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This Short List addresses the following topics:
  1. 2020 Minimum Wage Increases for Federal Contractors
  2. Second Circuit: Sexual Harassment vs. Sex Discrimination
  3. Third Circuit: Blue Penciling Noncompete Agreements is Okay
  4. Sixth Circuit: Statute of Limitations Cannot be Shortened for Title VII Cases
  5. Ninth Circuit: Home Care Workers’ Overtime Rule Retroactive Effective Date Applied
  6. Tenth Circuit: FLSA Applies to Workers in Cannabis Industry
  7. California: Calculating Meal and Rest Premiums Clarified
  8. California: Mandatory Service Charges May be Gratuities
  9. Bernalillo County, NM: PTO Start Date Moved Up
  10. New York: Reproductive Health Decisions Protected
  11. New York City, NY: Guidance on National Origin/Immigrant Status-based Discrimination
  12. Oregon: Don’t Retaliate – Even After Termination
  13. Columbia, SC: Criminal and Salary History Inquiries Banned
  14. San Antonio, TX: Paid Sick Leave on Hold – Again


2020 Minimum Wage Increases for Federal Contractors

The U.S. Department of Labor (DOL) recently announced the 2020 minimum wage increases for federal contractors.  Effective January 1, 2020, federal contractors must pay a minimum wage of $10.80/hour to workers who perform work on or in connection to federal contracts covered by Executive Order 13658.  Covered tipped employees must be paid at least $7.55/hour. Employers can view the notice and updated Executive Order Worker Rights poster here.


Second Circuit: Sexual Harassment vs. Sex Discrimination

On August 15, 2019, in Menaker v. Hofstra University, the Second Circuit Court of Appeal cautioned employers against deviating from employer sexual harassment policies and inconsistent sexual harassment investigation procedures, because inconsistencies may look more like sex discrimination against alleged harassing male perpetrators rather than appropriate handling of sexual harassment claims.


Third Circuit: Blue Penciling Noncompete Agreements is Okay

On September 5, 2019, in Tilden Recreational Vehicles, Inc. v. Belair, the Third Circuit Court of Appeal stated that a district court was allowed to enforce a modified version of a noncompete agreement. There, the lower court had changed or “blue penciled” the agreement to no longer be unreasonable or overbroad, so that it could be enforced.


Sixth Circuit: Statute of Limitations Cannot be Shortened for Title VII Cases

On September 25, 2019, the Sixth Circuit court in Logan v. MGM Grand Detroit Casino stated that the statute of limitations cannot be contractually shortened for Title VII claims.  The limitations period in a statute is a substantive right that employees cannot prospectively waive, and enforcing uniform statutory limitations periods protects Congressionally-created schemes of enforcing rights, resolving disputes, and providing remedies, and allows Title VII to be applied consistently across the nation.


Ninth Circuit: Home Care Workers’ Overtime Rule Retroactive Effective Date Applied

On August 22, 2019, the Ninth Circuit court in Ray v. County of Los Angeles stated that a prior effective date would apply to a U.S. Department of Labor (DOL) ruling concerning overtime pay for home care workers.  Originally, the rule was struck down in 2014, then was reinstated the following year with a non-enforcement period until November 12, 2015.  In Ray, the court reverted the rule’s effective date back to its original January 2015 date.  The January 2015 effective date will be applied in any private suits concerning overtime pay for home care workers in the Ninth Circuit.


Tenth Circuit: FLSA Applies to Workers in Cannabis Industry

On September 20, 2019, in Kenney v. Helix TCS, the Tenth Circuit Court of Appeal stated that employer requirements under the Fair Labor Standards Act (FLSA) apply to employees in the cannabis industry. Even though marijuana may be illegal under the Controlled Substance Act (CSA), there is no exception under the FLSA for marijuana industry employers. Employers must still follow overtime exempt classifications regardless of other federal violations.


California: Calculating Meal and Rest Premiums Clarified

On October 9, 2019, in Ferra v. Loews Hollywood Hotel, LLC, the California Court of Appeal stated that meal and rest premiums must be calculated using the “regular rate of compensation,” which means the employee’s “base hourly rate,” and which is different from the “regular rate of pay” formula used to calculate overtime. Employers should review payroll procedures to ensure correct calculation of premiums.


California: Mandatory Service Charges May be Gratuities

On October 31, 2019, in O’Grady v. Merchant Exchange Productions, Inc., the California Court of Appeal stated that mandatory service charges may be gratuities that must be paid to employees. There, a banquet center charged a mandatory 21% service charge that it distributed partially among managers and non-service personnel, and retained the remainder. Because the case was in an early stage, the court was not able to define a specific rule based on the facts of the situation, other than to say that the possibility exists. Rather, it opened the door and the Labor Commissioner has apparently taken notice. Employers should consult with legal counsel on management of mandatory gratuities. Continue to look for updates on this topic.


Bernalillo County, NM: PTO Start Date Moved Up

Bernalillo County’s Wellness Act requires employers to provide Earned Paid Time Off. Recent amendments to the law move the start date up from July 1, 2020, to January 1, 2020. The 90-day waiting period was also eliminated. Employers should have PTO policies updated and ready to go for the new start date.


New York: Reproductive Health Decisions Protected

As of November 8, 2019, New York state, like New York City, now protects employees’ reproductive health decisions from discrimination, including the decision to use or access a particular drug, device, or medical service. There are also limitations on accessing employee personal information related to reproductive health decisions or denying employees the right to make their own decisions.


New York City, NY: Guidance on National Origin/Immigrant Status-based Discrimination

As of September 2019, the New York City Commission on Human Rights released new guidance on enforcing anti-discrimination measures for those of national origin and immigrant status.  The guidance reiterates key points that New York City employers must follow.  Some examples include:

  • Discrimination or harassment in favor of U.S. citizens over other individuals authorized to work in the U.S. is generally prohibited.
  • All hired employees must be treated in a non-discriminatory manner.
  • Employers may not ask for verification or reverification of work authorization documents beyond what is authorized by federal law.
  • Employers may not threaten workers with investigations by the U.S. Immigration and Customs Enforcement (ICE) as a method of harassment.

The guidance lists other key points, and additionally provides examples of discriminatory conduct that violates the New York City Human Rights Law.  Employers can review the guidance here.


Oregon: Don’t Retaliate – Even After Termination

On September 12, 2019, in McLaughlin v. Wilson, the Oregon Supreme Court stated that a former supervisor who made negative comments to an admissions officer of the former employee’s MBA program, engaged in unlawful retaliation. There, the supervisor had given a glowing recommendation for the employee, then engaged in sexual harassment, which the employee ultimately reported. After the employee left employment, the supervisor made false, negative comments to the admissions officer, which caused undue attention on the former employee. Employers must take care what is communicated about an employee following termination of employment.


Columbia, SC: Criminal and Salary History Inquiries Banned

Effective August 6, 2019, a new ordinance limits the ability of employers in South Carolina’s capital city to inquire into applicants’ salary history or criminal history.  The “Conviction and Wage History Prohibition in City Employment and by City Contractors and City Vendors” provision places certain restrictions on both public and private employers.

Employers cannot conduct a background check unless law or a good faith determination shows a background check is necessary for the position.  If so, job postings must contain a disclaimer advising that a background check will be done, among other language.  In addition, the background check cannot be conducted until the applicant has received certain documents, including a written conditional offer of employment.  Finally, employers must follow specific criteria when considering conviction history.  The provision also carries administrative requirements for privacy and record retention.

The salary history inquiry ban limits employers from inquiring into an applicant’s wage history on the job application, and only applies to employees of the City of Columbia, not private employers.


San Antonio, TX: Paid Sick Leave on Hold – Again

Recently, the city of San Antonio delayed implementation of Paid Sick and Safe Time (PSST) from August 1 to December 1, 2019, so that it could review and modify the law to withstand a legal challenge pending in federal court. However, before it became effective, on November 22, 2019, a Texas judge issued a temporary injunction preventing San Antonio’s paid sick leave ordinance from going into effect on December 1st. The state court intends to hold a trial on the merits of the enforceability of the law. Employers should consider whether to move forward with already planned paid sick leave policies or wait for a ruling from the court.


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.

© 2019 ManagEase

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