October Updates

U.S Federal Contractor Updates

• Specific Federal Contractor Requirements Temporarily Suspended: The DOL’s Office of Federal Contract Compliance Programs (“OFCCP”) announced that it will be temporarily suspending specific federal contractor requirements from September 1, 2017 to December 1, 2017.  The suspended programs include Executive Order 11246, VEVRAA, and Section 503 of the Rehabilitation Act of 1973, and applies to federal contracts providing Hurricane Harvey relief efforts initiated during the suspension period.
• 2018 Contractor Minimum Wage Rate: Effective January 1, 2018, the new contractor minimum wage rate increases to $10.35 per hour.  This represents a $0.15 cents per hour increase over the previous year.  Additionally, the minimum wage rate for tipped employees working on a covered contract will increase to $7.25 per hour, though if the employee does not receive enough tips to reach at least $10.35 per hour, the employer must pay additional wages to bring the employee to the $10.35 rate.

Alabama: City of Birmingham Approves Nondiscrimination Ordinance

On September 26, 2017, the Birmingham City Council passed an ordinance that prohibits businesses operating in Birmingham from discriminating against employees on the basis of race, color, national origin, sex, sexual orientation, gender identity, disability, or familial status. The ordinance exempts religious corporations and employers that have bona fide affirmative action plans or seniority systems in place. Though not yet signed into law, the city’s mayor has announced that he intends to sign it immediately. However, there are indications that the ordinance may be challenged. Look for updates on this topic.

California: Cal/OSHA Says Federal OSHA Reporting Requirements do not Apply to CA Employers

Under the federal Occupational Safety and Health Administration (“OSHA”) regulations, certain employers are required to electronically report information about workplace accidents and injuries.  However, according to Cal/OSHA—the statewide California program—employers in California do not currently need to follow this federal requirement.

In general, federal OSHA may be preempted by “state plan states”—states that maintain their own OSHA programs.  According to Cal/OSHA, California employers are not bound to the current federal requirements and deadline until “substantially similar” state regulations go through the formal rulemaking process.  Cal/OSHA is in the process of creating a proposed rule that will conform Cal/OSHA to federal standards. Look for updates on this topic as they develop.

Illinois: Amendments to the Illinois Human Rights Act Codify Religious Garb Protections

Public Act 100-0100 amends the Illinois Human Rights Act (“IHRA”) to codify religious discrimination prohibitions related to dress codes.  Specifically, employers must make reasonable accommodations to a dress code or policy to allow an employee to practice their sincerely held religious beliefs, inclusive of the employee’s clothing, attire, or facial hair.  Because the IHRA already requires employers to accommodate other sincerely held religious beliefs, the amendment does not post any new requirements.  The Act also aligns with Title VII of the Civil Rights Act of 1964 and the U.S. Equal Employment Opportunity Commission’s stance on employer accommodations.

Importantly, the act notes that the IHRA does not prevent an employer from implementing a dress or grooming policy that places restrictions on attire, clothing or facial hair for the purpose of maintaining workplace safety and/or food sanitation.

Kentucky: Supreme Court Permits Wage and Hour Class Actions

On August 24, 2017, the Kentucky Supreme Court overruled a Court of Appeals’ interpretation of a Kentucky statute that prohibited individuals from bringing collective actions for certain statutory wage and hour violations.  According to the Court of Appeals, KRS 337.385 did not contain language that specifically authorized collective actions; the Kentucky Supreme Court took the opposite tack, stating that the actual language of the statute neither expressly permits, nor denies, the use of class actions.

As a result, Kentucky employers could potentially face greater litigation, and should review their policies and procedures for compliance with Kentucky wage and hour regulations.

New York: 24-Hour Non-Residential Home Care Attendants Must be Paid for Sleep and Meal Periods

On September 13, 2017, a New York state appellate court affirmed in Andryeyeva v. New York Home Attendant Agency that 24-hour non-residential home care attendants must be paid for sleep and meal periods.  The previous industry standard was to pay 13 hours of a 24 hour shift, with the presumption that employees would be provided eight hours of sleep and three hours for meals.  The Andryeyeva decision follows in the footsteps of a similar case earlier this year, Tokhtaman v. Human Care, LLC.

In Tokhtaman, another NY appellate court stated that live-in home-care attendants must be paid for every hour of a 24-hour shift, including sleep and meal periods, because the employees are “required to be available for work,” regardless of whether or not they were actually called upon to perform services.

The Andryeyeva and Tokhtaman decisions may be appealed.  However, if upheld by the New York Court of Appeals, home care employers may be exposed to significant back-pay liability.

Texas: New Leave Protection for Foster Parents and Preference for Veterans in Employment

Laws affecting Texas employment practices went into effect on September 1, 2017.

Leave Protection for Foster Parents

Texas Labor Code Section 21.0595 requires that any employers who offer employees personal leave to care for a sick biological or adopted child must also provide the same leave for a foster child.

Preferential Employment Policies for Veterans

Texas law permits employers to give preference to veterans over other applicants or employees when making employment decisions, such as hiring, promotion, or retention.  Texas employers can notify the Texas Workforce Commission and Texas Veterans Commission of the existence of a preferential policy to be included on the commission’s directory of employers who give such preference.

Wisconsin: Court of Appeals Upholds “Right to Work” Law

Effective September 19, 2017, the Wisconsin Court of Appeals upheld a “right to work” law originally enacted in March of 2015.  The law prohibits collective bargaining agreements that require employees to become or remain a union member, or to pay union dues, fees, assessments or other expenses as a condition of employment.  The law was opposed by a coalition of unions and, in 2016, a circuit court judge decided that the law was unconstitutional.  The Court of Appeals upheld the circuit court decision, stating that unions do not have a constitutional entitlement to fees of non-union members.

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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