On August 30th, the U.S. Department of Labor (DOL) issued a long-awaited proposed rule that if adopted, will substantially expand the ranks of workers eligible for overtime payments for work in excess of 40 hours, as required by the Fair Labor Standards Act (FLSA).

Under present FLSA regulations, certain “white collar” workers who meet minimum salary requirements and perform specified duties may be classified as “exempt” employees ineligible for overtime.  The current salary threshold to qualify for the white collar exemptions is $35,560 annually, and $107,432 for the “highly compensated employee” exemption.  The proposed rule would increase that minimum salary threshold to $55,068 per annum, and $149,988 for highly compensated employees.

How Businesses Will Be Affected

The National Labor Relations Board (“NLRB” or “Board”) is responsible for enforcement of employee rights under Section 7 of the National Labor Relations Act (NLRA) to engage in protected concerted activity, such as organizing unions, discussing wages and discipline, and other terms and conditions of employment.

Many employers are not mindful of the fact that these rights extend to both unionized and non-union workplaces.  With the decline in union membership, the NLRB has increasingly turned its focus away from unionization issues to workplace practices that may run afoul of employee rights under the NLRA, as illustrated by two recent decisions from the Board.

The Landmark Stericyle Decision’s Impact On Employee Handbooks and Other Workplace Rules

Under New Jersey’s Unemployment Compensation Law, employers have long been obligated to provide separating employees with a Form BC-10 which includes instructions for claiming unemployment benefits, and to provide a reason for the employee’s termination when requested by the NJ Division of Unemployment and Temporary Disability Insurance (the “Division”).  Because employers historically ignored or were ignorant of these requirements, the State Legislature amended the Unemployment Compensation Law to include additional reporting requirements and enhanced penalties for those who continue to ignore these obligations.  These changes went into effect on July 31, 2023.

The Employer’s Reporting Obligations

Regardless of the reason for the employee’s separation, immediately upon a separation of employment the employer must:

Mandatory Sexual Harassment Policy Requirements

Since October 2018 New York has mandated employers to adopt written sexual harassment policies and provide yearly sexual harassment training.  The State developed a Sexual Harassment Model Policy and model harassment training materials that employers can use, or employers can develop their own policy and training materials so long as they meet the State’s minimum standards for compliance.

In April 2023 the New York Department of Labor updated its Sexual Harassment Model Policy (the “Model Policy”), model harassment complaint form, and model training materials, which can be found here.  The updated Model Policy

Following through on Governor Hokhul’s promise in her 2022 State of the State address, New York lawmakers passed a blanket ban on all non-compete agreements, thus joining the growing federal and state efforts to curb their use.   However, the bill imposes greater restrictions than those implemented in other jurisdictions, including California, North Dakota, Oklahoma, Colorado, Illinois and Maryland.  The bill will take effect 30 days after it is signed by the Governor.

The Broad Scope of the Ban: 

The bill prohibits all employers, regardless of industry, from seeking, requiring, demanding or accepting a non-compete agreement from any “covered individual,” defined as any person who performs services on such terms that the individual is economically dependent on the other.  Thus, unlike other laws that include a carve out for highly compensated employees, the ban extends to all workers across the board, including workers hired as independent contractors.

On June 13, 2023, the National Labor Relations Board (“NLRB” or “Board”) reverted to its prior employee friendly independent contractor test to find that makeup artists, wig artists, and hairstylists (“the stylists”) working for the Atlanta Opera were employees rather than independent contractors.  This revived independent contractor test will significantly impact employers who will now face a higher bar when seeking to classify workers as independent contractors excluded from the protections of federal labor laws.

The Discarded SuperShuttle Standard:  Since 2014 the NLRB applied the following non-exhaustive list of factors to determine independent contractor status:

  • The extent of control the employer exercises over the work

On May 30, 2023, the Department of Labor (“DOL”) issued an opinion letter clarifying how to calculate leave taken under the Family and Medical Leave Act (“FMLA”) during a week containing a holiday. It is important for employers to properly calculate employee FMLA leave time because a miscalculation could be considered an interference with an employee’s FMLA rights.

The FMLA requires covered employers to provide eligible employees up to twelve workweeks of unpaid leave within a twelve-month period for qualifying family or medical reasons or twenty-six workweeks of unpaid leave within a twelve-month period for caretaking of qualifying service members.  Employees may take FMLA leave intermittently by taking leave in separate blocks of time or by working shortened weeks or days. The amount of FMLA leave taken by employees is calculated as a fraction of the employee’s actual workweek. For example, an employee who normally works forty hours a week but takes off eight hours for FMLA reasons, would use 1/5 of a week of his or her FMLA leave entitlement.

Full Workweek of FMLA Leave

On May 30, 2023 Jennifer Abruzzo, General Counsel for the National Labor Relations Board , sent a memorandum to all Regional Directors expressing her view that except in limited circumstances, non-compete provisions in employment and severance agreements constitute unfair labor practices under Section 7 of the National Labor Relations Act (“NLRA”) because they “tend to chill employees in the exercise of Section 7 rights” which protect employees’ rights to take collective action to improve working conditions.  While many mistakenly believe the NLRA’s reach only extends to unionized workplaces, both unionized and nonunionized employers are liable for unfair labor practices that violate employee Section 7 rights.

More specifically, the memorandum claims that non-competes interfere with employees’ ability to:

  • Concertedly threaten to resign to secure better working conditions;


Title VII prohibits employers from using neutral selection procedures that disproportionately exclude individuals on the basis of race, color, religion, sex or national origin unless the employer can show the procedures are “job related for the position in question and consistent with business necessity.”   In 1978, the U.S. Equal Opportunity Commission (EEOC) adopted Uniform Guidelines on Employee Selection Procedures providing guidance for employers to determine whether selection procedures commonly used in making employment decisions ran afoul of Title VII’s protections.

In response to the increased use of algorithmic decision-making tools (commonly referred to as artificial intelligence or “AI”) to assist in making a wide array of employment decisions, in May 2023, the EEOC issued new guidance entitled “Assessing Adverse Impact in Software, Algorithms, and Artificial Intelligence Used in Employment Selection Procedures Under Title VII of the Civil Rights Act of 1964.”  While the EEOC’s guidance does not have the force of law and is not binding upon employers, it serves as a warning that the EEOC will be monitoring AI use to ensure that these decision-making tools do not adversely impact protected groups in violation of Title VII.

A recent decision from the New Jersey District Court illustrates the extraordinary job protections for recreational marijuana users under the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (“CREAMMA”).


The job protection provisions of CREAMMA prohibit employers from disciplining employees “solely due to the presence of cannabinoid metabolites in the employee’s body fluid.”  Although CREAMMA expressly permits workplace reasonable suspicion, post-accident and random testing for marijuana, it also mandates a physical evaluation be conducted “by an individual with the necessary certification” to determine the employee’s current state of impairment before discipline can be imposed.  The physical evaluation requirement was included because current tests can only determine recent marijuana use, not current impairment.  However, the physical evaluation requirement was temporarily waived by regulation until such time that the NJ Regulatory Cannabis Commission (the “Cannabis Commission”) develops standards for a Workplace Impairment Recognition Expert (“WIRE”) certification. Thus, for the time being a physical evaluation is not a prerequisite for taking action against an employee who tests positive for cannabis.

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