On February 23, 2021, the Colorado Department of Labor and Employment (CDLE) clarified employers’ public health emergency leave (“PHEL”) obligations under the Healthy Families and Workplaces Act (HFWA).

First, employers must provide employees access to up to 80 hours of PHEL for full-time employees, and an equivalent amount to part-time employees based on the number of hours part-time employees work in a 14-day period. The rules clarified that part-time employees receive PHEL in “the greater of the number of hours the employee (a) is scheduled for work or paid leave in the 14-day period after the leave request, or (b) actually worked in the 14-day period prior to the declaration of the public health emergency or the leave request, whichever is later.”

Additionally, there was some question about whether newly hired employees would be entitled to PHEL. Because PHEL eligibility is tied to when an employee requests leave, all employees are entitled to PHEL regardless of their date of hire. Employers should review these changes immediately as they do not change existing rules, but merely clarify current requirements.

Action Items

In 2016, the City of Philadelphia passed the “Fair Practices Ordinance,” prohibiting employers from discriminating against applicants and employees on the basis of credit history and credit-related information.  On January 20, 2021, an amendment to this ordinance was enacted, decreasing certain employer and job-specific exemptions.

The ordinance prohibits employers from inquiring into, obtaining, or otherwise using credit-related information to take adverse employment actions, such as hiring, firing, promoting, or disciplining an employee or applicant.  Specific exemptions to this provision applied, but under the latest amendments effective February 20, 2021, law enforcement agencies and financial institutions (inclusive of insurance companies, banks, credit unions, etc.) are no longer exempt.

If employers intend to rely on any exceptions, the employer must first (1) disclose reliance upon credit history to the applicant or employee in writing, and provide the specific information the employer references; and (2) give the applicant or employee an opportunity to explain the circumstances surrounding the information prior to taking any adverse action.

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The U.S. Department of Labor (DOL) issued a Field Assistance Bulletin that provides guidance for when employers may electronically post or deliver certain required notices to employees under the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA), Section 14(c) of the FLSA (Section 14(c)), the Employee Polygraph Protection Act (EPPA), and the Service Contract Act (SCA).

In the Consolidated Appropriations Act of 2018, Congress amended section 3(m) of the Fair Labor Standards Act (FLSA) to prohibit employers from keeping tips received by their employees, regardless of whether the employers take a tip credit under section 3(m). The U.S. Department of Labor (DOL) recently issued a final rule amending its tip regulations to address these amendments. Key changes include:

• Tip pools where no tip credit is taken may include employees who do not customarily and regularly receive tips;
• Employers, managers, and supervisors are expressly prohibited from keeping employee tips;
• If using a mandatory tip pool, employers must distribute the tips no less often than when they pay wages;
• There is a new recordkeeping requirement for employers who do not take a tip credit but collect employees’ tips to operate a mandatory tip pool; and
• Employers may take a tip credit for employee time performing non-tipped duties contemporaneously with their tipped duties, or for a reasonable time immediately before or after performing the tipped duties, thereby eliminating the former 80/20 rule.

This rule was set to take effect March 1, 2021. However, because of the pending regulatory review ordered by the current presidential administration, it is now proposed to take effect May 7, 2021, assuming it passes review. Keep in mind some states have more strict requirements than what is permitted at the federal level. Additionally, there are expected to be legal challenges to the new rule. Continue to look for updates on this developing topic.

Action Items