Insight

August 23, 2024

Reimagining Luxury Retail Compliance: A New York Perspective

Navigating the ever-changing regulatory ups and downs for luxury retail employers is no joke. With recent updates in labor laws, workplace safety regulations, and antitrust enforcement, these companies must remain vigilant. They must juggle state and federal compliance, including OSHA’s new “union walkaround” rule and evolving employment laws such as Fair Workweek and salary disclosure mandates.

Antitrust Scrutiny: New Challenges on the Block

The luxury retail sector isn’t just battling high-end competitors; they’re also under the microscope for antitrust issues. The DOJ and FTC, along with state regulators and private plaintiffs, mean business. They expect adherence to expanded protections and standards under the Providing Urgent Maternal Protections (PUMP) Act.

Hard-Hitting Antitrust Issues

Let’s talk specifics:

1. No-Poach and Wage-Fixing Agreements

The DOJ has been bearing down on companies for no-poach agreements and wage-fixing. This means:

• Training HR staff and hiring managers about antitrust risks.
• Avoiding any sharing of compensation data or hiring practices with competitors.
• Implementing solid antitrust compliance programs for labor issues. (source)

2. Information Sharing

Careful with that rival handshake! Sharing sensitive information can lead to trouble:

• Reconsidering trade association involvement to necessary, pro-competitive activities.
• Using safeguards if engaging in benchmarking of sensitive data.
• Educating employees on antitrust risks of those casual information exchanges with competitors. (source)

3. Merger Review

Thinking of expanding your chain? The FTC is watching:

• Conducting comprehensive antitrust risk assessments early in deal planning.
• Prepping for extensive document and data requests from regulators.
• Proactively considering remedies like store divestitures. (source)

4. Robinson-Patman Act Enforcement

With regulators reviving the Robinson-Patman Act, watch your pricing:

• Reviewing pricing and promotional practices.
• Analyzing justifications for price differences.
• Assess potential implications of slotting fees and promotional practices.
• Understanding that liability under this Act could extend to buyers. (source)

Employment Law: Shaping the Work Environment

The luxury retail industry isn’t just about opulence; it’s also facing a raft of new employment laws aimed at transparency and accommodation.

Fair Workweek Laws

You’ve got states and cities rolling out predictive scheduling laws, which demand:

• Advanced notice of work schedules.
• Limits and compensation for last-minute changes.
• Systems and training for managers on posting requirements and permissible reasons for shifting schedules. (source)

Salary Disclosure Laws

Many states and local jurisdictions now require salary range disclosures in job postings:

• Reviewing compensation and recruitment practices.
• Developing clear salary ranges for all positions.
• Updating job postings to include salary info.
• Training HR and hiring managers on compliance. (source and source)

Fair Labor Standards Act Overtime Rule Changes

With the Department of Labor’s proposed changes, expect increases to salary thresholds for overtime exemptions:

• Reviewing exempt employees to identify those below new thresholds.
• Considering costs related to raising salaries or reclassification.
• Training newly nonexempt employees and their managers. (source)

Lactation Accommodation

The PUMP Act extends lactation break requirements:

• Identifying private spaces for breaks at all locations.
• Updating break time policies.
• Training managers on accommodation rights under the PUMP Act and Pregnant Workers Fairness Act. (source and source)

Noncompete Agreements

The FTC’s proposed limits on noncompete agreements mean:

• Reviewing all existing noncompetes.
• Considering alternative protection methods for trade secrets.
• Preparing to notify employees if the rule goes into effect. (source and source)

OSHA Compliance and the Union Walkaround Rule

OSHA’s new “union walkaround” rule has made a splash. Here’s what it entails and how luxury retailers should gear up:

The Rule Breakdown

The Worker Walkaround Representative Designation Process now allows OSHA compliance officers to bring third-party reps for workplace inspections—even at nonunion sites. Unions, advocacy groups, and other third parties could now access previously restricted retail and manufacturing areas during OSHA visits, including store hours. (source)

Preparing for the Change

Lux retailers must:

• Update OSHA inspection policies.
• Decide on requiring search warrants for inspections.
• Develop confidentiality agreements.
• Train managers on interacting with third-party reps.
• Strengthen site security and access protocols for nonpublic areas.

Best Practices

• Updated Inspection Policies: Give guidance for frontline managers.
• Confidentiality Agreements: Protect trade secrets.
• Manager Training: Ensure professional and protective interactions with third-party reps.
• Security Protocols: Tighten protocols for stock rooms and product work areas.

Proactive Measures for a Smooth Ride

Luxury retail employers can thrive by:

• Conducting inspection policy reviews.
• Training managers and staff.
• Adhering to confidentiality protocols.
• systematic employee scheduling.
• Transparent compensation practices.
• Meticulous record-keeping.

With legal counsel’s help, luxury retail industry employers can keep their ship steady, ensuring regulatory compliance and positive workplace vibes.