JT Washington

by JT Washington

Today, technology and social media are integral parts of our daily lives. Social media has transformed how we communicate and express ourselves. However, this transformation has brought new challenges, particularly in the workplace, where online behavior can have significant repercussions. Recent legal cases have demonstrated what happens on social media does not always stay online and can contribute to a hostile work environment or harassment if it impacts an employee’s working conditions. This encompasses behavior that may not occur in the physical workplace but still affects the overall work environment. Employers are required to promptly and effectively address harassment, irrespective of where it takes place, including on social media.

A recent ruling by the U.S. Court of Appeals for the Ninth Circuit, in the case of Okonowsky v. Garland, has emphasized this reality. 109 F.4th 1166. The court held that an employer could be held liable for a hostile work environment claim based on harassing content posted on an employee’s personal social media account, even if the conduct occurred outside the physical workplace. This decision builds upon earlier guidance from the Equal Employment Opportunity Commission (“EEOC”), which warned that employers might be liable for non-work-related conduct when it affects the workplace environment. The ruling underscores the growing influence of social media in shaping workplace dynamics and the potential legal ramifications for employers who fail to address harassment that originates online but permeates the workplace. Read more >>

Dana Dobbins

By Dana Dobbins

Question: What are the guidelines for when employees, current or former, request a copy of their personnel file, and what files are required to be provided upon request?

Answer: When it comes to an employee’s or former employee’s request for their own personnel files, employers must be cognizant of applicable state and local law when responding to such requests. Some states, including Idaho, Montana, New Mexico, Utah, and Wyoming do not have any state or regulatory provisions that apply to private-sector employment (though there may be specific regulations related to public-sector employers). Employers should be mindful of any company policies or procedures governing access to personnel files, which should comply with any applicable laws,  and must apply those policies and procedures consistently.

Other states have specific rules governing current and former employee access to the employee’s personnel file. For example, under Colorado law, an employer must allow a current employee to inspect and obtain a copy of his or her personnel file at least annually, upon the employee’s request. However, the employer can require that the review occur at the employer’s office at a time that is convenient for both the current employee and the employer. Read more >>

Karina Sargsian

by Karina Sargsian

In recent years, the issue of secret recordings by employees has sparked considerable controversy. You may recall the recent incident involving an employee at CloudFlare, who filmed herself for nine minutes while questioning HR about her termination from the IT company. She posted the video on TikTok, where it quickly went viral. If you have not seen the video, you can view it here.

Such incidents have left many employers wondering how they can protect themselves from covert recordings by employees.

Employees often resort to secretly recording conversations following workplace disputes. And while it may be nearly impossible to prevent employees from secretly recording work-related conversations, employers can implement a no-recording policy that includes termination for violating such policy. One concern for employers, however, is that an employee fired for violating the no-recording policy might claim that the termination was in retaliation for previous complaints, rather than for the policy violation itself. Read more >>

Mark Wiletsky

by Mark Wiletsky

Question: When crafting a severance agreement, should you follow the guidelines of the state the employee resides/works in or the state where the company is incorporated? 

Answer: The answer depends on a number of factors.  Often, companies are incorporated in a state in which they have no presence or operations, e.g., Delaware.  Although courts will sometimes allow parties to select a law to govern agreements, including severance agreements, the employee may be able to challenge the agreement if it does not comply with the state in which he or she lives or works.  In fact, some states, such as California and Colorado, have certain laws that apply to workers within their state, regardless of what the agreement says. If the agreement is drafted to comply with the laws of the state of incorporation, but not the state in which the employee worked, the release might not be effective or enforceable.  Indeed, in the event of a dispute, it can be difficult to justify why the law in Delaware, for example, should apply to a worker in Colorado if the company has no operations in Delaware and the employee did not live or work there.  Therefore, the best practice is to review the laws of the states in which the employee lives or works, and where the company is headquartered, to ensure the agreement complies with the laws of both states.  If the laws conflict, consider drafting the agreement to comply with the more restrictive laws to ensure the agreement will be enforceable.

Kody Condos

by Kody Condos and Greg Saylin

On January 9, 2024, the U.S. Department of Labor (“DOL”) published its final rule defining the term “independent contractor” and setting forth the new test for determining independent contractor / employee status (the “Rule”). The DOL estimates that “there are 6.5 million small establishments or governments” relying on independent contractors that “could be affected by “ the new Rule.[1]

Greg Saylin

The Rule, effective March 11, 2024, differentiates an independent contractor from an employee if the worker is “as a matter of economic reality, in business for themselves,” meaning, the worker cannot be economically dependent on the potential employer for work.[2]  The “economic reality” does not focus on the amount of income earned by the worker, or whether the worker has other sources of income. Rather, the Rule applies the following six factors to determine economic independence:

1. “The worker’s opportunity for profit or loss;”
2. “Investments by the worker and the potential employer;”
3. “The degree of permanence of the relationship;”
4. “The nature and degree of the potential employer’s control over the work;”
5. “The extent to which the work is “integral” to the potential employer’s business;” and
6. “The worker’s skill or initiative.”

The DOL and courts are to utilize a “totality of the circumstances” approach in applying the test. And, while the DOL articulates only six factors, the Rule provides that other (unnamed) factors may also be relevant in any given case.[3]

The Factors, Explained

While some of the factors are reminiscent of prior guidance and other tests, the Rule deviates from precedent and provides important clarification on the factors to be applied.[4] It also deviates from its predecessor in some very important ways. Read more >>

Julie Hamilton

By Julie Hamilton

As we begin 2024, California has a new right for employees to take leave to grieve loss that went into effect with the new year.

Effective January 1, 2024, the state will require employers with five or more employees to provide eligible employees up to five days of leave following a reproductive loss, including failed adoption, surrogacy, or assisted reproduction. This comes one year exactly on the heels of a California law requiring employers to provide leave for employees to mourn the death of a family member.

If you have employees in California, you should prepare to comply with the new requirement and remain alert to the evolving bereavement-leave landscape. Read more >>

Leslie Perkins

by Leslie Perkins and Karina Sargsian

With the remote work model becoming increasingly prevalent and technology continuing to reshape the way people work, certain employment laws struggle to keep up with the evolving realities of the modern workforce.

One such law causing confusion as to the extent of its reach in the remote work era is the Worker Adjustment and Retraining Notification Act (“WARN Act”). At its basic core, the WARN Act requires covered employers to provide 60 days advance notice when, among other things, a mass layoff is on the horizon. (More on the specifics below).

Karina Sargsian

The WARN Act defines a mass layoff as an employment loss of a certain number of employees at a “single site of employment.” This raises the issue as to whether layoffs of remote employees trigger the WARN Act at all.

While the WARN Act does not specifically call out remote employees as part of its analysis, this does not mean that companies with remote employees are in the clear of the WARN Act’s reach.

Several courts have taken the position that remote workers are not an excepted class outside the purview of the WARN Act, rather the issue appears to be fact-specific and requires substantive analysis. Meaning, if a company gets sued for violating the WARN Act, it is not a defense to claim that the majority of its employees were remote employees and therefore they have not met the minimum number of employees required to trigger the WARN Act at a “single site of employment.” Read more >>