California: De Minimis Time Just Got Smaller – A New Wage and Hour Challenge

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All Employers with CA Employees

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July 26, 2018

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Employers should take immediate action!  Recently, in Troester v. Starbucks, the California Supreme Court stated that 4-10 minutes of time worked on a regular basis after clocking out must be compensated. Historically, federal law and the California Division of Labor Standards Enforcement stated that employers do not have to pay employees for small amounts of time irregularly worked off-the-clock, where the administrative burden in recording such time is impractical or unreasonable. This de minimis time covers brief pre-shift or post-shift tasks, such as when turning on a computer or locking up. However, California employers may not be able to rely on the de minimis doctrine any longer.

Third Circuit: Employee’s Refusal to Report Sexual Harassment Does Not Bar Claims Against Employer

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All Employers with DE, NJ, and PA Employees

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July 3, 2018

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In Minarsky v. Susquehanna Cty., the Third Circuit Court of Appeal recently rejected the notion that an employee’s refusal to report sexual harassment automatically invalidated the employee’s harassment claim against the employer. There, the employee’s supervisor made unwanted sexual advances towards her and other women for years.  The supervisor was reprimanded for incidents involving other women, but no further action was taken against him.  In this case, the employee did not report her supervisor’s conduct for fear of losing her job.  The County later terminated the supervisor after discovering the persistent harassment of the employee. Subsequently, the employee sued.

Sixth Circuit: Full-Time Work is Not an Essential Job Function Under the ADA

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Employers with KY, MI, OH, and TN Employees

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July 17, 2018

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In Hostettler v. College of Wooster, the Sixth Circuit Court of Appeal recently determined that an employer could not make full-time work an essential function of a job so as to justify failing to accommodate an employee under the Americans with Disabilities Act (ADA). There, the employee suffered from post-partum depression and, based on her physician’s instruction, obtained approval to work part-time. However, her supervisor felt that the employee’s part-time work schedule burdened others in the department. When the employee submitted an updated medical certification requiring continued part-time employment, the supervisor terminated her based on her inability to return full-time.

Ninth Circuit: Fair Credit Reporting Act Pre-Adverse Action Notice Is a Procedural Requirement and Not an Actionable Right

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Employers with AK, AZ, CA, HI, ID, MT, NV, OR, WA, Guam, and Northern Mariana Islands Employees

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July 13, 2018

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In Dutta v. State Farm, the Ninth Circuit Court of Appeal stated that an employee did not have standing to sue a prospective employer for failing to comply with the pre-adverse action notice requirements under the Fair Credit Reporting Act (FCRA). The FCRA requires employers to give applicants notice before they take any adverse employment action based on the results of a consumer report (e.g., credit report). This requirement is meant to give the applicant an opportunity to contest or correct information in the credit report. After providing such pre-adverse action notice and certain timing requirements are met, an employer may then take the adverse action if it still intends to do so.

Eleventh Circuit: Valet Uniforms May Be “Materials” Requiring FLSA Coverage of Employees

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Employers with AL, FL, and GA Employees

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June 29, 2018

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In Asalde v. First Class Parking Sys. LLC, the Eleventh Circuit Court of Appeal stated that a jury may determine whether valet uniforms meet the “materials” definition for “enterprise coverage” which would allow them the protections of the Fair Labor Standards Act (FLSA). The FLSA applies, in part, to employers who have “employees handling, selling, or otherwise working on goods or materials that have been moved in or produced for [interstate or international] commerce by any person” and have an annual volume of business of at least $500,000. (Emphasis added.)

California: Challenges to Protections from Immigration Enforcement Target Status as a “Sanctuary State”

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All Employers with CA Employees

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July 4, 2018

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California’s Immigrant Worker Protection Act (AB 450) (the “Act”) went into effect as of January 1st this year. The Act restricted employer cooperation with federal immigration enforcement agencies beyond what was required by federal law. However, a federal district judge recently blocked the state from enforcing some of the statutory restrictions against private employers. Specifically, employers cannot be prosecuted or fined for:

California: New Defamation Protections for Harassment Victims and Employers

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All Employers with CA Employees

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January 1, 2019

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Governor Brown recently signed AB 2770 into law allowing (1) current and former employers to inform prospective employers they would not rehire the employee based on the employer’s determination that the former employee engaged in sexual harassment, and (2) employees to report credible complaints of sexual harassment to current employers. By allowing such disclosures, alleged harassers are prohibited from suing sexual harassment victims and employers for defamation.

Hawaii: Prior Salary History Inquiries Banned as of January 1, 2019

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All Employers with HI Employees

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January 1, 2019

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Senate Bill 2351 prevents employers with at least one employee working in Hawaii from making prior salary history inquiries, except under very limited circumstances.  Like most other states implementing such laws, employers must be careful not to ask for, search for, or rely upon prior salary history when setting compensation rates for a new position.

New York: Appellate Court Gives Gig Economy Business a Victory in Fight Against Claims of Independent Contractor Misclassification

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Employers with NY Employees

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June 22, 2018

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In another victory for a “gig” economy business, delivery service coordinator, Postmates, successfully defended itself against a claim of independent contractor misclassification. In Matter of Vega, New York’s Third Department Appellate Court stated that a courier working in delivery services for Postmates’ food delivery service was correctly classified as an independent contractor for unemployment insurance purposes.

Wisconsin: Supreme Court Ends Practice of Deferring to State Agency Interpretations of Law

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All Employers with WI Employees

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June 26, 2018

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In Tetra Tech EC, Inc. v. DOR, the Wisconsin Supreme Court ended a longstanding practice of deferring to state administrative agencies’ interpretations of the laws the agencies enforce. Previously, Wisconsin state agencies were given “great weight deference” once certain conditions were met, preventing courts from adopting different interpretations of the law, even if the alternative interpretation was more “reasonable” than the interpretation enforced by the state agency.