March Updates

Second Circuit: ERISA Plans Can Be Modified Absent Fraud or Mistake

In Laurent v. PricewaterhouseCoopers LLP, the Second Circuit Court of Appeal stated that where a retirement plan violates Employee Retirement Income Security Act (ERISA), the court can require that the plan be modified to bring it into compliance with ERISA, without any allegation of fraud or mistake, and then order that benefits be recalculated and paid in accordance with the modifications. Employers should have retirement plans reviewed for compliance with ERISA.

10^th Circuit: Colorado Home Healthcare Workers are Not Entitled to Overtime

On February 19, 2020, in Jordan v. Maxim Healthcare Services, Inc., the 10^th Circuit Court of Appeal stated that the Colorado Minimum Wage Order does not require overtime wages to be paid to home healthcare workers. Specifically, the Wage Order exempts “companions” employed by households or family members to perform duties in private residences from receiving overtime wages. The court said that home healthcare workers working for third-party employers—rather than directly for households or family members—fall within the companionship exemption.

California: Wage and Hour Concerns for Coronavirus

The California Labor Commissioner issued a FAQ on what employers can do to manage the corona virus, including use of paid sick leave, reporting pay for employees who are sent home due to illness, and reductions in pay for exempt employees. Be sure to add this to your resource tools when managing employee illness.

California:  Emergency Wildfire Smoke Regulations Renewed Again

Last year, Cal/OSHA implemented emergency wildfire smoke regulations requiring employers to monitor the air quality index and make accommodations to reduce employee exposure to smoke.  Due to the weather conditions this winter, Cal/OSHA decided to renew the emergency regulations, extending them another 90 days. Employers engaged in outdoor industries should continue to follow the guidelines set by Cal/OSHA.

Denver, CO: Anti-Discrimination Protections Expanded

On January 30, 2020, the Denver City Council amended its Anti-Discrimination Ordinance to include protections on the basis of gender, gender identity and expression, ethnicity, citizenship status, and immigration. These protections do not eliminate federal and state requirements for work authorization. The Ordinance also added reasonable accommodation requirements for pregnancy, childbirth or related medical conditions, and protections for breastfeeding “in any place that a person has a right to be.”

District of Columbia: Notice Requirements for Paid Family Leave

Effective February 1, 2020, employers covered by the DC Paid Family Leave Act (PFLA) must provide notice to employees of their rights under the act.  Employers are required to post an official notice in all worksites with covered employees, and provide copies to remote employees.  In addition to the posting, employers must provide electronic or physical notice to employees at the following times:

1. At least once between February 1, 2020 and February 1, 20210, then annually thereafter;
2. At time of hire; and
3. Whenever notice is received that the employee has a need for leave that may qualify for PFLA benefits.

Illinois: Guidance Issued on Sexual Harassment Requirements

As of January 1, 2020, Illinois employers are required to provide annual sexual harassment training to employees. The Illinois Department of Human Rights (IDHR) has issued guidance on training standards for all employers, for restaurants and bars (who have separate requirements), and a required policy for restaurants and bars. The IDHR also released FAQs to help employers. Review the new guidance on the IDHR’s website.

Minneapolis, MN: Local Minimum Wage Law is Given a Green Light

Minneapolis enacted a minimum wage ordinance that was challenged as being preempted by the Minnesota Fair Labor Standards Act. On March 4, 2020, in Graco, Inc. v. City of Minneapolis, the state court of appeal stated that the City had the ability to enact a local minimum wage law and it was not preempted. Employers should ensure compliance with the required applicable minimum wage.

St. Louis, MO: Ban-the-Box in Effect for Private Employers

Effective January 1, 2021, employers in the City of St. Louis with 10 or more employees will be prohibited from inquiring into criminal history on hiring forms and job applications, barring applicants from applying to job postings based on criminal history, or investigating criminal backgrounds until after an initial interview and selection process.  As usual, exclusions apply for positions where federal, state, or local requirements prevent employers from hiring individuals with certain criminal history. Employers can read the text of the ordinance here.

New Mexico: Workers’ Comp Claim Doesn’t Apply to Tribal Casino

On January 16, 2020, in Mendoza v. Isleta Resort and Casino, the New Mexico Supreme Court said that an employee could not claim a violation of her state workers’ compensation benefits because of the tribal casino’s sovereign immunity. The Court indicated that the state attorney general could sue to enforce the casino’s Compact with the state, which required that the casino maintain workers’ comp benefits.  However, the compact itself did not create a private right of action because the employee was not a party to the Compact. Employers should review their obligations with legal counsel in light of this ruling.

New York: Statewide Salary History Ban FAQs

On the heels of New York’s statewide salary history ban comes an FAQ intended to further clarify the provisions of the law.  The FAQ provides guidance for employers implementing the new regulations, such as defining which applicant, employee, and contractor populations it applies to, and when salary history can be disclosed.

New York City, NY: Contractors/Freelancers Must Receive Anti-Harassment and Discrimination Protection & Training

Effective January 11, 2020, all independent contractors and freelancers are protected from employment discrimination and harassment under New York City’s Human Rights Law.  Contractors and freelancers also have the right to reasonable accommodations for disabilities, pregnancy and lactation, religious observances, and more.

In addition, employers of 15 or more people must provide annual sexual harassment training to independent contractors or freelancers who work more than 80 hours in a year, and for at least 90 days.  However, if a contractor or freelancer has received training at another workplace, they may provide proof of completion of training to other worksites to meet this requirement. Employers can view the NYC Commission on Human Rights’ fact sheet here.

Philadelphia, PA: Salary History Inquiry Ban is Back in Effect

Philadelphia’s salary history Inquiry Ban was set to go into effect in 2017. Following a legal challenge, an injunction prevented the rule from taking effect, except for the prohibition against using salary history information. On February 6, 2020, the Third Circuit Court of Appeal overturned the injunction, which means that employers cannot inquire into applicants’ salary history, require that salary history be disclosed, condition an interview or employment on disclosure, or rely on the information to set wages unless they “knowingly and willingly” disclosed the information to the employer.

Columbia, SC: Criminal and Salary History Ordinance No Longer Applies to Private Employers

Last year, the city of Columbia, South Carolina passed an ordinance that limited employers from inquiring into criminal background or salary history.  The ordinance included a very broadly defined scope of “employers,” including both City and private employers.  The ordinance has since been formally amended to remove private businesses from the definition of “employer.”  Private employers with no contracts or vending relationship with the City of Colombia are no longer covered by the requirements of the ordinance.

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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