Blog Archives

California Raises the Bar on Pay Equity

The California legislature has presented S.B. 1162 (“the Bill”) to Governor Gavin Newsom. If the Governor signs the Bill into law, California will follow the lead of jurisdictions like Colorado and New York City by requiring many employers to include pay scales in job postings. The Bill would also impose pay equity reporting requirements, not just on large employers obligated to do so under federal law, but on any private employer with 100 or more employees, including those whose “employees” are hired through labor contractors. Those reports will also have to include breakdowns of aggregate data not previously collected.

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Time Is Money: A Quick Wage-Hour Tip on … Determining and Changing Workweeks

work·week | ˈwərk-ˌwēk

noun

Perhaps one of the most important terms of art under the Fair Labor Standards Act (“FLSA”), an employer’s designated workweek impacts nearly every aspect of an employee’s pay – from minimum wage and overtime to application of most exemptions. Let’s break down this concept.

What is a workweek?

The FLSA regulations define workweek as “a fixed and regularly recurring period of 168 hours – seven consecutive 24-hour periods.” Contrary to popular belief, a workweek need not coincide with a calendar week, nor must it align with an employer’s hours of operation. Instead, it can begin on any day and at any hour of the day. However, the key is that once a workweek is determined, it must remain fixed regardless of the employees’ hours worked with limited exception.

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No More Exceptions: What to Do When the California Privacy Exemptions for Employee, Applicant and B2B Data Expire on January 1, 2023

California’s Consumer Privacy Act (CCPA) and the California Privacy Rights Act (CPRA) give consumers substantial rights regarding the disclosure and use of their personal information collected by businesses subject to the law. Significantly, CCPA/CPRA define the term “consumer” to mean any California resident. This broad definition extends not only a business’s individual customers, but also its employees, job-applicants and even its business-to-business (B2B) contacts. We have previously discussed the compliance requirements of these data privacy laws on organizations doing business in California, and the moratoriums for B2B and employee/applicant data that that the Legislature had put in place exempting covered businesses from complying with certain requirements of the laws.[1] Unless extended by the Legislature (which appears unlikely) or preempted by federal privacy legislation (which appears even more unlikely), the moratoriums will sunset on January 1, 2023. Accordingly, covered businesses should begin  preparing now to meet their upcoming expanded statutory obligations to protect consumers data privacy.

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No More Exceptions: What to Do When the California Privacy Exemptions for Employee, Applicant and B2B Data Expire

The California Consumer Privacy Act (CCPA) and the California Privacy Rights Act (CPRA) gives consumers increasingly more control over their personal information when collected by businesses subject to the law. We have previously discussed the compliance requirements of these data privacy laws on organizations doing business in California.[1] Significantly, CCPA/CPRA defines the term “consumer” to mean any California resident; which from a business perspective, such a broad definition encompasses not only the business’s individual customers, but also its employees, job-applicants or even business-to-business (B2B) contacts.  With the moratoriums currently in place for B2B and employee/applicant data sunsetting on January 1, 2023 and not likely to be extended, and the prospect for federal data privacy legislation with wide preemptive effect of state law looking less likely, businesses should be actively preparing to meet these expanded statutory obligations.

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Unpacking Averages: Assessing FDA’s Focus on Enforcing 510(K) Requirements on Imports

A private equity client asked us recently to assess a rumor that FDA was on the warpath in enforcing the 510(k) requirement on medical devices from a particular region.  Such a government initiative would significantly deter investments in the companies doing the importing.  Turns out, the agency was not.  The FDA’s recent activities in the region were well within their historical norms.

But the project got us thinking, what does the agency’s enormous database on import actions tell us about the agency’s enforcement priorities more generally?  There are literally thousands of ways to slice and dice the import data set for insights, but we picked just one as an example.  We wanted to assess, globally, over the last 20 years, in which therapeutic areas has FDA been enforcing the 510(k) requirement most often?

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Tesla Gets a Dressing Down by the NLRB

On August 29, 2022, the National Labor Relations Board (“NLRB” or the “Board”) issued a decision in Tesla, Inc. regarding dress code policies that further the Biden Board’s efforts to remake NLRB policy. This decision has big implications for employers that maintain appearance, dress code, and uniform policies. The Board’s decision now firmly establishes that any employer’s uniform or dress code policy is inherently unlawful if it can be read “in any way” to prohibit employees from wearing union insignia unless an employer can prove that its policy is justified by special circumstances. It is irrelevant whether the employer’s policy has ever been applied to prohibit union t-shirts or the employer actively permits union buttons or other insignia. Further, and critical to a broader understanding of the implications of this decision, it is also irrelevant whether the workplace is unionized or even being actively unionized.

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Time Is Money: A Quick Wage-Hour Tip on … Avoiding Common California Wage and Hour Mistakes and “Going the Distance”

Employers based outside of California can suffer knockout blows if they enter the ring as employers in California and operate under the mistaken assumption that adherence to the Fair Labor Standards Act (“FLSA”) is the same as complying with the California Labor Code and Wage Orders.  Below are the main ways (but certainly not the only ways) employers are “caught cold” because they do not receive or apply California wage-and-hour training and learn the hard way that the plaintiffs’ bar will not pull any punches.

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Fourth Circuit Holds the Americans with Disabilities Act Covers Gender Dysphoria

On August 16, 2022, in Williams v. Kincaid, the Fourth Circuit held that gender dysphoria can qualify as a disability under the Americans with Disabilities Act (the “ADA”).  This is the first federal appellate decision which extends the ADA’s protections to transgender people experiencing gender dysphoria and it will have a significant impact on all entities covered by the ADA, including employers (covered by Title I of the ADA), and public accommodations (covered by Title III of the ADA). Prior to this holding, several of the district courts have come down both ways on the issue.

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How Should Employers Respond to Class Actions?

Our colleague Michael S. Kun at Epstein Becker Green was recently quoted in SHRM, in “How to Respond to Class Actions,” by Allen Smith.

Following is an excerpt:

Frequently involving wage and hour issues, class actions against employers can result in lengthy litigation, but early response to them may reduce damages. This article, the first in a two-part series on class actions, examines strategies for responding to such actions, including how to interact with current employees who are seeking information on a lawsuit. The second part explains the differences among class, collective and representative actions. …

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OIG Approves Gift Cards for Medicare Managed Care Enrollees Who Complete Online Education

On August 19, 2022, the Department of Health and Human Services Office of Inspector General (“OIG”) posted Advisory Opinion 22-16 (“AO 22-16”) to its website, a favorable opinion concluding that the OIG would not impose sanctions in connection with a program that offered $25 gift cards to Medicare Advantage (“MA”) plan enrollees who completed an online educational program about the potential risk, benefits, and expectations related to surgery. AO 22-16 is the latest in a string of recent OIG advisory opinions addressing arrangements involving remuneration to Federal health care program beneficiaries – the ninth such advisory opinion in 2022 alone.

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