August Updates

Coming Soon: Visa Denial or Expiration Will Mean Deportation for Foreign Nationals

On June 28, 2018, the United States Citizenship and Immigration Services (USCIS) recently issued a Policy Memorandum providing guidance on Executive Order 13768, which prioritizes removing foreign nationals on the basis of public safety. Employers must be aware that, under the Policy Memorandum, any visa denial or expiration of a visa (e.g., H-1B, F-1, etc.) will cause the employee to be put into formal removal proceedings. Additionally, if the employee returns to their country of origin and does not participate in the removal proceedings, they may be limited in applying for future visas. As of July 30, 2018, USCIS posted a notice that it would delay implementation of the Policy Memorandum until operational guidance is issued. Employers should start closely tracking visa expirations and renewals to ensure there is no disruption in employment of foreign nationals.

New Guidance for Determining Whether Registries are Employers of Nurses and Caregivers

Effective July 13, 2018, the U.S. Department of Labor (DOL) published field guidance for their Wage and Hour Division (WHD) field staff to clarify whether home care, nurse, or caregiver registries are employers under the Fair Labor Standards Act (FLSA). Registries typically work to match people needing caregiving services with caregivers able to provide the service. According to the guidance, a registry that “simply facilitates matches between clients and caregivers” are not considered employers under the FLSA. This remains true in accordance with a long-standing WHD position even if the registry offers other services such as payroll. On the other hand, registries that control the terms and conditions of the caregiver’s employment activities may still fall subject to the employer relationship as defined under the FLSA. WHD will review the totality of the circumstances when evaluating if an employer relationship exists, as ultimately no single factor will determine the relationship classification.

Ninth Circuit: No Meal Period Violations if Employees Volunteer to Stay Onsite for Discounted Meals

In Rodriguez v. Taco Bell Corp, a class of employees sued Taco Bell for its practice of providing employees discounted meals, so long as employees remained onsite to eat the meal. Because they had to remain on the restaurant premises to eat the discounted meal, the employees argued that this counted as time they were subject to Taco Bell’s “control” and must therefore be compensated. The Ninth Circuit Court disagreed, stating that purchasing a discounted meal was entirely voluntary and optional.  Employees who did not wish to stay onsite during meal periods were not required to purchase the meal and could leave at any time.

California: Court States Neutral 15-Minute Rounding Policies Lawful

On June 25, 2018, the California Court of Appeal in AHMC Healthcare, Inc. v. Superior Court of Los Angeles County stated that rounding to one-quarter of an hour complies with California law even “if the policy occasionally shortchanges some employees.” This decision is in alignment with previous court decisions confirming that rounding rules to the nearest five minutes or one-tenth of an hour are equally acceptable. This remains the case as long as the rounding practice is neutral on its face and in practice, and it does not favor the employer or the employee.

California: New Law Protects Members of the Armed Forces While in Uniform

Effective July 16, 2018, Governor Brown signed SB 1500, which adds new protections to members of the Armed Forces and to members of the Federal Reserve portion of the Armed Forces. Specifically, businesses may not deny entrance to a member of the Armed Forces due to wearing their military uniform. Additional protections were also provided to members of the Federal Reserve components of the Armed Forces and State Military Reserve, shielding them from discrimination, including discharge of employment due to membership in the Armed Forces, training deployments, or while ordered to military duty. Employers should have discrimination policies updated to reflect the new requirement.

California: New Safety Information for Housekeeping Employees

New health regulations for housekeepers went into effect on July 1, 2018, requiring employers in the hotel and hospitality industries to develop a Musculoskeletal Injury Prevention Program (“MIPP”) containing certain key elements.  Cal/OSHA has now produced a Safety and Health Fact Sheet to help employers comply with the new standard.  Employers are also encouraged to display the Preventing Musculoskeletal Injuries in Housekeepers poster, although this is not a requirement.

Delaware: New Minimum Wage Increases and Exceptions

On October 1, 2018, Delaware minimum wage will increase to $8.75 per hour, and will increase again on October 1, 2019 to $9.25. Additionally, as of January 1, 2019, HB 483 allows employers to pay (1) adult employees within their first 90 days of employment, and (2) minors, $0.50 less than the prescribed minimum wage. Employers are recommended to update payroll procedures based on the new minimum wage requirements.

New York, NY: New Mandatory Posting and Guidance Issued for Fair Workweek Law

The New York City Department of Consumer Affairs (DCA) Office of Labor Policy & Standards recently issued a mandatory notice of employee rights, Frequently Asked Questions, and an overview of the temporary schedule change provisions of the Fair Workweek Law, which became effective July 18, 2018. Employers should immediately post the required notice in a conspicuous place frequented by employees, and review the recently released materials for further information on the new law.

Pennsylvania: Minimum Wage for State Employees Increases to $12/Hour

A new executive order recently raised the minimum wage for Pennsylvania state employees and contractors to $12 per hour, with increases scheduled each year until a cap of $15 by 2024 is reached. Thereafter, cost-of-living adjustments based on the Consumer Price Index will determine if further wage increases are needed. The first minimum wage increase went into effect on July 1, 2018, and applies to jobs under the governor’s jurisdiction, such as state employees, state contractors, and employees who perform at least 20% of their work providing ancillary services to the state government.

South Carolina: Required Pregnancy Accommodations Act Poster is Now Available

The South Carolina Human Affairs Commission recently issued an Employment Discrimination poster to include pregnancy protections required by the Pregnancy Accommodations Act. The poster is also available in Spanish. The poster is required to be displayed by employers with 15 or more South Carolina employees and distributed to existing employees by September 14, 2018, and must be provided to new hire employees going forward.

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