Welcome to this month’s edition of the Bubbler! Now that fall is fast approaching we’re refreshing your memory of some key recent developments as we head into the new season:

Continue Reading The Bubbler – September 2018

Adherence to the COBRA health care continuation rules is not always high on an employer’s list of priorities. Compliance is often “outsourced,” and even when handled “in-house,” it rarely consumes much attention. A recent case, Hager v. DBG Partners, Inc., illustrates that inattention can be costly for employers. This post explains why. Continue Reading Avoiding Unexpected Liability for Former Employees’ Medical Expenses

Now that Labor Day is behind us, we are looking ahead to the various compliance deadlines facing New York State and New York City employers this fall. As a reminder, beginning tomorrow, September 6, 2018, all New York City employers are required to display the anti-sexual harassment rights and responsibilities poster developed by the New York City Commission on Human Rights in both English and Spanish, and distribute a sexual harassment fact sheet to individual employees at the time of hire.

This requirement is codified in Local Law 95, which is part of the Stop Sexual Harassment in NYC Act. The notice and the fact sheet explain that sexual harassment and retaliation are prohibited under the NYC Human Rights Law, provide examples of harassment, and include contact information for reporting complaints to the NYC Commission on Human Rights, the New York State Division of Human Rights, and the U.S. Equal Opportunity Commission. You can read our more extensive coverage of these legislative developments and their corresponding requirements here and our update on the newly-released draft New York State guidance on sexual harassment policies and training here.

We will continue to update this blog as additional information becomes available and to remind you of upcoming compliance deadlines.

In the meantime, we strongly urge you to be proactive in meeting the upcoming compliance deadlines, and of course, our employment attorneys are standing by ready to assist you in those efforts.

In our sister blog, ADR: Advice from the Trenches, Gil Samberg explains the Sixth Circuit’s ruling, applying the Supreme Court’s reasoning in the recent Epic Systems case, that the “collective action” provision of the FLSA does not render a collective action waiver in an arbitration agreement unenforceable.  This decision — while it only applies to states in the Sixth Circuit (Kentucky, Michigan, Ohio, and Tennessee) — seemed to be the obvious extension of Epic Systems and demonstrates that courts are loathe to read federal statues as forbidding arbitration unless they clearly express an intent to do so.  As the Sixth Circuit noted, the FLSA’s collective action provision “gives employees the option to bring their claims together,” but it “does not require employees to vindicate their rights in a collective action.”  While it remains to be seen how other federal appeals courts will rule on this issue, employers can probably rest assured that their agreements mandating bilateral arbitration of wage disputes won’t be tossed out anytime soon.

The New York State Department of Labor (DOL), in consultation with the New York State Division of Human Rights (DHR), has released drafts of its model sexual harassment prevention policy, complaint form, and harassment prevention training program. In addition to releasing these proposed materials, the DOL has also released a FAQ document and documents setting forth the minimum requirements for sexual harassment prevention policies and training programs. The draft templates are open for public comment until September 12, 2018, after which the DOL will review comments, make any revisions it deems necessary, and release final versions of these materials. This release comes as the October 9, 2018 deadline for compliance approaches and as part of a comprehensive sexual harassment law passed earlier this year which we wrote about extensively here. We highlight some important takeaways from the newly-released materials below.

Continue Reading New York State Department of Labor Releases Draft Sexual Harassment Prevention Materials

The #MeToo movement has galloped through both private industry and the public sector leaving many accused of wrongdoing, but with no clear process to confirm whether the accusations are true. The consequences of this collective rush to judgment by employees and employers alike — from social ostracism to loss of employment — can be severe.

Continue Reading #MeToo and the Need for an Investigative Process

Earlier this year, we wrote about the sweeping legislative changes enacted by New York State and New York City aimed at preventing workplace sexual harassment in the wake of #MeToo.

Now, the NYC Commission on Human Rights has released guidance on the new city law, including its notice of employee rights and employee fact sheet. Beginning on September 6, 2018, all NYC employers will be required to:

  • Post the notice of employee rights in a conspicuous location in their workplace. The notice must be posted in English and Spanish; and
  • Distribute the employee fact sheet to all new hires. Unlike the notice of rights, there is no requirement to distribute the fact sheet in any language other than English, but it will be made available in Spanish and other languages the Commission deems appropriate.

Continue Reading NYC #MeToo Update: Sexual Harassment Poster and Employee Fact Sheet Just Released

Non-compete reform has come to Massachusetts, with wide-ranging legal and practical implications for any employers with workers in Massachusetts. Employers have just six weeks to consider and adopt a new approach to non-compete agreements for their workforces. The new law, which becomes effective on October 1, 2018, comes after many years of debate and dramatically shifts the restrictive covenant legal landscape in the Commonwealth.

While employers will still be able to utilize non-compete agreements for most workers, the law necessitates a new approach to drafting, implementing, and enforcing these agreements. This post summarizes the new law, identifies employer action items, and raises several issues that will emanate from this reform.

Brief Summary of the New Law:

The key takeaways of the law are as follows:

  • Non-compete agreements will be more expensive to utilize. Employers must offer the employee paid “garden leave” for the length of the restricted period of at least 50% of the employee’s highest base salary during the prior two (2) years (or some “other mutually-agreed upon consideration,” which the agreement must specify);
  • Employers cannot require all employees to sign non-compete agreements. The law prohibits employers from requiring certain categories of workers, including non-exempt employees, to enter into non-compete agreements;
  • Non-compete agreements may be void depending on the reason for separation. Employers cannot enforce non-compete restrictions against employees who have been terminated without cause or laid off, except when included as part of a separation agreement;
  • The new law only applies to agreements entered into on or after October 1, 2018. Older agreements are not voided, but employers should consider revisiting the current agreements in place. We address this issue further below;
  • Continued employment is no longer sufficient consideration. Employers must provide fair and reasonable consideration to support non-compete agreements signed after employment has commenced;
  • The non-compete agreement must be reasonably tailored. A non-compete agreement must: (i) be limited to a maximum one (1) year non-compete period (subject to a limited exception discussed further below); (ii) protect statutorily covered employer interests (i.e. trade secrets); and (iii) cover a geographical scope that is reasonable in relation to the employer’s protectable interests;
  • The new law applies to employees and independent contractors alike. The new law specifically defines employee to include contractors and will also require employers to retool those agreements to the extent they include non-compete provisions; and
  • The law does not apply to all agreements with restrictive covenants. The law does not cover non-solicitation agreements, non-disclosure agreements, and separation agreements (among others discussed below), which means that these agreements will continue to be analyzed under the common law, but now against the backdrop of the new public policy on non-compete restrictions.

Taken together, while many of the law’s provisions reflect best practices for enforceable non-compete agreements, several of the requirements – particularly around the requisite consideration supporting non-compete agreements – will now require employers to evaluate their overall non-compete strategy, update their non-compete agreements, and adjust their human resources processes to ensure compliance with the law.

Below we explore the law in greater detail and highlight the practical and legal implications for employers.

Continue Reading New Massachusetts Non-Compete Law Goes Into Effect October 1, 2018

We want to dedicate our August Bubbler feature to our readers, who have helped Mintz’s blog achieve such an august reputation. This month’s namesake (Emperor Caesar Augustus) would have been proud to see all of the activity out of the Empire State recently, as New York City’s Office of Labor Policy & Standards recently released guidance on the new Temporary Schedule Change Law. The schedule change law was one of a number of laws passed in New York recently aimed at accommodating employees’ personal obligations and improving work-life balance. The newly-released guidance is likely to intensify employer concerns, but with the law now in effect employers must work (once again) to update their policies, procedures and practices.

Continue Reading The Bubbler – August 2018

Employers in Massachusetts are watching closely as a non-compete bill was recently passed by the Legislature and is now on Governor Baker’s desk. Currently slated to take effect on October 1, 2018, the law will significantly impact the drafting, implementation and enforcement of non-compete agreements in the Commonwealth. Governor Baker is expected to sign the bill into law, but before doing so, he may amend and send the bill back to the Legislature to be voted on again.

Continue Reading Massachusetts Non-Compete Legislation Awaiting Governor Baker’s Signature