President Trump Signs Executive Order Prioritizing Skills over a College Degree for Federal Hiring

Written by Jeremy Mittman and Corey Singer On June 26, 2020, President Trump signed an executive order that will overhaul the government’s hiring practices so that a job applicant’s skills will be given a priority over a college degree.  The executive order directs federal agencies to shift from vetting applicants based on their educational credentials and move toward using skill assessments and interviews with subject … Continue reading President Trump Signs Executive Order Prioritizing Skills over a College Degree for Federal Hiring

Lights, Cameras, Action! Los Angeles Greenlights Resumption of Filming for Productions

Written by Jeremy Mittman and Carly Epstein Over the last week, California and Los Angeles have announced the protocols that must be in place for music, TV, and film productions to re-open. On Friday, June 5, 2020, the California Department of Public Health (the “Department”) stated that music, TV, and film production may resume “no sooner than June 12, 2020” subject to several conditions.  The … Continue reading Lights, Cameras, Action! Los Angeles Greenlights Resumption of Filming for Productions

Be Prepared: What Should Employers Do About the Coronavirus?

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Written by Jeremy Mittman and Thea Rogers

This week, the U.S. Centers for Disease Control and Prevention (CDC) warned that the Coronavirus, otherwise known as COVID-19, will likely continue its spread around the world and to the U.S.  While we don’t know the extent to which the Coronavirus will take hold in the U.S., employers should start planning now so they can protect the safety of their workforces and maintain normal business operations, to the extent possible, should the Coronavirus have a significant impact.

In doing so, employers face potentially conflicting laws that should be taken into account in determining how to move forward.  For example, under the Occupational Safety and Health Act (OSHA) and similar state laws, employers have a general duty and obligation to provide a safe and healthy work environment and must not place their employees in situations that are likely to cause serious physical harm or death.  On the other hand, overreacting or implementing overbroad bans or quarantines that aren’t based on reasonable or reliable facts or information could violate laws that prohibit discrimination (based upon disability, national origin, or other protected characteristics).

Employers should contact counsel with any questions as they navigate putting together their Coronavirus (or general infectious disease prevention) plans and policies, or dealing with employee-specific issues that may arise.

Continue reading “Be Prepared: What Should Employers Do About the Coronavirus?”

NLRB Issues Final Rule on Joint-Employer Standard

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Written by Jeremy Mittman

Why This Matters

On Tuesday, the National Labor Relations Board (“NLRB” or the “Board”) announced that, on February 26, 2020, it will issue its final rule governing joint-employer status under the National Labor Relations Act (“NLRA”).  Under the NLRB’s final rule, an entity may be considered a joint employer of a separate employer’s employees only if the two share or co-determine the employees’ essential terms and conditions of employment.  “Essential terms and conditions of employment” are specifically defined as wages, benefits, hours of work, hiring, discharge, discipline, supervision, and direction.  The Board’s intent in issuing the final rule is to restore the joint-employer standard that was applied for many years prior to the Board’s 2015 decision in Browning-Ferris.

The final rule will be effective April 27, 2020.  The NLRB’s Fact Sheet regarding the final rule is available here.

Continue reading “NLRB Issues Final Rule on Joint-Employer Standard”

More Bad News For California Employers as Governor Signs Bills Into Law

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Written by Jeremy Mittman

Recently, we informed our readers about a new law making it more difficult to classify independent contractors as such.  Unfortunately, that was just the tip of the iceberg.  A number of additional new employment-related bills recently signed into law by Governor Gavin Newsom will have a negative impact on California employers. Unless specifically noted, these laws go into effect on January 1, 2020.  MSK recommends that any employer with California employees should consult with their employment counsel to address questions regarding changes to current policies/procedures in light of these new laws.  Continue reading “More Bad News For California Employers as Governor Signs Bills Into Law”

Bite Your Tongue: NLRB Rules That Produce Company’s Media, Confidentiality Policies are Lawful

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Written by Jonathan Turner

The NLRB under the current administration continues to issue decisions that factor in legitimate business considerations of employers when evaluating rules that are alleged to restrict employee protections under the NLRA.  One such recently issued decision, LA Specialty Produce Company, 368 NLRB No. 93 (October 10, 2019), may have particular significance to many of MSK’s clients because it addresses an important issue on which we frequently have consulted with clients in the past — restrictions on communications responsive to inquiries from the media.

Continue reading “Bite Your Tongue: NLRB Rules That Produce Company’s Media, Confidentiality Policies are Lawful”

Have Independent Contractors in California? You May Need to Rethink That.

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Written by Jeremy Mittman, Jeffrey Davine, Robert Lowe, Susan Kohn Ross and Samuel Richman 

On September 18, 2019, California Governor Gavin Newsom signed into law A.B. 5, codifying the “ABC test” adopted in the California Supreme Court decision, Dynamex (see, e.g. prior posts here, here, and here) and ensuring that most California workers should appropriately be classified as employees instead of independent contractors.  The bill goes into effect January 1, 2020.

Though supporters state that the bill is aimed primarily at the so-called “gig economy,” in reality A.B. 5 affects virtually every type of business in California.

Continue reading “Have Independent Contractors in California? You May Need to Rethink That.”

California Arbitration Roundup: Employers Are 3-1 For Favorable Arbitration Rulings

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Written by Jeremy Mittman

California employers received mostly good news this past month on the arbitration front, with a trio of pro-employer arbitration-related rulings.  The California Supreme Court’s recent ruling invalidating an employer’s arbitration agreement (discussed below) is a notable exception.

California Supreme Court Invalidates Employer’s Arbitration Agreement As Unconscionable.

In OTO LLC v. Ken Kho, the California Supreme Court ruled that an Oakland Toyota dealership’s arbitration agreement with a former employee was unenforceable and was so unfair and one-sided that it was procedurally and substantively unconscionable.  “Arbitration is premised on the parties’ mutual consent, not coercion, and the manner of the agreement’s imposition here raises serious concerns on that score,” the majority opinion said. Continue reading “California Arbitration Roundup: Employers Are 3-1 For Favorable Arbitration Rulings”

Timing Is Everything

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By Jeremy Mittman and Alfredo Ortega

Why This Matters

Earlier this month, the U.S. Supreme Court unanimously ruled in Fort Bend County v. Davis. The message received loud and clear for employers is that timing is everything when it comes to discrimination cases and the use of claim-processing rules, embedded in Title VII, as an affirmative defense. Employers would be well served to ‘watch the clock’ and avoid losing the opportunity to receive an early dismissal. The Court ruled that federal courts can hear discrimination claims under Title VII of the Civil Rights Act if employers do not timely raise the defense that workers failed to first file a charge with the U.S. Equal Employment Opportunity Commission (“EEOC”) or state enforcement agencies, as Title VII requires, before filing suit in federal court. Title VII is a federal law that prohibits employers from discriminating against employees on the basis of sex, race, color, national origin, or religion. Continue reading “Timing Is Everything”

Hit The Road, Jack: Uber Drivers are Independent Contractors According to NLRB

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By Jonathan Turner

Why This Matters

On May 14, the National Labor Relations Board (“NLRB”) released an advice memorandum declaring that Uber drivers are independent contractors (not employees) and are, therefore, not eligible to unionize.  The memo, dated April 16, 2019, said the drivers are independent contractors under the NLRB’s recently-adopted SuperShuttle test (see here), because they have “significant entrepreneurial opportunity” while driving for Uber.   The NLRB’s standard only applies in the labor context.  It does not apply to California wage claims and lawsuits, where the California Supreme Court has adopted the ABC Test set forth in Dynamex (see here). Continue reading “Hit The Road, Jack: Uber Drivers are Independent Contractors According to NLRB”