NLRB Weighs in Again on Mandatory Arbitration

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All Employers subject to NLRA

EFFECTIVE

March 18, 2021

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In Dish Network, LLC, the National Labor Relations Board (NLRB) stated that a mandatory arbitration agreement violated the National Labor Relations Act (NLRA) where it required all employment disputes be subject to arbitration. Specifically, by making a generalization of all disputes, the agreement implicitly restricted employee access to the NLRB. The NLRB has historically identified these types of agreements as falling under Category 3 (prohibited) of the Boeing rules.

The NLRB also approved of language in the arbitration agreement that keeps arbitration proceedings, hearings, discovery, and awards confidential. However, it stated that requiring settlements of any arbitrated disputes to be confidential falls under Boeing Category 3. Specifically, settlements are separate from arbitration proceedings, and restricting settlement terms in this context could restrict NLRA rights to discuss employment terms and conditions or seek NLRA remedies from the NLRB. The NLRB indicated that a savings clause preserving NLRA rights could ameliorate this issue. Also, there is nothing that would prohibit parties in the settlement process itself to agree to confidentiality terms at that time.

Employers should continue to scrutinize their arbitration agreements to ensure compliance with federal and state laws. Similar to employee policies, including language that maintains NLRA rights can help avoid some of the pitfalls at issue in this ruling.

Action Items

  1. Have arbitration agreements reviewed by legal counsel.
  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.

© 2021 ManagEase

Fifth Circuit: FLSA Preempts State Tort Claims

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All Employers with LA, MI, TX Employees

EFFECTIVE

March 9, 2021

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In Aldridge v. Mississippi Dept. of Corrections, the Fifth Circuit Court of Appeal stated that employees must pursue their claims under the Fair Labor Standards Act (FLSA) rather than state tort law (e.g., negligence) where the state does not independently provide for minimum wage or overtime compensation requirements. Specifically, FLSA requirements cannot be circumvented by state laws, because they conflict with executing the “purposes and objectives of Congress.” The FLSA was designed to give specific minimum protections to individual workers “from substandard wages and oppressive working hours.”

There, employees claimed wage and hour violations under the FLSA, and negligence causes of action under state law for the FLSA violations. Mississippi does not have its own minimum wage and overtime laws, so the state claims were actually based on alleged violations of the federal claims. Under those circumstances, the state claims do not stand on their own and the court said that the state claims were preempted by the federal claims.

The court distinguished this idea by acknowledging that the FLSA requires employers to also comply with state or local wage and hour laws where they exist. The court’s position “only means that [employees] may not sue simultaneously under both state law and the FLSA for these violations if state law does not independently provide for such a cause of action.” The court also acknowledged that some state tort claims may stand if they are independent of the federal claims. Employers must take care to ensure compliance with both federal and state laws where they apply.

Action Items

  1. Review pending litigation with legal counsel in light of this ruling.
  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.

© 2021 ManagEase

California: Employers Allowed to Require Vaccines

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All Employers with CA Employees

EFFECTIVE

March 4, 2021

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The California Department of Fair Employment and Housing (DFEH) recently updated its COVID-19 Guidance page to address vaccine-related questions. The latest update, as of March 4, 2021, answers one of the biggest questions for many employers: can we require employees to get vaccinated?

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Illinois: New Criminal History Check Requirements for Employers

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All Employers with IL Employees

EFFECTIVE

March 23, 2021

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SB 1480 amends the Illinois Human Rights Act (IHRA) to impose additional requirements on employers who perform criminal history checks on employees. The new provisions require employers to follow an interactive adverse action procedure before making any employment decisions based on an individuals’ criminal history or conviction record.

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Illinois: New State EEO-1 Filing and Equal Pay Registration Requirements

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All Employers with 100+ IL Employees

EFFECTIVE

As Indicated

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SB 1480 requires Illinois employers who are required to complete the federal EEO-1 report, to provide similar information to the state who will publicly publish the information. Specifically, employers with 100 or more employees (or 50 or more employees with a government contract of $50,000 or more) are required to file the federal EEO-1 report. Those same employers will be required to report similar race, ethnicity, and gender data in a format that will be approved by the Secretary of State. Like California, Illinois employers will also be required to submit corresponding pay data. The new requirements will go into effect on or after January 1, 2023.

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New York: Paid Vaccination Leave Available Through 2022

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All Employers with NY Employees

EFFECTIVE

March 12, 2021

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On March 12, 2021, and effective immediately, Governor Cuomo signed a new bill requiring employers to provide up to “sufficient time off” for an employee to receive COVID-19 vaccination, up to a maximum of four hours per injection. If an employee must receive multiple injections for the vaccination, the employee is entitled to four hours of vaccine leave for each injection. This leave is only available for employees receiving their own COVID-19 vaccination.

The COVID-19 vaccination leave must be paid at the employee’s regular rate of pay and runs independently of any other leave bank an employee is entitled to (e.g., paid sick leave, vacation, etc.). COVID-19 vaccination leave is available until December 31, 2022.

Employers are prohibited from discriminating or retaliating against employees who take or request COVID-19 vaccination leave. Furthermore, while employers may not require employees to provide advance notice before utilizing leave, an employer may request proof of vaccination. The state also released an FAQ regarding vaccination leave, available here.

Action Items

  1. Read the text of the bill here.
  2. Have appropriate personnel trained on the new leave requirements.
  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.

© 2021 ManagEase

New York: New Recreational Marijuana Protections for Employees

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All Employers with NY Employees

EFFECTIVE

March 31, 2021

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(888) 378-2456

Effective immediately, the New York Marihuana [sic] Regulation and Taxation Act legalized the recreational use of marijuana in the state. Employers are prohibited from discriminating against employees based on the legal use or possession of marijuana while off duty and outside the workplace, subject to limited exceptions.

However, employers can still prohibit marijuana use or possession during work hours, while on work premises, and while using an employer’s equipment or property. This includes being impaired while working or driving for work. Impairment means when “the employee manifests specific articulable symptoms while working that decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position, or such specific articulable symptoms interfere with an employer’s obligation to provide a safe and healthy work place, free from recognized hazards, as required by state and federal occupational safety and health law.”

These new protections essentially prohibit employers from taking adverse action simply based on a positive marijuana drug screen without separate objective indication that an employee was actually impaired while working. These prohibitions do not apply where drug testing is required by law, or would cause an employer to violate federal law or lose federal contracts or funding.

Action Items

  1. Review the bill here.
  2. Have drug screen processes updated consistent with the new requirements.
  3. Have substance abuse policies updated.
  4. Have appropriate personnel trained on the new requirements, including recognizing marijuana impairment.
  5. 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.

© 2021 ManagEase

New York, NY: Ban-the-Box Protections Expanded

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All Employers with NYC Employees

EFFECTIVE

July 29, 2021

QUESTIONS?

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(888) 378-2456

The New York City Fair Chance Act (FCA) was recently expanded to provide additional protections to applicants and employees with respect to criminal background searches. Currently, the ban-the-box law prohibits criminal history inquiries prior to a conditional offer of employment. The FCA’s protections will now also apply to applicants and employees with pending arrests, and employees with criminal convictions.

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Oregon: Employees Protected in Seeking Legal Advice About Employment

APPLIES TO

All Employers with OR Employees

EFFECTIVE

March 3, 2021

QUESTIONS?

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(888) 378-2456

In Rohrer v. Oswego Cove, LLC, the Oregon Court of Appeal said that where alleged protected activity does not have an adequate statutory remedy under the state’s whistleblower law, an employee may bring a common-law wrongful discharge claim. There, an employee claimed harassment in the workplace. When no action was taken by the employer, the employee sought legal advice from an attorney about the alleged harassment. The employee claimed she was retaliated against because she was fired shortly after seeking legal advice.

The court distinguished between retaliation for reporting unlawful activity, which could be protected under the state’s whistleblower laws, and retaliation for seeking legal counsel, which has no specific statutory protection. Because the employee’s allegations centered on the latter rather than the former, the court allowed the employee’s claims to move forward.

Employers must take care in how they manage employee claims and review potential exposure before taking adverse action against an employee following employee claims.

Action Items

  1. Have appropriate personnel trained on managing employee claims.
  2. Update termination procedures to include review for potential exposure.
  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.

© 2021 ManagEase

Virginia: New Overtime Wage Rules this Summer!

APPLIES TO

All Employers with VA Employees

EFFECTIVE

July 1, 2021

QUESTIONS?

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(888) 378-2456

Beginning July 1, 2021, HB 2063, the Virginia Overtime Wage Act (VOWA), will create new state overtime wage requirements for employers that differ from the federal Fair Labor Standards Act (FLSA). Although the same basic federal regular rate calculation is adopted into the new state rules for hourly employees, there is a different regular rate calculation for non-exempt salaried employees. Specifically, their regular rate will be calculated as “one-fortieth of all wages paid for that workweek.” This new definition will create additional exposure for employees who are misclassified as overtime exempt, given that the 1.5x overtime rate (rather than a 0.5x rate) will be in addition to the wages already paid. Additionally, the new regular rate is based on a 40-hour workweek, rather than the total hours actually worked as is used under the FLSA.

The following is an example of a nonexempt, salaried employee wage calculation under the new rules:

  • $800 weekly salary / 40 hours = $20.00 per hour (regular rate)
  • $20 (regular rate) x 1.5 = $30 per hour (overtime rate)
  • 10 hrs. overtime x $30 per hour = $300
  • $800 weekly salary + $300 overtime = $1,100 gross weekly wages

Further, the statute of limitations for violations of the VOWA is three years, one year longer than the two-year statute of limitations under FLSA. Also, the potential damages have been expanded. Overtime wage violations are subject to double damages, including prejudgment interest, without the availability of a “good faith” defense. For “knowing” violations, employees may be able to recover treble damages.

Action Items

  1. Review HB 2063 here.
  2. Have overtime exempt classifications reviewed for compliance.
  3. Prepare to update payroll processes accordingly.
  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.

© 2021 ManagEase