March Updates

Department of Labor Increases Civil Monetary Penalties for 2022

Effective January 15, 2022, the DOL increased civil money penalties imposed under federal laws like ERISA, OSHA, FLSA, and FMLA. The higher penalty amounts apply for all penalties issued after January 15, 2022 where the violation occurred after November 2, 2015. The updated penalty schedule is contained in recently issued final regulations.

 

U.S. Department of Labor Clarifies Federal Contractor Minimum Wage

The DOL recently issued a memorandum that explains Executive Order 14026, which increased the minimum wage for federal contractors to $15 per hour. The DOL clarified that the Order only applies to new contracts entered into on or after January 30, 2022, and contracts that are renewed, extended, or have an option exercised on or after January 30, 2022.

 

California: Supplemental Paid Sick Leave FAQs Available

On February 18, 2022, California’s supplemental paid sick leave (SPSL) went into effect. Since then, the Labor Commissioner updated the corresponding FAQs to provide some clarity on the new requirements. Employers should review the FAQs for further guidance on administering SPSL for employees.

 

California: AB 701 FAQ Clarifies Employer Obligations

On January 1, 2022, AB 701 created new obligations for certain employers with warehouse distribution centers that use production quotas. Shortly thereafter, the California Department of Industrial Relations issued an FAQ to help clarify the bill’s requirements, including as it relates to both current and former employees.

 

California: Retaliation Claim Standard Clarified

On January 27, 2022, in Lawson v. PPG Architectural Finishes Inc., the California Supreme Court stated that in order to claim retaliation for whistleblowing under Labor Code § 1102.5, an employee must follow the test set forth in Labor Code § 1102.6, which (1) requires an individual to show that retaliatory motives were a contributing factor to the adverse action, and (2) requires the employer to prove through clear and convincing evidence that its legitimate business reasons would have led to the same adverse action. This has essentially eliminated the McDonnell Douglas test as the standard for Section 1102.5 claims, which uses burden-shifting between the employee and the employer and does not require an employee to show that the employer’s legitimate reasons were pretextual.

 

REMINDER! California: Pay Data Reporting Due April 1, 2022

Since 2021, private employers with 100 or more employees who are required to file EEO-1 reports must also submit a pay data report to the Department of Fair Employment and Housing (DFEH) that contains information about their employees’ race, ethnicity, and gender in various job categories. The DFEH announced that because the statutory deadline falls on a state holiday, the deadline to file state reporting will be the following day – April 1, 2022. Note that this deadline occurs earlier than the EEO-1 reporting deadline!

 

Colorado: Restrictive Covenant Criminal Penalties Increased

On March 1, 2022, SB 271 made violations of Colorado’s restrictive covenant law a Class 2 Misdemeanor, which  could lead to 120 days’ imprisonment, a $750.00 fine per violation, or both. Generally, restrictive covenants are unlawful in Colorado, unless they fall within a limited exception. Employers should review restrictive covenant agreements with legal counsel for compliance.

 

Connecticut: State Family and Medical Leave Act Now Includes All Employers

As of January 1, 2022, the Connecticut Family and Medical Leave Act (CTFMLA) now covers all Connecticut employers. Under the CTFMLA, employers are required to provide eligible employees with up to 12 weeks of job protected leave within a 12-month period. Employees are eligible for leave if they have been employed with the employer for three consecutive months. Qualifying reasons include the birth of a child, an employee dealing with a health condition, or an employee caring for a family member with a serious health condition.

 

Minnesota: Attorney General’s Power Confirmed to Investigate Employer Pay Practices

On December 22, 2021, in Madison Equities, Inc. v. Office of Attorney General, the Minnesota Supreme Court confirmed that the state Attorney General has broad authority to conduct civil investigations into employer pay practices. The case is a good reminder for employers that Minnesota law allows the Attorney General to broadly interpret what information is relevant to their investigation. If you receive an inquiry from Minnesota’s Attorney General, consult with legal counsel quickly and respond promptly.

 

New Jersey: Successor Hotels Must Continue Predecessor Employee’s Employment For At Least 90 Days

As of January 18, 2022, AB 6246 requires successor hotels to offer predecessor employee’s employment for at least 90 days, absent termination for cause. Among other requirements, successor employers must retain written verification of employment offers for at least three years from the date of the offer and perform a written performance evaluation for each retained employee.

 

New Jersey: Increased Vaccination Requirements for Health Care Workers and High-Risk Settings

On January 19, 2022, Gov. Murphy’s Executive Order 283 aimed to implement vaccination requirements similar to the federal CMS rule for those in the healthcare industry to whom the federal CMS rule does not apply. Workers in facilities not subject to the CMS rule were required to obtain their first dose of the primary series of a COVID-19 vaccination by February 16, 2022, and they must provide proof that they are up to date with their COVID-19 vaccination (completed primary series and any eligible booster shots) by May 11, 2022. Workers who become newly eligible for a booster shot are required to submit proof of their booster shot within three weeks of becoming eligible.

 

Nevada: Wage and Hour Notice and Record Retention Requirements Clarified

Nevada law requires that employers provide employees with written notification of minimum wage adjustments. On December 30, 2021, in A Cab, LLC v. Murray, the Nevada Supreme Court stated that employers do not have to provide each employee with an individual notice. A notice posted in a common work area is sufficient. The court also reaffirmed that employers are required to keep records showing the number of hours employees worked per day per pay period.

 

New York, NY: New Job Ad Requirements for Employers

As of May 15, 2022, all employers looking to hire in New York City must post the minimum and maximum salary when advertising for jobs. The range may extend from the lowest to the highest salary the employer in good faith believes at the time of the posting it would pay for the advertised job, promotion, or transfer opportunity. This rule does not apply to temporary employment at a temporary help firm.

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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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