California: Challenges to Protections from Immigration Enforcement Target Status as a “Sanctuary State”

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All Employers with CA Employees

EFFECTIVE

July 4, 2018

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California’s Immigrant Worker Protection Act (AB 450) (the “Act”) went into effect as of January 1st this year. The Act restricted employer cooperation with federal immigration enforcement agencies beyond what was required by federal law. However, a federal district judge recently blocked the state from enforcing some of the statutory restrictions against private employers. Specifically, employers cannot be prosecuted or fined for:

California: New Defamation Protections for Harassment Victims and Employers

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All Employers with CA Employees

EFFECTIVE

January 1, 2019

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Governor Brown recently signed AB 2770 into law allowing (1) current and former employers to inform prospective employers they would not rehire the employee based on the employer’s determination that the former employee engaged in sexual harassment, and (2) employees to report credible complaints of sexual harassment to current employers. By allowing such disclosures, alleged harassers are prohibited from suing sexual harassment victims and employers for defamation.

Hawaii: Prior Salary History Inquiries Banned as of January 1, 2019

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All Employers with HI Employees

EFFECTIVE

January 1, 2019

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Senate Bill 2351 prevents employers with at least one employee working in Hawaii from making prior salary history inquiries, except under very limited circumstances.  Like most other states implementing such laws, employers must be careful not to ask for, search for, or rely upon prior salary history when setting compensation rates for a new position.

New York: Appellate Court Gives Gig Economy Business a Victory in Fight Against Claims of Independent Contractor Misclassification

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Employers with NY Employees

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June 22, 2018

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In another victory for a “gig” economy business, delivery service coordinator, Postmates, successfully defended itself against a claim of independent contractor misclassification. In Matter of Vega, New York’s Third Department Appellate Court stated that a courier working in delivery services for Postmates’ food delivery service was correctly classified as an independent contractor for unemployment insurance purposes.

Wisconsin: Supreme Court Ends Practice of Deferring to State Agency Interpretations of Law

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All Employers with WI Employees

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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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Varies

EFFECTIVE

Varies

QUESTIONS?

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(888) 378-2456

This Short List addresses the following topics:
  1. Coming Soon: Visa Denial or Expiration Will Mean Deportation for Foreign Nationals
  2. New Guidance for Determining Whether Registries are Employers of Nurses and Caregivers
  3. Ninth Circuit: No Meal Period Violations if Employees Volunteer to Stay Onsite for Discounted Meals
  4. California: Court States Neutral 15-Minute Rounding Policies Lawful
  5. California: New Law Protects Members of the Armed Forces While in Uniform
  6. California: New Safety Information for Housekeeping Employees
  7. Delaware: New Minimum Wage Increases and Exceptions
  8. New York, NY: New Mandatory Posting and Guidance Issued for Fair Workweek Law
  9. Pennsylvania: Minimum Wage for State Employees Increases to $12/Hour
  10. South Carolina: Required Pregnancy Accommodations Act Poster is Now Available

Read more

U.S. Supreme Court Strikes Down Public-Sector Union Agency Fees

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All Public Employers with Unions

EFFECTIVE

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

  1. Public-sector employers must immediately stop automatic deduction of agency fees from employee wages for employees who have not affirmatively agreed to such deduction
  2. Public-sector employers are recommended to implement authorization verification processes before deducting agency fees from applicable employees.
  3. Public-sector employers are recommended to review this recent ruling with legal counsel for further implications.
  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.

© 2018 ManagEase

Arizona: Increased Employer Responsibilities for Data Breaches, Protections for Employers Hiring Ex-Convicts

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All Employers with AZ Employees

EFFECTIVE

August 3, 2018

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(888) 378-2456

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:

  • Approximate breach date;
  • Information exposed by the breach;
  • Toll-free numbers of the three largest nationwide consumer reporting agencies; and
  • Numbers/addresses for the Federal Trade Commission and agencies that assist consumers with identity theft.

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

  1. Review internal policies and procedures for secure data management.
  2. Review hiring policies and train hiring staff on hiring individuals with a criminal history.
  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.

© 2018 ManagEase

California: Ignorance of the Law Doesn’t Excuse Employers from Waiting Time Penalties

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All Employers with CA Employees

EFFECTIVE

May 24, 2018

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(888) 378-2456

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

  1. 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.

© 2018 ManagEase

Maryland: New Sexual Harassment Reporting Requirement and Bar To Waiving Rights

APPLIES TO

Certain Employers with MD Employees

EFFECTIVE

October 1, 2018, July 1, 2020, and July 1, 2022

QUESTIONS?

Contact HR On-Call

(888) 378-2456

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

  1. Have employment agreements, arbitration agreements, and severance agreements reviewed by legal counsel for updates consistent with the new Act.
  2. Track sexual harassment claims and results for required reporting beginning on July 1, 2020.

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