Alex MacDonald explains why natural labor law and principles may soon return to center stage in the legal world. 

North Dakota Law Review

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At the end of January 2024, the UK Government set out a surprise proposal to introduce a £55 fee for individuals to bring proceedings in the Employment Tribunals (ET) and Employment Appeal Tribunal (EAT).

Andrea M. Kirshenbaum and Jennifer N. Capozzola dive into the U.S. DOL’s final rule (2024 IC Rule) for analyzing whether a worker should be classified as an employee or independent contractor under the FLSA and the lawsuits and challenges that remain in its path. 

The Legal Intelligencer

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Effective May 11, 2024, New York City now prohibits employers from entering into any type of agreement that shortens the statutory period by which an employee may file an administrative claim or complaint, or civil action, relating to unlawful discriminatory practices, harassment or violence under the New York City Human Rights Law, Admin. Code § 8-101, et seq. (NYCHRL).

On March 20, 2023, Ontario introduced Bill 79, Working for Workers Act, 2023 for First Reading.

William Foster and Katie Towery share the changes in the legal landscape and how it could result in manufacturers’ increased liability for workplace accidents. 

Industry Today

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Michael Lotito weighs in on the U.S. Department of Labor's Wage and Hour Division’s key proposals and nominations.

Law360 Employment Authority

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Joy Rosenquist offers employers tips to manage compliance challenges that may arise from California’s new regulations that are designed to increase pay transparency.

WorldatWork

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In this How to Do Business in the Americas podcast series episode, Littler Shareholders Courtney Wilson and Juan Carlos Varela discuss the practical implications of employment contracts in the Americas and their interaction with non-compete agreements and confidentiality clauses. In this podcast, Courtney gives the audience a summary of the common misconceptions employers have when structuring their employment agreements. Juan Carlos and Courtney then offer practical recommendations.
 

On August 7, 2024, the City of Los Angeles unveiled its “Model Contract” under the Freelance Workers Protections Ordinance (FWPO). This ordinance, which took effect on July 1, 2023, was designed to bolster protections for freelance workers in Los Angeles.

Ensure Compliance with California Labor Code Section 2775 et seq.

In Schachter v. Citigroup, Inc.,¹ the California Supreme Court rejected claims that an incentive plan that conditioned the earning of restricted stock based on continued service was unlawful where the employee voluntarily elected to participate in the plan, and the employee quit before the date on which the incentive was earned. The plan was lawful even though the incentive plan was funded from wages that the employee would have otherwise received in cash.

USCIS has officially announced the dates for the fiscal year (FY) 2025 H-1B cap lottery, which will open on Wednesday, March 6, 2024 at noon ET and end on Friday, March 22, 2024, at noon ET. This annual lottery is meant to select new H-1B candidates, who will be eligible to file an H-1B petition and, if approved, begin H-1B employment on October 1, 2024 (the first day of FY 2025).

In February 2024, Poland’s government revealed that it is working on a comprehensive migration strategy for the years 2025-2030, advertised as a “responsible and safe” approach. The Ministry of Interior and Administration plans to spend the first half of 2024 conducting consultations to learn the preferences and expectations on migration and foreigners’ employment from various stakeholders, including the country’s biggest employers and their organizations, as well the trade unions.

On June 20, 2024, USCIS extended the validity of certain work permits issued to Temporary Protected Status (TPS) beneficiaries under the TPS designations for El Salvador, Honduras, Nepal, Nicaragua, and Sudan. All impacted beneficiaries will receive Form I-797, Notice of Action, notifying them of the extension of their Employment Authorization Documents (EADs or “work permits”) through March 9, 2025.

To tackle illegal employment through subcontracting more effectively, the Flemish government improved chain liability, and introduced a duty of care. According to this duty of care, companies working with subcontractors in the Flemish Region are obliged to request certain data from these subcontractors (Cf. Decree of 27/10/2023).  

The Flemish Government's Implementing Decree was published in the Belgian Official Gazette on June 4, 2024, containing a checklist of the specific data to be requested. The decision will enter into force on January 1, 2025. 

Earlier this month, President Biden released his COVID-19 Action Plan, Path Out of the Pandemic (Plan) with the stated goal of getting more people vaccinated.¹ As part of the Plan, President Biden signed Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors (Order).

Meredith Shoop talks about the Affirmative Action Program Verification Interface where covered federal contractors can upload their affirmative action plans for review.

Government Executive

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Update: The vaccination deadline for covered federal contractors has been extended until January 18, 2022.

The federal government’s complicated multi-pronged approach to implementing COVID-19 safeguards related to federal contractors has left many confused.  We offer this brief guide to help contractors understand their obligations and the timelines for implementation.

On September 9, 2021, President Biden signed Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors (“Order”), which directed the executive agencies to begin amending federal contracts to require federal contractors to take specific actions to combat COVID-19 and to, in turn, require covered subcontractors to take the same actions (the federal contractor COVID-19 workplace

The White House on November 4 announced that the deadline for employers covered by the federal contractor vaccine requirement to comply with the vaccine mandate will be extended from December 8, 2021 to January 4, 2022.

It was all very well to say ‘Drink me,’ but the wise little Alice was not going to do that in a hurry. ‘No, I’ll look first,’ she said, ‘and see whether it’s marked “poison” or not’; for […] she had never forgotten that, if you drink much from a bottle marked ‘poison,’ it is almost certain to disagree with you, sooner or later.

                                           —Lewis Carroll, Alice in Wonderland, Chapter 1, Down the Rabbit Hole

On February 1, 2022, the Office of Federal Contract Compliance Programs (OFCCP) presented a webinar on its new contractor portal through which covered contractors are being asked to certify whether they are meeting their requirement to develop and maintain annual affirmative action programs.

On May 20, 2022, the Office of Federal Contract Compliance Programs (OFCCP) published its FY 2022 Corporate Scheduling Announcement List (CSAL) for supply and service contractors. OFCCP has stated that it will immediately begin to send out scheduling letters to some of the contractors on the new list.  This is a change from the past when OFCCP would wait at least 45 days from publication of the list before beginning audits.  See U.S.

On January 20, 2023, the Office of Federal Contract Compliance Programs (OFCCP) published its FY 2023 Corporate Scheduling Announcement List (CSAL) for supply and service contractors. The CSAL includes 452 establishment reviews, 24 Corporate Management Compliance Evaluation reviews, and 24 Functional Affirmative Action Program (FAAP) reviews.

On June 5, 2023, the Office of Federal Contract Compliance Programs (OFCCP) published its FY 2023 Construction Corporate Scheduling Announcement List (CSAL). The CSAL includes 250 employers that OFCCP has identified as federal or federally assisted construction contractors.

On August 24, 2023, the Office of Management and Budget approved a request from the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) to revise the “Itemized Listing” that OFCCP uses to collect information from federal contractors that are selected for supply or service audits. Among the changes that have been approved is a new requirement that audited contractors:

On December 14, 2023, the U.S. Department of Labor issued final regulations requiring the so-called “nondisplacement” of workers performing work on contracts for the federal government under the Service Contract Act (SCA). These regulations implement Executive Order 14055, “Nondisplacement of Qualified Workers Under Service Contracts,” President Biden signed on November 18, 2021.

On June 7, 2024, the Office of Federal Contract Compliance Programs (OFCCP) published its FY 2024 Corporate Scheduling Announcement List (CSAL) for Supply and Service Contractors. The CSAL is a courtesy notification, and the review will start once the establishment receives OFCCP’s Office of Management and Budget (OMB) approved scheduling letter.

Ben Sandahl discusses a Minnesota case that raises several issues for companies working with independent contractors.

Westlaw Today

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Joy Rosenquist talks about the impact of an executive order banning the use of salary history in hiring by federal agencies and contractors.

WorldatWork

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The past two years created a significant shift in working conditions, and with that, a new avenue of employment arrangements. The normalization of flexible working paired with talent scarcity created an ideal environment for its rise. To help set up a global workforce, many service providers—referred to as Employers of Record (EORs)—are offering to hire talent across borders for companies. They take care of labor and employment laws, social security, and tax in each desired country.

We recently reported on the saga that followed the Constitutional Court's ruling of February 8, 2024 on the conditions for applying the partial exemption from payment of withholding tax for employers organizing shift work (CIR/92, art. 275/5). 

The ruling of February 8, 2024, had given rise to fears among many employers whose successive shifts fluctuate in size that they would simply lose the tax advantage, which can represent a reduction of 10 to 15% in the wage costs associated with shift workers. 

The Massachusetts Department of Family and Medical Leave (Department) just announced the 2025 weekly benefit amount and contribution rates for both employers and employees under the state’s Paid Family and Medical Leave benefit program, which is funded through a payroll tax.

Following other states and cities across the nation, California Governor Gavin Newsom signed Senate Bill 988, the Freelance Worker Protection Act (FWPA), into law on September 28, 2024. This new law aims to provide greater protections to freelance workers (e.g., “independent contractors”).

Theodora Lee said overall case filings in the San Francisco state trial court have been down significantly compared to pre-pandemic levels, but she’s seeing an uptick in labor and employment law cases.

The Recorder

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Two days before the United States Supreme Court ruled in Bissonnette v. LePage Bakeries Park St., LLC,¹ that the Federal Arbitration Act’s (FAA) transportation worker exemption (meaning the FAA would not apply) extends beyond the transportation industry, the U.S. Court of Appeals for the Ninth Circuit addressed whether the exemption applies to “contracts of employment” between business entities. In Fli-Lo Falcon, LLC v.

UPDATE: On March 21, 2024, Ontario’s Bill 149 - Working for Workers Four Act, 2024 received Royal Assent. The amendments to the ESA made by Bill 149 came into force on the day it received Royal Assent, with the following exceptions:

On March 26, 2024, the Phoenix (Arizona) City Council unanimously passed an ordinance requiring all city contractors and subcontractors to develop and maintain a written heat safety plan to prevent heat-related illnesses and injuries in the workplace. Outdoor workers in Phoenix may be susceptible to heat-related illness and injury due to the extreme Arizona temperatures.

In R. v. Greater Sudbury (City), 2024 ONSC 3959, the Ontario Superior Court of Justice (OSCJ) dismissed an appeal of the trial judge’s decision in which she acquitted the City of Sudbury (City) of various charges under the Occupational Health and Safety Act (OHSA).

The district court's opinion denying cross-motions for summary judgment in Bobbitt v. Broadband Interactive, Inc., No. 8:11-cv-2855 (M.D. Fla. Oct. 21, 2013) illustrates how not to structure an independent contractor relationship and how not to lay the groundwork to defend that relationship in the event of litigation.  The case also serves as a warning that even well-conceived independent contractor relationships may be open to question by a court that is inclined to distrust them.

Background

David Goldstein talks about some differences as the Labor Department proposes changes to a Trump-era rule that it says “undermined” how it handles and resolves discrimination claims by federal contractors.

Government Executive

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(June 21, 2024) – Littler, the world’s largest employment and labor law practice representing management, and its attorneys have been featured in the 2025 editions of Best Lawyers^® in France, Germany, Italy and the United Kingdom.

The individual attorneys that were listed include the following:

Joy C. Rosenquist, Rick Reyes and Blair C. Senesi examine California’s new Freelance Worker Protection Act (FWPA), which aims to provide greater protections to freelance workers.

Wolters Kluwer

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