November Updates

Fourth Circuit: Back Pay Damages are Mandatory Under the ADEA

In EEOC v. Baltimore County, the Fourth Circuit recently stated that retroactive monetary awards, such as back pay, are considered mandatory legal remedies under the Age Discrimination in Employment Act (ADEA). Moreover, district courts lack discretion to deny back pay once ADEA liability is established. Employers should take note that ADEA violations may lead to a rapid increase in potential liability once back pay damages are accounted for.

California: Federal Department of Transportation Rules Preempts California Meal and Rest Period Requirements

California employers are required to provide employees with a specific number of meal and rest periods each day, depending on the length of an employee’s shift.  These meal and rest period requirements conflicted with regulations issued by the U.S. Department of Transportation for truck drivers, especially truck drivers transporting hazardous materials.

As of September 21, 2018, the Pipeline and Hazardous Materials Safety Administration (PHMSA) issued a Notice of Administrative Determination of Preemption, clarifying that California’s meal and rest periods are preempted by Hazardous Materials Regulations (HMR). The HMR contains specific safety provisions—such as requiring hazmat freight to be transported without unnecessary delay, or for hazmat to be attended at all times—that would be violated by a truck driver taking meal and rest periods under California law.

There is a 20-day period for individuals to file a petition against PHMSA’s notice of determination, and 60 days for a person to seek judicial review.  Employers may wish to consult legal counsel before making changes to driving policies that do not comply with California law.

California: Announces Minimum Wage Rates for Certain Overtime Exemptions

The California Department of Industrial Relations recently announced the following increased minimum wage rates for the following overtime exemptions, which are set to increase on January 1, 2019:

Computer Software Employees

Licensed Physicians and Surgeons

 Employers should prepare now for anticipated increases.

California: Cal/OSHA Revised Exposure for Citations and Issued Emergency Reporting Requirements

Effective January 1, 2019, Employers in California will be liable for any “occurrence” of recordkeeping violations beyond the current six-month statute of limitations, up to the five-year recordkeeping retention period. The changes in recently enacted AB 2334 now define an “occurrence” as continuing until it is corrected, or the division discovers the violation, or the duty to comply with the violated requirement ceases to exist. Employers are recommended to make corrections immediately to try to minimize the risk of exposure.

Additionally, on November 1, 2018, Cal/OSHA approved Emergency Regulations requiring applicable employers to electronically submit certain occupational injury and illness information on Cal/OSHA Form 300A to the federal Occupational Safety and Health Administration (OSHA), with the first submission due by December 31, 2018. Employers are recommended to immediately prepare for this reporting requirement. Cal/OSHA is expected to implement permanent regulations similar to the Emergency Regulations going forward.

California: PAGA May Not Apply to Construction Industry Employees Subject to Collective Bargaining Agreements

Effective January 1, 2019, AB 1654 exempts construction industry employees, who are subject to collective bargaining agreements, from the Private Attorney General Act (PAGA), provided that the collective bargaining agreement contains certain employment information and expressly waives the requirements under PAGA. The bill exempts agreements entered into before January 1, 2025, and the bill expires on January 1, 2028. Employers are recommended to review collective bargaining agreements with legal counsel for further action.

New Jersey: Updates to Statewide Paid Sick Leave

In May this year, we reported on New Jersey’s passage of a statewide paid sick leave law.  That law went into effect for all employers with New Jersey employees on October 29, 2018.  Recently, the New Jersey Department of Labor and Workforce Development (DOLWD) published the mandatory workplace poster (download from the DOLWD website here), as well as a set of proposed regulations to implement the law.

The proposed regulations clarify some questions about how the paid sick leave policy should be implemented, such as how the rate of pay should be calculated, the definition of the benefit year, “black out” policies, and recordkeeping requirements.  Employers should read through the text of the proposed regulations and may submit comments until December 14, 2018.  The final regulations will most likely be issued in 2019. In the meantime, the DOLWD published FAQs to help employers implement the state-required paid sick leave, which can be reviewed here.

New York: Human Trafficking Informational Cards Required in Hotels

Effective October 14, 2018, all New York hotels with at least five rooms are required to post informational cards for human trafficking. Employers may opt to create their own informational card, use the card developed by the New York State Office of Temporary and Disability Assistance, or use a card created by the U.S. Department of Homeland Security. In all instances, these informational cards must contain the National Human Trafficking Hotline number (1-888-373-7888).

New York: State Attorney General Releases FAQ on Non-Compete Agreements

The New York Attorney General recently released an FAQ on non-compete agreements in New York. The FAQ addresses (1) what are non-compete agreements, (2) are non-completes legal, (3) do I have to sign a non-compete, (4) how could a non-compete affect me, (5) how to employers enforce non-competes, and (6) what can I do if I signed a non-compete. This FAQ is a helpful resource for employers in managing their non-compete agreements.

New York: Sexual Harassment Training Deadline Extended

Recently, New York began requiring employers to provide sexual harassment training to all employees. Although the law went into effect October 9, 2018, the state clarified in a recently issued FAQ that employers have until October 9, 2019 to complete the training requirement.

New York, NY: Revised FAQ for Paid Sick Leave Rules

On September 20, 2019, the New York City Department of Consumer Affairs (DCA), which enforces New York’s Earned Sick and Safe Time Act (ESSTA), revised its frequently asked questions (FAQ). The FAQ updated timing of notice requirements, increased paid sick leave policy requirements (including a standalone policy must be provided to employees), limited required uses of paid sick leave, changed the method of calculating pay while on leave, expanded retaliation provisions, required joint and several liability for joint employers, and excluded domestic workers employed by an agency. Employers are recommended to review the updated FAQ here to ensure compliance.

Pennsylvania: Illegal Sex Discrimination Interpreted to Include LGBT+ Components

New guidelines recently published by the Pennsylvania Human Relations Commission (PHRC) expand protections for LGBT individuals.  Under this guidance, the PHRC considers “sex discrimination” under the Pennsylvania Human Relations Act (PHRA) to include discrimination based on sexual orientation, transgender identity, gender transition, gender identity, and gender expression.

While the guidance does not impose “hard and fast rules that must be absolutely applied,” it indicates the manner in which the Commission will exercise administrative discretion in accepting, investigating, and adjudicating cases. Employers can read the text of the approved Sex Discrimination Guidance on Pennsylvania’s website here.

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.

© 2018 ManagEase