Tag Archives: EpsteinBeckerGreen

On the Verge of CCPA Enforcement: What Should Companies Do to Comply?

On January 1, 2020 California Consumer Privacy Act (“CCPA”) largely came into effect, albeit with several last-minute modifications and a need to promulgate regulations.  As our colleagues have discussed previously here, CCPA joins other California laws safeguarding California residents’ privacy rights under the California Constitution.  Despite uncertainty around the final regulatory parameters of the law, CCPA grants the California Attorney General (AG) the authority to begin enforcement on July 1, 2020. Further, there have been no indications that such enforcement will be delayed.

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NJ Governor Permits Hair Salons and Other Personal Care Services Facilities to Reopen on June 22, 2020, Provided They Comply with Health Safeguarding Requirements

On June 13, 2020, New Jersey Governor Phil Murphy signed Executive Order 105 (“EO 154”), permitting the reopening of “personal care service facilities,” at 6:00 a.m. on June 22, 2020, provided the facilities comply with mandated social distancing and other health safeguarding requirements.  Specifically, EO 154 covers, “cosmetology shops; barber shops; beauty salons; hair braiding shops; nail salons; electrology facilities; spas, including day spas and medical spas, at which solely elective and cosmetic medical procedures are performed; massage parlors, tanning salons, and tattoo parlors.”  To reopen these personal care service facilities must comply with standards issued by the New Jersey Department of Health (“DOH”), and Division of Consumer Affairs, as applicable.

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California Court of Appeal Concludes That Unionized Employees and Their Employers Cannot Negotiate Away Compensation for Required Travel Time

Faced with the question of whether unionized employees and their employer can bargain away the right to be compensated for employer-mandated travel time, a California Court of Appeal has ruled that they in fact may not do so.  In Carlos Gutierrez v. Brand Energy Services of California, Inc., the Court concluded that Wage Order 16 (Cal. Code Regs., tit. 8, § 11160) requires that employees be paid for all employer-mandated travel time — and that it cannot be negotiated away by a union and the employer.

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Video: SCOTUS Decision on LGBTQ Employees, EEOC on Older Workers Returning to Work – Employment Law This Week

As featured in #WorkforceWednesday: This week, we saw a landmark employment law decision and received clarifications on return-to-work issues involving older workers.

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DTC Pricing Disclosure Rule Invalidated

On Tuesday June 16th, the U.S. Court of Appeals for the District of Columbia Circuit upheld a District Court decision that invalidated a Department of Health and Human Services (“HHS”) rule requiring pharmaceutical companies to include the wholesale prices of their drugs in direct to consumer TV advertising.  See Regulation to Require Drug Pricing Transparency, 84 Fed. Reg. 20732 (May 10, 2019) (the “Disclosure Rule”).  Ruling in favor of Merck & Co., Inc., Eli Lilly and Company and Amgen, Inc., the Appeals Court held that HHS lacked statutory authority to establish the Disclosure Rule.

The Court found that HHS “acted unreasonably in construing its authority to include the imposition of a sweeping disclosure requirement that is largely untethered to the actual administration of the Medicare or Medicaid programs.  Because there is no reasoned statutory basis for its far-flung reach and misaligned obligations, the disclosure rule is invalid and is hereby set aside.”

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Supreme Court Holds Defined Benefit Plan Participants Lack Standing to Sue Over Allegedly Imprudent Investment Decisions

In a recent 5-4 decision, the Supreme Court, in Thole v. U.S. Bank N.A., 590 U.S. __ (2020), held that participants in defined benefit pension plans lack standing to sue plan fiduciaries for allegedly imprudent plan investments where the participants continue to receive their full benefits and no imminent risk that they will cease receiving their full benefits appears.

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NJ Governor Increases Permissible Size of Gatherings; Lifts Stay at Home Order and Says Outdoor Swimming Pools and Some Other Outdoor Entertainment Can Re-Open June 22

New Jersey Governor Phil Murphy issued Executive Orders last week increasing the permissible number of attendees for indoor and outdoor gatherings, lifting part of a prior Executive Order that had directed residents to stay home, and setting a date and requirements for the reopening of outdoor pools and other outdoor entertainment and recreation.

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COVID-19 Short-Time Working in Luxembourg

Along with many European countries, the COVID-19 pandemic has affected employers and employees in Luxembourg.  On March 17, 2020, the Government of Luxembourg issued a State of Emergency until June 25, 2020 and implemented several measures and guidance to prevent the spread of COVID-19.  Luxembourg’s population of approximately 625,000, reportedly has 4,040 confirmed cases of COVID-19, 110 COVID-19 fatalities and 3,901 individuals who have recovered from the coronavirus.

Similar to other European jurisdictions, Luxembourg provides employers and employees with “short-time” working opportunities in various circumstances, including due to cyclical economic problems, structural economic problems, in the event of force majeure and due to economic dependence.

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Are COVID-19 Temperature Screenings Compensable Time for Non-Exempt Employees?

As states across the country start to reopen their economies after COVID-19 shutdowns, many businesses are likewise preparing to have employees return to work.

However, before reopening, businesses will need to comply with numerous state and local protocols designed to ensure the health and safety of employees and consumers, including social distancing, maximum occupancy and one-way flow.

Even if not required, many employers are instituting employee temperature checks upon arrival at the workplace. While the U.S. Equal Employment Opportunity Commission recently endorsed the use of temperature checks during the pandemic, such screenings could potentially run afoul of the Fair Labor Standards Act and state wage and hour laws if employers do not pay their workers for the time they spend submitting to temperature screening, particularly where there is potentially substantial waiting time in doing so.

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Time Is Money: A Quick Wage-Hour Tip on … Tip Pooling

Many hospitality businesses, such as restaurants and bars, have found themselves restructuring their daily operations in light of the current global COVID-19 health crisis, and the subsequent federal, state, and local shelter in place orders. For instance, where restaurants and bars once served customers on a dine-in basis, perhaps they are now restricted to take-out only or delivery options, and, as a result, many employers who are still operating in the wake of the pandemic now have very few employees with customer-facing roles.

Because of the necessary changes in daily operations, many businesses are reconsidering their tip policies. Perhaps your policy was to allow employees to keep all tips he or she earned, which now seems unfair to employees who are integral to serving customers but no longer have direct customer contact so you want to shift to a tip pool model. Perhaps you have always operated on a tip pool model, but with ever-shifting job duties and positions, you are unclear whether your tip pool policy is legally compliant. Whatever the case, one thing is certain: given that daily operations of customer-service oriented businesses has likely changed and will continue to change as our country slowly moves toward reopening, now is the perfect time to revisit some important considerations if you are thinking about shifting to a tip pool model or even if you already have one.

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