APPLIES TO All Employers in IL, IN, WI with Ministerial Employees

EFFECTIVE August 31, 2020

QUESTIONS? Contact HR On-Call (888) 378-2456

In Demkovich v. St. Andrew the Apostle Parish, Calumet City, the Seventh Circuit Court of Appeal stated that the ministerial exception does not bar hostile work environment claims under federal employment discrimination laws. Religious organizations may claim exemption from anti-discrimination laws in employment relationships with employees who have ministerial duties that meet the ministerial exception. The Seventh Circuit stated that this exception may not extend to situations beyond hiring and firing decisions.

There, a church music director was gay and had diabetes and related medical conditions. The employee was ultimately terminated because he entered into a gay marriage. However, he alleged that while he was employed, his supervisor created a hostile work environment by regularly humiliating and belittling him based on his sexual orientation and disability statuses. The Seventh Circuit said that the employee’s hostile work environment claim could proceed under Title VII of the Civil Rights Act of 1964.

Specifically, the court stated that (1) the First Amendment does not bar all hostile environment claims by ministerial employees; (2) the risk of procedural entanglement in such cases is modest because religious organizations have no generalized claim to immunity from litigation or regulation; and (3) in hostile environment cases brought by ministerial employees, there is some risk of substantive entanglement, but that risk does not appear so severe that all such claims must be dismissed. As a result, employers in the Seventh Circuit should review their policies and practices to ensure compliance with anti-discrimination laws.

Action Items

1. Have policies and practices to ensure compliance with anti-discrimination laws.
2. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

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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.

© 2020 ManagEase

APPLIES TO All Employers with 5+ CA Employees

EFFECTIVE January 1, 2021

QUESTIONS? Contact HR On-Call (888) 378-2456

The California Family Rights Act (CFRA) provides family and medical leave to employers that largely mirrors the federal Family and Medical Leave Act (FMLA), with a few differences. SB 1383 will make some significant changes in 2021, including the following.

• CFRA will be expanded to employers with 5 or more employees.
• The requirement that a number of employees work within 75 miles of the worksite to qualify is eliminated.
• CFRA includes leave because of a qualifying exigency related to the covered active duty or call to covered active duty of an employee’s spouse, domestic partner, child, or parent in the U.S. Armed Forces.
• It expands leave to care for others, including siblings, grandparents, grandchildren, domestic partners, children of domestic partners, and adult children (regardless of dependency).
• It eliminates the limitation of 12 weeks total of baby bonding leave for both parents at the same employer. Each parent will be able to each receive 12 weeks of leave.
• It eliminates the exception to reinstate salaried employees following leave if they are among the highest paid 10 percent of employees.

Additionally, employers with 50 or more employees may have to provide 12 weeks of leave under FMLA and another 12 weeks of leave under CFRA because of the expanded definition of “family member” where leave is available under CFRA, but not FMLA.

Finally, because CFRA will expand to employers with 5 or more employees, including leave following the birth, adoption, or placement of a child, the New Parent Leave Act will expire at the end of 2020.

Action Items

1. Review SB 1383 here.
2. Have leave policies and leave administration forms updated.
3. Have managers trained on the new leave requirements.
4. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

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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.

© 2020 ManagEase

APPLIES TO All Employers with CA Employees

EFFECTIVE September 4, 2020

QUESTIONS? Contact HR On-Call (888) 378-2456

AB 2257 amends and reconfigures AB 5 to expand exceptions to the definition of “independent contractor,” which uses the ABC rule set forth in Dynamex, and reverts instead to the Borello test for those exceptions. Some of the expanded exceptions include the following:

• Business-to-business relationships must meet a 12-factor test to then use the Borello test to determine independent contractor status. Additionally, the relationships must include sole proprietors or formed business entities, otherwise the ABC test must be followed.
• Referral agency exception was expanded to include things like consulting, youth sports coaching, wedding planning, caddying, and interpreting services, consulting.
• Professional services exception was expanded to include certain videographers and photo editors, specialized performers who teach “master classes,” and real estate appraisers. Additionally, some of the definitions for excepted professions were revised.
• Miscellaneous services were identified as being subject to the Borello test, under qualifying circumstances, such as recording artists, musicians, performance artists, freelance writers and photographers, photojournalists, photo editors, videographers, and other content contributors, landscape architects, certain field services for the insurance and financial services industries, manufactured housing sales, single-engagement events, international and cultural exchange services, and competition judging.

Otherwise, the Dynamex test remains in effect. Notably, California Proposition 22 provides further exceptions to AB 5 for rideshare and delivery drivers, if passed by voters in November. Continue to look for updates on this topic.

APPLIES TO As Indicated

EFFECTIVE September 9, 2020

QUESTIONS? Contact HR On-Call (888) 378-2456

The San Diego City Council passed emergency ordinances implementing rehire and retention requirements for certain employers in the commercial property, hotel, and event center industries.  The employer eligibility requirements vary depending on the industry, but the ordinances generally require the business to provide specific protections to laid-off employees, including the first right to available positions, notice of layoffs, and record retention requirements.

Rehire Ordinance

Covered employers.  The new protections apply to the following employers:

• Event Center employers with a premises of 50,000 square feet or 5,000 seats used for public performances;
• Hotels employers with a hotel of at least 100 guest rooms located in the city of San Diego; and
• Commercial property employers with premises located in San Diego employing 10+ janitorial, maintenance, or security service employees.

Covered employees.  The protections afforded by the ordinance apply to “laid-off employees,” defined as individuals who:

• Perform at least 2 hours of work within the city of San Diego in a particular week;
• Have at least six months of service with the employer (or three months or more in the 12 months preceding March 4, 2020);
• Were separated from service or failed to be scheduled for customary seasonal work on or after March 4, 2020 and before the termination of the statewide Declaration of Emergency;
• Were terminated due to government shutdown order, lack of business, reduction-in-force, or other economic and non-disciplinary reason; and
• Are not managers, supervisors, or confidential employees.

APPLIES TO All Employers with MI Employees

EFFECTIVE October 2, 2020

QUESTIONS? Contact HR On-Call (888) 378-2456

On October 2, 2020, the Michigan Supreme Court stated that the Emergency Powers of the Governor Act of 1945 (EPGA) was an unconstitutional delegation of power to the governor, and the Emergency Management Act (EMA) did not grant the governor the power to issue or renew any executive orders related to the COVID-19 pandemic after 28 days without legislative approval. Governor Whitmer has been relying upon the EPGA or EMA to issue over 100 emergency executive orders to manage the impact of COVID-19 on the state. This ruling essentially nullifies those executive orders. There is also a dispute over when the Court’s ruling will go into effect. At the very latest, it will be in effect by October 30, 2020.

In the meantime, state and local agencies are working to fill the gap that is left by the state supreme court’s ruling. For example, the Michigan Department of Health and Human Services (DHHS) issued an emergency order prohibiting certain gatherings based on size (excluding the workplace) and mandating masks in most circumstances (including in the workplace). The order expires October 30, 2020. Counties and localities are also issuing their own emergency orders requiring masks, social distancing, and other protective measures, such as Oakland County, Washtenaw County, and Ingham County.

Additionally, the Michigan Occupational Safety and Health Administration (MIOSHA) adopted an Interim Enforcement Plan providing penalties for an employer’s failure to keep employees safe, such as failure to maintain social distancing or require face coverings. Many of the requirements contained in Governor Whitmer’s executive orders are mirrored in MIOSHA’s guidance.

Employers should continue to monitor the situation closely as changes arise. Keep in mind that whatever requirements remain or are put in place are the minimum requirements for employers to follow; and employers may implement more rigorous standards for keeping employees safe.

Action Items