The rise of workplace wearable technology has opened new possibilities for employee efficiencies, safety, and health monitoring. Collecting health-related workplace data, however, may subject employers to liability under nondiscrimination laws.
Yesterday, the Equal Employment Opportunity Commission (“EEOC”) published a fact sheet addressing potential concerns and pitfalls employers may run into when gathering and making employment related decisions based on health-related information.
Understanding Workplace Wearables
Wearable technologies, or “wearables,” are digital devices worn on the body that can track movement, collect biometric data, and monitor location. Employers have implemented these tools for a multitude of reasons, including tracking and predicting how long certain tasks take employees to promote efficiency. Wearables may also be programmed to recognize signs of fatigue, like head or body slumps, and notice improper form when lifting, which can be critical for workplace health and safety.
As featured in #WorkforceWednesday®: This week, we asked a few of our labor and employment attorneys to recap the most significant challenges their clients faced in 2024.
It has been a pivotal year for employers, marked by challenges to federal agency authority, sweeping state-level regulatory changes, and the looming impact of a presidential election poised to reshape labor laws nationwide.
In this episode, attorneys from Epstein Becker Green's Employment, Labor & Workforce Management practice reflect on these challenges, address key client pain points, and share their insights on what the future may bring.
In its first merits decision this term, the Supreme Court provided a straightforward application of textualism to demonstrate that in cases challenging administrative action under the Administrative Procedure Act (APA), Congress’s delegation of authority to the agency must be clear. Only in this case, Congress got it right. In future challenges to agency action, counsel and affected parties should take into account the ability of Congress to limit those challenges.
A Unanimous SCOTUS Analysis
As we summarized previously, a unanimous U.S. Supreme Court (per Jackson, J.) held in Bouarfa v. Mayorkas that the revocation of an approved visa petition under 8 U.S.C. §1155 by the Secretary of Homeland Security (the “Secretary”) is the kind of discretionary decision that falls within the agency’s purview pursuant to authority that is delegated by Congress. In this case, the Secretary revoked a visa based on a sham-marriage determination, relying on the language of Section 1155 that grants broad authority to the Secretary to revoke an approved visa petition at any time, for “what he deems to be good and sufficient cause.” The revocation was challenged through the agency and then federal courts. At each turn, the agency’s determination was upheld, with the District Court and the Court of Appeals for the Eleventh Circuit both holding that, in the context of enacted legislation outlining the agency’s powers, courts are precluded from reviewing the Secretary’s decision.
As featured in #WorkforceWednesday: This week, on our Spilling Secrets podcast series, our panelists look back on the top trade secrets and non-compete stories of the year:
This year has been a rollercoaster for trade secrets and non-compete law. We’ve seen major legal battles at both the federal and state levels impacting employers across the nation.
In this episode, Epstein Becker Green attorneys Peter A. Steinmeyer, Daniel R. Levy, Katherine G. Rigby, A. Millie Warner, and Erik W. Weibust recap 2024’s most significant updates, including the Federal Trade Commission’s non-compete ban, the National Labor Relations Board’s general counsel memo, state-level trends, and much more.
As featured in #WorkforceWednesday®: This week, we're highlighting several last-minute changes from federal agencies before the Trump administration takes office.
These changes include the National Labor Relations Board’s (NLRB’s) recent ban on captive audience meetings, a federal judge's decision to vacate the Department of Labor's (DOL’s) overtime rule, and the return of Wage and Hour Division opinion letters.
For business leaders and in-house counsel, establishing clear investigation protocols is vital for protecting corporate integrity and managing risks related to whistleblowing and retaliation.
Epstein Becker Green (EBG) attorney Greg Keating brings over 25 years of experience in litigation and employment law to this compelling one-on-one interview. Known for his pivotal contributions to developing effective investigation protocols, Greg recently led the formation of EBG’s cross-disciplinary Workplace Investigations practice group, which now includes nearly 70 attorneys across the firm’s expansive network.
Whether addressing a minor complaint or responding to a media storm stirred by an ambitious reporter, your whistleblowing investigations can significantly benefit from proactive measures and protocols.
Tune in as Greg is interviewed by fellow EBG attorney George Whipple, to share real-world examples of proactive measures and tactical steps to safeguard corporate reputation—strategies that could mean the difference between effective damage control and long-term duress.
On November 21, 2024, legislation will take effect in South Carolina, making that state the latest jurisdiction to regulate earned wage access (EWA) programs. EWA programs are generally targeted towards lower-wage earners, allowing employees to obtain a portion of their paycheck before the employer’s scheduled payday. While EWA can be a lifeline for employees living paycheck to paycheck, consumer advocates worry that hidden and not-so-hidden fees associated with such programs could increase users’ aggregated debt, to the detriment of their long-term financial well-being.
To combat such concerns, states have begun to implement rules requiring employers and third parties offering EWA programs to abide by certain standards. States differ, however, on whether payroll advances though EWA programs should be treated as loans. Categorizing EWA advances in this way obligates employers and third-party providers to abide by a complex set of banking regulations. Thus, it is important for employers that offer or are considering an EWA program to understand the implications, which vary depending on the states where the employer does business.
How EWA Programs Work
Advances under EWA programs are either provided directly by employers as a benefit to employees or by third-party providers directly to consumers. If an employee opts to advance a portion of their paycheck through an employer-provided program, the employer or payroll provider reduces the subsequent paycheck amount on payday to recover the advance. If an employee enrolls in an EWA through a third-party provider, the provider removes the advanced amount from the employee’s direct deposit account on payday.
As featured in #WorkforceWednesday: This week, on our Spilling Secrets podcast series, our panelists outline the benefits of intellectual property (IP) audits and trade secret assessments for employers and organizations looking to safeguard their assets.
Beyond Non-Competes: IP and Trade Secret Assessment Strategies for Employers
With non-compete agreements facing continual legal pressure, what are some other ways employers can protect their trade secrets and IP?
In this episode of Spilling Secrets, Epstein Becker Green attorneys Daniel R. Levy, Gregory J. Krabacher, and Hemant Gupta describe how IP audits and trade secret assessments can offer a uniquely targeted approach to protecting sensitive information, ensuring a company has a grasp of the full scope of their assets.
New Jersey has joined the growing ranks of jurisdictions that have enacted pay transparency laws. Senate Bill 2310 (“the Law”) was enacted on November 10, 2024, and approved on November 18, 2024 as Public Law 2024, chapter 91. The Law will take effect on June 1, 2025, i.e., “the first day of the seventh month next following the date of enactment,” and will require most New Jersey employers to disclose a wage or salary range and a general description of benefits and other compensation programs in their job postings and advertisements. The Law also will require covered employers to make “reasonable efforts to announce, post, or otherwise make known opportunities for promotion” to current employees, a feature that is not common in similar laws enacted by other jurisdictions.
Covered Employers
The Law applies to any employer that has 10 or more employees over 20 calendar weeks and does business, employs persons, or takes applications for employment within the state.
Note that employers in Jersey City with five or more employees within Jersey City are already required to comply with that city’s ordinance mandating the disclosure of salary information in postings. This ordinance remains in effect, which means that Jersey City employers with five to nine employees that will be exempt from the state’s law must still comply with the city’s law.
With 2024 winding down, New York employers should be aware of the updates to the New York State Paid Family Leave (PFL) program that take effect in 2025.
As a reminder, PFL allows eligible employees to take up to 12 weeks of job-protected, partially paid time off within a 52-week period for permitted reasons, such as to bond with a newborn, care for a family member with a serious health condition or assist when a family member is deployed abroad on active military service.
As we noted in a bulletin post last year, New York has modified its program several times since establishing PFL in 2018. While PFL’s changes for 2025, as explained below, are ministerial, it should be noted that New York recently expanded other mandatory benefits, including the provision of paid lactation breaks and the addition of paid leave for prenatal care under the New York paid sick leave program.
Blog Editors
Recent Updates
- The EEOC and Wearable Tech: Balancing Innovation and Compliance
- Video: 2024 Workforce Review - Top Labor and Employment Law Trends and Updates - Employment Law This Week
- Post-Chevron, Agency Challenges Aren’t Always a Slam Dunk
- Podcast: 2024’s Biggest Trade Secrets and Non-Compete Developments – Employment Law This Week
- Video: Biden’s Final Labor Moves - Employment Law This Week