Rhode Island: New Protections for Tipped Workers

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June 28, 2022

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SB 2246A implements new protections for tipped workers, including prohibiting employers from keeping employee tips, implementing new tip pool requirements, and restricting deductions from tips for credit card processing. “Tipped employees” are “engaged in an occupation in which the employee customarily and regularly” receives more than $30 per month in tips. Key requirements are noted as follows. 

  • The bill specifically states that employers cannot take “any part” of a tip from an employee. 
  • Deductions for credit card processing fees are permitted if the employer gives notice to the employee and the amount does not bring the employee below minimum wage. 
  • Tips must be paid no later than the regular payday, even if the employer is still waiting for reimbursement from a credit card company. 
  • Tip pools are permitted for employees “who customarily and regularly receive tips,” provided that (1) the employer gives notice to employees of the pool contribution amounts; (2) the employer limits any tip credit to the amount actually received by the employee; and (3) the employer does not keep any portion of the tips (excepting credit card processing fees). 
  • Non-tipped employees may participate in tip pooling if the employer does not take a tip credit and does not include exempt employees in the tip pool. 
  • Service charges belong to the employer rather than the employee. 
  • Service charges shared by the employer may be counted toward minimum wage requirements. 

 

Action Items 

  1. Review the bill here. 
  2. Review payroll procedures for managing tips and tip pooling. 
  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. © 2022 ManagEase

August Updates

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Varies

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Varies

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Arizona: Unemployment Benefits Eligibility Without a COVID-19 Vaccine or Booster 

Effective July 6, 2022, SB 1494 makes Arizona employees eligible to receive unemployment benefits even if the reason for their separation was due to not receiving a COVID-19 vaccine or booster in accordance with the employer’s policy. If the employer’s vaccine mandate was due to a lawful requirement, then the unemployment benefits paid will not be charged against that employer’s account. Employers requiring COVID-19 vaccinations and boosters due to specific laws should review and revise their policies to make sure the legal requirements are clear. 

 

Glendale, CA: New Hotel Worker Protections 

As of July 27, 2022, the Glendale Hotel Workers Protection Ordinance implements a required minimum wage, limits mandatory overtime, creates maximum square footage requirements for housekeepers, and requires “panic buttons” for workers assigned to clean rooms alone. There are also notice requirements for guest rooms. Training on the Ordinance is required for new hires and annually for all employees. 

 

Los Angeles, CA: New Hotel Worker Protections 

Effective July 7, 2022, the Regarding Workplace Security, Workload, Wage, and Retention Measure for Hotel Workers Ordinance provides a number of safety, workload, and wage and hour protections for hotel workers. Mostly notably, hotels must provide personal security devices or personal alarms to hotel workers, post notices in hotel rooms, and provide training on the Ordinance to all employees and new hires. Hotel workers who report violent or threatening conduct are protected from adverse action and paid time off to report incidents to law enforcement and to consult with a counselor. The Ordinance also contains new workload limitations which limit the number of rooms and maximum square footage cleaned in a specific time frame as well as some changes in the calculation for overtime. Overtime is now voluntary, and hotel workers must consent in writing to work more than 10 hours in a workday.  

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CDC Updates Recommendations for Preventing the Spread of COVID-19

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August 11, 2022

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The U.S. Centers for Disease Control (CDC) recently updated its guidance on how people should be managing COVID-19. The CDC is moving away from distancing and contact tracing, and focusing more on severe illness and community levels. The CDC noted that “[h]igh levels of population immunity due to vaccination and previous infection and the many available tools to protect the general population, and protect people at higher risk, allow us to focus on protecting people from serious illness from COVID-19.” The following are key changes employers should note.

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EEOC Updates Guidelines for Employee COVID-19 Screening

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July 12, 2022

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The Equal Employment Opportunity Commission (EEOC) recently updated its “What You Should Know” guidelines for employers conducting COVID-19 screening in the workplace in compliance with the Americans with Disabilities Act (ADA). There are six important areas employers should reevaluate and revise in their COVID-19 screening policies in connection with the recent update.

 

A COVID-19 viral test is a medical examination under the ADA, so employers must show the testing is job-related and consistent with business necessity. Employers should consider the following factors in their determination: community transmission levels and transmissibility of current variants, accuracy and processing speed of different viral tests, vaccination status, working conditions, and potential impact of positive cases on operations. It is the burden of the employer to regularly check CDC, FDA, and other public health authority guidance before implementing testing procedures.

Antibody tests should not be used to permit reentry of the workplace. CDC guidelines state that antibody tests do not show whether an employee is immune to infection.

Screening questionnaires continue to be broadly permitted. Keep in mind that employers generally cannot screen remote employees or those who do not have in-person contact with co-workers, customers, or business partners.

Employers may choose to require a healthcare provider note certifying the eligibility of an employee to safely return to work after testing positive for COVID-19. In the event an employer requests a doctor’s note, they should prepare themselves for the possibility that local healthcare professionals unwilling to provide documentation at all.

Screening job applicants for COVID-19 symptoms before starting work is permissible. The screening should be consistent with the type of screening everyone receives for the same type of job and for anyone who enters the worksite. Screening may only occur after making a conditional job offer, unless the employer screens all persons entering the facility (e.g., workers, visitors, customers, general public).

Revoking a job offer after a positive COVID-19 test, symptoms, or exposure should only be done in limited circumstances. If the new hire cannot telework or a short isolation or quarantine period is not an option, you can revoke the job offer if the following conditions are met: a) the job requires an immediate start date; b) CDC guidance recommends the person not be in proximity to others; and c) the job requires proximity to others in the workplace or elsewhere.

Remember the EEOC also enforces other anti-discrimination laws. Employers should also make sure their testing requirements comply with the Rehabilitation Act, Title VII of the Civil Rights Act, and the Age Discrimination in Employment Act.

 

Action Items

  1. Review the updated guidelines here.
  2. Review and revise policies for compliance.
  3. Have appropriate personnel trained on screening procedures.
  4. Review with legal counsel before revoking a job offer due to COVID-19 status.
  5. 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. © 2022 ManagEase

Fifth Circuit: WARN Act’s Advance Notice Requirement for Layoffs is Not Exempted by COVID-19 Pandemic

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All Employers with TX, MS, and LA Employees

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June 15, 2022

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Generally, the Worker Adjustment and Retraining Notification (WARN) Act requires employers to give employees advance notice of mass layoffs and plant closures, subject to limited exceptions. In Easom v. U.S. Well Services Inc., the Fifth Circuit Court of Appeals stated that the COVID-19 pandemic did not fall under the natural disaster exception to the WARN Act. Specifically, the court indicated that Congress did not intend to include a pandemic as a “natural disaster” when they originally passed the WARN Act.

 

There, the employer laid off employees citing unforeseeable business circumstances due to historic lows in oil prices coupled with decreased demand for oil and gas because of the COVID-19 pandemic. Three employees filed a class action lawsuit alleging a WARN Act violation for failing to provide 60 days’ advance notice of the mass layoffs.

 

While this ruling is limited to employers in the Fifth Circuit, it may be modified or appealed further.  There are also similar cases pending around the country. Notably, this case does not address the “unforeseeable business circumstances” exemption to the WARN Act, which may serve as another avenue for employers to claim an exemption to the notice requirement.

 

Spring 2020 was a chaotic time for many employers forced to make quick decisions regarding their business in the face of mandatory government lockdowns and a rapidly declining economy. There was little guidance at the time on how to interpret and apply the WARN Act’s notice exceptions in the face of a pandemic. Employers should continue to monitor pending cases addressing the WARN Act’s exceptions to the notice requirement.

 

Action Items

  1. Review requirements under WARN here.
  2. Review procedures for mass layoffs and plant closures with legal counsel for compliance.
  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. © 2022 ManagEase

Seventh Circuit: Discouraging Use of FMLA Leave Can Be a FMLA Interference Violation

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FMLA Employers with IL, IN, and WI Employees

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June 1, 2022

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In Ziccarelli v. Dart, the Seventh Circuit Court of Appeals stated that an employer discouraging an employee from taking FMLA leave without an actual denial of FMLA leave is sufficient to violate FMLA. FMLA states it is unlawful for a covered employer to “interfere with, restrain, or deny” an employee’s right to FMLA leave. The “attempt to exercise” FMLA is included among the protected activities named in the statute. Further, Department of Labor regulations implementing FMLA also define interference to include discouraging an eligible employee from using FMLA leave.

 

There, a corrections officer with the Cook County Sheriff’s Office informed his FMLA manager of his intent to use both FMLA and sick leave to enter into a doctor-recommended post-traumatic stress disorder treatment program. Despite having FMLA hours available for the remainder of the year, the FMLA manager warned the corrections officer that he would be disciplined for taking any more FMLA leave since he had already taken a significant amount. The corrections officer chose to retire rather than face potential discipline. In reaching its decision, the Seventh Circuit noted FMLA rights would be significantly diminished if employers could actively discourage employees from accessing FMLA benefits.

 

Action Items

  1. Have appropriate personnel trained on FMLA requirements and employee rights.
  2. Review employee process to request FMLA leave to ensure compliance.
  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. © 2022 ManagEase

Eleventh Circuit: HR Managers Covered by Title VII Anti-Retaliation Protections

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All Employers with AL, FL, and GA Employees

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June 28, 2022

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In Patterson v. Georgia Pacific, LLC, the Eleventh Circuit Court of Appeals stated human resource managers are protected against retaliation under Title VII where the employee opposed a former employer’s unlawful practices. There, an HR manager accused the employer of retaliation when it fired her after she gave testimony in a pregnancy discrimination lawsuit against her former employer.

 

The employer argued that HR managers do not engage in protected activity when opposing discrimination in the course of their job duties and are therefore exempt from the Title VII ban on retaliation.  The Eleventh Circuit found no such exemption in Title VII.  The definition of employee does not have a carveout or exclusion for HR managers.  The anti-retaliation provision applies to all employees regardless of their job duties. The actions opposing unlawful employment practices are what matter most.

 

Further, the Eleventh Circuit indicated that Title VII’s ban on retaliation makes no distinction between a former employer and a current employer. The text forbids retaliation by “an employer” against “any individual” for having “opposed any practice made an unlawful employment practice” under Title VII. The Eleventh Circuit noted a former employer’s employment practice can be just as unlawful as that of a current employer.

 

Action Items

  1. Consult with legal counsel before disciplining or terminating employees who participate in activity opposing unlawful employment practices.
  2. 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. © 2022 ManagEase

D.C. Circuit: “Objectively Tangible Harm” No Longer Required to Prove Title VII Discrimination

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All Employers with Employees in the District of Columbia

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June 3, 2022

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In Chambers v. District of Columbia, the D.C. Circuit Court of Appeals stated it would no longer require obvious harm, like termination or a reduction in pay, for an employer to be liable for discrimination under Title VII. There, an investigator for the D.C. Office of the Attorney General claimed she was discriminated against on the basis of sex due to the denial of several transfer requests to different departments while similar requests were routinely granted to male employees.

 

Title VII of the Civil Rights Act of 1964 makes it unlawful to “fail or refuse to hire or to discharge any individual or otherwise to discriminate against any individual with respect to [their] compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex or national origin.” In its ruling, the D.C. Circuit determined an employer who denies a job transfer request because of an employee’s protected characteristic, like sex, discriminates against the employee in violation of Title VII.  The ultimate impact, whether financial or otherwise, is irrelevant.

 

While the D.C. Circuit’s ruling was specific to job transfers, it remains to be seen whether this analysis will extend to other acts of disparate treatment to support a claim under Title VII. This court’s rationale may also be adopted by other circuit courts. Employers should continue to monitor similar developments in other jurisdictions.

 

Action Items

  1. Review process for managing employee transfer requests to ensure consistent enforcement and procedures.
  2. Have appropriate personnel trained on Title VII protections.
  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. © 2022 ManagEase

California: AB 5 Independent Contractor Rules Apply to Truck Drivers

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All Employers with CA Employees

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June 30, 2022

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Motor carrier leased owner-operators who work in the state of California must now comply with AB 5 when determining whether they are employees or independent contractors. In California Trucking Association, Inc. v. Bonta, the Ninth Circuit Court of Appeals previously said that AB 5 was not preempted by the Federal Aviation Administration Authorization Act of 1994 (FAAAA), which expressly preempts state laws that relate to a price, route, or service, of any motor carrier. As a result, AB 5 does apply to motor carriers and independent owner-operators. The California Trucking Association appealed the Ninth Circuit’s decision to the U.S. Supreme Court hoping to resolve this issue, but the Supreme Court declined to review the case, effectively ending the trucking industry’s challenges to AB 5.

 

AB 5 was passed in 2020 and codified the ABC test for independent contractor status set forth in Dynamex Operations West, Inc. v. Superior Court of Los Angeles. Under AB 5, a hiring party must show the following to classify a worker as an independent contractor: 1) the worker is free from control; 2) the worker performs work outside the company’s usual business; and 3) the worker independently performs work of the same nature as the work for the hiring party. Leased independent owner-operators typically run afoul of the second prong of the ABC test: they do not perform work outside the hiring company’s usual business. If an independent contractor is hauling goods for motor carriers, then they are only performing work for the carriers’ business.

 

Trucking businesses with leased owner-operator models in place in California must evaluate their independent contractor relationships for compliance. Motor carriers with national business models will now have to contend with different business operations for different parts of the country.

 

Action Items

  1. Have independent leased owner-operator relationships reviewed by legal counsel for compliance.
  2. Implement employee wages, payroll tax, benefits, and other rights and employment obligations for reclassified employees.
  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. © 2022 ManagEase

California: CPRA Applies to Employees, Job Applicants, and Independent Contractors

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January 1, 2023

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The California Privacy Protection Agency (CPPA) recently proposed draft regulations to implement the Consumer Privacy Rights Act of 2020 (CPRA). The CPRA itself amended and expanded the California Consumer Privacy Act (CCPA). While the CPPA has only begun its rulemaking process, employers should expect the proposed regulations to be implemented in most of its current form. Of special note, the proposed regulations do not limit rights for employees, job applicants, or independent contractors under the CPRA as they were under the CCPA.

 

The proposed regulations are extremely lengthy and employers should review them in their entirety. The following are some of the most notable requirements employers should prepare to implement.

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