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NYC Lactation Policies Going into Effect on March 18, 2019

In October 2018, the New York City Council passed two bills, Int. 879-2018 and Int. 905-2018, to supplement existing federal and state laws concerning lactation accommodation policies in the workplace.  Currently, New York State Labor Law Section 2016-c  mandates employers to provide employees with a reasonable number of breaks; and a private sanitary space, other than a restroom, with a chair and flat surface on which to place the breast pump and other personal items, to express breast milk during the workday.

Effective March 18, 2019, Int. 879-2018 requires NYC employers, with four or more employees, to provide lactation rooms[1] with an electrical outlet, as well as refrigerators, in reasonable proximity to work areas, for the purposes of expressing and storing breast milk.  Those employers who cannot provide a lactation room, as required under the new law because of undue hardship, are required to engage in cooperative dialogue with affected employees to find a reasonable, alternative accommodation.

The second measure, Int. 905-2018 requires employers to “establish, and distribute to all new employees, policies describing lactation room accommodations, including the process by which an employee can request such accommodation”.  The policy shall: (1) specify how an employee can submit a request for a lactation room; (2) require the employer to respond to such a request no later than five (5) business days; (3) provide a procedure to follow when two (2) or more individuals need to use the lactation room at the same time,

New French Measures Affecting Employees and Employers Following Yellow Vest Demonstrations: Exemptions for 2018 Exceptional Bonus and 2019 Overtime

January 7, 2019

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French Parliament passed a bill last December 21, 2018 introducing urgent economic and social measures to improve employees’ purchasing power.

One measure concerns the payment of an exceptional bonus of up to 1,000 euros net, exempted from social contributions and income tax, to employees earning up to 3 times the yearly minimum wage. Another is an exemption from certain social contributions and from income tax for any overtime worked as from January 1, 2019.

The exceptional bonus measure concerns those employees that earn up to three times the minimum wage and is capped at 1,000 euros. The bonus must be paid between December 11 and March 31, 2019. Existing bonuses or those provided by employment agreements, company practices, collective or company labor agreements, and planned salary increases cannot benefit from the exemptions.

The amount of this bonus may only vary according to the level of remuneration, employee classification, effective presence during 2018 and working time. If an employer decides to grant a bonus to all of its employees, only those having earned up to € 53,945 in 2018 will benefit from the exemptions. As a reminder, social contributions amount to up to 25% for employees and 42% for employers. An employee without a spouse or children who earns up to three times the minimum wage, would pay up to 14% of income tax.

This bonus needs to be provided for by a company collective agreement or an agreement entered into with the personnel representatives. It may alternatively be unilaterally determined

Does An Employer Have FMLA Obligations Even Before An Employee Satisfies the Eligibility Requirements For Taking FMLA Leave?

November 26, 2018

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In a word: Yes.  In fact, there are many.

The most notable obligation under the Family and Medical Leave Act – the obligation to provide protected leave for a qualifying reason – does not apply until the employee has become eligible for leave under the Act.  However, many other obligations apply even before an employee becomes FMLA-eligible:

  • Employers may not manipulate the size of a worksite or the number of work hours available to an employee in order to avoid employee eligibility for FMLA leave.
  • Employers may not induce an employee to waive prospective rights under the FMLA, such as inducing a pre-eligible employee to waive the right to take leave once the employee becomes eligible in exchange for some other employer-provided benefit.
  • Employers must not retaliate against an employee who, before becoming eligible for FMLA leave, requests leave that will begin after eligibility is achieved. See Pereda v. Brookdale Senior Living Communities, Inc., 666 F.3d 1269 (11th Jan. 10, 2012) (holding that the FMLA prohibits an employer from harassing, criticizing the performance of, and terminating an employee in response to a pre-eligibility request for post-eligibility leave, because to hold otherwise would create “a loophole . . . whereby an employer has total freedom to terminate an employee before she can ever become eligible.  Such a situation is contrary to the basic concept of the FMLA”).
  • Employers must give accurate information to an employee about whether the employee is eligible for leave. When an employee is given inaccurate information

New California Laws Change Sexual Harassment Landscape

On Sunday September 30, 2018, while many of us were busy setting our Fantasy Football lineups, outgoing Governor Jerry Brown signed a number of work-related bills arising in response to the #MeToo movement that will substantially alter employers’ exposure to liability for workplace harassment, prohibit many common practices used to reduce adverse publicity surrounding workplace harassment claims, and impose additional training and inclusion requirements.

SEXUAL HARASSMENT OMNIBUS BILL, SB 1300

The most far-reaching of the new laws is SB 1300, the Sexual Harassment Omnibus Bill, which amends the California Fair Employment and Housing Act (“FEHA”).  Under SB 1300, FEHA will now expressly affirm some harassment-related court decisions and disavow others, embedding into the statute the following legal concepts and ever-expanding scope:

  • The plaintiff in a workplace harassment suit is only required to prove that a reasonable person subjected to the discriminatory conduct would find, as the plaintiff did, that the harassment so altered working conditions as to make it more difficult to do his or her job.  It is not necessary to show a tangible decline in productivity.
  • A single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile or offensive working environment.  (Here, SB 1300 expressly rejects a decision authored by #MeToo casualty Alex Kolinski, a former judge on the Ninth Circuit Court of Appeals, which provided that a one-time physical encounter was

Hands-Free Laws: Practical Considerations for Employers

As of July 1, 2018, Georgia is now one of 16 states that have banned the use of a hand-held cell phone while driving.  Under the new Hands-Free Georgia Act (House Bill 673), drivers in Georgia may not:

  • Physically hold or support a wireless communication device or stand-alone electronic device with any part of the body;
  • Write, send, or read any text based communications on such devices;
  • Watch a video or movie on such devices; or
  • Record or broadcast a video on such devices.

The Hands-Free Georgia Act does allow drivers to use a single button on a wireless device to make a voice phone call.  Under the new law, drivers may also use a wireless device for voice-to-text communications and for navigation purposes.   Drivers may use a wireless device in a lawfully parked vehicle, but not while the vehicle is at a stop light or in stopped traffic.

Violations of the Hand-Free Georgia Act carry a fine of up to $50 for a first conviction, $100 for a second conviction, and  $150 for a third conviction.  First-time offenders can avoid a fine by appearing in court with a device or receipt for a device that allows for hand-free calls.

Similar hands-free laws have also been enacted in California, Connecticut, Delaware, Hawaii, Illinois, Maryland, Nevada, New Hampshire, New Jersey, New York, Oregon, Rhode Island, Vermont, Washington, and West Virginia, as well as the District of Columbia, Puerto Rico, Guam, and the U.S. Virgin Islands.

With the growing use

Business Transfers in Germany – New Decisions by the Federal Labor Court with Potential Great Impact

Derived from EU Directive 2001/23/EG, the German law on Transfer of Business (“TUPE”) protects employees in a business transfer situation. As a starting point, TUPE transfers the employment of affected employees from one employer to another on their existing terms and conditions. However, a potential  impact of recent decisions by the German Federal Labor Court on TUPE is that, even many years after restructurings and – supposedly – concluded transfers of business transactions, employees may claim ongoing employment with their original employer (”transferor”) if it is held that no transfer of business actually occurred.

The case law in this area has continued to develop based on rulings by the Federal Labor Court/ (“BAG”). Recently the BAG rendered two decisions (BAGE 8 AZR 265/15 and BAGE 8 AZR 309/16) with far reaching consequences for companies doing business in Germany.

How long after a “transfer” will the Courts intervene?

In the most recent decision (BAGE 8 AZR 309/16), an employee filed suit with the local labor courts against his original employer four years after his employment was (allegedly) transferred from his old employer to a newly established sister company (“transferee”). The original employer transferor and the new sister company had informed the employee about his transfer of employment and the employee had never contested it. To the contrary the new sister company kept the employee on its pay role, paid his salary and contributed to German social security over all the four years. When insolvency was filed at the level of the

Eckstrom Presents Webinar on Getting Hourly Workers onto Workplace by Facebook

Bringing thousands of frontline, hourly employees onto a Workplace by Facebook network creates a range of questions and challenges for large organizations. How does a company prevent potential wage and hour violations, govern for the use of personal devices at work, and communicate the difference between “required” and “optional” use of the platform?

Irvine Partner Allison Eckstrom will join collaboration expert Carrie Basham Young, CEO of Talk Social to Me, on June 6 to share practical solutions for the most common barriers that prevent hourly workers from participating on Workplace. Click here to register or here to learn more.

Ideal attendees for this webinar include CHROs, CLOs, CCOs, in-house counsel and other decision-makers involved in providing technology, education and programs to hourly employees. Attendees will come away with a stronger understanding of how to be “Better, Together,” without breaking the law.

At Bryan Cave Leighton Paisner, Eckstrom represents clients in complex wage and hour litigation involving claims for employee misclassification, rounding violations, regular rate of pay issues, meal/rest period compliance, expense reimbursement, off-the-clock issues, as well as derivative claims under California’s Unfair Competition Law and Private Attorneys General Act.

New York Passes Anti-Sexual Harassment Measures: What All Employers Must Know

On April 12, 2018, Governor Andrew Cuomo signed the New York state budget into law.  Beyond the dollars and cents associated with a typical budget bill, the legislation included new requirements for private and public employers to address sexual harassment in the workplace. While effective dates for the various measures are staggered over the next year, employers should start preparing now to comply with each provision:

  • Effective immediately: The budget bill amended the New York State Human Rights Law to prohibit harassment against “non-employees” who provide services under a contract, including contractors, vendors, and consultants. If an employer knew or should have known that a protected “non-employee” was sexually harassed at its office or workplace, the employer may be liable if it does not take appropriate action.
  • Effective July 9, 2018: Employers may include nondisclosure/confidentiality clauses in settlement or release agreements dealing with sexual harassment claims only if the complaining party requests such a clause. Additionally, settlement and release agreements must not contain mandatory arbitration clauses for the resolution of harassment claims.
  • Effective October 9, 2018: All employers must have a written anti-sexual harassment prevention policy, and also must provide annual anti-harassment training.  The New York State Department of Labor (NYDOL) and the New York Division of Human Rights are drafting model policies, and employers must base their own policies and trainings on the state-drafted models. Employers must also provide a written copy of the policy to all employees annually.

Employers should act quickly to ensure they comply

Employers Can Maintain a Drug Free Workplace in California Despite State Legalization of Recreational Marijuana

California’s passage of the “Control, Regulate, and Tax Adult Use of Marijuana Act,” commonly referred to as Proposition 64, legalized the sale, possession, and use of recreational marijuana under limited circumstances. Marijuana still remains an illegal Schedule I substance under the federal Controlled Substances Act and therefore still subject to prosecution under federal law. Many employers wonder what effect, if any, Proposition 64 has on their ability to maintain a drug free workplace.

Bryan Cave attorneys just released a client alert on this topic. Click here to read the Alert in full.

Bryan Cave LLP has a team of knowledgeable lawyers and other professionals prepared to help employers comply with California law. If you or your organization would like more information on Proposition 64, or any other employment issue, please contact an attorney in the Labor and Employment practice group.

Investigating Claims of Harassment: A Step-by-Step “How To” Part 6: Closing the Investigation and Additional Steps Thereafter

This final installment of a six-part series on harassment investigations discusses how to close the investigation and steps to take after the investigation has been closed.  As always, bear in mind that each harassment investigation is different and must be tailored to fit the particular circumstances.

Close the Investigation

Once the investigation has concluded, it is essential to close the investigation with the complainant, each witness, and the accused.  It may also be prudent, in some circumstances, to follow-up with the entire workforce. All close-out meetings that are held should be documented. When closing the investigation with the complainant, and generally with each witness, here are the key points to tell each person:

  • We are closing our investigation based on the information as we know it now. (This allows you to reopen if you learn more later.)
  • The Company has a strong non-discrimination and non-harassment policy. (Consider providing or showing a copy of the policy.)
  • The Company takes claims of discrimination and harassment seriously and follows up to stop it, if we can conclude that inappropriate conduct occurred.
  • (If appropriate:) We have taken action on the complaint that we received, but we are not free to disclose any disciplinary action taken toward other employees. (It may be appropriate to tell the complainant more here, such as specific actions taken, in order to help reassure the complainant that reasonable steps have been taken to end the conduct and prevent its recurrence, and/or to inform the complainant of any limitations or
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