May Updates

Ninth Circuit: Business to Business Arbitration is Not Covered by FAA Exemption

On April 10, 2024, in Fli-Lo Falcon, LLC v. Amazon.com, Inc., the Ninth Circuit Court of Appeals stated that the transportation exemption to the Federal Arbitration Act (FAA) does not apply to business entities. The FAA generally enforces arbitration agreements, but exempts “contracts of employment” of any “class of workers engaged in foreign or interstate commerce.” Specifically, business entities do not qualify as a “class of worker” engaged in foreign commerce under the FAA. Additionally, contracts of employment do not include business to business agreements. Covered employment contracts “must have a qualifying worker as one of the parties.”

 

Phoenix, AZ: New Heat Illness Prevention Requirements for City Contractors

On March 26, 2024, Phoenix adopted an Ordinance that requires any contractor whose employees and contract workers perform work in an outdoor environment under a City contract, lease or license to use heat safety and mitigation plans to prevent heat-related illnesses and injuries in the workplace. The heat safety plan must include: (1) availability of sanitized cool drinking water free of charge at locations that are accessible to all employees and contract workers; (2) ability to take regular and necessary breaks as needed and additional breaks for hydration; (3) access to shaded areas and/or air conditioning; (4) access to air conditioning in vehicles with enclosed cabs with such access to functioning air conditioning required by no later than May 1, 2025; (5) effective acclimatization practices; and (6) conduct training and make it available and understandable to all employees and contract workers.

 

California: Stock Options are Not Wages

On April 8, 2024, in Shah v. Skillz, Inc., the California Court of Appeal ruled that stock options are not wages. “Wages” refers to an “amount fixed or ascertained.” Here, stock options are not “amounts” since they are actually contractual rights to purchase stock, and they aren’t “fixed or ascertained” because the value of shares varies before an option is actually exercised. The court distinguished stock options from restricted stock shares in that the latter have an ascertainable value and are actually issued to employees.

 

District of Columbia: Court Rejects NLRB Surveillance Decision

In the case Sterns Produce Company v. NLRB, the D.C. Circuit Court reversed a decision from the National Labor Relations Board (NLRB) and rejected the NLRB’s reasoning that a company had engaged in unlawful surveillance simply by directing a driver to uncover his onboard camera. The court found that the NLRB lacked “substantial evidence” to support its decision and stated that determination of whether the NLRB can satisfy its burden depends on “whether on this record it would have been possible for a reasonable jury to reach the Board’s conclusion.” Specifically, the court said that the employee’s status as a known union organizer “cannot automatically render suspect any interaction between him and management in perpetuity.” The court also observed that a company’s opposition to unions, by itself, is insufficient to establish illegal motivation for any particular decision. Instead, there must be something more to connect the employer’s animus to an adverse action. The Sterns Produce decision comes as the most recent of several employer-friendly NLRB appeals to federal court, and specifically concerning employee surveillance.

 

Florida: Changes to Working Hours for Minor Employees

Under Florida’s HB 49, several significant changes to the working conditions and hours for minor employees are set to take effect on July 1, 2024. Specifically, 16 and 17-year-olds will be permitted to work more than 30 hours a week while school is in session with a waiver from parents, legal guardians, and/or school superintendents, and will be permitted to work shifts exceeding eight hours on Sundays and holidays regardless of whether school is in session the following day. Under the amended law, 16 and 17-years-olds who work eight hours or more per day must receive at least a 30-minute lunch break after four hours worked. Finally, homeschooled and virtual schooled 16 and 17-year-olds will be permitted to work without any of the hour limitations Florida places on minors including during the normal school day. Importantly, these changes do not apply to 14 or 15-year-old minor employees, who continue to be subject to restrictions on the types of duties performed and hours worked. In addition to changes to the laws governing minor’s working hours, Florida also amended the restrictions on what age an individual must be to work in Florida’s adult entertainment industry. Also effective July 1, 2024, the minimum age permitted to work in an adult entertainment establishment is 21-years old (previously 18). This includes bookstores, theatres, special cabarets, and unlicensed massage establishments.

 

Idaho: Civil Immunity Expanded for Employers Permitting Carrying of Firearms

As of July 1, 2024, SB 1275 will extend civil immunity to employers with policies that either allow or don’t allow employees to carry firearms on the business premises. This expands employer protections from firearm storage in personal motor vehicles while on business premises.

 

Indiana: Amended New Hire Reporting Requirements

Effective July 1, 2024, under Indiana’s SB 148, a newly hired employee in Indiana is redefined as an employee who (1) has not previously been employed by the employer; or (2) was previously employed by the employer but has been separated from that prior employment for at least 60 consecutive days. Additionally, an employer must report the following for new employees: (1) the employee’s name, address, and Social Security Number; (2) date the employee first performed work for pay; (3) the employee’s current primary standard occupational classification code; (4) the employee’s starting pay; and (5) the employer’s name, address and federal tax identification number. These reports are filed electronically with the Indiana Department of Workforce Development.

 

Lehigh County, PA: Multiple Employment Ordinances Implemented

Effective June 1, 2024, Lehigh County’s Human Relations Ordinance prohibits employment discrimination on the basis of protected characteristics, restricts criminal history screenings, and prohibits salary history inquiries. The Ordinance prohibits actual or perceived employment discrimination on the basis of race; ethnicity; color; religion; creed; national origin or citizenship status; ancestry; sex (including pregnancy, childbirth, breastfeeding and related medical conditions); gender identity; gender expression; sexual orientation; genetic information; marital status; familial status; holding of a GED rather than a high school diploma; physical or mental disability; relationship or association with a disabled person; source of income; age (35 and older); height; weight; veteran status; use of guide or support animals and/or mechanical aids; and domestic or sexual violence victim status.

Employers also cannot ask job applicants, on an employment application or prior to the initial interview, whether they have ever been convicted of a crime. This includes a prohibition on considering conviction records unrelated to the job position. However, employers can state that the position requires a clean driving record or passing a child abuse clearance check. Notice to the applicant is required if employment is denied based on criminal history. Lastly, employers cannot ask applicants their salary history either from current or past employment. Employers in Lehigh County should update their discrimination and harassment policies as well as their hiring procedures.

 

Utah: Expanded Religious Accommodation Requirements

Effective May 1, 2024, the Utah Antidiscrimination Act has been amended to allow employees to express “religious or moral beliefs and commitments in the workplace” as long as they do so in a “reasonable, non-disruptive, and non-harassing way.” Employers are also prohibited from making employees engage in “religiously objectionable expression” which is defined as “expression, action or inaction that burdens or offends a sincerely held religious belief, including dress and grooming requirements, speech, scheduling, prayer, and abstention, including abstentions relating to healthcare.” Employees who believe they are being required to do so may request an accommodation unless such a request would cause an undue burden. The Amendment also prohibits retaliation against employees who express their religious beliefs outside the workplace unless there is a direct conflict with the essential business-related interests of the employer. There is also an exception for employers with fewer than 15 employees from having to provide scheduling accommodations.

 

Virginia: New Notice of Right to Dispute Workers’ Compensation Claim

Under Virginia’s SB 241 and effective July 1, 2024, if a covered employer or the employer’s insurer denies a covered employee’s request for workers’ compensation benefits, the employer or the insurer must include in its letter denying benefits a notice that the employee has a right to dispute the claim denial through the Virginia Workers’ Compensation Commission.

 

West Virginia: Amendments to Unemployment Compensation Law

Under SB 841, effective July 1, 2024, the West Virginia Unemployment Compensation Law is amended to lower the taxable wage base from $9,521 to $9,500 and to create the Jobs and Reemployment Act, which: (1) requires individuals to conduct at least four work search activities weekly; (2) requires employers to report individuals who refuse to accept an employment offer or who leave employment within six weeks; and (3) allows individuals to work part-time at a lower pay rate without reducing benefits.

 

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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. © 2024 ManagEase