Workforce Bulletin

The Massachusetts appellate court decision in Tran v. Jennings Road Management, Corp., et al, gave the green light to an employee to pursue class action claims against her direct employer as well as a separate management company based on a finding that the two entities were “joint” employers. This decision, together with the 2021 Supreme Judicial Court case on which the appellate court relied, serves as a warning to employers that sharing administrative and human resources duties with “outside” consultants or other companies may expose both companies to unforeseen liability.

After granting the parties’ request to decide the sole issue of whether the management company could face potential liability, the trial court concluded that the plaintiff, Sakiroh Tran, was jointly employed by Herb Chambers BMW car dealership, her direct employer, as well as Jennings Road Management Corp., a management company owned and controlled by Herb Chambers himself. Late last week, the Massachusetts Appeals Court affirmed the trial court’s decision citing the “totality of the circumstances” test set forth in Jinks v. Credico (USA) LLC, 488 Mass. 691, 692 (2021). This ruling paves the way for plaintiff to litigate her class action claims against multiple defendants.

For employers doing business in New York, the “Freelance Isn’t Free” Act (the “Act”) signed into law by Governor Kathy Hochul in March of this year may have stirred up memories of the New York City ordinance enacted just a few years ago by the same name. Both laws establish protections for freelance workers that aim to ensure that they receive timely compensation for all services performed. The namesake state law, however, does not impose obligations identical to those required by the city-level ordinance. Moreover, some not well-publicized legislative shuffling has caused confusion about the Act and its applicability statewide.

Wait, Didn’t This Happen Already?

Earlier this year, we wrote about the Act, anticipating an effective date of May 20, 2024. However, two days after our publication, the New York State Senate took up a bill to amend the Act by removing its provisions from the New York Labor Law— which is enforced by the New York State Department of Labor (“NYSDOL”)—and codifying it instead as Article 44-A of the New York General Business Law—which is enforced by the state’s Attorney General. The governor signed this legislation on March 1, thereby bumping the Act’s effective date to August 28, 2024.

On June 3, 2024, the New Jersey Division on Civil Rights proposed new regulations addressing Disparate Impact Discrimination, N.J.A.C. 13:16 (the Proposed Rules) under the New Jersey Law Against Discrimination (LAD).

The Proposed Rules clarify that in addition to the LAD’s prohibition against conduct that treats people differently because of their membership in a protected class, the law also prohibits practices and policies, in employment, housing, public accommodation, credit, and contracting, that have a disproportionately negative effect on members of a protected class, unless the practice or policy is necessary to achieve a “substantial, legitimate, nondiscriminatory interest and there is no less discriminatory, equally effective alternative that would achieve the same interest.”

The Proposed Rules, which largely codify state and federal case law, provide the legal standard and burdens of proof for determining whether a policy or practice has discriminatory effect, and give examples of practices or policies that may result in disparate impact on a protected class.

As featured in #WorkforceWednesday: This week, on our Spilling Secrets podcast series, we underscore the importance of e-discovery in trade secret and restrictive covenant cases and look at how employers can use electronically stored information (ESI) to protect proprietary information:

There’s a common misperception that ESI just means emails, but it’s much more than that. ESI encompasses anything in digital or electronic form. The departure of an employee is at the root of most trade secret and restrictive covenant litigation. Therefore, when an employee departs, the timely preservation of ESI must be a standard operating procedure.

In this episode of Spilling Secrets, Epstein Becker Green attorneys A. Millie Warner and Elizabeth S. Torkelsen and special guest James Vaughn, Managing Director of iDiscovery Solutions, discuss the complicated field of digital forensics and how employers can effectively manage ESI.

The Commodity Futures Trading Commission (“CFTC”) has now joined the Securities and Exchange Commission (“SEC”) in taking a stand against broad non-disclosure provisions in employment agreements. Last week, the CFTC announced a settlement with Trafigura Trading LLC, in which the company agreed to pay a $55 million penalty, in part because it required employees to sign agreements that impeded voluntary communications with the CFTC.

The Fourth Circuit recently reaffirmed that not all forms of opposition constitute protected activity. In Bills v. WVNH EMP, LLC, the Fourth Circuit unanimously affirmed the Southern District of West Virginia’s Order granting Defendants WVNH EMP, LLC, and Lanette Kuhnash’s (“Defendants”) motion for summary judgment on plaintiff Dorothy Bills’ (“Bills”) wrongful termination action under the West Virginia Human Rights Act (“WVHRA”). The sole issue was whether Bills engaged in protected activity under the WVHRA when she opposed sexual harassment by hitting a patient to stop him from groping her. Both courts agreed that Bills’ conduct was not protected by the WVHRA.

Today, we’re bringing you a special breaking news episode on the recent U.S. Supreme Court (SCOTUS) ruling in the Starbucks v. McKinney case, which effectively raises the standard for federal courts issuing injunctions under section 10(j) of the National Labor Relations Act.

This ruling is a significant blow to the National Labor Relations Board’s enforcement priorities. In the video below, Epstein Becker Green attorney Steve Swirsky tells us more.

New York City employers, time is running out to update your bulletin boards. Local Law No. 161, which took effect January 2, 2024, requires New York City employers to display and distribute to each employee a multilingual “Know Your Rights at Work” poster (the “Poster”) by no later than July 1, 2024. The Poster’s main feature – a QR code – directs employees to the Workers’ Bill of Rights website created by the New York City Department of Consumer and Worker Protection (DCWP) to summarize protections available under federal, state, and local laws.

Specifically, Local Law No. 161 requires New York City employers to:

As featured in #WorkforceWednesday®: This week, we’re recapping recent U.S. Supreme Court (SCOTUS) decisions and their impact on employers across the country.

The Department of Labor's (DOL) May 16, 2024 guidance, Artificial Intelligence and Worker Well-Being: Principles for Developers and Employers, published in response to the mandates of Executive Order 14110 (EO 14110) (Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence), weighs the benefits and risks of an AI-augmented workplace and establishes Principles to follow that endeavor to ensure the responsible and transparent use of AI. The DOL’s publication of these Principles follows in the footsteps of the EEOC and the OFCCP’s recent guidance on AI in the workplace and mirrors, in significant respects, the letter and spirit of their pronouncements. 

While not “exhaustive,” the Principles” should be considered during the whole lifecycle of AI” from ”design to development, testing, training, deployment and use, oversight, and auditing.”  Although the DOL intends the Principles to apply to all business sectors, the guidance notes that not all Principles will apply to the same extent in every industry or workplace, and thus should be reviewed and customized based on organizational context and input from workers.

While not defined in the Principles, EO 14110 defines artificial intelligence as set forth in 15 U.S.C. 9401(3): “A machine-based system that can, for a given set of human-defined objectives, make predictions, recommendations, or decisions influencing real or virtual environments.  Artificial intelligence systems use machine- and human-based inputs to perceive real and virtual environments; abstract such perceptions into models through analysis in an automated manner; and use model inference to formulate options for information or action.”