Last year, the Pennsylvania Department of Labor and Industry (DLI) published a final rule that was set to increase the salary threshold for the executive, administrative, and professional (EAP) exemption. The rule gradually increased the threshold on October 3rd of each year, with the first increase taking effect last year on October 3, 2020.

HB 336 not only repeals the salary exemption increase and restores it to its pre-2020 threshold, it also repeals the regulatory framework that defined the EAP exemption under the Pennsylvania Minimum Wage Act (PMWA). Effective September 7, 2021, the provisions regulating the definition of the executive, administrative, or professional exempt employee status will be repealed in their entirety. However, the EAP exemption itself still exists under the PMWA statute. The question then becomes “what are the criteria to qualify for the EAP exemption?”

Pennsylvania courts typically consider the federal authority that exists at the time of a state law enactment. With this change, courts may potentially interpret the PMWA’s EAP exemption by referring to the federal FLSA EAP exemptions existing when the PMWA was first enacted in 1968. However, given that the FLSA EAP exemptions have been revised in the years since, Pennsylvania employers may need to consider the EAP exemption with both historical and contemporary FLSA regulations in mind.

Action Items

Texas recently passed a couple of bills expanding protections for victims of sexual harassment in the workplace. Note that the new rules are exclusive to sexual harassment claims, and do not apply to discrimination on any other protected category basis.

HB 21 extends the time employees must file a sexual harassment claim with the Texas Workforce Commission from 180 days to 300 days. The new timeframe applies to alleged sexual harassment occurring on or after September 1, 2021.

SB 45 creates individual liability for supervisors, managers, human resource professionals, coworkers, and other third parties who are found to violate sexual harassment prohibitions. Specifically, the definition of “employer” will now also include any person who “acts directly in the interests of an employer in relation to an employee.” The bill also changes the standard of liability for an “employer” to when they “(1) know or should have known that the conduct constituting sexual harassment was occurring; and (2) fail to take immediate and appropriate corrective action.” Employers should ensure robust reporting and investigation procedures are in place to respond to claims of sexual harassment in the workplace.

Action Items

1. DHHS and DOJ Warn COVID Long-Haulers May be Protected Under ADA
2. Tax Credits Available for COVID-19 Vaccines Under ARPA
3. U.S. DOL Joint Employer Rule Rescinded
4. California: NEW Healthcare Worker COVID-19 Vaccine Requirements!
5. San Francisco, CA: NEW COVID-19 Vaccination Requirement for High-Risk Environments
6. Connecticut: NEW Long-Term Healthcare Worker COVID-19 Vaccine Requirement
7. Connecticut: Age Inquiries Banned Pre-Employment
8. Connecticut: Mandatory Harassment Training Not Required Under Specific Conditions
9. Illinois: Work Authorization Status is Protected from Discrimination
10. Nevada: NEW Mandatory Indoor Mask Requirement
11. New Hampshire: Wage and Hour Records Can be Retained Electronically
12. New Jersey: Expanded Employee Remedies for Employer’s Failure to Accommodate Disability
13. Oregon: COVID-19 Rules Off, On Again
14. Oregon: Employee Paid Sick Leave Use Expanded
15. Pittsburgh, PA: New Temporary Paid Sick Leave Enacted

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In Bey v. City of New York, the Second Circuit Court of Appeal stated that because OSHA regulations require a clean-shaven face when wearing a self-contained breathing apparatus (i.e., respirator), the firefighter plaintiffs with severe skin conditions could not be accommodated by allowing a small amount of facial hair growth.

Under the Americans with Disabilities Act (ADA), employers must make “reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual” unless the employer “can demonstrate that the accommodation would impose an undue hardship on the operation of [its] business.” The court here stated that “[a]n accommodation is not reasonable within the meaning of the ADA if it is specifically prohibited by a binding safety regulation promulgated by a federal agency.” Because OSHA’s regulation prohibits the accommodation the firefighters were seeking, they were not protected by the ADA under the circumstances.

Action Items

In Ferra v. Loews Hollywood Hotel, LLC, the California Supreme Court stated that premiums paid for missed meal or rest periods must be paid at the employee’s regular rate of pay. Employees’ regular rate includes hourly wages and nondiscretionary payments – the same rate used to calculate overtime pay. Additionally, the Court stated that its ruling is retroactive.

Employees must receive a minimum of an uninterrupted 30-minute meal period before the fifth hour of work, and at least an uninterrupted, 10-minute rest period for every four hours worked, or fraction thereof. Under Labor Code § 226.7(c), “the employer shall pay the employee one additional hour of pay at the employee’s regular rate of compensation for each workday that the meal or rest or recovery period is not provided.” (Emphasis added.) There, the employee received a base hourly wage and a quarterly nondiscretionary incentive payment; however, premium pay was only provided at the employee’s base hourly wage rate.

Ultimately, the Court stated that an employee’s “regular rate of compensation” has the same meaning as “regular rate of pay” used elsewhere in the Labor Code. “Regular rate of pay” includes hourly pay and any nondiscretionary incentive pay for work performed.

Action Items