February Updates

REMINDER: Post Form 300A in the Workplace

‘Form 300A: Don’t Forget to Post Starting February 1’ Remember that you need to post the Form 300A summary of job-related injuries and illnesses from 2018 at your place of business from February 1 through April 30.

Upcoming Changes to H1-B Applications

The U.S. Citizenship and Immigration Services (USCIS) recently published a final rule discussing changes to processing H-1B visa petitions. Specifically, beginning in April 2019, USCIS will conduct a lottery for the first 65,000 visas with both postgraduate and non-postgraduate petitions, and then the 20,000 Masters Cap lottery will be selected from the remaining postgraduate degree holders. The goal is to increase awarding H-1B visas to postgraduate degree holders. Additionally, beginning in April 2020, USCIS will roll out an electronic filing system for H-1 petitions, and eliminate paper petitions. Petitions filed in April 2019 will still be submitted on paper.

Recent OSHA Updates

Final Rule on Crane Operator Qualification and Certification

After several years of review, OSHA has issued its final rule setting forth new guidelines on operating cranes, including new requirements for operator qualification, training, and certification. The extensive new requirements follow a “gold standard” of safety and follow a three-pronged qualification structure. The rule went into effect on December 10, 2018. Employers with Employees who operate cranes should review their safety program to ensure compliance with these new requirements.

OSHA Issues FAQ on Occupational Exposure to Silica

On January 22, 2019, OSHA published Frequently Asked Questions (FAQs) for guidance on its final rule for occupational exposure to silica. Employers should review the FAQs to ensure compliance with the final rule.

Department of Labor Penalty Increases

On January 23, 2019, the Department of Labor published the civil money penalty inflation adjustments for violations of the Fair Labor Standards Act, Occupational Safety and Health Act, and Family and Medical Leave Act, among others. Employers should note increased penalties are effective January 24, 2019.

California: Human Trafficking Required Posting Available; DE 2588 Form Updated

In late 2018, a number of California bills were passed that increased training and notice requirements in an effort to combat human trafficking.  Covered businesses are required to post a human trafficking notice in a location conspicuous to employees and the public.  The notice must be posted in English, Spanish and one other language that is most widely spoken in the county in which the business is located.  Employers can view more information and download the model notice from the Office of the Attorney General’s website.

Additionally, the DE 2588 form (Disability Insurance (DI) and Paid Family Leave (PFL) Weekly Benefit Amounts) was updated to show rates for claims beginning on or after January 1, 2019.  Employers can download a copy of the form on the EDD website.

California: Labor Commissioner Publishes Blacklisted Port Trucking Companies

Effective January 1, 2019, SB 1402 imposes joint employer liability on employers who hire port trucking companies with certain unpaid employment-related judgments.  On January 2, 2019, the Division of Labor Standards Enforcement (DLSE) posted a blacklist naming port trucking companies with unsatisfied court judgments, tax assessments, or tax liens.  Employers who hire companies on this blacklist may be held jointly liable for future labor and employment law violations.

The list is to be updated by the 5^th of each month, with companies who settle outstanding agreements removed within 15 days of furnishing approved settlement agreements or confirmation that they have paid owed monies. Employers who contract with port truck companies should regularly check the blacklist to avoid potential liability.

Daly City, CA: Minimum Wage Increases on February 13rd

On January 14, 2019, Daily City’s City Council voted to increase minimum wage to $12 per hour for all employers starting February 13, 2019.  The rate will increase to $15 per hour in 2021, with consumer price index increases thereafter. Employers must display a minimum wage poster and maintain payroll records for at least three years. Employers with employees in Daly City should prepare for the upcoming wage increase.

Fremont, CA: Minimum Wage Increases to $13.50 per Hour and Beyond

The Fremont City Council voted to increase the city’s minimum wage at a faster pace than California’s current statewide rate.  Effective July 1, 2019, businesses with 26 or more employees in Fremont will be required to pay employees a minimum wage of $13.50 per hour.  The minimum wage rate will increase each year until it reaches $15 by July 1, 2021; employers with 25 or fewer Fremont employees follow a similar schedule with a one-year lag in effective date.

There is one narrow exception to the new minimum wage ordinance – workers under 25 years old employed by a non-profit or government entity for less than 120 days are exempt from these requirements.

Michigan: New Employee Protections for State Contractors and Workers

Governor Whitmer recently issued executive directives extending employee protections for state contractors and workers. Specifically, Executive Directive 2019-09 requires 501(c)(3) religious organizations with contracts, loans, or grants with the executive branch to adhere to nondiscrimination requirements for any protected category. Executive Directive 2019-10 prohibits executive branch officials from inquiring into an applicant’s salary history until a conditional offer of employment has been made.

Missouri: Delegation Clauses in Arbitration Agreements Must Be Enforced

On December 18, 2018, in Soars v. Easter Seals Midwest, the Missouri Supreme Court stated that where an arbitration agreement between employee and employer delegates the issue of arbitrability to the arbitrator, courts must compel arbitration – even if the overall validity of the arbitration agreement is challenged. Additionally, the Court stated that an initial offer of at-will employment was sufficient consideration on which to base an arbitration agreement. Employers should have arbitration agreements reviewed by legal counsel for compliance.

New Mexico: State Fair Pay for Women Act Applies to Public and Private Employers

On October 26, 2018, the New Mexico Supreme Court denied certiorari Wolinsky v. New Mexico Corrections Department, where the state court of appeals stated that the state’s Fair Pay for Women Act (FPWA) applies to public and private employers. The state Court’s denial meant that the appellate court’s ruling stands. Specifically, the FPWA applies to “employers” of four or more employers, and requires employers to pay women at the same rate as male workers for jobs requiring equal skill, efforts, and responsibility under similar working conditions. Public employers should consider assessing pay structures for compliance.

New York: Paid Family Leave Benefit Increases

Effective January 1, 2019 New York’s Paid Family Leave Law is set to increase the value of benefits provided. Eligible employees will be entitled to a total of ten weeks of paid family leave during any given 52-week period. This is a two-week increase over 2018’s benefit. Eligible Employees may receive a maximum of 55% of their average weekly wage, maxing out at $746.41 per week.

Ohio: Franchisors are Not Joint Employers

On March 20, 2019, HB 494 changes the definition of “employer” to exclude franchisors’ relationships with franchisees and employees of franchisees, unless (1) the franchisor agrees to a joint employment relationship in writing, or (2) a court determines that the franchisor exercises a type or degree of control over the franchisee or franchisee’s employees that is not customarily exercised by a franchisor for the purpose of protecting the franchisor’s trademark, brand, or both. This definition is limited to Ohio’s Minimum Fair Wage Standards Law, the Bimonthly Pay Law, the Workers’ Compensation Law, the Unemployment Compensation Law, and the Income Tax Law. Employers must still take care to ensure compliance with federal franchise and joint employment laws.

Pennsylvania: Employers Must Protect Electronic Employee Information

Effective January 17, 2019, the Pennsylvania Supreme Court stated that employers have an obligation to protect employees’ electronically stored personal information.  In Dittman v. UPMC, a data breach at the University of Pittsburgh Medical Center resulted in 62,000 UPMC employees’ personal data (including birth dates, social security numbers, bank information, and more) being stolen. The Court stated that UPMC needed to exercise reasonable care in collecting and storing employees’ personal and financial information in its computer systems, and a third party in hacking and stealing the private information did not alleviate UPMC’s duty to protect the information.  To reduce the risk of litigation in the event of a data breach, employers should monitor IT systems and implement appropriate security measures.

Philadelphia, PA: Minimum Wage Increases for City Workers and Contractors

In December 2018, Major Jim Kenney signed an ordinance that increases the minimum wage for Philadelphia public workers (including government workers, contractors, and subcontractors, and any employers of entities with new, renewed, or amended contracts with the City).  The ordinance raises the current minimum wage of $12.20 to $13.25 on July 1, 2019, with increases scheduled each following year until the wage rate reaches $15.00 per hour in 2022.  Thereafter, the minimum wage may continue to increase depending on the Consumer Price Index.

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.

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