In Oliver v. Konica Minolta Business Solutions USA, Inc., a California court stated that an employee’s commuting time to the first worksite of the day may be compensable time, depending on the level of control an employer exerts on the employee’s commute, and whether the employee may use commuting time for personal pursuits as well as business operations.

In Oliver, employees alleged that the employer needed to pay for the time and expense spent commuting to the worksite, because the employees were required to transport tools and equipment in their personal vehicles to the worksite, constituting a sufficient level of employer “control” over their commute time to equate it to working hours.  Upon closer review, it was determined that there is no singular “bright line” test to determine if a commute must be compensated.  Rather, an employer must examine any factors that limit or exert an employer’s control over an employee’s commuting time. For example:

• In Oliver, the employer argued that employees had the option of leaving tools and supplies at specified field locations, and were not required to take them home and transport them back to the worksite each night. If transportation of the tools and equipment were truly optional, the commuting time is not considered compensable.
• Additionally, commuting time is not compensable if the transportation of equipment does not prevent employees from utilizing commuting time for personal pursuits, such as running errands or picking up/dropping off children to school on the way.
• However, variation in tools and equipment and size of personal vehicles made it impossible for some employees to utilize commute time for personal pursuits (e.g., equipment occupied all passenger space, meaning employee could not run errands or pick up children). In this case, the issue of “control” would need to be more closely assessed and is most likely compensable.

Action Items

Beginning January 1, 2021, SB 664 requires employers to verify an individual’s employment eligibility after accepting an offer of employment, either by using the E-Verify system or completing Form I-9. Documentation must be retained for at least three years after the initial date of employment. Employers are not required to verify the employment eligibility of an employee hired before 2021, but must verify employment upon renewal or extension of an employment contract. Compliance creates a rebuttable presumption that a private employer did not knowingly employ an unauthorized alien, and protects employers from criminal or civil liability under state law where the employment verification process indicated that the individual was authorized to work in the U.S.

All public employers must register and use the E-Verify system to verify work authorization status. All state contractors and subcontractors must also use E-Verify. Subcontractors must verify in writing that they do not employ unauthorized aliens. State contractors must retain the subcontractor’s affidavit for the duration of the contract. Public employers, contractors, and subcontractors who have a good faith belief that a contracted party is violating these requirements, they must terminate the contracts immediately. Contract termination under this provision is not considered a breach of contract.

Action Items

The South Carolina Lactation Support Act (the “Act”) requires employers in South Carolina to make reasonable efforts to provide employees time and space to express breast milk for a one-year period following a nursing child’s birth.  The Act brings South Carolina’s local law in alignment with federal requirements to provide lactation accommodations, with some minor differences.

Employers must provide both exempt and non-exempt employees reasonable break time to express milk, or allow employees to utilize existing paid break or mealtime to do so.  Where possible, lactation breaks should run concurrently with existing employer-provided break time.  Employers are also responsible for providing a private location for a lactating employee’s use.  The Act clarifies that employers need not build a separate room, but the private location cannot be a toilet stall and should be in close proximity to the lactating employee’s work area.  Employers may be exempt from providing lactation breaks if doing so would cause an unreasonable burden.

Action Items

The Washington Department of Labor & Industries (DOLI) made changes to the minimum salary level and the job duties test for overtime exempt classifications. Although the salary level change went into effect July 1, 2020, the federal minimum level requirement is higher and must be followed until January 1, 2021 when the state minimum requirement will be higher at $827 per week ($43,004 annually) for small employers and $965 per week ($50,180 annually) for large employers. Eventually, the requirement will increase to 2.5 times the state minimum wage by 2028.

Additionally, the job duties test has been adjusted to align more closely with the federal job duties test, focusing on actual duties rather than job title or description. There is now one, rather than two, job duties test per exemption category. A main departure from the federal overtime exemption is that state rules do not permit a highly-compensated employee exemption.

Action Items

Website accessibility is an increasingly hot topic. As of January 1, 2020, businesses subject to the California Consumer Protection Act (CCPA) must make the required consumer notices and information that are posted on company websites reasonably accessible to consumers with disabilities.  Specifically, businesses must follow generally recognized industry standards, such as the Web Content Accessibility Guidelines, version 2.1 of June 5, 2018, from the World Wide Web Consortium, or provide information on how a consumer with a disability may access the notices in an alternative format.

More recently, in Martinez v. San Diego County Credit Union, a California Court of Appeal recently stated that accessibility standards for public accommodations, as prescribed in the Americans with Disabilities Act (ADA), can apply to a business’s website in cases where utilizing the website grants access to the business’s physical locations, goods, or services.  There, a visually impaired plaintiff sued a credit union whose website was not easily accessible using screen-reading software.

The court noted that the website housed a store locator and information about the credit union’s services, which made it easier for sighted customers to find physical locations to access service.  The link between the customer’s use of the website and their ability to access the physical location of the website and services triggered the ADA accessibility standard.  Ultimately, the court did not determine if the credit union’s website violated the law, but rather stated there was a potential claim for violation of ADA standards.

Action Items