Employment Law This Week®: Employee Mobility Legislation, Independent Contractor Test, Emails Protected by NLRA, Notice for Title VII Suits

by Epstein Becker & Green
We invite you to view Employment Law This Week® - a weekly rundown of the latest news in the field, brought to you by Epstein Becker Green. We look at the latest trends, important court decisions, and new developments that could impact your work. Join us every Monday for a new five-minute episode!

This week’s stories include ...

1. Legislation See more +

We invite you to view Employment Law This Week® - a weekly rundown of the latest news in the field, brought to you by Epstein Becker Green. We look at the latest trends, important court decisions, and new developments that could impact your work. Join us every Monday for a new five-minute episode!

This week’s stories include ...

1. Legislation Introduced to Encourage Mobility

Our top story: New legislation was introduced in Congress on employee mobility. Congressional Democrats have introduced bills in both houses targeting practices that curb competition between employers for workers. The legislation would effectively ban no-poaching agreements, which are, in most cases, already considered a criminal antitrust violation by the Department of Justice. But the bills go further to ban anti-competitive corporate mergers and prohibit non-compete agreements, except in limited circumstances. Jonathan Brenner, from Epstein Becker Green, has more:

“Undoubtedly, the new legislation would require many employers to fairly significantly retool their employee hiring and onboarding practices, and their contracts that are in use with many of their employees. Another impact is in the enforcement area, as the new law apparently would give new enforcement powers to the federal Department of Labor for the prohibited activities. Right now, government fines, investigations, and audits are not things that employers have to contemplate with this kind of activity. The proposed legislation does not have bipartisan sponsorship. It has only been introduced by Democrats at this point. That could change, of course, but unless it does, the prospects for passage may be slim.”

2. California Implements “ABC Test” for Independent Contractors

California changes its test for independent contractors. The California Supreme Court has adopted the so-called “ABC test,” which is used in some other jurisdictions, for determining whether a worker is an independent contractor or an employee. California workers will now be presumed to be employees unless an employer can establish otherwise using the three-pronged test. California businesses that utilize independent contractors should review those relationships in light of the change. To keep up with federal and state-level wage and hour changes, download Epstein Becker Green’s app, the Wage and Hour Guide for Employers: https://www.ebglaw.com/wage-hour-guide-for-employers-app/

3. Emails About Employment Conditions Protected Under the NLRA Despite Profanity

Emails among employees about the terms and conditions of employment remain protected by the National Labor Relations Act (“NLRA”), despite the use of profanity. A National Labor Relations Board (“NLRB”) panel found that a restaurant in New York City violated the NLRA by firing four employees after a group email criticized some company employment practices and policies. The employer contended that the employees’ actions were not protected by the NLRA because the message contained profanity. The NLRB disagreed and held that the email does not lose protection under the NLRA because of profanity, and that the employees were entitled to reinstatement and back pay.

4. Ninth Circuit: Clock Starts After Receipt of Notice for Title VII Suits

The U.S. Court of Appeals for the Ninth Circuit sets the clock on suits under Title VII of the Civil Rights Act of 1964 (“Title VII”). Title VII lays out a 90-day time limit for filing civil action suits once an employee receives a right-to-sue letter. Here, a barbershop employee filed sexual harassment and retaliation charges against her former employer. At issue was whether the 90-day clock began when the plaintiff received a right-to-sue notice from the Equal Employment Opportunity Commission or when she became eligible to receive one. The Ninth Circuit reversed a lower court’s decision, finding that the clock starts upon actual receipt of the notice.

5. Tip of the Week

Carolyn Rincon, Senior Employment Counsel for Marsh & McLennan Companies, shares some tips on evaluating whether to bring discovery in-house:

“Consider the following when determining whether your company may be able to benefit from internalizing more of its e-discovery process. Assess the current state of affairs. You'll want to sit down with your key stakeholders and literally map out the process from start to finish. You'll probably begin with events that will trigger a legal hold, moving through preservation, collection, review, and eventually production. Doing this will allow you to identify gaps, inefficiencies, and significant costs. Avoid overly complicated tools and focus on the user experience. The right tool for your company may not be the one with all the bells and whistles. Benchmark with peers and similar companies. Finally, take the time to do it right. ..."

Watch the show and subscribe for notifications: EmploymentLawThisWeek.com See less -


Other MultiMedia by Epstein Becker & Green

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Epstein Becker & Green | Attorney Advertising

Written by:

Epstein Becker & Green

Epstein Becker & Green on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.