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This Short List addresses the following topics:
  1. California: Registered Fictitious Business Names May Be Listed on Pay Stubs
  2. Indiana: Leaving Work to Voluntarily Testify is Not Protected
  3. Kentucky: Attorneys Must Represent Employers at Unemployment Proceedings
  4. New York, NY: Bans Pre-Employment Marijuana Testing in 2020
  5. New York, NY: Prohibits Discrimination Based on Employee Sexual and Reproductive Health Decisions
  6. Westchester County, NY: Updated Guidance Issued on Paid Sick Leave


California: Registered Fictitious Business Names May Be Listed on Pay Stubs

On April 10, 2019, in Savea v. YRC Inc., the California Court of Appeal stated that an employer’s recorded and valid fictitious business name may be used on wage statements, fulfilling the statutory requirement to display “the name of the legal entity that is the employer.” Because the fictitious business name, registered with the California Secretary of State, did not create a separate entity and there is no distinction between the legal entity and the fictitious business name, using the fictitious business name meets the wage statement requirements. Notwithstanding this ruling, employers must continue to ensure that the employer’s name displayed on wage statements meets applicable requirements to avoid wage statement violations.


Indiana: Leaving Work to Voluntarily Testify is Not Protected

On April 12, 2019, in Perkins v. Memorial Hospital of South Bend, the Indiana Court of Appeal stated that where an employee was not subpoenaed to testify at a hearing, his decision to leave work early to testify at the hearing was not activity protected by public policy. There, an employee was under the impression that he would receive a subpoena to testify when he arrived at the hearing in a co-worker’s unemployment case; however, no subpoena was ultimately issued, and the employee was later terminated. The court stated that, even assuming the employee was terminated in retaliation for testifying at the hearing, his actions were not protected because he was not compelled by law to attend the hearing, regardless of the employee’s honest belief that he was required to. Employers should request a copy of a subpoena or court order compelling an employee to testify as evidence of an excused absence.


Kentucky: Attorneys Must Represent Employers at Unemployment Proceedings

On April 26, 2019, in Nichols v. Kentucky Unemployment Insurance Commission, the Kentucky Court of Appeal stated that having a non-attorney represent an employer at an administrative hearing for unemployment benefits violates the state constitution. There, a manager represented an employer at a former employee’s unemployment hearing, including providing testimony and conducting examination of the former employee. The court stated that the statute authorizing employers to appear through non-lawyers in unemployment proceedings infringed on the judiciary’s constitutional power to establish rules relating to the practice of law. Employers must immediately change their practice of sending non-attorneys (e.g., human resources representatives, managers, etc.) to administrative unemployment proceedings, and use legal counsel going forward.


New York, NY: Bans Pre-Employment Marijuana Testing in 2020

Beginning May 10, 2020, employers will be prohibited from requiring a job applicant to submit to drug testing for the presence of tetrahydrocannabinols (THC) or marijuana as a condition of employment. The new law does not apply to individuals applying for a job in law enforcement, jobs that require a commercial driver’s license, positions requiring supervision of children, medical patients, or other vulnerable persons, among others. It also does not apply to Department of Transportation requirements, federal contract requirements, certain federal and state safety requirements, and collective bargaining agreements. The prohibition on testing does not change an employer’s ability to prohibit employees from being impaired while at work. Employers should plan to review drug testing practices in advance of the effective date.


New York, NY: Prohibits Discrimination Based on Employee Sexual and Reproductive Health Decisions

Beginning May 20, 2019, employers are prohibited from discriminating against employees and job applicants based sexual and reproductive health decisions, which include sexual and reproductive health services related to the reproductive system and its functions. Examples of these services include, but are not limited to, fertility-related medical procedures, sexually transmitted disease prevention, testing, and treatment, and family planning services and counseling (e.g., birth control drugs/supplies, emergency contraception, sterilization procedures, pregnancy testing, and abortion). Employers should immediately update employee handbooks and policies, and have managers trained on the new requirements.


Westchester County, NY: Updated Guidance Issued on Paid Sick Leave

On April 10, 2019, Westchester County’s Earned Sick Leave Law went into effect. The County Human Rights Commission recently published a copy of the law, a Notice of Employee Rights, poster, and Frequently Asked Questions (FAQs). Employers must give a copy of the Notice and the law upon hire, and to existing employees by July 9, 2019. Employers should also display the required poster in a conspicuous location accessible to employees.


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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