Governor Baker recently signed H.4640 into law. The “grand bargain” increases minimum wage, eliminates premium pay, and implements paid Family and Medical Leave.
Minimum Wage and Premium Pay Updates
By 2023, minimum wage will increase to $15.00 per hour and to $6.75 per hour for tipped employees. Minimum wage will next increase to $12.00 per hour on January 1, 2019. Also by 2023, premium pay will be eliminated. Starting January 1, 2019, employers’ requirement to pay retail employees time-and-a-half for working Sundays and certain holidays will decrease to 1.4 times the regular rate, and subsequently decreasing each year until it is eliminated entirely.
Paid Family and Medical Leave
Beginning January 1, 2021, employers will be required to provide current employees, employees who have been separated for 26 weeks or less, and self-employed independent contractors (where the independent contractors comprise more than 50 percent of the workforce), with 12 weeks of paid family leave and 20 weeks for paid medical leave (with a maximum combined benefit of 26 weeks per year) (1) to provide care for the employee or a family member due to their or their family member’s serious health condition; (2) to bond with a newborn, foster, or adopted child within the first 12 months of birth, placement, or adoption; (3) for needs arising out of the fact that a family member is on active duty or has been notified of an impending call to active duty in the u.s. armed forces; or (4) to care for a family member who is a covered service member.
Employees are required to provide 30 days’ advance notice of the need for leave, or as soon as practicable if the delay in notice is beyond the employee’s control. If the employer does not provide the required new hire notice (discussed below), the employee’s notice requirement is waived.
Once leave commences, payment of benefits is subject to a one-week delay during which time employees may use other paid leave, such as paid sick leave or vacation. However, employers may not require employees to exhaust other forms of paid time off prior to or in connection with taking paid family and medical leave. Leave may be taken intermittently, except for child bonding unless otherwise agreed to by the employer; this restriction does not apply to former employees or self-employed independent contractors. Leave runs concurrently with the federal Family and Medical Leave Act and the Massachusetts Parental Leave Act.
Employees who take leave must be returned to their same or equivalent position upon return, and employers must maintain employee benefits while on leave. Employers must post a required notice in English and any other language primarily spoken by 5 or more employees, and notify employees of their rights within 30 days of hire. Employers are required to obtain a signed acknowledgment of receipt of the notice from all employees, or a signed statement of refusal to sign the acknowledgment. Employers must also provide a required notice to self-employed independent contractors at the time they are contracted, describing how they may obtain paid family and medical leave benefits.
Employers are subject to strict anti-retaliation provisions for employees who use paid family and medical leave or file or participate in a claim based on such leave. Specifically, there is a rebuttable presumption of retaliation if any adverse action is taken against an employee’s terms and conditions of employment during leave or within six months of the employee’s return from leave. To rebut the presumption, an employer must be able to show with “clear and convincing” evidence that it would have taken the same action in the absence of the employee taking leave.
Beginning July 1, 2019, employers with 25 or more employees will begin paying 0.63% of each employee’s wages into a state trust fund for employer contributions. Employers are required to pay 60% of the contribution for family leave, and employees must contribute 40%; however, employers are not required to pay any portion of the contribution for medical leave and may deduct the full amount from employees’ wages. Employers with less than 25 employees are exempt from paying the employer portion. Contributions are capped at the amount set by the Social Security Administration for contributions to the Old-Age, Survivors and Disability Insurance programs (currently $128,400). Employers have the option to provide equivalent benefits through an approved private plan or self-insurance.
Wisconsin: Supreme Court Ends Practice of Deferring to State Agency Interpretations of Law
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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.
August Updates
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U.S. Supreme Court Strikes Down Public-Sector Union Agency Fees
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All Public Employers with Unions
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June 27, 2018
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The U.S. Supreme Court recently stated that public-sector employees must affirmatively agree to pay union dues; unions may no longer take agency fees from nonconsenting public employees. In Janus v. American Federation of State, County and Municipal Employees, Mark Janus, a public employee in Illinois, refused to join his union because he opposed its positions. However, Illinois state law required non-members to pay an “agency fee” (i.e., a percentage of the full union dues) to cover union expenditures attributable to the union’s collective bargaining activities. Janus sued.
The Court stated that the “First Amendment is violated when money is taken from nonconsenting employees for a public-sector union.” Specifically, requiring public employees to pay agency fees compels them to “subsidize free speech on matters of substantial public concern.” “[N]either an agency fee nor any other form of payment to a public-sector union may be deducted from an employee, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay.” Public-sector unions are now required to obtain affirmative consent from employees to participate in a union, not just provide a mere opt-out option.
Many state public-sector union laws are predicated on a 40-year-old case that permitted imposing such agency fees. Affected states will now be forced to review how they will effectuate union participation without violating Janus. Employers are likely to see a response to this case from state legislatures going forward.
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.
© 2018 ManagEase
Arizona: Increased Employer Responsibilities for Data Breaches, Protections for Employers Hiring Ex-Convicts
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August 3, 2018
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Two new bills, HB 2311 and 2154, are going into effect on August 3, 2018. These bills increase an employer’s public notice responsibilities in the event of a data breach, and also increases limited liability protections for employers who hire employees or independent contractors who were previously convicted of criminal offenses.
HB 2154: Data Security Breaches
This law seeks to improve consumer data security in two ways. First, the law expands the definition of protected personal information. In addition to information such as Social Security numbers, bank account or credit/debit card numbers, medical information, or biometric data, the definition of “personal information” will also include e-mail addresses and passwords or security questions/answers that, when combined, grant access to online accounts.
Second, the new law increases an employer’s notice requirements. Once an employer is made aware of a “security incident,” the employer is required to conduct an investigation to determine if a security breach has occurred. If so, all affected individuals must be notified within 45 days of the discovery. The notice must be made by e-mail, live telephone call, or a substitute notice that includes the following information:
If the breach affects over 1,000 individuals, the employer is also required to notify the three largest nationwide consumer reporting agencies and the Arizona state attorney general.
HB 2311: Hiring Ex-Criminal Offenders
HB 2311 aims to improve fair-chance hiring and job opportunities for non-violent offenders, while providing employers limited protections from lawsuits associated with negligent hiring claims. In the event of a negligent hiring claim, the new law bars evidence of an employee’s or independent contractor’s “criminal offenses” prior to the date of hire with the employer. “Criminal offense” is defined as “any criminal offense except violent offenses and sexual offenses.”
Employers will still need to exercise caution and carefully consider both the candidate and the role the candidate is being hired for. Lawsuits alleging negligent supervision, or lawsuits where the employee’s prior conviction is directly related to the nature of their work and the conduct that led to the legal action, are not precluded. For example, in a claim related to the misuse of money by an employee/contractor hired to do accounting work where the employee/contractor had previous convictions associated with fraud prior to being hired, the employer may not be precluded from liability.
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.
© 2018 ManagEase
California: Ignorance of the Law Doesn’t Excuse Employers from Waiting Time Penalties
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May 24, 2018
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The California Court of Appeal’s recent decision in Diaz v. Grill Concepts Services, Inc. confirms just how important it is to stay on top of local and federal employment regulations. Substantial penalties were assessed against Grill Concepts Services, Inc. because the company was unaware of a local wage change and accidentally shortchanged its workers’ pay. The court affirmed that a lack of malicious intent did not protect the employer from allegations of a “willful” failure to pay.
In Diaz, the employer operated a restaurant near the LAX airport, located within a unique zone that amended its living wage formula in 2010. Unaware of the change in formula, the restaurant failed to adjust employees’ wages and shortchanged the workers, who filed a class action demanding unpaid wages and “waiting time” penalties. Under California Labor Code, “waiting time” penalties in the form of up to 30 days’ wages may be assessed against employers that willfully fail to pay any part of an exiting employee’s wages.
The court stated that where the law is clear regarding an employer’s responsibilities, a “willful failure” occurs when the employer voluntarily acts in a manner that falls short of its legal obligations. Because of the restaurant’s lack of due diligence in following the 2010 living wage amendment, and because the language of the relevant law was clear regarding the employer’s responsibility, the court stated that the restaurant’s ignorance of the law qualified as a willful failure.
The court’s determination in Diaz serves as a warning and a reminder to all employers of the importance of diligent follow-up and compliance with both local and federal regulations.
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.
© 2018 ManagEase
Maryland: New Sexual Harassment Reporting Requirement and Bar To Waiving Rights
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Certain Employers with MD Employees
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October 1, 2018, July 1, 2020, and July 1, 2022
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Effective October 1, 2018, the Disclosing Sexual Harassment In The Workplace Act (“Act”) (SB 1010) prohibits all employers from entering into an agreement with an employee that waives the employee’s substantive or procedural right to future claims of sexual harassment or retaliation therefor. Employers also cannot retaliate against employees who refuse to enter into such agreements.
The Act also requires employers with 50 or more Maryland employees to report (1) the number of sexual harassment claims settled, (2) the number of times the employer has paid settlements for sexual harassment allegations against the same employee within the last 10 years of employment, and (3) the number of settlements for sexual harassment claims that included a mutual confidentiality provision. The information must be submitted electronically and includes a place for an employer to describe discipline implemented against employees who have been the subject of sexual harassment allegations. Reporting must occur before July 1, 2020 and again before July 1, 2022.
The Maryland Commission on Civil Rights will publish aggregate data received by employers, and will make individual employer reporting available to the public upon request.
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.
© 2018 ManagEase
Massachusetts: Updates to Minimum Wage, Premium Pay, and Paid Family and Medical Leave
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all Employers with MA Employees
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January 1, 2019 and January 1, 2021
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(888) 378-2456
Governor Baker recently signed H.4640 into law. The “grand bargain” increases minimum wage, eliminates premium pay, and implements paid Family and Medical Leave.
Minimum Wage and Premium Pay Updates
By 2023, minimum wage will increase to $15.00 per hour and to $6.75 per hour for tipped employees. Minimum wage will next increase to $12.00 per hour on January 1, 2019. Also by 2023, premium pay will be eliminated. Starting January 1, 2019, employers’ requirement to pay retail employees time-and-a-half for working Sundays and certain holidays will decrease to 1.4 times the regular rate, and subsequently decreasing each year until it is eliminated entirely.
Paid Family and Medical Leave
Beginning January 1, 2021, employers will be required to provide current employees, employees who have been separated for 26 weeks or less, and self-employed independent contractors (where the independent contractors comprise more than 50 percent of the workforce), with 12 weeks of paid family leave and 20 weeks for paid medical leave (with a maximum combined benefit of 26 weeks per year) (1) to provide care for the employee or a family member due to their or their family member’s serious health condition; (2) to bond with a newborn, foster, or adopted child within the first 12 months of birth, placement, or adoption; (3) for needs arising out of the fact that a family member is on active duty or has been notified of an impending call to active duty in the u.s. armed forces; or (4) to care for a family member who is a covered service member.
Employees are required to provide 30 days’ advance notice of the need for leave, or as soon as practicable if the delay in notice is beyond the employee’s control. If the employer does not provide the required new hire notice (discussed below), the employee’s notice requirement is waived.
Once leave commences, payment of benefits is subject to a one-week delay during which time employees may use other paid leave, such as paid sick leave or vacation. However, employers may not require employees to exhaust other forms of paid time off prior to or in connection with taking paid family and medical leave. Leave may be taken intermittently, except for child bonding unless otherwise agreed to by the employer; this restriction does not apply to former employees or self-employed independent contractors. Leave runs concurrently with the federal Family and Medical Leave Act and the Massachusetts Parental Leave Act.
Employees who take leave must be returned to their same or equivalent position upon return, and employers must maintain employee benefits while on leave. Employers must post a required notice in English and any other language primarily spoken by 5 or more employees, and notify employees of their rights within 30 days of hire. Employers are required to obtain a signed acknowledgment of receipt of the notice from all employees, or a signed statement of refusal to sign the acknowledgment. Employers must also provide a required notice to self-employed independent contractors at the time they are contracted, describing how they may obtain paid family and medical leave benefits.
Employers are subject to strict anti-retaliation provisions for employees who use paid family and medical leave or file or participate in a claim based on such leave. Specifically, there is a rebuttable presumption of retaliation if any adverse action is taken against an employee’s terms and conditions of employment during leave or within six months of the employee’s return from leave. To rebut the presumption, an employer must be able to show with “clear and convincing” evidence that it would have taken the same action in the absence of the employee taking leave.
Beginning July 1, 2019, employers with 25 or more employees will begin paying 0.63% of each employee’s wages into a state trust fund for employer contributions. Employers are required to pay 60% of the contribution for family leave, and employees must contribute 40%; however, employers are not required to pay any portion of the contribution for medical leave and may deduct the full amount from employees’ wages. Employers with less than 25 employees are exempt from paying the employer portion. Contributions are capped at the amount set by the Social Security Administration for contributions to the Old-Age, Survivors and Disability Insurance programs (currently $128,400). Employers have the option to provide equivalent benefits through an approved private plan or self-insurance.
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.
© 2018 ManagEase
Minnesota: Duluth Becomes Third City to Enact Paid Sick and Safe Time Law
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All Employers with 5 or more Duluth, MN Employees
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January 1, 2020
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Duluth recently joined St. Paul and Minneapolis in enacting a local paid sick and safe time law. While the new paid sick leave (“PSL”) ordinance mirrors St. Paul and Minneapolis in most provisions, it also deviates from these cities in some areas–most notably in the accrual rate, cap, and carryover of PSL hours. The ordinance, adopted on May 29, 2018, goes into effect on January 1, 2020, providing employers ample time to prepare.
Key provisions of the new PSL law include:
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.
© 2018 ManagEase
New York, NY: Employee Sexual Harassment Protections and Employer Obligations Expanded
/0 Comments/in HR Alerts /by ManagEaseAPPLIES TO
Select Private Employers with New York, NY Employees
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May 9, 2018, September 6, 2018, and April 1, 2019
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On May 9, 2018, Mayor Bill de Blasio signed multiple bills into law providing greater employee protections against sexual harassment, and expanding employer obligations, as follows.
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.
© 2018 ManagEase
Oklahoma: Voters Legalize Medical Marijuana Use
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All Employers with OK Employees
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July 26, 2018
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Oklahoma voters recently approved a ballot measure to legalize medical marijuana use, making the state the 30th in the nation to permit such use. Unlike some other states, the Oklahoma measure allows doctors to prescribe medical marijuana for any medical condition, rather than restricting its use to treating specific conditions.
Under the new law, patients who are legally prescribed medical marijuana will receive state ID cards and are permitted to carry up to 3 ounces of cannabis in public. Additional amounts of cannabis, as well as up to six cannabis plants, may be stored in the patient’s home.
The ballot measure as drafted also contains anti-discrimination protections for medical marijuana license holders. Employers are generally prohibited from discriminating against license holders when making hiring or termination decisions, or when imposing any term or condition of employment that penalizes an individual solely based on their status as a medical marijuana license holder or results of a drug test positive for marijuana or its components, unless failure to do so would cause the employer to lose a monetary or licensing-related benefit under federal law. Additionally, employers are still free to take action against employees who use or possess marijuana on the employer’s premises or during hours of employment.
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.
© 2018 ManagEase