Category: Labor & Employment

The Fifth Circuit Confirms the DOL’s Authority to Use Salary Basis Test for FLSA Overtime Exemptions

On September 11, 2024, the U.S. Court of Appeals for the Fifth Circuit in Mayfield v. U.S. Department of Labor confirmed that the United States Department of Labor (“DOL”) has the authority to use a salary basis to define its white-collar overtime exemptions. This is a significant win for the DOL as it is presently defending its latest increase to the minimum salary thresholds for executive, administrative, and professional exemptions under the Fair Labor Standards Act (“FLSA”), also known as the FLSA’s “white-collar exemptions,” in litigation pending in the U.S. District Courts for the Eastern and Northern Districts of Texas.

The Mayfield Decision

In Mayfield, a unanimous three-judge panel of the Fifth Circuit provided that the DOL has the authority to “define and delimit” an exemption from overtime pay under the FLSA. In so ruling, the Court affirmed the dismissal of a lawsuit initiated by a Texas fast-food operator, Robert Mayfield, who claimed Congress never authorized the DOL to use salaries as a test for whether workers have managerial duties.

The Court rejected Mayfield’s argument. In response, the Fifth Circuit wrote that “[d]istinctions based on salary level are… consistent with the FLSA’s broader structure, which sets out a series of salary protections for workers that common sense indicates are unnecessary for highly paid employees.” Upon issuing the Mayfield decision, the Fifth Circuit joined the four other federal appeals courts that have considered this issue previously (including the D.C. Circuit, Second Circuit, Sixth Circuit, and the Tenth Circuit).

2024 DOL Rule

The 2024 DOL rule effectively focused on three main points. First, it raised the minimum weekly salary to qualify for the FLSA’s white-collar exemptions from $684 per week to $844 per week (equivalent to a $43,888 annual salary) on July 1, 2024. Second, it called for another increase of the minimum weekly salary to $1,128 per week (equivalent of a $58,656 annual salary) on January 1, 2025. Third, under the 2024 DOL rule, the above salary threshold would increase every three years based on recent wage data.

As mentioned above, the Mayfield decision comes at a time when the DOL is defending its recent 2024 rule increasing the salary thresholds for white-collar exemptions in both the Eastern and Northern Districts of Texas. Indeed, the Mayfield decision’s timing could not have come at a more opportune time for the DOL because it supplies these Texas federal judges with new direction from the Fifth Circuit to consider when making their rulings.

What Does This Mean for Employers?

The Mayfield decision bolsters the DOL in its bid to set and increase the minimum salary requirements for its white-collar overtime exemptions, which will certainly pose challenges for employers in creating compliant employee compensation structures. In short, if the 2024 DOL rule goes into effect, employers will have to substantially raise their employees’ salaries to ensure they remain properly exempt from the overtime provisions of the FLSA.

© Polsinelli PC, Polsinelli LLP in California

by: Derek A. McKee of Polsinelli PC

For more news on Overtime Exemption Litigation, visit the NLR Labor & Employment section.

Sixth Circuit Explicitly Sidesteps the NLRB’s McLaren Macomb Decision

The Sixth Circuit Court of Appeals recently declined to comment on the National Labor Relations Board’s (the “Board”) McLaren Macomb decision which took aim at overbroad non-disparagement and non-disclosure agreements.

We first reported in February 2023, on the significant decision by the Board in McLaren Macomb, 372 NLRB No. 58 (Feb. 21, 2023), which concluded, among other things, that proffering a severance agreement with broad confidentiality and non-disparagement provisions could violate Section 7 of the National Labor Relations Act (“NLRA”) – a decision and rationale we wrote about in depth here. The decision drove employers to reevaluate existing severance agreements with such provisions.

On appeal, the Sixth Circuit sidestepped the most salient aspects of the Board’s McLaren Macomb decision, namely those portions addressing the lawfulness of confidentiality and non-disparagement provisions in severance agreements, writing, “we do not address [the Board’s] decision to reverse Baylor [Univ. Med. Ctr., 369 NLRB No. 43 (2020)] and IGT[, 370 NLRB No. 50 (Nov. 4, 2020)], or whether it correctly interpreted the NLRA in doing so.” In other words, the Sixth Circuit did not offer any insight or pass judgment one way or another on the Board’s ruling that broad-based non-disparagement and confidentiality provisions are unlawful under NLRA. Indeed, while the Sixth Circuit did find the specific severance agreements at issue unlawful, it did so under previous Board precedent (not for the reasons articulated in McLaren Macomb), further reinforcing the Court’s unwillingness to address this critical issue directly.

What does this mean for employers? While there is lingering uncertainty for employers, it reinforces, at least for now, that the Board may continue to find severance agreements offered to non-supervisory employees that include broad-based confidentiality and non-disparagement provisions as unlawful. Consequently, employers should continue to review their existing severance agreements with the assistance of employment counsel to determine whether, when, and to what extent they may include appropriately crafted non-disparagement and confidentiality clauses.

©1994-2024 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.
 For more news on the Sixth Circuit NLRB Ruling, visit the NLR Labor & Employment section.

Workplace Safety Concerns for Florida Employers in Anticipation of Hurricane Helene

Tropical Storm Helene is projected to hit Florida’s Gulf Coast as a major hurricane later this week, and evacuations are already underway in parts of the state. Employers are likely to face inevitable workplace safety risks with the storm and recovery.

Quick Hits

  • Tropical Storm Helene is expected to make landfall in Florida as a major hurricane as early as September 26, 2024.
  • Governor Ron DeSantis has declared a state of emergency for sixty-one counties across the state.
  • Employers may want to consider their obligations to protect workers and maintain a safe workplace and begin preparations for the hurricane response.

After developing over the Caribbean, Tropical Storm Helene is expected to “rapidly intensify” into a “major hurricane” as it moves over the Gulf of Mexico before making landfall on Florida as early as Thursday, September 26, according to the National Hurricane Center.

On Monday, September 23, Governor Ron DeSantis declared a state of emergency for forty-one counties in Florida. A day later, on September 24, the governor issued a new executive order expanding the emergency order to most of Florida’s sixty-seven counties.

By the time the the storm the storm makes landfall, it is expected to have intensified into at least a Category 3 hurricane, which can bring winds of up to 130 mph and can cause storm surges greater than ten feet. The storm is projected to affect the entire Gulf Coast of Florida as it moves up through the Florida panhandle and into the Southeastern United States.

In total, sixty-one Florida counties are under a state of emergency: Alachua, Baker, Bay, Bradford, Brevard, Calhoun, Charlotte, Citrus, Clay, Collier, Columbia, DeSoto, Dixie, Duval, Escambia, Flagler, Franklin, Gadsden, Gilchrist, Glades, Gulf, Hamilton, Hardee, Hendry, Hernando, Highlands, Hillsborough, Holmes, Jackson, Jefferson, Lafayette, Lake, Lee, Leon, Levy, Liberty, Madison, Manatee, Marion, Monroe, Nassau, Okaloosa, Okeechobee, Orange, Osceola, Pasco, Pinellas, Polk, Putnam, Santa Rosa, Sarasota, Seminole, St. Johns, Sumter, Suwannee, Taylor, Union, Volusia, Wakulla, Walton, and Washington counties.

Workplace Safety Compliance

The Occupational Safety and Health (OSH) Act and Occupational Health and Safety Administration (OSHA) standards require employers to take certain actions to ensure a safe and healthy workplace and make preparations for potential risks, including with regard to events like hurricanes and other natural disasters. Here are some key requirements:

  • General Duty Clause: The OSH Act requires that employers provide a workplace free from recognized hazards that could cause death or serious harm, including preparing for and responding to hurricanes and their related hazards. Employers are further required to protect employees from anticipated hazards associated with the response and recovery efforts employees are expected to perform.
  • Emergency Action Plans (EAPs): Under OSHA standards, many employers must develop and implement EAPs, covering evacuation procedures, emergency contact information, and roles for employees during emergencies, such as hurricanes.
  • Training: Employers are also required to provide training with employees on emergency procedures, including evacuation and shelter-in-place protocols, to ensure they know what to do during a hurricane.
  • Hazard Communication: Employers must inform employees about potential hazards, such as chemical spills or structural damage, that could occur during or after a hurricane.
  • Personal Protective Equipment (PPE): Employers may need to provide necessary PPE for employees involved in clean-up and recovery efforts following the hurricane.
  • Post-Event Safety: Employers may be required to conduct hazard assessments and ensure the workplace is safe before employees return to work after a hurricane.

Next Steps

Given the risks of the hurricane, employers may want to start preparing, if they have not already done so, to ensure the safety of their workplaces and their employees, including communicating emergency plans, and, in some cases, closing or evacuating workplaces entirely.

OSHA has provided more information and resources for employers on preparing for and responding to hurricanes on its website here.

Further, in addition to workplace safety concerns, employers have additional legal obligations or considerations with natural disasters that they may want to incorporate into their disaster management and response plans.

© 2024, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.\
For more news on Florida Workplace Safety, visit the NLR Environmental Energy Resources and Labor Employment sections.

Law Firm Bonus Strategies: A Guide to Compensating Attorneys

Compensating attorneys effectively is a combination of art and science. A well-structured bonus plan is integral to most law firms’ overall compensation strategy, playing a key role in retaining talent, driving performance, and fostering a collaborative culture. Whether the focus is on individual productivity or firm-wide profitability, bonuses help align attorney performance with the firm’s goals.

This guide provides an overview of various bonus strategies law firms use to compensate attorneys, along with their advantages, disadvantages, and key considerations for selecting the right bonus structure.

Common Bonus Models for Attorneys
1.) Defined Amount Over a Threshold
A set dollar amount per billable hour once an attorney surpasses their annual billable hour target. 
Strengths :

Simple to calculate and highly effective at incentivizing billable work.

 Limitations:

Focuses solely on hours billed, ignoring non-billable contributions such as client development, mentoring, or firm-related activities.
2.) Percentage of Salary Based on Pass/Fail Criteria.  / 
A percentage of the attorney’s salary is awarded if they meet certain predefined criteria, such as achieving a billable hour target.
Strengths :

Offers clarity and predictability, ensuring attorneys know exactly what’s required to earn their bonus.

 Limitations:

Does not account for performance beyond the set criteria, potentially overlooking high performers who exceed expectations.
3.) Percentage of Fees Over a Threshold:
Attorneys receive a percentage of the fees they collect or bill once they surpass a set production level.
Strengths :

Encourages attorneys to exceed production goals and maximizes their potential bonus.

 Limitations:

May cause attorneys to prioritize billing over client service quality, as the focus is heavily on numbers.
4.) Predefined Bonus Pool Split Among Eligible Lawyers
The firm allocates a bonus pool and divides it among attorneys, potentially tiered by seniority.
Strengths :

Encourages team collaboration, as everyone works toward a shared reward.

 Limitations:

High performers may feel undervalued if they receive the same bonus as lower performers.
5.) Profitability Bonus
A percentage of profits above a certain threshold (e.g., 15% of individual profitability over $75,000).
Strengths :

Aligns attorney incentives with firm profitability, encouraging both individual performance and a focus on firm health.

 Limitations:

Can be difficult to administer and track profitability on an individual basis.
6.) Profit-Sharing Pool
Attorneys receive a portion of the firm’s profits on a regular schedule (monthly, quarterly, or annually), often tiered by seniority.
Strengths :

Encourages attorneys to exceed production goals and maximizes their potential bonus.

 Limitations:

May cause attorneys to prioritize billing over client service quality, as the focus is heavily on numbers.
7.) Origination Bonus
Attorneys are rewarded for bringing new business into the firm based on origination credit for clients or cases.
Strengths :

Provides a direct incentive for business development, helping to grow the firm’s client base.

 Limitations:

Attorneys may focus too much on client acquisition and not enough on servicing existing clients or mentoring others.
8.) Evaluation with Points-Based Allocation of Bonuses in Tiers
Attorneys earn points based on both quantitative (economic) and qualitative (firm culture, mentoring, client relations) contributions. Bonuses are then awarded in tiers based on point ranges.
Strengths :

Provides a balanced approach that rewards both financial contributions and softer, qualitative metrics.

 Limitations:

Complex to administer and requires the firm to have clearly defined evaluation criteria and consistency in tracking.

Best Practices for Structuring Attorney Bonuses

When selecting a bonus model, law firm leaders should carefully consider their firm culture, values, and strategic objectives. Here are some best practices for creating a sustainable and motivating bonus system:

  1. Incorporate Both Economic and Qualitative Performance: While revenue generation is critical, a successful bonus plan should also recognize contributions like mentoring, client satisfaction, and leadership.
  2. Tailor Bonuses to Career Stages: Junior associates, senior associates, and partners may need different incentives to stay motivated. Consider tiered bonus systems or increasing potential bonus payouts as attorneys advance.
  3. Incorporate Regular Feedback: Rather than waiting for the annual bonus review, provide regular feedback to help attorneys stay on track and improve throughout the year.
  4. Use Data-Driven Systems: Consider leveraging technology to streamline bonus calculations. Tools like PerformLaw’s Attorney Relationship Management System (ARMS) can help firms objectively track both billable and qualitative contributions, ensuring fairness and transparency in bonus distribution.

Conclusion

Choosing the right bonus structure for your law firm is not a one-size-fits-all solution. It requires thoughtful consideration of firm goals, attorney performance, and the behaviors you want to incentivize. A well-rounded approach to rewarding economic and qualitative contributions is crucial for long-term success. By combining structured salary increases and performance-driven bonuses, law firms can boost morale, improve retention, and ultimately, drive greater firm profitability.

©2024 PerformLaw
For more news on Bonuses for Attorneys, visit the NLR Labor Employment and Law Office Management sections.

Illinois Enacts Requirements for AI Use in Employment Decisions

On Aug. 9, 2024, Illinois Gov. Pritzker signed into law HB3733, which amends the Illinois Human Rights Act (IHRA) to cover employer use of artificial intelligence (AI). Effective Jan. 1, 2026, the amendments will add to existing requirements for employers that use AI to analyze video interviews of applicants for positions in Illinois.

Illinois is the latest jurisdiction to pass legislation aimed at preventing discrimination caused by AI tools that aid in making employment decisions. The state joins jurisdictions such as Colorado and New York City in regulating the use of AI in this context.

Restrictions on the Use of AI in Employment Decisions

The amendments expressly prohibit the use of AI in a manner that results in illegal discrimination in employment decisions and employee recruitment. Specifically, covered employers are barred from using AI in a way that has the effect of subjecting employees to discrimination on the basis of any class protected by the IHRA, including if zip codes are used as a proxy for such protected classes.

These new requirements will apply to any employer with one or more employees in Illinois during 20 or more calendar weeks within the calendar year of, or preceding, the alleged violation. They also apply to any employer with one or more employees when unlawful discrimination based on physical or mental disability unrelated to ability, pregnancy, or sexual harassment is alleged.

The amendments define AI as a “machine-based system that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments.” AI also includes “generative artificial intelligence.”

The amendments further define generative AI as “an automated computing system that, when prompted with human prompts, descriptions, or queries, can produce outputs that simulate human-produced content, including, but not limited to”:

  • Textual outputs, such as short answers, essays, poetry, or longer compositions or answers;
  • Image outputs, such as fine art, photographs, conceptual art, diagrams, and other images;
  • Multimedia outputs, such as audio or video in the form of compositions, songs, or short-form or long-form audio or video; and
  • Other content that would be otherwise produced by human means.

Employer Notice Requirements

The amendments require a covered employer to provide notice to employees if the organization uses AI for the following employment-related purposes:

  • Recruitment
  • Hiring
  • Promotion
  • Renewal of employment
  • Selection for training or apprenticeship
  • Discharge
  • Discipline
  • Tenure
  • The terms, privileges, or conditions of employment

While the amendments do not provide specific direction regarding the notice, such as when and how the notice should be provided, they direct the Illinois Department of Labor to adopt rules necessary to implement the notice requirement. Thus, additional guidance should be forthcoming.

Although not required, Illinois employers and AI technology developers may wish to consider conducting audits or taking other measures to help avoid biased outcomes and to further protect against liability.

Enforcement

The IHRA establishes a two-part enforcement procedure. The Illinois Department of Human Rights (IDHR) is the administrative agency that investigates charges of discrimination, while the Illinois Human Rights Commission (IHRC) is an administrative court that adjudicates complaints of unlawful discrimination. Complainants have the option to proceed before the IHRC or file a civil action directly in circuit court after exhausting their administrative remedies before the IDHR.

Practical Considerations

Before the effective date, covered employers should consider:

  • Assessing which platforms and tools in use (or under consideration) incorporate AI, including generative AI, components.
  • Drafting employee notices and developing a plan for notifying employees.
  • Training AI users and quality control reviewers/auditors on anti-discrimination/anti-bias laws and policies that will impact their interaction with the tool(s).
  • Partnering with legal counsel and experienced vendors to identify or create privileged processes to evaluate, mitigate, and monitor potential discriminatory or biased impacts of AI use.
  • Reviewing any rules published by the Illinois Department of Labor, including on the circumstances and conditions that require notice and the timeframe and means for providing notice.
  • Multi-state employers should continue to monitor for additional requirements. For instance, California’s legislature is considering a range of AI-related bills, including some aimed at workplace discrimination.
©2024 Greenberg Traurig, LLP. All rights reserved.
For my news on AI Use in Employment Decisions, visit the NLR Communications Media Internet section.

President Biden Signs Executive Order Directing Agencies to Prioritize Pro-Union and Union Neutrality Policies

On September 6, 2024, President Biden signed an Executive Order on Investing in America and Investing in American Workers (the “Order”), that, among other things, aims to provide “incentives for federally assisted projects with high labor standards – including collective bargaining agreements, project labor agreements, and certain community benefits agreements.” Specifically, the Order directs federal agencies to prioritize projects that provide “high labor standards” for “Federal financial assistance,” which is defined as “funds obtained from or borrowed on the credit of the Federal Government pursuant to grants (whether formula or discretionary), loans, or rebates, or projects undertaken pursuant to any Federal program involving such grants, loans, or rebates.”

The Order expressly instructs agencies to prioritize projects that “provide a clear plan for efficient project delivery by promoting positive labor-management relations.” This includes project labor agreements, collective bargaining agreements, community benefits agreements, and other “agreements designed to facilitate first collective bargaining agreements, voluntary union recognition, and neutrality by the employer with respect to union organizing.”

In addition, the Order directs agencies to prioritize projects that: (i) “enhance worker productivity by promoting family-sustaining wages”; (ii) supply particular benefits, including paid leave (e.g., paid sick, family, and medical leave), healthcare benefits, retirement benefits, and child, dependent, and elder care; (iii) enact policies designed to combat discrimination that impacts workers from underserved communities; (iv) expand worker access to high-quality training and credentials that will “lead to good jobs” and strengthen workforce development; and (v) promote and protect worker health and safety. Per the Order, projects that use, among other things, union pattern wage scales, joint labor-management partnerships to invest in “union-affiliated training programs, registered apprenticeships, and pre-apprenticeship programs,” or policies that encourage worker and union participation in the design and implementation of workplace safety and health management systems, will assist in satisfying the goal of achieving “high labor standards” and should be prioritized.

To effectuate the Order’s priorities, agencies are instructed to consider including application evaluation criteria or selection factors that will prioritize those applicants for federal assistance that adopt or provide a specific plan to adopt the priorities set forth in the Order. Agencies also must consider, among other things, publishing relevant guidance, such as best practice guides, engaging more deeply with applicants prior to any award of federal assistance “to ensure that applicants understand the benefits of [the Order’s] priorities for key programs and projects,” and collecting relevant data to evaluate and monitor the progress of funding recipients in satisfying the Order’s goals.

The “implementing agencies,” or the agencies subject to the Order, are the Department of the Interior, the Department of Agriculture, the Department of Commerce, the Department of Labor, the Department of Housing and Urban Development, the Department of Transportation, the Department of Energy, the Department of Education, the Department of Homeland Security, and the Environmental Protection Agency.

Finally, the Order creates a task force, referred to as the Investing in Good Jobs Task Force, that will be co-chaired by the Secretary of Labor and the Director of the National Economic Council, or their designees, and will oversee implementation of the Order’s labor standards in funding decisions by the implementing agencies.

The White House also issued a Fact Sheet (available here) discussing the Order and President Biden’s motivation for its enactment. It remains to be seen what impact the Order will have on the implementing agencies or how those agencies may alter their funding programs to comply with the Order. We will continue to monitor these developments and will keep you informed as to any new updates.

© 2024 Proskauer Rose LLP.
For more news on the Executive Order on Investing in America and Investing in American Workers, visit the NLR Labor Employment section.

Consumer Privacy Update: What Organizations Need to Know About Impending State Privacy Laws Going into Effect in 2024 and 2025

Over the past several years, the number of states with comprehensive consumer data privacy laws has increased exponentially from just a handful—California, Colorado, Virginia, Connecticut, and Utah—to up to twenty by some counts.

Many of these state laws will go into effect starting Q4 of 2024 through 2025. We have previously written in more detail on New Jersey’s comprehensive data privacy law, which goes into effect January 15, 2025, and Tennessee’s comprehensive data privacy law, which goes into effect July 1, 2025. Some laws have already gone into effect, like Texas’s Data Privacy and Security Act, and Oregon’s Consumer Privacy Act, both of which became effective July of 2024. Now is a good time to take stock of the current landscape as the next batch of state privacy laws go into effect.

Over the next year, the following laws will become effective:

  1. Montana Consumer Data Privacy Act (effective Oct. 1, 2024)
  2. Delaware Personal Data Privacy Act (effective Jan. 1, 2025)
  3. Iowa Consumer Data Protection Act (effective Jan. 1, 2025)
  4. Nebraska Data Privacy Act (effective Jan. 1, 2025)
  5. New Hampshire Privacy Act (effective Jan. 1, 2025)
  6. New Jersey Data Privacy Act (effective Jan. 15, 2025)
  7. Tennessee Information Protection Act (effective July 1, 2025)
  8. Minnesota Consumer Data Privacy Act (effective July 31, 2025)
  9. Maryland Online Data Privacy Act (effective Oct. 1, 2025)

These nine state privacy laws contain many similarities, broadly conforming to the Virginia Consumer Data Protection Act we discussed here.  All nine laws listed above contain the following familiar requirements:

(1) disclosing data handling practices to consumers,

(2) including certain contractual terms in data processing agreements,

(3) performing risk assessments (with the exception of Iowa); and

(4) affording resident consumers with certain rights, such as the right to access or know the personal data processed by a business, the right to correct any inaccurate personal data, the right to request deletion of personal data, the right to opt out of targeted advertising or the sale of personal data, and the right to opt out of the processing sensitive information.

The laws contain more than a few noteworthy differences. Each of the laws differs in terms of the scope of their application. The applicability thresholds vary based on: (1) the number of state residents whose personal data the company (or “controller”) controls or processes, or (2) the proportion of revenue a controller derives from the sale of personal data. Maryland, Delaware, and New Hampshire each have a 35,000 consumer processing threshold. Nebraska, similar to the recently passed data privacy law in Texas, applies to controllers that that do not qualify as small business and process personal data or engage in personal data sales. It is also important to note that Iowa adopted a comparatively narrower definition of what constitutes as sale of personal data to only transactions involving monetary consideration. All states require that the company conduct business in the state.

With respect to the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), Iowa’s, Montana’s, Nebraska’s, New Hampshire’s, and Tennessee’s laws exempt HIPAA-regulated entities altogether; while Delaware’s, Maryland’s, Minnesota’s, and New Jersey’s laws exempt only protected health information (“PHI”) under HIPAA. As a result, HIPAA-regulated entities will have the added burden of assessing whether data is covered by HIPAA or an applicable state privacy law.

With respect to the Gramm-Leach-Bliley Act (“GLBA”), eight of these nine comprehensive privacy laws contain an entity-level exemption for GBLA-covered financial institutions. By contrast, Minnesota’s law exempts only data regulated by GLBA. Minnesota joins California and Oregon as the three state consumer privacy laws with information-level GLBA exemptions.

Not least of all, Maryland’s law stands apart from the other data privacy laws due to a number of unique obligations, including:

  • A prohibition on the collection, processing, and sharing of a consumer’s sensitive data except when doing so is “strictly necessary to provide or maintain a specific product or service requested by the consumer.”
  • A broad prohibition on the sale of sensitive data for monetary or other valuable consideration unless such sale is necessary to provide or maintain a specific product or service requested by a consumer.
  • Special provisions applicable to “Consumer Health Data” processed by entities not regulated by HIPAA. Note that “Consumer Health Data” laws also exist in Nevada, Washington, and Connecticut as we previously discussed here.
  • A prohibition on selling or processing minors’ data for targeted advertising if the controller knows or should have known that the consumer is under 18 years of age.

While states continue to enact comprehensive data privacy laws, there remains the possibility of a federal privacy law to bring in a national standard. The American Privacy Rights Act (“APRA”) recently went through several iterations in the House Committee on Energy and Commerce this year, and it reflects many of the elements of these state laws, including transparency requirements and consumer rights. A key sticking point, however, continues to be the broad private right of action included in the proposed APRA but absent from all state privacy laws. Only California’s law, which we discussed here, has a private right of action, although it is narrowly circumscribed to data breaches.  Considering the November 2024 election cycle, it is likely that federal efforts to create a comprehensive privacy law will stall until the election cycle is over and the composition of the White House and Congress is known.

©2024 Epstein Becker & Green, P.C. All rights reserved.
For more on Data Privacy, visit the NLR Communications Media Internet section.

October 2024 Visa Bulletin – New Fiscal Year, Mostly the Same Old Story

The State Department has published the much-anticipated October Visa Bulletin, the first issue of Fiscal Year 2025. Although the new year brings a brand new allotment of visa numbers in all categories, not much has changed since last month, with one exception in the All Countries category.

Below is a summary that includes Final Action Dates and changes from the previous month, but first – some background if you’re new to these blog posts. If you’re an old hand at the Visa Bulletin, feel free to skip the next paragraph.

The Visa Bulletin is released monthly by the US Department of State (in collaboration with US Citizenship and Immigration Services). If your priority date (that is, the date you got a place on the waiting list) is earlier than the cutoff date listed in the Bulletin for your nationality and category, that means a visa number is available for you that month. That, in turn, means you can submit your DS-260 immigrant visa application (if you’re applying at a US embassy abroad) or your I-485 adjustment of status application (if you’re applying with USCIS). If you already submitted that final step and your category then retrogressed, it means the embassy or USCIS can now approve your application because a visa number is again available.

Now for the October VB –

There are few changes from September for China:

  • EB-1 progresses 1 week to November 8, 2022m and EB-2 3 weeks to March 22, 2020
  • EB-3 Professionals retrogresses 5 months to April 1, 2020
  • EB-3 Other Workers stays stalled at January 1, 2017

Likewise, limited movement for India:

  • EB-1 remains stuck at February 1, 2022, and EB-2 at July 15, 2012
  • EB-3 Professionals and EB-3 Other Workers both advance 10 days to November 1, 2012

For All Other Countries, no changes except one dramatic one for EB-3:

  • EB-1 remains current
  • EB-2 remains stalled at March 15, 2023
  • EB-3 Professionals leaps almost 2 years, to November 15, 2022, making up last month’s retrogression of 1 year and gaining almost another year
  • EB-3 Other Workers stays stuck at January 1, 2020

NOTE 1: USCIS will accept I-485 applications in October based on the Department of State’s more favorable Dates for Filing chart, which allows from 2 months to 1 year of additional filing time depending on nationality and category:

  • Chinese nationals gain almost 2 months to file in EB‑1; a little over 6 months in EB-2; 7.5 months in EB‑3 Professionals; and 1 year in EB-3 Other Workers.
  • Indian nationals gain 2.5 months in EB-1; 5.5 months in EB-2; a little over 7 months in EB-3 Professionals; and 7 months in EB-3 Other Workers.
  • Nationals of all other countries may file their I-485s in advance of their priority dates being current by 4.5 months in EB-2; 3.5 months in EB-3 Professionals; and 5.75 months in EB-3 Other Workers.

NOTE 2: The Dates for Filing chart applies only to I-485 applications with USCIS. Immigrant visa applications with US embassies are always based on the Final Action Dates chart.

*Carol Schlenker also contributed to this article

Copyright © 2024, Hunton Andrews Kurth LLP. All Rights Reserved.
For more news on the October 2024 Visa Bulletin, visit the NLR Immigration section.

California Legislature Sends Governor Bill Prohibiting Employer ‘Captive Audience’ Meetings

On August 31, 2024, the California Legislature passed the California Worker Freedom from Employer Intimidation Act, Senate Bill (SB) No. 399. The bill heads to Governor Gavin Newsom, who has until September 30, 2024, to sign it. If he does so, the act will add new Labor Code Section 1137.

Quick Hits

  • California’s SB 399 would limit an employer’s ability to communicate with employees regarding political or religious matters during mandatory meetings.
  • The bill’s definition of “political matters” includes matters relating to union organizing.
  • The act provides employees with a private right of action that includes punitive damages.

If signed by the governor, SB 399 would limit an employer’s ability to communicate with employees regarding political or religious matters during mandatory meetings during working hours. Importantly, the legislation’s definition of “political matters” includes union organizing.

Prohibition against certain “captive audience meetings.” The California Senate Committee on Labor, Public Employment and Retirement defined “captive audience meetings” as “mandatory meetings during work hours, organized by an employer where employees are paid for their time attending the meeting and are required to attend or face discipline.”

The legislation would prohibit employers from “subject[ing], or threaten[ing] to subject, an employee to discharge, discrimination, retaliation, or any other adverse action because the employee declines to attend an employer-sponsored meeting or affirmatively declines to participate in, receive, or listen to any communications with the employer or its agents or representatives, the purpose of which is to communicate the employer’s opinion about religious or political matters.” The act requires that employers pay any employee who works during the meeting but declines to attend it.

“Political matters” includes union-related issues. SB 399’s legislative history and text make clear that the legislature intended to prohibit employers from forcing employees to listen to employer communications during union organizing campaigns. The bill defines “political matters” to include “the decision to join or support any political party or political or labor organization.” (Emphasis added.)

Exemptions. SB 399 identifies entities and/or activities to which it would not apply. The legislation specifically excludes religious institutions or groups that are exempt from Title VII of the Civil Rights Act of 1964 or California prohibitions against employment discrimination. It also would not apply to educational institutions that require students or instructors to attend lectures that include religious and/or political matters as part of coursework.

Additionally, employees would not be permitted to use SB 399 to escape from harassment or inclusiveness training. SB 399 expressly does not apply to “[a]n employer requiring employees to undergo training to comply with the employer’s legal obligations, including obligations under civil rights laws and occupational safety and health laws.” (Emphasis added.)

Agency enforcement. If enacted, SB 399 would authorize the California Labor Commissioner to enforce the law through its already-established citation process.

Penalty. An employer that violates the act would be subject to a $500 penalty per employee per violation.

Civil enforcement. Affected employees would be permitted to bring a civil action in lieu of administrative enforcement. The act would expressly authorize punitive damages.

If the governor signs SB 399, California would join a growing list of states attempting to ban “captive audience” meetings about religious and/or political matters. Other states with similar laws include Connecticut, Illinois (effective January 1, 2025), Maine, Minnesota, New York, Oregon, Vermont, and Washington.

Even if Governor Newsom signs the bill into law, employer groups likely will seek to enjoin the act on the basis that it infringes on employers’ First Amendment right to express their viewpoints about unionization.

© 2024, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.

As the Season Changes, Don’t Fall Behind: 4 Key Employment Law Trends

As the seasons change, so do manufacturers’ priorities. Fall is typically one of the busiest hiring periods of the calendar year, so many manufacturers are likely bracing themselves for this challenge. That said, there were several significant labor and employment updates this spring and summer of which manufacturers should be aware; below are four key trends that may require action to ensure compliance.

1. Worker Classification – Independent Contractor Versus Employees

Earlier this year, the U.S. Department of Labor (DOL) issued a final rule regarding employee and independent contractor status under the Fair Labor Standards Act (FLSA). The new rule, which took effect March 11, 2024, adheres to a “totality of the circumstances” approach and involves consideration of six factors. Manufacturers who rely on independent contractors to perform work and provide services should consider reviewing those relationships to ensure they are adequately characterized as independent contractors rather than employees.

2. Salary Threshold for Exempt Employees Increasing

This past spring, the U.S. DOL issued a final rule that included raising in the federal minimum salary threshold for exempt employees. Previously, the salary threshold for executive, administrative, and professional employees was $684 per week (or $35,568 per year). Effective July 1, 2024, however, the salary threshold became $844 per week ($43,888 per year), and on January 1, 2025, it will once again rise to $1,128 per week ($58,656 per year). The final rule also states that the threshold will increase on July 1, 2027, and every three years thereafter. Manufacturers should review these thresholds, as well as any state or local thresholds that may exist to ensure compliance and prepare for the January 1, 2025, increase.

3. Pay Transparency Laws

Pay transparency laws, including those requiring employers to provide the pay range to applicants, candidates, and employees or to include it in job postings, continue to be passed in states nationwide. On July 31, 2024, Massachusetts passed a law requiring employers to include a “pay range” in all job postings, including those posted by third parties, such as recruiters. Massachusetts joins several other states, including Washington, DC, which passed a similar law that recently took effect on June 30, 2024; Maryland, which passed a law taking effect on October 1, 2024; laws in Minnesota and Illinois that both take effect on January 1, 2025; and a Vermont law will take effect on July 1, 2025. Notably, the Massachusetts law also contains pay data reporting requirements for employers that are subjected to annual federal Equal Employment Opportunity (EEO) report requirements, which includes many manufacturers. Specifically, covered manufacturers must submit an annual report of pay data categorized by race, ethnicity, sex, and job category to the Secretary of the Commonwealth, with the first report due no later than February 1, 2025. Manufacturers might consider reviewing the pay transparency and pay data reporting laws in the states in where they employ employees or engage in recruiting.

4. Paid Sick Leave Laws

While paid sick leave has been trending for a number of years, there have been significant developments in recent months. In Connecticut, the sick leave law was recently expanded significantly, and now nearly all private employees are entitled to such leave. New York has also recently become the first state in the nation to enact paid prenatal leave benefits for pregnant workers. Specifically, effective January 1, 2025, pregnant workers will be entitled to up to 20 hours of paid leave in a 52-week period to attend prenatal medical appointments and procedures. This leave is not accrued; rather, it must be immediately available to employees, and it is in addition to the paid sick and safe leave to which employees are already entitled. Manufacturers who are multi-state employers should consider engaging in a comprehensive review of their PTO and sick leave policies to ensure compliance with these recent advancements.

Copyright © 2024 Robinson & Cole LLP. All rights reserved.
For more news on Employment Law Trends for Fall 2024, visit the NLR Labor Employment section.