Rules relating to tip credit and pooling have resulted in significant debate among legislators, regulators, and the courts, leading to confusion, further litigation, and, in many cases, substantial liability or settlements involving employers that operate in the hospitality industry. Today, the U.S. Department of Labor (“DOL”) published proposed rulemaking that aims to bring greater clarity to the morass of tip-related legislation, as well as previous agency rules and interpretations. I describe below some of the notable elements of these proposed rules.
In Adopting “Contract Coverage” Standard, NLRB Gives Employers Greater Flexibility to Act Unilaterally on Subjects Encompassed by Collective Bargaining Agreements
As summer turned to fall, the National Labor Relations Board (“NLRB” or the “Board”) issued a steady stream of decisions with significant and favorable implications for employers. In the flurry of recent decisions, the Board addressed misclassification of workers as independent contractors, employers’ rights to control access to private property (Tobin Center for Performing Arts, UPMC, and Kroger Mid-Atlantic), the right to impose class action waivers in the wake of employment lawsuits, withdrawal of union recognition, the appropriate scope of bargaining units, and management’s right to make unilateral changes to terms and conditions of employment that are “covered by” a collective bargaining agreement (“CBA”).
Sports and sports teams have a long history with intellectual property law and, more specifically, trademarks. Sports teams, colleges, and universities have long trademarked their names and logos, and have routinely and aggressively enforced those rights. In 1988 Pat Riley, then the head coach of the National Basketball Association’s Los Angeles Lakers, applied for a trademark on the term “three-peat” for shirts, jackets, and hats (U.S Reg. No. 1,552,980). Subsequently, others have attempted to trademark various terms, such as baseball player Manny Ramierz trademarking the phrase ‘Manny Being Manny’. In 2012, football player Robert Griffin III filed for seven trademarks: RGIII, RG3, Robert Griffin III, Unbelievably Believable, Go Catch Your Dream, Light You Up, Work Hard Stay Humble, No Pressure No Diamonds, and Dream Big Live Bigger.
Courtney Simmons Volunteers With The Food Project Through BBA Environmental Law Pro Bono and Public Service Committee
On September 21, Courtney Simmons volunteered at The Food Project’s West Cottage Farm in Dorchester, MA as part of a Boston Bar Association (BBA) Environmental Law Pro Bono and Public Service Committee community service event. Courtney and fellow volunteers collaborated with local youth to complete a variety of hands-on farming tasks, including planting, weeding and harvesting.
I’m pleased to present the 2019 update to our “Trade Secrets Litigation” Practice Note, published by Thomson Reuters Practical Law. My co-author Zachary Jackson and I discuss litigation for employers whose employees have misappropriated trade secrets.
In a Trending News interview from Employment Law This Week®, our colleague RyAnn McKay Hooper of Epstein Becker Green discusses the Republican-majority NLRB’s recent decisions and how they signal a shift in the Board’s focus:
Federal Court’s Approval of Settlement in Litigation Over Expenses Charged to Brokers Offers Guidance on Settlement of Parallel Class Actions
On September 6, 2019, the U.S. District Court for the Northern District of California preliminarily approved a settlement in Harvey v. Morgan Stanley Smith Barney LLC. The significance of the result is two-fold. First, substantively, it is a reminder to financial services firms of potential liability under California labor law when advisors are required to pay for business expenses. Second, procedurally, the court’s approval of the settlement is edifying on the subject of parallel class actions.
In the Harvey case, plaintiffs challenged Morgan Stanley Smith Barney’s (“MSSB”) Alternative Flexible Grid expense program on the grounds that it violated California labor law by failing to reimburse their reasonable and necessary business expenses.
As we enter the last quarter of 2019 and the business community begins to plan ahead for 2020, New York employers should be aware of the changes coming to the New York Paid Family Leave (“NYPFL”) program. On January 1, 2020, both the amount of employee contributions and weekly benefits allowed under the program are scheduled to increase. This will be the second of three annual increases in weekly benefits.
The NYPFL program, which took effect in 2018, provides partially-paid, job-protected leave for bonding with a new baby, caring for a seriously ill family member, and matters related to a family member who is deployed abroad on active military duty. The length of permissible leave began at eight weeks, is currently at 10 weeks, and will increase to 12 weeks in 2021.
SEC Sanctions Broker-Dealer and Its CEO for Failing to Supervise an Employee Who Committed Securities Fraud
On August 20, 2019, the Securities and Exchange Commission (“SEC”) charged Mosaic Capital, LLC, formerly known as AOC Securities, LLC (“AOC”), and its CEO with failing to adequately supervise an employee who engaged in securities fraud. Pursuant to the SEC Orders, AOC and its CEO were ordered to pay penalties of $250,000 and $40,000, respectively. The SEC’s actions serve as a reminder to broker-dealers—and members of firm management—of the potential for liability based on the actions of a self-dealing employee, and the need to guard against such activities.
In September 2019, the New Jersey Division of Rights (“DCR”) issued enforcement guidance (“Guidance”) clarifying and explaining how the DCR applies the state’s Law Against Discrimination (“LAD”) to discrimination based on hairstyles, particularly with respect to those “closely associated with Black people.” The Guidance states that the LAD’s prohibition on discrimination based on race encompasses discrimination that is ostensibly based on hairstyles that are inextricably intertwined with or closely associated with race and therefore prohibits employers from refusing to hire or otherwise treating “a Black person differently because they wear their hair in a style that is closely associated with being Black.”