Latest updates

DOL issues final rule clarifying how to calculate regular rate for overtime pay
  • Employment & Immigration
  • USA
  • 08 January 2020

The US Department of Labour has announced a final rule (the new rule) that updates several regulations regarding what forms of payment employers can exclude in the time-and-a-half calculation for overtime pay. The new rule clarifies that employers can exclude a range of employee perks and state-mandated payments in calculating overtime under federal law. Employers should review their pay practices with the new rule in mind.

Ten new California laws your business must understand for 2020
  • Employment & Immigration
  • USA
  • 27 November 2019

The 2019 California legislative year has officially come to a close. Unsurprisingly, there are dozens of new employment laws hitting the books on 1 January 2020 which will introduce a number of changes, including a ban on arbitration, an extension of the Fair Employment and Housing Act (FEHA) statute of limitations and a new bill which amends the definition of 'race' under the FEHA. This article highlights 10 of these new laws and provides key takeaways for covered employers.

Surge of website accessibility suits to continue as Supreme Court declines to review Ninth Circuit decision
  • Tech, Data, Telecoms & Media
  • USA
  • 25 October 2019

The Supreme Court recently denied Domino's Pizza's request to review the Ninth Circuit's decision that Domino's must make its website accessible to persons with visual impairments under the Americans with Disabilities Act. Given that any business with a website may be targeted by website accessibility claims, companies must take preventative measures, including adopting website accessibility policies and updating their websites to meet trending website accessibility and lawsuit deterrence standards.

DOL finalises updated overtime pay regulations
  • Employment & Immigration
  • USA
  • 09 October 2019

In the three-year saga over anticipated changes to the minimum salary threshold for overtime exemptions under the Fair Labour Standards Act, the latest – and probably final – development occurred on 24 September 2019, when the US Department of Labour issued its new final rule updating the regulations in this regard. The new regulations will become effective on 1 January 2020. As such, employers must evaluate their workforces to identify positions that will need to be reclassified or modified.

California dreaming, California nightmare – three takeaways from controversial independent contractor bill
  • Employment & Immigration
  • USA
  • 02 October 2019

Assembly Bill (AB) 5 has finally been signed into law, making it more difficult for California businesses to classify workers as independent contractors. AB 5 codifies and expands the California Supreme Court's holding in Dynamex and applies the 'ABC' test to most independent contractor questions under California employment law. Now that it has been signed into law and its retroactive effect codified, employers must audit their independent contractor arrangements and pay close attention to the exemptions.

NLRB allows employers to impose arbitration agreements after class/collective action has been filed
  • Employment & Immigration
  • USA
  • 28 August 2019

The National Labour Relations Board recently issued a decision that expands the Supreme Court's decision in Epic Systems Corp v Lewis and further authorises employers to limit employees' ability to file or opt in to a class or collective action against their employer. In light of the decision, employers may not only require employees to enter an arbitration agreement that requires one-on-one arbitration, but also impose such an agreement after, and in response to, employees filing or opting in to a class or collective action.

Deadline looms for expanded EEO-1 filings
  • Employment & Immigration
  • USA
  • 14 August 2019

For US employers with 100 or more employees, extensive new information relating to their prior Equal Employment Opportunity-1 filings must soon be submitted. Specifically, in addition to categorising employees by race or ethnicity, gender and job type, employers must now assemble and submit aggregated employee data regarding compensation and annualised hours worked. Assembling the required data may be much more complicated than many employers are expecting, so it is important to begin planning now.

Reference re Environmental Management Act (British Columbia): one step forward for Trans Mountain
  • Litigation
  • Canada
  • 09 July 2019

A recent British Columbia Court of Appeal decision is significant because it has removed (for now at least) one of the barriers to the development and construction of the Trans Mountain Expansion Project. It has also provided some clarity on the roles that the federal and provincial governments may properly play in the regulation of interprovincial pipelines and, more broadly, in the complex area of environmental regulation.

#MeToo following Epic Systems
  • Employment & Immigration
  • USA
  • 03 July 2019

This article reviews the impact of the #MeToo movement, and other corporate culture concerns, on employers and its connection with the Supreme Court's decision in Epic Systems. There is concern that the court's decision will, in many cases, deprive women and men who have been victims of sexual assault or harassment in the workplace of their right to bring collective or class actions, as Epic Systems has forced employees to bring their claims through one-on-one arbitration.

Alberta judge dismisses case against police officers on grounds of reasonable force
  • Litigation
  • Canada
  • 02 July 2019

A Court of Queen's Bench of Alberta judge recently dismissed a case against police officers and the chief of the Edmonton Police Service in its entirety, concluding that the use of force by the defendants did not exceed what was reasonably necessary for the plaintiff's arrest. The case is significant for the court's analysis of forward-looking infrared video evidence, treatment of a prior judicial decision in related criminal proceedings and analysis of the physical force used by police officers to effect an arrest.

California's employment regulatory scheme: PAGA in wake of Epic Systems
  • Employment & Immigration
  • USA
  • 26 June 2019

As employers doing business in California know, California's employment regulatory scheme is the most comprehensive of any US state. In particular, the California Private Attorneys General Act (PAGA) allows employees to sue employers for civil penalties on behalf of themselves and other employees. Most significantly, PAGA provides for the reimbursement of attorneys' fees to employees who successfully bring suit. However, Epic Systems may mean a change in favour of standalone PAGA cases.

Throwing an egg at someone: Ontario Superior Court addresses hatching of new legal test
  • Litigation
  • Canada
  • 25 June 2019

Imprecision in identifying the risks of driving influences how insurers assess the value of automobile insurance. A recent Ontario Superior Court of Justice decision reminds insurers and insured persons how difficult it can be to properly assess and categorise risk at the outset of an insurance relationship; however, it offers little guidance on how the modified causation test should be applied in future cases involving projectiles from motor vehicles.

Section B benefits require compliance with independent medical examination protocol
  • Litigation
  • Canada
  • 18 June 2019

Can an insurer deny all Section B benefits if an insured agrees to attend an independent medical examination on conditions that conflict with the examining medical practitioner's protocol? The Alberta Court of Queen's Bench recently considered this question and answered in the affirmative. While the decision was specific to Section B claims, the broader takeaway is equally instructive: relying on the clear terms of a policy does not necessarily impugn the duty of utmost good faith.

Practical insights for employers considering mandatory arbitration programmes following Epic Systems
  • Employment & Immigration
  • USA
  • 12 June 2019

One year after the Supreme Court's landmark decision in Epic Systems – which paved the way for employers to force employees to waive their right to bring class actions – this article revisits the court's decision and the pros and cons of mandatory arbitration programmes with class action waivers.

Ontario Court of Appeal clarifies overlapping policies containing "other insurance clauses"
  • Litigation
  • Canada
  • 11 June 2019

The Ontario Court of Appeal has clarified its application of the Supreme Court's decision in Family Insurance Corp v Lombard Canada Ltd in instances of overlapping insurance policies with "other insurance clauses" covering the same loss. The court determined that the analysis in instances of overlapping coverage comes down to whether there was overlapping coverage and whether the insurers intended to limit their obligation to contribute, and by what method and in what circumstances, in relation to the insured.

Propping up insurable interests
  • Litigation
  • Canada
  • 04 June 2019

A plaintiff recently claimed indemnification under a residential insurance policy when unknown persons broke into her garage and stole items, including prop guns. Although the court found that the plaintiff had an insurable interest in the prop guns, it found that she was not entitled to be indemnified for their loss because they belonged to another individual who had not been a roomer or boarder.

Alberta Court of Appeal confirms directors are personally liable for injuries sustained at work
  • Litigation
  • Canada
  • 28 May 2019

The Alberta Court of Appeal has revisited the question of directors' personal liability for injuries sustained in a workplace incident. The key question was whether a corporate representative was personally liable for damage resulting from their own tortious conduct while acting as a representative for the corporation. As the applicable tests for determining personal liability remain unclear, this will continue to be a difficult issue for directors to navigate.

Jurisdictional challenges to arbitral awards: raise them before they're gone
  • Litigation
  • Canada
  • 21 May 2019

The Ontario Superior Court of Justice recently provided a comprehensive judicial review of a jurisdictional challenge to an arbitral award. This decision will be of interest not only to car manufacturers, but also to most parties subject to an arbitration agreement. However, the broader takeaway from this case is that non-compliance with the Arbitration Act is not a ground for review. Therefore, jurisdictional challenges must be brought at the beginning of hearings.

New Jersey agreements with employees: new law leaves nowhere to hide
  • Employment & Immigration
  • USA
  • 15 May 2019

Senate Bill 121 has amended New Jersey's longstanding Law Against Discrimination to prohibit any contractual provision that conceals "the details relating to a claim of discrimination, retaliation, or harassment". Notably, the new law applies to all existing and future agreements, except collective bargaining agreements. The law also preserves the enforceability of certain restrictive covenants, including non-competition agreements and provisions protecting confidential and proprietary information.

Summary judgment applications: analysing Weir-Jones and its application in BF
  • Litigation
  • Canada
  • 14 May 2019

The Alberta Court of Appeal recently clarified the test for summary judgment applications. The court noted the rift that has emerged in case law while discussing the standard of proof that is required in a summary judgment application. In particular, it held that the reliance on the conventional trial no longer reflects modern reality and must be readjusted in favour of more proportionate, timely and affordable procedures.