April Updates

OFCCP: Corporate Scheduling Announcement List Published for Federal Contractors

The Office of Federal Contractor Compliance Programs (OFCCP) recently released its Corporate Scheduling Announcement List (CSAL). Previously, federal contractors received notices of audit via mail from the OFCCP; however, the OFCCP is now only posting the list of audits for 2019 without mailing advance notice to contractors. Applicable employers should review the list and consult with legal counsel to prepare for an audit.

VEVRAA Hiring Benchmark Lowered for Affirmative Action Plans

On March 27, 2019, the OFCCP announced that it lowered the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) hiring requirement from 6.4% to 5.9%, effective for plan years starting on or after March 31, 2019. Applicable employers should evaluate their plans accordingly.

Fifth Circuit: Independent Contractor Classification in Oilfield Industry Re-visited

In William Parrish, et al. v. Premier Directional Drilling, L.P., a group of independent contractors engaged as directional drillers brought an FLSA misclassification lawsuit against their employer, arguing that the workers were owed overtime. The Fifth Circuit Court of Appeals re-examined the five-factor classification test as applied to this unique position and industry, as well as the nuances of this employer-employee relationship.  The Fifth Court stated that while the employer had some control over the drillers’ working environment (the employer instructed the directional drillers on where and when to report and what equipment would be available onsite), the drillers were in charge of making calculations and other changes to the well plans in real time, and could freely reject assignments. Similarly, requiring the contractors to undergo safety and drug training was interpreted as a safety matter applicable to all workers engaged in the project, not necessarily proof of the employer’s control over the workers. Applicable employers should review independent contractor classifications with legal counsel for compliance in light of this ruling.

California: NEW Posting Requirement as of April 1, 2019

As of April 1, 2019, employers covered by the California Family Rights Act (CFRA) and the New Parent Leave Act (NPLA) are required to post a new notice recently approved by the Fair Employment and Housing Council’s Office of Administrative Law. The notice (DFEH-100-21) combines CFRA and NPLA components into one poster. Employers should display the new poster in common areas frequented by employees. Employers with 50 or more employees will need to replace their current version of the poster, and employers with 20 to 49 employees should begin displaying the poster. The new poster can be downloaded here. Posters in other languages can be found here. Be sure to retain old posters for at least three years as proof of compliance.

California: Required Employee Pamphlets Updated

The Employment Development Department (EDD) recently updated the California Paid Family Leave (DE 2511) and Disability Insurance Provisions (DE 2515) pamphlets that are required to be provided at the time of hire and in connection with a qualifying event. Employers can download the updated versions here.

California: Employers Are Liable for Wage and Hour Claims Without Accurate Time Records

In Furry v. East Bay Publishing, the California Court of Appeal stated that an employee’s vague recollection of hours worked was sufficient evidence to support a claim for damages when the employer failed to keep accurate time records of hours worked. There, an employee provided estimates of time worked based on his memory of time worked over the years, tasks he performed, and projects worked on. The burden then shifted to the employer to provide contrary evidence; however, it did not keep accurate records and could not show that the employee’s recollection was incorrect. Employers must take extra care to ensure that employee time worked is recorded and stored for statutory minimum periods.

Reminder: San Francisco 2018 Employer Reporting Deadline is April 30, 2019

Employers subject to San Francisco’s Health Care Security Ordinance and Fair Chance Ordinance must electronically file the 2018 Employer Annual Reporting form by April 30, 2019 to satisfy their reporting requirements.  Covered employers are subject to a $500 penalty per quarter for failure to submit the form.  Be sure to read the Instructions before completing the online Reporting form.

San Francisco, CA: Minimum Wage to Increase July 1, 2019

On July 1, 2019, minimum wage for employees working in San Francisco will increase to $15.59 based on the Consumer Price Index. Employers should adjust budgets and prepare payroll processes accordingly. An updated minimum wage poster can be downloaded here for display in common areas frequented by employees.

Massachusetts: State and Federal Overtime Exemptions are Not Identical

On March 15, 2019, in Arias-Villano v. Chang & Sons Enterprises, Inc., the Massachusetts Supreme Judicial Court noted that the agricultural exemption to the state Overtime Law, although modeled after the Fair Labor Standards Act (FLSA), was not identical and was construed more narrowly than the FLSA. Employers must take care to comply with both state and federal overtime exemption requirements to avoid wage and hour penalties.

Michigan: Paid Sick Leave FAQ’s and Poster Released

Michigan’s Paid Medical Leave Act went into effect March 29, 2019. Employers must begin displaying the required poster in a conspicuous place accessible to employees. Posters in varying languages can be downloaded here. The Department of Licensing and Regulatory Affairs also issued a FAQ for reference.

New York: 24-Hour Home Care Pay Decided by Court of Appeal

On March 26, 2019, the New York Court of Appeal finally weighed in on the New York Department of Labor’s (NY DOL) Wage Order guidance requiring home care aides to be paid for at least 13 hours of a 24-hour shift if the employee is allowed a sleep break of at least eight hours, and actually receives five hours of uninterrupted sleep and three hours of meal break time. Specifically, the court stated that the NY DOL’s interpretation of the Wage Order does not conflict with the Wage Order itself, and is not an irrational or unreasonable interpretation. Thus, employers must follow the NY DOL’s guidance. Applicable employers should review their pay practices for consistency.

Oklahoma: Medical Marijuana Accommodations Clarified

Governor Stitt recently signed the “Unity Bill” amending the state’s medical marijuana law, effective in August 2019. Specifically, employers will now be able to take medical marijuana use into consideration for “safety-sensitive” jobs, such as when declining to employ the person or taking other action. The Bill gives examples of what is considered a safety-sensitive job. Employers may nonetheless continue to prohibit the use, possession, and influence of marijuana on the employer’s premises or while working. Employers should have substance abuse policies and drug testing procedures reviewed for compliance with the new law.

South Carolina: Labs Liable to Workers for False Positive Drug Tests

On March 20, 2019, in Shaw v. Psychemedics Corp., the South Carolina Supreme Court stated that employer-contracted drug testing labs owe a duty of care to employees and can be liable for negligence for failure to properly and accurately perform drug tests and report the results. Employers are recommended to review drug testing procedures with their laboratory providers to avoid making employment decisions based on inaccurate test results.

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.

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