In Hamrick v. Partsfleet, the Eleventh Circuit Court of Appeal reviewed whether final-mile delivery drivers—drivers who make local deliveries of goods and materials that have been shipped from out-of-state to a local warehouse—are in a “class of workers engaged in foreign and interstate commerce” and, thus, exempt under the Federal Arbitration Act (FAA) from having to arbitrate their Fair Labor Standards Act (FLSA) claims.

The court stated that for the FAA exemption to apply, the employee must be employed in the transportation industry and actually engage in the transportation of goods in interstate commerce. The focus is on what the worker actually does, not the goods themselves. Whether individuals are engaged in the interstate transportation of goods is a fact-finding determination. The court ultimately remanded the case to the lower court to make a factual determination on whether the workers met the exemption requirements.

Action Items

Los Angeles Mayor Eric Garcetti recently revised the extant Supplemental Paid Sick Leave (SPSL) order and issued a new vaccine leave order. The two orders have different effective date ranges and eligibility requirements, summarized below.

Gender-Based Discrimination. Effective September 11, 2021, Colorado recently passed HB 21-1108 which clarifies prohibited sexual discrimination in employment. Specifically, employers cannot discriminate on the basis of gender expression (i.e., expression of gender to outside world, such as appearance, dress, and behavior) or gender identity (i.e., innate sense of one’s own gender). Additionally, sexual orientation was clarified as an individual’s actual or perceived sexual or emotional attraction towards others and the behavior or social affiliation that may result.

Veterans’ Hiring. Effective September 21, 2021, Colorado also passed HB 21-1065 which allows private employers to give hiring preference to armed forces veterans, military reserves members, National Guard veterans, and spouses of disabled veterans or service members killed in the line of duty. The veteran or spouse must still be as qualified as other applicants for employment, but employers will not be engaging in an unfair labor practice for choosing them based on their eligibility status. Employers utilizing the hiring preference must apply the policy uniformly to all hiring decisions, obtain a copy of the employee’s proof of service (i.e., discharge document DD214) or marriage to the service member, and create a written policy at least 14 days before it is applied to any new job posting or hiring decision. Additionally, private employers may advertise for and actively recruit veterans to apply for employment regardless of whether they have a veterans’ preference hiring policy.

Action Items

Effective October 1, 2021, House Bill No. 5158 amends existing Connecticut statute to expand employer’s obligations to accommodate lactating employees.  Presently, all Connecticut employers must make reasonable efforts to provide a room or private location that is not a toilet stall for lactating employees to express breast milk. The bill expands upon this requirement by specifying that the room or other location must:

• Be free from intrusion and shielded from the public;
• Be situated near a refrigerator or employee-provided portable cold storage device in which breast milk can be stored; and
• Have access to an electrical outlet.

Exceptions may apply where providing such accommodations imposes an “undue hardship” upon the employer’s business.

Action Items

Chicago recently passed Ordinance No. O2021-2182, implementing wage theft protections and expanding paid sick leave use.

JUL 5, 2021 | Wage Theft Protections. Employers are now liable for wage theft for failing to timely pay employees for any work performed, any paid time off (e.g., paid sick leave), and contractually required benefits. Employers now must pay 5% of any underpayments for each month they remain unpaid (as required by recent Illinois HB 118, effective July 9th). These penalties are in addition to failure to comply with Chicago paid sick leave requirements. A Covered Employee may file a claim with the Office of Labor Standards or in a civil action, but not both.

AUG 1, 2021 | Paid Sick Leave Expansion. Employees will now be able to use paid sick leave for the following reasons:

• The employee’s own or family member’s mental or behavioral issues, including substance abuse disorders.
• The employee’s family member’s order to quarantine, or to care for a family member whose school, class, or place of care is closed due to a public health emergency.
• Victim of domestic violence or sex offense includes stalking, aggravated stalking, and cybers talking.
• To obey an order from the city, state, or healthcare provider to stay home, isolate, or quarantine due to a communicable disease.

Action Items