November Updates

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Varies

EFFECTIVE

Varies

QUESTIONS?

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This Short List addresses the following topics:
  1. Fourth Circuit: Back Pay Damages are Mandatory Under the ADEA
  2. California: Federal Department of Transportation Rules Preempts California Meal and Rest Period Requirements
  3. California: Announces Minimum Wage Rates for Certain Overtime Exemptions
  4. California: Cal/OSHA Revised Exposure for Citations and Issued Emergency Reporting Requirements
  5. California: PAGA May Not Apply to Construction Industry Employees Subject to Collective Bargaining Agreements
  6. New Jersey: Updates to Statewide Paid Sick Leave
  7. New York: Human Trafficking Informational Cards Required in Hotels
  8. New York: State Attorney General Releases FAQ on Non-Compete Agreements
  9. New York: Sexual Harassment Training Deadline Extended
  10. New York, NY: Revised FAQ for Paid Sick Leave Rules
  11. Pennsylvania: Illegal Sex Discrimination Interpreted to Include LGBT+ Components

Read more

IMPORTANT: Updated Pre-Adverse Action Notice for Applicants and Employees!

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All Employers

EFFECTIVE

September 21, 2018

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The federal Consumer Financial Protection Bureau (CFPB) recently issued an updated version of “A Summary of Your Rights Under the Fair Credit Reporting Act” (Summary) that includes a new notice to consumers about their right to implement a free “security freeze” under certain circumstances, preventing consumer reporting agencies from disclosing the contents of a consumer report. Although the Summary has been updated with this new notice, “security freezes” do not apply to any person “using the information for employment … or background screening purposes.”

Voluntary Participation in Employer-Sponsored “Wellness Activities” is Not Compensable Time

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All Employers

EFFECTIVE

August 28, 2018

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The U.S. Department of Labor (DOL) recently issued an opinion letter stating that employers are not required to pay employees for time spent voluntarily attending certain wellness program-related activities, including health-based biometric screenings and benefit fairs.

FDIC Loosens Restrictions on Hiring Bank Personnel with Criminal Histories

APPLIES TO

All Employers in the Banking Industry

EFFECTIVE

September 6, 2018

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The Federal Deposit Insurance Corporation (FDIC) recently released revised guidelines easing hiring requirements for banking industry employers. Historically, Section 19 of the Federal Deposit Insurance Act (the Act) prohibited employers in the banking industry, with FDIC-insured designation, from hiring individuals with certain criminal convictions – namely, convictions pertaining to crimes of dishonesty, breach of trust, money laundering, or individuals who accepted entry into a pretrial diversion program in connection with prosecution for similar types of offenses. According to the FDIC, the changes were made in an attempt to lower the number of individuals precluded from employment in the banking industry who have minor offenses and are currently considered to be of low risk.

Can Applicants Sue Over the Pre-Adverse Action Notice Requirement?

APPLIES TO

All Employers with Employees in AR, DE, IA, MN, MO, NE, ND, NJ, PA, SD

EFFECTIVE

September 6, 2018 and September 10, 2018

QUESTIONS?

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Several Court of Appeal cases have come down recently on whether or not an applicant can sue an employer for failing to provide a pre-adverse action notice as required under the Fair Credit Reporting Act (FCRA). There is a split in the courts between the Ninth Circuit (applicants cannot sue) and Seventh Circuit (applicants can sue). More recently, the Third Circuit issued its own ruling.

Ninth Circuit: Requiring Applicant to Pay for Pre-Hire Medical Testing Violated ADA

APPLIES TO

Employers with 15 or more AK, AZ, CA, HI, ID, MT, NV, OR, WA, Guam, and Northern Mariana Islands Employees

EFFECTIVE

August 29, 2018

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The Ninth Circuit Court of Appeal recently stated that an employer violated the Americans with Disabilities Act (ADA) by requiring a job applicant to obtain, and pay for, additional medical testing as part of a condition of employment.

Ninth Circuit: California State Law Governs Employment Classification of Truck Drivers

APPLIES TO

Employers with CA Employees in the Motor Carrier Industry

EFFECTIVE

September 10, 2018

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In California Trucking Association v. Su, the Ninth Circuit stated that the Federal Aviation Administration Authorization Act (FAAAA) did not preempt California’s Labor Commissioner from using a state common law test to determine whether truck drivers are misclassified as independent contractors, because the test used is not related to prices, routes, or services. There, the California Trucking Association (CTA) filed suit against the Labor Commissioner claiming that owner-operator truck drivers are independent contractors, and asked the court for a declaration that federal law preempted the Commissioner from using the state’s standard.

California: New Employment Laws Coming in 2019

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All Employers with CA Employees

EFFECTIVE

January 1, 2019, unless noted otherwise

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Governor Brown recently signed numerous employment-related bills, impacting various industries and employment practices; among these are a package of bills following the #MeToo movement.  The below list summarizes some key bills.

Connecticut: Employees Have Medical Marijuana Protection for Use During Off-Work Hours

APPLIES TO

All Employers with CT Employees

EFFECTIVE

September 5, 2018

QUESTIONS?

Contact HR On-Call

(888) 378-2456

In Noffsinger v. SSC Niantic Operating Company LLC, a Connecticut federal judge stated that no federal law prohibits off-work hours use of medical marijuana, as protected under the states’ Palliative User of Marijuana Act (PUMA). There, an applicant advised the employer during the pre-hire process that she used medical marijuana, as permitted under PUMA, at night during off-work hours to treat post-traumatic stress disorder. After testing positive for cannabis in her pre-employment drug test, the employer rescinded the offer of employment. The federal district court rejected the employer’s zero-tolerance drug policy in favor of PUMA’s protections, stating that the federal Drug Free Workplace Act (DFWA) only prohibits use and possession of illegal drugs while at work. Finally, although not expressly provided in the act, the court stated that PUMA implies a cause of action for discrimination. Otherwise, PUMA “would have no practical effect, because the law does not provide for any other enforcement mechanism.”

Action Items

  1. Have hiring practices and drug testing procedures reviewed to ensure compliance with PUMA and federal law.
  2. Have substance abuse policies updated.
  3. Have job descriptions reviewed to ensure compliance with federal and state laws, including essential functions of the job.
  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

Kentucky: State Supreme Court Bars Mandatory Arbitration Agreements

APPLIES TO

All Employers with KY Employees

EFFECTIVE

September 27, 2018

QUESTIONS?

Contact HR On-Call

(888) 378-2456

In Northern Kentucky Area Development Dist. v. Snyder, the Kentucky Supreme Court stated that mandatory arbitration agreements violate KRS § 336.700; moreover, the law prohibits employers from refusing to hire or terminating employees on the condition that they waive any existing rights they would otherwise have against the employer. There, an employee claimed she was terminated in violation of the state’s Whistleblower Act. Because she signed a mandatory arbitration agreement, the employer unsuccessfully sought to enforce it. As a result, all employers should immediately have their arbitration agreements reviewed, updated, and re-signed by current employees, as applicable.

Action Items

  1. Have arbitration agreements updated consistent with this new ruling and confer with legal counsel on having current employees resign the agreement.
  2. Update offer letters to exclude condition of employment based on executing an arbitration agreement.
  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