Hunton Employment & Labor Perspectives

New York Governor Kathy Hochul has signed S.B. 4394, an amendment of Section 740 to the New York Labor Law that dramatically expands safeguards against employer whistleblower retaliation. The new law expands protected activity that entitles an employee to whistleblower protection, the categories of covered workers protected by the statute, and the definition of prohibited retaliatory actions, among other changes.  The new law takes effect on January 26, 2022. Some of the key provisions that New York employers should carefully review are listed below.

On November 10, 2021, three federal agencies tasked with enforcing workplace laws announced a joint initiative to combat retaliation in the workplace.  As a refresher, the EEOC protects a worker’s right under Title VII and other non-discrimination laws to enjoy a workplace free from harassment and discrimination.  The DOL enforces federal labor standards per the Fair Labor Standards Act, as well as health and safety regulations through OSHA.  The NLRB generally protects a worker’s right to organize to improve working conditions, among other rights guaranteed by National Labor Relations Act.

On November 10, 2021, National Labor Relations Board (“NLRB”) General Counsel Jennifer Abruzzo issued a memorandum outlining employers’ bargaining obligations with respect to compliance with OSHA’s Emergency Temporary Standard to Protect Workers from Coronavirus (“ETS”).

A California appellate court recently upended a representative PAGA and class action settlement because the named plaintiff did not exhaust administrative remedies under PAGA because he failed to identify each separate theory of liability.

Employers with 100 or more employees must implement mandatory vaccination policies by early December under the Emergency Temporary Standard released by OSHA.

Last week, the EEOC issued new guidance on how to apply anti-discrimination laws to an applicant or employee’s request for a religious exemption from an employer’s COVID-19 vaccination requirement.

Federal contractors can make their own determinations on vaccination exemptions and do not need to terminate employees who refuse vaccination, according to new guidance from the Biden Administration.

In December of 2020, the DOL under President Trump issued a final rule dispensing with the longstanding “80/20” tip credit rule—whereby an employer was only required to pay a tipped-employee the full minimum wage rate for non-tip producing work if the employee spent in excess of 20% of their workweek performing such work. In early 2021, the DOL under President Biden delayed the effective date of the Trump-era rule (initially until April 30, 2021, then again until December 31, 2021).

On October 11, 2021, Governor of Texas, Greg Abbott, issued Executive Order GA-40, which proscribes entities from compelling individuals to receive the COVID-19 vaccine who object “for any reason of personal conscience, based on a religious belief, or for medical reasons, including prior recovery from COVID-19.” Offending entities can be fined up to $1,000 for failing to comply with this order.

A critical ruling in the world of franchising, in Haitayan v. 7-Eleven, Inc., 2021 WL 4078727 (C.D. Cal. Sept. 8, 2021), the U.S. District Court for the Central District of California applied the so-called Borello test to find that franchisees were independent contractors, instead of employees, for purposes of their claims for unpaid business expense reimbursements under California’s Labor Code section 2802.