June Updates

U.S. Supreme Court: Title VII Claims to the EEOC are Merely Procedural and Not Jurisdictional to Courts

On June 3, 2019, in Fort Bend County v. Davis, the U.S. Supreme Court stated that employees are not required to file a claim with the EEOC before filing a lawsuit in court for alleged Title VII violations. Specifically, the Court stated that the requirement to first file a claim with the EEOC is merely a procedural one, and does not automatically prohibit a court from hearing the case. Rather, the onus is on the employer to raise an objection for “failure to exhaust” all remedies by not making the EEOC claim. If an employer fails to raise this objection at the outset, it may waive its ability to raise it as an affirmative defense later in the case.

There, an employee failed to amend her original EEOC charge to include “religion” as a basis of discrimination, but nonetheless filed a lawsuit based in part on religious discrimination. The employer did not raise this procedural issue until five years into the litigation. Although the practical implication there was that the employee could pursue her Title VII claims because the employer’s objection was not timely according to the Fifth Circuit, the Supreme Court acknowledged that an employee would be “foolhardy consciously to take the risk that the employer would forgo a potentially dispositive defense” by not filing an EEOC claim first. Regardless, employers must take extra care to review EEOC claims and lawsuits filed under Title VII so as not to waive any potential defenses.

U.S. Supreme Court: State Wage and Hour Rules Don’t Apply to Workers on the Outer Continental Shelf

On June 10, 2019, in Parker Drilling Management Services, Ltd. v. Newton, the U.S. Supreme Court stated that workers on drilling platforms off the coast of California were subject to federal wage and hour laws, unless there was a gap in federal law that could be adopted by applicable state law. Federal law was used there because the drilling platforms were located on the Outer Continental Shelf, which is governed by federal law. This meant that the employee’s claimed standby time and minimum wage rates were governed by federal law, because there was no gap in federal law for state law to fill. Specifically, the Fair Labor Standards Act (FLSA) already provided rules in those areas.

DOL Issued Updated Poster for Federal Contractors and Subcontractors

The U.S. Department of Labor’s Office of Labor-Management Standards (OLMS) released an updated version of the Employee Rights Under the National Labor Relations Act notice, which federal contractors and subcontractors must display in the workplace in a conspicuous location frequented by employees. If a significant portion of an employer’s workforce is not proficient in English, the notice must be displayed in the languages they speak.

California: July 1st REMINDERS for Employers

Minimum wage increases occur in various cities and counties in California as of July 1^st, such as the City and County of Los Angeles. Employers should increase employee wages to at least the minimum wage required in their location. Be sure to display the most current minimum wage rate posters in common areas frequented by employees.

Employers will be able to register for the CalSavers mandatory retirement program starting on July 1^st. There will be a phase in period for applicable employers. Eligible employers with more than 100 employees will be mandated to participate by June 30, 2020; employers with more than 50 employees will be mandated to participate by June 30, 2021; and all other eligible employers with five or more employees will be required to participate by June 30, 2022.  However, any employer may voluntarily choose to allow participation in the Program once it is open for enrollment.

Emeryville, CA: July 1st Minimum Wage Increase Paused for Small Independent Restaurants

The Emeryville City Council recently voted to put the July 1^st minimum wage increase on hold until July 1, 2020 for small independent restaurants, which have 20 or fewer locations globally. The minimum wage rate will remain $15 per hour, and the next increase will be at 93 percent of the minimum wage rate paid by “employers which are not small businesses.” After that, the small, independent restaurant minimum wage rate will increase each year by one percent of the minimum wage paid by employers that are not small businesses, until it is equal to the minimum wage paid by employers that are not small businesses, beginning on July 1, 2027.

Colorado: Wage Garnishment Reform on the Horizon

HB19-1189 changes the maximum amount of an individual’s disposable weekly earnings that are subject to garnishment to 20% (down from 25%), or to 40 times (up from 30 times) the amount an individual’s disposable weekly earnings exceed the state or federal minimum wage.  Additionally, disposable earnings does not include the cost of any health insurance for the individual or members of the individual’s household that is provided by the individual’s employer and withheld from the individual’s earnings, regardless of whether the cost is voluntary or involuntary. The new law applies to all writs of garnishment issued on or after October 1, 2020, regardless of the date of judgment.

Connecticut: Minimum Wage Increasing to $15 an Hour

On May 28, 2019, Connecticut Governor Ned Lamont signed a bill that will gradually increase the statewide minimum wage each year, capping at $15.00 per hour by 2023.  The first increase goes into effect on October 1, 2019, in which the current minimum wage of $10.10 per hour increases to $11.  The minimum wage will increase by an additional dollar in each following year.

Minneapolis, MN: Sick and Safe Time Rule Is Still Up in the Air

In Minnesota Chamber of Commerce v. City of Minneapolis, the Minnesota Chamber of Commerce previously obtained an injunction from the Sick and Safe Time Law (SSTL) applying to employers with locations outside of Minneapolis, even though employees may work within the city. On April 29, 2019, the state Court of Appeal stated that the SSTL applies to employers with employees working in Minneapolis, regardless of whether or not they had facilities in the city. However, on May 29, 2019, the case was appealed to the state supreme court. This means the original injunction is still in place; however, employers should continue to watch this case closely as it could dissolve the current injunction at any time.

Kansas City, MO: Bans Pre-Employment Salary History Inquiries

On May 23, 2019, Kansas City passed Ordinance No. 190380 prohibiting employers from inquiring about a job applicant’s salary history, and using past wage information to determine whether to offer a job or set compensation rates. However, the ordinance does allow employers to discuss an applicant’s compensation expectations. Employers are permitted to discuss salary history if an applicant voluntarily, and without prompting, discloses their salary history. This rule does not apply to current employees, or former employees who apply for rehire within five years of separation. The ordinance takes effect on October 31, 2019, and applies to any employer in Kansas City with six or more employees.

Nevada: Mandatory Safety Training Expanded to Trade Show and Convention Workers

Beginning January 1, 2021, SB 119 will expand mandatory safety training for employees performing work at sites primarily used for trade shows, conventions, and related activities.  A “worker” is a person whose primary occupation is to perform convention services at a work site, and is not a person whose primary occupation is to perform catering, janitorial, photography, or security services, or to provide, maintain or arrange floral decorations or displays.  “Convention services work” is described as constructing, installing, maintaining, operating or removing trade show or exhibition displays, loading or unloading equipment and materials, erecting or dismantling booths and structures, rigging display areas, and installing temporary electrical power for use in display areas.

Workers are required to complete an OSHA-10 training course, and supervisory workers are required to complete an OSHA-30 training course, within 15 days of hire. The Nevada Division of Industrial Relations will issue completion cards to employees who successfully complete required courses.  Completion cards must be renewed every five (5) years.  Employers are required to suspend or terminate any employee who fails to present a valid completion card within fifteen (15) days of hire.

New Jersey: Required Workplace Postings Receive an Update

Earlier this year, Assembly Bill 3975 implemented changes to New Jersey’s Family Leave Act (FLA), Family Leave Insurance Act (FLI) and Security and Financial Empowerment Act (SAFE).  The bill went into effect on June 1, 2019, extending FLA to employers who have 30 or more employees and expanding the definition of “family member.”

To accompany these changes, the state recently issued updated posters.  Employers can click here for the new FLI poster and FAQ, and here for the new FLA poster.  The SAFE Act poster has not yet been updated.

Texas: Dallas and San Antonio Paid Sick Leave Set to Go into Effect August 1st

Dallas and San Antonio each passed local paid sick leave ordinances. However, there has been some question about whether or not they would go into effect. Specifically, the Texas legislature has been considering bills that would prohibit localities from enacting their own paid sick leave laws. Surprisingly, the Texas legislature did not get around to enacting a preemption bill before the end of the 2019 legislative session. This means that the Dallas and San Antonio paid sick leave laws will be going into effect as of August 1^st. Employers should ensure policies and payroll systems are updated. Incidentally, Austin’s paid sick leave ordinance is pending review in the state supreme court. An opinion there could still upend all local paid sick leave laws. Continue to look for updates on this topic.

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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