A Trending News interview from Employment Law This Week®, featuring attorney Garen Dodge, Member of the Firm:

The Department of Labor (DOL) announced that both the Wage and Hour Division (WHD) and the Office of Federal Contract Compliance Programs (OFCCP) had record years in fiscal year 2019—the WHD for wage recovery and the OFCCP for bias settlements.

We invite you to view Employment Law This Week® – tracking the latest developments that could impact you and your workforce. The series features three components: Trending News, Deep Dives, and Monthly Rundowns.

Watch the series and subscribe for email notifications: EmploymentLawThisWeek.com.

These materials have been provided for informational purposes only and are not intended and should not be construed to constitute legal advice. The content of these materials is copyrighted to Epstein Becker & Green, P.C. EMPLOYMENT LAW THIS WEEK® is a registered trademark of Epstein Becker & Green, P.C. ATTORNEY ADVERTISING.

Alyson Olson, Vice President of Human Resources at Abode Healthcare, shares some tips for California employers, and for those in an increasing number of states across the country with legalized marijuana, on best practices for determining your approach to drug screening:

“Enforcing drug-free workplace policies and conducting drug tests is becoming particularly risky. You’re going to want to make certain you do a detailed review of the state laws that cover drug testing, as well as non-discrimination. Effective communication and a clear understanding of your policies is imperative. Your employees must understand that if they were to come into the workplace or work while under the influence of marijuana, it is strictly prohibited, even if, in that state they’re working in, marijuana is legal to consume recreationally or medically, it’s still prohibited in your workplace. The law and court decisions are going to continue to evolve over the coming years. It is crucial that you as the employer, that you continue to check your policies, your procedures around drug testing and ensure that they still meet your business needs and are effective.”

This is a "Tip of the Week" segment from Employment Law This Week® (Episode 146: August 2019), an online series by Epstein Becker Green. youtu.be/oPSngakRHxk

Visit EmploymentLawThisWeek.com.

These materials have been provided for informational purposes only and are not intended and should not be construed to constitute legal advice. The “Tip of the Week” offers one perspective on possible human resource ideas or business practices. It presents the perspective of an individual not affiliated with Epstein Becker Green and should not be considered legal advice. The content of these materials is copyrighted to Epstein Becker & Green, P.C.

This Employment Law This Week® Monthly Rundown discusses the most important developments for employers heading into November 2019. The episode includes:

1. New California Law Arguably Preempted by FAA

California has passed a new law that states, “A person shall not, as a condition of employment, continued employment, or the receipt of any employment-related benefit, require any applicant for employment or any employee to waive any right, forum, or procedure for a violation of any provision of the California Fair Employment and Housing Act.” But many employers and law firms are taking the position that this legislation is preempted by the Federal Arbitration Act (“FAA”).

“We can expect to receive challenges in the coming months from employers doing business in California as well as business groups, arguing that this new California law is preempted by the Federal Arbitration Act, or the ‘FAA.’”—Kevin Sullivan, Associate, Epstein Becker Green

2. California Employment Law Updates Could Signal Changes Across the Country

Home to one-eighth of the United States’ population, California is a bellwether for states across the country, and that’s why we’re keeping our focus there this month.

“This year, Governor Gavin Newsom signed almost every employment-related bill that the California Legislature presented to him. Assembly Bill 9 extends the time to file a complaint alleging employment discrimination and related claims with the Department of Fair Employment and Housing, the administrative agency generally charged with enforcing California’s employment and civil rights laws, from one year to three years. AB 5 writes into law the ‘ABC test’ set forth in the California Supreme Court’s 2018 Dynamex decision. To establish that someone is a contractor under the now-codified test, a company must show that the worker is free from the control and direction of the company, performs work outside the company’s usual course of business, and that the worker’s regularly engaged in the work that they were hired to do, independent from the work being performed for the company. While a nationwide ‘ABC test’ [and] a federal ban on arbitration are unlikely under the current political environment, they could signal larger changes in the not-so-distant future.”—David Prager, Associate, Epstein Becker Green

3. California Consumer Privacy Act Amended

Employee data gets a brief reprieve from the California Consumer Privacy Act (“CCPA”), thanks to one of several amendments made ahead of the CCPA’s effective date of January 1, 2020. The CCPA gives consumers rights over their personal information, including rights relating to the access and deletion of that information. Because the law defines the term “consumer” broadly, those rights would extend to information that an employer maintains regarding its employees and job applicants. The amendment creates an exception to many requirements of the CCPA for the personal information of employees and job applicants, but only until January 1, 2021.

4. Tip of the Week

Alyson Olson, Vice President of Human Resources at Adobe Healthcare, shares some tips for California employers, and for those in an increasing number of states across the country with legalized marijuana, on best practices for determining your approach to drug screening:

“Enforcing drug-free workplace policies and conducting drug tests is becoming particularly risky. You’re going to want to make certain you do a detailed review of the state laws that cover drug testing, as well as non-discrimination. Effective communication and a clear understanding of your policies is imperative. Your employees must understand that if they were to come into the workplace or work while under the influence of marijuana, it is strictly prohibited, even if, in that state they’re working in, marijuana is legal to consume recreationally or medically, it’s still prohibited in your workplace. The law and court decisions are going to continue to evolve over the coming years. It is crucial that you as the employer, that you continue to check your policies, your procedures around drug testing and ensure that they still meet your business needs and are effective.”—Alyson Olson, VP of Human Resources, Adobe Healthcare

Visit EmploymentLawThisWeek.com.

These materials have been provided for informational purposes only and are not intended and should not be construed to constitute legal advice. The “Tip of the Week” offers one perspective on possible human resource ideas or business practices. It presents the perspective of an individual not affiliated with Epstein Becker Green and should not be considered legal advice. The content of these materials is copyrighted to Epstein Becker & Green, P.C. EMPLOYMENT LAW THIS WEEK® is a registered trademark of Epstein Becker & Green, P.C. ATTORNEY ADVERTISING.

This Employment Law This Week® Monthly Rundown discusses the most important developments for employers heading into October 2019. The episode includes:

1. DOL Issues Final Overtime Rule

On September 24, the U.S. Department of Labor (“DOL”) issued a final rule increasing the annual salary threshold for white-collar exemptions to $684 per week. Up to 10 percent of that amount can be in the form of commissions, non-discretionary bonuses, or other incentive compensation. For highly compensated employees, the final rule increases the annual earnings threshold to $107,432. The new thresholds will take effect January 1, 2020.

“The Department considered that type of commitment in its Notice of Proposed Rulemaking that it issued in March of this year, but chose not to have automatic updating in the final rule.” – Paul DeCamp, Member of the Firm, Epstein Becker Green

Click here for more information: ebglaw.com/news/the-new-dol-overtime-rule-presents-challenges-that-employers-must-address-swiftly/

2. California Codifies “ABC Test” for Classifying Workers

The “ABC test” becomes law in California. Last month, California passed legislation codifying the worker classification test established in the state supreme court’s Dynamex case. The new law goes into effect on January 1, 2020, and will likely impact a number of industries. While versions of the “ABC test” are already used in several states in some circumstances, California has set a new high-water mark, with some other states already signaling that they might follow suit.

Click here for more information: wagehourblog.com/2019/09/articles/state-wage-and-hour-laws/are-more-exemptions-warranted-to-new-california-legislation-codifying-and-expanding-dynamexs-abc-test-for-independent-contractor-status/

3. EEOC Reconsiders Pay Data Collection Beyond 2018

The pay data collection story took another turn in September. After much legal wrangling, the Equal Employment Opportunity Commission (“EEOC”) is still collecting the Component 2 pay data from 2018 and 2017, which was required to be submitted by employers by September 30. But for now, the agency has announced that it does not anticipate renewing the pay data collection requirement moving forward, including for 2019 data. The agency underestimated the compliance cost of yearly submissions for employers. The EEOC plans to assess the value of the data employers filed last month before deciding whether to renew the requirement in the future.

“In 2016, the EEOC decided that they were going to treat every employer the same. So, whether you have a single establishment, which requires one form to be filed, or 150 establishments, where you have 150 forms or more to file, they treated everyone the same way. That is not an accurate representation of what the filing is.” – Robert O’Hara, Member of the Firm, Epstein Becker Green

4. NLRB Wraps Up a Busy Summer 2019

It was a summer to remember for the National Labor Relations Board (“NLRB” or “Board”). With a Republican majority firmly in place, the Board took on a number of contested issues over the past few months. Its decisions continued the NLRB’s move away from the pro-union perspective of the Obama-era Board and, in some cases, reversed long-standing precedent.

"The general impact of the Republican-majority Board decisions is really to slant the case law in favor of employers, and the employer’s position. One major precedent that the majority impacted was the standard applied when looking at unilateral change to bargaining terms. So, historically, there’s always been the standard of ‘clear and unmistakable’ waiver. Now, the Board said, ‘You know, if there’s a management rights provision that really gave them the ability to do that, then we won’t really look at ‘clear and unmistakable’ waiver. We’ll really focus on whether there is language within the contract that really permitted the employer to do that.’ This fall, we will most likely continue to see limits placed on ability to organize and case law that favors unions." – RyAnn McKay Hooper, Associate, Epstein Becker Green

Visit EmploymentLawThisWeek.com.

These materials have been provided for informational purposes only and are not intended and should not be construed to constitute legal advice. The “Tip of the Week” offers one perspective on possible human resource ideas or business practices. It presents the perspective of an individual not affiliated with Epstein Becker Green and should not be considered legal advice. The content of these materials is copyrighted to Epstein Becker & Green, P.C. EMPLOYMENT LAW THIS WEEK® is a registered trademark of Epstein Becker & Green, P.C. ATTORNEY ADVERTISING.

A Trending News interview from Employment Law This Week®, featuring attorney RyAnn McKay Hooper, Associate:

The Republican-majority National Labor Relations Board (NLRB) wrapped up a summer full of decisions that signal a shift in the Board’s focus.

We invite you to view Employment Law This Week® – tracking the latest developments that could impact you and your workforce. The series features three components: Trending News, Deep Dives, and Monthly Rundowns.

Watch the series and subscribe for email notifications: EmploymentLawThisWeek.com.

These materials have been provided for informational purposes only and are not intended and should not be construed to constitute legal advice. The content of these materials is copyrighted to Epstein Becker & Green, P.C. EMPLOYMENT LAW THIS WEEK® is a registered trademark of Epstein Becker & Green, P.C. ATTORNEY ADVERTISING.