Ninth Circuit: Requiring Applicant to Pay for Pre-Hire Medical Testing Violated ADA

APPLIES TO

Employers with 15 or more AK, AZ, CA, HI, ID, MT, NV, OR, WA, Guam, and Northern Mariana Islands Employees

EFFECTIVE

August 29, 2018

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The Ninth Circuit Court of Appeal recently stated that an employer violated the Americans with Disabilities Act (ADA) by requiring a job applicant to obtain, and pay for, additional medical testing as part of a condition of employment.

Ninth Circuit: California State Law Governs Employment Classification of Truck Drivers

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Employers with CA Employees in the Motor Carrier Industry

EFFECTIVE

September 10, 2018

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In California Trucking Association v. Su, the Ninth Circuit stated that the Federal Aviation Administration Authorization Act (FAAAA) did not preempt California’s Labor Commissioner from using a state common law test to determine whether truck drivers are misclassified as independent contractors, because the test used is not related to prices, routes, or services. There, the California Trucking Association (CTA) filed suit against the Labor Commissioner claiming that owner-operator truck drivers are independent contractors, and asked the court for a declaration that federal law preempted the Commissioner from using the state’s standard.

California: New Employment Laws Coming in 2019

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All Employers with CA Employees

EFFECTIVE

January 1, 2019, unless noted otherwise

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Governor Brown recently signed numerous employment-related bills, impacting various industries and employment practices; among these are a package of bills following the #MeToo movement.  The below list summarizes some key bills.

Connecticut: Employees Have Medical Marijuana Protection for Use During Off-Work Hours

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All Employers with CT Employees

EFFECTIVE

September 5, 2018

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(888) 378-2456

In Noffsinger v. SSC Niantic Operating Company LLC, a Connecticut federal judge stated that no federal law prohibits off-work hours use of medical marijuana, as protected under the states’ Palliative User of Marijuana Act (PUMA). There, an applicant advised the employer during the pre-hire process that she used medical marijuana, as permitted under PUMA, at night during off-work hours to treat post-traumatic stress disorder. After testing positive for cannabis in her pre-employment drug test, the employer rescinded the offer of employment. The federal district court rejected the employer’s zero-tolerance drug policy in favor of PUMA’s protections, stating that the federal Drug Free Workplace Act (DFWA) only prohibits use and possession of illegal drugs while at work. Finally, although not expressly provided in the act, the court stated that PUMA implies a cause of action for discrimination. Otherwise, PUMA “would have no practical effect, because the law does not provide for any other enforcement mechanism.”

Action Items

  1. Have hiring practices and drug testing procedures reviewed to ensure compliance with PUMA and federal law.
  2. Have substance abuse policies updated.
  3. Have job descriptions reviewed to ensure compliance with federal and state laws, including essential functions of the job.
  4. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

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.

© 2018 ManagEase

Kentucky: State Supreme Court Bars Mandatory Arbitration Agreements

APPLIES TO

All Employers with KY Employees

EFFECTIVE

September 27, 2018

QUESTIONS?

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(888) 378-2456

In Northern Kentucky Area Development Dist. v. Snyder, the Kentucky Supreme Court stated that mandatory arbitration agreements violate KRS § 336.700; moreover, the law prohibits employers from refusing to hire or terminating employees on the condition that they waive any existing rights they would otherwise have against the employer. There, an employee claimed she was terminated in violation of the state’s Whistleblower Act. Because she signed a mandatory arbitration agreement, the employer unsuccessfully sought to enforce it. As a result, all employers should immediately have their arbitration agreements reviewed, updated, and re-signed by current employees, as applicable.

Action Items

  1. Have arbitration agreements updated consistent with this new ruling and confer with legal counsel on having current employees resign the agreement.
  2. Update offer letters to exclude condition of employment based on executing an arbitration agreement.
  3. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

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.

© 2018 ManagEase

Michigan: Statewide Paid Sick, Minimum Wage Increases on the Horizon

APPLIES TO

All Employers with MI Employees

EFFECTIVE

April 1, 2019

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(888) 378-2456

On September 5, 2018, the Michigan Legislature adopted the Earned Sick Time Act (ESTA) and the Improved Workforce Opportunity Wage Act (IWOWA). These bills introduce statewide paid sick and safe time as well as annual minimum increases, following closely in the footsteps of other states with paid sick and safe time (“PSST”) laws, though with some differences in policy.

October Updates

APPLIES TO

Varies

EFFECTIVE

Varies

QUESTIONS?

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(888) 378-2456

This Short List addresses the following topics:
  1. U.S. Department of Labor Issues Updated FMLA Forms
  2. EEO-1 Reporting Deadline Still March 31st
  3. NLRB: E-Verify Enrollment is a Mandatory Subject of Bargaining
  4. IRS Updates Paid Family Leave Tax Credit
  5. Sixth Circuit: Educational Institution’s Investigation Procedures Challenged in Title IX Case
  6. Seventh Circuit: Potential Back Pay in Hostile Work Environment Claims
  7. Ninth Circuit Affirms DOL Guidance on “20% Rule” for Tipped Employees
  8. California: IMPORTANT – Update on How Split Shifts Are Paid
  9. San Francisco, CA: Update Fair Chance Ordinance Notice/Poster
  10. New York: Home Care Workers’ “13-Hour Rule” is Invalid

Read more

New Wage and Hour Opinion Letters from the U.S. Department of Labor

APPLIES TO

Applicable Employers under the FLSA and FMLA

EFFECTIVE

August 28, 2018

QUESTIONS?

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(888) 378-2456

The U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD) recently issued six opinion letters related to compliance with the Fair Labor Standards Act (FLSA) and the Family Medical Leave Act (FMLA). The opinion letters are meant to provide clarity on employee rights and employer obligations as interpreted by the DOL.

USCIS Issues Revised Final Guidance on Unlawful Presence for Students and Exchange Visitors

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All Employers

EFFECTIVE

August 9, 2018

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(888) 378-2456

The U.S. Citizenship and Immigration Services (USCIS) published new guidance for individuals currently classified under student (F nonimmigrant), exchange visitor (J nonimmigrant), or vocational student (M nonimmigrant) status visas. The revised policy changes how USCIS calculates unlawful presence and how this is accrued for students and exchange visitors who fail to maintain their F, J, or M visitor status visas. Unlawful presence accrues any time a nonimmigrant remains in the U.S. beyond the expiration of their permitted stay period. Accruing more than 180 days of unlawful presence may result in a 3-year ban on entering the U.S. in the future.

Seventh Circuit: Fair Credit Reporting Act Pre-Adverse Action Requirements Are Actionable

APPLIES TO

Employers with IL, IN, WI Employees

EFFECTIVE

August 29, 2018

QUESTIONS?

Contact HR On-Call

(888) 378-2456

Contrary to the Ninth Circuit’s recently ruling, the Seventh Circuit Court of Appeal stated that an employer’s failure to provide a copy of an applicant’s background check report and notice of rights under the Fair Credit Reporting Act (FCRA) gives an applicant standing to sue the employer, because it amounts to an allegation of being deprived a chance to benefit. Employers are required to provide the report and notice to applicants under the FCRA so that they may have the opportunity to contest the accuracy or completeness of the information.