Insights

Effective January 1, 2024, California employees will be entitled to accrue and use more paid sick leave per year.  On October 4, 2023, California Governor Gavin Newsom signed SB 616 into law, which amends the Healthy Workplaces, Healthy Families Act of 2014 (“HWHFA”) and significantly expands paid sick leave requirements for employers in California.  Further, non-construction industry employees covered by a collective bargaining agreement (“CBA”), previously excluded from coverage, will now be entitled to certain benefits and protections under the HWHFA.  The amendment also preempts local ordinances that are contrary to the HWHFA with respect to certain issues, for example, rate and timing of pay, and advance leave and notice.

In Clark v. A&L Homecare and Training Center, LLC, Nos. 22-3101/3102, a split three-judge panel for the U.S. Court of Appeals for the Sixth Circuit held that notice to potential plaintiffs should only be issued if lead plaintiffs show a “strong likelihood” that such absent employees are “‘similarly situated’ to the plaintiffs themselves.” In so holding, the Sixth Circuit joined the Fifth Circuit in rejecting the long-standing “lenient” two-step collective action certification process.  The Sixth Circuit declined, however, to apply the Fifth Circuit’s approach and adopted a “strong likelihood” standard.  The Clark decision, issued on May 19, 2023, will significantly impact FLSA collective action litigation in favor of employers in federal district courts in Ohio, Michigan, Kentucky, and Tennessee.  The widening Circuit split ripens this issue for review by the Supreme Court of the United States.

On April 10, 2023, after considering public comments, the Office of Federal Contract Compliance Programs (“OFCCP” or the “Agency”) issued a modified version (“Modified Revision”) of its initial proposed revisions to the Scheduling Letter and Itemized Listing published on November 21, 2022 (“Initial Revision”).  OFCCP retracted a few of its proposed information and data demands (e.g., no requirements to identify whether a promotion is “competitive” or “non-competitive”).  However, its more onerous and fundamental changes remain – most notably, requiring submission of information regarding the use of artificial intelligence tools, more compensation data, and documentation of compensation analyses.  The Modified Revision does little to alleviate contractors’ concerns that the revised Scheduling Letter and Itemized Listing will significantly increase the burden of responding to an OFCCP audit and related risk.