A Wealth of Learning Opportunities – and Resources – at Your Fingertips
Knowledge is power. Imagine what you could do with 24-hour access to a powerful learning community to help you stay up to date with the latest trends, insights, news, and best practices to share with your valued clients. XPX’s exclusive Knowledge Exchange is the one place where you can exchange knowledge with some of the industry’s most successful professionals with expertise in a wide variety of areas. Here are recent posts from our chapter activities and members:
News & Posts
As we enter 2025, businesses face a rapidly evolving employment law landscape shaped by dynamic shifts across all three branches of government. With a new president set to take office, significant developments at the Supreme Court, and the Republicans securing control of Congress, 2025 is shaping up to be a year defined by upheaval. Each branch of government will be different than any of us have seen in decades. The Executive Branch First and foremost, Donald Trump’s second presidential term is set to begin on January 20. Over the last four years, the Biden administration, known for their pro-employee policies, ushered in a wave of regulations aimed at expanding worker protections. Conversely, the Trump administration is expected to continue their pro-employer, laissez-faire approach that prioritized deregulation and employer flexibility during his first term. (Interestingly, the Trump Administration has started supporting more union issues and no one knows how that will impact his second term.) Significantly, labor and employment law developments often arise from action on behalf of various agencies such as the National Labor Relations Board (“NLRB”) and the Department of Labor (“DOL”). Because these agencies are part of the Executive branch, the president is effectively charged with overseeing them, and therefore plays a significant role in the implementation of their policies. Employers should expect Trump to utilize these agencies to implement his pro-business agenda. It is worth noting, however, that a 2024 Supreme Court decision (Loper Bright Enterprises v. Raimondo) overturned the long-standing Chevron doctrine, a legal principle that directed courts to defer to federal agency’s interpretations of law that agency is empowered to enforce. As a result of this decision, the Executive branch was effectively weakened, shifting greater interpretative authority to the Judicial branch. It will be interesting to see how much impact this change will have on the balance of power among our branches of government. The Judicial Branch Loper was not the only Supreme Court decision in 2024 that contributed to the shift in power in favor of the Judicial branch. The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, overturned the landmark abortion decision Roe v. Wade. Historically, courts, including the Supreme Court, follow precedent created by earlier decisions. But now the Supreme Court showed its willingness to overturn longstanding precedent based on a difference in their opinion of what is right or wrong. This shift away from strict adherence to precedent allows the Supreme Court greater latitude to reinterpret past decisions. With more flexibility to pursue a wider range of cases, as well as greater interpretive authority, the Judicial branch is shaping up to be much more powerful than it has been in the past. The Legislative Branch Lastly, in the 2024 election, the Republicans secured a majority in both the House of Representatives and the Senate. This means that the Legislative branch will have broad authority to enact their agenda over the next two years. Additionally, with Donald Trump in the White House, the likelihood of presidential vetoes decreases significantly. This alignment will increase the likelihood that Congress will pass more new laws than is typically seen under a divided legislature. As a result, employers should closely monitor what new laws Congress enacts. Employer Takeaways Overall, the three branches of government are all undergoing significant changes. Donald Trump is likely to resume his pro-employer agenda, albeit with a slightly weakened Executive branch in the wake of the Loper decision. The Judicial branch is as powerful as ever, exemplified by the Supreme Court’s willingness to overturn longstanding precedent. Lastly, with Republicans in control of both the Senate and the House, the Legislative branch is primed for significant activity through 2026. With all these changes taking place, it is crucial for businesses to keep abreast of developments in labor and employment laws to ensure compliance and minimize legal risk in the new year. Brody and Associates regularly advises management on complying with the latest local, state, and federal employment laws. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.
On November 4, 2024, NYC Mayor Eric Adams signed into law the Safe Hotels Act (Int. No. 991-C) aiming to promote hotel safety and boost tourism. The Act, taking effect May 3, 2025, requires hotel licenses, restructuring of employment agreements, and a number of new staffing requirements. Hotel License Requirements Hotel operators defined as persons who own, lease, or manage a hotel, and control day-to-day operations, must obtain a hotel license from the Department of Consumer and Worker Protection (DWCP) to legally operate a hotel. Hotel operators must file an application with the Commissioner of the DWCP to obtain a license. The application must contain contact information as well as details of safeguards and procedures which show the hotel is in compliance with the Act’s staffing, safety, employment, and cleanliness requirements. The application will differ if the operator has a collective bargaining agreement (CBA) with a union. If the operator has a CBA which contains the required information and references the CBA in their application this may satisfy the Acts notification rules. The notification requirement will be satisfied for the term of the CBA or 10 years from the date of the application (whichever is longer). The commissioner must be notified if there are changes to the CBA which remove references to the Act’s requirements. The hotel license may be denied or revoked if operators fail to comply with the Act, however there are a number of notice requirements for the Commissioner prior to revoking a license. The Commissioner must notify the licensee of a potential revocation in writing. The licensee must be given 30 days from the notification to remedy the violation and this notice must be in writing. A license will not be revoked if it can be demonstrated that the condition has been resolved in the 30-day period. Evidence of this correction can be delivered electronically or in person. Upon the Commissioner’s decision, the licensee has 15 days to request a review of the decision. A license will not be revoked in the following situations: service disruptions such as construction work noise; conditions that the hotel is aware of and treats within 24 hours such as bed bugs, rodents, etc.; unavailability of hotel amenities for a period of 48 hours; unavailability of utilities for a period of 24 hours; and importantly any strike, picketing, lockout, or demonstration at or by the hotel. Hotel operators must display their license in a public area. Employment Agreement Requirements The Act requires hotel owners, with 100 or more guest rooms, “directly employ” all “core employees”, except a single hotel operator to manage operations on the owner’s behalf. This rule effectively eliminates intermediaries such as staffing agencies or management companies. Core employees include those whose work relates to housekeeping, front desk, or front service. Valets, maintenance workers, parking security, and employees mostly working with food and beverages are not considered core employees. This provision greatly impacts employers who utilize subcontractors; however some contracting agreements may be grandfathered in if they are entered into prior to the effective date and have a specific termination date. Violating this provision may serve as the basis of license revocation. Staffing Requirements In order to maintain safe conditions for guests and hotel workers, the Act implements a number of new staffing requirements. One employee must provide front desk coverage at all times (during night shifts a security guard who has received human trafficking training may take this employee’s place). Hotels with more than 400 guest rooms must have a minimum of one security guard providing continuous coverage while any room is occupied. Hotels must maintain cleanliness and not impose fees for daily room cleaning. Core employes must receive training on how to identify human trafficking within 60 days of employment. Hotels must not accept reservations for less than 4 hours. Penalties and What Else Employers Need to Know Hotel operators are strictly prohibited from retaliating against any employee who discloses a potential violation or assists in an investigation. Hotel operators are also prohibited from retaliating against employees who refuse to partake in a dangerous activity that is not part of their job. As previously discussed, noncompliance can result in a hotel operator’s license being revoked, but that is not all. Anyone alleging a violation can seek a civil action within 6 months of the alleged violation. Furthermore, the Act provides for civil penalties which vary based on the number of violations: $500 for a first violation, $1,000 for a second, $2,500 for a third, and $5,000 for subsequent violations. The Commissioner is expected to issue rules by which this law will be enforced. A timetable for their issuance has yet to be set. Brody and Associates regularly advises management on complying with the latest local, state and federal employment laws. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560
Jennifer Abruzzo, the National Labor Relations Board’s (NLRB) General Counsel, is continuing her campaign against non-compete agreements. She just issued a memo announcing her office will seek more remedies for employees who are required to sign non-compete agreements. This follows previous statements in which she said non-compete agreements, which affect about 20% of US workers (30 million people), are unlawful. She has expanded her argument to include “stay-or- pay” provisions, stating they restrict workers’ job opportunities which (somehow) discourages unionizing. Non-Compete Agreements The NLRB is currently considering the legality of non-compete agreements under the National Labor Relations Act (NLRA) in a case involving an Indiana HVAC company. In a 2023 memo, Abruzzo explained why overbroad non-compete agreements are unlawful. She explained they hinder an employee’s ability to exercise their rights under Section 7 of the NLRA, which protects employees’ rights to take collective action including unionization. Abruzzo’s agenda has faced setbacks. In April 2024, the Federal Trade Commission (FTC) largely noncompete agreements, with some exceptions, however the ban was subsequently
On September 18, 2024, a panel of three Third US Circuit Court of Appeals judges heard oral argument from the National Labor Relations Board (NLRB) and Starbucks on the matter of consequential damages. At stake is the NLRB’s power to award damages for direct and foreseeable pecuniary harms that go beyond lost pay and benefits. The award of such things as credit card late payment costs and uninsured medical costs, fees for not timely paying other expenses, etc. are at issue. If such awards are within the NLRB’s authority, the damage awards in NLRB wrongful discharge cases could dramatically rise. Here is how we got to this point. In 2023, the NLRB ordered Starbucks to pay consequential damages in a case of the wrongful termination of two pro-union employees. Damages included “direct or foreseeable pecuniary harms incurred as a result of [the employees’ wrongful discharges.]” This case is one of many cases Starbucks faces alleging wrongful discharge of union supporters. If it losses, the monetary cost could be significant. By filing this appeal, Starbucks’s joins companies such as Amazon, SpaceX, and Trader Joe’s in challenging the NLRB’s constitutional authority to exert such enforcement powers. Traditionally, the Board would order reinstatement, backpay and lost benefits in a case of wrongful termination, however this was expanded in 2022. A Board decision in Thryv, Inc., 372 NLRB No. 22 (2021), held employees who are wrongfully terminated should also receive compensation for other pecuniary losses stemming from the termination. Examples include credit card cost, out of pocket medical expenses, mortgages related fees, etc. Such damages can quickly add up. In this latest Starbucks case, the Third Circuit considered Thryv but also the US Supreme Court’s June ruling in Jarkesy v. U.S. Securities and Exchange Commission and its applicability to the NLRB. In Jarkesy, the Supreme Court found it was unconstitutional for the SEC to impose civil penalties in administrative cases. Such awards need to be awarded in a court. The Third Circuit must decide whether the expanded remedies sought by the NLRB would be considered “legal remedies” typically imposed by the courts as in Jarkesy or “equitable remedies” typically imposed by administrative agencies. Such administrative remedies are intended to benefit the worker rather than unfairly punish employers. The NLRB argued they have the authority to impose the remedies regardless of their status as legal or equitable. Not surprisingly, Starbucks argued allowing the NLRB to issue damages beyond backpay would violate their constitutional right to a jury trial and therefore was unconstitutional. The outcome is pending and regardless, it may well be appealed to the Supreme Court where the authority of various agencies is being curtailed. We will keep you informed. Brody and Associates regularly advises management on complying with the latest local, state and federal employment laws. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560
Passed in June 2024 and signed into law by New York Governor Kathy Hochul on September 5, the Retail Worker Safety Act is set to take effect March 4, 2025. The law mandates protections for retail employees including panic buttons, workplace violence prevention policies, and training. Who is covered? The law explains: Covered employers: any person, entity, business, corporation, partnership, limited liability company, or an association employing at least ten retail employees. Retail employees: employees working at a retail store for an employer. Retail Store: a store that sells consumer commodities at retail and which is not primarily engaged in the sale of food for consumption on the premises. The state, any political subdivision of the state, a public authority, or any other government agency is not covered by the law. Key Requirements The Act’s key requirements are the installation of panic buttons, implementation of workplace violence prevention policies, and training. The panic button requirement does not take effect until January 1, 2027, while the other requirements are effective March 2025. Panic Button Employers with more than 500 retail employees nationwide must provide employees with access to panic buttons across the workplace. Employers may opt for a physical button or mobile phone-based buttons. The requirements for each are slightly different. If the employer chooses to use a physical panic button it must contact the local 911 public safety answering point when pressed. Pressing the button must provide the answering point with the employee’s location and dispatch law enforcement. The button must be accessible or wearable. The mobile phone-based approach requires the button to be installed on employer provided equipment and is wearable. The mobile button may not track employee locations unless pressed. Workplace Violence Prevention Policy Employers must adopt a written workplace violence prevention policy to be provided to employees upon hire and annually. The NY Department of Labor (NYDOL) will draft a model plan which will be evaluated every four years from 2027 onwards. Employers may adopt the NYDOL policy or create their own equivalent policy. The policy must: List factors or situations in the workplace which may increase the employees’ risk of workplace violence. Examples given include working late at night or early morning hours; exchanging money with the public; working alone or in small numbers; and uncontrolled access to the workplace. List methods of preventing workplace violence, including but not limited to establishing and implementing a reporting system. Provide information on federal and state laws regarding violence towards retail workers and remedies available for victims of workplace violence. Explicitly state that it is unlawful to retaliate against employees who report workplace violence or factors which place employees at risk of workplace violence. Workplace Violence Prevention Training Employers must provide training upon hire and annually. The NYDOL will provide interactive training which will also be evaluated every four years starting in 2027. Again, employers may opt to use the state provided training or provide their own equivalent. The training must: Include information on the Retail Worker Safety Act; Examples of steps employees can take to protect themselves; De-escalation strategies; Active Shooter drills; Emergency procedures; Instructions on how to use security alarms, panic buttons, and any other emergency devices; and A site-specific list of emergency exits and meeting places to be used in emergencies. Takeaways New York State retail employers should look at the state provided training and policies to adopt as their own or to ensure their own materials are compliant. For employers outside of New York it is important to keep your eyes peeled for creation of similar laws in your own state. Brody and Associates regularly advises management on complying with the latest local, state and federal employment laws. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560
This past Tuesday, US Texas District Court Judge Ada Brown expanded her local injunction against the Federal Trade Commission (FTC)
This year has seen a surge in pay transparency laws aimed at curbing pay disparities and helping workers negotiate fairer wages. Such legislation requires employers to disclose salary ranges and benefits in their job postings. Colorado was the first to create a pay transparency law in May 2019. Prior to this year, a number of states have followed suit, including California, Connecticut, Maryland, Nevada, New York, Rhode Island, and Washington. Local measures are in effect in Jersey City, New Jersey; New York City, New York; Ithaca, New York; Westchester County, New York; Cincinnati, Ohio; and Toledo, Ohio. 2024 Legislation Almost Doubles the Number of Pay Transparency Laws Hawaii On January 1, 2024, Hawaiian legislation came into effect requiring employers with 50 or more employees to disclose hourly rates and/or salary ranges in job postings. Illinois Illinois’s pay transparency law requires employers with 15 or more employees to disclose the salary range of a position along with a description of benefits and other forms of compensation. Furthermore, this law requires employers to provide current employees with information on promotion opportunities within 14 calendar days after posting the position externally. The law is not effective until January 1, 2025. Maryland Effective October 1, 2024, Maryland’s Equal Pay for Equal Work – Wage Range Transparency legislation expands the law to mandate employers to disclose minimum and maximum hourly or salary ranges for a position. This requirement applies to internal and external job postings. The law applies to any job performed in part in Maryland, meaning the law applies to employers outside of the state if any aspect of the position is performed in the state. Minnesota The Minnesotan law requires a starting salary range and a description of benefits, including health and retirement benefits, and other compensation in postings for open positions. This applies to employers with 30 or more employees within Minnesota. The law takes effect on January 1, 2025. Vermont Signed into law this June, the Vermont pay transparency law will take effect on January 1, 2025. Employers with five or more employees must include minimum and maximum hourly/salary ranges, including whether tips or commissions will be paid, in job postings. This applies to roles performed in Vermont or remote positions performed for Vermont businesses. Washington, DC Washington, DC’s law has been in effect since March 25, 2024. Employers must post minimum to maximum salary ranges, including for promotions and transfers. Employers must believe in good faith that the ranges are what will be paid for the position. Additionally, employers must provide applicants with information on healthcare benefits and may not seek salary history information. The law applies to any job with at least one employee in Washington, DC. Key Takeaway for Employers While some states have yet to provide guidance on potential penalties, violating these laws may result in lawsuits and damages. Employers should review their current rates of pay, their hiring, promoting, and transferring practices, and update current job postings in anticipation of these laws taking effect. If your state has yet to pass such a law, keep a lookout as this trend continues to spread nationwide. Finally, when planning pay rates for one of these locations, look at local ads to see if you are competitive with the local market. Brody and Associates regularly advises management on complying with the latest local, state, and federal employment laws. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.
Under the National Labor Relations Act, employers have the right to require their workers to attend meetings on the company’s position on unions (called captive audience meetings). Employers have also used mandatory meetings to discuss issues involving politics and religion. Such practices are now under attack. In July 2024, both Hawaii and Illinois joined New York, Connecticut, Minnesota, Maine, and Oregon in enacting laws which prohibit employers from mandating attendance at employer sponsored meetings on political (including unions) or religious matters. Enforceability of these laws is unknown. Hawaii Hawaii’s Captive Audience Prohibition Act (Hawaii Revised Statutes § 377-6) took effect July 2, 2024. The law prevents employers from penalizing or threatening any adverse action against employees who decline to attend an employer sponsored meeting which communicates the employer’s opinion on political matters. The Act defines political matters as “anything related to an attempt to influence a future vote by persons in an audience.” Such meetings are allowed as long as employee attendance is entirely voluntary. Illinois On July 31, 2024, Illinois Governor J.B. Pritzker signed the Worker Freedom of Speech Act (SB 3649) into law, which is set to take effect January 1, 2025. The Illinois law prevents employers from disciplining employees who choose not to attend employer sponsored meetings relating to political or religious matters. Attendance must be entirely voluntary which also means that the meeting is not “incentivized by a positive change in any employment condition.” The Illinois law provides a more detailed definition of political matter: “matters relating to elections for political office, political parties, proposals to change legislation, proposals to change regulations, proposals to change public policy, and the decision to join or support any political party or political, civic, community, fraternal, or labor organization.” Religious matters are defined as “matters relating to religious belief, affiliation, and practice and the decision to join or support any religious organization or association.” Under the Act, employees may bring a civil action seeking: injunctive relief; reinstatement to the employee’s former position or an equivalent position; back pay; reestablishment of any employee benefits, including seniority, to which the employee would otherwise have been eligible if the violation had not occurred; any other relief as deemed necessary by the court to make the employee whole; and reasonable attorney’s fees and costs if the employee prevails. Furthermore, the Illinois Department of Labor may impose a civil penalty of $1,000 dollars per violation. Each employee subject to a violation constitutes another separate violation. This law was challenged nearly immediately by the Illinois Policy Institute, which filed a federal lawsuit early this month. They argue the law infringes on employer’s freedom of speech and claim the law is too broad. Are bans on captive audience meetings legally enforceable? Despite National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo’s efforts to the contrary, the National Labor Relations Act (NLRA) currently allows employers to hold mandatory meetings where management campaigns against unions. Historically, bans on such captive audience meetings have failed. Section 8(c) of the NLRA states “[t]he expressing of any views, argument or opinion… shall not constitute or be evidence of unfair labor practice… if such expression contains no threat of reprisal or force or promise of benefit.” Furthermore, the NLRB ruled in Babcock v Wilcox Co., 77 NLRB 577 (1984) that employers under the NLRA may hold captive audience meetings. But note, none of this addresses banning non-union related mandatory meetings. In 2010, a similar law in Wisconsin was struck down in, Metropolitan Milwaukee Association of Commerce v. Doyle. The law was found preempted by federal law. More recently, in late July 2024, a federal judge permanently blocked part of Florida’s stop WOKE Act which attempted to prevent employers from holding mandatory meetings on viewpoints the state deemed offensive. Minnesota and Connecticut currently face ongoing challenges to their analogous version of the Illinois law. While precedent suggests these laws are not enforceable, this cannot be said concretely as there are many pending challenges. This leaves Employers in a difficult position; comply with state law to avoid any potential penalties, take the risk of penalties for violating the laws, or challenge the law in court. Regardless of your choice, employers should follow the legal challenges these bans face, while keeping an eye on their own state’s regulations. As a final thought, Employers may consider holding non-mandatory meetings. While this avoids the real issue, it may be a good solution until this controversy is resolved, especially if attendance is not impacted. Seek legal counsel on how to do this. Brody and Associates regularly advises management on complying with the latest local, state and federal employment laws. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.
There is a common misconception that what an employee does outside the workplace, particularly on social media, is not the employer’s responsibility.
In the United States, as much as 75% of the workforce is paid biweekly or less often. For many workers, such a delay makes paying bills on a timely basis a challenge. In recent years, this point of pain has resulted in financial institutions providing paycheck advances before payday (“Earned Wage Access” or “EWA”). Earned Wage Access products are offered through two primary models: employer-partnered and direct-to-consumer. While employers sometimes make these fee-free, some Earned Wage Access products come with fees for expedited service, subscription fees, or requested “tips.” In response, the Consumer Financial Protection Bureau (“CFPB”) proposed an interpretive rule explaining that many (but not all) Earned Wage Access products are consumer loans subject to the Truth in Lending Act (“TILA”). The proposed rule explains how existing law applies to EWA, and replaces a 2020 advisory opinion that addressed a very specific paycheck advance product that is not common. The proposed rule makes clear that many paycheck advance products – whether provided through employer partnerships or marketed directly to consumers – trigger obligations under TILA. Specifically, the CFPB’s proposed rule makes clear that: Many EWA costs are finance charges: “Tips” and expedited delivery fees are finance charges under TILA. However, when EWA is truly free to the employee, there are no finance charges. Borrowers must receive key disclosures: Among other requirements, earned wage lenders must provide workers with appropriate disclosures about the finance charges. The proposed rule is unlikely to have an impact on employer obligations. However, companies that partner with earned wage lenders may want to inquire about the fees the lenders charge. Employers who partner with earned wage lenders especially should take interest in whether lenders charge consumers any fee, which would likely be considered a finance charge under the current interpretive rule. If so, the employer should ask the lender if they are providing the required notice. Even if the notice is not the employer’s obligation, knowing that it is being provided will avoid one more potential headache! The CFPB encourages the public to submit comments on the proposed rule to inform whether additional clarifications are needed. Comments will be accepted until August 30, 2024. Brody and Associates regularly advises management on complying with the latest local, state and federal employment laws. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560
Early last month, the Occupational Safety and Health Administration (OSHA) proposed the Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings rule. The aim is to curb heat related injuries or death which OSHA identifies as “the leading cause of death among all hazardous weather conditions in the United States.” The proposal places new responsibilities on employers: establishing heat thresholds, developing Heat Injury and Illness Prevention Plans, regularly monitoring temperatures, and establishing safety measures when heat thresholds are met. This rule is yet to be finalized however, it is a sign of what’s to come. The standard applies to all employers except for the following: Work activities for which there is no reasonable expectation of exposure at or above the initial heat trigger. Short duration employee exposures at or above the initial heat trigger of 15 minutes or less in any 60-minute period. Organizations whose primary function is the performance of firefighting and other certain emergency services. Work activities performed in indoor work areas or vehicles where air conditioning consistently keeps the ambient temperature below 80°F. Telework (work from home). Sedentary work activities at indoor work areas that only involve some combination of the following: sitting, occasional standing and walking for brief periods of time, and occasional lifting of objects weighing less than 10 pounds. Heat Thresholds There are two heat thresholds which will trigger employer action: An “initial heat trigger” means a heat index of 80°F or a wet bulb globe temperature (defined below) equal to the National Institute for Occupational Safety and Health (NIOSH) Recommended Alert Limit; and A “high heat trigger” means a heat index of 90°F or a wet bulb globe temperature equal to the NIOSH Recommended Exposure Limit. The “heat index” is calculated by measuring the ambient temperature and humidity. Wet bulb globe temperature is a heat metric that considers ambient temperature, humidity, radiant heat from sunlight or artificial heat sources and air movement. Employers may choose either method of measuring the temperature. Heat Injury and Illness Prevention Plan (HIIPP) Requirements If an employer does not fall under the exceptions, it must develop a HIIPP with the input of non-managerial employees and their representatives for occasions when the heat threshold is surpassed. This plan may vary on the worksite but must be written if the employer has more than 10 employees and use a language employees will understand. The HIIPP must contain: A comprehensive list of the type of work activities covered by the HIIPP Policies and procedures needed to remain compliant with the standard. Identification of which heat metric the employer will use heat index or wet bulb globe temperature. A plan for when the heat threshold is met. Along with creating the HIIPP, employers must designate one or more “heat safety coordinators” responsible for implementing and monitoring the HIIPP. The HIIPP must be reviewed at least annually or whenever a heat related injury or illness results in death, days off work, medical treatment exceeding first aid, or loss of consciousness. Employers must seek input from non-managerial employees and their representatives during any reviews or updates. The definition of “representative” is not defined; if this is broadly defined, this could be a major complexity employers must face. Identifying Heat Hazards Employers must monitor heat conditions at outdoor work areas by: Monitoring temperatures at a sufficient frequency; and Track heat index forecasts or Measure the heat index or wet bulb globe temperature at or as close as possible to the work areas. For indoor work areas, employers must: Identify work areas where there is an expectation that employees will be exposed to heat at or above the initial heat trigger; and Create a monitoring plan covering each identified work area and include this work area in the HIIPP. Employers must evaluate affected work areas and update their monitoring plan whenever there is a change in production processes or a substantial increase to the outdoor temperature. The heat metric employers choose will affect the thresholds. If no heat metric is specified, the heat metric will be the heat index value. Employers are exempt from monitoring if they assume the temperature is at or above both the initial and high heat trigger, in which case they must follow the controls below. Control Measures When Heat Triggers are Met When the initial heat trigger is met, employers must: Provide cool accessible drinking water of sufficient quantity (1 quart per employee per hour). Provide break areas at outdoor worksites with natural shade, artificial shade, or air conditioning (if in an enclosed space). Provide break areas at indoor worksites with air conditioning or increased air movement, and if necessary de-humidification. For indoor work areas, provide air conditioning or have increased air movement, and if necessary de-humidification. In cases of radiant heat sources, other measures must be taken (e.g., shielding/barriers and isolating heat sources). Provide employees a minimum 15-minute paid rest break in break areas at least every two hours (a paid or unpaid meal break may count as a rest break). Allow and encourage employees to take paid rest breaks to prevent overheating. At ambient temperatures above 102° F, evaluate humidity to determine if fan use is harmful. Provide acclimatization plans for new employees or employees who have been away for more than 2 weeks. Maintain effective two-way communication between management and employees. Implement a system to observe signs and symptoms of heat related problems (e.g., a Buddy system). When the high heat trigger is met, employers are additionally required to: Provide employees with hazard notifications prior to the work shift or upon determining the high heat trigger is met which includes: the importance of drinking water, employees right to take rest breaks, how to seek help in a heat emergency, and the location of break areas and water. Place warning signs at indoor work areas with ambient temperatures exceeding 102° F. Other Requirements Training: all employees and supervisors expected to perform work above the heat thresholds must be trained before starting such work and annually. What’s Next? The rule is yet to be published in the Federal Register. Once this happens, there will be a 120-day comment period when all members of the public may offer OSHA their opinion about the rule. Whether this rule comes to fruition may also depend on which party wins the White House. Furthermore, if finalized this rule would likely be challenged in the courts, which now have more discretion to overrule agency rules following the US Supreme court case of Loper Bright Enterprises v. Raimondo and Relentless Inc. v. Department of Commerce (overturning the Chevron deference decision). Employers should review their heat illness prevention policies to maintain compliance with regulations. If you have questions, call competent labor and employment counsel. Brody and Associates regularly advises management on complying with the latest local, state and federal employment laws. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560
In a significant ruling, the Supreme Court has overturned the NLRB and Sixth (and other) Circuit’s approach to evaluating preliminary injunctions under Section 10(j) of the National Labor Relations Act (“NLRA”). This decision, stemming from the high-profile case of Starbucks v. McKinney, again declares the power of the courts over federal executive branch agencies. Background The case originated when Starbucks terminated seven employees allegedly for their pro-union stance. The National Labor Relations Board (“NLRB”) sought a preliminary injunction under Section 10(j) to force Starbucks to rehire those employees until the underlying charge of illegality was resolved. The federal District Court granted the injunction. On appeal, the Sixth Circuit upheld the injunction applying its unique two-part test used by the NLRB. This test requires demonstrating “reasonable cause to believe that unfair labor practices have occurred,” and that injunctive relief is “just and proper.” Circuit Split and the Winter Test The Sixth Circuit’s test has been a point of contention due to its deviation from the more widely adopted Winter test, which is used in other judicial circuits for assessing all preliminary injunctions. The Winter test, named after the 2008 Supreme Court case Winter v. Natural Resources Defense Council, Inc., uses a four-part analysis. It requires plaintiffs to clearly demonstrate: They are likely to succeed on the merits; They are likely to suffer irreparable harm without preliminary relief; The balance of equities tips in their favor; and An injunction is in the public interest. This discrepancy in the appropriate test led to a circuit split. The Supreme Court ended the split. Supreme Court’s Decision In its ruling, the Supreme Court rejected the Sixth Circuit’s approach, emphasizing the importance of a uniform standard across all jurisdictions. The Court favored the Winter test, arguing it is more in accord with the traditional, rigorous framework for preliminary injunctions. The Court reasoned that, A preliminary injunction is an extraordinary equitable remedy that is never awarded as of right . . . . The default rule is that a plaintiff seeking a preliminary injunction must make a clear showing that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest. These commonplace considerations applicable to cases in which injunctions are sought in the federal courts reflect a practice with a background of several hundred years of history. (Citations and quotations removed.) Taking it further, the Court declared, “absent a clear command from Congress, courts must adhere to the traditional four-factor test.” After analyzing the text of 10(j), the Court concluded there was no Congressional intent to deviate. Implications of the Ruling The Supreme Court’s decision has significant implications for employers, employees, labor unions, and the NLRB. By endorsing the Winter test, the Court has (in some jurisdictions) raised the bar for obtaining preliminary injunctions under Section 10(j), potentially making it more challenging for the NLRB to secure temporary relief in cases of alleged unfair labor practices. Additionally, the Supreme Court’s ruling is a clear message: even if the NLRB endorses liberal labor law interpretations, the conservative judiciary remains in place as a check. This flexing of judicial muscle is a trend we have recently seen from the Court and expect it to continue for years to come. Brody and Associates regularly advises management on complying with the latest local, state and federal employment laws. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560
On May 28, 2024, Governor Ned Lamont signed legislation expanding Connecticut’s 2011 Sick Leave Law. The new legislation is effective on January 1st, 2025. The law covers more employees, expands the reasons under which employees may use paid sick leave, and reduces the required hours to accrue paid sick leave. Who is covered by the new law? Currently under Connecticut law, employers with more than 50 employees in specific retail and service occupations must provide their employees with up to 40 hours of paid sick leave annually. The new law expands the type of eligible worker to almost every occupation (not just retail or service occupations). It also expands the number of employers who must comply by reducing the number of employees they must employ to be covered. It is important to note that seasonal employees and certain other temporary workers remain exempt. The threshold number of employees required for coverage is gradually being lowered. Starting January 1, 2025, employers with 25 employees must provide their employees with paid sick leave: this drops to 11 employees on January 1, 2026, and one employee on January 1, 2027. When can employees use paid sick leave? Governor Lamont declared the current law leaves “broad categories… unprotected….” In response, the legislation has extended the definition of a family member to include more than that person’s minor children. This expansion includes “spouse, sibling, child, grandparent, grandchild or parent of an employee or an individual related to the employee by blood or affinity whose close association the employee shows to be equivalent to those family relationships.” The legislation also addresses the impact COVID-19 had on employees, allowing paid sick leave to be taken in instances related to declarations of a public health emergency. How do employees accrue paid sick days? Eligible employees will now accrue one hour of paid sick leave for every 30 hours worked, accruing up to 40 hours per year. This is a ten-hour reduction from the previous one hour for every 40 hours worked. Employers may grant more time off or allow accrual at a faster rate. Limits on Employers’ Control over the Use of Sick Time In Connecticut and across the nation, generic Paid Time Off policies have replaced the old-fashioned sick leave, personal leave, vacation, and many other forms of paid time off. As a result, sick leave mandates are allowed to be covered by PTO. Thus, when a company offers four weeks of PTO, they are really offering three weeks of PTO and one week of sick time. The question we address here is if employers can put any limitations on how employees use their sick time. When Connecticut’s Sick Leave law was first effective in 1997, employers had the right to mandate that employees use their sick leave when they take other unpaid leaves. The employers’ motivation was to limit how much total time off employees were allowed. That all changed on January 1, 2022. In 2022, the law was amended to require employers leave at least two weeks of PTO to be used at the total discretion of the employee. This change was missed by most employers. To be sure you don’t run afoul of this law, employers should check their policies to ensure the mandated use of sick leave for all unpaid leaves is not their policy and not in their handbooks. Brody and Associates regularly advises management on complying with the latest local, state and federal employment laws. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560
Following a July 3rd Texas federal District Court decision, the
For five decades, the southern United States has been an attractive location for automakers to open plants thanks to generous tax breaks and cheaper, non-union labor. However, after decades of failing to unionize automakers in the South, the United Auto Workers dealt a serious blow to that model by winning a landslide union victory at Volkswagen. In an effort to fight back, three southern states have gotten creative: they passed laws barring companies from receiving state grants, loans and tax incentives if the company voluntarily recognizes a union or voluntarily provides unions with employee information. The laws also allow the government to claw back incentive payments after they were made. While these laws are very similar, each law has unique nuances. If you are in an impacted state, you should seek local counsel. In 2023, Tennessee was the first state to pass such a law. This year, Georgia and Alabama followed suit. So why this push? In 2023, the American Legislative Exchange Council (“ALEC”), a nonprofit organization of conservative state legislators and private sector representatives who draft and share model legislation for distribution among state governments, adopted Tennessee’s law as model legislation. In fact, the primary sponsor of Tennessee’s bill was recognized as an ALEC Policy Champion in March 2023. ALEC’s push comes as voluntary recognition of unions gains popularity as an alternative to fighting unions. We recently saw this with the high-profile Ben & Jerry’s voluntary recognition. Will this Southern strategy work to push back against growing union successes? Time will tell. Brody and Associates regularly advises its clients on all labor management issues, including union-related matters, and provides union-free training. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.
Chapter Events
Tri-State Gold Sponsors
Tri-State Silver Sponsors
Tri-State Bronze Sponsors
