Labor Laws And Issues

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If you are experiencing discrimination or harassment at your employer, first inform your manager or the human resources department. If neither help, use these government resources.

The enforces .

These laws protect employees and job applicants against:

Discrimination, harassment, and unfair treatment in the workplace by anyone because of:

Sex (including gender identity, transgender status, and sexual orientation)

Retaliation because they:

To file a complaint, contact your .

Many state and local governments have anti-discrimination laws. These laws may offer extra protection beyond federal law.

Some state laws:

Many state laws have more protections for nursing mothers than federal law requires. enforce these laws.

If you're a victim of job discrimination or harassment, you can . If the discrimination violates federal law, you must first file a charge with the EEOC. (This does not apply to cases of unequal pay between men and women.)

You may decide to sue if the EEOC cannot help you. In either case, look for an attorney who specializes in employment law. You can check with:

Only  are subject to EEOC laws. The number of employees changes depending on the type of employer and the kind of discrimination alleged.

Businesses, state, and local governments must follow most EEOC laws if they have 15 or more employees.

Federal agencies must follow all EEOC laws, no matter how many employees they have.

Federal employment discrimination laws include:

(Title VII) – which prohibits discrimination based on:

is unwelcome conduct because of your:

The federal government only enforces harassment due to one of these reasons. If you experience workplace harassment for another reason, contact your or seek help from a legal professional.

Harassment can include:

may include:

Harassment becomes illegal when:

It creates a hostile or abusive work environment.

The victim gets fired or demoted for refusing to put up with it.

EEOC laws protect employees and job applicants from . For example, it’s unlawful to punish people for:

If you feel that you have been wrongfully fired from a job or let go from an employment situation, you may wish to learn more about your state's wrongful discharge laws.

If you feel you have been wrongfully discharged or terminated from employment, you may: 

If you are an employer seeking information about legal termination of employees, you may wish to contact both the  and your  to ensure you do not violate any federal or state labor laws. You may wish to consult with a licensed attorney.

The is a federal labor law that allows eligible employees to take an extended leave of absence from work.

This unpaid leave is guaranteed by law and is available to workers at companies with 50 or more employees. can help you understand your rights and coverage.

If you have unanswered questions about the FMLA or you believe someone has violated your rights under FMLA, for assistance.

Employers with FMLA eligible employees have specific under the law. Learn by the FMLA.

If you’re an employer with concerns about false FMLA leave, contact your company’s legal and human resources department. You can also contact the Department of Labor’s .

The U.S. Department of Labor's administers and enforces some of the nation's most comprehensive labor laws. These include the (FLSA). These laws govern:

In addition to the federal laws, each state has its own labor laws, which vary from state to state. 

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Business owners: Check out the Small Business Administration's .

The is the lowest legal hourly pay for many workers. Tipped employees may have a different wage.

The minimum wage is $7.25 per hour for . 

Many states and cities also have minimum wage laws. Where federal and state laws have different rates, the higher wage applies. and its .

An employer may require or permit a worker to work . The Fair Labor Standards Act states that workers who clock more than 40 hours per week are to get overtime pay. There are few exceptions to this rule. 

An employer says a worker is an independent contractor. The law says the worker is an employee. That's , which can:

Affect a worker’s pay, protections, and benefits

If you’ve been misclassified, contact your state labor office or with the Department of Labor.

The type of workplace issue determines which government agency can help you.

Mining: Contact the at or file online to .

Interstate Trucking:

If you have a problem, such as being forced to drive in unsafe conditions, fill out the online . Or you can call ().

If the issue is inside a trucking building or facility,  with the Occupational Safety & Health Administration (OSHA).

Aviation: Contact the or use the .

Most Other Industries: with the Occupational Safety & Health Administration (OSHA). Please note: OSHA may refer you to a state agency.

You’re entitled to certain - especially ones that keep you safe. These include the right to:

Workers' compensation laws protect employees who get hurt on the job or sick from it. The laws establish workers’ comp, a form of insurance that employers pay for. These laws vary from state to state and for federal employees.

In general, workers’ comp provides:

If you get hurt working for a private company or state or local government, seek help through your state. Your  can help you file a claim. If your claim is denied, you can appeal.

Longshore and Harbor Workers, Coal Miners, Nuclear Weapons Workers, and Federal Employees

Federal laws protect longshore and harbor workers, coal miners, nuclear weapons workers employed by the Department of Energy (DOE) or a DOE contractor, and federal employees. Contact the that applies to you for help filing a claim.

Ask a real person any government-related question for free. They'll get you the answer or let you know where to find it.

Last Updated: January 18, 2023

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California Minimum Wage Effective January 1, 2023

Current schedule of meetings available for the public .

Help make pay equity the norm in California. for employers, employees and unions to comply with the Equal Pay Act are now available.

Effective January 1, 2021, agricultural workers employed by employers with 26 or more employees must receive overtime (1.5 times the employee’s regular rate of pay) for all hours worked over 8.5 hours in any workday or over 45 hours in any workweek.  

Beginning January 1, 2019, all talent agencies operating in California must provide their artists with educational materials on sexual harassment prevention, retaliation, reporting resources, nutrition and eating disorders.

Applicants for entertainment work permits for minors between the ages of 14 and 17 must also complete sexual harassment prevention training before obtaining a minor’s entertainment work permit.

New COVID-19 Update: Sexual Violence and Harassment Prevention Training for Janitorial Service Providers

Due to the easing of government-imposed COVID-19 restrictions, the biennial "in-person" sexual violence and harassment prevention training that janitorial employers must provide to their non-supervisory employees, may now be conducted in a manner that protects the health, safety and welfare of all participants. Consequently, the Labor Commissioner’s Office is lifting the suspension of enforcement of the "in-person" training requirements, established by AB 547 (2019). Effective January 1, 2023, janitorial employers must begin compliance with these training requirements once the list of qualified organizations is posted on this website. Additional details will be provided in the coming weeks.

If you are an employee who was paid on a piece rate basis during the period of July 1, 2012 through December 31, 2015, the Labor Commissioner’s office may have collected wages for you from your employer for rest and recovery periods and other nonproductive time. If you believe your employer has paid those wages to the Labor Commissioner on your behalf, please and mail to the address below or take it to any . Please complete and submit a separate form for every employer who you think may have paid your wages to the Labor Commissioner.

Department of Industrial Relations
AB 1513 Application
Centralized Cashiering Unit
2031 Howe Avenue, Suite 100
Sacramento, CA 95825

Si usted es un trabajador cuya paga entre el 1 de julio de 2012 y el 31 de diciembre de 2015 fue sobre la base de pago por pieza, el Comisionado Laboral puede haber recaudado sueldos de su empleador en concepto de períodos de descanso y otro tiempo improductivo. Si usted piensa que su paga ha sido enviada al Fondo de Sueldo Impago, por favor y envíelo a la dirección que figura a continuación o entréguelo personalmente en cualquier . Por favor complete y envíe un formulario por cada empleador que, a su juicio, pueda haber enviado su paga al Comisionado Laboral.

Department of Industrial Relations
AB 1513 Application
Centralized Cashiering Unit
2031 Howe Avenue, Suite 100
Sacramento, CA 95825

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The U.S. Department of Labor (DOL) administers and enforces more than 180 federal laws. These mandates and the regulations that implement them cover many workplace activities for about 150 million workers and 10 million workplaces.

Following is a brief description of many of most commonly applicable to businesses, job seekers, workers, retirees, contractors and grantees. This brief summary is intended to acquaint you with the major labor laws and not to offer a detailed exposition. For authoritative information and references to fuller descriptions on these laws, you should consult the statutes and regulations themselves.

The prescribes standards for wages and overtime pay, which affect most private and public employment. The act is administered by the . It requires employers to pay covered employees who are not otherwise exempt at least the federal minimum wage and overtime pay of one-and-one-half-times the regular rate of pay. For nonagricultural operations, it restricts the hours that children under age 16 can work and forbids the employment of children under age 18 in certain jobs deemed too dangerous. For agricultural operations, it prohibits the employment of children under age 16 during school hours and in certain jobs deemed too dangerous.

The Wage and Hour Division also enforces the labor standards provisions of the that apply to aliens authorized to work in the U.S. under certain nonimmigrant visa programs (H-1B, H-1B1, H-1C, H2A).

The is administered by the . Safety and health conditions in most private industries are regulated by OSHA or OSHA-approved state programs, which also cover public sector employers. Employers covered by the OSH Act must comply with OSHA's regulations and safety and health standards. Employers also have a general duty under the OSH Act to provide their employees with work and a workplace free from recognized, serious hazards. OSHA enforces the law through workplace inspections and investigations. Compliance assistance and other cooperative programs are also available.

If you worked for a private company or a state government, you should contact the for the state in which you lived or worked. The U.S. Department of Labor's Office of Workers' Compensation Programs does not have a role in the administration or oversight of state workers' compensation programs.

The , administered by The , provides for compensation and medical care to certain maritime employees (including a longshore worker or other person in longshore operations, and any harbor worker, including a ship repairer, shipbuilder, and shipbreaker) and to qualified dependent survivors of such employees who are disabled or die due to injuries that occur on the navigable waters of the United States, or in adjoining areas customarily used in loading, unloading, repairing or building a vessel.

The is a compensation program that provides a lump-sum payment of $150,000 and prospective medical benefits to employees (or certain of their survivors) of the Department of Energy and its contractors and subcontractors as a result of cancer caused by exposure to radiation, or certain illnesses caused by exposure to beryllium or silica incurred in the performance of duty, as well as for payment of a lump-sum of $50,000 and prospective medical benefits to individuals (or certain of their survivors) determined by the Department of Justice to be eligible for compensation as uranium workers under section 5 of the Radiation Exposure Compensation Act.

The , 5 U.S.C. 8101 et seq., establishes a comprehensive and exclusive workers' compensation program which pays compensation for the disability or death of a federal employee resulting from personal injury sustained while in the performance of duty. FECA, administered by OWCP, provides benefits for wage loss compensation for total or partial disability, schedule awards for permanent loss or loss of use of specified members of the body, related medical costs, and vocational rehabilitation.

The provides monthly cash payments and medical benefits to coal miners totally disabled from pneumoconiosis ("black lung disease") arising from their employment in the nation's coal mines. The statute also provides monthly benefits to a deceased miner's survivors if the miner's death was due to black lung disease.

The regulates employers who offer pension or welfare benefit plans for their employees. Title I of ERISA is administered by the and imposes a wide range of fiduciary, disclosure and reporting requirements on fiduciaries of pension and welfare benefit plans and on others having dealings with these plans. These provisions preempt many similar state laws. Under Title IV, certain employers and plan administrators must fund an insurance system to protect certain kinds of retirement benefits, with premiums paid to the federal government's . EBSA also administers reporting requirements for continuation of health-care provisions, required under the and the health care portability requirements on group plans under the .

The of 1959 (also known as the Landrum-Griffin Act) deals with the relationship between a union and its members. It protects union funds and promotes union democracy by requiring labor organizations to file annual financial reports, by requiring union officials, employers, and labor consultants to file reports regarding certain labor relations practices, and by establishing standards for the election of union officers. The act is administered by the .

Most labor and public safety laws and many environmental laws mandate whistleblower protections for employees who complain about violations of the law by their employers. Remedies can include job reinstatement and payment of back wages. enforces the whistleblower protections in most laws.

Certain persons who serve in the armed forces have a right to reemployment with the employer they were with when they entered service. This includes those called up from the reserves or National Guard. These rights are administered by the .

This law bars most employers from using lie detectors on employees, but permits polygraph tests only in limited circumstances. It is administered by the .

Garnishment of employee wages by employers is regulated under the which is administered by the .

Administered by the , the requires employers of 50 or more employees to give up to 12 weeks of unpaid, job-protected leave to eligible employees for the birth or adoption of a child or for the serious illness of the employee or a spouse, child or parent.

Veterans and other eligible persons have special employment rights with the federal government. They are provided preference in initial hiring and protection in reductions in force. Claims of violation of these rights are investigated by the .

Government Contracts, Grants, or Financial Aid

Recipients of government contracts, grants or financial aid are subject to wage, hour, benefits, and safety and health standards under:

Administration and enforcement of these laws are by the . The administers and enforces three federal contract-based civil rights laws that require most federal contractors and subcontractors, as well as federally assisted construction contractors, to provide equal employment opportunity. The Office of the Assistant Secretary for Administration and Management's administers and enforces several federal assistance based civil rights laws requiring recipients of federal financial assistance from Department of Labor to provide equal opportunity.

The regulates the hiring and employment activities of agricultural employers, farm labor contractors, and associations using migrant and seasonal agricultural workers. The Act prescribes wage protections, housing and transportation safety standards, farm labor contractor registration requirements, and disclosure requirements. The administers this law.

The exempts agricultural workers from overtime premium pay, but requires the payment of the minimum wage to workers employed on larger farms (farms employing more than approximately seven full-time workers. The Act has special child-labor regulations that apply to agricultural employment; children under 16 are forbidden to work during school hours and in certain jobs deemed too dangerous. Children employed on their families' farms are exempt from these regulations. The administers this law. OSHA also has special safety and health standards that may apply to agricultural operations.

The requires employers who want to use foreign temporary workers on H-2A visas to get a labor certificate from the certifying that there are not sufficient, able, willing and qualified U.S. workers available to do the work. The labor standards protections of the H-2A program are enforced by The .

The (Mine Act) covers all people who work on mine property. administers this Act.

The Mine Act holds mine operators responsible for the safety and health of miners; provides for the setting of mandatory safety and health standards, mandates miners' training requirements; prescribes penalties for violations; and enables inspectors to close dangerous mines. The safety and health standards address numerous hazards including roof falls, flammable and explosive gases, fire, electricity, equipment rollovers and maintenance, airborne contaminants, noise, and respirable dust. MSHA enforces safety and health requirements at arround 13,000 mines, investigates mine accidents, and offers mine operators training, technical assistance and compliance assistance.

Several agencies administer programs related solely to the construction industry. OSHA has ; The , under Davis-Bacon and related acts, requires payment of prevailing wages and benefits; The enforces , which requires federal construction contractors and subcontractors, as well as federally assisted construction contractors, to provide equal employment opportunity; the anti-kickback section of the precludes a federal contractor from inducing any employee to sacrifice any part of the compensation required.

Most laws with labor provisions regulating the transportation industry are administered by agencies outside the Department of Labor. However, are issued and enforced by . The , requires employers to assure that workers' compensation is funded and available to eligible employees. In addition, the rights of employees in the mass transit industry are protected when federal funds are used to acquire, improve, or operate a transit system. Under the Federal Transit law, the Department of Labor is responsible for approving employee protection arrangements before the Department of Transportation can release funds to grantees.

Such occurrences may be subject to the . WARN offers employees early warning of impending layoffs or plant closings. The provides information to the public on WARN, though neither ETA nor the Department of Labor has administrative responsibility for the statute, which is enforced through private action in the federal courts.

Some of the statutes and regulations enforced by the U.S. Department of Labor require that notices be provided to employees and/or posted in the workplace. DOL provides free electronic and printed copies of these required posters.

The can be used to determine which poster(s) employers are required to display at their place(s) of business. Posters, available in English and other languages, may be downloaded and printed directly from the Advisor. If you already know which poster(s) you are required to display, see below to download and print the appropriate poster(s) free of charge.

200 Constitution Ave NW
Washington, DC 20210

The Future of Noncompetes: The Federal Trade Commission (FTC) proposed a rule on January 5, 2023, prohibiting noncompetition provisions in employment agreements. The FTC rule proposed to ban agreements that are written so broadly as to effectively ban working in the same field post-employment and ban clauses that require paying unreasonable training costs if the employment terminates within a specified period. If the rule is implemented as proposed, it would bar employers from entering into or enforcing noncompete agreements with employees or independent contractors. The proposed rule would also nullify any existing agreements within six months from the date the rule takes effect. The public has an opportunity to submit its comments to the proposed rule through March 6, 2023. The FTC may issue a final rule after the 60-day comment period ends. For more information on the proposed rule, please see our recent Legal Alert.

Employers should review their existing agreements and consider revising the agreements to include other contractual provisions that would protect their legitimate business interests even if the FTC rule takes effect.

Pay Transparency Laws: Generally, these laws require employers to disclose prospective salary or salary range when advertising an open employment position. More specific obligations vary by state. Employers who violate pay transparency laws are subject to monetary damages, civil damages, or other relief, such as amending the job posting. The remedies for a violation depend on the state law that applies.

The most recent pay transparency laws include those passed by New York City, New York state, California, and Washington state. Employers in these states should review their upcoming job postings to ensure compliance. There is an expectation that this will continue as a trend in other states. For more information on this trend, please see our recent Legal Alert.

Artificial Intelligence in the Workplace: The term generally refers to computer technology that uses algorithmic tools to perform tasks that typically require human decision-making. In the workplace context, this technology may be used to help with employee management functions, such as recruiting and hiring by analyzing resumes, predicting job performance or evaluating a job candidate's attention span. While the hope in using these tools in the recruitment process is to reduce or eliminate bias, the use of artificial intelligence is not without risk and may give rise to employment discrimination claims even on a class-wide basis. Last year, the Equal Employment Opportunity Commission issued a guidance on AI decision making tools and algorithmic disability bias. Also last year the Biden administration issued an Artificial Intelligence Bill of Rights. The AI Bill of Rights provides a set of five recommendations to ensure that artificial intelligence is safe and equitable in various sectors of society, including the workplace.

Some states, such as New York, Illinois, and Maryland have enacted measures to regulate the use of algorithms in the workplace. Employers in these states should review these laws. It is anticipated that other states may propose legislation in this area. It will also be interesting to watch how courts will analyze discriminatory intent under the existing federal and state antidiscrimination laws when AI was involved in the decision making process.

Discrimination Based on Hairstyles: Creating a Respectful and Open World for Natural Hair, referred to as the CROWN Act, is a law that prohibits race- and national origin-based hair discrimination. This includes hairstyles such as locks, twists, braids or hair texture that are associated with race. A significant number of states have passed CROWN laws. California, Illinois, Colorado, Connecticut, Massachusetts, New York, and Tennessee are among some of the states with CROWN laws. While some states do not have CROWN laws, such laws have been passed at the local level. For example, there is no state CROWN law in Florida but Broward County and Miami Beach have local ordinances prohibiting hair discrimination. At a practical level, those in states or cities with these laws will need to review their existing grooming polices to ensure compliance. Employers that are not subject to CROWN laws may consider incorporating them into their policies and practices as part of their diversity initiatives in the workplace.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Workplace rules and habits have been scrambled by the COVID-19 pandemic and associated remote work revolution- but have employment laws and regulations kept up? Kabrina Chang, JD, Clinical Associate Professor of Law and Ethics at Questrom, explains the new legal landscape for employers and employees in this [email protected] interview.How have employment laws changed since the pandemic in terms of disability, inclusion, and harassment issues?

How have employment laws changed since the pandemic in terms of disability, inclusion, and harassment issues?

The federal government and many states passed emergency laws providing paid sick leave for workers for COVID-related illness and caretaking. Prior to this, many hourly workers, who are our essential workers, did not have any paid sick leave or paid caretaking time off. Also, the federal government and states passed emergency unemployment benefits laws to accommodate the millions of workers unemployed due to the pandemic. However, these laws will expire.

We have seen more recently employers requiring employees get vaccinated in order to return to work. Any requirement like this must comply with the Americans with Disabilities Act and other federal laws; there must be room for a reasonable accommodation for employees who cannot get vaccinated due to a disability or a sincerely held religious belief unless accommodating the employee would jeopardize the viability of the business.

The successful shift for many businesses to work from home may seem like a win for disabled workers, and for many it probably is. But for years disabled workers have been asking to work from home or a more flexible work arrangement as a reasonable accommodation so they can continue working and have been denied or even lost their jobs. This pandemic has proven that in many industries working from home is doable and hopefully more businesses will be willing to discuss this as a viable option. Of course, the law requires the accommodation to be reasonable, so for some disabled workers in jobs where working from home was never an option, nothing has changed.

For many people of color, women in particular, working from home has been freeing. According to a Future Forum survey (as reported by the New York Times) 97% of black respondents said they preferred working remotely or hybrid. Only 3% said they wanted to return to the office, compared to 21% of white workers. For many respondents, working from home meant they were not reminded that they were the only black person in their office, and they did not experience

the many microaggressions that happen when in person. This impacts the entire business: in the same survey 50% of black workers said they felt a stronger sense of belonging and inclusion at work once they started working from home.

In addition to what I mentioned above, working from home has not led to less harassment unfortunately. What would have taken place in the office has just moved online. Virtual harassment can occur without witnesses or a paper trail. In an office setting it might be easier for a worker to never be alone with a person. The added layer of technology, whether video, chat, or text, can embolden employees to say or do things they would not do in person, but it also erases social cues. It is difficult to read tone in a text and words can be misconstrued. Lastly, when working from home inappropriate remarks or conversations over Zoom or chat are invasive in a way they are not when done in an office setting.

While the behavior might not change, in some circumstances online conversations could produce better evidence of harassment. Text threads can be saved or printed, and if a Zoom conversation is recorded there is a transcript generated as well. This may put a victim in a better position than had the conduct happened in the office and evidence was just based on the party’s testimony.

The events of the past 18 months are not over. As we see today with the Delta variant, the virus is not contained. Because of this, I don’t foresee many businesses flipping a switch and getting back to a pre-pandemic work environment. The gradual and evolving nature of our recovery is an opportunity for businesses to re-think how they did business before the pandemic and assess what makes sense in the new reality. Most likely it will be a spectrum of solutions.

Many businesses are re-thinking workplace flexibility not just for the near term, but as a long- term option for workers, like Twitter for example. At the other end of the spectrum, Goldman Sachs is requiring a return to a fully in-person office. Hopefully somewhere on this spectrum is the recognition that working from home is a proven reasonable accommodation for some disabled workers and employers will be more likely to agree that it could make sense.

Because of the need for labor, employers who typically hired hourly workers with no benefits now need to incentivize applications. Yesterday I walked by my local burrito and taco place, quick serve with very little seating, and they had a sign in the window hiring hourly workers, offering paid sick leave, paid time off, and free meals. Probably not what they offered workers pre-pandemic but necessary in this market and perhaps for the foreseeable future.

The pandemic has also brought into stark relief the caregiving burden on women who had to (and still are) juggle working, caregiving, and homeschooling young children. Burnout and mental health issues are legitimate concerns as is the exodus of women from the workforce.  We have no federal leave laws, and only 15 states and the District of Columbia have paid leave laws. Hopefully the pandemic has made the need for paid leave clear and state legislatures will introduce leave bills.  Many companies may re-think their rigid paid time off policies to allow a more flexible approach to better accommodate workers’ individual obligations. For example, instead of losing any unused paid time off an employee could cash in any unused time. Businesses might recognize the vital role child-care plays not just in the lives of families, but in the lives of businesses as well. On-site childcare or childcare benefits could be ways to attract, retain, and get the best out of many of their workers.

Kabrina Krebel Chang is a Clinical Associate Professor of Business Law and Ethics in the Markets, Public Policy, and Law Department at Boston University’s Questrom School of Business. She teaches Introduction to Business Law and Employment law in the undergraduate program and MBA programs. Professor Chang’s research focuses on employment matters, in particular social media, and how that impacts employment and management decisions, and on corporate social advocacy. Her work has been published in academic journals, news outlets such at The New York Times, Quartz.com, Bloomberg, and The Boston Globe, and in magazines such as Forbes and Harvard Business Review. Professor Chang has won several awards for her teaching and writing. Before her academic career, Professor Chang was a trial lawyer in in private practice.

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Now that the inauguration has passed and the Biden administration has begun its work, it is a good time for retailers to take stock of the labor and employment issues that are likely to assume prominence in 2021, and to consider preparing to meet the challenges each of these issues pose. In no particular order, below are the top 10 issues that are likely to keep retail employers up at night in 2021.

1. Changes to Federal Labor and Employment Policy

With the Democrats in control of the White House, U.S. Senate, and U.S. House of Representatives, federal labor and employment policy is sure to change in many respects. Some of the key changes that may affect retailers include changes to:

, including nominations for members of the National Labor Relations Board;

, including anticipated changes to the federal minimum wage, exempt salary requirements, and the definitions of independent contractor and joint employer under the Fair Labor Standards Act.

2. COVID-19 Compliance

2021 promises to bring the continued proliferation of ever-changing federal, state, and local statutes, ordinances, and executive orders, as well as local public health orders relating to COVID-19 and addressing issues such as:

closures, capacity, social distancing, masks, etc.;

work-from-home and remote work rules, policies, and procedures;

hazard pay requirements.

3. Diversity and Inclusion

Diversity and inclusion (D&I) will continue to be top of mind for retailers in the wake of the 2020 Black Lives Matter protests and other social justice movements in 2020. Many retailers significantly upped their game in 2020 by creating, implementing, and managing comprehensive D&I programs and training initiatives. This trend is expected to continue into 2021. In addition, President Biden may issue a proactive requirement on federal contractors to require D&I or implicit bias training and programs.

Given the  retailers may also want to consider including the concept of equity in their D&I efforts and incorporating initiatives to help support underserved communities. Some ideas for doing so include:

promoting a culture of anti-hatred through policies on social media, dress, and respectful employee relations.

Another challenge for retailers in 2021 will be incorporating the many changes driven by the Supreme Court of the United States’ decision in . In that case, the Supreme Court held that, pursuant to Title VII of the Civil Rights Act of 1964, covered employers may not discriminate against applicants or employees on the basis of sexual orientation or gender identity. The decision contains  in their use of pronouns and honorifics, dress codes, and sex-segregated facilities.

4. Customer Face-Covering Issues

As long as health agencies are advising most members of the public to wear face masks—which could be into 2022—retailers likely will encounter some customers who refuse to wear them. Unfortunately, retailers that adopt a strict “no mask, no service” policy also may face legal challenges. Customer opposition to face masks can raise thorny , and can lead to litigation. However, retailers have had some success in defending these lawsuits in court. In October 2020, a Pennsylvania district court  a plaintiff’s request for a preliminary injunction to modify a grocery store chain’s policy requiring all customers to wear face masks or other face coverings, finding that the policy did not discriminate against the plaintiff based on his disabilities.

Customer challenges to face mask policies could take on a new twist once a significant proportion of the population is vaccinated. Customers may refuse to wear face masks on the grounds that they have been vaccinated. Whether public health guidance regarding wearing face masks changes in the future remains to be seen. Retailers may want to keep apprised of the latest public health guidance on that issue.

5. Disability Access Issues

Website accessibility claims have been vexing retailers for many years and will continue in the future until a case makes its way to the Supreme Court or the U.S. Department of Justice issues guidance. In the meantime, retailers will continue to navigate this evolving area of law without any direction from the judicial or legislative branches.

Retailers can also expect challenges to gift cards for visually impaired customers to continue in 2021. In 2020, a slew of lawsuits were filed arguing that retailers were required to offer Braille gift cards to visually impaired customers. In April 2020, a federal district court judge in the Southern District of New York issued a decision  similar claims. That decision is now on appeal at the United States Court of Appeals for the Second Circuit.

6. COVID-19 Litigation

Although there have been COVID-19–related lawsuits filed, retailers have not been hard hit with litigation from customers claiming to have contracted COVID-19 in stores. However, as of February 2021, close to 200 COVID-19–related lawsuits have been filed against retailers around the country. The types of claims that are being pressed in those lawsuits include: disability discrimination, failure to provide and pay for sick and other leave benefits, failure to provide notice under the Worker Adjustment and Retraining Notification (WARN) Act, wrongful discharge, and retaliation. Lately, employees have been filing lawsuits claiming that their employers failed to comply with COVID-19 safety protocols, especially in California. The claims in those cases range from whistleblower claims to public nuisance claims.

7. COVID-19 Vaccinations

Many retailers are considering  against COVID-19. Other retailers have decided not to require that their employees get vaccinated and are instead hoping to be able to incentivize their employees to agree to being vaccinated against COVID-19. Some of the incentives retailers are considering offering include one-time bonuses, unpaid or paid time off, travel and childcare costs associated with obtaining the vaccine, and access to onsite clinics. Offering such incentives is not without risk, however, as the U.S. Equal Employment Opportunity Commission (EEOC) may find that such incentive programs run afoul of the Americans with Disabilities Act (ADA) and other laws enforced by the EEOC. The EEOC has not yet issued guidance on this topic, but multiple industry-specific employer groups, including retail, have been urging the federal agency to do so.

8. Complicated Leave Questions

Retailers used to think navigating the complex web of leave requirements under the ADA, Family and Medical Leave Act (FMLA) and workers’ compensation laws was complicated. With the addition of the  and the proliferation of state and local laws governing leave related to COVID-19, navigating the complex web of overlapping leave requirements has become even more difficult. Unfortunately, there is no quick fix for retailers. Retailers may want to carefully consider all of the various state, local, and federal laws governing leave before making leave decisions.

9. Medical Marijuana Usage

Despite (or maybe because of) the pandemic, five states () recently legalized recreational and/or the medical use of marijuana. Marijuana legalization raises challenging workplace questions related to drug testing, disability accommodation, workplace safety, hiring, and employment termination, among other issues. Retailers may want to stay abreast of the changing state laws relating to marijuana as more and more states enact measures to legalize recreational and/or medical use of marijuana.

10. State and Local Law Changes

Finally, retailers may want to continue to keep an eye on state and local law changes in 2021. In 2020, several states (e.g.,  and ) enacted sweeping changes in their laws relating to wage and hour issues, paid sick leave, and pay equity. In many other states,  went into effect at the beginning of 2021. As the political landscape continues to change and the pandemic becomes more controlled, retailers can expect a renewed focus on state and local changes. Hot topics for retailers are expected to include predictive scheduling, minimum wage, overtime, paid leave, and pay equity.

Diane Saunders is a Shareholder in the Boston office. Ms. Saunders is the Co-Chair of the firm’s Retail Practice Group, and a member of the firm’s Steering Committees for the Class Action Practice Group and Professional Development. Ms. Saunders has been helping employers with their labor and employment issues and business disputes for over 20 years. Her clients include businesses of all sizes and in a variety of industries, as well as non-profit organizations. Ms. Saunders is a skilled and aggressive litigator and possesses significant expertise in class and collective...

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There are various labor and employment regulations associated with self-employment. Important topics range from tax data collection to insurance coverage and could even include specific requirements for record-keeping or various compliance issues.

It is generally advised that contracted workers research their legal obligations thoroughly before initiating a job or committing to any long-term contracts. Doing so can help ensure that they have the necessary information to remain compliant with all applicable laws while also protecting their rights in the process.

Certain guidelines and regulations must be adhered to for an independent contractor to remain compliant with the law. When engaging in business activities as an independent contractor, understanding the legal distinction between an employee and a contractor is very important.

Generally speaking, and often use IRS-approved invoices when billing their clients. Additionally, independent contractors may receive a 1099-Misc form from their clients at the end of the tax year instead of a W-2 which employees typically receive.

Understanding these basics can help ensure that all parties involved will have safe and successful engagements.

As an independent contractor, navigating employment law can be difficult due to the varied and shifting legal landscape. However, familiarizing oneself with relevant decisions from the Supreme Court and circuit court jurisprudence is essential for understanding applicable federal employment protections.

When it comes to federal law-based matters involving employees versus independent contractors, either party must consult with legal counsel with extensive knowledge to ensure protection under existing laws.

It is important to understand the most pertinent federal labor laws that may impact your business while you are self-employed. establishes minimum wage rates, overtime payment, and record-keeping requirements and – of special concern to independent contractors – establishes criteria for determining who qualifies as an employee.

Specifically, workers must be classified by employers as either employees or independent contractors based on a designation made independently by each employer. As any misclassification could potentially result in statutory penalties, employers should familiarize themselves with the definition of an independent contractor so they can make a conscious decision about how their workers will be identified.

As an independent contractor, it is important to be aware of the unique that apply to your work relationship. The differences between an employee and independent contractor status can make understanding applicable state law challenging.

Independent contractors are not subject to minimum wage and overtime requirements, but they may be required to collect and pay state and federal taxes on the income they earn. Other laws that can affect a contract worker’s rights include workers’ compensation, unemployment benefits, and anti-discrimination protections.

Staying informed of these regulations will help keep you compliant with all relevant statutes in your state. By understanding your rights within specific legal frameworks, you can protect yourself while negotiating contracts with clients.

Being an independent contractor can bring a great deal of freedom and flexibility, but there are also important human resources issues to consider. It’s the contractor’s responsibility to take care of their retirement planning, social security contributions, tax withholding, health insurance coverage, and liability protection.

Contract workers do not receive benefits when working for a company; therefore, with health insurance to protect them from medical emergencies. In addition, contractors should be aware that they might need to create contracts defining the scope of work and payment agreements with employers to ensure compliance with industry standards and regulations. It is advisable to work with reliable lawyers who are knowledgeable and qualified.

Before signing an agreement, independent contractors should do research on their employer’s payment history to verify they will be paid promptly, as well as evaluate any risks associated with their specific kind of contract labor.

As an independent contractor, you are not protected under any federal employment laws, but you are still subject to some labor laws. It is essential to familiarize yourself with both state and federal law. Additionally, you can choose to work with a Human Resources professional or organization to effectively settle any disputes or misunderstandings that may occur during a job If you have any questions about your legal status, or federal or state employment laws or you want to learn more about human resource issues for independent contractors, please contact us. We would be happy to help answer any of your questions.

Individuals who are interested in promoting the health and safety of employees may consider earning a .

Labor laws serve as mediators between the government, organizations and employers, workers and unions. They establish the rights and responsibilities of employees in a variety of work settings and can mandate everything from workplace safety and health to workers’ compensation.

Let’s explore workers’ compensation, for example. These programs compensate employees who are injured on the job. They can pay health providers directly or compensate the employee with a lump sum of cash. Examples of workers’ compensation laws include the Longshore and Harbor Workers’ Compensation Act, the Energy Employees Occupational Illness Compensation Program, the Federal Employees’ Compensation Act and the Black Lung Benefits Act.

Organizations are responsible for staying up-to-date on any changes to existing labor laws and becoming knowledgeable about new laws. The following regulations have been established to protect and promote the safety and wellness of workers across the country.

1. Norris-LaGuardia Act (1932)

The Norris-LaGuardia act was passed at a time when workers had essentially no rights to organize. Courts routinely issued injunctions against striking and picketing by workers. These injunctions could be issued merely on the basis of testimony by the employer. Uncooperative workers were fined and jailed without trial or due process.

The Act protected the workers’ right to strike. It strictly forbade courts from violating a worker’s right to strike, organize through a union, assist someone else involved in a labor dispute, peacefully picket and peaceably assemble. The Act rationalized that “the individual unorganized worker is commonly helpless to exercise actual liberty” under the conditions of the modern capitalist economy.

2. National Labor Relations Act (1935)

Passed in 1935, this labor law, more than any other, dictates the terms of labor relations in the private sector. The NLRA establishes certain rights for employees, including the right to self-organize; form or join labor organizations; bargain collectively; and engage in other activities of collective bargaining, mutual aid or protection.

The NLRA also establishes prohibitions on how employers are permitted to address these rights. It prohibits company-led unions, and rules as an unfair labor practice the discrimination against workers who are engaged in collective bargaining. If a workers’ rights are violated, the worker can file a charge with a regional National Labor Relations Board office within six months of the violation.

3. Fair Labor Standards Act (1938)

The result of a long fought struggle on the part of workers, the Fair Labor Standards Act of 1938 standardized the eight-hour day and prohibits child labor. Children under sixteen are barred from working. Additionally, the Act instituted a minimum wage.

4. Taft-Hartley Act (1947)

The Taft-Hartley Act is a series of amendments to the NLRA. Passed in a more conservative post-war climate, the amendments were intended to forbid unfair labor practices by unions. Two important sections, widely considered anti-labor, are the “secondary boycott” provision and the “right to work” provision.

A “secondary boycott” is the boycotting of someone else’s employer. The provision in the Act outlaws this, meaning a union worker cannot picket another worker’s employer. The “right to work” provision allows state legislatures to outlaw “union shops,” meaning new employees must not be compelled to join the union within a certain time period.

5. Labor Management Reporting and Disclosure Act (1959)

Also known as the Landrum-Griffin Act, this labor law was passed in response to corruption and racketeering in labor unions. It guarantees an equal right for every union member to nominate and vote for union leadership, attend meetings and take part in discussions. It also protects union members from being disciplined for suing a union. In addition, the Act more rigorously regulates elections in unions.

6. Title VII of the Civil Rights Act (1964)

According to Title VII of the Civil Rights Act, no employer may “refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his [or her] compensation, terms, condition, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”

7. Age Discrimination in Employment Act (1967)

The Age Discrimination in Employment Act (ADEA) prohibits employment discrimination against people 40 years of age or older. It also prohibits employers from refusing to refer a person for employment on the basis of age. ADEA also covers unions, prohibiting them from refusing to include members on the basis of age.

8. Occupational Safety and Health Act (1970)

The Occupational Safety and Health Act (OSH Act) covers private sector businesses who have two or more employees. It requires employers to keep the workplace free from hazardous conditions. The Act creates and defines three rights for employees: a “right to know” information about the dangers involved in their job, a right to file OSHA complaints to , and a right to not be punished for exercising rights .

9. Family and Medical Leave Act (1993)

The Family and Medical Leave Act (FMLA) lets eligible employees take unpaid leave for specific family and medical reasons without the danger of losing their jobs or health insurance. Employees are allowed twelve workweeks of leave after the birth of a child, to care for a spouse or child with a serious health condition, or in the event a serious health condition prevents the employee from adequately performing their job.

10. Section 503 of the Rehabilitation Act (2013)

In 2013, the Department of Labor’s Office of Federal Compliance Programs issued Section 503 of the Rehabilitation Act as well as the Vietnam Era Veteran’s Readjustment Assistance Act. These labor laws seek to protect veterans and individuals who may have disabilities. Employers can ask job applicants to voluntarily identify as a veteran or as a person with a disability during the application process or after they have been offered the job.

For those who wish to build their knowledge of labor laws and the safety industry, an excellent choice is to explore the online from Eastern Kentucky University.

Program courses can help you demonstrate a continued commitment to learning and leadership. Whether you aspire to work at the governmental level or in the private sector, our distinguished faculty of safety professionals delivers a comprehensive curriculum that can springboard your journey to a rewarding career.

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Track your regular work hours, break time, and overtime hours.

The Fair Labor Standards Act (FLSA) establishes minimum wage, overtime pay, recordkeeping, and youth employment standards affecting employees in the private sector and in Federal, State, and local governments. Covered nonexempt workers are entitled to a minimum wage of not less than $7.25 per hour effective July 24, 2009. Overtime pay at a rate not less than one and one-half times the regular rate of pay is required after 40 hours of work in a workweek.

October 13, 2022, the U.S. Department of Labor published a   that proposes to revise the Department’s guidance on how to determine who is an employee or independent contractor under the Fair Labor Standards Act (FLSA). The NPRM proposes to rescind the rule, Independent Contractor Status Under the Fair Labor Standards Act (), that was published on January 7, 2021, and replace it with an analysis for determining employee or independent contractor status that is more consistent with the FLSA as interpreted by longstanding judicial precedent. The Department believes that its proposed rule would reduce the risk that employees are misclassified as independent contractors, while providing added certainty for businesses that engage (or wish to engage) with individuals who are in business for themselves. More information about the rule can be found .

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By David I. Brody

Jul. 31, 2020

When March began this year, nobody had any idea what was just around the corner – a global pandemic, a fiscal meltdown, unprecedented unemployment and a national reckoning with the terrible consequences of centuries of racial violence and inequity. Then we all witnessed a historic decision from the Supreme Court, affirming, at long last, that our family and friends in the LBGTQ community are protected from discrimination in employment under federal law. 

In this ever-changing landscape, it is increasingly important to keep up to speed on the latest employment legal cases and developments. Below is a brief summary of the seven most significant employment legal cases.

1. U.S. Supreme Court Issues Landmark Civil Rights Decision

Bostock v. Clayton County, 590 U.S. (2020)

The Supreme Court has issued a landmark decision in Bostock v. Clayton County, holding that Title VII prohibits discrimination against employees based upon sexual orientation and transgender status. 

In the 6-3 Opinion of the Court, written by Justice Gorsuch — who, along with Chief Justice Roberts, sided with the four “liberal” members of the Court — the majority held that a “straightforward” rule emerges from the ordinary meaning and application of Title VII’s prohibition against sex discrimination: 

“[F]or an employer to discriminate against employees for being homosexual or transgender, the employer must intentionally discriminate against individual men and women in part because of sex. That has always been prohibited by Title VII’s plain terms — and that should be the end of the analysis.’” 

Such discrimination has long been a violation of Massachusetts law, Chapter 151B, but with the Bostock decision, it is now clearly unlawful to discriminate in employment on the basis of sexual orientation or gender identity.

2. Unlawful Employment Practices During the COVID-19 Pandemic

During these uncertain times, employers and employees alike are struggling to understand their legal rights and obligations. To that end, there has been a great deal of COVID-specific guidance provided by state and federal agencies, including the , , and .

It is important to remember that neither a global pandemic nor an economic recession can be used as a shield by employers to carry out unlawful employment practices. 

Indeed, as the Massachusetts Supreme Judicial Court has noted, just because an employer may be required to “reduce its workforce does not mean that it is free to make its employment decisions on impermissible grounds: ‘even during a legitimate reorganization or workforce reduction, an employer may not dismiss employees for unlawful discriminatory reasons.’” See Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 41–42 (2005).

If you think that you may have been illegally targeted, seek legal counsel as soon as possible and prior to waiving any legal rights.

3. Breach of Contract Damages for the Loss of One’s Life’s Work

Hlatky v. Steward Health Care System, Inc., 484 Mass. 566 (2020)

Following a jury trial, Dr. Hlatky, an experienced cancer researcher, was awarded $10 million in damages in a breach of contract action against her former employer, Steward Health. The $10 million damage award represented the cost of reestablishing her research laboratory, which she lost as a result of Defendant’s unlawful conduct. 

On appeal, the Massachusetts Supreme Judicial Court unanimously agreed the damages awarded were not too speculative, noting that the harm suffered by Dr. Hlatky, including the loss of her research laboratory, equipment, and cell samples, constituted her “life’s work.”

The Court was, however, divided regarding whether restrictions should be imposed on how Dr. Hlatky could use the $10 million award. In the six Justice decision, three Justices were concerned that, since the laboratory had not actually belonged to Dr. Hlatky, an unrestricted award might put Dr. Hlatky in a better position than she would have been had there been no breach, e.g., “[n]othing would prevent Hlatky from spending the $10 million on a house or a yacht rather than on the re-establishment of a cancer research laboratory.”

The other three Justice were not persuaded, “Whether she wishes to start again, whether she even could start again after so much time has passed and her faculty position has been lost, whether she wishes to use the money to fund different research or others; research in the same field, or whether she wants to hike the Appalachian trail — these matters simply are not our concern.”

These Justices pointed out that imposing restrictions on such a damage award would open a “Pandora’s box of unknown future harm to the predictability of contract law upon which contracting parties have relied for hundreds of years.”

As the Court was equally divided, the trial court’s award of monetary damages – without restrictions – was affirmed.

4. Non-Competition Agreements and the “Material Change” Doctrine

Now Bus. Intel., Inc. v. Donahue, C.A. No. 17-3732 (Middlesex Sup Ct. Apr. 1, 2020)

A non-competition agreement may become unenforceable if, after execution, the terms and conditions of employment are modified to the point where the parties have effectively abandoned the original employment agreement and entered into a new employment agreement. This is known as the “material change” doctrine which was delineated in F.A. Bartlett Tree Expert Co. v. Barrington, 353 Mass. 585 (1968). The application of the material change doctrine is a highly fact-specific inquiry and will focus on factors, such as promotions, changes in job duties and titles, changes in remuneration, changes to sales area, as well as the associated time periods for such changes.

In the recent case of Now Bus. Intel. Inc. V. Donahue, the Superior Court rejected an employee’s material change defense to the enforceability of his non-compete. In granting Summary Judgment in favor of the former employer, the Court ultimately held that the temporary and short-term changes to the employee’s job duties, without more, did not amount to a material change sufficient to render otherwise reasonable and valid post-employment restriction unenforceable.

5. Anti-SLAPP Motion Revived

Rosario v. Caring Bees Healthcare, Inc., C.A. No. 19-P-1223 (Mass. App. Ct. June 5, 2020)

Retaliatory lawsuits designed to silence one from speaking out are referred to as strategic lawsuits against public participation, or “SLAPP Suits,” and are expressly forbidden in Massachusetts. See the Anti-SLAPP Statute, M.G.L. c. 231, § 59H (the “Statute”). The Statute provides a quick mechanism to dispose of SLAPP suits, and it allows the victim of a SLAPP suit to recover attorney’s fees.

Here, Ms. Rosario had complained (to co-workers, her mother, the MCAD, and, finally, in court) of sexual harassment by her supervisor, Jean Paul Karangwa. In response, Mr. Karangwa counter-sued Ms. Rosario for defamation and intentional infliction of emotional distress. Relying on the Statute, Ms. Rosario moved to dismiss Mr. Karangwa’s counter-claims. The lower court denied her motion, indicating that there was a colorable basis to believe that Ms. Rosario’s statements were defamatory, i.e., false and causing damage to Mr. Karangwa.

However, the Massachusetts Appeals Court reversed and remanded. The Court reiterated that the legal issue was not solely whether Mr. Karangwa’s claims were “colorable” but also, if so, whether or not they were retaliatory, i.e., “primarily brought to chill [Ms. Rosario’s] legitimate petitioning activities.” 

In considering whether or not Mr. Karangwa’s counterclaims were retaliatory, the lower court should consider, among other things, (1) whether the claims are ‘typical’ SLAPP claims, e.g., claims that one would not likely bring on their own, (2) the temporal proximity of when the counter-claims were brought to when Ms. Rosario engaged in escalated protected activity, e.g., when Ms. Rosario filed her claims to court, and (3) the chilling impact on such activity by, for example, increasing the cost to Ms. Rosario of complaining about sexual harassment.

The case was remanded to the lower court for a sequential application of the correct anti-SLAPP standard.

6. Enforcement of Arbitration Agreements

Theodore v. Uber Technologies, Inc., C.A. No. 18-cv-12147 (D. Mass. Mar. 3, 2020)

Many executives (and employees generally) are subject to arbitration clauses of which they are unaware until a dispute arises. The enforceability of such clauses is often hotly disputed. This is particularly true in civil rights cases, pitting two established principles against each other (i.e., the preference for arbitration under federal law against a strong public policy against discrimination). Enforceability is often fact-specific, such as whether the agreement to arbitrate and the waiver of judicial remedy are sufficiently obvious and clear.

Although Theodore is not an employment case, its analysis may be useful, especially regarding on-line forms that invite a user to follow one or more links which can be easily bypassed. The US District Court’s analysis involved not only a review of the text itself but also a discussion of the font size, layout, and background color on the page. The Court went so far as to include screen-shots in the decision.

Ultimately, the Court refused to compel arbitration where Uber invited a customer to click to “CREATE ACCOUNT” without “reasonably communicating” the impact of doing so.

7. The Process – and Not Just the Final Decision – Matters

Comcast Corp. v. Nat’l Assoc. of African American-Owned Media, 140 S.Ct. 1009 (2020)

In Comcast, the Supreme Court of the United States unanimously held that the but-for causation standard applies to claims of racial discrimination raised under 42 U.S.C. § 1981, a statute which guarantees all persons the same right “to make and enforce contracts . . . as is enjoyed by white citizens.” However, the Court expressly declined to decide an issue raised by Comcast, i.e, whether § 1981(a) guarantees only the right to equivalent contractual outcomes, as Comcast argued, or if it also guarantees the right to an equivalent contracting process, as the law has been interpreted for years.

In her concurrence, Justice Ginsburg addressed Comcast’s argument directly:

“I write separately to resist Comcast’s attempt to cabin a ‘sweeping’ law designed to ‘break down all discrimination between black men and white men” … Under Comcast’s view, § 1981 countenances racial discrimination so long as it occurs in advance of the final contract-formation decision. Thus, a lender would not violate § 1981by requiring prospective borrowers to provide one reference letter if they are white and five if they black. Nor would an employer violate § 1981 by reimbursing expenses for white interviewees but requiring black applicants to pay their own way … That view cannot be squared with the statute. An equal ‘right … to make… contracts’ … is an empty promise without equal opportunities to present or receive offers and negotiate over terms … It is implausible that a law ‘intended to secure … practical freedom’ … would condone discriminatory barriers to contract formation.”

As Justice Ginsburg recognized, and recent events have made abundantly clear, we must remain vigilant to protect and expand, not erode, our civil rights laws.

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