Cincinnati, OH: Salary History Inquiries Now Prohibited

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All Employers with Cincinnati, OH Employees

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March 13, 2020

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On March 12, 2019, a new ordinance amended the Cincinnati, Ohio city code to make it unlawful for employers to ask job applicants about prior salary history or current earnings, among other provisions, with few exceptions.  Like other states and localities implementing similar prior salary history bans, this measure is intended to address discriminatory pay practices that are perpetuated by basing an applicant’s salary on historical compensation data.

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Pittsburgh, PA: Expanded Protections for Pregnant Workers – AND Their Partners

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All Employers with 5 or More Pittsburgh, PA Employees

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March 15, 2019

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Over the last few years, more and more cities and states have increased anti-discrimination protections for pregnant workers, but the city of Pittsburgh has become one of the first in the nation to extend similar protections to the partners of pregnant employees.  This amendment to existing city code comes by way of a new ordinance unanimously passed by the Pittsburgh city council.

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Washington: New Administrative Policy on Tips

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All Employers with tipped WA employees

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March 6, 2019

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The Washington Department of Labor & Industries recently issued an administrative policy providing guidance on tips, gratuities, and service charges under the Washington Minimum Wage Act. Key portions of the policy include:

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April Updates

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Varies

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Varies

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This Short List addresses the following topics:
  1. OFCCP: Corporate Scheduling Announcement List Published for Federal Contractors
  2. VEVRAA Hiring Benchmark Lowered for Affirmative Action Plans
  3. Fifth Circuit: Independent Contractor Classification in Oilfield Industry Re-visited
  4. California: NEW Posting Requirement as of April 1, 2019
  5. California: Required Employee Pamphlets Updated
  6. California: Employers Are Liable for Wage and Hour Claims Without Accurate Time Records
  7. Reminder: San Francisco 2018 Employer Reporting Deadline is April 30, 2019
  8. San Francisco, CA: Minimum Wage to Increase July 1, 2019
  9. Massachusetts: State and Federal Overtime Exemptions are Not Identical
  10. Michigan: Paid Sick Leave FAQ’s and Poster Released
  11. New York: 24-Hour Home Care Pay Decided by Court of Appeal
  12. Oklahoma: Medical Marijuana Accommodations Clarified
  13. South Carolina: Labs Liable to Workers for False Positive Drug Tests

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Hold On to Your Hats – Expanded EEO-1 Pay Data May Need to Be Reported for 2018

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All Employers Required to Submit EEO-1 Reports

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March 4, 2019

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A Washington, D.C. federal district court judge in National Women’s Law Center v. OMB recently stated that the previously revised EEO-1 report, including employee pay data, is the form employers should be using to submit their required Employer Information Report. In 2016, the EEOC proposed changes to its employer data collection requirements to add 12 pay bands for the 10 job categories that are tracked in EEO-1 reporting. After proposed revisions, the rule was approved by the Office of Management and Budget (OMB) and the revised EEO-1 form was issued. However, following the 2016 presidential election, the OMB directed the EEOC to issue a stay of the form’s release, which it did, and the EEOC subsequently removed the revised EEO-1 form from its website.

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Third Circuit: FAAAA Does Not Preempt State Independent Contractor Laws

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All Employers with DE, NJ, PA, or Virgin Islands Employees

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January 29, 2019

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In Bedoya v. American Eagle Express Inc., the Third Circuit Court of Appeal stated that the Federal Aviation Authorization Administration Act of 1994 (FAAAA) does not preempt New Jersey’s wage and hour laws, permitting delivery drivers to continue with a suit under state wage and hour laws for improper classification as independent contractors.

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Sixth Circuit: Off-Duty Law Enforcement Misclassified as Independent Contractors

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All Employers of KY, MI, OH, or TN Employees

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February 12, 2019

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In Acosta v. Off Duty Policy Services, Inc., the Sixth Circuit applied the six-factor “economic reality” test to determine whether off-duty officers were misclassified as independent contractors for purposes of the Fair Labor Standards Act (FLSA). There, the employer provided private security services using off-duty, sworn police officers, as well as nonsworn workers. The workers were allowed to accept or reject work assignments, were provided basic equipment, but had to supply their own vehicles and uniforms. The sworn officers typically wore their officer uniforms and used their patrol vehicles, while the nonsworn workers had to use their own police-style vehicle.

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Ninth Circuit: Joint Employers Are Liable for Non-Workplace Matters Under Title VII for H-2A Workers

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All Employers with AK, AZ, CA, HI, ID, MT, NV, OR, WA, Guam, or Northern Mariana Islands Employees with H-2A Visas

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February 6, 2019

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In EEOC v. Global Horizons, Inc., the Ninth Circuit stated that because employers of H-2A workers are required to provide housing, meals and transportation as “material terms and conditions” of their employment, these employers can be liable for such non-workplace matters under Title VII, even if the employers contract with a third party to provide those work benefits. There, two orchard growers hired Global Horizons as their staffing firm to recruit agricultural workers using H-2A visa authorizations. Two of the workers filed a discrimination claim against the growers and Global Horizons, claiming poor working conditions, substandard living conditions, and unsafe transportation based on their race and national origin.

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California: New Independent Contractor Test for Domestic Caregivers

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All Employers with CA Independent Contractors Who Are Domestic Caregivers

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January 11, 2019

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In Duffey v. Tender Heart Home Care Agency, LLC, the California Court of Appeal recently applied yet another independent contractor test to domestic caregivers who are subject to the Domestic Worker Bill of Rights (DWBR). Specifically, the DWBR states that an employment relationship exists under two possible scenarios. First, employment occurs “when the hiring entity exercises control over the wages, hours, or working conditions of a domestic worker.” The court noted that an employer need only have control over one of these characteristics, not all three. Second, employment is also defined “when a common law employment relationship has been formed.” This is analyzed using the Borello test.

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California: Labor Commissioner Challenges Federal Preemption of Meal and Rest Break Rules

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All Employers with CA Employee Truck Drivers Subject to HOS Regulations

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February 6, 2019

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California Attorney General Xavier Becerra recently announced that the California Labor Commissioner intended to challenge the Federal Motor Carrier Safety Administration’s (FMSCA) determination that federal hours of service (HOS) regulations preempt California meal and rest period regulations for property-carrying commercial vehicle drivers. Specifically, the FMSCA announced California meal and rest period regulations were incompatible with federal regulations, disrupted interstate commerce, did not offer any safety benefits beyond that already covered by federal law, and were overly burdensome and difficult to regulate. In response, on February 6th, the California Labor Commissioner filed a petition with the Ninth Circuit Court of Appeal, requesting that the circuit court review and reverse the FMSCA determination.

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