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Employment Law

Adjusted for Inflation, the Federal Minimum Wage at Lowest in Decades

by | Feb 14, 2022 | ,

In December 2021, The Brookings Institution released portions of a study that revealed what the wage increases given to frontline workers at 13 “household name” companies actually mean in the bigger economic picture. At Amazon, for instance, the average hourly wage went up 17 percent, from a pre-Covid-19 pandemic $15.75 in January 2020 to $18.50 by October 2021. Employees at Target saw their average wages go up by 11 percent for the same period, from $14.48 to just over $16. But as the Brookings study termed it, these wage increases were “nominal”—that is, they don’t account for inflation, which, in recent months, coming out of the pandemic recession, is at a 40-year high. In fact, the Brookings study found that, given 2021 inflation figures, some of the wage increases amounted to barely a dollar an hour or less. In other words, it is great that such raises are being given, but they are not all that they’re cracked up to be. And they depend upon the employer’s good graces. Things are worse if you don’t work for one of the companies giving voluntary wage hikes. Due to political stalemates, the federal minimum wage remains frozen at a mere $7.25. Adjusted […]

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The Silenced No More Act Provides a Long-Overdue Expansion of Rights to California Employees

by | Feb 10, 2022 | , ,

On January 1, 2022, a California law went into effect that, among other developments, prohibits nondisclosure agreements (NDAs) that keep employees quiet about the discrimination they have suffered in the workplace. The state legislature passed the bill, known as SB 331 or the Silenced No More Act, on October 7, 2021. What Does the Silenced No More Act Do? SB 331 took a preexisting bar on nondisclosure provisions for sexual harassment and other forms of sex discrimination and expanded it to all forms of discrimination covered by the California Fair Employment and Housing Act (FEHA). While the passage of SB 331 is cause for celebration, it also begs the question: Why was the prohibition on overly broad confidentiality agreements so limited in scope in the first place? The STAND Act In 2018, the California legislature enacted the Stand Together Against Non-Disclosure Act (STAND). The law banned settlement agreement provisions that demand employees be silent about sexual harassment, sexual assault, other forms of sex discrimination, and related retaliation. The legislation, passed in response to the #MeToo movement, was rightfully hailed as a significant victory. The STAND Act took away NDAs as a powerful tool of abusers, who all too often silence […]

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New Yorkers Gain New Legal Protections Headed into 2022

by | Feb 10, 2022 | , ,

In the last days of 2021, New Yorkers scored several legislative victories expanding legal protections for workers across the City and State. Below, our employment law attorneys explain the types of changes that will be enacted under the new laws in 2022. Legal Protection for Domestic Workers First, the State finally recognized what employment and labor laws have too often ignored: domestic work is work. The state’s main antidiscrimination law, the New York State Human Rights Law (NYSHRL), had expressly omitted domestic workers, leaving them vulnerable to various forms of discrimination and sexual harassment that can occur in the workplace. However, under the new law, domestic workers are no longer excluded. Domestic workers who experience discrimination can now pursue relief with the New York State Division of Human Rights or in court. In addition, part-time domestic workers now must receive paid leave benefits, since the legislature lowered the qualifying threshold from 40 to 20 hours per week. Both new laws, which have already gone into effect, were sponsored by former attorney, Assemblywoman Jenifer Rajkumar. The laws are expected to confer rights on 300,000 state workers, including many women of color. Salary Range Requirement for Job Postings With the second legislative victory, […]

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Update to States-The Final Frontier: the Ninth Circuit Addresses Calif. AB 51

by | Oct 26, 2021 | ,

On September 14, 2021, the co-authors of this blog post published an article entitled “States – The Final Frontier: How State Law and State Courts Can Provide Avenues for Justice and Resist the U.S. Supreme Court’s ‘Lochner Lite’ Anti-Employee and Anti-Consumer Agenda.” In that article, we discussed states’ efforts to provide protection from hostile federal arbitration jurisprudence—including enactment of laws that would prevent employers from imposing forced arbitration on their employees under certain circumstances.[1] We noted that when employees sue in court on their underlying legal claims, and rely on these state protections to avoid arbitration, they will inevitably face legal arguments that these laws are preempted by the Federal Arbitration Act (FAA). While states may not categorically exempt particular claims from arbitration, the question of whether the state law will survive the challenge generally depends on the wording and effect of the particular statute at issue.[2] On September 15, 2021, one day after our article was published, the Ninth Circuit addressed one such challenge to a state law—Cal. Lab. Code § 432.6, referenced in our article, and other statutory provisions enacted through AB 51—in Chamber of Commerce of U.S. v. Bonta, 13 F.4th 766 (9th Cir. 2021). Accordingly, we follow […]

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Seeking COVID-19-Related Accommodations for At-Risk Household Members

by | Jul 28, 2021 |

Since the pandemic disrupted U.S. life in March 2020, the number of Americans who have worked remotely, at least in part, has more than doubled.[1] After over a year of proof that telework is possible, workers have gained fodder for legal arguments that remote work is a reasonable accommodation for their disabilities without undue burdens for employers.[2] As vaccines have become more accessible and COVID-19 rates began to drop, more and more workplaces started preparing for and implementing return-to-office arrangements.[3] Yet the infectiousness and severity of COVID-19 continue to raise concerns about the implications of working closely with unvaccinated colleagues, especially in light of the Delta variant and breakthrough infections. While most current disability laws mandate employers to provide reasonable COVID-related accommodations to employees with disabilities, employers are not expressly required to grant reasonable accommodations to protect employees’ household members who are predisposed to complications from COVID-19. Untold numbers of Americans presently face this predicament, which has especially heightened stakes for individuals for whom the vaccine is inadequate, such as those who are immunocompromised.[4] Nevertheless, employees returning to less-than-fully-vaccinated workplaces seeking to protect their vulnerable loved ones may not be without options. While each person’s situation will differ, this week—which marks the […]

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New York City Fast Food Workers Just Declared Independence from At-Will Employment

by | Jul 4, 2021 | ,

As of today, July 4, 2021, fast-food workers in New York City are free from at-will employment, one of the oldest and least worker-friendly rules in employment law. At-will employment means that an employer can discharge workers at will “for a good reason, a bad reason, or no reason at all.”[1] This rule generally applies to all private employees in America who do not have a “just cause” provision or a time period for employment in their contracts. Thus, private employers have been able to fire workers for the following reasons: Not smiling enough at customers[2] Posting satirical cartoons on Facebook[3] Attending law school at night after work[4] Speaking out against defense spending[5] Refusing to falsify records[6] Reporting financial improprieties to top management[7] Based on stories like these, the rule’s shaky historical foundations,[8] and its disproportionate impact on workers of color,[9] scholars and advocates have sought to end at-will employment for decades.[10] Over time, courts have recognized some important exceptions to at-will employment. A contractual[11] or fiduciary obligation[12] may now limit an employers’ absolute authority to fire an employee. In addition, public policy,[13] anti-discrimination laws,[14] and whistleblower protections[15] have made some discriminatory or retaliatory firings unlawful.[16] Despite these widening exceptions, few have successfully challenged the default rule itself. New York […]

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My Employer Threatened or Manipulated Me into Working. Was This Labor Abuse or Mistreatment That I Experienced Illegal?

by | Jul 2, 2021 | ,

Everyone deserves the right to choose a job where they are treated squarely and paid fairly for their hard work. Unfortunately, some abusive employers—whether businesses or individual bosses—violate this basic human right with exploitative working conditions. By abusing or mistreating workers, however, these employers may also be breaking the law; and therefore, be liable financially to workers for damages. A recent federal court ruling in Dale Carmen v. Health Carousel, LLC,[1] highlights at least two situations in which employer conduct may prove illegal, enabling workers to recover compensation for the harms they endure. First, some employment contracts attempt to impose serious financial penalties against a worker for leaving the employer. These consequences may be so harsh that they effectively deny a worker the choice to freely leave the job.[2] Second, some employers may manipulate a worker with bait-and-switch tricks that also essentially trap a worker into doing a job against their wishes.[3] In both scenarios, the employer may break an important federal law: the Trafficking Victims Protection Act. This statute protects workers from various forms of labor exploitation and abuse. Significantly, it prohibits anyone from “knowingly . . . obtain[ing] the labor or services of a person by . . . threats […]

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Litigation Fellow – San Francisco

by | Jun 10, 2021 |

a national public interest law firm with a focus on game-changing employment discrimination cases, seek a Mandarin-speaking litigation fellow for its Asian American  Litigation and Finance Practice Group to start immediately. The Fellow will focus on representing plaintiffs in individual and class action employment discrimination matters, sexual assault cases, Title  IX lawsuits, qui tam and whistleblower matters, wage and hour actions, and financial services cases. Litigation fellows will work with case team members and clients in settlement negotiations, mediation,  arbitration, and litigation. Litigation fellows are expected to conduct factual and legal research; draft legal documents (including pleadings, motions, briefs, legal memoranda, mediation statements,  discovery requests and responses, and settlement agreements); participate in discovery; provide legal advice to clients; assist and participate in depositions, mediations, arbitrations, trials, and court proceedings; and attend industry, networking, and community outreach events. Our fellows are expected to learn quickly from the firm’s more experienced attorneys and are given as much responsibility as they can handle. Applicants should have: commitment to civil rights; interest in litigation; fluency in Mandarin Chinese; strong academic credentials; excellent writing and communication skills; strong analytical capabilities; initiative and energy to see projects to completion; and the ability to work effectively in […]

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Congress Must Open the Courthouse Doors to Uphold Military Members’ Civil Rights

by | May 13, 2021 | , ,

Workers and students who experience civil rights violations have a plethora of legal tools at their disposal to seek accountability and relief—ranging from constitutional, to statutory, to tort claims. But the courthouse doors have long been closed to one group, whose exclusion from remedies by the government which they defend is particularly jarring: members of the military. Federal civil rights statutes often exclude uniformed members of the military. See, e.g., 20 U.S.C. 1681(a)(4) (excepting from Title IX’s coverage an educational institution whose primary purpose is the training of individuals for the military services of the United States, or the merchant marine”); 29 C.F.R. § 1614.103(d)(1) (noting that various civil rights statutes only apply to non-uniformed members of military departments); Jackson v. Modly, 949 F.3d 763, 772 (DC Cir. 2020) (“[E]very circuit court of appeals to address this issue since 1978 has held that uniformed members of the armed forces are not included within the protections of Title VII . . . .”). But Congress had already provided service members a legal remedy through tort law. The Federal Torts Claims Act (FTCA), passed in the first half of the 20th Century, allowed military members to sue the United States for their injuries—except for […]

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Banning Bans on Competition: DC Passes Sweeping Prohibition on Non-Compete Agreements in the District

by | Jan 26, 2021 | ,

This blog was co-authored by Leigh Anne St. Charles and Kaitlin Leary. Mayor Muriel Bowser recently signed into law a new Ban on Non-Compete Agreements Amendment Act of 2020 for the District of Columbia. The new law, which will go into effect following a 30-day congressional review period, offers sweeping and unprecedented employee protection from restrictive workplace policies designed to prevent employees from engaging in employment deemed “competitive.” In a time when employees are facing widespread terminations and lay-offs, legislation focused on stemming employer interference with the ability to earn a living is not, in itself, surprising. Indeed, DC’s neighbor Virginia passed its own ban on non-compete agreements for low wage employees eight months before DC, in April of 2020. However, the District’s new non-compete ban goes far beyond the new Virginia law, and applies the ban on non-competes to virtually all employers “operating in the District.” Once it goes into effect, DC’s new law is poised to become one of the broadest bans on non-compete agreements in the country. What Is a Non-Compete Agreement? A non-compete agreement is a contract between an employer and an employee that prohibits the employee from working for a competitor of the employer for a certain period of time. […]

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