California: FEHA Applies to More Employers

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Employers with 5 or more Employees

EFFECTIVE

October 1, 2019

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The Department of Fair Employment and Housing (DFEH) changed the definition of “Employer” for purposes of the Fair Employment and Housing Act (FEHA). FEHA still applies to employers with five or more employees. However, the way in which those five employees is calculated has changed. Previously, employers must have had five employees “each working day in any twenty consecutive calendar weeks in the current calendar year or preceding calendar year.”

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California: Changing Definition of “Serious Injury” Expands Employer Responsibilities

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All Employers with CA Employees

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January 1, 2020

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AB 1805 revises the definition of a “serious” injury under the California Labor Code, resulting in expanded reporting responsibilities for employers.  Currently, employers are required to report to Cal/OSHA any serious injury or death in the workplace as soon as possible, but no later than eight hours after the employer became aware of the death or injury.  The timing requirements remain the same, but the revised definition of “serious” injury means employers will potentially need to report more injuries.

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Illinois: Complying with the Illinois AI Video Interview Act

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All Employers

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August 9, 2019

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A few months ago, the Illinois legislature unanimously passed HB 2557, the Artificial Intelligence Video Interview Act (the Act).  This bill addresses employer use of AI in the recruiting/hiring process, namely, AI used to analyze applicants in video interviews.  The bill imposes a number of responsibilities on employers to provide notification, information, and obtain authorization from applicants who will be subject to AI analysis.  The Act applies to employers who are seeking to fill a position in Illinois.

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Minnesota: Split-Day Overtime is Over

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All Employers with MN Employees

EFFECTIVE

September 18, 2019

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In In re Minnesota Living Assistance, Inc., the Minnesota Supreme Court stated that employers cannot use split-day overtime to comply with state overtime rules, where employees have not yet worked the overtime hours meant to comply with state overtime rules. There, the employer paid employees one rate for the first 5.5 hours worked in a 16-hour day, and 1.5 times that rate for the remaining 10.5 hours. The Court stated that the Minnesota Fair Labor Standards Act requires employers to pay employees overtime for all hours worked in excess of 48 in a week, regardless of whether the employee received time-and-a-half compensation during the first 48 hours worked.

Additionally, time-and-a-half wages paid during the first 48 hours worked in a workweek cannot be excluded when calculating an employee’s regular rate of pay, because those hours were not paid for overtime work (which are excluded when calculating the regular rate of pay). Because federal Fair Labor Standards Act overtime rules vary compared to the state rules, employers must take care to comply with both.

Action Items

  1. Review split-day overtime policies and procedures to ensure compliance with state wage and hour rules.
  2. Have payroll processes updated.
  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.

© 2019 ManagEase

New York: Court Decision Results in New Challenges with the Frequency of Pay Law

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All Employers with NY Employees

EFFECTIVE

September 10, 2019

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In Vega v. CM & Associates Construction Management, LLC, the Appellate Division of the New York Supreme Court stated that employers may be liable to pay liquidated damages for wage claims surrounding a failure to pay manual workers timely.

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Oregon: Employers MUST Ensure Meal Periods are Taken

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All Employers with Oregon Employees

EFFECTIVE

November 14, 2019

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(888) 378-2456

In Maza v. Waterford Operations, LLC, the Oregon Court of Appeal stated that it was not sufficient that an employer provide employees with the opportunity to take required meal breaks, but that meal premiums must be paid if an employee does not take the required minimum 30-minute break if working shifts longer than six hours, and a second meal break for shifts of 14 hours or more.

There, the employer’s meal break policy stated it was mandatory that employees took the required meal periods and did not permit waiver of a meal period. It also required employees to report if an employee was required to work off the clock. However, the court stated these were insufficient steps and that the employer was strictly liable for a missed or insufficient meal period, regardless of the reason.

Action Items

  1. Implement timekeeping procedures for meal periods to document meal periods taken.
  2. Have payroll administrators and managers trained on meal period requirements.
  3. Update payroll processes to ensure employees are paid the required premium for missed meal periods.
  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.

© 2019 ManagEase

Oregon: Senate Bill Implements Fixes to Equal Pay Law

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All Employers with OR Employees

EFFECTIVE

January 1, 2020

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(888) 378-2456

Senate Bill 123 provides clarity to a few aspects of the Oregon Equal Pay Act (EPA), as well as a voluntary equal pay analysis safe harbor.

Under the EPA, employers are required to pay employees the same rate for work of comparable character, unless the pay differential can be attributed to one or more bona fide factors, such as a seniority system, merit system or system that measures earnings by quantity or quality.  SB 123 updates the definition of a “system” to mean “a consistent and verifiable method in use at the time that a violation is alleged.”

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Pennsylvania: Fluctuating Workweek Method of Overtime Pay No Longer Permitted

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All Employers with PA Employees

EFFECTIVE

November 20, 2019

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(888) 378-2456

In Chevalier v. General Nutrition Centers, Inc., the Pennsylvania Supreme Court stated that employers may not use the fluctuating workweek (FWW) method of calculating overtime under state wage and hour law. The FWW allows employers to pay a fixed salary, regardless of the number of hours worked, and pay overtime at a half hourly rate for time worked over 40 hours in a week by dividing the fixed salary by the number of hours worked in a week. The idea is that employees already receive the first portion of the overtime rate in the fixed salary.

The Court stated that this method, although permitted under federal law, was not consisted with state wage and hour law, which requires that employees be paid for overtime “not less than one and one-half times” the employee’s regular rate. Employers must stop using the FWW method of calculating overtime and ensure that employees receive one and a half times the regular rate of pay for overtime hours worked.

Action Items

  1. Have payroll processes updated immediately.
  2. Review pay structures for compliance.
  3. Have payroll administrators trained on overtime calculations.
  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.

© 2019 ManagEase

Washington: No Separate Rate for Non-Piece Work Time

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All Employers of WA Employees

EFFECTIVE

September 5, 2019

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(888) 378-2456

In Sampson v. Knight Transp., Inc., the Washington Supreme Court told a federal district court that the Washington Minimum Wage Act (MWA) does not require non-agricultural employers to pay piece-rate employees per hour for time spent performing activities outside of piece-rate work. As long as employee total wages for the week do not fall below the statutory minimum wage for each hour worked, the employer is in compliance with the MWA.

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December Updates

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Varies

EFFECTIVE

Varies

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(888) 378-2456

This Short List addresses the following topics:
  1. 2020 Minimum Wage Increases for Federal Contractors
  2. Second Circuit: Sexual Harassment vs. Sex Discrimination
  3. Third Circuit: Blue Penciling Noncompete Agreements is Okay
  4. Sixth Circuit: Statute of Limitations Cannot be Shortened for Title VII Cases
  5. Ninth Circuit: Home Care Workers’ Overtime Rule Retroactive Effective Date Applied
  6. Tenth Circuit: FLSA Applies to Workers in Cannabis Industry
  7. California: Calculating Meal and Rest Premiums Clarified
  8. California: Mandatory Service Charges May be Gratuities
  9. Bernalillo County, NM: PTO Start Date Moved Up
  10. New York: Reproductive Health Decisions Protected
  11. New York City, NY: Guidance on National Origin/Immigrant Status-based Discrimination
  12. Oregon: Don’t Retaliate – Even After Termination
  13. Columbia, SC: Criminal and Salary History Inquiries Banned
  14. San Antonio, TX: Paid Sick Leave on Hold – Again

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