On April 23, 2024, the U.S. Federal Trade Commission voted 3-2 to ban the use of nearly all noncompete agreements in America’s for-profit businesses (with only a few narrow exceptions). In this Update, we cover the details of the FTC’s Final Rule, what changed from the Proposed Rule, guidance to employers wondering what they should do now, and what might come next.

On April 17, 2024, in Muldrow v. City of St. Louis, the U.S. Supreme Court held that an employer may violate Title VII’s anti-discrimination provisions when it transfers an employee even if the transfer did not result in a loss of pay or benefits. The decision resolves an open question among the federal appellate courts as to whether a plaintiff needs to establish that an employer’s adverse actions resulted in substantial harm.

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.

In this episode, Chris and Shannon explore the Davis-Bacon Act and the Service Contract Act.

The Federal Acquisition Regulatory Council recently issued a Proposed Rule that would require pay transparency in federal contracting.

In this episode, Shylah and Kristie discuss the implications of “no-poach” agreements from an antitrust perspective.

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.

In an important change, beginning on March 20, 2024, employees may file lawsuits, including class actions, against their employers for alleged violations of New York City’s Earned Safe and Sick Time Act (the Sick Leave Law), rather than having to rely on agency enforcement actions. 

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).

The U.S. Supreme Court denied certiorari in a much-scrutinized U.S. Court of Appeals for the Fourth Circuit case involving race-neutral school admissions procedures, Coalition for TJ v. Fairfax County Board, on February 20, 2024.

In this episode, Chris Wilkinson updates listeners on federal and state regulation of artificial intelligence (AI).

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.

Enacted in 1998, Illinois’ Genetic Information Privacy Act governs the confidentiality and use of genetic testing and genetic information by employers and insurers. The statute was designed to prevent employers and insurers from using genetic testing and information as a means of discrimination.

In part two of our series on how Americans' views of corporations are changing, Senior Counsel Chris Wilkinson is joined by Perkins Coie's persuasive communications advisor, Senior Litigation Consultant Karen Lisko, to discuss how these views are playing out in the courtroom.

A new law recently took effect in Washington that changes the way employers should conduct drug tests.

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 U.S. Securities and Exchange Commission (SEC) has signaled that it will take aggressive action against employers who, by way of employment-related agreements, restrict, prohibit, or otherwise discourage employees from reporting suspected securities law violations.

Perkins Coie is pleased to present the fifth edition of Labor Law Today—Year in Review, which provides a summary of significant developments in traditional labor law over the past year.

The U.S. Department of Labor (DOL) recently issued a final rule imposing stricter criteria for companies to classify workers as independent contractors.

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.

Get a preview of Perkins Coie’s Labor Law Today—Year in Review report in this latest podcast episode.

On January 10, 2024, the U.S. Department of Labor (DOL) published a Final Rule revising its prior guidance on how to determine whether an individual may properly be classified as an independent contractor under the Fair Labor Standards Act (FLSA).

Join Kristie, Paul, and Jill as they discuss several recent Arizona employment law developments and how they may affect employers.

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.

With the 2023 California legislative year closed, we are ready to summarize the new legislation that will affect businesses operating in the state and highlight related action items.

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.

Certain employers may feel the impact of recent modifications to the I-9 process, while all employers will be affected by the introduction of a new I-9 form.

In this episode, Heather and Matt discuss Senate Bill 699 and provide tips on what actions employers may want to take to best serve their companies.

On September 15, 2023, New York Governor Kathy Hochul signed into law Senate Bill 5640, which adds Section 203-f to the New York Labor Law. Section 203-f creates statutory limitations on an employer's use of invention assignment provisions.

Increasing adoption of video and automated technology, such as artificial intelligence (AI), in employment practices has prompted regulatory efforts.

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.

This Update discusses how the Corporate Transparency Act rules will affect directors and senior officers of CTA reporting companies, in particular. All senior officers, directors and their advisers, and counsel should be aware of these rules and potential implications.

In addition to ensuring returns for investors, American corporations are tasked with navigating a host of social, political, and economic hot button issues—and polls have reflected some success on this journey.

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.

The U.S. Department of Education's (DOE) 2022 proposed Title IX regulations were accompanied by confident claims that their impact would be nothing short of historic. After receiving over 239,000 comments, the DOE's anticipated release of the final rule in October has been delayed. The official reasons for the delay are a mystery, but the avalanche of comments has likely led the agency to reconsider important aspects of campus Title IX disciplinary hearings, somewhat awkwardly referred to as grievance procedures.

Beginning January 1, 2024, the state minimum wage in New York will increase. Subject to limited exceptions, it will then continue to increase annually thereafter.

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.

Christopher Wilkinson wrote an article published in Bloomberg Law titled "Employers, Take Notice as the DOL Crafts White House AI Mandates," where he considers the Department of Labor’s new responsibilities under the White House’s artificial intelligence executive order, spanning issues such as discrimination, immigration, and worker displacement.

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.

This potential new rule would give a designated union representative right to accompany an OSHA inspector onto an employer worksite. 

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.

In the United States, the use of noncompete agreements has been prolific and the law regarding the enforcement and use of noncompetes has been fairly steady and noncontroversial—until now.

With the explosion of the use of artificial intelligence (AI) in the workplace, employers are coming up against challenges with organized labor that many employers may not have previously considered.

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 White House recently issued its most extensive policy directive yet concerning the development and use of artificial intelligence (AI) through a 100-plus-page Executive Order (EO) titled "Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence” and accompanying “Fact Sheet” summary.

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.

While generative artificial intelligence (AI) programs can allow employees to complete certain tasks more efficiently, they can also raise concerns regarding copyright infringement, plagiarism, and data privacy, among others.

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.

Join Heather and Matt to learn more about the current state and utility of arbitration under California’s Private Attorneys General Act (PAGA).

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.

The U.S. Department of Labor (DOL) recently issued Field Assistance Bulletin No. 2023-2 to provide guidance to its field staff regarding enforcement of the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act), passed in 2022.

A recent National Labor Relations Board (NLRB or the Board) decision reverts to an Obama-era standard used to determine a worker’s status as an employee or an independent contractor under the National Labor Relations Act (NLRA or the Act).

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.

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

The growing use of video and automated technology, including artificial intelligence, in employment practices—and the concern that the technology may foster bias—has triggered a wide array of regulatory efforts.

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).

On June 16, 2023, the National Labor Relations Board issued a decision reinstating an Obama-era standard used to determine whether a worker is an employee or an independent contractor under the National Labor Relations Act.

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.

A recent decision made by the National Labor Relations Board (NLRB or the Board) reinstated setting-specific standards to determine whether employers have violated the National Labor Relations Act (NLRA or the Act) by disciplining employees for engaging in “abusive conduct” when that behavior occurred in connection with activities protected by Section 7 of the Act.

A new law recently went into effect in the State of Texas called the Texas CROWN Act, which prohibits employers, labor unions, and employment agencies from discriminating against Texas employees because of hairstyles associated with race.

The National Labor Relations Board (NLRB or the Board) General Counsel Jennifer A. Abruzzo recently issued a memorandum, opining that noncompete agreements contained in employment agreements and severance agreements violate the National Labor Relations Act (NLRA) except in limited circumstances.

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.

Employers are increasingly utilizing artificial intelligence (AI) tools supplied by third-party vendors.

The Washington Employment Security Department (ESD) recently adopted new rules for the state’s Paid Family and Medical Leave Act (PFML) regarding employer reporting requirements, child placement, and self-employment elective coverage requirements.

While recent changes to the I-9 process may affect select employers, the release of a new I-9 form will present changes to all employers. Qualifying employers are able to utilize an alternative verification procedure to remotely verify I-9 documentation for employees. 

On June 29, 2023, the U.S. Supreme Court ruled in Students for Fair Admissions v. President and Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina that the race-conscious admission practices used by Harvard College and the University of North Carolina violated the Constitution and Title VI of the Civil Rights Act of 1964. While the legal landscape for corporate DEI programs technically remains unchanged, employers should proactively assess their DEI initiatives to ensure ongoing compliance.

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.

On July 13, 2023, 13 attorneys general signed a public letter voicing opposition to employers’ use of diversity, equity, and inclusion plans. The letter alleges that the U.S. Supreme Court’s recent decision banning race-based affirmative action in college admissions implicates corporate DEI programs.

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.

On June 29, 2023, the Supreme Court issued its landmark decision in two cases challenging universities’ consideration of race as a factor in student admissions: Students for Fair Admissions v. President and Fellows of Harvard College; and Students for Fair Admissions v. University of North Carolina.

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.

On June 20, 2023, the New York State Legislature passed a bill which, if signed by Governor Kathy Hochul, will impose a blanket ban on—and render unlawful—all future noncompete agreements in New York.

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.

The U.S. Department of Homeland Security and Immigration and Customs Enforcement have announced that employers will have until August 30, 2023, to physically verify Form I-9 documentation that may have been reviewed remotely during the multiyear compliance flexibility.

The exemption for employment-related and business-to-business (B2B) data under California’s privacy law expired on January 1, 2023.

New York State Governor Kathy Hochul signed an amendment to the New York State Pay Transparency Law (NYSPTL).

The New York City Department of Consumer and Worker Protection (DCWP) adopted final rules for Local Law 144.

Employees alleging racism in the workplace received favorable guidance from the National Labor Relations Board (NLRB) in a recent general counsel memorandum.

On June 20, 2023, the New York State Assembly passed a bill which, if signed by New York Governor Kathy Hochul, will impose a blanket ban on—and render unlawful—all future noncompete agreements. New York’s proposed law is the most recent crackdown on the enforceability of noncompetes amid a wave of federal and state efforts to limit such agreements or prohibit them outright.

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.

The Equal Employment Opportunity Commission provided guidance indicating that, in its view, employers are generally liable for the outcomes of using selection tools to make employment decisions. 

This spring, the Office of Federal Contract Compliance Programs (OFCCP) published its final order rescinding the Trump-era Religious Exemption Rule for federal contractors.

The U.S. Supreme Court has accepted review of a case taking direct aim at “overregulation” by federal administrative agencies. Any client that routinely deals with federal administrative agencies—especially those who have experienced administrative overreach—should pay attention and consider weighing in.

On May 11, 2023, the New York City Council passed a bill to add height and weight to the list of protected characteristics under the New York City Human Rights Law.

The New York City Department of Consumer and Worker Protection adopted final rules for Local Law 144 on April 6, 2023. 

On April 29, 2023, the U.S. Department of Justice, Antitrust Division, suffered another defeat in its ongoing efforts to criminally prosecute conduct affecting workers’ compensation and job mobility.

Recently, in Helix Energy Solutions Group v. Hewitt, the U.S. Supreme Court ruled that a daily-rate worker who earned more than $200,000 annually was not exempt from the Fair Labor Standards Act’s (FLSA) overtime requirements.

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.

Illinois Governor Jay Pritzker signed into law the Paid Leave for All Workers Act (PLFAW) on March 13, 2023, which guarantees all Illinois workers at least 40 hours of paid leave (or a pro rata amount, depending on the number of hours worked) in a 12-month period starting January 1, 2024.

Perkins Coie published the fourth edition of Labor Law Today—Year in Review, offering a summary of the past year’s most noteworthy and influential developments in traditional labor law. 

In February 2023, the National Labor Relations Board (NLRB) ruled in McLaren Macomb, 372 NLRB No. 58 (2023), that employee severance agreements with overly broad confidentiality and nondisparagement provisions violate the National Labor Relations Act (NLRA).

New York City published final rules on April 5, 2023, for Local Law 144, which prohibits employers from using automated employment decision tools to screen job candidates unless certain bias audit and notice requirements are met.

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 Privacy Rights Act enforcement deadline draws near, but companies can’t focus solely on consumer data. California is the first state to apply comprehensive restrictions on the collection and use of employment and business-to-business data.

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.

U.S. President Joe Biden signed the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) into law on December 29, 2022.

The American Bar Association's 2023 Antitrust Spring Meeting, held in Washington, D.C., placed heavy emphasis on employees, contractors, and talent. Government officials, judges, academics, and the private bar debated cutting-edge competition issues affecting workers and labor markets, including criminal enforcement, amicus efforts, public engagement, and rulemaking. Prosecutors sent a clear message that they view no-solicitation, no-poach, and wage-fixing agreements as criminal violations, even in the face of several jury trial setbacks.

This annual publication provides a comprehensive overview of U.S. employment law, highlighting significant case law, legislative changes, government agency actions, and other developments of the prior year.

New York Governor Kathy Hochul amended New York State’s pending Pay Transparency Law, which will require employers with four or more employees to include a compensation range and job description in certain job advertisements.

Employees alleging racism in the workplace received favorable guidance from the National Labor Relations Board in a recent general counsel memorandum.

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 employers will face a host of new requirements in 2023, including the CROWN Act, the Family Bereavement Leave Act (FBLA), the One Day Rest in Seven Act Amendment (ODRISA), an Illinois Equal Pay Act (IEPA) update, and Enhanced Chicago Sexual Harassment training.

The Federal Trade Commission (FTC) recently announced its proposal of a new rule that would ban employers from imposing noncompete agreements on their workers and invalidate existing noncompetes currently in effect.

The Office of Federal Contract Compliance Programs (OFCCP) published its final order on March 1, 2023, rescinding the Trump-era Religious Exemption Rule for federal contractors.

A reference chart comparing certain key characteristics of demand deposits with government securities, money market funds, and other short-term cash management instruments. Please note that the chart is for informational purposes only and not for the purpose of providing legal or investment advice. 

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.

At 6:15 p.m. ET on March 12, 2023, the Department of the Treasury, Federal Reserve, and FDIC announced “actions enabling the FDIC to complete its resolution of Silicon Valley Bank, Santa Clara, California, in a manner that fully protects all depositors. Depositors will have access to all of their money starting Monday, March 13” (emphasis added).

An overview of the failure of Silicon Valley Bank (SVB) and what we expect to happen next. This reflects information as of 4:00 p.m. PT on March 11, 2023. We note that it is an evolving situation; we will provide updates as warranted in the coming days. Please contact your Perkins Coie lawyer or email SVBSupport@perkinscoie.com with questions or for assistance.

The U.S. Supreme Court ruled that compensation based on a daily rate does not satisfy the Fair Labor Standards Act's “salary basis test,” which is required for an employee to be exempt from overtime compensation.

The National Labor Relations Board issued a significant decision that dramatically affects employers’ ability to include nondisparagement and confidentiality provisions in separation agreements and other employment-related documents.

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.

In a landmark decision, the Illinois Supreme Court holds that every individual scan or transmission of biometric data made without the proper disclosures amounts to a separate violation of the Illinois Biometric Information Privacy Act.

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.

Perkins Coie is pleased to present the fourth edition of Labor Law Today—Year in Review, offering a summary of the past year’s most noteworthy and influential developments in traditional labor law.

The U.S. Supreme Court held oral arguments in two landmark cases, Students for Fair Admissions, Inc. v. President and Fellows of Harvard and Students for Fair Admissions, Inc. v. University of North Carolina, arising out of the affirmative action policies of two elite university systems, Harvard University and the University of North Carolina.

The National Labor Relations Board recently issued a decision in American Steel Construction, Inc., in which a 3-2 Board majority threw out the Trump-era standard used to determine whether a microunit is appropriate and reinstated the Obama-era standard.

Seattle’s new Independent Contractor Protections Ordinance (the Ordinance) requires certain hiring entities to provide independent contractors with disclosures both before entering a contract and at the time of payment.

Washington's Equal Pay and Opportunity Act (EPOA) amendments require most employers who engage in business in Washington state to include pay ranges and benefits information in their job postings.

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.

The National Labor Relations Board has thrown out the Trump-era standard used to determine whether a microunit is appropriate and reinstated the Obama-era standard.

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.

The National Labor Relations Board recently released a Notice of Proposed Rulemaking which, if adopted, would establish a new “joint employer” legal standard under the National Labor Relations Act.

The U.S. Department of Justice recently released new guidance announcing several policy changes to further strengthen and clarify its approach to prosecuting corporate crime. This guidance is applicable to all third-party text and social media messaging platforms.

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.

On October 31, 2022, the U.S. Supreme Court held oral arguments in two landmark cases, Students for Fair Admissions, Inc. v. President and Fellows of Harvard and Students for Fair Admissions, Inc. v. University of North Carolina, arising out of the affirmative action policies of two elite university systems, Harvard University and the University of North Carolina (UNC).

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.

On October 13, 2022, the U.S. Department of Labor (DOL) proposed a new rule that would revise the DOL’s guidance on how to determine whether a worker is an employee or an independent contractor under the Fair Labor Standards Act (FLSA).

Many employers in New York may be unaware that they may be required to pay their employees weekly.

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.

As the California Privacy Rights Act replaces its predecessor, the California Consumer Privacy Act, retailers have a significant amount of compliance preparation to do—right at peak season.

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.

In the retail environment, customer service is paramount. Workers spend their time answering questions, stocking shelves, organizing displays, sourcing and sizing, and, yes, even gift-wrapping sometimes. But they're not assembling the products, so they certainly aren’t “manual workers,” right? Not necessarily.

Employers who do not sponsor a qualified retirement plan, such as a 401(k) plan, and have at least five employees in California must be sure to promptly enroll in California’s CalSavers program.

Employers who share information with competitor employers about employee compensation, including wages and benefits, face greater risks of government investigations into violations of antitrust laws, as evidenced by recent legal actions by the U.S. Department of Justice, including an $84.8 million settlement between the DOJ and three poultry processing plants.

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.

The federal contractor COVID-19 vaccine mandate, dormant after a federal district court issued a nationwide injunction, may be revived in an appeal of that matter after the U.S. Court of Appeals for the Eleventh Circuit determined that the nationwide injunction was too broad.

The New York City Department of Consumer and Worker Protection has actively stepped up enforcement of the city’s worker protection laws.

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.

Federal contractors should remain vigilant in how they structure and conduct internal pay equity audits to ensure compliance with the revised federal guidance. On August 18, 2022, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs revised its recent directive related to compliance obligations on evaluating compensation and how the agency may seek to gain access to that data during a compliance audit.

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.”

Colorado’s noncompete statute has long voided covenants not to compete unless certain exceptions are met. Starting on August 10, 2022, an amendment to that law will substantially narrow the list of permissible exceptions.

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.

On June 2, 2022, the New York State Legislature passed the Freelance Isn’t Free Act.

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.

A federal judge in the U.S. District Court for the Northern District of Illinois has held that an antitrust challenge to a “hiring restriction [that] prevented” plaintiff employees “from taking a better-paying position with a rival McDonald’s outlet” must be evaluated under the full rule of reason.

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.

Adding to a growing list that already includes Massachusetts, D.C., California, and Illinois, in May 2022, several more states took steps to enact legislation to limit employers’ ability to use non-compete and other restrictive covenants.

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.

Effective January 1, 2023, employers with employees in New York City will be restricted in their use of artificial intelligence (AI) tools in connection with employee recruitment, hiring, and other employment-related decisions.

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.

The general counsel for the National Labor Relations Board, Jennifer Abruzzo, on April 11, 2022, filed a brief in a case pending before the NLRB asking the Board to overturn decades-old precedent and make several significant changes to employers’ rights during unionization campaigns.

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.

Perkins Coie is pleased to present the third edition of Labor Law Today —Year in Review, highlighting the past year’s most noteworthy developments.

Mayor Muriel Bowser signed the District of Columbia’s Ban on Non-Compete Agreements Amendment Act of 2020 (D.C. Act 23-563) (the Act) on January 11, 2021.

Federal contractors who conduct pay equity audits under attorney-client and work product privileges face increased risks under a new directive by the U.S. Department of Labor’s Office of Federal Contract Compliance Programs.

This update outlines contractual and procurement considerations that we are seeing clients confront as they respond to compliance and implementation challenges from these new requirements.

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

The U.S. Department of Justice Antitrust Division, on January 28, 2022, revealed the criminal prosecution of a conspiracy that allegedly suppressed wages and limited job mobility for essential healthcare workers.

Effective May 15, 2022, New York City will join a growing list of jurisdictions requiring pay transparency in job opening advertisements.

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.

New cybersecurity developments and observations ... warrant prompt consideration by plan sponsors and other fiduciaries of employee benefit plans subject to ERISA.

Effective May 7, 2022, New York employers that electronically monitor their employees’ telephone, email, or internet access or usage will be required to provide their employees with written notice of such electronic monitoring upon hire.

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.

There are many new and expanding legal requirements for group health plans and issuers of group health plan coverage to pay attention to this year.

The U.S. Department of Labor’s Office of Federal Contract Compliance Programs recently reminded federal contractors that the government has broad authority to audit and investigate contractors’ equal employment practices and policies.

With the new year approaching, this is an excellent time to turn over that new leaf and commit to starting, or reestablishing, good habits. Businesses should be no different.

View Perkins Coie’s archived frequently asked employment questions regarding COVID-19. These FAQs have not been updated to address OSHA’s emergency temporary standards regarding COVID-19 vaccination mandates announced on November 4, 2021.

Further to New York City Mayor Bill DeBlasio’s December 6, 2021 announcement, the New York City Department of Health has now released detailed guidance regarding the vaccine mandate for private employers.

On December 7, 2021, a federal district court in Georgia issued a nationwide injunction blocking the federal contractor vaccine mandate and other protocols.

New York City Mayor Bill DeBlasio announced sweeping new vaccine requirements for NYC employers and residents, including a “first-in-the-nation” requirement that all private-sector employers mandate that their employees receive the COVID-19 vaccination, without a standard testing alternative.

Effective January 1, 2022, SB 606 significantly expands Cal/OSHA’s enforcement powers and the potential penalties for workplace health and safety violations.

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.

Settlement Agreement and USCIS Policy Alert Relax Employment Authorization Policies for Certain E, H-4, and L Visa-Dependent Spouses.

Employer vaccination policies are probably the hottest topic in this final quarter of the calendar year. Some employers are even planning to offer COVID-19 vaccination shots at holiday parties to make it easier for employees to get vaccinated.

Workplace Rules interviews Julian Sarafian, an attorney with a sterling pedigree who has become a spokesperson for a wave of disaffected millennial employees who, like a generation of Bartleby The Scriveners, have turned their back on the demands of the modern workplace. A podcaster, social media influencer, and mental health champion, Julian provides an in-depth look at why this generation of employees has taken their grandparent’s advice to tune in, turn on, and drop out.  

The U.S. Department of Labor’s Occupational Safety and Health Administration issued its long-awaited emergency temporary standard requiring all employers with a total of 100 or more employees to mandate vaccination and/or weekly COVID-19 testing. OSHA also released a comprehensive FAQ to address questions.

The Occupational Health Safety Administration (OSHA) issued the anxiously-awaited COVID-19 Vaccination and Testing Emergency Temporary Standard (Vaccine ETS), which mandates that private employers with 100 or more employees (Employers) implement a COVID-19 vaccination policy.

On October 25, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) updated its guidance related to the COVID-19 pandemic, adding a brand-new section addressing religious objections to COVID-19 vaccine mandates.

The U.S. Department of Labor (DOL) published a proposed regulation on October 14, 2021, that would clarify how fiduciaries of private sector employee benefit plans should apply ERISA’s fiduciary duties of prudence and loyalty when making investment decisions and exercising shareholder rights.

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

Last week, the federal government began enforcing the requirements of the Executive Order 14042, “Ensuring Adequate COVID Safety Protocols for Federal Contractors” (COVID EO) and its supporting guidance.

On October 12, 2021, the Occupational Safety and Health Administration (OSHA) delivered its proposed vaccine mandate Emergency Temporary Standard (ETS) to the White House for final review.

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.

Both federally and in New York, the COVID-19 regulatory landscape continued to evolve in September.

Our country has entered a new era, in which disabilities are increasingly viewed as superpowers and informed employers recognize them as the keys to unlocking employee performance.

The U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has taken three recent notable actions.

With the surge of COVID-19 cases due to the Delta variant, many employers are considering whether to require employees to be vaccinated, how to encourage employee vaccinations, and the implications of vaccine policies for their businesses.

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.

The Occupational Safety and Health Administration updated general industry guidance for COVID-19 that is applicable to all workplaces, focusing on unvaccinated workers and others who are “at risk” (i.e., immunocompromised individuals) and workers who are fully vaccinated but located in areas of substantial or high community transmission of COVID-19.

Employees with “long COVID”—who continue to experience ongoing symptoms for months afterward—may be entitled to accommodations under the Americans with Disabilities Act (ADA), according to attorneys Jill L. Ripke, Lauren M. Kulpa, and Lara A. Grines.

Following up on the new excessive heat rules, Oregon has issued temporary rules to protect employees from wildfire smoke, which will remain in place for six months while the Oregon Occupational Safety and Health Administration (OSHA) drafts permanent rules.

Join Perkins Coie Senior Counsel Christopher Wilkinson for a discussion of what it takes to actually get things done in D.C., based on experience gained as the associate solicitor for civil rights and labor management for the U.S. Department of Labor during the Obama administration. 

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 July 8, 2021, Oregon Occupational Safety and Health Administration (OSHA) adopted emergency rules implementing requirements for employers to protect workers from the dangers of high and extreme heat, including providing access to shade and cool water, cool-down breaks, training, and other measures.

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.

The Occupational Safety and Health Administration (OSHA) issued the COVID-19 Healthcare Emergency Temporary Standards (ETS) on June 10, 2021. 

The Occupational Safety and Health Administration (OSHA) updated general industry guidance for COVID-19 that is applicable to all workplaces.

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.”

We live in a world where artificial intelligence (AI) is becoming omnipresent. How do we build AI that doesn’t simply replicate our biases and further perpetuate discrimination in hiring?

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.

The Biden administration is closing in on its first 100 days. Based on the strong progressive agenda of the campaign, it was expected that the Department of Labor would take very bold and aggressive actions out of the gate.

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.

On April 14, 2021, the US Department of Labor (DOL) released three-part guidance on cybersecurity issues for employee benefit plans, marking its first significant commentary on the issue since its comprehensive, but non-binding, report in late 2016. The DOL’s guidance provides “tips” and “best practices” for ERISA plan sponsors, responsible fiduciaries, recordkeepers, service providers, and participants in appropriately safeguarding non-public plan and participant information against cybersecurity threats. 

Join Perkins Coie white collar investigation partner, Caryn Trombino, as she provides an overview of survivor-centered, trauma-informed techniques and how they can be a powerful tool in white collar-investigations.

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).

The American Rescue Plan Act of 2021 (ARPA) includes a 100% federal subsidy of COBRA premiums (including the up-to-2% administrative fees) during the period of April 1, 2021, through September 30, 2021. Earlier this week, EBSA published clarifying FAQs and model notices related to the COBRA subsidy. This update discusses the guidance most relevant to employers and highlights areas where additional guidance is still needed.

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.

The American Rescue Plan Act of 2021 (ARPA) includes a number of provisions requiring immediate action by employers.

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.

This update examines in detail each form of multiemployer pension plan relief under the ARPA, as well as potential impacts of the ARPA on employers participating in underfunded multiemployer pension plans.

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

Much of the previous relief that had been granted to cafeteria plans during the COVID-19 pandemic was set to expire after 2020.

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.

Heather Sager is joined by former Airbnb, Inc. general counsel and chief ethics officer, Rob Chesnut, for a frank discussion addressing the realities of establishing a vibrant, accountable, corporate ethics program, and why integrity must start at the top and engage your entire workforce to be truly effective.

President Biden has long been allied with the labor movement, and during his tenure as vice president, the administration pursued policies favorable to organized labor.

On March 12, 2020, the Board announced the closure of its headquarters in Washington, D.C., after learning an employee who was exhibiting cold-like symptoms potentially had been exposed to COVID-19.

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.

In an unexpected shift, the U.S. Court of Appeals for the Fifth Circuit in Swales v. KLLM Transport Services, LLC, ordered courts to abandon the commonly followed “two-step” certification process for collective actions under the Fair Labor Standards Act.

Perkins Coie is pleased to present the second edition of Labor Law Today —Year in Review, highlighting the past year’s most noteworthy developments.

In this episode, Paul Hirose, former president of the National Asian Pacific American Bar Association and co-chair of Perkins Coie’s Supply Chain Compliance and Corporate Social Responsibility practice, speaks with Leyla Seka about her leadership in confronting gender equality and racial equity issues in the tech industry.

President Donald Trump signed into law the Consolidated Appropriations Act, 2021 (the Omnibus Bill) on December 27, 2020.

After much political gridlock, Congress passed an omnibus government-spending bill (Appropriations Act), which includes another COVID-19 relief package.

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.

Employee benefits professionals have faced many challenges in 2020.

Prior to January 1, 2021, all employers with five or more employees in California must provide one hour of sexual harassment and abusive conduct prevention training to nonsupervisory employees and two hours of sexual harassment and abusive conduct prevention training to any supervisors and managers once every two years.

The gender equity movement focused higher education institutions on pay equality. For example, in 2016, the Equal Employment Opportunity Commission (EEOC) sued the University of Denver alleging gender discrimination in professor compensation that resulted in the university paying $2.66 million to resolve the matter. Now, the recent racial justice movement has raised the stakes for these institutions.

President-elect Biden has long been allied with the labor movement, and during his tenure as vice president, the administration pursued policies favorable to organized labor.

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.

As the COVID-19 resurgence continues, the state of Illinois and the city of Chicago, have once again updated guidance for employers.

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.

Oregon’s Occupational Safety and Health Administration (OSHA) has issued a temporary rule in response to the COVID-19 pandemic that went into effect on November 16, 2020, although many of the rule’s requirements have a later effective date. 

The U.S. Department of Labor (DOL) will see significant changes under a Biden administration.

Employers facing union representation elections have spent the pandemic trying to satisfy the National Labor Relations Board’s (Board) requirements to hold a manual, ballot box election, only to be refused in the vast majority of cases.

On Election Day 2020, California voters approved Proposition 22 which allows some gig economy companies to continue to classify drivers as independent contractors.

For retailers, the holiday season is indeed the “most wonderful time of the year.”

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

California’s legislative session closed with the state Assembly and Senate signing nearly 40 bills related to employment.

The Trump administration published two new regulations on October 8, 2020, that make significant changes to the H-1B visa rules and to the prevailing wage requirements for PERM labor certification applications as well as H-1B, H-1B1, and E-3 workers.

The holiday season and holiday shopping may look a little different this year, especially as more purchases are made online.

The major elements of Oregon’s Workplace Fairness Act (OWFA) come into effect on October 1, 2020.

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.

COVID-19 has forced many employers to make unanticipated changes to their workforce, with many retailers rolling out a combination of furloughs, layoffs, and breaks in service to address changing market demands and shelter-in-place orders.

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.

Nearly one year after Governor JB Pritzker signed the Illinois Workplace Transparency Act (WTA), the Illinois Department of Human Rights (IDHR) issued much-needed guidance on one of the WTA’s most arduous requirements—the employer adverse judgment disclosure requirements

In response to the ongoing coronavirus (COVID-19) pandemic, the U.S. Congress, the executive branch, and the Internal Revenue Service (IRS) have taken several actions intended to provide immediate relief to taxpayers.

Misinformation is rampant in our current COVID-19 world. On this episode, Perkins Coie partners Ann Marie Painter and Jill B. Louis are joined by Carolee Estelle, M.D., an infectious disease specialist at UT Southwestern Medical Center and Parkland Hospital in Dallas, Texas, who provides some straight answers about the COVID-19 virus, what we know about its transmission and effect on the body, and how best to avoid spread in the workplace.

With the global shift to remote work in 2020, the workplace has changed radically and understanding current employment rules and regulations matters immensely.

As COVID-19 cases continue to rise locally and across the country, Illinois, Chicago, and Cook County continue to update their guidelines and recommendations for employers.

As employers open or expand access to workplaces, safety considerations remain paramount during the continuing COVID-19 pandemic.

In Proclamation 20-46.2 (July 29, 2020), Washington Governor Jay Inslee extended existing protections for “high-risk workers” for the duration of the current state of emergency.

In June 2020, the U.S. Department of Labor (DOL) revised the optional-use Family and Medical Leave Act (FMLA) forms available for employers to provide required notice to employees and for employees to provide certification of their need for FMLA leave.

The Seattle City Council passed a bill creating a new payroll tax on persons engaged in business in Seattle. While the ordinance has not yet been signed by the mayor (as of publication), the tax was passed by the council on July 6, 2020, by a veto-proof majority (7-2) and is expected to become law effective January 1, 2021.

President Donald Trump on June 22, 2020, signed an executive order extending until December 31, 2020, and expanding on his April 22, 2020, proclamation, temporarily suspending the entry of certain immigrants into the United States.

The proclamation was amended on June 29, 2020, please see our summary of the amendment.  

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.

On May 29, 2020, President Donald Trump issued a proclamation restricting the entry of certain Chinese national students and researchers into the United States pursuant to F or J visas to study or conduct research in the United States.

As California begins to reopen and employees return to the workplace, employers must consider new protocols to help safeguard the workplace related to COVID-19. This includes performing a detailed risk assessment and developing a return to work plan. Read more.

The U.S. Department of Labor (DOL) has issued a final rule establishing a new “safe harbor” method for satisfying ERISA and DOL’s requirements for electronic distribution of certain ERISA-governed retirement plan documents.

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

Many employers have sought to leverage or make changes to their employer-sponsored benefits to address economic and health-related burdens faced by their employees during the COVID-19 pandemic.

Governor J.B. Pritzker released Restore Illinois, a five-phased plan to reopen the state of Illinois on Tuesday, May 5.

Perkins Coie’s Insurance Recovery Attorneys Jim Davis and Brad Dlatt interview special guest Perkins Coie Labor Partner Heather Sager, who is counseling companies operating during the Covid-19 pandemic. Topics include how businesses find out if they are allowed to re-open, what employers need to know about having employees return to work, the use of health screenings, privacy issues arising from new procedures, the implication for insurance, and a brief legislative update.

The U.S. Department of Labor (DOL) issued revised model general and election notices on Friday, May 1, 2020.

The COVID-19 Right of Recall Ordinance requires that airport, hotel, event center, and commercial property employers offer a laid off worker, in writing, any position which is or becomes available after the effective date of the ordinance (listed as June 14, 2020) for which the laid off worker is qualified.

The COVID-19 Worker Retention Ordinance applies to airport, hotel, event center, and commercial property businesses and works in tandem with the COVID-19 Right of Recall Ordinance.

Los Angeles County enacted the COVID-19 Worker Protection Ordinance on April 28, 2020.

States across the country are beginning to reopen or considering reopening following shutdowns in response to the COVID-19 pandemic.

Many employee benefit plan sponsors, administrators, and fiduciaries have been asking about regulatory relief in response to administrative challenges created by the COVID-19 pandemic.

The Coronavirus Aid, Relief, and Economic Security Act (CARES Act), signed into law on March 27, 2020, established the Paycheck Protection Program (PPP), a loan program that made $349 billion available to small businesses using the Small Business Administration’s (SBA) existing 7(a) loan program.

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.

On April 3, 2020, the U.S. Centers for Disease Control and Prevention (CDC) issued an updated recommendation that all workers and members of the general public should consider using non-medical face masks or face coverings to prevent the spread of COVID-19 transmission and infection.

Los Angeles Mayor Eric Garcetti issued a Worker Protection Order on April 7, 2020, which can be found here.

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.

Los Angeles Mayor Eric Garcetti has modified the previously passed COVID-19 Supplemental Paid Sick Leave Ordinance by issuing a public order under City of Los Angeles Emergency Authority.

The City of Los Angeles recently enacted a new ordinance called the COVID-19 Supplemental Paid Sick Leave Ordinance that applies to employers with 500 or more employees nationally.

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.

Companies affected by COVID-19 must carefully consider immigration implications for all foreign national and expat employees, including issues of immigration compliance.

The National Labor Relations Board (NLRB) issued a press release on April 1, 2020, stating that The National Labor Relations Board will not extend its temporary suspension of Board-conducted elections past April 3, 2020 and will instead resume conducting elections beginning Monday, April 6, 2020. 

In response to the ongoing coronavirus (COVID-19) pandemic, U.S. Congress, the executive branch, and the Internal Revenue Service (IRS) have taken several actions intended to provide immediate relief to taxpayers.

Recognizing the high volume of COVID-19 content being published, Perkins Coie developed a one-stop, integrated resource page that addresses key legal and business considerations for companies across essential business areas, from insurance coverage and labor and employment, to privacy and security, corporate governance, tax, construction, supply chain, and more.

In response to the ongoing coronavirus (COVID-19) pandemic, the U.S. Congress, the Executive Branch, and the Internal Revenue Service have taken several actions intended to provide immediate relief to taxpayers, including by postponing federal income tax return and tax payment deadlines, providing businesses with tax credits to the extent that such businesses are subject to new paid sick and paid family and medical leave requirements, and declaring COVID-19 a national emergency.

As federal and state governments respond to COVID-19, employers and plan fiduciaries must also address the evolving issues arising under employer-sponsored health plans.

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

The coronavirus pandemic has left employers with many legal questions during this challenging time.

The Families First Coronavirus Response Act was passed by the U.S. House of Representatives shortly before 1:00 a.m. on March 14, 2020.

The Families First Coronavirus Response Act was passed by the U.S. House of Representatives shortly before 1:00 a.m. on March 14, 2020.

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 California Supreme Court recently issued a decision holding that the time spent on an employer’s premises waiting for and undergoing required exit searches is compensable time that must be paid to employees.

The Setting Every Community Up for Retirement Enhancement Act (the SECURE Act) was signed into U.S. law on December 20, 2019.

Perkins Coie is pleased to present the first edition of Labor Law Today —Year in Review, offering a summary of the past year’s most noteworthy developments.

The parties to class action litigation frequently contest whether plaintiffs are entitled to pre-certification discovery aimed at identifying additional or replacement class representatives.

Oregon’s 2019 biennial legislative session brought some significant changes to Oregon employment law and new action items for employers. Happy New Year!

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.

Beginning January 1, 2020, Washington employers in industries including hospitality, retail, security, and contracted property services will need to comply with a new law amending the Washington Law against Discrimination (WLAD). 

The National Labor Relations Board announced a number of changes to its representation election rules on December 13, 2019, many of which, to some degree or another, restored elements of the Board’s procedures prior to the 2014 overhaul of these rules.

U.S. Citizenship and Immigration Services (USCIS) announced on December 6, 2019, that it has completed testing and will implement a new online registration process for the upcoming H-1B cap-subject visa season that begins on March 1, 2020.

A decision by the Oregon Court of Appeals in Maza v. Waterford Operations LLC, 300 Or. App. 471 (2019), raises the bar for Oregon employers on meal breaks, making employers liable for missed meal breaks even if they make every effort to provide them.

For the first time in 40 years, the U.S. Department of Education (DOE) will make significant regulatory changes to Title IX, the federal law regulating sex and gender discrimination in the educational environment.

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.

The U.S. Department of Labor (DOL) issued proposed regulations on October 23, 2019, providing for a new electronic-delivery safe harbor applicable to certain required disclosures for ERISA-governed retirement plans.

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 IRS issued final regulations on September 19, 2019, easing the 401(k) hardship distribution rules.

Thirty-five years after deciding that arbitration clauses in employee benefit plans governed by the Employee Retirement Income Security Act of 1974 (ERISA) were unenforceable, the U.S. Court of Appeals for the Ninth Circuit has reversed itself by approving the use of mandatory arbitration clauses and class action waivers in ERISA-governed benefit plans in Dorman v. Charles Schwab Corp.

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.

Washington Governor Jay Inslee signed into law legislation in April 2019 that requires school districts to allow parents and guardians to administer to their child marijuana-infused medications on school grounds, in school vehicles and at school-sponsored activities.

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

California Governor Gavin Newsom passed Senate Bill 188, known as the Creating a Respectful and Open Workplace for Natural Hair (C.R.O.W.N.) Act, earlier this month which expanded existing anti-discrimination state law to protect employees and students from discrimination based on natural hairstyles.

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.

A recent decision from a National Labor Relations Board administrative law judge opened a new front in the battle against mandatory employment arbitration agreements. In Pfizer Inc., the ALJ held that such arbitration agreements may not lawfully force employees to treat the arbitration proceedings or award as confidential. The decision distinguished last year’s U.S. Supreme Court decision in Epic Systems Corp. v. Lewis, which held that the National Labor Relations Act did not prevent employers from requiring employees to individually arbitrate employment disputes.

As expected, Governor Jay Inslee signed legislation that will significantly restrict the use of noncompetition agreements for Washington-based employees and independent contractors.

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.

Last week, the Washington State Legislature passed a proposal that, once signed into law, will significantly restrict the use of noncompetition agreements in Washington.

The U.K. Modern Slavery Act of 2015, which was modeled after the California Transparency in Supply Chains Act, requires companies falling under its jurisdictional hook (and there are many) to honestly and completely disclose their efforts to eradicate trafficked, slave, indentured, coerced and child (collectively “forced”) labor from their supply chains.

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.

The federal Fair Credit Reporting Act (FCRA) applies to employers who obtain “consumer reports” from a “consumer reporting agency” for employment purposes.

Funding expensive obligations for retiree health benefits, often an impediment to running a financially stable business or even successfully navigating a Chapter 11 bankruptcy process, may no longer present such a problem—at least in the U.S. Court of Appeals for the Eleventh Circuit.

The press has widely reported on Paul Manafort’s attorneys’ failed attempt to redact sensitive information in a recent legal filing, allowing the press to uncover and publish the very information the attorneys intended to redact.

Pop-ups are a fun and effective way to engage new clients and increase brand awareness while keeping overhead costs low. While these temporary retail stores have been embraced by both retailers and consumers, the approach has the following significant legal considerations that should be kept top of mind.

California Governor Jerry Brown recently signed Senate Bill No. 820, enacted as California Code of Civil Procedure Section 1001, which places new restrictions on confidentiality provisions in settlement agreements involving sexual harassment/discrimination claims. 

The U.S. Court of Appeals for the Ninth Circuit recently reminded litigants that a plaintiff’s bankruptcy can benefit a defendant by providing an alternative settlement path.

The California Supreme Court issued an opinion on July 26, 2018, and found that the federal Fair Labor Standards Act’s de minimis doctrine does not apply to claims for unpaid wages under the California Labor Code.

The U.S. Supreme Court this week overruled longstanding precedent to hold that public-sector unions may no longer extract agency fees from nonconsenting employees who have opted not to join a union.

The first year of the Trump administration saw the DOJ continue the Obama administration’s focus on protecting U.S. intellectual property interests by investigating and prosecuting trade secret cases, especially those involving foreign interference and national security concerns.

In Epic Systems Corp. v. Lewis, __ U.S. __ (2018), the United States Supreme Court upheld an employment contract provision that requires employees to individually arbitrate any disputes with the employer.

Perkins Coie surveyed 140 startup founders, technology company executives, investors and consultants on key challenges and opportunities in the AR/VR space.

The Washington Equal Pay Opportunity Act will go into effect on June 7, 2018. House Bill 1506, signed by Governor Jay Inslee on March 21, 2018, amends the Washington Equal Pay Act, RCW 49.12.175, to “address income disparities, employer discrimination, and retaliation practices, and to reflect the equal status of all workers in Washington state.” This statute goes beyond federal equal pay legislation by providing additional protections for employees and imposing restrictions on employers. An employer who discriminates based on gender in providing compensation is guilty of a misdemeanor.

The Supreme Court of California recently adopted a new standard for distinguishing between employees and independent contractors under California’s Industrial Welfare Commission Wage Orders.

The Antitrust Division of the DOJ hosted a roundtable discussion on criminal antitrust compliance programs a few weeks ago, and the event underscored why it is critical for companies to adopt compliance programs that will detect any violations committed by their employees.

As a result of a declining union workforce, bankruptcies of employers contributing to multiemployer pension plans (MEPPs), and tax rules that prevented MEPPs from developing sufficient reserves, many MEPPs have become significantly underfunded.

Artificial Intelligence (AI) refers to a machine's ability to simulate human intelligence to perform tasks like planning, decision-making, and recognizing objects or sounds. Its use is not always obvious, but AI is now present in nearly every aspect of our lives—from our "smart" home products to our medical care, jobs, and businesses.

The state of Washington’s new paid sick and safe time requirements became effective January 1, 2018.

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.

Although business-related settlement payments (and attorneys’ fees) are generally tax-deductible, the 2017 Tax Cuts and Jobs Act (the Tax Act) restricts an employer’s ability to obtain tax deductions for settlements of sexual harassment and abuse claims that are subject to nondisclosure agreements.

The Immigrant Worker Protection Act, California Assembly Bill 450 (AB 450), went into effect in California on January 1, 2018.

The National Labor Relations Board issued a decision relating to the test for joint employment under the National Labor Relations Act.

Effective January 1, 2018, California employers with five or more employees are prohibited from asking about a prospective employee’s criminal conviction history until a conditional job offer has been made. 

Governor Jerry Brown signed S.B. 63 last month, which makes CFRA applicable to businesses with 20+ employees.

Governor Jerry Brown signed A.B. 168 last month, which prohibits employers from asking job applicants for salary history information.

Employers and other defendants recently suffered a setback in the Eleventh Circuit, which reversed itself and will now require a “totality of the circumstances analysis” to determine whether a debtor/plaintiff should be precluded from pursuing litigation that was not disclosed in their bankruptcy documents in a timely manner. 

On June 7, 2017, U.S. Secretary of Labor Alexander Acosta announced the withdrawal of the U.S. Department of Labor’s 2015 and 2016 informal guidance on joint employment and independent contractors.

Beginning on July 1, 2017, virtually all Arizona employees will be entitled to accrue paid sick leave.

On May 4, 2017, the U.S. House of Representatives approved the American Health Care Act (AHCA) by a vote of 217 to 213 (with 20 Republicans voting against the bill), sending the AHCA to the Senate.

The U.S. Department of Health and Human Services recently announced yet another HIPAA privacy and security settlement involving Protected Health Information on a stolen laptop.

Are you an Applicable Large Employer (ALE) that has received rejected Forms 1095-C from the IRS? If so, you are not alone.

This update was also published by Employee Benefit Advisor on 05.04.2017, "Views Assessing Employer Shared Responsibility Penalties," and by Society for Human Resource Management on 05.05.2017, "Employer Shared Responsibility: Have Penalties Been—or Will Penalties Ever Be—Assessed?"

As deliberations over a replacement of the Affordable Care Act (ACA) continue in the U.S. House of Representatives, the fate of the ACA’s Cost-Sharing Reduction subsidies may be at stake.

On the last day before the U.S. Congress began its spring recess, the U.S. House of Representatives amended the now consolidated bill H.R. 1628, known as the American Health Care Act.

Although the fate of the Affordable Care Act remains undecided, enforcement of the HIPAA privacy and security regulations by the Office for Civil Rights of the U.S. Department of Health and Human Services is ongoing, with three settlements and one assessment of penalties already in 2017.

The much-anticipated vote by the U.S. House of Representatives on the “American Health Care Act,” also known as “AHCA” or the “Obamacare replacement bill,” was cancelled last week, leaving many to ask “what now?”

In addition to championing greater employee and workplace protections via ballot measures and city ordinances in Santa Clara County, California, several unions have set their eyes on the employees of the private companies that provide services to Silicon Valley’s high-tech campuses.

The U. S. House of Representatives (the House) proposed two bills to “repeal and replace Obamacare” this week, and while many popular consumer protections under the Patient Protection and Affordable Care Act (ACA) look to be preserved at this stage, some significant changes are included that could have an impact on employers and other plan sponsors if signed into law. We’ve highlighted a few of these potential changes below. 

In Somers v. Digital Realty, the Ninth Circuit joins the Second Circuit in holding that whistleblower protections apply to individuals who report securities violations internally, not just to those who report to the Securities and Exchange Commission.

In Texas, some victims of workplace sexual assault may pursue common law assault claims against their employers, following a recent Supreme Court of Texas ruling.

With the filing of a class action complaint in late 2016 in the U.S. District Court for the Southern District of Florida, Wal-Mart Stores, Inc. became the latest large company accused of failing to provide adequate notices as required by COBRA.

In a follow-up to the U.S. Department of Labor’s (DOL) release of 12 questions and answers in a publication called “Misclassification Mythbusters,” the DOL has now released a new website called “What is ‘misclassification’?”

The Qualified Small Employer Health Reimbursement Arrangement (QSEHRA), part of the 21st Century Cures Act signed into law by President Barack Obama on December 13, 2016, makes available to small employers a new option to provide health reimbursements or payments to eligible employees by setting aside IRS guidance that made stand-alone health reimbursement arrangements (HRAs) subject to penalties under the ACA.

On December 1, 2016, the Supreme Court of California held that the duty of employers and premises owners to exercise ordinary care in their use of asbestos in their businesses includes a duty to take reasonable care to prevent secondary (take-home) asbestos exposure to members of a worker’s household.

On November 28, 2016, the U.S. District Court for the Northern District of Texas denied a preliminary injunction that sought to block the nationwide implementation of the new Occupational Safety and Health Administration’s anti-retaliation rule, “Improve Tracking of Workplace Injuries and Illnesses.”

This Update was republished in Law360 on 12.05.2016, "How Employers Can Prep For New OSHA Injury Reporting Rule."

Last week, the U.S. Department of Labor’s pending regulation raising the minimum salary levels for “exempt” white collar employees was blocked by a federal district court judge in the Eastern District of Texas.

During his campaign, President-elect Trump promised to make the repeal and replacement of the Affordable Care Act (ACA) a priority. Now that the election is over, what should employers expect?

On November 3, 2016, a Thurston County Superior Court judge levied an $18 million penalty against a trade association for violations of Washington campaign finance laws.

The U.S. Department of Justice’s Antitrust Division and the Federal Trade Commission jointly issued their Antitrust Guidance for Human Resources Professionals on October 20, 2016.

Recently, Governor Jerry Brown signed S.B. 1241, which addresses choice-of-law and venue provisions in employment contracts that are entered into, modified or extended on or after January 1, 2017.

The Seattle City Council unanimously passed the Secure Scheduling Ordinance (Ordinance) on September 19, 2016.

In Morris v. Ernst & Young, LLP, the U.S. Court of Appeals for the Ninth Circuit recently reviewed an arbitration agreement that required employees “as a condition of employment” “to sign agreements not to join with other employees in bringing legal claims against the company.”

The U.S. Department of Labor recently released 12 questions and answers in a publication called “Misclassification Mythbusters.”

A federal judge in Texas has issued a nationwide injunction against the new labor “persuader” reporting requirements that were due to take effect on July 1, 2016.

Two new statutes, signed into law by Arizona Governor Doug Ducey this legislative session, attempt to set new standards on defining the employment relationship and how wages are regulated.

The new Defend Trade Secrets Act (DTSA), signed into law by President Obama on May 11, 2016, creates a new private civil cause of action in federal court for trade secret misappropriation.

On May 18, 2016, the U.S. Department of Labor (DOL) announced the publication of a new final rule that substantially revises existing overtime regulations to narrow the scope of overtime “exemptions,” requiring the reclassification of a large number of employees.

Perkins Coie and Upload surveyed more than 650 startup founders, executives with established technology companies and investors on the future of augmented and virtual reality.

Traditional employment practices liability (EPL) and directors’ and officers’ (D&O) insurance may not apply today to cover wage-and-hour liabilities, an issue we detailed in the first and second installments of this series.

As discussed in the first installment of our three-part series on insurance protection against wage-and-hour claims, policyholders have looked to two types of traditional insurance for protection against employment liabilities: employment practices liability (EPL) and directors’ and officers’ (D&O) insurance.

Today, businesses and their executives face an increased threat given the personal liability for officers, directors, managing agents and others as discussed in our recent alert, “California’s Fair Day’s Pay Act May Impose Liability on Individuals for Wage Claims.”

Although some states have long imposed personal liability on officers and directors for unpaid wages, the laws in both California and New York have recently been amended to address personal liability.

The Supreme Court issued its decision in Tyson Foods, Inc. v. Bouaphakeo on March 22, 2016.  The Court held that a group of employees in a class action could use a statistical study to establish the employer’s liability for unpaid overtime.  The employees claimed that they should have been paid for time spent donning and doffing protective gear.

In a game-changing event, on February 23, 2016, the U.S. Court of Appeals for the Ninth Circuit in a 2-1 decision ruled that it is a violation of federal law for an employer to use a tip-pooling arrangement that shares tips with normally non-tipped employees, such as kitchen workers or supervisors, even when the employer does not take advantage of the minimum wage “tip credit” permitted by the federal Fair Labor Standards Act (FLSA).

The U.S. Department of Justice issued a Memorandum to all U.S. Attorneys and entered into a Memorandum of Understanding (MOU) with the U.S. Department of Labor on December 17, 2015 to bolster the federal government’s arsenal to hold employers criminally liable for worker safety and health violations.  

In 2016, companies should consider examining the issue of website accessibility under Title III of the Americans with Disabilities Act.

As of February 1, 2016, employers with employees who work in Tacoma must comply with two new legal requirements.

Anchorage became the first Alaska town to pass a civil rights ordinance that extends protections to gay, lesbian, transgender and bisexual people in housing, employment and public accommodations.

Governor Jerry Brown signed the California Fair Pay Act (Fair Pay Act or the Act) last  week.  The law, which has been described as the toughest equal pay law in the country, strengthens protections that have been in place since the passage of the California Equal Pay Act in 1949.

From Washington, D.C. to Washington state, the manner in which government officials and employees create and store business records is making headlines.

The decision by the National Labor Relations Board (NLRB) last week in BFI Newby Island Recyclery expands the circumstances in which two otherwise separate and independent employers may be found to be joint employers of a group of workers. 

Co-author

Employers should take immediate action to ensure that they are properly classifying their workers in light of new guidance released on July 15, 2015, by the U.S. Department of Labor (DOL).

President Barack Obama issued a memorandum in March 2014 that directed U.S. Secretary of Labor Thomas Perez to “modernize and streamline” the regulations on exemptions from the Fair Labor Standards Act’s (FLSA) minimum wage and overtime pay requirements.  On June 30, 2015, the Department of Labor (DOL) issued a Notice of Proposed Rulemaking (NPRM) that would substantially narrow the scope of these exemptions, requiring the reclassification of a large number of employees.

The new election rules adopted by the National Labor Relations Board (NLRB) went into effect on April 14, 2015, and will apply to all requests for elections filed after that date. The new rules significantly speed up the scheduling of an election when a union files a petition seeking to represent a group of employees.

Beginning July 1, 2015, any California employee who works for 30 or more days within a year is entitled to paid sick leave. Under the Healthy Workplaces, Healthy Families Act of 2014 (the Act), employees will accrue paid sick leave at a rate of one hour for every 30 hours worked, starting on July 1, 2015 or, if they start after July 1, on their first day of employment.

In this update, Perkins Coie shares some recent developments in immigration law, including when the next H-1B filing period will commence and a summary of recent executive actions on immigration that will impact businesses.

The Office of the General Counsel of the National Labor Relations Board (NLRB) issued 13 complaints, on December 19, 2014, against McDonald’s franchisees and their franchisor, McDonald’s USA, LLC (McDonald’s USA), involving alleged labor law violations.

Some retailers in San Francisco will need to set work schedules two weeks in advance or face stiff penalties under a new law that goes into effect in 2015. San Francisco’s recently enacted Retail Workers Bill of Rights will impose new requirements on retailers within San Francisco.

The National Labor Relations Board (NLRB) issued its decision in Purple Communications, Inc. & Communication Workers of America, AFL-CIO today, holding that employees who are given access to company email accounts have a right to use those email accounts for activities protected by federal labor law, including union organizing.

In Casteel v. Charter Communications, Inc., No. C13-5520 RJB (W.D. Wash. Oct. 23, 2014), a federal judge in Western Washington denied an employer’s motion for summary judgment on a failure-to-accommodate claim under the Americans with Disabilities Act despite the undisputed fact that the employee has been unable to work since July 2009.

The California Court of Appeal, Second District, issued an opinion on October 15, 2014, that considered whether the definition of “employee” from the Industrial Welfare Commission Wage Order No. 9 (Wage Order) or the common law test found in S.G. Borello & Sons, Inc. v. Department of Industrial Relations, 48 Cal. 3d 341 (1989) (Borello) applied to the analysis of whether a putative employer properly classified courier and delivery service individuals as independent contractors.

On September 15, 2014, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) announced a proposed rule that would prohibit federal contractors from enforcing pay secrecy policies. 

Companies that rely on labor provided by third-party contractors may be held jointly liable for wages owed to the contractor’s workers under a new California law that goes into effect on January 1, 2015.

In Andrews v. Washington State Patrol, No. 32288-2-III, 2014 WL 4627656 (Wash. Ct. App. Sept. 16, 2014), a case involving response times to public records requests, the Washington Court of Appeals ruled in favor of the Washington State Patrol (WSP).

In a significant win for franchisors, the California Supreme Court ruled 4-3 that although Domino’s “imposes comprehensive and meticulous standards for marketing its trademarked brand and operating its franchises in a uniform way,” it cannot be held vicariously liable as an “employer” or “principal” in a sexual harassment lawsuit filed by an employee of a Domino’s franchisee.

Employers in the San Francisco Bay Area must now help their employees use alternative transportation under a program approved by the Bay Area Air Quality Management District (BAAQMD) and the Metropolitan Transportation Commission.

Last week, in an unprecedented shift away from long-standing Board precedent, Richard F. Griffin, Jr., General Counsel of the National Labor Relations Board (NLRB), asserted that McDonald’s, USA LLC (McDonald’s USA)—the franchisor of the McDonald’s system—may be liable as a “joint employer” for alleged unfair labor practices of individual franchisees.

The future of California labor and employment class actions took several blows this week.  First, the Supreme Court of California issued a decision in Iskanian v. CLS Transp. L.A., LLC, No S204032 (Cal. June 23, 2014) upholding a class action waiver in a dispute resolution policy.

The California Supreme Court has ruled that arbitration agreements with class action waivers are generally enforceable, but it refused to compel the waiver of representative claims brought under California’s Private Attorneys General Act (PAGA).

The Supreme Court of California released its decision in Duran v. U.S. Bank National Association on May 29, 2014.  The decision will likely reshape the landscape of class-action practice in California.

The Seattle employment community is abuzz about the prospect of a $15 minimum wage for all Seattle employees, which would make it the highest minimum wage in the nation.

The Affordable Care Act added the so-called “Play-or-Pay” mandate or “Employer Shared Responsibility” provisions to the Internal Revenue Code (the Code).

Every new year brings employment law changes for California’s employers and, while the Affordable Care Act has taken the spotlight for 2014, a vast array of employment laws deserve special attention from California employers for 2014.  We have attempted to briefly summarize these laws in this Employment Law Alert.

The San Francisco Family Friendly Workplace Ordinance goes into effect on January 1, 2014. The ordinance grants employees who act as caregivers the right to request accommodation from their employers, including flexible schedules or changes in hours.

Earlier this week, the federal Occupational Safety and Health Administration issued the news release, “Crowd Management Measures Are Critical During Major Sales Events,” and sent a reminder to major retailers and retail associations about the need to take precautions to prevent employee injuries during major sales events.

The IRS announced the Year 2014 cost-of-living adjustments for various provisions affecting employee benefit plans.

November 1, 2013 marks the start of new restrictions on Seattle employers’ use of criminal background checks for employment purposes.

On September 13, 2013 the U.S. Department of the Treasury (IRS), the U.S. Department of Health and Human Services (HHS), and the U.S. Department of Labor (DOL), collectively referred to herein as the Departments, coordinated the issuance of guidance regarding the application of certain provisions of the Affordable Care Act (ACA) to health reimbursement arrangements and other employer-sponsored healthcare arrangements.

The employer shared responsibility provisions, sometimes referred to as pay-or-play, of the Affordable Care Act (ACA) will take effect on January 1, 2015, but in order to be ready to comply, some employers need to take action now.

The final regulations implementing the Health Information Technology for Economic and Clinical Health (HITECH) Act were issued in January and compliance is required by September 23, 2013.

The National Labor Relations Board, the agency that enforces federal labor law, continues to challenge employer policies that seek to impose confidentiality constraints on employees.  This is unlikely to change now that the Senate has confirmed President Obama’s nominations for all five members, bringing the NLRB to full strength for the first time in years.

The U.S. Department of the Treasury announced today that after hearing and considering the concerns of employers about the complexity of compliance with the Play-or-Pay requirements under the Affordable Care Act, it is postponing the mandatory employer and insurer reporting requirements until 2015.

The Affordable Care Act (the ACA) established the Patient-Centered Outcomes Research Institute (the Institute) in order to provide comparative clinical effectiveness research data so that patients, health care providers, purchasers of health care and insurance products and policy-makers can make informed decisions.

On June 10, 2013, the Seattle City Council unanimously approved the “Job Assistance Bill,” which restricts when and how employers may seek and use criminal background information.  Under the new law, employers in Seattle may no longer require job applicants to check a box indicating whether they have ever been arrested or convicted of a crime.

Many businesses in Oklahoma have been impacted by the devastating tornado that hit that state on May 20, 2013.  Early estimates indicate the tornado caused upwards of $2 billion in damage.  Numerous national and local businesses and other entities, ranging from retailers to schools and hospitals, reported significant damage and an interruption in their business operations due to the tornado.

On May 7, 2013, the U.S. Court of Appeals for the District of Columbia Circuit vacated the rule adopted by the National Labor Relations Board (the Board) that required most private sector employers to display on their properties and websites a large poster notifying employees of their rights under the National Labor Relations Act (the Act) and that failure to do so would be an unfair labor practice. 

On April 16, 2013, the U.S. Supreme Court concluded, in a 5-4 decision, that when the individual plaintiff in a "collective action" under the Fair Labor Standards Act (FLSA) resolves her own claims before certification, the case is moot and must be dismissed.  Genesis Healthcare Corp v. Symczyk, No. 11-1059 (U.S. 2013).

Portland has become just the fourth U.S. city to require that employers provide sick leave. The Portland ordinance goes into effect January 1, 2014. Following is a brief summary of the ordinance. As the effective date approaches, we will provide updates dealing with the many traps and reporting difficulties created by the ordinance.

The U.S. Supreme Court unanimously ruled in Standard Fire Insurance Co. v. Knowles, 568 U.S. __, No. 11-1450, 2013 WL 1104735 (Mar. 19, 2013), that plaintiffs attempting to bring a class action lawsuit cannot escape federal jurisdiction by agreeing to seek less than $5 million in damages.

Last Friday, March 8th, the Department of Homeland Security, U.S. Citizenship and Immigration Services, adopted a new I-9 Form that must be used by all employers (and some other entities), starting no later than May 8, 2013—two months after the new requirement was published in the Federal Register.  A copy of the announcement can be found here.

On Tuesday, on remand from the U.S. Supreme Court, the Ninth Circuit held that the certification requirements set forth by the U.S. Supreme Court for a multimillion plaintiff gender discrimination class action in Dukes v. Wal-Mart Stores, 131 S. Ct. 2541 (2011), applied equally to a 200-person class of newspaper employees with wage and hour claims.     

A recent Washington Supreme Court case, Gandee v. LDL Freedom Enterprises, Inc., No. 87674-6 (Feb. 7, 2013), provides important insights into how Washington courts approach the enforceability of arbitration agreements in the wake of the U.S. Supreme Court’s seminal decision in AT&T Mobility v. Concepcion, 131 S. Ct. 1740 (2011).

In the waning days of 2012, the National Labor Relations Board (NLRB) issued several game-changing decisions that are important to all private sector employers—both union and nonunion.

Final implementing regulations for many provisions of the HITECH Act (Health Insurance Technology for Economic and Clinical Health Act) were issued by the Department of Health and Human Services recently, and will appear in the Federal Register on January 25, 2013. Informally referred to as the Omnibus Rule, the regulations address a number of changes to the HIPAA Privacy Rule, HIPAA Security Rule, HIPAA breach notification rule, HIPAA privacy and security enforcement provisions, Business Associate definition and agreement requirements, and the interaction between HIPAA and the Genetic Information Nondiscrimination Act.

Prior to the termination of her employment, Sakile Chenzira worked for more than a decade as a customer service representative at the Cincinnati Children's Hospital Medical Center (the Hospital).  In December 2010, the Hospital fired Chenzira because she refused to be vaccinated against the flu.

On January 1, 2013, all employers with employees in California who are paid by commission will be required to have written contracts with those employees.  This law is a significant departure from the previous law, which only required employers based outside of California to have written contracts with their commissioned employees.

On November 6, 2012, Washington state voters passed Initiative 502 (I-502), making it legal under state law for people in Washington to consume marijuana for recreational use. The intent of I-502 is to make the production and sale of marijuana a “tightly regulated, state-licensed system similar to that for controlling hard alcohol.”

On November 9, 2012, the U.S. Supreme Court agreed to consider the enforceability of a class action waiver clause in agreements between American Express and merchants that accepted its cards. The merchants filed a proposed class action suit against Amex, alleging that its “Honor All Cards” policy—which required stores to accept Amex’s charge cards as well as its credit cards—violated federal antitrust law.

Many businesses throughout the United States—and possibly worldwide—may experience the effects of the devastating superstorm that hit the Eastern United States on October 29 and 30, 2012.  Early estimation indicates that the storm caused upwards of $20 billion in property damage and another $10 billion to $30 billion in lost business.

The Washington Supreme Court has just issued its unanimous decision in the Washington State Nurses Association case.  The court concluded that when a full-time employee (working 40 hours a week) works through a paid rest break, the employee is entitled to overtime pay on top of his or her regular pay.

Whether “Corporate Social Responsibility” (CSR) is a new phrase to your company or is something you have observed and worked on for years, these are perilous times indeed for companies with large, complex, global supply chains.

The IRS has announced the Year 2013 cost-of-living adjustments for various provisions affecting employee benefit plans.

In early 2010, the IRS surprised the benefits community by stating in Notice 2010-6 that deferred compensation arrangements that condition payment on employee action (such as the execution of a release, noncompetition agreement or nonsolicitation agreement) violate the deferred compensation tax rules of Code Section 409A if the employee can accelerate or delay the year of payment.

On September 25, 2012, President Obama signed a groundbreaking Executive Order designed to strengthen protections against trafficking in persons in federal contracting.

Seattle's new "Sick and Safe Time" law goes into effect September 1, 2012.  It requires virtually all employers to provide a minimum amount of paid leave to employees who work in the City of Seattle, even occasionally.  The fact that the employer itself may be located outside the city does not matter—only the location where the employee works is relevant.

Determining whether a worker is an independent contractor or an employee is important for a number of reasons, including:  employee benefits, wage-and-hour laws, discrimination laws, payroll taxes and liability to third parties.  Historically, a number of different tests have been applied to distinguish between employees and independent contractors.  Recently the Washington Supreme Court held that the “economic realities” test used under the federal Fair Labor Standards Act also applies to cases brought under the Washington Minimum Wage Act.

The National Labor Relations Act ('the Act') is the federal law designed to protect employees engaged in union and other concerted activities.  But these protections do not just apply to unionized employees - they extend to virtually all private sector employees, unionized or not.  One of the rights the Act protects is an employee's right to discuss matters of common interest such as wages and working conditions.  An employer therefore commits an unfair labor practice if it prohibits or interferes with those discussions.

Responsible fiduciaries of ERISA defined contribution or defined benefit plans should have received fee disclosures from each of a plan's covered service providers by July 1, 2012, as required pursuant to the Department of Labor's final regulations under ERISA Section 408(b)(2) (the "408(b)(2) regulations").

A recent decision illustrates the dangers of even a modest wage-hour claim under Washington law.  A $12,000 overtime dispute turned into a bill for over $500,000 before the costs of appeal.  According to the decision, an employee was incorrectly classified as an "administrative" employee exempt from Washington's overtime requirements.  He was awarded $12,000 for his unpaid overtime.

Contributing editor

The U.S. Supreme Court's decision on the health care reform law has been subject to a lot of analysis already, but the bottom line is that all of the health care reform provisions that apply to group health plans and insurers that sell coverage to group health plans have been left standing and employers must make sure that their health plans comply.

Those working in today's in-house law departments or supervising global supply chains and third-party business partners have become sensitive to the significant dangers posed by not complying with the U.S. Foreign Corrupt Practices Act (“FCPA”).  The well-publicized recent events surrounding Wal-Mart's FCPA woes have only raised already-elevated anxiety levels.

In Christopher v. Smithkline Beecham Corp., the Supreme Court held that pharmaceutical sales representatives qualify as “outside salesmen” under the Fair Labor Standards Act (FLSA) and are thus exempt from FLSA’s overtime wage requirements. In doing so, the Court declined to defer to the Department of Labor's (DOL) position on the issue.

The IRS recently issued Notice 2012-40 providing guidance on the $2,500 limit on salary reduction contributions to health flexible spending arrangements (“health FSAs”) under cafeteria plans.  The $2,500 limit is a new requirement that was added by the Patient Protection and Affordable Care Act and many plan sponsors (especially those with non-calendar year plans) have had compliance questions.  The IRS Notice provides clarifications on several important points.

In a decision that represents more good news for employers doing business in California, the California Supreme Court recently held that employees may not recover attorneys' fees for meal and rest period claims.

The new employee poster requirement adopted by the National Labor Relations Board, that was scheduled to take effect on April 30, 2012, has been postponed by the Court of Appeals in Washington, D.C. pending consideration of an appeal from the decision of the lower court upholding the requirement.

The California Supreme Court has issued its much anticipated decision on meal and rest breaks, Brinker Restaurant Corp. v. Superior Court.

The Seattle Office for Civil Rights (SOCR) has issued proposed rules implementing the controversial paid sick/safe leave ordinance that the Seattle City Council passed last year.

A federal court in Washington, D.C., upheld the new rule adopted by the National Labor Relations Board that requires virtually all private sector employers to post large official notices informing employees of their rights under the National Labor Relations Act.

On February 15, 2012, the U.S. Department of Labor (DOL) issued a notice proposing regulations to implement amendments to the military leave provisions of the Family and Medical Leave Act (FMLA) made necessary by the passage of the National Defense Authorization Act for Fiscal Year 2010 and to implement the Airline Flight Crew Technical Corrections Act that established new FMLA leave eligibility requirements for airline flight crew members and flight attendants.

Employers that allow dependents to be covered under their health plans need to be aware of health care reform rules that may limit their ability to retroactively remove ineligible dependents from coverage.

The IRS recently issued Notice 2012-9, which provides clarifications and additional guidance on the new employer obligation, added by the health care reform law, to report on Form W-2 the cost of health coverage provided to employees.

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.

On December 21, 2011, the National Labor Relations Board (NLRB) announced new rules that will make it significantly easier for unions to win NLRB elections.

The Department of Health and Human Services has begun a pilot program of HIPAA privacy and security audits for health care providers and health plans, and the audits will have some very short turnaround times.

The National Labor Relations Board (NLRB) continues to find garden-variety employer policies to be unlawful because they restrict or interfere with employee rights protected by federal labor law.

The Washington Court of Appeals has just released its decision in Pellino v. Brink's Inc., concerning Washington's meal and rest breaks requirements.

California, standing alone, has the eighth largest economy in the world, with a gross state product of nearly $2 trillion in 2010. It is no surprise that the state is an irresistible market for many leading (and emerging) companies with significant workforce populations. But California is also one of the most perilous jurisdictions for employers, featuring a harsh, unforgiving and sometimes unexpectedly quirky regulatory environment, all enforced by a large population of zealous plaintiffs’ lawyers. Doing business in California can be perilous indeed.

Governor Brown recently signed several bills significantly impacting employers in California. These new laws were wide ranging and covered many diverse issues, including: limiting an employer’s use of consumer credit reports, barring discrimination on the basis of gender and sexual identity, imposing stiff penalties for employers who willfully misclassify employees as independent contractors, extending healthcare coverage to employees taking Pregnancy Disability Leave, and employment contract requirements for certain employees earning commission-based compensation.

In Neighborhood Alliance of Spokane County v. County of Spokane, the Washington Supreme Court clarified two topics previously unresolved in Washington: what constitutes an adequate search for records in response to a Public Records Act ("PRA") request and the scope of permissible discovery in PRA lawsuits. The Court held that a public entity must undertake a search “reasonably calculated to uncover all relevant documents,” and that discovery is permitted into any matter, not privileged, that is relevant to the subject matter of the lawsuit.

On August 30, the National Labor Relations Board NLRB published new rules that require virtually all private sector employers to post notices informing employees of their rights under the National Labor Relations Act—the federal law that protects employees who engage in union and other concerted activities.

On September 12, 2011, the Seattle City Council passed an ordinance (Council Bill No. 117216) requiring employers to provide paid “sick and safe” time off to employees who work in Seattle. Mayor Mike McGinn has indicated that he supports the ordinance. Assuming it is not vetoed, amended or voided through legal action, the ordinance will go into effect next year on September 1, 2012.

All of the tools and tricks you will use this holiday season to catch consumers' eyes and capture their dollars will likely involve intellectual property (IP) rights. New products (patents? copyrights?) with catchy names (trademarks?) and bright packaging (trade dress?) supported by huge advertising campaigns (more copyrights?) are distributed through new channels to attract new customers (trade secrets?). You've registered your trademarks and copyrights and thought about whether you have any patentable inventions. But your IP rights are implicated in many other areas of your business, especially during the holiday season.

A recent Washington Supreme Court decision, Bellevue School District v. E.S., held that neither the U.S. Constitution nor the Washington State Constitution requires a school district to provide an attorney to a student at an initial truancy hearing.

The U.S. Supreme Court issued its opinion in the long-awaited Wal-Mart v. Dukes decision yesterday. The Court's decision is good news for employers as it will make it more difficult for plaintiffs to pursue large class actions against employers.

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.

On March 22, 2011, the U.S. Supreme Court decided that an employee’s complaint alleging violations of the federal Fair Labor Standard Act ("FLSA") need not be in writing to count as “protected activity” for purposes of an FLSA retaliation claim; an oral complaint will suffice.  The court did not, however, decide the related question of whether complaints to private employers, as opposed to government agencies, constitute protected activity under the FLSA.  Kasten v. Saint-Gorbain Performance Plastics Corp., No. 09-834 (U.S. Mar. 22, 2011).

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.

On January 24, 2011, the U.S. Supreme Court unanimously held that a man who said he was fired because his fiancée filed a sex discrimination charge against their mutual employer could pursue his claim of retaliation under Title VII of the Civil Rights Act.  Thompson v. North American Stainless LP, No. 09-291 (U.S. Jan. 24, 2011).

Recent news reports that the National Labor Relations Board has accused an employer of violating federal labor law when it discharged an employee for bad-mouthing her boss on her Facebook page is a timely reminder that most employees have extensive protection under federal law, whether or not they are represented by a union.

Among the many tax issues implicated by separation arrangements are two relatively new developments that may require special attention when drafting offer letters, severance plans, release agreements, change in control arrangements and similar separation arrangements.  Employers should review their separation arrangements by year-end to address these new developments.

The Departments of Labor, Health and Human Services and Treasury (the "Departments") recently issued Interim Final Regulations (the "Regulations") on grandfathered health plans under the Patient Protection and Affordable Care Act ("PPACA").

President Obama signed the Patient Protection and Affordable Care Act ("PPACA") on March 23, 2010 and the Health Care and Education Reconciliation Act ("RA") on March 30, 2010 (together, the "Acts").

A federal district court in Michigan has held that certain supplemental unemployment compensation benefits (SUB pay) are not "wages" subject to Federal Insurance Contributions Act (FICA) taxation.

On December 10, 2009, the United States Court of Appeals for the Ninth Circuit decided the case of Greene v. Camreta, 588 F.3d 1011 (9th Cir. 2009) dealing with a child abuse investigative interview at a public school.  The case arose in Oregon, whose system is similar to Washington's.  The court determined that an interview at school of a suspected nine-year-old female victim of familial sexual abuse was a "seizure" under the Fourth Amendment, requiring probable cause and a prior court-issued warrant.   

Failing to comply with the rules of civil discovery can result in serious sanctions.  Washington’s Supreme Court recently emphasized just how serious when it upheld, in Magana v. Hyundai Motor America, an $8 million default judgment against Hyundai for violating the discovery rules.

A study by the American Management Association determined that 3% of companies reported medical testing for breast or colon cancer, 2% for sickle-cell anemia and 1% for Huntington’s disease—all of which can have genetic links. In addition, 15% of companies collected family medical histories, which can reveal genetic predispositions for some diseases. All of these practices may run afoul of provisions of the Genetic Information Nondiscrimination Act of 2008 (GINA), which is set to take effect on November 21, 2009.

The Holiday season this year carries with it not only high hopes for successful sales but the threat of widespread – and increasing – influenza outbreaks. Retailers are uniquely threatened by the flu: sales personnel are routinely exposed to hundreds of shoppers in close quarters, shaking hands, handling merchandize, and exchanging cash. But careful planning can help minimize the impact on your sales force.

Employers are learning the hard way that gaining access to private employee information during workplace investigations can lead to lawsuits, liability and headaches.

On October 1, 2009, the Federal Circuit issued an opinion in Stanford v. Roche, Case Nos. 2008-1509, 2008-1510. One section addresses the interpretation of a patent assignment clause to determine whether it creates an automatic assignment or merely an obligation to assign.

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.

In recent years there has been an upsurge in the number of stockholder derivative lawsuits. This type of lawsuit differs fundamentally from a securities class action.

Perkins Coie sponsored the IAM Live: Trade Secrets Strategy USA, which brought together leading experts, including private practice and in-house counsel, to provide actionable insights into the identification, management, valuation, enforcement, and monetization of trade secrets.

This year’s agenda includes presentations on the Federal Trade Commission’s controversial proposed ban on noncompete agreements and a panel presentation featuring noteworthy speakers addressing workplace violence.

On Thursday, March 9, 2023, Perkins Coie hosted a highly interactive CLE webinar designed by seasoned practitioners who will share best practices and their experiences investigating cases of workplace violence, sexual and racial trauma, and other instances of power-based harm.

The speakers identified some best practice steps employers should take before implementing a RIF.

Multidisciplinary panel of lawyers from Perkins Coie’s White Collar & Investigations, Privacy & Security, Labor & Employment, and Corporate & Securities practices discussed recent changes to the DOJ corporate criminal enforcement policies and their impact on business organizations and their compliance operations.

A half-day, virtual employment law workshop, which covered a variety of topics, including an update on seminal federal and state employment law developments including in the areas of wage-and-hour law and the gig economy, family and medical leave and accommodations, arbitration and confidentiality in employment agreements, and other trends employers should watch in 2022.

This 90-minute presentation covered a variety of critical federal and Washington State legislative, regulatory, and case developments in employment law.

Half-day virtual employment law workshop that includes topics on: COVID-19 vaccination requirements and return-to-work considerations; the current National Labor Relations Board and what to expect regarding union activity during the new administration; and an update on key developments in federal and certain state employment laws.

A half-day, virtual employment law workshop, which will cover a variety of topics, including diversity and inclusion in the workplace, navigating sensitivities around political law issues, key considerations for remote working, and recent employment law changes all business owners should know.

AI has the power to reduce or heighten unlawful discrimination in hiring and other employment practices.

On this webinar we delved into the complicated legal issues surrounding COVID-19 testing in the workplace. As companies consider on-site testing as one tool to safeguard their employees and customers from COVID-19 risks, a variety of legal risks need to be addressed.

This webinar discussed the many matters that businesses in Oregon are addressing as a result of the COVID-19 pandemic. Our attorneys provided answers to questions we have been receiving from our clients.

Leading during a health pandemic requires strength, vision, and an ability to look around corners. Join us for a two-part webinar series that will highlight a variety of risks and opportunities that company leaders should be aware of as we navigate through major business changes.

Join us for a timely webinar that will address key considerations for businesses exploring the financing opportunities made available under the CARES Act. 

As U.S. officials encourage Americans and American companies to prepare for, and as some companies are already dealing with significant disruptions to their daily routines, employers need to keep in mind the current state of applicable employment laws when implementing a response.

Join Perkins Coie’s California Labor & Employment attorneys for a webinar that will provide insight into the new laws governing arbitration agreements and contractors in California effective January 1, 2020.

Our workshop covered a variety of employment law topics.

Our one-hour program will cover topics on Washington’s Paid Sick Leave Law, upcoming supreme court cases, wage and hour law updates and Washington’s new pregnancy accommodation law.

Our workshop will cover a variety of critical employment law issues.

One-hour seminar covering a variety of critical employment law issues including,Washington’s paid sick leave law (Initiative 1433),Washington’s new pregnancy accommodation law, implications of the Trump administration for NLRB and EEOC enforcement and wage and hour law updates.

Our annual employment law workshop covered multiple topics.

One-hour seminar discussing some of the latest developments in labor and employment law including potential impacts of the 2016 general election, Department of Labor Overtime Exempt Rule, Seattle Secure Scheduling Ordinance, updated EEOC guidance and rules, arbitration agreements and class action waivers, and recent NLRB decisions.

Discussion of recent developments in federal and state employment legislation and case law, noncompete agreements and protecting proprietary information, and discipline and discharge of employees.

Topics discussed include recent NLRB rulings, guidelines for employee handbooks, wage and hour and leave and accommodation issues and a general update on the latest employment law developments.

Discussion of compliance with the Affordable Care Act, the impact of the Supreme Court’s same-sex marriage decision on employer-sponsored health plans, developments in claims for wrongful discharge in violation of public policy, issues regarding unpaid interns, and what recent legal and legislative developments in Washington mean for employers.