Category: Labor & Employment

Future of Non-Competes Up in the Air

Future of Non-Competes Up in the Air

The FTC recently announced its proposal to ban non-compete clauses in employment agreements. That proposal is currently in a 60-day period of public comment, and employers are (understandably) nervous. While many employers rely on these provisions to manage competition and protect their IP and confidential information, companies across the country may soon find themselves in the shoes of California employers, having to work around restrictions on non-competes to maximize protection within the increasingly narrow confines of the law.

Employers are not without options in responding to the potential changes should they become law–more aggressive retention incentives, intelligent data security, and stricter confidentiality agreements should all be part of the conversation. Even deferred compensation could be on the table, as noted in the article, though beware of the tax implications. Employers should also keep in mind that the FTC proposal, should it become law, will doubtless be subject to legal challenges and could be tied up in the courts for a while before becoming effective.

“Observers on both sides say that limitations on the clauses will compel employers to get more creative about how they retain talent, using everything from compensation to career advancement to keep workers engaged and loyal to the company. Some companies use deferred compensation—such as retention bonuses or rolling stock options that vest after, say, three years—to give people incentives to stay.”

©1994-2023 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.

Complying With New Federal Pregnant Workers Fairness Act, PUMP for Nursing Mothers Act

The new Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP For Nursing Mothers Act) were adopted when President Joe Biden signed the Consolidated Appropriations Act, 2023 on Dec. 29, 2022.

PWFA: Pregnancy Finally Given Disability-Like Protection

The PWFA applies to employers with at least 15 employees and becomes effective on June 27, 2023.

Like the Americans with Disabilities Act (ADA), the PWFA includes the obligation to provide reasonable accommodations so long as they do not impose an undue hardship. Many courts have determined that pregnancy alone was not a disability entitled to accommodation under the ADA. Under the PWFA, employers will be required to provide reasonable accommodations to employees and applicants with known temporary limitations on their ability to perform the essential functions of their jobs based on a physical or mental condition related to pregnancy, childbirth, and related medical conditions.

The PWFA adopts the same meaning of “reasonable accommodation” and “undue hardship” as used in the ADA, including the interactive process that will typically be used to determine an appropriate reasonable accommodation.

The PWFA provides that an employee or their representative can make the employer aware of the employee’s limitations. It also provides that an employer cannot require an employee to take a paid or unpaid leave of absence if another reasonable accommodation can be provided. Of course, that does not mean the employee gets the accommodation of their choice. The statute provides a defense to damages for employers that, in good faith, work with employees to identify alternative accommodations that are equally effective and do not cause an undue hardship.

Practical Advice for PWFA Compliance

  1. Employers do not have to have a policy for every rule or practice that applies in the workplace. However, if an employer has a reasonable accommodations policy, that policy should be reviewed and updated, as necessary.
  2. Human resources professionals are not the only ones who need training. If managers are not trained as well, they may unwittingly say something in response to an employee’s question that is inconsistent with your policies and practices.
  3. Create a process to follow when employees request an accommodation due to pregnancy-related limitations. The process should be similar to the ADA process, including requesting supporting documentation from the treating healthcare provider. Have employees in states or cities that have adopted versions of the pregnant workers fairness law or other similar laws that are more generous than the federal PWFA? The federal PWFA does not preempt more generous state and local laws. Therefore, any policy, practice, or form may need to be modified depending on where employees are located. As an example, some city and state laws, except in specific circumstances, prohibit employers from requesting medical documentation to confirm an employee’s pregnancy, childbirth, or related medical conditions as part of the accommodation process.
  4. Like under the ADA, when an employee requests an accommodation under the PWFA, Human resources professionals should think about how to make this work, not this will never work. This simple shift in approach makes finding a reasonable accommodation that does not impose an undue hardship on operations more likely.

PUMP for Nursing Mothers Act

The PUMP for Nursing Mothers Act expands existing employer obligations under the Fair Labor Standards Act (FLSA) to provide an employee with reasonable break time to express breast milk for the employee’s nursing child for one year after the child’s birth. The employer obligation to provide a place to express milk shielded from view and intrusion from coworkers and the public (other than a bathroom) continues.

Except for changes to available remedies, the amendment to the FLSA took effect on December 29, 2022. The changes to remedies will take effect on April 28, 2023.

What Changed Under PUMP for Nursing Mothers Act

The PUMP for Nursing Mothers Act covers all employees, not just non-exempt workers. The break time may be unpaid unless otherwise required by federal or state law or municipal ordinance. Employers should ensure that non-exempt nursing employees are paid if they express breast milk during an otherwise paid break period or if they are not completely relieved of duty for the entire break period. Exempt employees should be paid their full weekly salary as required by federal, state, and local law, regardless of whether they take breaks to express breast milk.

With some exceptions, the law requires employees to provide notice of an alleged violation to the employer and give the employer a 10-day cure period before filing a suit.

Employers with fewer than 50 employees can still rely on the small employer exemption, if compliance with the law would cause undue hardship because of significant difficulty or expense. Crewmembers of air carriers are exempted from the law. Rail carriers and motorcoach services operators are covered by the law, but there are exceptions and delayed effective dates for certain employees. No similar exemption is provided for other transportation industry employers.

Practical Advice for PUMP for Nursing Mothers Act Compliance

  1. Educate the HR team and front-line managers on the update to the law and refresh them on the process for providing break time and private spaces to express breast milk.
  2. Like the PWFA, the law does not preempt state law or municipal ordinances that provide greater protection than provided by the PUMP for Nursing Mothers Act. Depending on where employees are located, policies, practices, and the private space provided to express breast milk may need to be modified.
  3. Creativity is the key to being able to come up with staffing solutions and private spaces for nursing mothers to express breast milk. Nothing in the law requires employers to maintain a permanent, dedicated space for nursing mothers. A space temporarily created or converted into a space for expressing breast milk and made available when needed by a nursing mother is sufficient if the space is shielded from view and free from intrusion from coworkers and the public. In other words, allowing an employee to use an office with a door that locks would be convenient, but not practical for many worksites. Depending on the workplace settings, privacy screens, curtains, signage, portable pumping stations, and partnerships with other employers to provide private spaces for nursing mothers are all possibilities.

For more election & legislative news, click here to visit the National Law Review.

Jackson Lewis P.C. © 2023

District of Columbia to Eliminate the Tip Credit: a Specter of the Future?

Currently, employers in the District of Columbia (like the majority of states) are permitted to count customer tips toward the minimum hourly wage they must pay to certain service employees. This practice is often referred to as taking a “tip credit.” Said differently, an employer is allowed to pay particular service employees a cash wage that is less than the minimum wage by relying on tips the employee receives from customers to make up the difference between the subminimum wage paid directly by the employer and the applicable federal or state minimum wage. In the District of Columbia, employers currently are allowed to pay their tipped workers a subminimum wage of $5.35 per hour, with the expectation that customers’ tips will cover the balance of the $16.10–per-hour minimum wage.

In early November 2022, nearly 74 percent of D.C. voters approved Initiative 82, the “District of Columbia Tip Credit Elimination Act of 2022,” which will gradually eliminate use of the tip credit in the District of Columbia by 2027. In 2027, the District will join the small group of states that currently prohibit use of the tip credit (Alaska, California, Minnesota, Montana, Nevada, and Oregon). In 2018, 55 percent of D.C. voters approved a different initiative, which would have phased out the tip credit, but the Council of the District of Columbia overturned the voter-approved initiative. Since then, the composition of the D.C. Council has changed, and the council is expected to implement Initiative 82.

Under Initiative 82, starting in January 2023, the District of Columbia’s minimum cash wage (i.e., the subminimum wage paid by the employer when an employer utilizes a tip credit) of $5.35 will increase by a dollar or two every year until it reaches minimum wage. Correspondingly, the maximum tip credit an employer can take in the District of Columbia will be reduced gradually until 2027 when the tip credit is eliminated. It is worth noting that the D.C. Council has not yet implemented Initiative 82, so employers may want to monitor what cash wage rates and tip credits are officially implemented to ensure compliance with the District of Columbia’s wage laws and tip credit notice requirements. As the end of the year approaches, employers may also want to review any changes to state minimum wage and minimum tip credit amounts that may become effective on December 31 or January 1.

The “DC Committee to Build a Better Restaurant Industry” was the campaign committee behind Initiative 82. The fact that voters approved the tip credit elimination initiative by nearly 20 percentage points more than the 2018 initiative shows that the campaign committee may indeed impact the fate of the tip credit. Other groups like “One Fair Wage” have also taken aggressive lobbying action to convince lawmakers and voters in other states to eliminate the tip credit. In early 2022, One Fair Wage announced a $25 million campaign to try to convince twenty-five states to remove the tip credit by 2026. According to One Fair Wage’s website, “One Fair Wage policy would require all employers to pay the full minimum wage with fair, non-discriminatory tips on top.” In addition to the District of Columbia, the group has campaigned in Illinois, Maine, Massachusetts, Michigan, and New York.

As we discussed in a June 2021 article, employers already are under siege with respect to the tip credit at the federal level. One of President Biden’s objectives has been to eliminate the tip credit on a nationwide basis, but because the tip credit exists in the statutory text of the Fair Labor Standards Act (FLSA), the U.S. Congress would need to amend the FLSA to accomplish that goal. However, through regulatory action that was finalized late last year, the U.S. Department of Labor (DOL) burdened the service industry with a harsh standard for maintaining compliance with tip credit regulations. In late 2021, the DOL released a rule that restored the pre-Trump-era 80/20 rule and added a new thirty-minute rule. Compliance with the new rule effectively created its own deterrent against continued use of the tip credit.

Ironically, a significant percentage of service industry employees actually oppose these initiatives to eliminate use of the tip credit because of the potential negative impact it will have on their total income. The U.S. Bureau of Labor Statistics indicates that, as of May 2021 (the most recent data available), individuals working as waiters and waitresses earned on average nearly $14 per hour. This is nearly twice the current federal minimum wage $7.25.

Many service industry employees advocate against elimination of the tip credit because they anticipate that employers may seek to offset the additional hourly labor costs by shrinking the workforce, decreasing hours, or recovering the added expense through higher menu prices or service charges, which may eat into the tips customers are willing to leave their servers. Many employers that have stopped utilizing the tip credit pay full minimum wage by automatically tacking a service fee onto customer bills. Unlike tips, employers can keep all, or portions of, an automatic charge, so long as the employer complies with local or state laws requiring adequate notice to customers about how the charge will be used.

Once the 118th Congress is sworn in this coming January, it is unlikely that employers will see much change regarding use of the tip credit at the federal level. Nevertheless, some state legislators may press forward with their efforts to eliminate use of the tip credit at the state level. For service industry employers that operate nationwide, there are mounting challenges to complying with federal and state tip regulations. Employers may want to continue to monitor states where legislation is targeting elimination of the tip credit and may wish to consider measures to address the additional labor costs that will follow.

© 2022, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.
For more Labor and Employment Law news, click here to visit the National Law Review.

SCOTUS Takes a Pass on “Gap Time” Dispute

It’s two months into argument season at the Supreme Court, and we’re always keeping our fingers crossed that the justices will take up a wage and hour issue and clear up some ambiguities in the law or a circuit split.

Top billing this SCOTUS term goes to Helix Energy Solutions Group, Inc. v. Hewitt, in which the Court will address whether a supervisor who earned more than $200,000 a year but was paid on a daily basis is exempt from the overtime laws as a “highly compensated employee” under 29 C.F.R. § 541.601, notwithstanding the salary basis rules in 29 C.F.R. § 541.602 and 29 C.F.R. § 541.604.  The Court held arguments on October 12, and you can read the transcript here.  We’ll report on that decision as soon as it’s published.

This week’s news is a denial of a petition for a writ of certiorari in Cleveland County, North Carolina v. Conner, a case about gap time.  The plaintiff in the case—an EMT worker—was paid under a fairly complex set of ordinance-based and contractual terms, but the gist of her claim was that the county shorted her on straight-time pay she was owed under her contract, and by doing do violated the Fair Labor Standards Act.  The district court dismissed the claim, on the ground that the FLSA governs minimum wage and overtime pay, but not straight-time pay (assuming no minimum wage violation).  On appeal, however, the Fourth Circuit noted that “there are situations … that fall between [the minimum wage and overtime] provisions of the FLSA.  It explained:

In addition to seeking unpaid overtime compensation, employees may seek to recover wages for uncompensated hours worked that fall between the minimum wage and the overtime provisions of the FLSA, otherwise known as gap time ….  Gap time refers to time that is not directly covered by the FLSA’s overtime provisions because it does not exceed the overtime limit, and to time that is not covered by the FLSA’s minimum wage provisions because … the employees are still being paid a minimum wage when their salaries are averaged across their actual time worked.  (Internal citations and alterations omitted.)

The Court of Appeals differentiated between two types of gap time—“pure gap time” and “overtime gap time”—with the former referring to unpaid straight time in a week in which an employee works no overtime, and the latter referring to unpaid straight time in a week in which the employee works overtime.  The court noted, correctly, that no provision of the FLSA addresses gap time of either type, and that there is no cause of action under the FLSA for “pure gap time” absent a minimum wage or overtime violation by the employer.  Such claims would arise, if at all, under state law.

On the other hand, the circuit court noted that courts are divided on whether an employee can bring an “overtime gap time claim” under the FLSA.  While the statute itself is silent on the issue, the U.S. Department of Labor’s interpretation of the FLSA—set forth in 29 C.F.R. § 778.315—states that:

[C]ompensation for … overtime work under the Act cannot be said to have been paid to an employee unless all the straight time compensation due him for the nonovertime hours under his contract (express or implied) or under any applicable statute has been paid.

In its simplest sense, the argument for recognizing “overtime gap time” claims under the FLSA is this:  Say an employer promises an overtime-eligible employee base pay of $1,000 per week for up to 40 hours of work, and the employee works more than 40 hours in a given week.  In that scenario, the employee’s hourly overtime rate would by $37.50 ($1000 ÷ 40 yields a regular rate of $25, and time-and-a-half on $25 is $37.50).  But if the employer only pays the employee $800 in base pay for the week and not the promised $1,000, the regular rate becomes $20 ($1000 ÷ 40) and the hourly overtime rate becomes $30 (time-and-a-half on $20).  So the employee is short-changed $7.50 on each overtime hour, which the Fourth Circuit found violates 29 C.F.R. § 778.315 and the spirit, if not the letter, of the FLSA.

“Pure gap time” is different, in this important sense:  it only arises when the employee has not worked any overtime in the week.  So there is no possibility of short-changing the employee on overtime pay, and—assuming the employee has, on average, received the minimum wage for all hours worked that week—no other provision of the FLSA that provides any relief.  (The employee is ostensibly free to seek relief under an applicable state wage payment law or common law for failure to pay promised compensation.)

The Fourth Circuit concluded that 29 C.F.R. § 778.315 has the “power to persuade,” and therefore is entitled to “considerable deference” under Skidmore v. Swift & Co., 323 U.S. 134 (1944).  As such, the court held that “overtime gap time claims” are indeed cognizable under the FLSA, and that “courts must ensure employees are paid all of their straight time wages first under the relevant employment agreement, before overtime is counted.”  The court acknowledged a circuit split on the issue, with the Second Circuit declining to afford deference to 29 C.F.R. § 778.315 and rejecting “overtime gap time” claims as lacking a statutory basis (“So long as an employee is being paid the minimum wage or more, [the] FLSA does not provide recourse for unpaid hours below the 40–hour threshold, even if the employee also works overtime hours the same week.”).

The county filed a petition for a writ of certiorari with the Supreme Court, presenting not only the question of whether the FLSA permits “overtime gap time” but also seeking clarification on how federal courts should apply the Skidmore doctrine to agency interpretations such as 29 C.F.R. § 778.315.  The Supreme Court denied the petition on December 12, leaving both questions for another day.

© 2022 Proskauer Rose LLP.
For more Employment Law News, click here to visit the National Law Review.

NLRB Unleashes New Damages Against Labor Law Violators

On Tuesday, December 13, 2022 to the National Labor Relations Board (NLRB”) issued a decision that that could have profound effect on employers in all industries, regardless if they have a union. In Thrryv, Inc., the NLRB ruled in a 3 to 2 decision that employers who have been found to have violated the National Labor Relations Act (“NLRA”) can be assessed “consequential damages.” in addition to the more traditional remedies of back pay and reinstatement.   If this case is upheld following a likely appeal, it will rock the employer community in the automotive industry and elsewhere.

The case arises from a unionized marketing company that decided to have a layoff. In the course of negotiating with the company over the layoff, the union representing the employees made various requests for information from the company. The company never provided the requested data. The NLRB determined the company violated the NLRA by refusing to respond to the union’s request for information. The NLRB further found the company violated the act by implementing the layoff without engaging in collective bargaining with the union.

Normally, the NLRB would remedy a violation of this nature by ordering the company to engage in “make whole relief” for the affected workers. Typically, that would involve reinstatement and back pay for the period of time they were wrongfully laid-off. However, in this case, the NLRB boldly went where it has never gone before and ordered the company to compensate the employees for “all direct or foreseeable pecuniary harms suffered as a result of the unfair labor practice.” The NLRB went on to say this would be the new normal to remedy employer violations of the NLRA. Determining the full extent of direct or foreseeable pecuniary harms will invariably require additional hearings in which the parties present evidence. Under this new standard, the type of damages potentially available to affected workers could include such things as out-of-pocket, medical expenses, credit card debt, and any other cause the light off employees incurred while trying to make ends meet.

The two Republican members of the NLRB, Marvin Kaplan, and John Ring filed a dissenting opinion.  The dissent believes that the new remedy laid-out in the majority decision is too broad.  They contend this new standard could subject employers to almost limitless, speculative damages.  The dissenting opinion also notes that this new form of damages goes further than those available under Title VII of the Civil Rights Act of 1964.  They question how the NLRB could award such damages without specific statutory authority from Congress.

This case will almost certainly be appealed and it behooves all the employer community to closely follow its track and if the NLRB uses other cases to continue to try to implement these new form of damages.

Article By Mark J. Neuberger of Foley & Lardner LLP

For more labor law legal news, click here to visit the National Law Review.

© 2022 Foley & Lardner LLP

Newly Enacted Federal “Speak Out Act” Limits Use of Some Sexual Harassment NDAs

President Biden has signed into law the federal “Speak Out Act” limiting the enforceability of pre–dispute non-disclosure and non-disparagement clauses covering sexual assault and sexual harassment disputes.  The Act takes effect immediately.

The Act places restrictions on the enforceability of pre-dispute:

  • “non-disclosure clauses,” meaning “a provision in a contract or agreement that requires the parties to the contract or agreement not to disclose or discuss conduct, the existence of a settlement involving conduct, or information covered by the terms and conditions of the contract or agreement.”
  •  “non-disparagement clauses,” defined as “a provision in a contract or agreement that requires 1 or more parties to the contract or agreement not to make a negative statement about another party that relates to the contract, agreement, claim, or case.”

Such clauses entered into before a sexual assault or sexual harassment dispute arises are rendered unenforceable.  The Act defines covered “sexual assault disputes” as disputes “involving a nonconsensual sexual act or sexual contact, as such terms are defined in section 2246 of title 18, United States Code, or similar applicable Tribal or State law, including when the victim lacks capacity to consent.” Covered “sexual harassment disputes” are defined as disputes “relating to conduct that is alleged to constitute sexual harassment under applicable Federal, Tribal, or State law.”

A few notes about the Act’s scope and implications:

  • Critically, the Act may have limited implications for many employers for one key reason – the Act only applies to non-disclosure and non-disparagement clauses in pre-dispute agreements, meaning that any non-disclosure/non-disparagement clauses in agreements entered into by employers/employees concerning sexual assault or sexual harassment issues after a dispute has arisen are not impacted by the Act.  Because of this, the Act’s protections would not apply to non-disclosure/non-disparagement clauses in separation or settlement agreements executed after sexual harassment or sexual assault allegations are made, but may be subject, of course, to any applicable state or local laws.
  • The Act explicitly excludes from coverage any efforts by employers to protect trade secrets and proprietary information via non-disclosure or non-disparagement provisions.
  • While the Act does apply to non-disclosure/non-disparagement clauses in agreements entered into before December 7, 2022 (the Effective Date), it would not impact clauses entered into before a dispute arose, but where that dispute was active before the Act’s December 7th effective date.
  • Given the above, employers utilizing non-disclosure/non-disparagement agreements at the outset of employment or during the employment lifecycle should consider creating proper carve-outs for sexual assault and sexual harassment issues given the new Act.

Employers should also be aware of other recent developments in this area.  The Speak Out Act also follows the enactment of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, which took effect earlier this year (our post on the law can be found here).  That federal law prohibits employers from compelling arbitration of sexual harassment or sexual assault claims and provides employees the option to pursue those claims in other forums.  Employers should also remain aware that, despite the seemingly narrow implications of this new federal law, several states – including California, Illinois, New Jersey, and New York – have enacted laws in recent years that grant employees broader protections when it comes to certain sexual harassment and discrimination claims, enhancing employees’ abilities to speak out about alleged misconduct.

Article By Corbin Carter and Michael S. Arnold of Mintz

For more labor and employment legal news, click here to visit the National Law Review.

©1994-2022 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.

Washington State’s Pay Transparency Law Takes Effect January 1, 2023

Effective January 1, 2023, Washington employers must comply with SB 5761, commonly known as Washington’s Pay Transparency Law, signed by Governor Jay Inslee on March 30, 2022. SB 5761 amends Washington’s Equal Pay and Opportunity Act (RCW 49.58) to require employers with 15 or more employees to include in each job posting the wage scale or salary range of the job and a general description of all of the benefits offered and to identify other compensation offered. The law also requires employers to provide existing employees who are promoted or offered a new position with the wage scale or salary range of the new position.

IN DEPTH

Washington’s Equal Pay and Opportunity Act currently only requires employers to provide applicants with the minimum wage or salary for the position they seek and only upon the applicant’s request after the employer makes the job offer.

WHAT IS THE PAY TRANSPARENCY LAW?

Effective January 1, 2023, employers must disclose in each posting for each job opening the wage scale or salary range and a general description of all benefits and other compensation to offered to the hired applicant.

Job postings mean “any solicitation included to recruit job applicants for a specific available position,” and electronic or hard-copy records that describe the desired qualifications, whether the employer solicits applicants directly or indirectly through a third party.

Washington’s Department of Labor and Industries (DLI) has published a draft administrative policy that provides employers with guidance on compliance.

WHICH EMPLOYERS ARE COVERED?

The law applies to employers with 15 or more employees.

DLI’s guidance clarifies that the law applies to all employers with 15 or more employees, engaging in any business, industry, profession or activity in Washington. The 15-employee threshold for covered employers “includes employers that do not have a physical presence in Washington, if the employer has one or more Washington-based employees.” This law applies to employers even if they do not have a physical presence in Washington but engage in business in Washington or recruit for jobs that could be filled by a Washington-based employee.

WHAT MUST EMPLOYERS INCLUDE IN THE POSTING?

Employers must disclose in each posting for each job opening:

  • The opening wage scale or salary range
  • A general description of all benefits and other compensation offered.

Per the DLI’s guidance, employers must make these disclosures in postings for remote work that could be performed by a Washington-based employee. Employers cannot avoid these disclosure requirements by stating in the posting that it will not accept Washington applicants.

Wage Scale or Salary Range

The DLI’s guidance identifies examples of information that should be included in a posting.

A wage scale or salary range should provide the applicant with the employer’s most reasonable and genuinely expected range of compensation for the job, extending from the lowest to the highest pay established by the employer prior to publishing the job posting. If the employer does not have an existing wage scale or salary range for a position, the scale or range should be created prior to publishing the job posting. For example, the scale or range’s minimum and maximum should be clear without open-ended phrases such as “$60,000/per year and up” (with no top of the range), or “up to $29.00/hour” (with no bottom of the scale).

Employers should update the posting to reflect any changes to the wage scale or salary range. If the employer offers a different position than what the applicant applied for, the employer may offer the applicant the wage scale or salary range specific to the position offered, rather than the position in the posting.

If an employer intends to implement a “starting range” or “starting rate” for an initial timeframe of employment or probationary period, the starting range or rate may be listed on the posting, but the entire scale or range must also be listed on the posting.

If an employer publishes a job posting for a job opening that can be filled with varying job titles, depending on experience, the employer should specify all potential wage scales or salary ranges that apply. The job posting should clearly define the lowest to highest pay established for each potential job position, as indicated in the example below:

  • Accounting Analyst 1: $27.00 – $29.00 per hour
  • Accounting Analyst 2: $65,000 – $75,000 per year
  • Accounting Analyst 3: $80,000 – $95,000 per year.

If an employer posts a job that is compensated by commission rates, the employer should include the rate or rate range (percentage or otherwise) that it would offer to the hired applicant, as indicated in the example below:

  • Commission-based salesperson: 5–8% of net sale price per unit.

General Description of All Benefits 

A general description of all benefits includes, but is not limited to, healthcare benefits, retirement benefits, any benefits permitting paid days off (including more-generous paid sick leave accruals, parental leave, and paid time off or vacation benefits), and any other benefits that must be reported for federal tax purposes, such as fringe benefits.

If the general description of all benefits changes after an employer has published a posting and the posting remains published, the employer should update the posting.

If insurance or retirement plans are included as part of the position’s benefits package, employers should list the types of insurance and retirement plans in the job posting, such as medical insurance, vision insurance, 401k and employer-funded retirement plan. Similarly, if an employer offers paid vacation, paid holidays or paid sick leave benefits, employers should list in detail the amount of days or hours offered for each benefit.

The DLI’s example of a general description of all benefits is as follows:

  • “Employees (and their families) are covered by medical, dental, vision, and basic life insurance. Employees are able to enroll in our company’s 401k plan, as well as a deferred compensation plan. Employees will also receive eight hours of vacation leave every month, as well as eight hours of Washington paid sick leave every month. Employees will also enjoy twelve paid holidays throughout the calendar year. Two weeks of paid parental leave will also be available for use after successful completion of one year of employment.”

General Description of Other Compensation 

Other compensation includes, but is not limited to, any discretionary bonuses, stock options or other forms of compensation that would be offered to the hired applicant in addition to their established salary range or wage scale. Some forms of other compensation can include, but are not limited to, commissions, bonuses, profit-sharing, merit pay, stock options, travel allowance, relocation assistance and housing allowance.

Employers need only describe the other compensation and need not include the total monetary value of the other compensation in a job posting. However, employers who choose to include the total monetary value of other compensation in a job posting must also include the required general description of benefits and other compensation in addition to the wage scale or salary range.

The DLI’s example of a general description of other compensation is as follows:

  • “Hired applicant will be able to purchase company stock, receive annual bonuses, and can participate in profit-sharing. Hired applicant will also receive an equity grant in the form of either a direct grant of stock that will be specified in the employment contract or an option to purchase stock in the future for a specified price.”

In electronic job postings, the posting must have the general description of the benefits and other compensation, but employers can use a link to provide a more detailed description of benefits and other compensation. However, “it is the employer’s responsibility to assure continuous compliance with functionality of links, up-to-date information, and information that applies to the specific job posting, regardless of any use of third-party administrators.”

WHAT ARE THE CONSEQUENCES OF NONCOMPLIANCE?

Where an employer is out of compliance with this law, applicants and employees will be able to file a complaint with the DLI or file a civil lawsuit against the employer in court.

If applicants or employees file a complaint with the DLI, the DLI may issue a citation and/or notice of assessment and order the employer to pay to the complainant actual damages, double statutory damages (or $5,000, whichever is greater), interest of 1% per month on compensation owed, payment to the department for the costs of investigation and enforcement, and other appropriate relief. The DLI may also order an employer to pay civil penalties in response to complaints, ranging from $500 for a first violation to $1,000 or 10% of damages (whichever is greater) for a repeat violation.

If applicants or employees file a civil lawsuit, remedies may include actual damages, double statutory damages (or $5,000, whichever is greater), interest of 1% per month on compensation owed, and reimbursement of attorneys’ fees and costs. Recovery of wages and interest will be calculated back four years from the last violation.

Note: This alert was drafted based on Washington State’s Department of Labor & Industries’ Draft Administrative Policy, which may be superseded by a revised final version before January 1, 2023. 

Article By Yesenia M. Gallegos, Michelle S. Strowhiro, and Paulina Chau of McDermott Will & Emery

For more labor and employment legal news, click here to visit the National Law Review.

© 2022 McDermott Will & Emery

IRS and Treasury Department Release Initial Guidance for Labor Requirements under Inflation Reduction Act

On November 30, 2022, the IRS and the Treasury Department published Notice 2022-61 (the Notice) in the Federal Register. The Notice provides guidance regarding the prevailing wage requirements (the Prevailing Wage Requirements) and the apprenticeship requirements (the Apprenticeship Requirements and, together with the Prevailing Wage Requirements, the Labor Requirements), which a taxpayer must satisfy to be eligible for increased amounts of the following clean energy tax credits under the Internal Revenue Code of 1986 (the Code), as amended by the Inflation Reduction Act of 2022 (the “IRA”):

  • the alternative fuel vehicle refueling property credit under Section 30C of the Code (the Vehicle Refueling PC);
  • the production tax credit under section 45 of the Code (the PTC);
  • the energy efficiency home credit under section 45L of the Code;
  • the carbon sequestration tax credit under section 45Q of the Code (the Section 45Q Credit);
  • the nuclear power production tax credit under section 45U of the Code;
  • the hydrogen production tax credit under section 45V of the Code (the Hydrogen PTC);
  • the clean electricity production tax credit under section 45Y of the Code (the Clean Electricity PTC);
  • the clean fuel production tax credit under section 45Z of the Code;
  • the investment tax credit under section 48 of the Code (the ITC);
  • the advanced energy project tax credit under section 48C of the Code; and
  • the clean electricity production tax credit under section 48E of the Code (the Clean Electricity ITC).[1]

We discussed the IRA, including the Labor Requirements, in a previous update.

Start of Sixty-Day Period

The IRA provides an exemption from the Labor Requirements (the Exemption) for projects and facilities otherwise eligible for the Vehicle Refueling PC, the PTC, the Section 45Q Credit, the Hydrogen PTC, the Clean Electricity PTC, the ITC, and the Clean Electricity ITC, in each case, that begin construction before the sixtieth (60th) day after guidance is released with respect to the Labor Requirements.[2] The Notice provides that it serves as the published guidance that begins such sixty (60)-day period for purposes of the Exemption.

The version of the Notice that was published in the Federal Register on November 30, 2022, provides that the sixtieth (60th) day after the date of publication is January 30, 2023. January 30, 2023, however, is the sixty-first (61st) day after November 30, 2023; January 29, 2023 is the sixtieth (60th) day. Currently, it is unclear whether the Notice erroneously designated January 30, 2023 as the sixtieth (60th) day or whether the additional day to begin construction and qualify for the Exemption was intended, possibly because January 29, 2023 falls on a Sunday. In any event, unless and until clarification is provided, we expect conservative taxpayers planning to rely on the Exemption to start construction on creditable projects and facilities before January 29, 2023, rather than before January 30, 2023.[3]

Beginning Construction for Purposes of the Exemption

The Notice describes the requirements for a project or facility to be deemed to begin construction for purposes of the Exemption. As was widely expected, for purposes of the PTC, the ITC, and the Section 45Q Credit, the Notice adopts the requirements for beginning of construction contained in previous IRS notices (the Prior Notices).[4] Under the Prior Notices, construction of a project or facility is deemed to begin when physical work of a significant nature begins (the Physical Work Test) or, under a safe harbor, when five percent or more of the total cost of the project or facility is incurred under the principles of section 461 of the Code (the Five Percent Safe Harbor). In addition, in order for a project or facility to be deemed to begin construction in a particular year, the taxpayer must demonstrate either continuous construction or continuous efforts until the project or facility is completed (the Continuity Requirement). Under a safe harbor contained in the Prior Notices, projects and facilities that are placed in service no more than four calendar years after the calendar year during which construction of the project or facility began generally are deemed to satisfy the continuous construction or continuous efforts requirement (the Continuity Safe Harbor).[5]

In the case of a project or facility otherwise eligible for the newly-created Vehicle Refueling PC, Hydrogen PTC, Clean Electricity PTC, or Clean Electricity ITC, the Notice provides that:

  • “principles similar to those under Notice 2013-29” will apply for purposes of determining whether the project or facility satisfies the Physical Work Test or the Five Percent Safe Harbor, and a taxpayer satisfying either test will be deemed to have begun construction on the project or facility;
  • “principles similar to those under” the Prior Notices will apply for purposes of determining whether the project or facility satisfies the Continuity Requirement; and
  • “principles similar to those provided under section 3 Notice 2016-31” will apply for purposes of determining whether the project or facility satisfies the Continuity Safe Harbor, with the Notice specifying that the safe harbor period is four (4) years.

Taxpayers and commentators have observed that the existing guidance in the Prior Notices is not, in all cases, a good fit for the newly-created clean energy tax credits. Additional guidance will likely be required to ensure that the principles of the Prior Notices may be applied efficiently and seamlessly to the newly-created tax credits.

Prevailing Wage Determinations

The Notice provides that, for purposes of the Prevailing Wage Requirements, prevailing wages will vary by the geographic area of the project or facility, the type of construction to be performed, and the classifications of the labor to be performed with respect to the construction, alteration, or repair work. Taxpayers may rely on wage determinations published by the Secretary of Labor on www.sam.gov to establish the relevant prevailing wages for a project or facility. If, however, the Secretary of Labor has not published a prevailing wage determination for a particular geographic area or type of project or facility on www.sam.gov, or one or more types of labor classifications that will be performed on the project or facility is not listed, the Notice provides that the taxpayer must contact the Department of Labor (the “DOL”) Wage and Hour Division via email requesting a wage determination based on various facts and circumstances, including the location of and the type of construction and labor to be performed on the project or facility in question. After review, the DOL will notify the taxpayer as to the labor classifications and wage rates to be used for the geographic area in which the facility is located and the relevant types of work.

Taxpayers and commentators have observed that the Notice provides no insight as to the DOL’s decision-making process. For instance, the Notice does not describe the criteria that the DOL will use to make a prevailing wage determination; it does not offer any type of appeal process; and, it does not indicate the DOL’s anticipated response time to taxpayers. The lack of guidance on these topics has created significant uncertainty around the Prevailing Wage Requirements, particularly given that published wage determinations are lacking for many geographical areas.

Certain Defined Terms under the Prevailing Wage Requirements

The Notice provides definitions for certain key terms that are relevant to the Prevailing Wage Requirements, including:

  • Employ. A taxpayer, contractor, or subcontractor is considered to “employ” an individual if the individual performs services for the taxpayer, contractor, or subcontractor in exchange for remuneration. Individuals otherwise classified as independent contractors for federal income tax purposes are deemed to be employed for this purpose and therefore their compensation generally would be subject to the Prevailing Wage Requirements.
  • Wages. The term “wages” includes both hourly wages and bona fide fringe benefits.
  • Construction, Alteration, or Repair. The term “construction, alteration, or repair” means all types of work (including altering, remodeling, installing, painting, decorating, and manufacturing) done on a particular project or facility. Based on this definition, it appears that off-site work, including off-site work used to satisfy the Physical Work Test or the Five Percent Safe Harbor, should not constitute “construction, alteration, or repair” and therefore should not be subject to the Prevailing Wage Requirements. It is not clear, however, whether “construction, alteration, or repair” should be read to include routine operation and maintenance (“O&M”) work on a project or facility.

The Good Faith Exception to the Apprenticeship Requirements

The IRA provides an exception to the Apprenticeship Requirements for taxpayers that make good faith attempts to satisfy the Apprenticeship Requirements but fail to do so due to certain circumstances outside of their control (the Good Faith Exception). The Notice provides that, for purposes of the Good Faith Exception, a taxpayer will be considered to have made a good faith effort to request qualified apprentices if the taxpayer (1) requests qualified apprentices from a registered apprenticeship program in accordance with usual and customary business practices for registered apprenticeship programs in a particular industry and (2) maintains sufficient books and records establishing the taxpayer’s request of qualified apprentices from a registered apprenticeship program and the program’s denial of the request or lack of response to the request, as applicable.

Certain Defined Terms under the Apprenticeship Requirements

The Notice provides definitions for certain key terms that are relevant to the Apprenticeship Requirements, including:

  • Employ. The Notice provides the same definition for “employ” as under the Prevailing Wage Requirements.
  • Journeyworker. The term “journeyworker” means a worker who has attained a level of skill, abilities, and competencies recognized within an industry as having mastered the skills and competencies required for the relevant occupation.
  • Apprentice-to-Journeyworker Ratio. The term “apprentice-to-journeyworker ratio” means a numeric ratio of apprentices to journeyworkers consistent with proper supervision, training, safety, and continuity of employment, and applicable provisions in collective bargaining agreements, except where the ratios are expressly prohibited by the collective bargaining agreements.
  • Construction, Alteration, or Repair. The Notice provides the same definition for “construction, alteration, or repair” as under the Apprenticeship Requirements. This suggests that, like the Prevailing Wage Requirements, off-site work is not subject to the Apprenticeship Requirements. In addition, the same open question regarding O&M work under the Prevailing Wage Requirements applies for purposes of the Apprenticeship Requirements as well.

Record-Keeping Requirements

The Notice requires that taxpayers maintain and preserve sufficient records in accordance with the general recordkeeping requirements under section 6001 of the Code and the accompanying Treasury Regulations to establish that the Prevailing Wage Requirements and Apprenticeship Requirements have been satisfied. This includes books of account or records for work performed by contractors or subcontractors of the taxpayer.

Other Relevant Resources

The DOL has published a series of Frequently Asked Questions with respect to the Labor Requirements on its website. In addition, the DOL has published additional resources with respect to the Apprenticeship Requirements, including Frequently Asked Questions, on its Apprenticeship USA platform. It is generally understood that, in the case of any conflict between the information on these websites and the information in the Notice, the Notice should control.

[1] The Labor Requirements also are applicable to the energy-efficient commercial buildings deduction under section 179D of the Code.

[2] The IRA provides a separate exemption from the Labor Requirements projects or facilities otherwise eligible for the ITC or the PTC with a maximum net output of less than one megawatt.

[3] Interestingly, the DOL online resources described below observe that projects and facilities that begin construction on or after January 29, 2023 are not eligible for the Exemption, which appears to recognize that January 29, 2023, and not January 30, 2023, is the sixtieth (60th) after publication of the Notice.

[4] Notice 2013-29, 2013-20 I.R.B. 1085; Notice 2013-60, 2013-44 I.R.B. 431; Notice 2014-46, 2014-36 I.R.B. 541; Notice 2015-25, 2015-13 I.R.B. 814; Notice 2016-31, 2016-23 I.R.B. 1025; Notice 2017-04, 2017-4 I.R.B. 541; Notice 2018-59, 2018-28 I.R.B. 196; Notice 2019-43, 2019-31 I.R.B. 487; Notice 2020-41, 2020-25 I.R.B. 954; Notice 2021-5, 2021-3 I.R.B. 479; and Notice 2021-41, 2021-29 I.R.B. 17.

[5] In response to procurement, construction, and similar delays attributable to the COVID-19 pandemic, the length of the safe harbor period was extended beyond four (4) years for projects or facilities for which construction began in 2016, 2017, 2018, 2019, or 2020, which we discussed in a previous update.

Article By Elizabeth L. McGinley, Steven J. Lorch, Don J. Lonczak, and Michael A. Recchia of Bracewell LLP

For more labor and employment legal news, click here to visit the National Law Review.

© 2022 Bracewell LLP

Mexico’s Minimum Wage Set to Increase on January 1, 2023

On December 1, 2022, Mexican President Andrés Manuel Lopez Obrador announced that, unanimously, the business and labor sectors, as well as the government, had agreed to increase the minimum wage by 20 percent for 2023, which will be applicable in the Free Zone of the Northern Border (Zona Libre de la Frontera Norte or ZLFN), as well as the wage applicable in the rest of the country. The increase will become official when it is published in the Official Gazette of the Federation (Diario Oficial de la Federación).

Before the increase was determined, the Mexican National Commission on Minimum Wages (Comisión Nacional de los Salarios Mínimos, or CONASAMI) applied an independent recovery amount (Monto Independiente de Recuperación or MIR) in accordance with the following:

  • MIR for the ZLFN: MXN $23.68
  • MIR for the rest of the country: MXN $15.72

On top of the MIR, the CONASAMI approved a 10 percent increase from the 2022 rate to the daily minimum wage applicable to the ZLFN and the rest of the country, resulting in MXN $312.41 (approximately USD $16.11) for the ZLFN and MXN $207.44 (approximately USD $10.69) for the rest of the country. The new rates would be effective as of January 1, 2023.

The MIR and the 10 percent increase—combined—would represent a 20 percent increase in the daily minimum wage rate which translates to more than MXN $30 per day.

Finally, Secretary of Labor Luisa Maria Alcalde stated that the above increases would directly benefit 6.4 million workers in Mexico.

Article By Pietro Straulino-Rodriguez, Nora M. Villalpando Badillo, and Ana Paula Delsol Espada of Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

For more labor and employment legal news, click here to visit the National Law Review.

© 2022, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.

Privacy Rights in a Remote Work World: Can My Employer Monitor My Activity?

The rise in remote work has brought with it a rise in employee monitoring.  Between 2019 and 2021, the percentage of employees working primarily from home tripled.  As “productivity paranoia” crept in, employers steadily adopted employee surveillance technologies.  This has raised questions about the legal and ethical implications of enhanced monitoring, in some cases prompting proposed legislation or the expanded use of laws already on the books.

Employee monitoring is nothing new.  Employers have long used supervisors and timeclock programs, among other systems, to monitor employee activity.  What is new, however, is the proliferation of sophisticated monitoring technologies—as well as the expanding number and variety of companies that are employing them.

 While surveillance was once largely confined to lower-wage industries, white-collar employers are increasingly using surveillance technologies to track their employees’ activity and productivity.  Since the COVID-19 pandemic started in March 2020, one in three medium-to-large companies has adopted some form of employee monitoring, with the total fraction of employers using surveillance technologies closer to two in three.  Workers who are now subject to monitoring technologies include doctors, lawyers, academics, and even hospice chaplains.  Employee monitoring technologies can track a range of information, including:

  • Internet use (e.g., which websites and apps an employee has visited and for how long);

  • How long a computer sits idle;

  • How many keystrokes an employee types per hour;

  • Emails that are sent or received from a work or personal email address (if the employee is logged into a personal account on a work computer);

  • Screenshots of a computer’s display; and

  • Webcam photos of the employee throughout the day.

These new technologies, coupled with the shift to remote work, have blurred the line between the professional and the personal, the public and the private.  In the face of increased monitoring, this blog explores federal and state privacy regulations and protections for employees.

What are the legal limitations on employee monitoring?

 There are two primary sources of restrictions on employee monitoring: (1) the Electronic Communications Privacy Act of 1986 (ECPA), 18 U.S.C. §§ 2510 et seq.; and (2) common-law protections against invasions of privacy.  The ECPA is the only federal law that regulates the monitoring of electronic communications in the workplace.  It extends the Federal Wiretap Act’s prohibition on the unauthorized interception of communications, which was initially limited to oral and wire communications, to cover electronic communications like email.  As relevant here, the ECPA contains two major exceptions.  The first exception, known as the business purpose exception, allows employers to monitor employee communications if they can show that there is a legitimate business purpose for doing so.  The second exception, known as the consent exception, permits employers to monitor employee communications so long as they have consent to do so.  Notably, this exception is not limited to business communications, allowing employers to monitor employees’ personal communications if they have the requisite consent.  Together, the business purpose and consent exceptions significantly limit the force of the ECPA, such that, standing alone, it permits most forms of employee monitoring.

In addition to the ECPA’s limited protections from surveillance, however, some states have adopted additional protections of employee privacy.  Several state constitutions, including those of California, South Carolina, Florida, and Louisiana, guarantee citizens a right to privacy.  While these provisions do not directly regulate employers’ activity, they may bolster employees’ claims to an expectation of privacy.  Other states have enacted legislation that limits an employer’s ability to monitor employees’ social media accounts.  Virginia, for example, prohibits employers from requiring employees to disclose their social media usernames or passwords.  And a few states have enacted laws to bolster employees’ access to their data.  For example, the California Privacy Rights Act (CPRA), which comes into full effect on January 1, 2023, and replaces the California Consumer Privacy Act (CCPA), will provide employees with the right to access, delete, or opt-out of the sale of their personal information, including data collected through employee monitoring programs.  Employees will also have the right to know where, when, and how employers are using their data.  The CPRA’s protections are limited, however.  Employers will still be able to use surveillance technologies, and to make employment decisions based on the data these technologies gather.

Finally, several states require employers to provide notice to employees before monitoring or intercepting electronic communications.  New York recently adopted a law,  Senate Bill (SB) S2628, that requires all private-sector employers to provide notice of any electronic monitoring to employees (1) upon hiring, via written or electronic employee acknowledgment; and (2) in general, in a “conspicuous place” in the workplace viewable to all employees.  The new law is aimed at the forms of monitoring that have proliferated since the shift to remote work, and covers surveillance technologies that target the activities or communications of individual employees.  Delaware and Connecticut also have privacy laws that predate SB S2628.  Delaware requires notice to employees upon hire that they will be monitored, but does not require notice within the workplace.  Meanwhile, Connecticut requires notice of monitoring to be conspicuously displayed in the workplace but does not require written notice to employees upon hire.  Accordingly, in many states, employee privacy protections exceed the minimum standard of the ECPA, though they still are not robust.

How does employee monitoring intersect with other legal rights?

Other legal protections further limit employee monitoring.

First, in at least some jurisdictions, employees who access personal emails on their work computer, or conduct other business that would be protected under attorney-client privilege, maintain their right to privacy for those communications.  In Stengart v. Loving Care Agency, Inc., 408 N.J. Super. 54 (App. Div. 2009), the Superior Court of New Jersey, Appellate Division, considered a case in which an employee had accessed her personal email account on her employer’s computer and exchanged emails from that account with her attorney regarding a possible employment case against her employer.  The employer, who had installed an employee monitoring program, was able to access and read the employee’s emails.  The Court held that the employee still had a reasonable expectation of privacy and that sending and receiving emails on a company-issued laptop did not waive the attorney-client privilege.  The Court thus required the employer to turn over all emails between the employee and her attorney that were in its possession and directed the employer to delete all of these emails from its hard drives.  Moving forward, the Court instructed that, while “an employer may trespass to some degree into an employee’s privacy when buttressed by a legitimate business interest,” such a business interest held “little force . . . when offered as the basis for an intrusion into communications otherwise shielded by the attorney-client privilege.”  Stengart, 408 N.J. Super. at 74.

Second, employee monitoring can run afoul of protections related to union and other concerted activity.  The General Counsel for the National Labor Relations Board (NLRB) recently announced a plan to curtail workplace surveillance technologies.  Existing law prohibits employers from using surveillance technologies to monitor or record union activity, such as by recording employees engaged in picketing, or otherwise interfering with employees’ rights to engage in concerted activity.  The General Counsel’s plan outlines a new, formal framework for analyzing whether employee monitoring interferes with union or concerted activity.  Under this framework, an employer presumptively violates Section 7 or Section 8 of the National Labor Relations Act (NLRA) where their “surveillance and management practices, viewed as a whole, would tend to interfere with or prevent a reasonable employee from engaging in” protected activities.  Examples of technologies that are presumptively violative include key loggers, webcam photos, and audio recordings.

Do I have a claim against my employer?

While federal and state restrictions on employee monitoring are limited, you may have a legal claim against your employer if its monitoring is overly intrusive or it mishandles your personal data.  First, an invasion-of-privacy claim, for the tort of intrusion upon seclusion, could exist if your employer monitors your activity in a way that would be highly offensive to a reasonable person, such as by accessing your work laptop’s webcam or internal microphone and listening in on private affairs in your home.  Second, you may have a claim against your employer for violating its legal duty to protect your personal information if data it collects in the course of monitoring your work activity is compromised.  In Dittman v. UPMC, 196 A.3d 1036 (Pa. 2018), employees at the University of Pittsburgh Medical Center and UPMC McKeesport (collectively, UPMC) filed a class-action complaint alleging that UPMC breached its legal duty of reasonable care when it failed to protect employees’ data, which was stolen from UPMC computers.  The Pennsylvania Supreme Court found for the plaintiffs, holding that employers have an affirmative duty to protect the personal information of their employees.  Because the Pennsylvania Supreme Court’s holding was grounded in tort principles that are recognized by many states (i.e., duty of care and negligence), it may pave a path for future cases in other jurisdictions.  Third, if any medical information is accessed and improperly used by your employer, you may have a claim under the Americans with Disabilities Act, which requires that employers keep all employee medical information confidential and separate from all other personnel information.  See 42 U.S.C. § 12112(d)(3)(B)-(C), (4)(B)-(C).

Conclusion

Employees are monitored more consistently and in more ways than ever before. By and large, employee monitoring is legal.  Employers can monitor your keystrokes, emails, and internet activity, among other metrics.  While federal regulation of employee monitoring is limited, some states offer additional protections of employee privacy.  Most notably, employers are increasingly required to inform employees that their activity will be monitored.  Moreover, other legal rights, such as the right to engage in concerted activity and to have your medical information kept confidential, provide checks on employee surveillance.  As employee monitoring becomes more commonplace, restrictions on surveillance technologies and avenues for legal recourse may also grow.

Article By Bonnie Henry of Katz Banks Kumin LLP

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