APPLIES TO All Employers with CA Employees

EFFECTIVE July 19, 2022

QUESTIONS? Contact HR On-Call (888) 378-2456

In California, an employer must provide an employee with a reasonable seat while working if the nature of the work reasonably permits the use of a seat. In Meda v. AutoZoners, Inc., a California Court of Appeal looked at what an employer must do to be considered to have “provided” seating to employees. 

 

There, a sales associate claimed that she was not provided suitable seating while working behind a bar-height counter where she was able to perform a majority of her work while seated. The employer claimed that two chairs located next to a manager’s office around the corner were available for employee use. However, the court said that where an employer has not expressly advised its employees that they may use a seat during their work and has not provided a seat at a workstation, a factual analysis was necessary to determine whether an employer “provided” reasonable seating, including the proximity of the available seating to the workspace and the employee’s knowledge of the availability of seating. The factual analysis may vary depending on the circumstances. 

 

The court did not say that employers are required to place a seat at every workstation involving work that could be performed while seated, acknowledging that doing so may not always be feasible given the particular characteristics of a workspace. The court also gave examples of how an employer may inform its employees of the availability of seating, such as by directly informing employees that seats are available for use or including a seating policy in its employee handbook. Going forward, employers should evaluate their seating availability and need within the workplace to ensure compliance with seating requirements. 

 

Action Items 

1. Evaluate seating availability for workers. 
2. Provide notice to workers of available seating. 
3. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

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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. © 2022 ManagEase

APPLIES TO All Employers with CO Employees

EFFECTIVE January 1, 2023

QUESTIONS? Contact HR On-Call (888) 378-2456

Colorado Senate Bill 22-161 amends the state’s wage theft laws by increasing penalties and adding additional enforcement methods for violations. The amendment addresses not only wage theft but also employee misclassification and deductions from final pay for unreturned company equipment. It also creates a new Worker and Employee Protection Unit under the control of the office of the Attorney General which can investigate and enforce wage theft, unemployment insurance, and misclassification claims.  

 

Penalties. Most notably, SB 22-161 increases the penalties employers must pay to employees if they do not pay wages owed within 14 days after an employee makes a written demand or files a civil action or administrative claim. As of January 1, 2023, employers who do not pay wages owed within 14 days of a demand will automatically pay the greater of two times the amount of the unpaid wages or $1,000. This is quite an increase from the original 1.25 times penalty. If the failure to pay was willful, the employer must pay the greater of three times the amount of unpaid wages or $3,000. All second or subsequent failures to pay within the 5 years preceding a claim are per se willful. Successful payments occurring within 14 days after the written demand will result in the employee being required to dismiss the claim. If the Division makes an adverse decision for failure to pay and the employer still has not paid within 60 days of that adverse decision, the employer will need to pay attorneys’ fees incurred to enforce the Division’s adverse action, a fine equal to 50% of the amount owed, and an additional penalty owed to the employee which is the greater of 50% of the amount owed or $3,000.  

 

The amendment also greatly reduces the ability for successful employers to recover attorney’s fees incurred in a civil action. Employers can only recover attorney’s fees if it has paid all the amounts demanded in good faith by all employees within 14 days of receiving the demand and if the employees ultimately recover less in the action than the amount the employer paid. Conversely the Division is now allowed to award attorney’s fees to employees who recover more than $5,000 in unpaid wages in an administrative claim.  

 

Unreturned company property. Additionally, Colorado employers will no longer be able to freely deduct the value of unreturned company property from final pay. Rather, in order to deduct from final pay, the employer must provide a notice to the employee within 10 days after separation which includes the specific property or amount of money the employee failed to return or pay, the replacement value of the property, when the property or money was provided to the employee, and when the employer believes the employee should have returned the property or paid the money. If the employee repays or returns the property within 14 days of the notice, the employer must return the amount of the deduction within 14 days of the receipt of money or property. 

 

Action Items 

1. Read the bill here. 
2. Review procedures for the timely payment of wages. 
3. Review classification of employees and independent contractors. 
4. Revise procedures for final pay deductions and prepare template notice of deductions. 
5. Have appropriate personnel trained on the requirements. 
6. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance. 

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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. © 2022 ManagEase

APPLIES TO All Employers with District of Columbia Employees

EFFECTIVE October 1, 2022

QUESTIONS? Contact HR On-Call (888) 378-2456

Washington, D.C. employers preparing for the implementation of the Ban on Non-Compete Agreements Amendment Act of 2020 now need to reevaluate their positions. While the original act banned nearly all non-compete agreements, the D.C. Council recently passed the new Non-Compete Clarification Amendment Act of 2022 allowing for certain exceptions.  

 

The Amendment now allows employers to enter into non-competes with almost any employee whose total compensation is or is reasonably expected to be more than $150,000 per year in addition to medical specialists making more than $250,000 per year. Bonuses, commissions, overtime premiums, vested stock, and other payments provided on a regular or irregular basis may be included in the total compensation calculation. The threshold will increase based on the consumer price index in the Washington Metropolitan Statistical Area beginning on January 1, 2024.  

  Read more

APPLIES TO All Employers with MI Employees

EFFECTIVE Pending

QUESTIONS? Contact HR On-Call (888) 378-2456

For now, employers can continue to rely on Michigan’s adopted and amended paid medical leave and minimum wage laws instead of the voter-initiated versions of the laws. In 2018, the Michigan legislature approved two ballot proposals with revisions. One proposal was the Improved Workforce Opportunity Wage Act (IWOWA) which provided an increase in minimum wage, and the other was the Earned Sick Time Act (ESTA) which became the Paid Medical Leave Act (PMLA) and mandated paid sick leave for a variety of absences.  

 

In the IWOWA, the legislature amended the original ballot proposals to: 1) allow a gradual minimum wage increase of $12 per hour effective in 2030 instead of 2022; 2) remove an additional inflation-based annual minimum wage increase beyond $12 per hour; and 3) eliminate wage increases specific to tipped employees. The changes to the ESTA included: 1) changing the name to the PMLA; 2) exempting employers with less than 50 employees from compliance; 2) lowering the annual leave entitlement to 40 hours from 72 hours; and 3) eliminating employees’ right to claim retaliation for violations of their rights under the law. These two laws as amended went into effect March 29, 2019.  

 

Subsequently, a court case filed challenging the Michigan legislature’s constitutional authority to “adopt” and “amend” these ballot proposals. On July 19, 2022, in Mothering Justice v. Nessel, the Court of Claims agreed that the method used by the Michigan legislature was unconstitutional and immediately nullified the IWOWA and PMLA, making the original ballot initiatives into law. This would have meant Michigan employers would have had to make significant changes to their minimum wage and paid sick leave policies effective August 9, 2022. Following this ruling, the State of Michigan appealed to the Court of Appeals and sought a stay of the decision through all of its potential appeals. A stay was granted on July 29, 2022. This means Michigan employers can continue to rely on the existing laws through February 19, 2023. 

 

In the event the State of Michigan is not successful in its appeal of the decision and the stay is lifted, Michigan employers should be aware of the following most notable potential changes to current minimum wage and paid sick time laws if the lower court’s ruling is upheld. 

 

Potential Changes to Current Paid Sick Leave. Almost all public (except federal) and private employees would be eligible for paid sick leave. The law would cover all employers with at least 1 employee. While small businesses only need to provide up to 40 hours of paid sick leave a year, large employers or those with more than 10 employees must offer up to 72 hours per year. Employees can use paid sick leave to also care for someone who is related by affinity – which has no additional definition. Employers can only request supporting documentation if an employee is absent for more than three days, and the documentation need not be detailed. Employers cannot frontload paid sick leave but must allow for accrual. Employees would have a private right of action with a 3-year statute of limitations for violations of their exercise of rights under the paid sick leave law.  

 

Potential Changes to Minimum Wage. Minimum wage would immediately increase to $12 per hour. The minimum wage rate would be adjusted by the rate of inflation beginning October 2022 and effective January 1 of each succeeding year. Employers with tipped employees would have to increase the minimum wage rate to 80% in 2022, 90% in 2023, and 100% in 2024. This means eventually tipped employees would receive minimum wage in addition to gratuities.  

 

Action Items 

1. Monitor the Michigan Department of Labor & Economic Opportunity’s website for updates. 
2. Evaluate potential administrative and financial impacts if the original ballot proposals are implemented. 
3. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance. 

 

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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. © 2022 ManagEase

APPLIES TO All Employers with OR Employees

EFFECTIVE July 8, 2022

QUESTIONS? Contact HR On-Call (888) 378-2456

In Gist v. ZoAn Management, Inc., the Oregon Supreme Court stated that an arbitration agreement was enforceable due to a savings clause which allowed arbitrators to disregard invalid or unenforceable provisions of the original agreement. In this case, an employee entered into a Driver Services Agreement (DSA) where he and other drivers were considered independent contractors as they provided the defendant with delivery services. The employee filed a class action lawsuit against the employer claiming that he and other drivers were actually employees and the employer had violated Oregon’s wage and hour statutes.  

 

The Court ultimately concluded the savings clause in the DSA allowed the arbitrators to disregard invalid or unenforceable provisions, including statements that the drivers were independent contractors. Because of the savings clause, the arbitration provision did not violate ORS § 652.360 which prohibits employers from using a contract to exempt themselves from the requirement to pay wages. Employers are encouraged to include a savings clause in their arbitration agreements to increase enforceability of the entire agreement. 

 

Action Items 

1. Have arbitration agreements reviewed by legal counsel for updates. 
2. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance. 

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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. © 2022 ManagEase