It’s hard to believe that we are already one week into the new year, but just because the holiday decorations are coming down (or not, we see you “keeping the lights up through March” people) doesn’t mean we aren’t still in the giving mood. In this edition, we highlight some legal things we’re watching in 2022, from whistleblowers to unions . . . but first, your obligatory “anything new with COVID-19?” update!
CDC’s Latest Guidance Gaining Supporters
As you all likely know by now, the CDC recently announced that its current recommended guidance is to shorten certain quarantine periods related to COVID-19. While the CDC’s guidance is a recommendation and not law, it seemed likely that states and cities would quickly follow suit and revise their local rules. Sure enough, we’ve already seen several states, including New York and New Jersey, announce they would be aligning with the CDC’s updated isolation and quarantine recommendations. Stay tuned for additional updates, and for the love of the HR gods, do not write those COVID-19 policies in permanent marker.
O.K. – now onto some things we’re watching in 2022!
New Rules for New York Whistleblowers
New York’s whistleblower law was recently amended, with those changes set to go into effect on January 26, 2022. And while all of the changes are important, the one we’ll be monitoring the closest is that employees previously needed to complain of an actual violation, to now needing only a reasonable belief that an employer’s conduct violates a law, rule, or regulation. Why might this be notable?
Hypothetically speaking: let’s say in response to a pandemic there were numerous and ever-changing government regulations and employer mandates, making it incredibly difficult to know what constitutes an actual law, rule, or regulation vs. a recommendation that is more “best-practices” (and not an actual law, rule, or regulation), but said recommendation is reasonably believed by workers to be an actual law, rule, or regulation due to an ever-changing landscape, leading to complaints that an employer is not following actual law when the employer may, in fact, be following the actual law, but perhaps not adopting every single “best-practice” (ya know, hypothetically). Well, under that “hypothetical,” those complaining employees may now have a legitimate claim, whereas they likely would not have prior to the amendments taking effect.
New Jersey Cracks Down on Employee Misclassification
Two bills signed into law by Governor Murphy in an effort to curb wage and hour law violations and employee misclassification went into effect last week. Effective January 1, 2022, New Jersey is now requiring that the Commissioner of Labor and Workforce Development create a statewide public database of certified payroll records for public works projects. Contractors are now required to provide their certified payroll statements to both the public agency on the project as well as the Commissioner.
Also effective January 1, 2022, employers who misclassify employees as independent contractors in order to evade their obligations for insurance premium payments will be liable for violations of the New Jersey Insurance Fraud Prevention Act. Employers who purposefully or knowingly misclassify employees may be subject to hefty fines – $5,000 for the first offense, $10,000 for the second offense, and $15,000 for each subsequent offense.
The New Jersey Supreme Court will also be weighing in on this issue later this year, deciding whether to apply a test used from New Jersey unemployment insurance law to determine employee status under the state’s wage and hour law.
Big year for the Garden State and worker misclassification!
“Strike-tober,” Meet “Union-ary”
That was fast – updating a recent story, since a Starbucks in Buffalo, New York became the first Starbucks union in December 2021, thirteen new Starbucks in seven states have filed for NLRB-supervised elections (the step immediately prior to union recognition). We’re also learning more about just how hard Starbucks management opposed this union drive, with an alleged “unprecedented” anti-union campaign – all-in, the union, Workers United, attempted to win representation at three stores in that Buffalo area, and of those three stores, there was one clear winner, one clear loser, and litigation involving the third (although the union apparently has a lead in counted ballots).
What’s going on with Starbucks and Workers United is yet another example of the rising labor movement, and combined with the recent changes going on at the NLRB, it’s fair to say that if you choose to ignore union momentum then you do so at your risk. While we have no clue whether “Union-ary” will catch on, these labor developments definitely have staying power.
Wishing all of you a happy and healthy 2022.
As always, if you’ve got questions – you know we’ve got answers.
Damien + Brian
ABOUT WEINSTEIN + KLEIN P.C.
Established in 2019, New York City-based Weinstein + Klein is a boutique law firm focused on labor and employment law, business matters, and litigation. Weinstein + Klein works with businesses, individuals, and entrepreneurs to protect their legal interests. In addition to advising clients on employment matters and working with businesses to minimize their risk of litigation, Weinstein + Klein advises small businesses and start-ups on various business law matters. For more information about Weinstein + Klein, please visit www.weinsteinklein.com.