U.S. Supreme Court Strikes Down Public-Sector Union Agency Fees

APPLIES TO

All Public Employers with Unions

EFFECTIVE

June 27, 2018

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The U.S. Supreme Court recently stated that public-sector employees must affirmatively agree to pay union dues; unions may no longer take agency fees from nonconsenting public employees. In Janus v. American Federation of State, County and Municipal Employees, Mark Janus, a public employee in Illinois, refused to join his union because he opposed its positions. However, Illinois state law required non-members to pay an “agency fee” (i.e., a percentage of the full union dues) to cover union expenditures attributable to the union’s collective bargaining activities. Janus sued.

The Court stated that the “First Amendment is violated when money is taken from nonconsenting employees for a public-sector union.” Specifically, requiring public employees to pay agency fees compels them to “subsidize free speech on matters of substantial public concern.” “[N]either an agency fee nor any other form of payment to a public-sector union may be deducted from an employee, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay.” Public-sector unions are now required to obtain affirmative consent from employees to participate in a union, not just provide a mere opt-out option.

Many state public-sector union laws are predicated on a 40-year-old case that permitted imposing such agency fees. Affected states will now be forced to review how they will effectuate union participation without violating Janus. Employers are likely to see a response to this case from state legislatures going forward.

Action Items

  1. Public-sector employers must immediately stop automatic deduction of agency fees from employee wages for employees who have not affirmatively agreed to such deduction
  2. Public-sector employers are recommended to implement authorization verification processes before deducting agency fees from applicable employees.
  3. Public-sector employers are recommended to review this recent ruling with legal counsel for further implications.
  4. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2018 ManagEase

Arizona: Increased Employer Responsibilities for Data Breaches, Protections for Employers Hiring Ex-Convicts

APPLIES TO

All Employers with AZ Employees

EFFECTIVE

August 3, 2018

QUESTIONS?

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(888) 378-2456

Two new bills, HB 2311 and 2154, are going into effect on August 3, 2018.  These bills increase an employer’s public notice responsibilities in the event of a data breach, and also increases limited liability protections for employers who hire employees or independent contractors who were previously convicted of criminal offenses.

HB 2154: Data Security Breaches

This law seeks to improve consumer data security in two ways.  First, the law expands the definition of protected personal information.  In addition to information such as Social Security numbers, bank account or credit/debit card numbers, medical information, or biometric data, the definition of “personal information” will also include e-mail addresses and passwords or security questions/answers that, when combined, grant access to online accounts.

Second, the new law increases an employer’s notice requirements. Once an employer is made aware of a “security incident,” the employer is required to conduct an investigation to determine if a security breach has occurred. If so, all affected individuals must be notified within 45 days of the discovery.  The notice must be made by e-mail, live telephone call, or a substitute notice that includes the following information:

  • Approximate breach date;
  • Information exposed by the breach;
  • Toll-free numbers of the three largest nationwide consumer reporting agencies; and
  • Numbers/addresses for the Federal Trade Commission and agencies that assist consumers with identity theft.

If the breach affects over 1,000 individuals, the employer is also required to notify the three largest nationwide consumer reporting agencies and the Arizona state attorney general.

HB 2311: Hiring Ex-Criminal Offenders

HB 2311 aims to improve fair-chance hiring and job opportunities for non-violent offenders, while providing employers limited protections from lawsuits associated with negligent hiring claims. In the event of a negligent hiring claim, the new law bars evidence of an employee’s or independent contractor’s “criminal offenses” prior to the date of hire with the employer.  “Criminal offense” is defined as “any criminal offense except violent offenses and sexual offenses.”

Employers will still need to exercise caution and carefully consider both the candidate and the role the candidate is being hired for.  Lawsuits alleging negligent supervision, or lawsuits where the employee’s prior conviction is directly related to the nature of their work and the conduct that led to the legal action, are not precluded. For example, in a claim related to the misuse of money by an employee/contractor hired to do accounting work where the employee/contractor had previous convictions associated with fraud prior to being hired, the employer may not be precluded from liability.

Action Items

  1. Review internal policies and procedures for secure data management.
  2. Review hiring policies and train hiring staff on hiring individuals with a criminal history.
  3. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2018 ManagEase

California: Ignorance of the Law Doesn’t Excuse Employers from Waiting Time Penalties

APPLIES TO

All Employers with CA Employees

EFFECTIVE

May 24, 2018

QUESTIONS?

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(888) 378-2456

The California Court of Appeal’s recent decision in Diaz v. Grill Concepts Services, Inc. confirms just how important it is to stay on top of local and federal employment regulations.  Substantial penalties were assessed against Grill Concepts Services, Inc. because the company was unaware of a local wage change and accidentally shortchanged its workers’ pay.  The court affirmed that a lack of malicious intent did not protect the employer from allegations of a “willful” failure to pay.

In Diaz, the employer operated a restaurant near the LAX airport, located within a unique zone that amended its living wage formula in 2010.  Unaware of the change in formula, the restaurant failed to adjust employees’ wages and shortchanged the workers, who filed a class action demanding unpaid wages and “waiting time” penalties.  Under California Labor Code, “waiting time” penalties in the form of up to 30 days’ wages may be assessed against employers that willfully fail to pay any part of an exiting employee’s wages.

The court stated that where the law is clear regarding an employer’s responsibilities, a “willful failure” occurs when the employer voluntarily acts in a manner that falls short of its legal obligations.  Because of the restaurant’s lack of due diligence in following the 2010 living wage amendment, and because the language of the relevant law was clear regarding the employer’s responsibility, the court stated that the restaurant’s ignorance of the law qualified as a willful failure.

The court’s determination in Diaz serves as a warning and a reminder to all employers of the importance of diligent follow-up and compliance with both local and federal regulations.

Action Items

  1. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2018 ManagEase

Maryland: New Sexual Harassment Reporting Requirement and Bar To Waiving Rights

APPLIES TO

Certain Employers with MD Employees

EFFECTIVE

October 1, 2018, July 1, 2020, and July 1, 2022

QUESTIONS?

Contact HR On-Call

(888) 378-2456

Effective October 1, 2018, the Disclosing Sexual Harassment In The Workplace Act (“Act”) (SB 1010) prohibits all employers from entering into an agreement with an employee that waives the employee’s substantive or procedural right to future claims of sexual harassment or retaliation therefor. Employers also cannot retaliate against employees who refuse to enter into such agreements.

The Act also requires employers with 50 or more Maryland employees to report (1) the number of sexual harassment claims settled, (2) the number of times the employer has paid settlements for sexual harassment allegations against the same employee within the last 10 years of employment, and (3) the number of settlements for sexual harassment claims that included a mutual confidentiality provision. The information must be submitted electronically and includes a place for an employer to describe discipline implemented against employees who have been the subject of sexual harassment allegations. Reporting must occur before July 1, 2020 and again before July 1, 2022.

The Maryland Commission on Civil Rights will publish aggregate data received by employers, and will make individual employer reporting available to the public upon request.

Action Items

  1. Have employment agreements, arbitration agreements, and severance agreements reviewed by legal counsel for updates consistent with the new Act.
  2. Track sexual harassment claims and results for required reporting beginning on July 1, 2020.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2018 ManagEase

Massachusetts: Updates to Minimum Wage, Premium Pay, and Paid Family and Medical Leave

APPLIES TO

all Employers with MA Employees

EFFECTIVE

January 1, 2019 and January 1, 2021

QUESTIONS?

Contact HR On-Call

(888) 378-2456

Governor Baker recently signed H.4640 into law. The “grand bargain” increases minimum wage, eliminates premium pay, and implements paid Family and Medical Leave.

Minimum Wage and Premium Pay Updates

By 2023, minimum wage will increase to $15.00 per hour and to $6.75 per hour for tipped employees. Minimum wage will next increase to $12.00 per hour on January 1, 2019. Also by 2023, premium pay will be eliminated. Starting January 1, 2019, employers’ requirement to pay retail employees time-and-a-half for working Sundays and certain holidays will decrease to 1.4 times the regular rate, and subsequently decreasing each year until it is eliminated entirely.

Paid Family and Medical Leave

Beginning January 1, 2021, employers will be required to provide current employees, employees who have been separated for 26 weeks or less, and self-employed independent contractors (where the independent contractors comprise more than 50 percent of the workforce), with 12 weeks of paid family leave and 20 weeks for paid medical leave (with a maximum combined benefit of 26 weeks per year) (1) to provide care for the employee or a family member due to their or their family member’s serious health condition; (2) to bond with a newborn, foster, or adopted child within the first 12 months of birth, placement, or adoption; (3) for needs arising out of the fact that a family member is on active duty or has been notified of an impending call to active duty in the u.s. armed forces; or (4) to care for a family member who is a covered service member.

Employees are required to provide 30 days’ advance notice of the need for leave, or as soon as practicable if the delay in notice is beyond the employee’s control. If the employer does not provide the required new hire notice (discussed below), the employee’s notice requirement is waived.

Once leave commences, payment of benefits is subject to a one-week delay during which time employees may use other paid leave, such as paid sick leave or vacation. However, employers may not require employees to exhaust other forms of paid time off prior to or in connection with taking paid family and medical leave. Leave may be taken intermittently, except for child bonding unless otherwise agreed to by the employer; this restriction does not apply to former employees or self-employed independent contractors. Leave runs concurrently with the federal Family and Medical Leave Act and the Massachusetts Parental Leave Act.

Employees who take leave must be returned to their same or equivalent position upon return, and employers must maintain employee benefits while on leave. Employers must post a required notice in English and any other language primarily spoken by 5 or more employees, and notify employees of their rights within 30 days of hire. Employers are required to obtain a signed acknowledgment of receipt of the notice from all employees, or a signed statement of refusal to sign the acknowledgment. Employers must also provide a required notice to self-employed independent contractors at the time they are contracted, describing how they may obtain paid family and medical leave benefits.

Employers are subject to strict anti-retaliation provisions for employees who use paid family and medical leave or file or participate in a claim based on such leave. Specifically, there is a rebuttable presumption of retaliation if any adverse action is taken against an employee’s terms and conditions of employment during leave or within six months of the employee’s return from leave. To rebut the presumption, an employer must be able to show with “clear and convincing” evidence that it would have taken the same action in the absence of the employee taking leave.

Beginning July 1, 2019, employers with 25 or more employees will begin paying 0.63% of each employee’s wages into a state trust fund for employer contributions.  Employers are required to pay 60% of the contribution for family leave, and employees must contribute 40%; however, employers are not required to pay any portion of the contribution for medical leave and may deduct the full amount from employees’ wages. Employers with less than 25 employees are exempt from paying the employer portion. Contributions are capped at the amount set by the Social Security Administration for contributions to the Old-Age, Survivors and Disability Insurance programs (currently $128,400). Employers have the option to provide equivalent benefits through an approved private plan or self-insurance.

Action Items

  1. Prepare to update payroll processes for increased minimum wage and decreased premium pay, and for paid family and medical leave deductions.
  2. Have employee handbooks updated to reflect paid family and medical leave requirements.
  3. Post required paid family and medical leave notice once available, and update minimum wage posters January 1, 2019.
  4. Implement required new hire notice and acknowledgment, and independent contractor notice.
  5. Review any disciplinary measures, taken during leave or in the six months following paid family and medical leave, with legal counsel to minimize retaliation claims.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2018 ManagEase

Minnesota: Duluth Becomes Third City to Enact Paid Sick and Safe Time Law

APPLIES TO

All Employers with 5 or more Duluth, MN Employees

EFFECTIVE

January 1, 2020

QUESTIONS?

Contact HR On-Call

(888) 378-2456

Duluth recently joined St. Paul and Minneapolis in enacting a local paid sick and safe time law.  While the new paid sick leave (“PSL”) ordinance mirrors St. Paul and Minneapolis in most provisions, it also deviates from these cities in some areas–most notably in the accrual rate, cap, and carryover of PSL hours.  The ordinance, adopted on May 29, 2018, goes into effect on January 1, 2020, providing employers ample time to prepare.

Key provisions of the new PSL law include:

  • Effective Date: January 1, 2020
  • Eligibility:
    • Covered Employee: Employees who (1) work in Duluth for more than 50% of their working time within a 12-month period or (2) are based in Duluth, work primarily in Duluth, or do not spend more than 50% of their working time within a 12-month period working somewhere else.
    • Employer: All private employers of five or more employees. Note that employers need not be based in Duluth to meet coverage requirements.
    • Exemptions: Independent contractors, student interns, seasonal employees, or individuals otherwise covered by the Railroad Unemployment Insurance Act.
  • Usage: Employees can begin using PSL after 90 days of employment, and may use up to 40 hours of PSL per year.
  • Leave Amounts
    • Accrual Rate: One hour per 50 hours worked.
    • Cap: Employees must be allowed to accrue up to 64 hours pf PSL per year.
    • Carryover: Employees may carry over up to 40 hours of PSL each year, unless PSL is frontloaded.
    • Frontload: Employers have the option to frontload 40 PSL hours per year.  Employers may frontload PSL following an initial 90 days of employment in an employee’s first year, but must frontload at the beginning of each subsequent year.
  • Recordkeeping and Notice Requirements:
    • General Notice: Employers must notify employees that they are entitled to PSL, the amount of PSL, and the terms of use under the law. However, there is no workplace posting requirement.
    • Anti-Retaliation Notice: Employees must be informed that retaliation is prohibited, and that employees may file a written complaint of retaliation with the City clerk.
    • Recordkeeping: Employers must maintain records documenting hours worked and accrued/used leave for a period of three years.
  • Employee Notice: Employees may request PSL as needed. PSL requests should include the expected duration of the absence, if possible. Employers can request reasonable documentation that PSL was used for an applicable purpose after three consecutive days of absence.  Further, employers may require employees to follow their standard procedures for absences or leave requests so long as the procedures do not infringe on an employee’s PSL rights.

Action Items

  1. Visit the City of Duluth’s dedicated page on Earned Sick and Safe Time.
  2. Prepare for implementation of the new PSL requirements, including having employee handbooks, policies, and payroll practices updated.
  3. Have managers trained on PSL use and notice requirements.
  4. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2018 ManagEase

New York, NY: Employee Sexual Harassment Protections and Employer Obligations Expanded

APPLIES TO

Select Private Employers with New York, NY Employees

EFFECTIVE

May 9, 2018, September 6, 2018, and April 1, 2019

QUESTIONS?

Contact HR On-Call

(888) 378-2456

On May 9, 2018, Mayor Bill de Blasio signed multiple bills into law providing greater employee protections against sexual harassment, and expanding employer obligations, as follows.

  • Effective May 9, 2018, Int. 657-A applied protections for gender-based harassment claims to all employees, regardless of employer size, where it previously only applied to employers with four or more employees.
  • Effective May 9, 2018, Int. 663-A extends the statute of limitations for filing an administrative claim with the New York City Commission on Human Rights (NYCCHR) for gender-based harassment from one to three years after the date the alleged harassing conduct occurred.
  • Effective September 6, 2018, Int. 630-A requires all employers to post an anti-sexual harassment rights and responsibilities poster in common areas employees gather, in both English and Spanish (other languages will be made available). Employers must also provide new hires with an information sheet on sexual harassment, to be made available by the NYCCHR. An equivalent of the information sheet may be included in an employee handbook.
  • Effective April 1, 2019, Int. 632-A requires employers with 15 or more employees to conduct annual sexual harassment training for all employees, supervisors, and interns who work more than 80 hours in a calendar year in New York City. The training must be provided after the first 90 days of hire. Employees who received training at a prior employer within the required training cycle are not required to receive training again at a new employer until the next cycle. Although the training may be given either in-person or online, the training must be interactive. Training content must comply with the similar, recently enacted New York state law, as well as the additional requirements set forth in Int. 632-A. Employers must keep records of employee trainings for at least three years, including a signed employee acknowledgment.

Action Items

  1. Post the anti-sexual harassment rights and responsibilities posters once they are made available by the NYCCHR.
  2. Implement procedures for tracking and providing sexual harassment training in advance of April 1, 2019.
  3. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2018 ManagEase

Oklahoma: Voters Legalize Medical Marijuana Use

APPLIES TO

All Employers with OK Employees

EFFECTIVE

July 26, 2018

QUESTIONS?

Contact HR On-Call

(888) 378-2456

Oklahoma voters recently approved a ballot measure to legalize medical marijuana use, making the state the 30th in the nation to permit such use.  Unlike some other states, the Oklahoma measure allows doctors to prescribe medical marijuana for any medical condition, rather than restricting its use to treating specific conditions.

Under the new law, patients who are legally prescribed medical marijuana will receive state ID cards and are permitted to carry up to 3 ounces of cannabis in public.  Additional amounts of cannabis, as well as up to six cannabis plants, may be stored in the patient’s home.

The ballot measure as drafted also contains anti-discrimination protections for medical marijuana license holders.  Employers are generally prohibited from discriminating against license holders when making hiring or termination decisions, or when imposing any term or condition of employment that penalizes an individual solely based on their status as a medical marijuana license holder or results of a drug test positive for marijuana or its components, unless failure to do so would cause the employer to lose a monetary or licensing-related benefit under federal law.  Additionally, employers are still free to take action against employees who use or possess marijuana on the employer’s premises or during hours of employment.

Action Items

  1. Review the text of the ballot measure here.
  2. Have substance abuse policies and drug testing protocols updated for compliance.
  3. Have managers trained on new permissions.
  4. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2018 ManagEase

South Carolina: Employers Must Provide Pregnancy Accommodations

APPLIES TO

All Employers with 15 or more SC Employees

EFFECTIVE

May 17, 2018 and September 14, 2018

QUESTIONS?

Contact HR On-Call

(888) 378-2456

The South Carolina Pregnancy Accommodations Act (the “Act”), originally signed on May 17, 2018, imposes new accommodation requirements on employers of at least 15 or more employees.  Covered employers will be required to provide accommodations for needs related to pregnancy, childbirth, or other related medical conditions, with additional notice and posting requirements.  Although most of the provisions of the Act were effective immediately at time of signing, the effective date of the notice requirement was designated as September 14, 2018.

Reasonable accommodations.  Unless the accommodation imposes an undue hardship on business operations, employers are required to provide reasonable accommodations to employees for pregnancy-related conditions.  The Act provides examples of reasonable accommodations, including, but not limited to:

  • Providing a private place other than a bathroom stall for the purpose of expressing breast milk;
  • Providing seating, or allowing the employee to sit more frequently if job duties ordinarily require the employee to stand;
  • Providing more frequent or longer break periods;
  • Temporarily transferring the employee to a less strenuous position;
  • Restructuring or modifying job responsibilities to light duty;
  • Modifying work schedules.

The Act does not require employers to create new positions, compensate employees for more frequent or longer break periods, or hire new employees that the employer would not have otherwise hired.

Unlawful employment practices.  Employers are not permitted to take adverse action against an employee who requests or uses a reasonable accommodation related to pregnancy, childbirth or other related medical conditions, nor can an employer require an employee to take leave if a reasonable accommodation can be provided instead.  Finally, employers cannot require an employee or applicant to take an accommodation that the individual does not wish to accept, where the individual does not have a known limitation as a result of pregnancy or the accommodation is not necessary to perform the individual’s essential job duties.

New notice requirements.  Employers are required to provide written notice of an employee/applicant’s rights under the Act.  Such written notice must be distributed to all existing employees by September 14, 2018, and to all new employees at time of hire. The notice must also be conspicuously posted at the worksite in an area accessible to employees.  The South Carolina Human Affairs Commission is expected to provide a sample notice for employer use.

Action Items

  1. Look for the sample notice provided by the South Carolina Human Affairs Commission, and post/distribute to your workforce.
  2. Have employee handbooks and policy documents updated to include reference to employees’ right to a reasonable accommodation for pregnancy-related conditions.
  3. Have management trained on how to handle requests for accommodation.
  4. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2018 ManagEase

South Carolina: New Expungement Law Allows Applicants to Remove Minor Criminal Convictions

APPLIES TO

All Employers with SC Employees

EFFECTIVE

December 27, 2018

QUESTIONS?

Contact HR On-Call

(888) 378-2456

While South Carolina does not have its own statewide “ban-the-box” law, its legislature recently overrode the Governor’s veto and passed a new bill to expand the current expungement law.  This bill will allow individuals to more easily remove minor criminal convictions from their records.

Currently, individuals can expunge first-offense, low-level crimes carrying a sentence of 30 days or less after a period of good behavior.  The new law removes the first-offense requirement and permits multiple convictions arising from the same sentencing if they are “closely connected.”  In addition, first-offense simple drug possession and distribution crimes may be expunged.  Significantly, the expanded scope of the expungement law can be applied to offenses committed prior to the law’s passage.

Additionally, employers who do become aware of an expunged offense may not take adverse employment action against the applicant/employee on the basis of that knowledge.  Employers should refrain from seeking information about expunged offenses during the hiring process.

With the new law, employers will not be able to obtain information on applicants’ expunged offenses.  However, the law provides immunity to employers for administrative claims or lawsuits related to expunged convictions, offering a potential level of protection against negligent hiring, retention, or supervision claims.

Action Items

  1. Have hiring managers trained on the expanded scope of expungement regulations.
  2. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2018 ManagEase