Ogletree Deakins

Quick Hits As Election Day—Tuesday, November 5, 2024—draws near, employers are considering their leave obligations. Various state, local, and municipal election-related laws have implications for multistate employers’ compliance plans. Notice posting and political speech laws also have implications for employers’ compliance plans. Leave Obligations There are three key issues employers may need to address when considering voting and election leave—posting notices, types of leave, and requests for leave. Posted Notices…

Quick Hits On November 1 and November 2, Mexico celebrates Día de Muertos, but this festivity is not considered under the FLL as a mandatory holiday. Under certain circumstances, November 1 and/or November 2 can be deemed as mandatory rest days. Día de Muertos Is Not a Mandatory Holiday As mentioned above, November 1 and/or November 2 are not established in Article 74 of the FLL as mandatory holidays that…

Quick Hits Key steps for managing a data breach incident include understanding what constitutes an incident, applying the organization’s framework and policies, and effectively communicating with the organization’s privacy officer and employees. Additional measures include promptly and proactively managing data breaches and reviewing and updating policies. The effectiveness of HR’s response to a breach of employee data can greatly influence employees’ confidence in the organization’s commitment to data privacy. 1.…

Quick Hits The November 2024 Visa Bulletin shows no change from last month’s bulletin for employment-based categories for both final action dates and dates for filing, except for fourth preference for Certain Religious Workers. USCIS will honor dates for filing for I-485 Adjustment of Status applications filed in November 2024. USCIS recently confirmed that the annual limit for fiscal year (FY) 2025 will be higher than pre-pandemic numbers but lower…

Quick Hits The Maryland Department of Labor released FAQs regarding the state’s Wage Range Transparency Act, which took effect on October 1, 2024. The law applies to remote jobs for companies headquartered elsewhere if the employer seeks workers based in Maryland. Employers that do not handle their own job postings are still required to comply with the law. This article outlines some of the key points concerning the act for…

Quick Hits Effective October 10, 2024, private employers must comply with the county’s Fair Chance Ordinance, which restricts the timing and use of criminal history in employment decisions. The ordinance applies to positions that involve performing at least two hours of work on average each week within the unincorporated areas of the county. Employers may not inquire about an applicant’s criminal history before making a conditional job offer, and must…

Quick Hits Certain requirements of the amended NYDFS cybersecurity regulations will take effect on November 1, 2024. Covered entities may need to update their policies and procedures, including with respect to corporate governance, encryption, incident response and business continuity plans, system testing, and employee training. On March 1, 2017, the NYDFS enacted comprehensive cybersecurity regulations for financial services companies and other covered entities. The cybersecurity regulations were most recently amended…

Construction contractors undergoing compliance reviews after October 1, 2024, will be required to comply with expanded initial data and document requests contained in the revised letter. Contractors on a recent Corporate Scheduling Announcement List (CSAL)—a courtesy notification from OFCCP listing contractors selected for compliance evaluation—that have not yet been scheduled for compliance reviews may want to ensure they can produce the information requested. Quick Hits The letter imposes additional data…

Quick Hits The UK’s electronic travel authorisation (ETA) will soon apply to all nationals who do not currently require a visa to travel to the UK and who do not hold any other UK immigration status. From 27 November 2024, the scheme will initially be applicable to a number of non-European travellers, including those from the United States, Singapore, and Canada. On 5 March 2025, ETAs will be rolled out…

Quick Hits Five critical areas HR may want to assess for potential risks related to data breaches include inadequate privacy frameworks, training for employees regarding their data privacy duties, data flowing out of the organization, internal data transfers, and key employee life cycle moments. Even organizations with established policies may struggle with their implementation and enforcement. Well-designed training programs, including refresher courses, can help clarify employees’ data privacy and security…

Quick Hits The Equality and Human Rights Commission (EHRC) published technical guidance for employers on 26 September 2024, after a short consultation on a draft version earlier this year. Alongside the full guidance, the EHRC produced the Employer 8-step guide: Preventing sexual harassment at work. Under the act, employers will be held accountable for addressing sexual harassment after it occurs and for proactively mitigating the risk of such conduct occurring.…

Quick Hits A Pennsylvania company dropped its lawsuit challenging the FTC’s noncompete rule after a judge refused to enjoin it. The move leaves the fate of the rule to litigation stemming from Florida and Texas federal courts that have ruled against it. The rule is currently enjoined nationwide based on the Texas court’s order. The FTC’s noncompete rule would effectively ban all noncompete agreements between employers and employees. On October…

AccessDefinition: The ability and means to communicate with or otherwise interact with a system, to use system resources to handle information, to gain knowledge of the information the system contains, or to control system components and functions.Air GapDefinition: To physically separate or isolate a system from other systems or networks (verb).AnonymizersDefinition: An anonymous proxy is a tool that attempts to make activity on the Internet untraceable [by making data anonymous…

Quick Hits Contracts for freelance work of $250 or more must be in writing and contain certain specific information regarding services to be provided and dates for contract completion, among other things. Payment for freelance work must be made on time or within thirty days after the completion of the work if no due date is specified in the contract. The FWPA prohibits discrimination or adverse action against freelance workers…

Quick Hits Newly enacted AB 2499 expands the FEHA by making it unlawful to discriminate or retaliate against an employee for taking time off from work for jury duty or to comply with a subpoena or other court order as a witness in a judicial proceeding, or, if the employee is a victim (i.e., an individual against whom a “qualifying act of violence” has been committed) or has a family…

The first article in this series provided a general overview of the OSH Act and OSHA; the second article examined OSHA’s rulemaking process; the third article reviewed an employer’s duty to comply with standards; the fourth article discussed the general duty clause; the fifth article addressed OSHA’s recordkeeping requirements; the sixth article covered employees’ and employers’ respective rights; the seventh article addressed whistleblower issues; and the eighth article covered the…

Quick Hits The Washington Court of Appeals affirmed a lower court’s decision requiring a hospital to compensate employees for missed meal periods, not only with the time worked but also with an additional thirty minutes of pay per missed break, as a remedy for depriving them of their statutory break rights. The ruling emphasizes the importance of employers in Washington adhering to statutory obligations regarding breaks during meal and rest…

Quick Hits A Supreme Court of Korea opinion provides employers with useful insights into just cause for dismissing an employee based on poor performance. The court found that a former employee, who had been with the employer for more than twenty-five years, had received poor performance reviews for more than ten years before being dismissed, and had failed to meet the requirements of a performance improvement plan seven out of…

Quick Hits The bill would have required developers of large AI models made available to the public to take specific steps to ensure that they did not cause critical harm. It would have imposed employment protections for developers’ employees who blew the whistle about potential dangers. The legislation was one of several AI bills presented to the governor during the year’s regular legislative session as California looks to be a…

Quick Hits Governor Newsom recently signed into law legislation directing the California Occupational Safety and Health Standards Board, by March 1, 2027, to amend existing standards to require hospitals to implement weapons detection screening policies. The standards will also require hospitals to implement policies addressing personnel education and training, alternative search and screening protocols, response protocols for detected weapons, and public notification. Newly enacted Assembly Bill (AB) No. 2975 requires…

Quick Hits The FTC is appealing a Florida federal court’s preliminary injunction blocking its noncompete ban. The appeal comes after a Texas federal court, in a separate case, blocked the FTC’s rule on a nationwide basis, while a Pennsylvania federal court has backed the rule. The FTC’s final rule, published in May 2024, would effectively ban all noncompete agreements between employers and employees. On September 24, 2024, the FTC filed…

Quick Hits Employers have legitimate and substantial business interests in restricting employee use of recording devices in the workplace to protect privacy and trade secrets. Employers may want to consider policies that prohibit or restrict making recordings in the workplace. Such policies may need to account for potential issues under the NLRA and may need to include exceptions for recording conversations as part of protected activity and be narrowly tailored…

Quick Hits Missouri voters will vote this year on whether employers will be required to provide earned paid sick time (PST) to eligible employees. PST would accrue at a rate of one hour for every thirty hours worked; it would begin accruing for existing employees on May 1, 2025, or the first day of employment for employees hired after that date. Employers with fifteen or more employees maylimit an employee’s…

Quick Hits Tropical Storm Helene is expected to make landfall in Florida as a major hurricane as early as September 26, 2024. Governor Ron DeSantis has declared a state of emergency for sixty-one counties across the state. Employers may want to consider their obligations to protect workers and maintain a safe workplace and begin preparations for the hurricane response. After developing over the Caribbean, Tropical Storm Helene is expected to…

Quick Hits The Michigan Supreme Court issued an order mandating specific wage increases and gradually eliminating the tip credit by 2030. The new wage and tip credit adjustments take effect on February 21, 2025. The Michigan Legislature has introduced a bill that, if enacted, will scale back the scheduled wage increases while preserving the tip credit. In its September 18, 2024, order in Mothering Justice v. Attorney General, the Michigan…

Quick Hits Effective September 22, 2024, Law 25 provides employees and consumers in Québec in both the public and private sectors with the right to data portability. The purpose of this new right is to allow individuals to access their data and transfer it to another legally authorized organization of their choice. Private businesses have thirty days to respond to requests, and private-sector entities have twenty days, with a possible…

Quick Hits If Governor Newsom signs SB 1100, FEHA will prohibit employers from requiring job applicants to have a driver’s license, with limited exceptions. California already makes it a violation for an employer or other entity to discriminate against individuals with driver’s licenses issued to undocumented workers. SB 1100 would amend FEHA by adding Section 129454.8 to the California Government Code to prohibit an employer from including in “a job…

Quick Hits In 2018, in-store sales consultants, who are predominantly female, argued that their work was of equal value to Next’s predominantly male warehouse-based workers. Next argued that the difference in pay rates was in response to market forces driven by the wider labour market. The Employment Tribunal ruled that a number of the differences in pay could not be justified. The total amount payable to the claimants by Next…

Quick Hits Crafting effective multistate separation agreements can be challenging for employers amid an increasing number of state-specific requirements and restrictions. Employers may want to consider updating their template release agreements, confirming their agreements state sufficient and proper consideration for employees to release claims, and whether their separation agreements properly incorporate any desired restrictive covenants, arbitration agreements, or other agreements. While crafting effective separation agreements is a common issue for…

Quick Hits January 1, 2025, is the start date for payroll withholdings and submission of quarterly wage reports under the Maine Paid Family and Medical Leave Program. Employers may not apply for private plan substitutions until after April 1, 2025, and will be responsible for payroll contributions until their plans are approved. Employers with fifteen or more employees must contribute 1 percent of wages and may deduct up to half…

Quick Hits New Jersey’s labor department released responses to comments on its proposed TWBR regulations published last year. Following a review of the comments, the regulations appear to be moving forward without substantial changes. The final regulations are expected to be adopted and published on September 16, 2024. On August 21, 2024, the New Jersey Department of Labor and Workforce Development’s (NJDOL) Division of Wage and Hour Compliance issued its…

Quick Hits Germany’s Federal Labor Court held that posting a termination letter in a mailbox constitutes receipt as soon as the subsequent removal is expected, which the court said would be the day of posting. Employers that use registered mail for delivering employment termination notices may want to obtain proof of delivery immediately and routinely. Personal delivery, accompanied by thorough documentation of the entire process, provides greater legal certainty. Receipt…

Quick Hits The First Amendment generally applies to governmental actors, but private employers still must comply with the NLRA, which protects employees’ right to engage in concerted activity related to their working conditions. Several states, including California, Connecticut, Colorado, and New York, provide additional protections for speech, off-duty conduct, and political affiliations and beliefs for private-sector employees. Employer strategies for maintaining positive, productive workplaces include developing and updating workplace speech…

Quick Hits In answering a question certified from the U.S. Court of Appeals for the First Circuit, the Massachusetts Supreme Judicial Court held that under Massachusetts law, certain business-to-business relationships in which franchisees have chosen to operate their independent businesses using a business format franchise, the franchisees are not employees of the franchisor. In so holding, the court determined that the plaintiff franchisees at issue were not employees because they…

Quick Hits A recent decision from the NLRB found that consent orders undermine the NLRB general counsel’s prosecutorial authority and fail to facilitate a mutual resolution of labor disputes. For now, the NLRB will no longer accept consent orders, which are settlement terms unilaterally proposed by a respondent (typically an employer) without the consent of the general counsel or the charging party. Moving forward, only bilateral settlement agreements may be…

Quick Hits The right to switch off would give workers the right to not have to engage with work correspondence (including emails, phone calls, and work-based messaging services) outside their contracted working hours. This right is intended to give “workers and employers the opportunity to have constructive conversations and work together on bespoke workplace policies or contractual terms that benefit both parties.” How will the right to “switch off” operate?…

Quick Hits On September 4, 2024, Governor Kathy Hochul signed into law the New York Retail Worker Safety Act, a comprehensive measure intended to increase worker safety and address the hazard of workplace violence in retail settings. The act, which applies to retail employers with at least ten employees and requires, among other things, assessments of potential workplace violence hazards, adoption of written workplace violence prevention policies, and workplace violence…

Quick Hits California’s SB 399 would limit an employer’s ability to communicate with employees regarding political or religious matters during mandatory meetings. The bill’s definition of “political matters” includes matters relating to union organizing. The act provides employees with a private right of action that includes punitive damages. If signed by the governor, SB 399 would limit an employer’s ability to communicate with employees regarding political or religious matters during…

Quick Hits A federal district court in New Jersey denied a motion to partially enjoin the New Jersey Temporary Workers Bill of Rights, which seeks to equalize pay for temporary workers to that of permanent workers. The court ruled that while the plaintiffs have the potential to ultimately succeed on the merits of their ERISA preemption argument, on the current record, they failed to show a likelihood of success on…

Some laid-off workers are becoming social media influencers, telling their layoff stories to thousands of followers and outsiders. Former employees generally are not prohibited from criticizing their former employer on social media if their comments are true and not defamatory. To protect their brand and public image, companies can offer severance agreements, including nondisparagement clauses, to laid-off workers. Hundreds of thousands of employees were laid off in 2023, especially in…