Littler Workplace Policy Institute

Labor force participation is falling, the skills gap is widening, and certain industries are struggling to recover post-pandemic. In this podcast, Michael Lotito, co-chair of Littler Workplace Policy Institute (WPI) and Shannon Meade, executive director of WPI, discuss the historic transformation of the American workforce and what needs to be done on a national level to address the challenges employers and employees are facing.

Littler’s Workplace Policy Institute’s (WPI) annual Labor Day report examines the state of the American workforce. Prior WPI Labor Day reports focused on key employment developments and trends to provide employers with insight on the state of work and what to expect in the coming year. Employers need no reminder that 2020 is unlike any year they have ever experienced. The COVID-19 pandemic has fundamentally changed employment with employers and employees alike facing unprecedented challenges. Even when the coronavirus is finally behind us, many of these challenges will remain. Accordingly, this year’s Labor Day report necessarily focuses on the state of employment in the context of the global pandemic. In this podcast, Michael Lotito and Jim Paretti of WPI discuss the most recent employment numbers from the United States Department of Labor and give listeners a preview of what to expect in this year’s Labor Day report.

California’s landmark independent contractor law, AB 5, has only been in effect for eight months. But in that time frame, the law remains controversial and makes headlines every week. The law presents compliance challenges for businesses in the Golden State, and things aren’t getting any easier. In this podcast, members of Littler’s Workplace Policy Institute will bring listeners up to date with what’s new with AB 5, including legislation that would further amend the law, court challenges, enforcement actions, and Proposition 22, which would revise the law for some gig economy employers.

You might not believe your ears at first, as Bruce Sarchet and Michael Lotito of Littler’s Workplace Policy Institute (WPI) heap praise on the City of Los Angeles for adopting a worker “right to recall” ordinance. Regular listeners of WPI’s podcasts know that more traditionally its members are expressing concerns and reservations as new employment laws and regulations are adopted. But the City of Angels did something truly revolutionary in this new law – it afforded employers the “right to cure” before a lawsuit can be filed. WPI sees this as a positive development, a true win-win for businesses and their employees, and asserts in this podcast that the right to cure should be seriously considered and adopted in other employment and labor laws as well.

In the wake of the COVID-19 pandemic, many states and cities have adopted new paid sick leave laws. In a curious intersection between paid leave laws and independent contractor status laws, some of these laws establish a new and completely different approach to defining whether a food delivery driver should be classified as an “independent contractor” or as an “employee.” Rather than focusing on the duties of the worker and the business of the employer (as is done in the “ABC” test), these laws focus solely on whether the worker is engaged in a particular industry – food delivery. In this podcast, Littler Workplace Policy Institute attorneys Bruce Sarchet and Sebastian Chilco discuss these new laws, this new approach, and consider whether this change in direction will have long-term impacts.

Bruce Sarchet and Emily Patajo with Littler’s Workplace Policy Institute discuss proposed laws and regulations under consideration in California. The 2020 class of bills covers a lot of ground, from potential changes to the much-discussed worker classification test under AB 5, to antidiscrimination measures and leaves of absence amendments.

Littler’s Michael Lotito and Jim Paretti discuss the EEOC, how the lack of a quorum affected the agency, and what we might expect now that the agency’s quorum has been restored. They also discuss the agency’s litigation program and the controversial EEO-1 compensation data reporting due this September.

Littler’s Michael Lotito and Jim Paretti discuss new and expected developments at the U.S. Department of Labor. Topics include the nomination of Eugene “Gene” Scalia to be Secretary of Labor, current leadership in the Department and its regulatory agenda, and discussion of several significant rulemakings, including proposed DOL regulations regarding “joint employment” under the Fair Labor Standards Act; how to calculate the FLSA “regular rate” for purposes of overtime compensation; and pending changes to overtime regulations, all of which are expected to be published in final form before the end of the year.

Michael Lotito and Jim Paretti of Littler’s Workplace Policy Institute discuss pending California legislation – Assembly Bill 5 or “AB 5” – which is fast-tracking its way through the state legislature. The bill would codify portions of last year’s California Supreme Court decision in Dynamex v. The Superior Court of Los Angeles County, in which the court instituted the “ABC test” for determining whether a worker is an independent contractor under state law. The speakers explain how AB 5—if enacted in its current form—could dramatically alter the legal landscape of California’s employment classification law.

Over the past several weeks, there has been very significant activity with regard to rulemakings and court decisions concerning the U.S. Department of Labor (DOL), the Equal Employment Opportunity Commission (EEOC), the National Labor Relations Board (NLRB), and the Office of Federal Contract Compliance Programs (OFCCP). In this podcast, WPI will discuss what to expect next on: • The status of the EEOC's revised EEO-1, and whether employers will be required to file compensation data • The overtime and regular rate notices of proposed rulemaking (NPRM) • The DOL and NLRB joint employment rulemakings • OFCCP’s recently released FY2019 Corporate Scheduling Announcement List (CSAL)

Alka Ramchandani-Raj and Corinn Jackson with Littler’s Workplace Policy Institute dive into the numerous regulations and bills pending in California concerning workplace safety and health. Alka offers both background of existing law and analysis of the safety measures, including proposals about lead poisoning prevention, Valley Fever training requirements, and an indoor heat illness prevention program.

Bruce Sarchet, of Littler’s Workplace Policy Institute, and Marissa Dragoo with the Littler Learning Group, take a look at a new type of workplace training – bystander intervention training – that is now encouraged for California employers. This optional training teaches employees how to evaluate and respond to problematic behaviors in the workplace, empowering them to interrupt difficult situations, such as sexual harassment.

Bruce Sarchet and Corinn Jackson with Littler’s Workplace Policy Institute review the key labor and employment measures introduced this year in the California legislature. Lawmakers have filed bills on a wide range of topics, from independent contractor classification to hairstyle discrimination – and beyond! Bruce and Corinn break down the most significant pending bills, identifying practical ramifications for employers and offering insights into the legislative history and process.

Bruce Sarchet, Corinn Jackson, and Eli Freedberg with Littler’s Workplace Policy Institute explore a recent trend pitting progressive city councils against more conservative state legislatures. They discuss the proliferation of local ordinances regulating workplace issues (such as “fair workweek” requirements) and the resistance from some state lawmakers to these municipal assertions of power. The WPI team surveys the various state preemption laws, which are used to preclude cities and counties from adopting and enforcing certain types of ordinances, and addresses how litigation can come into play in resolving these disputes.

Effective January 1, 2019, California SB 1343 greatly expanded Golden State employers' anti-harassment training requirements. The law not only extends coverage to employers with as few as five employees, but it also mandates that employers provide anti-harassment training to all employees – not just supervisors – every two years. But what if an employer provided this training in 2018? Can the next training cycle wait until 2020? No, according to recent guidance from the California Department of Fair Employment and Housing (DFEH). In this podcast, Marissa Dragoo from the Littler Learning Group discusses potential SB 1343 compliance challenges with Littler Workplace Policy Institute members Bruce Sarchet and Corinn Jackson.

Bruce Sarchet and Corinn Jackson, both with Littler’s Workplace Policy Institute, survey numerous wide-sweeping changes affecting California employers in 2019. They review several legislative highlights, three recent significant decisions issued by the California Supreme Court, and shifts in the composition of that court. Join Bruce and Corinn as they peer into their crystal ball to predict whether incoming Governor Gavin Newsom will rubberstamp employee-friendly bills presented by the legislature, which is now comprised of a super-majority of Democratic lawmakers, and what economic and other factors may influence his decision-making.

Bruce Sarchet and Corinn Jackson, with Littler’s Workplace Policy Institute, chat with Betsy Cammarata of the firm’s Knowledge Management team about major upcoming changes to California laws governing employee release and confidentiality agreements. Bruce and Corinn explore three new laws (AB 3109, SB 820, and SB 1300) that nullify certain common contractual terms. SB 820, for example, generally outlaws provisions in settlement agreements that would prevent the disclosure of facts related to claims of sexual harassment. Bruce and Corinn discuss steps that employers can take now to prepare for compliance with these laws by the January 1, 2019 effective date.

Bruce Sarchet and Corinn Jackson of Littler’s Workplace Policy Institute discuss recently-adopted amendments to the California salary history ban. Although the ban took effect this past January, the original statute left open numerous important questions. Bruce and Corinn review the new definitions included in the amendments, which clarify when employers must provide pay scale information to applicants and when the wage history of internal candidates may be considered. They also address how these amendments, effective January 1, 2019, fit in with the Golden State’s existing equal pay laws.

In this podcast, Bruce Sarchet and Corinn Jackson, both with Littler’s Workplace Policy Institute, consider the compliance twists and turns of California’s salary history ban, which took effect on January 1, 2018. They look at if and how employers can consider salary history when making employment and salary decisions, even when that pay history has been voluntarily disclosed by applicants. Bruce and Corinn also discuss how the law impacts employers that do not maintain physical locations in the Golden State, and how employers may need to adjust their application and hiring protocols to comply with the new restrictions.

Bruce Sarchet and Corinn Jackson, both with Littler’s Workplace Policy Institute, discuss a noticeable trend developing in the hotel industry. They review the burgeoning popularity of laws requiring hotel employers to provide certain workers – primarily guestroom cleaning staff – with panic buttons to be used in emergencies, including instances of sexual harassment by guests. Bruce and Corinn survey panic button ordinances enacted in Seattle, Sacramento, and Chicago. They also consider a bill pending in California that would impose similar obligations statewide.

Bruce Sarchet and Corinn Jackson, both with Littler’s Workplace Policy Institute, discuss developments from the ongoing California state legislative session. Bruce and Corinn review key labor and employment measures under consideration in Sacramento, including a spate of bills aimed at curbing sexual harassment. They highlight numerous noteworthy measures on a range of topics, covering wage and hour proposals, potential updates to the Private Attorneys General Act, and assorted anti-discrimination bills.

Originally posted, December 18, 2017. Updated, January 29, 2018. Bruce Sarchet and Corinn Jackson, both with Littler’s Workplace Policy Institute, review the status of the California Private Attorney Generals Act, which authorizes employees to recover penalties for many Labor Code violations. They discuss how PAGA currently operates, explore open questions concerning the law, and summarize the recent employee-friendly Lopez v. Friant & Associates appellate court decision. Bruce and Corinn also look ahead, addressing possible legislative clarification of PAGA as well as ballot initiatives that might put PAGA amendments to a vote in 2018.

Bruce Sarchet and Corinn Jackson, both with Littler’s Workplace Policy Institute, discuss how the 2017 Tax Cuts and Jobs Act affects the terms of settlement agreements used for sexual harassment claims. They address how the new law alters business expense tax deductions related to such settlements. They also review several additional federal and state initiatives that would curtail the use of nondisclosure or arbitration agreements in the harassment context.

Bruce Sarchet and Corinn Jackson, both with Littler’s Workplace Policy Institute, explore the nitty-gritty details of California’s new salary history inquiry ban. The new law – which takes effect January 1, 2018 – prohibits employers from relying on, or seeking out, pay history information about job applicants. Bruce and Corinn discuss the evolution of California’s salary history inquiry ban, the compliance challenges it creates, and how California employers can prepare for this sea-change in hiring practices.

In this podcast, WPI Co-Chairs Ilyse Schuman and Michael Lotito review the status of several labor and employment issues, as the Trump Administration closes out its first nine months. Ilyse and Michael discuss pending nominations to fill numerous key positions within the Department of Labor, EEOC, and National Labor Relations Board. They address anticipated changes to the EEO-1 report and the overtime rule, both of which are under reconsideration by the new leadership. Join Ilyse and Michael as they explore regulatory and legislative developments at the federal and state levels, including potential clarification on what it means to be a joint employer.

Under current California law, employers may ask job applicants about their wages in current or former jobs. A new ordinance in San Francisco, however, will make such inquiries illegal. Corinn Jackson with Littler’s Workplace Policy Institute (WPI) and Sacramento Shareholder Bruce Sarchet, also a member of the WPI team, discuss how this ordinance will drastically change the hiring practices of San Francisco employers. They review the purpose and the terms of the new law, which prohibits employers both from asking candidates about their salary history and from disclosing pay history to other prospective employers. While the ordinance does not take effect until next July, Corinn and Bruce encourage employers to familiarize themselves now with its requirements and to begin preparing for compliance.

As workplace regulations spread among California cities, employers confront a tangled web of local rules – particularly those companies with operations in multiple locations. Addressing this compliance challenge with practical suggestions, Corinn Jackson with Littler’s Workplace Policy Institute (WPI) and Sacramento Shareholder Bruce Sarchet, also a member of the WPI team explore new regulations in Emeryville, San Jose, and San Francisco that mandate advance notice of work schedules and require offering additional work hours to part-time employees before hiring from the outside. Corinn and Bruce encourage employers to carefully evaluate whether the laws apply to their operations and, if so, provide training and guidance to supervisors and managers who will need to implement the requirements. Additionally, Bruce and Corinn note that ongoing monitoring of compliance will be critical, along with legal consultation.

Ilyse Schuman, Co-Chair of Littler’s Workplace Policy Institute, talks with Sacramento Shareholder Bruce Sarchet about two new bills pending in the California legislature dealing with the concept of equal pay for equal work. One would prohibit employers from asking about salary history during the job application process, and another would require large employers to file reports regarding pay for men vs. pay for women. Bruce provides background on California’s current equal pay law, discusses national - as well as California state and local - legislative trends surrounding equal pay, and outlines potential future legal challenges.

Most organizations would agree that their people are among their most important assets. So why is it that so few organizations believe that their HR department is one of their most important divisions? At a time when the President of the United States is calling for building America again, buying American again, and creating those great-paying American jobs again, Michael Lotito, co-chair of Littler's Workplace Policy Institute and a Littler shareholder, explores many of the reasons why HR is not just critical to this endeavor, but will be the driving force behind it. From engagement, to retention, to compensation strategies, to safety issues, and even to the protection of corporate values and morality, Michael affirms that it is HR professionals who have the experience and ability to provide insight and to develop strategies to address these issues, and therefore their voices must be heard.

On Wednesday, October 5, 2016, the WPI gave a one-hour review of the year’s major California employment laws affecting private sector employers. Major new laws include: • Increasing and indexing the state minimum wage (including for many agricultural workers) • Expanded paid sick leave requirements • Expanded equal pay requirements • Smoking in the workplace • Those new laws affecting only some California employers, or those only in certain cities or counties WPI Co-Chair Ilyse Schuman interviewed Littler attorneys Chris Cobey and Cooper Spinelli, who have extensive California legislation experience including on these and other new laws, related political developments, and anticipated legislative action in 2017 in the Golden State.

The Occupational Safety and Health Administration (OSHA) is the government agency tasked with setting and enforcing workplace safety standards. As part of the Department of Labor, OSHA has recently seen a great deal of regulatory activity. WPI Co-Chair Ilyse Schuman interviews Ben Huggett, a shareholder at Littler’ Philadelphia office, and discusses the developments at OSHA and how they impact almost all areas of employment. Topics include: • Reporting of severe injuries • Electronic injury and illness tracking requirements, including the impact on drug testing and safety incentive programs • Increases in penalties for all violations • Whistleblower protections • The Zika virus

Like many other multiemployer pension plans, the Central States, Southeast and Southwest Areas Pension Fund was hit very hard by the financial crisis in 2008. In response, the Employee Retirement Income Security Act, or ERISA, was amended to allow Central States and other critically underfunded plans to remain solvent through the approval of a so-called “rescue plan.” On May 6, 2016, Central States’ proposed Rescue Plan was rejected by the IRS. This would have huge implications not just for the employers who contribute to the plan, but also for the Pension Benefit Guarantee Corporation (PBGC) and for participants and retires. Joining the WPI to examine the implications of the rejection of Central State’s plan was Littler shareholder Mike Congiu.

In early April, the Department of Labor (DOL) issued a final rule to re-define who is rendered a "fiduciary" of an employee benefit plan under the Employee Retirement Income Security Act (ERISA) by providing investment advice to a plan or its participants or beneficiaries. More than five years in the making, issuance of a final rule to address conflicts-of-interest in retirement advice has been a priority for the White House and DOL to advance its “middle-class economics” agenda in the face of criticism in Congress and by a number of stakeholders. The final rule replaces 1975 regulations on fiduciary investment advice with a definition that, according to the DOL, “better reflects the broad scope of the statutory text and its purposes and better protects plans, participants, beneficiaries, and IRA owners from conflicts of interest, imprudence, and disloyalty.” WPI Co-Chair Ilyse Schuman interviewed Littler shareholders and Co-Chairs of the Employee Benefits Practice Group Melissa Kurtzman and Steven Friedman about the changes made in the final rule and what it means for your business and retirement plans.

With the ongoing deadlock in Washington, D.C., an increasing amount of policy change is taking place at the state level. Nowhere is this more evident than in the states of New York and California, which have recently made substantial changes to their wage and hour laws. The governors of both states have signed legislation that will raise their minimum wage to $15 an hour, and at the same time California is expanding their paid sick leave law. These and other issues will have huge impacts on any groups doing business in those states. WPI Co-Chair Ilyse Schuman interviewed Littler shareholders Bruce Millman and Bruce Sarchet along with Mike Whatley, director of state and local affairs at the National Restaurant Association. Together they explained the initiatives you should be aware of in these two states, what they mean for businesses operating there and how these efforts fit in to the national picture. Also discussed was how these measures reflect larger trends across the country in other states and localities.

This month WPI Co-Chair Ilyse Schuman, along with Littler expert and EEO & Diversity Group Co-Chair Barry Hartstein, examin the Equal Employment Opportunity Commission (EEOC) and what employers can expect from the Commission during the last year of the Obama Administration. The EEOC has been extremely active of late, and Barry looks ahead to important developments likely in the coming year both at the Agency and in the courts, including the important EEOC v. Bass Pro Outdoor World LLC case. Barry also discussed highlights of Littler’s Annual Report on EEOC Developments for FY 2015.

Littler’s David Goldstein, Allan King and Kevin offer an examination of the proposed changes to the Employer Information Report (EEO-1) put out by the Equal Employment Opportunity Commission (EEOC). The proposal would require employers with 100 or more employees to provide data on employee compensation and hours. Smaller employers would have new reporting obligations as well. We also discuss the EEOC’s call for public comment on a new retaliation enforcement guidance. That 76-page proposal appears to expand the definition of "protected activity," and broaden the basis for proving the causal link between the protected activity and the contested employer action.

State and Local Paid Leave Laws, Libby Henninger, 5.15.15 by Littler

Mary Kissel, Member of Editorial Board and Host of OpinionJournal, The Wall Street Journal, talks about the U.S. economy and immigration reform

Barry Hartstein, shareholder @ Littler, talks about EEOC enforcement guidance on pregnancy discrimination