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August 10, 2021 |
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In Travers v. Federal Express Corp., the Third Circuit Court of Appeal said that the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) requires employers to pay employees for military leave if they also pay employees for other similar leaves. USERRA entitles employees to “other rights and benefits” afforded to similarly situated employees. Although “other rights and benefits” is defined as including “wages or salary for work performed,” the court stated that the definition is not restricted by the examples provided and pay for leave is not excluded. In fact, an “other” benefit could be almost anything, for example, health insurance, a bonus, or a gym membership.
There, the employee was a Navy reservist taking short-term military leave, but was not paid given that the employer’s policy was to provide unpaid military leave. The employer generally did not provide paid leave except for specific types of leave like paid sick leave and jury duty. Rather than focus on whether the types of leave were comparable, the court compared what benefit those on military leave versus non-military leave received. Moreover, the court rejected a comparison of the types of benefits provided given that USERRA did not make a specific distinction, rather referring to benefits “generally provided.”
Although USERRA does not in and of itself require paid leave, employers may need to pay for military leave if they provide other types of paid leave, such as for jury duty, sick leave, and other absences. Employers should review their leave policies with legal counsel for compliance.
Action Items
- Have leave policies reviewed with legal counsel for compliance.
- 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
Illinois: Different Statute of Limitations for Certain Biometric Privacy Act Provisions
/in HR AlertsAPPLIES TO
All Employers with IL Employees
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September 17, 2021
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In Tim v. Black Horse Motor Carriers, Inc., the Illinois First District Appellate Court stated that different statutes of limitation apply to different provisions of the statewide Biometric Information Privacy Act (BIPA).
Previously, the statewide catch-all five-year statute of limitations was applied to all provisions of BIPA. With Tim, the court stated that the five-year deadline applies to sections 15(a), 15(b), and 15(e) of BIPA. These sections require private employers to obtain consent before collection of biometric data and to develop a written policy and data retention schedule.
On the other hand, the court indicated that there is only a one-year statute of limitations for privacy claims involving publication under sections 15(c) and 15(d), which prohibit businesses in possession of biometric data from selling, trading, or disclosing such data to third parties without obtaining the individual’s prior consent.
Action Items
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: Model HERO Act Updates Face Covering and Social Distancing Requirements
/in HR AlertsAPPLIES TO
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September 23, 2021
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Earlier this year, New York state issued the NY HERO Act, which implemented new COVID-19 related safety requirements. On September 23, 2021, the state Department of Labor further updated the requirements for face coverings and social distancing as provided in its model plan.
The previous NY HERO Act model plan required all employees to wear face coverings and did not distinguish between vaccinated and unvaccinated employees. In the updated model plan, face coverings are recommended but no longer required for employees in workplaces where all individuals on the premises are vaccinated. It also removed references to face coverings in the paragraph regarding social distancing.
Additionally, the model plan removed specific references to when social distancing must be observed. Instead, it more generally refers to social distancing guidance as advised by the State Department of Health or the Centers for Disease Control and Prevention. However, the model plan must still include the health and safety controls employers will implement when distancing cannot be observed. Notably, COVID-19’s official designation as an “airborne infectious disease” under the HERO Act has been extended through October 31, 2021.
Action Items
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
October Updates
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Varies
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Florida: New Hire and Contractor Reporting Expanded
As of October 1, 2021, employers of all sizes are required to report new hires and rehires within 20 days of employment to the State Directory of New Hires, which provides information to the Florida Child Support Program. Previously, only employers of 250 or more employees were subject to reporting. SB 1532 removes the headcount requirement, and additionally requires employers to report independent contractors who are or will be paid more than $600 in a calendar year.
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OSHA Update Reflecting CDC COVID-19 Guidance
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August 13, 2021
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The Occupational Safety and Health Administration (OSHA) recently updated its COVID-19 guidance to mirror those put forth by the U.S. Centers for Disease Control (CDC). It also reorganized Appendix recommendations for certain manufacturing, food, and agricultural processing industries. Generally, the guidance puts forth 11 steps of multi-layered interventions to protect unvaccinated and otherwise at-risk workers and mitigate the spread of COVID-19. The steps are summarized as follows.
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Third Circuit: Military Service Leave Must Be Treated the Same as Other Leaves
/in HR AlertsAPPLIES TO
All Employers with DE, NJ, and PA Employees
EFFECTIVE
August 10, 2021
QUESTIONS?
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(888) 378-2456
In Travers v. Federal Express Corp., the Third Circuit Court of Appeal said that the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) requires employers to pay employees for military leave if they also pay employees for other similar leaves. USERRA entitles employees to “other rights and benefits” afforded to similarly situated employees. Although “other rights and benefits” is defined as including “wages or salary for work performed,” the court stated that the definition is not restricted by the examples provided and pay for leave is not excluded. In fact, an “other” benefit could be almost anything, for example, health insurance, a bonus, or a gym membership.
There, the employee was a Navy reservist taking short-term military leave, but was not paid given that the employer’s policy was to provide unpaid military leave. The employer generally did not provide paid leave except for specific types of leave like paid sick leave and jury duty. Rather than focus on whether the types of leave were comparable, the court compared what benefit those on military leave versus non-military leave received. Moreover, the court rejected a comparison of the types of benefits provided given that USERRA did not make a specific distinction, rather referring to benefits “generally provided.”
Although USERRA does not in and of itself require paid leave, employers may need to pay for military leave if they provide other types of paid leave, such as for jury duty, sick leave, and other absences. Employers should review their leave policies with legal counsel for compliance.
Action Items
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
IMPORTANT: California: Ban on Mandatory Arbitration Agreements Reinstated?
/in HR AlertsAPPLIES TO
All Employers with CA Employees
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September 15, 2021
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In 2020, AB 51 was set to prohibit employers from requiring mandatory arbitration agreements with employees as a condition of employment. Soon after enactment, a federal district court issued a preliminary injunction preventing AB 51 from going into effect, specifically for arbitration agreements subject to the Federal Arbitration Act (FAA). In Chamber of Commerce v. Bonta, the Ninth Circuit Court of Appeal recently vacated the preliminary injunction against AB 51.
As a longstanding rule, the FAA requires arbitration agreements to be treated the same as any other contract, and that valid consensual arbitration agreements should be enforced. The Ninth Circuit framed AB 51 as a pre-agreement condition that “takes place prior to the existence” of the agreement to ensure that the arbitration agreement is consensual. Because AB 51 specifically provides that it does not invalidate an arbitration agreement that is “otherwise enforceable” under the FAA, the court stated that AB 51 does not make executed mandatory arbitration agreements unenforceable.
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California: Potential Roadblock for Background Checks
/in HR AlertsAPPLIES TO
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May 26, 2021
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In All of Us or None v. Hamrick, the California Court of Appeal stated that the electronic court criminal records cannot be searchable by protected personal information. California Rules of Court, Rule 2.507(c) requires that courts exclude “date of birth” and “driver’s license number” from a court’s electronic court index. The court said that rule was violated by allowing users of the Riverside Superior Court’s public website to search the court’s electronic index using a date of birth and driver’s license number. Specifically, even though the public is providing the personally identifiable information to search the electronic court index, the public is able to verify that a particular person has a criminal record, thereby failing to exclude the protected information from the index. Moreover, the purpose of the rule is to protect the privacy of those involved in criminal proceedings.
This case is important given that background check companies rely on searching court indexes for criminal background checks. The federal Fair Credit Reporting Act (FCRA) and other similar laws prohibit background check companies from attributing criminal records to an individual based only on a name match. Rather, background check companies use other identifying information to make data matches, such as date of birth. Without access to this information in electronic court indexes, background check companies may receive incomplete data on an individual. Employers should consult with background check providers to verify current procedures and search results.
Action Items
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
Illinois: Equal Pay Certificate Requirements Amended
/in HR AlertsAPPLIES TO
Employers with IL Employees who file EEO-1 Reports
EFFECTIVE
June 25, 2021
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Earlier this year, Illinois passed SB 1480, a bill that amended the Illinois Equal Pay Act to require employers who currently file federal EEO-1 reports to also submit similar pay and demographic information to the state. Employers of 100 or more employees are required to obtain a pay registration certificate from the Illinois Department of Labor, with reporting to take place every two years.
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Illinois: Expanded Leave Protections for Victims of Violent Crimes
/in HR AlertsAPPLIES TO
All Employers with IL Employees
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August 20, 2021
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The Illinois Victim’s Economic Security and Safety Act (VESSA) has been amended to offer greater protections for victims of crime, effective August 20, 2021. VESSA provides up to 12 workweeks of job-protected leave during any 12-month period to address domestic, sexual, or gender violence. Key amendments include:
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Massachusetts: All Invoice “Service Charges” Must be Paid to Employees
/in HR AlertsAPPLIES TO
All Employers with Tipped MA Employees
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August 23, 2021
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In Hovagimian v. Concert Blue Hill, LLC, the Massachusetts Supreme Judicial Court stated that the Massachusetts Tips Act requires employers to pay service employees for any “service charge” listed on a customer invoice, even if the service charge is intended as an administrative fee. The Tips Act specifically refers to a “service charge or tip” that must be paid to service employees. Employers are permitted to charge customers with administrative fees but must label the charge as such to avoid confusion with a tip or service charge intended for service employees.
There, a banquet services contract specifically identified a gratuity charge and an overhead charge that was not provided to service employees. However, the customer invoice labeled the overhead charge as a “service” charge. Regardless of what the parties’ intent was as identified in the contract, the Tips Act specifically governs invoices, and the invoice there was not compliant. The court construed the employer’s “carelessness” against it, even though it meant an unintended windfall for employees. This case should be a clear warning to service providers to ensure invoices accurately identify charges.
Action Items
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