IMPORTANT! New Jersey: New Geotracking Notice Requirement for Employers

/in /by

APPLIES TO

All Employers with NJ Employees

EFFECTIVE

April 18, 2022

QUESTIONS?

Contact HR On-Call

(888) 378-2456

AB 3950 prohibits employers from knowingly making use of a tracking device in a vehicle used by an employee without providing written notice. “Tracking device” means an electronic or mechanical device which is designed or intended to be used for the sole purpose of tracking the movement of a vehicle, person, or device, but does not include devices used for the purpose of documenting employee expense reimbursement.

 

First, employers should note the distinction that the requirement is for employers to provide written notice rather than obtain written consent, as may be the case in some other jurisdictions. Second, the rule applies regardless of who owns the vehicle being used by the employee. Third, the definition of “tracking device” appears to be narrowly scripted. Presumably, it does not apply to smartphones, which have a multitude of functions other than GPS tracking, or other similar multipurpose devices. However, it may apply to movement tracking devices used for tracking routes or monitoring safe driving.

 

Employers who fail to comply may be subject to a $1,000 civil penalty for the first violation, and up to $2,500 for each subsequent violation. Notably, the bill does not apply to state or local government entities or public transportation systems. It also does not interfere with interstate commerce regulations, such as using electronic communication devices mandated by the Federal Motor Carrier Safety Administration.

 

Action Items

  1. Immediately provide written notice to employees of the use of geotracking devices.
  2. Restrict geotracking to legitimate business needs and avoid privacy violations, as may be required by federal and state law.
  3. Keep geotracking data confidential on a need-to-know basis.
  4. Have appropriate personnel trained on the new rule.
  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

New York: Sexual Harassment and Retaliation Protections Expanded

/in /by

APPLIES TO

All Employers with NY Employees

EFFECTIVE

As Indicated

QUESTIONS?

Contact HR On-Call

(888) 378-2456

New York recently passed several bills expanding protections against sexual harassment and retaliation. Employers should take note of the following new rules:

  • MAR 16, 2022 | Retaliation Expanded. S5780 prohibits employers from retaliating against employees by disclosing their personnel files because they opposed illegal practices or filed a complaint, testified, or assisted in a proceeding under the New York State Human Rights Law (NYSHRL).
  • MAR 16, 2022 | NYSHRL Applies to State and Local Governments. S3395a expands the definition of “employer” under the NYSHRL to include state and local governments.
  • JUL 14, 2022 | Sexual Harassment Hotline. S812A establishes a toll-free confidential hotline administered by the New York State Division of Human Rights (NYSDHR) to provide individuals with complaints of workplace sexual harassment counsel and assistance.

 

These bills are part of a current trend in the New York legislature to provide greater protections to sexual harassment victims. There are several other bills pending, such as prohibiting no-rehire agreements, prohibiting certain damages in connection with non-disclosure or non-disparagement agreements when connected to discrimination, harassment, or retaliation claims, and extending the statutes of limitations for filing administrative charges and lawsuits.

 

Action Items

  1. Have retaliation policies updated for compliance.
  2. Have appropriate personnel trained on the new requirements.
  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

Washington: Employment Nondisclosure and Nondisparagement Agreements Restricted

/in /by

APPLIES TO

All Employers with WA Employees

EFFECTIVE

June 9, 2022

QUESTIONS?

Contact HR On-Call

(888) 378-2456

Washington’s “Silenced No More Act” is creating significant changes for employers with nondisclosure and nondisparagement agreements. Following similar prohibitions in California, SB 1795 prohibits employers from entering into agreements that prevent current, former, or prospective employees or independent contractors, who are Washington residents, from disclosing or discussing conduct that occurs at the workplace, work-related events, between employees, or between an employer and an employee, whether on or off the employment premises, that the individual reasonably believes to be illegal discrimination, harassment, retaliation, wage and hour violations, sexual assault, or against public policy. Such agreements are void and unenforceable.

Read more

Wisconsin: State Supreme Court Clarifies Employers’ Burden Under Wisconsin Fair Employment Act

/in /by

APPLIES TO

All Employers with WI Employees

EFFECTIVE

March 10, 2022

QUESTIONS?

Contact HR On-Call

(888) 378-2456

In Cree, Inc. v. Palmer, the Wisconsin Supreme Court stated that employers may potentially discriminate against individuals with a domestic violence criminal history for purposes of the Wisconsin Fair Employment Act. A provision of the Act bars employers from discriminating against applicants and employees because of an arrest or conviction record, except where the records “substantially relate” to the job circumstances. Historically, Wisconsin’s Department of Workforce Development (DWD) has stated that domestic violence does not substantially relate to any job. In Cree, the Wisconsin Supreme Court disagreed.

 

There, a job applicant was initially hired, then had the offer revoked after the employer discovered eight crimes of domestic violence on the applicant’s criminal record during a background check. The applicant filed a complaint with DWD. If hired, the applicant would have worked with over 1,000 employees and regularly interacted with customers, both on and off the employer’s premises.

 

In its ruling, the Court gave a more simplified substantial relationship test for employers to follow. Employers must show that the facts, events, and conditions of the arrest or conviction must materially relate to the facts, events, and conditions of the job. In this case, the seriousness of the offense and the short amount of time that had passed between conviction and the denial of employment, combined with an employer’s general obligation to protect its employees and customers, were in the employer’s favor.

 

The Court’s decision clarifies how employers should make decisions when determining if an employee or applicant’s arrest or conviction is substantially related to the job they are performing. Employers will still need to analyze each situation on its own facts and circumstances. Before making any detrimental employment decision, employers are always encouraged to seek the advice of competent legal counsel.

 

Action Items

  1. Update background check processes based on the new test.
  2. Have appropriate personnel trained on background check requirements.
  3. Consult with legal counsel before taking adverse action against an employee or applicant.
  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.

© 2022 ManagEase

April Updates

/in /by

APPLIES TO

Varies

EFFECTIVE

Varies

QUESTIONS?

Contact HR On-Call

(888) 378-2456

IMPORTANT! EEO-1 Reporting for 2021 is Now Open Through May 17, 2022

On April 12, 2022, the EEOC announced that the 2021 EEO-1 Component 1 data collection portal is now open. The EEO-1 Component 1 report is a mandatory annual data collection that requires all private sector employers with 100 or more employees and federal contractors with 50 or more employees meeting certain criteria, to submit workforce demographics including data by race/ethnicity, sex, and job categories. The deadline for submitting and certifying 2021 EEO-1 Component 1 Reports is May 17, 2022.

 

Tuscon, AZ: Updates to Employer Permissions Under Local Minimum Wage Act

Effective April 1, 2022, under Tuscon Ordinance No. 11868, an employer may not require an employee to receive minimum wage payments on a paycard, reloadable debit card or similar method that requires the employee to possess a valid Social Security number. In addition, unless required by law or a court order, an employer may not make deductions that would bring the employee’s pay to less than minimum wage, including but not limited to amounts deducted for employer-provided meals, and damaged, lost, or spoiled property.

Read more

New Sexual Assault and Harassment Claims Opt-Out for Arbitration Agreements

/in /by

APPLIES TO

All Employers

EFFECTIVE

March 3, 2022

QUESTIONS?

Contact HR On-Call

(888) 378-2456

On March 3, 2022, the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021” came into effect. The Act allows employees, at their option, to forego arbitration in the event of a sexual assault dispute or sexual harassment dispute. This means that if an employee has signed an arbitration agreement, any provision requiring arbitration, or waivers prohibiting or waiving the right to participate in a joint, class, or collective judicial, administrative, or arbitral proceeding, regarding sexual assault or sexual harassment disputes are unenforceable at their choice, and they may pursue those claims in court.

Read more

Form I-9 Updates – Extensions and Expirations of COVID-19 Permissions

/in /by

APPLIES TO

All Employers

EFFECTIVE

As Indicated

QUESTIONS?

Contact HR On-Call

(888) 378-2456

Form I-9 Remote Inspection Accommodation Extended to April 30, 2022

In order to accommodate social distancing and remote work during the pandemic, the U.S. Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement announced special rules in 2020 permitting employers to remotely inspect employee work authorization documents visually for purposes of Form I-9 compliance, with physical inspection delayed to a later date.  This accommodation was set to expire on December 31, 2021 but was extended to April 30, 2022. This provision only applies to employers and workplaces that are operating fully remotely.

Read more

Second Circuit: Does Successor Liability Apply to ERISA Withdrawals for Unacquired Facilities?

/in /by

APPLIES TO

All Employers with CT, NY, and VT Employees

EFFECTIVE

January 27, 2022

QUESTIONS?

Contact HR On-Call

(888) 378-2456

On January 27, 2022, the Second Circuit Court of Appeals ruled that successor liability to fund an ERISA pension plan does not apply to a business who did not acquire the facility or the employees making the complaint.

 In 2008, a business acquired some of another business entity’s locations and employees. A warehouse in Syracuse, New York, along with its unionized employees, was not acquired, but the new business and former business agreed on an independent contractor relationship where the former business maintained control of the Syracuse warehouse facility, employees, and operations. The former business subsequently filed for bankruptcy, causing its pension fund to file suit against the new business for the former business’s outstanding withdrawal liability, claiming successor liability and common control over the Syracuse facility and its unionized employees.

 The Second Circuit stated that successor liability applies to ERISA withdrawal claims but did not apply in this case. Specifically, the new business could not be found evade liability simply because they declined to assume the liability in the first place. Moreover, the new business specifically didn’t acquire the Syracuse warehouse and employees because of issues with the pension fund.

 

Action Items

    1. Inquire about unfunded pension plans and benefits when making acquisitions.
    2. Have legal counsel ensure all acquisition contracts have clear terms on the liabilities each party assumes.
    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

Fourth Circuit: Overtime Gap Time is an FLSA Violation

/in /by

APPLIES TO

All Employers with MD, NC, SC, VA, and WV Employees

EFFECTIVE

January 5, 2022

QUESTIONS?

Contact HR On-Call

(888) 378-2456

In Conner v. Cleveland Cty., N. Carolina, the Fourth Circuit Court of Appeals stated that using overtime to pay for contractually owed straight time is a violation under the Fair Labor Standards Act (FLSA). There, an employee was allegedly not paid at contractually owed rates for straight time in weeks in which she also received overtime pay, resulting in an overall deficit in owed pay. Read more

California: FMSCA Preempts State Meal and Rest Rules for Short-Haul Drivers

/in /by

APPLIES TO

All Employers with Short-Haul Driver Employees in CA

EFFECTIVE

January 19, 2022

QUESTIONS?

Contact HR On-Call

(888) 378-2456

In Espinoza v. Hepta Run, Inc., the California Court of Appeal stated that federal law preempts California meal and rest rules for short-haul truck drivers. On December 28, 2018, the Federal Motor Carrier Safety Administration (FMCSA) issued a preemption order stating that California’s meal and rest break laws do not apply to drivers of commercial motor vehicles who are subject to the federal hours of service (HOS) requirements. Other litigation has addressed this issue for long-haul drivers (drivers that generally complete trips outside of a 150-mile radius from their work location), but the issue was unclear for short-haul drivers (drivers that generally drive within a 150-mile radius from their work location). Read more