Connecticut: Federal Law Does Not Preempt Medical Marijuana Protections for Employees under State Law

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August 8, 2017

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In Noffsinger v. SSC Niantic Operating Company LLC, a Connecticut federal district court stated that federal law concerning unlawful marijuana use does not necessarily preempt state-level protections for marijuana users.  In this case, Connecticut’s Palliative Use of Marijuana Act (“PUMA”) was found to preempt a handful of federal statutes when applied to the employment context.  This decision could have a major impact on employers who currently implement a zero-tolerance substance abuse policy in the workplace.

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Oregon: First State in the Nation to Pass Predictive Scheduling Law

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July 1, 2018

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Last year, Seattle and New York City both implemented secure scheduling ordinances.  Although this type of employee-friendly legislation appears to be gaining ground, Oregon has become the first state in the nation to do so with the signing of its Fair Work Week Act (the “Act”) on August 8, 2017.  The Act imposes a host of new requirements for employers in the retail, food service, or hospitality industries, with staggered effective dates for certain provisions of the Act.

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Oregon: Changes to Manufacturing Overtime Rules (Again)

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August 8, 2017

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Early this year, the Oregon Bureau of Labor and Industries (“BOLI”) published a new interpretation of how employers must calculate overtime hours for employees in a mill, factory, or manufacturing establishment.  This interpretation was swiftly overturned by a county court.  Now, Governor Kate Brown has signed H.B. 3458 into law, which codifies the applicable method to calculate overtime for these employees.

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New Hampshire: Franchisors are the Not Employers of its Franchisees/Franchisees’ Employees

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July 18, 2017

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In late July, New Hampshire Governor Jon Sununu signed Senate Bill 89, which clarifies how joint employer status is determined in reference to a franchisor/franchisee relationship.  The method of determining joint-employment status has experienced some back-and-forth since the 2015 Browning-Ferris decision – the U.S. Department of Labor initially implemented broad guidance on interpreting joint employment status, then withdrew the guidance. New Hampshire is the ninth state this year to enact a statute reducing the likelihood a franchisor may be deemed a joint employer.

Although Browning-Ferris involved a staffing agency, many business groups were concerned that the joint-employer standard of a party having “control” over the working conditions of the employee could impact franchisors.  New Hampshire’s Senate Bill 89 addresses this issue by stating that “a franchisor is only an employer if the franchisor agrees in writing to assume the role of employer or co-employer of the franchisee or the employee of the franchisee.”

 

Action Items

  1. Review the text of SB 89 here.
  2. Have franchise contracts reviewed by legal counsel for potential exposure.
  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.

© 2017 ManagEase, Incorporated.

New York, NY: Final Regulations for “Ban the Box” Go into Effect, Expand Employee Rights

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August 5, 2017

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New York City “banned the box” nearly two years ago with the implementation of the Fair Chance Act (the “Act”).  Recently, the NYC Commission on Human Rights published final regulations that expand upon the enforcement guidance implementing the Fair Chance Act.  These regulations clarify existing obligations and impose additional obligations on employers performing background checks on potential and existing employees.

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Washington: Supreme Court Clarifies Meal Break Requirements

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August 10, 2017

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Requirements for the timing and length of an employee’s meal break may vary from state to state.  In Washington, an employee who works five or more consecutive hours must be provided a minimum 30-minute meal period, unless the employee chooses to waive the meal break period. The Washington Supreme Court recently clarified the standard to determine an employer’s liability for a missed meal break.

Specifically, the state supreme court stated that a when an employee provides evidence that he or she did not receive a timely meal break, a greater burden exists on employers to prove that no violation of the Washington Administrative Code § 296-126-092 truly occurred.  An employer merely providing an employee the opportunity to take a meal break may not be sufficient to resolve employer liability. Rather, the employer must demonstrate either that no violation occurred and that the employee was actually provided a meal break, or that a valid meal waiver exists.

Action Items

  1. Revise procedures to ensure start and end times of employee meal periods are documented.  If an employee elects to waive a meal period, obtain a signed waiver from the employee.
  2. 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.

© 2017 ManagEase, Incorporated.

Washington: Pregnant Employees Must be Accommodated Regardless of Disability

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July 23, 2017

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Washington’s Health Starts Act (the “Act”) imposes new obligations on employers with pregnant employees.  In a departure from the federal Americans with Disabilities Act (“ADA”), the Act requires employers to provide reasonable accommodations to pregnant employees regardless of whether or not the employee is disabled by their pregnancy.  The Act provides a list of reasonable accommodations employers may need to provide, and includes other important restrictions on medical certification and the “undue hardship” exemption.

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West Virginia: New Civil Air Patrol Leave, Anti-Discrimination Provisions

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July 1, 2017

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Originally passed in April, Senate Bill 280—which implements an unpaid Civil Air Patrol Leave, among other new protections for members of the Patrol—went into effect as of July 1, 2017.  Employers should take note of the bill’s new leave and anti-discrimination provisions, and incorporate requirements into workplace policies and procedures accordingly.

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September Updates

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This Short List addresses the following topics:
  1. The Recent Federal Overtime Exemption Rule is Diminishing
  2. NLRB: More Examples of What is or isn’t Protected Concerted Activities on Facebook
  3. EEOC Must Reconsider Wellness Regulations
  4. Seventh Circuit: EEOC May Investigate Despite Right-to-Sue Letter and Issue of Judgment
  5. Arizona, Maryland, Wyoming:  Now Part of the E-Verify RIDE Program
  6. Berkeley, CA: Minimum Wage Increase, Paid Sick Leave, and Work Schedule Rules Will Soon Be In Effect
  7. San Diego, CA:  Equal Pay Bill for City Contractors and Consultants
  8. Santa Clara, CA: Santa Clara City’s Minimum Wage to Increase in 2018
  9. Connecticut: Anti-Discrimination Protections Expanded for Veterans
  10. Georgia: Amended Law Now Preempts Predictive Scheduling Ordinances
  11. New Jersey:  Anti-Discrimination Protections for Military and Veterans Expanded
  12. New York: Guidance on Tax Treatment of PFL Contributions and Benefits now Available
  13. Nevada: Pregnant Workers’ Fairness Act Poster Now Available
  14. North Carolina:  Fair Classification Act Emphasizes State Focus on Proper Employee Classification
  15. Texas: Hurricane Harvey Relief for Employees
  16. Washington:  New Biometric Information Protection law

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U.S. DOL Announces Intent to Repeal Rule Restricting an Employer’s Use of Tips Where No Tip Credit is Taken

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July 20, 2017

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On July 20, 2017, the Wage and Hour Division (“WHD”) of the U.S. Department of Labor (“DOL”) announced its intention to repeal a 2011 rule stating that customer tips are always the property of an employee, regardless of whether or not the employer takes a tip credit, and that employers were prohibited from using tip pooling to subsidize the hourly wages of untipped employees. Further, a DOL spokesperson reportedly told Bloomberg BNA that DOL investigators are forbidden from enforcing the 2011 regulation ahead of the proposed rule.  Once the rule is rescinded, employers who do not apply a tip credit against a tipped employees’ wages will be able to keep or distribute gratuities in any way the employer sees fit.

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