Ohio Senate Bill 215, went into effect on June 13, 2022, permitting all qualifying adults to legally carry, possess, or conceal a handgun that is not a restricted firearm without a license, background check, or training.

The U.S. Equal Employment Opportunity Commission issued guidance on May 12, 2022, regarding the use of software, algorithms, and artificial intelligence in assessing job applicants and employees. The EEOC’s guidance discusses how employers’ use of tools that rely on algorithmic decision-making may violate the Americans with Disabilities Act.

The California Supreme Court, on May 23, 2022, issued a seminal opinion in Naranjo v. Spectrum Security Services, Inc., which found that employees can recover penalties for failure to timely pay wages at termination and failure to provide accurate itemized wage statements based on untimely paid or unreported meal and rest period premiums.

Governor Jay Inslee signed ESHB 2076 into law on March 31, 2022, making Washington the first state to require minimum per-trip payments, paid sick leave, and workers’ compensation benefits for rideshare drivers. The law also provides that drivers will remain classified as independent contractors—not employees—and expressly forbids local governments from imposing new regulations on transportation network companies.

A unanimous three-judge panel reached a decision in the case of Bijon Hill v. Walmart. The U.S. Court of Appeals for the Ninth Circuit affirmed that Walmart classified a freelance model, Bijon Hill, as an independent contractor in good faith.

As a matter of first impression, on April 7, 2022, a U.S. Court of Appeals for the Ninth Circuit panel held that two related employers may be treated as one integrated employer to meet the 15-employee headcount threshold under the Americans with Disabilities Act.

On March 17, 2022, a judge for the U.S. District Court for the Middle District of Florida denied defendant Scribe Opco, Inc.’s motion to dismiss a class action alleging violations of the Worker Adjustment and Retraining Notification Act.

Late payment of final compensation just became significantly more expensive for employers with workers in Massachusetts.

The U.S. House of Representatives passed the Creating a Respectful and Open World for Natural Hair (CROWN) Act in a 235-189 vote.

SB 1044 passed the California Senate Labor, Public Employment and Retirement Committee on Monday, March 21, 2022.

Washington Governor Jay Inslee signed into law the Silenced No More Act (Engrossed Substitute House Bill 1795) on March 24, 2022.

In the latest of a series of setbacks for employers facing claims under the Illinois Biometric Information Privacy Act, the Supreme Court of Illinois held last month that the Illinois Workers’ Compensation Act does not preempt BIPA claims for statutory damages brought by employees.

Washington Governor Jay Inslee, on March 30, 2022, signed into law amendments to the state’s Equal Pay and Opportunity Act, which soon will require most Washington employers to include pay ranges in their job postings.

President Biden signed H.R. 4445, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, into law on March 3, 2022.

On February 2, 2022, Republican Governor Tate Reeves signed the Mississippi Medical Cannabis Act, which legalizes medical marijuana for the treatment of certain debilitating conditions.

The Supreme Court of California provided California employers with important clarification on the standard courts will apply when analyzing an employee’s whistleblower retaliation claim arising under Labor Code Section 1102.5.

The Seattle Office of Labor Standards (OLS) recently announced it will conduct an administrative rulemaking process related to the city’s new Independent Contractor Protections ordinance.

On October 28, 2021, New York Governor Kathy Hochul signed into law legislation substantially broadening New York’s whistleblower statute.

The Washington Legislature made several significant changes to the state’s Paid Family and Medical Leave program during the 2021 legislative session that all Washington employers should know.

With the 2021 California legislative year closed, it is now time to examine the new legislation that will affect California companies.

California Governor Gavin Newsom recently signed into law California Senate Bill 331 (SB‑331) titled the “Silenced No More Act.”

In Port of Tacoma v. Sacks, the Court of Appeals of the State of Washington recently held that all out-of-town employee travel time is compensable under state law.

The Washington State Employment Security Department (ESD) audits records of employers located in Washington to confirm that wages and hours are accurately reported and to ensure compliance with the state’s unemployment insurance laws and rules. 

Washington Governor Jay Inslee signed the Health Emergency Labor Standards Act (HELSA) on May 11, 2021.

On May 11, 2021, former Toronto Blue Jays pitcher Michael Bolsinger filed suit in Harris County (Texas) District Court, alleging the Houston Astros violated the Texas Uniform Trade Secrets Act when they stole the Blue Jays’ catcher’s hand signals.

According to a legal opinion posted online on July 26, 2021, the U.S. Department of Justice officially took the position that the Food, Drug, and Cosmetic Act—which authorizes an “emergency use authorization” for a vaccine—does not prohibit entities, including employers, from requiring a vaccine even if authorized for emergency use only.

The Department of Labor & Industries filed a new emergency rule on July 16, 2021, that provides increased protection to employees who are exposed to wildfire smoke. The rule took effect immediately.

On July 9, 2021, in the wake of an extreme heat wave that resulted in record-high temperatures, Washington became the second state in the Pacific Northwest to announce emergency rules that provide hot weather protection to outdoor workers.

On April 16, 2021, Governor Jay Inslee signed into law the Washington Wage Recovery Act, allowing employees to place a lien on their employers’ property to secure unpaid wages.

On May 27, 2021, the U.S. District Court for the District of Colorado denied Rocky Mountain Association of Recruiters’ motion for preliminary injunction.

On May 11, 2021, Governor Jay Inslee signed the Health Emergency Labor Standards Act, a sweeping worker protection bill recently passed by the state legislature. The Act amends the state’s Worker’s Compensation and Industrial Health and Safety statutes to provide automatic protections for certain workers and to impose new notification and reporting requirements on employers in the event of a “public health emergency.”

In response to last year’s groundbreaking decision by the Washington State Supreme Court in Martinez-Cuevas v. DeRuyter Bros. Dairy, Inc., the state legislature recently passed Engrossed Substitute Senate Bill 5172, amending the state’s Minimum Wage Act as it relates to agricultural workers and adopting a phased approach for imposing overtime requirements on agricultural employers.

On January 7, 2021, the U.S. Department of Labor (DOL) issued its highly anticipated final rule codifying its interpretation of independent contractor status under the Fair Labor Standards Act (FLSA).

In 2019, Washington passed the first law in the nation requiring employees to fund a state-operated long-term care insurance program. The program, codified at RCW 50B.04 and set to begin on January 1, 2025, will be funded by an uncapped payroll tax starting at 0.58% on all employee compensation beginning January 1, 2022.

A subsection of the U.S. Department of Justice’s (DOJ) Civil Rights Division, the Immigrant and Employee Rights Section (IER), formerly the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), enforces the anti-discrimination provision of the Immigration and Nationality Act and the accompanying regulations (8 U.S.C. § 1324b and 28 C.F.R. Part 44).

On March 23, 2021, Governor J.B. Pritzker signed Senate Bill 1480, which amends the Illinois Human Rights Act to impose robust new restrictions and obligations on employers’ use of background checks in Illinois. The new law, which applies to both applicants and employees, takes effect immediately. Illinois employers may now only consider convection history in limited circumstances and in the context of explicit mitigating factors.

This update was published in Westlaw "What All Illinois Employers Need to Know About Illinois’ New Background Check Law," on 04.07.2021.

Prior case law established that California’s wage-and-hour laws apply to non-California residents when they perform work in the state of California. In Bernstein v. Virgin America, Inc., the Ninth Circuit addressed whether certain California wage-and-hour laws applied to employees who spent the majority of their working hours outside of California.

California law generally requires that employers provide nonexempt employees an uninterrupted nonworking 30-minute meal period to begin before the end of the fifth hour of work. In a case of first impression, Donahue v. AMN Services, LLC, ___ P.3d ___, 2021 WL 728871 (Cal. 2021), analyzed whether an otherwise-permissible time rounding system could be used to account for break time, without violating the intent of California laws mandating complete meal periods of at least 30 minutes.

Since July 2018, Washington businesses have been operating under Washington’s Equal Pay and Opportunities Act (EPOA). The EPOA, which significantly expanded the state’s 1943 Equal Pay Act, is one of the most stringent equal pay laws in the country.

Colorado’s Equal Pay for Equal Work Act, SB19-085 (the Equal Pay Act), went into effect on January 1, 2021.

On February 3, 2021, Seattle Mayor Jenny Durkan signed into law a new ordinance requiring grocery employers to provide their employees an additional $4.00/hour in hazard pay due to the COVID-19 pandemic.

On January 14, 2021, the California Supreme Court decided Vazquez v. Jan-Pro Franchising International, Inc., holding that the ABC test used to determine independent contractor versus employee status for purposes of California’s Wage Orders announced in Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903 applies retroactively.

More than thirty years ago, the Washington Supreme Court ruled defense counsel may not engage in ex parte communications with a plaintiff’s treating physician. Loudon v. Mhyre, 110 Wn.2d 675, 676 (1988).

A COVID-19 vaccine authorized by the U.S. Food and Drug Administration (FDA) for emergency use has arrived in the United States and is being widely distributed to select groups as we issue this update.

In a 5-4 decision, a divided Washington Supreme Court ruled that dairy workers are entitled to overtime pay under Washington law if they work more than 40 hours a week, nullifying an exemption to the Washington Minimum Wage Act’s overtime requirement as applied to dairy workers.

The U.S. Department of Labor (DOL) published an opinion letter, FLSA 2020-16, considering whether the travel time of foremen and laborers is compensable in three different scenarios.

The U.S. Department of Labor (DOL) recently published an opinion letter explaining compensability under the Fair Labor Standards Act (FLSA) of time spent in voluntary continuing education programs.

One year after New York City did the same, Seattle enacted an ordinance in 2019 that guarantees a minimum wage for local rideshare drivers.

The U.S. Department of Labor (DOL) issued its Notice of Proposed Rulemaking (NPRM) on September 22, 2020, seeking to codify the independent contractor/employee worker classifications into the Fair Labor Standards Act’s regulations.

Governor Gavin Newsom signed SB 1383 which expands the California Family Rights Act (CFRA) on September 17, 2020.

The U.S. Equal Employment Opportunity Commission (EEOC) updated its guidance, What You Should Know About COVID-19 and the ADA, Rehabilitation Act, and Other EEO Laws, on September 8, 2020, to create a comprehensive guide for both employers and employees addressing common questions related to COVID-19 and federal employment laws.

The “ABC test” now used in California to make determinations regarding the validity of independent contractor classifications initially was adopted by the California Supreme Court in Dynamex Operations W. v. Superior Court, 4 Cal.5th 903 (2018), described here.

The U.S. Department of Labor’s (DOL”) Final Rule revising the joint employer regulations under the federal Fair Labor Standards Act (FLSA) took effect on March 16, 2020, (the Final Rule).

The U.S. Department of Labor’s Wage and Hour Division (WHD) recently issued four opinion letters addressing various exemption and compensation requirements under the Fair Labor Standards Act (FLSA), including standards for reasonable approximation and reimbursement of business-related expenses and eligibility requirements for the fluctuating workweek method of calculating overtime pay.

The U.S. Supreme Court held that employers are prohibited from discharging employees on the basis of their sexual orientation or transgender status under Title VII, explaining that such discrimination necessarily requires an employer to intentionally treat individual employees differently because of their sex. The following update discusses this decision and it implications for employers.

As new unemployment claims rise, impostors seek to scam the unemployment system at the cost of the state, employees, and employers.

As Washington businesses continue to operate under Governor Jay Inslee’s “Stay Home, Stay Healthy” order in the wake of the global COVID-19 pandemic, workers’ compensation may not be of primary concern.

The best laid plans of mice and men often go awry. Washington State’s 60-day legislative session ended on Thursday, March 12, 2020, after the rapid spread of COVID-19 around the state drastically changed the outcome of this year’s session.

The Washington State Legislature has passed an amendment to the Washington Law Against Discrimination (WLAD) to prohibit discrimination based on hair textures and hairstyles historically linked to race.

In a 90-8 vote, the U.S. Senate passed the Families First Coronavirus Response Act.

On March 11, 2020, the World Health Organization (WHO) officially declared the outbreak of the coronavirus (COVID-19) a global pandemic.

Employers are rightfully concerned about what, if anything, they should be doing to respond to the continued spread of the coronavirus (COVID-19), with confirmed cases in dozens of countries, including the United States.

The Illinois legislature engaged in a flurry of recent activity in the area of employee protections. Included below are highlights of new employment laws in place as of January 1, 2020.

The Washington State Department of Labor & Industries (L&I) recently announced significant revisions to Washington’s overtime rules for the first time in 40 years.

In Burnett v. Pagliacci Pizza, Inc., 442 P.3d 1267 (Wash. Ct. App. 2019), the Washington Court of Appeals held that the manner in which an employer communicates its arbitration agreement is crucial for determining whether it is valid and enforceable. Employers should carefully review their arbitration agreements to ensure they are compliant with the court’s new decision.

With the California legislative year now closed, we know which proposals became reality and offer insight into their likely impact on California employers in the coming year.

With the California Consumer Privacy Act of 2018 (CCPA) set to take effect on January 1, 2020, California Governor Gavin Newsom signed amendments in October 2019 providing businesses some temporary shelter from the CCPA provisions with respect to information of their employees, job applicants and independent contractors.

Beginning in January 2020, Washington employees can start using new benefits under the Paid Family and Medical Leave Act (PFML).

The U.S. Department of Labor (DOL) issued its long-awaited rule changes to the Fair Labor Standards Act’s (FLSA) overtime requirements on September 24, 2019.

On September 5, 2019, the Washington Supreme Court held that non-agricultural employees do not have to be paid a separate hourly rate for time spent on non-piece-rate activities.

The Washington State Supreme Court recently held obesity qualifies as an impairment under the Washington Law Against Discrimination (WLAD).

Recently enacted amendments to Washington’s Equal Pay and Opportunities Act (EPOA) will take effect on July 28, 2019.

As discussed in our earlier update, the EEO-1 pay data reporting requirements that were previously stayed by the Trump administration have been revived, and the EEOC has advised employers that the deadline for filing will be September 30, 2019.

Most employers have heard the news that the once-paused EEO-1 pay data reporting requirements are now live, and the deadline to respond is set for September 30, 2019.

More than 50 years after the Equal Pay Act of 1963 required equal pay for equal work, a wage gap persists between similarly situated men and women in the workforce.

Oregon is one of 35 states where the legislature has successfully enacted a statute capping the amount of noneconomic damages, commonly known as “emotional distress,” that juries can award. With the issuance of two recent opinions from the Oregon Court of Appeals, however, Oregon now joins six other states with courts that have ruled such caps are unconstitutional.

Last Friday, the National Labor Relations Board issued its decision in D.R. Horton, Inc., concluding that private arbitration agreements that require employees to waive their right to pursue class actions are illegal because they interfere with the employees' rights to engage in collective activities protected by federal labor law.

In keeping with Secretary Solis's promise to shake things up at the DOL, earlier this week DOL's Wage and Hour Division launched a 21st century initiative that makes it much easier for employees to independently track hours worked for the purpose of calculating wage claim damages.  The DOL's newest tool – a smartphone app.

Employers often rely on medical information and disability determinations made in workers' compensation matters to decide whether to return employees back to work, even though such determinations are made without regard to disability discrimination laws. However, it is now clear that employers do so at their own peril. In Cuiellette v. City of Los Angeles, the Second Appellate District Court affirmed a $1,571,500 judgment for disability discrimination and failure to accommodate disability in favor of the employee. In affirming the judgment, the court determined that the proper inquiry is whether an employee's medical restrictions prevented the individual from performing the functions of the position held or the desired position to be held.

In AT&T Mobility LLC v. Concepcion, the U.S. Supreme Court ruled that arbitration provisions governed by the Federal Arbitration Act may disallow class action proceedings.  In doing so, the Court disapproved the California Supreme Court's decision in Discover Bank v. Superior Court, which held that a consumer arbitration provision prohibiting class arbitration was unconscionable and unenforceable.

On March 24, 2011, more than two years after the ADA Amendments Act of 2008 ("ADAAA" or "the Act") became effective, the Equal Employment Opportunity Commission ("EEOC") issued its much-anticipated final regulations interpreting the ADAAA's requirements.

This well-established principle surprises many nonunion employers who mistakenly think that the federal law protecting union activities, the National Labor Relations Act ("NLRA"), does not apply to them.  The reality is that the NLRA protects nonunion employees in exactly the same way it protects employees engaged in union activities.

On March 1, 2011, the U.S. Supreme Court issued a decision in Staub v. Proctor Hospital analyzing the so-called “cat’s paw” theory of discrimination.  Plaintiffs argue that the cat’s paw theory applies when a biased supervisor or manager influences, but does not personally make, an employment decision, and the actual decision maker is not demonstrably biased.  In the Staub decision, the Supreme Court held that employers can be held liable for cat’s paw discrimination.  Unfortunately, the decision provides little guidance on what steps employers may take to avoid cat’s paw liability.

In Briggs v. Nova Services, No. 79615-7 (Aug. 27, 2009), the Washington Supreme Court rejected wrongful discharge and retaliation claims asserted by two employees who were fired after they complained about the management of their employer and by six other employees who walked off the job after the first two employees were fired.  But, although the employer prevailed in Briggs, the case leaves open important questions about employees’ rights to join together in protest of working conditions.