The Employment Brief | Employment Law | Kollman & Saucier, P.A.

New York Passes Bill To Become Fifth State to Ban Non-Compete Agreements

Kollman & Saucier

06/23/2023

This week, the New York legislature passed NY State Senate Bill 3100A to modify New York’s Labor Law to effectively bar non-compete agreements. The Bill’s effective date is 30 days after Governor Hochul’s signature, and will only apply prospectively to agreements signed, or effective, after the date the bill becomes law. The bill bars non-compete agreements in total, except in two circumstances: Non-disclosure agreements that protect trade...

Kollman & Saucier

06/16/2023

Independent Contractors, Labor Law

The National Labor Relations Board (NLRB) has revisited the standard under the National Labor Relations Act for determining whether a worker is an independent contractor. The Atlanta Opera, Case 10-RC-276292 (NLRB June 13, 2023). First, a little background. In its 2019 SuperShuttle DFW decision, the Board made it easier for companies to establish that their workers are independent contractors (rather than employees) by clarifying and emphasizing...

Kollman & Saucier

06/14/2023

Employment Discrimination, Hostile Work Environment, Sexual Harassment

Can an employer be liable for workplace harassment resulting from music with sexually graphic lyrics when both women and men find the music offensive? Last week, the Ninth Circuit Court of Appeals answered that question with a resounding “yes.” Sharp v. S&S Activewear, L.L.C., No. 21-17138 (9th Cir. June 7, 2023). The court had little trouble reversing the trial court’s decision that because employees of both sexes found the music...

Kollman & Saucier

06/08/2023

FMLA, PUMP for Nursing Mothers Act, Workplace Postings

The DOL has revised its Family and Medical Leave Act (FMLA) and the Fair Labor Standards Act (FLSA) posters. Employers will need to update these postings to remain in compliance with their obligations under these laws. FMLA Poster. Employers who are covered by the FMLA (i.e., private employers with 50 or more employees within a 75-mile radius, as well as public agencies regardless of employee count) are required to display the DOL poster that...

Kollman & Saucier

06/06/2023

PUMP for Nursing Mothers Act

In this third blog post on the PUMP Act (my earlier posts can be read here), I share the key takeaways from the Department of Labor's (DOL) recently released Field Assistance Bulletin that provides additional clarification on how this new law is to be applied. As a reminder, the PUMP Act (the Act) expands lactation protections for nursing mothers under the Fair Labor Standards Act, in that employers are required to provide nursing mothers with a...

Peter Saucier

06/01/2023

Supreme Court Decisions, Union Activity

Decades ago, the Supreme Court interpreted the National Labor Relations Act to afford unions and strikers special immunity from state court liability for damages resulting from a strike. Named after a 1959 Supreme Court decision, that so-called Garmon exemption doctrine, in the words of the Supreme Court, “tells us not just what law applies (federal law, not state law) but who applies it (the National Labor Relations Board, not the state courts or...

Kollman & Saucier

06/01/2023

Drug Testing, Medical/Legal Marijuana, State Law

In January 2022, Eric Zanetich applied for a job in Walmart’s Asset Protection Department. He was offered the job subject to submitting to and passing a drug test. Zanetich alleged that Walmart’s Drug & Alcohol Policy stated, “any applicant or associate who tests positive for illegal drug use may be ineligible for employment.” Zanetich took a drug test. He tested positive for marijuana, and the job offer was rescinded. Zanetich...

Kollman & Saucier

05/31/2023

NLRB, Restrictive Covenants

First confidentiality and non-disparagement provisions in severance agreements were declared unlawful, and now Jennifer Abruzzo, General Counsel for the National Labor Relations Board, has taken the same view of most non-compete agreements. On May 30, 2023, the General Counsel issued an advisory memo detailing her view that non-compete provisions in employment contracts “interfere with employees’ exercise of rights under Section 7 of the...

Darrell VanDeusen

05/26/2023

Employment Discrimination, Race Discrimination, Wrongful Discharge

You may recall an event in Central Park in mid-2020 that involved a woman who called the police when she encountered a birdwatcher. The birdwatcher was Black. The woman was white. Video of the incident went viral. I’ll spare you the link, but it’s still available (isn’t everything) with a quick search of “Central Park Karen,” as the incident became known. Amy Cooper was walking with her dog off leash in the Bramble, which is...

Vincent Jackson

05/23/2023

Artificial Intelligence, EEOC, Hiring Process

On May 18, 2023, the EEOC released a technical assistance document, “Assessing Adverse Impact in Software, Algorithms, and Artificial Intelligence Used in Employment Selection Procedures Under Title VII of the Civil Rights Act of 1964.” This document offers advice on the use of algorithmic decision-making tools that employers are more often using for recruitment, promotion and firing. The document also attempts to distinguish between...

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Email Updates

New York Passes Bill To Become Fifth State to Ban Non-Compete Agreements

NLRB Clarifies (Again) NLRA Independent Contractor Test

Harassment Claim Based On Offensive Music Given New Life

DOL Releases Revised Mandatory FMLA and FLSA Posters

More DOL Guidance On The PUMP Act

Union Misconduct During A Strike May Result In State Court Liability

The New Jersey Law Legalizing Recreational Marijuana Use Does Not Permit Workers To Sue Their Employers For Job Discrimination

NLRB General Counsel Says Non-Competes Usually Violate The NLRA

The Difference Between Race and Racism

EEOC Releases Advice on Artificial Intelligence and Title VII

Email Updates