Nevada’s ‘Do Not Sell’ Law to Kick in Before California’s CCPA

Less sweeping but still challenging to web operators, Nevada’s “Do Not Sell” privacy law takes effect next Tuesday, Oct. 1, while California’s more heralded CCPA — California Consumer Privacy Act — will debut on New Year’s Day 2020.

nevada-privacy-law-takes-effect-oct-1The Nevada act requires operators of websites to establish a procedure whereby Nevada residents can opt out of data sales of personal information they have provided to the sites. This so-called “designated request address” can be a toll-free phone number, email address or website form for submission and must include a means for identity verification.

The way the law is written, a website operator need not even sell data to third parties to come under the mandate to establish a “designated request address” and allow Nevada residents to stop the distribution of their data at any point in the future.

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NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Student Workers Are Not Employees, NLRB Proposes

The National Labor Relations Board (NLRB) will publish a Notice of Proposed Rulemaking (NPRM) in the Federal Register on Sept. 23, 2019, proposing a rule regarding students. Addressing a recurring question regarding the definition of “employee” under Section 2(3) of the National Labor Relations Act (NLRA), the proposed rule would exempt from the NLRB’s jurisdiction undergraduate and graduate students who perform services for financial compensation in connection with their studies.

nlrb-says-students-can't-be-employees-on-campus

Student workers such as graduate or teacher assistants are not employees, the NLRB proposes.

Through issuance of the NPRM, the board seeks public comment on its proposed view that students who perform services – including teaching and/or research – for compensation at a private college or university in connection with their studies are not “employees” under the NLRA.

The basis for this proposed rule is the board’s preliminary position, subject to revision in light of public comment, that the relationship these students have with their school is predominately educational rather than economic.

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NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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UPS to Pay $2.25 Million to Settle Pregnancy Discrimination Charge

United Parcel Service, Inc., the world’s largest package delivery company, will pay $2.25 million and clarify its pregnancy accommodation policies to resolve a pregnancy discrimination charge that was investigated by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced today.

ups-to-pay-$2.5m-to-settle-discrimination-chargeUntil 2015, when it changed its policy, UPS provided accommodations in the form of light duty assignments to UPS workers injured on the job, those with certain driving restrictions, and those with disabilities. However, UPS did not provide light duty work to pregnant employees.

A UPS driver alleged that this failure to accommodate pregnant UPS workers by providing light duty assignments violated the Pregnancy Discrimination Act (PDA), which amended Title VII of the Civil Rights Act of 1964 to expressly bar pregnancy discrimination. While that former driver resolved her individual charge with UPS, the EEOC’s investigation focused on other pregnant UPS workers who were not given light duty or other accommodations that would have permitted them to continue to work.

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NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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DOL Overtime Rule Clears the White House

The Office of Management and Budget (OMB), a White House review agency, has cleared the new overtime rule from the Department of Labor (DOL) that sets the salary threshold for avoiding overtime at $35,308 annually. The rule, which should be published soon, will make an estimated 1.1 million more workers eligible for overtime.

dol-proposes-new-overtime-ruleThe rule is a far cry from the Obama-era version that set the threshold at $47,476 a year, a rule that was voided by the U.S. 5th Circuit Court of Appeals, arguably the most conservation review court in the country.

The means test to determine if a worker’s role excludes that person from overtime will remain unchanged, but attorneys general (AGs) from Blue (Democrat) States are poised to challenge the rule in court, just as Red State Republican AGs challenged the last one. They say the means test makes it too easy for a business to classify a worker as a manager and thus avoid paying overtime.

It remains to be seen how or if the hundreds of thousands of public comments submitted during the vetting process play out in the final rule. The majority of those comments were in favor of restoring the Obama threshold.

The rule, if not invalidated by a federal judge, would no doubt take effect in 2020.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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California Takes Aim at the Gig Economy

BREAKING NEWS: Uber says, despite the new law, it will not reclassify its independent contractors as employees because it is “a broader technology company” and its “drivers are doing work outside the company’s usual course of business.”

With only three days left in this year’s session, the California legislature has approved a bill that would virtually do away with independent contractors and make almost every worker an employee.

NLRB-rules-uber-drivers-are-contractorsGov. Gavin Newsom has indicated previously that he favors the act known as Assembly Bill 5, which would take effect on Jan. 1.

The stakes are high for Uber, Lyft, DoorDash and other companies that rely on independent drivers. Estimates run as high as 30 percent in additional costs for these companies if they are forced to make everyone an employee. Barclays, in fact, predicts that — should the California approach spread to other states — the companies will be forced into bankruptcy.

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NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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NLRB Gives Employers More Latitude to Make Unilateral Changes

The National Labor Relations Board (NLRB) has loosened the standard of when a unionized employer’s unilateral action in changing the terms or conditions of employment violates the National Labor Relations Act (NLRA).

NLRB-issues-new-strategic-planThe Republican board majority adopted a “contract coverage” or “covered by the contract” standard for determining if such unilateral actions run counter to the NLRA. In so doing, the board rejected the “clear and unmistakable waiver” standard, which it said had been ” rejected by several federal courts of appeals, notably including the Court of Appeals for the District of Columbia Circuit.”

The decision yesterday ruled that changes could be allowed over a union’s objection if they could reasonably infer as allowable under the “plain terms” of the contract.

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NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Pay Data Collection Closes Sept. 30, Same Day the Rule Expires

BREAKING NEWS: The EEOC will not collect Component 2 pay data after this cycle concludes on Sept. 30, it was announced on Sept. 11.

To date, the Equal Employment Opportunity Commission (EEOC) reports it has received Component 2 pay data from 13.4 percent of eligible filers, who have until Sept. 30 to complete their submissions.

eeoc-report-could-be-delayedSept. 30 is the date set by the court that ordered the pay data collection to proceed after the Trump administration put it on permanent hold. Ironically, that is the same day that the pay data initiative expires since the Office of Management and Budget (OMB) initially authorized the collection process only through that date.

Since the authorization is expiring, the agency is planning to post a Notice of Information Collection — Employer Information Report (EEO-1) to gauge employer views on the Component 2 process.

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NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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July Worst Month Ever for Medical Data Breaches

July was n historic month when it comes to breaches of health care data involving incidents affecting 500 or more persons, with a total of more than 50 such breaches reported to the Office for Civil Rights (OCR) affecting more than 35 million individuals.

july-biggest-month-for-hipaa-breachesAccording to HIPAA Journal, the “main reason for the increase in reported data breaches in July is the colossal data breach at American Medical Collection Agency,” which encompassed 22 health care organizations and 25 million records.

Phishing attacks and ransomware demands accounted for at least 35 of the attacks, with HIPAA Journal noting that this suggests “multi-factor authentication has not yet been implemented by many healthcare organizations.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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NLRB to Reconsider Protections for Foul Language

The National Labor Relations Board (NLRB) on Thursday asked for feedback on exactly when workers’ offensive outbursts become egregious enough to lose the protection of federal labor law, signaling a likely shift from the Obama administration’s expansive view on employees’ rights to express themselves.

NLRB-to-determine-bounds-of-protected-behavior

NLRB wants to determine when protected activities go too far.

The request is in reference to a case under the Obama administration. In that case, an administrative law judge (ALJ) and the NLRB ruled that a striking worker was protected under the National Labor Relations Act (NLRA) when he hurled racist slurs at black replacement workers at Cooper Tire.

He shouted at them to ask if they had brought “enough KFC for everybody,” and said he smelled “fried chicken and watermelon.” Cooper Tire fired the employee for his taunt, but the ALJ and NLRB later ordered him restored to work status because his activity was protected.

Section 7 of the NLRA has a provision for “protected, concerted activity,” which affords protections for activities related to collective, work-related issues, such as picketing. The Trump NLRB is now revisiting how broad should those protections be.

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NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Classifying Workers as Independent Contractors Does Not Violate the NLRA, Board Rules

The National Labor Relations Board (NLRB) has ruled that misclassifying workers as independent contractors does not violate the National Labor Relations Act (NLRA).

NLRB-issues-new-strategic-planThe decision came on Aug.29 when the board reviewed the case, Velox Express, Inc. and Jeannie Edge. In 2017, an administrative law judge ruled that Velox Express had violated the NLRA by deeming its employees contractors, thus removing them from the protections — including unionizing — that the NLRA affords employees.

After hearing briefs about the case, the NLRB found that Velox Express had incorrectly labeled its employees as independent contractors, but added that the company did not commit a separate violation by classifying them wrongly. It also found that Velox Express had violated the NLRA by firing a worker (Jeannie Edge) for “raising group complaints” about the classification.

The ruling, however, does not relieve employers of their obligations under the Fair Labor Standards Act (FLSA), workers’ compensation laws,  taxation issues and unemployment compensation if they misclassify employees as independent contractors.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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