September Updates

The Recent Federal Overtime Exemption Rule is Diminishing

On August 31, 2017, a federal district judge in Texas struck down the overtime exemption rule put forth during the Obama Administration as lacking in authority to make the attempted changes. The exemption rule would have increased the salary level test for determining when the overtime exemption would apply. However, the fate of the rule is still uncertain given that there is an appeal pending before the Fifth Circuit, and the U.S. Department of Labor is currently considering how to revise the rule.  Look for future alerts on this topic as developments occur.

NLRB: More Examples of What is or isn’t Protected Concerted Activities on Facebook

On July 27, 2017, in the case of Butler Medical Transport, LLC, the National Labor Relations Board (“NLRB”) reviewed employee activities on social media and identified which activities did or did not qualify as protected concerted activity.

The company, Butler Medical Transport, had a workplace policy that required employees to refrain from using social media in a way that would discredit or damage Butler’s image.

·         When an ex-employee complained about the company, another employee, Norvell, advised the ex-employee to get an attorney and contact the labor board.  Norvell was terminated for making this comment.  An administrative law judge (“ALJ”) determined that the comment qualified as protected concerted activity.  Employee discussions seeking or offering advice about future actions qualify as protected concerted activity.

·         In another instance, employee Rice posted a status about his vehicle breaking down because the company did not want to buy new equipment.  Butler inspected Rice’s vehicle and discovered that it had not been serviced for a breakdown on the day Rice posted his comment.  The company deemed Rice’s post was false and terminated his employment.  Rice later claimed that he had been referring to his girlfriend’s vehicle.  The ALJ determined that the company did not violate the NLRB because the post was not protected under the NLRA, either because the vehicle in question referred to a vehicle not related to work purposes, or because the reference to a Butler vehicle would have been maliciously false.

Employers should always be cautious when making employment decisions in reaction to social media posts, especially where references to the employer’s business conditions are concerned.  Employers should consult labor counsel prior to taking adverse employment action to determine if they run the risk of infringing upon protected employee rights.

EEOC Must Reconsider Wellness Regulations

In AARP v. EEOC, the U.S. District Court for the District of Columbia ordered that the EEOC’s final regulations for voluntary wellness programs be remanded to the EEOC for reconsideration.  This applies to voluntary wellness programs under the Americans with Disabilities Act (“ADA”) and the Genetic Information Nondiscrimination Act (“GINA”). Although the regulations must be reconsidered, they were not vacated.  Until the EEOC revises the regulations, employers must still comply with the EEOC’s rules. Look for further updates on this topic.

Seventh Circuit: EEOC May Investigate Despite Right-to-Sue Letter and Issue of Judgment

In EEOC v. Union Pacific Railroad Company, the Seventh Circuit recently stated that the EEOC may still investigate a claim, even if it had issued a right-to-sue letter or if discrimination charges are resolved in a private lawsuit by the claimant. The court noted that EEOC’s role is to promote the public interest and bring about more effective enforcement of private rights.  Employers must take care to preserve information, even following a favorable outcome in a lawsuit, that may be requested by the EEOC pursuant to a claim.

Arizona, Maryland, Wyoming:  Now Part of the E-Verify RIDE Program

Effective July 31, 2017, Arizona, Maryland, and Wyoming are the newest states to join the Records and Information From DMVs for E-Verify (“RIDE”) program.  The RIDE program allows employers who use the E-Verify employment eligibility verification system to work with state DMVs to validate driver’s license and DMV-issued state ID cards.

Berkeley, CA: Minimum Wage Increase, Paid Sick Leave, and Work Schedule Rules Will Soon Be In Effect

Effective October 1, 2017, Berkeley’s Minimum Wage Ordinance increases the local minimum wage to $13.75 and requires that employers with employees who perform at least two (2) hours of work per week in Berkeley will provide paid sick leave.  Additionally, employees will have the right to ask for a flexible or predicable working arrangement under the Berkeley Family Friendly and Environment Friendly Workplace Ordinance. Beginning October 1st, employers must also post the updated notice for both ordinances, which can be found here.  Employers can read the full text of the respective ordinances here and here.

San Diego, CA:  Equal Pay Bill for City Contractors and Consultants

On July 31, 2017, the San Diego City Council approved the Equal Pay Ordinance, which aims to close the wage gap between workers of a different gender or ethnicity.  The Ordinance applies to all city contracts valued at $500,000 and above that are entered into, awarded, amended, renewed, or extended on or after July 1, 2017.  City contractors will be required to self-certify compliance with the Ordinance.

Contracts valued under $500,000, or employers with 12 or fewer full-time employees, are exempt from the Ordinance.

Covered contractors are required to notify their employees of the equal pay policy at time of hire, and must conspicuously display a notice in the workplace that reads:  “During the performance of a contract with the City of San Diego, the contractor will provide equal pay to its workers regardless of their gender or ethnicity.”

Employers can view the Ordinance here.

Santa Clara, CA: Santa Clara City’s Minimum Wage to Increase in 2018

Beginning January 1, 2018, Santa Clara’s minimum wage increase will be tied to a set schedule, rather than the consumer price index (“CPI”). The minimum wage will increase to $13/hour in 2018, and $15/hour in 2019.  In 2020, minimum wage increases will then be based on the regional CPI going forward.  Employers should begin preparing for the wage increase and adjusted posting requirement.

Connecticut: Anti-Discrimination Protections Expanded for Veterans

Effective October 1, 2017, SB 917 amends a significant number of regulations governing employment, public accommodations, sale/rental of housing, etc., to extend greater anti-discrimination protections to veterans.  The bill is enforced by the Commission on Human Rights and Opportunities, to which aggrieved veterans can bring complaints.

Private and public employers of three or more workers may not discriminate against an employee or applicant on the basis of their veteran status.  In addition, employees who currently serve in the National Guard must be permitted to take time off work during regular working hours to perform ordered duties, including participation in meetings or drills.  Employers cannot deduct vacation or holiday privileges, reappoint employees or retaliate against service members participating in drills.

Employers can review the text of the bill here.

Georgia: Amended Law Now Preempts Predictive Scheduling Ordinances

House Bill 243 expands a pre-existing Georgia minimum wage law, which already prohibited sub-state localities (e.g., counties, municipal corporations, and consolidated governments) from passing local mandates that require employers to offer employee wages or benefits that are more generous than those required by state or federal law.

“Employee benefits” are defined as “anything of value that an employee may receive from an employer in addition to wages and salary.”  Examples of employee benefits under this definition include things like health benefits, disability benefits, sick leave, vacation, and so forth.  HB 243 expands the definition to include “additional pay based on schedule changes.”

This amendment effectively prevents local governments from implementing predictive scheduling ordinances, which typically require employers to follow strict regulations for scheduling employee shifts, or pay penalties when sudden shift changes occur.  Georgia thus joins a number of other states (including Arkansas, Minnesota, Missouri, South Carolina, and Tennessee) in passing preemption bills to counter predictive scheduling legislation.

New Jersey:  Anti-Discrimination Protections for Military and Veterans Expanded

Effective August 7, 2017, Senate Bill S726 expands the New Jersey Law Against Discrimination’s (“NJLAD”) protections to United States Armed Forces members and veterans.  Previously, the NJLAD offered limited protection for members of the Armed Forces under certain provisions.  The expanded NJLAD offers the same level of anti-discrimination protection for military personnel as other protected classes, which includes anti-discrimination in employment, housing, lending practices, public accommodations, and more.

Employers should have their procedures and policy documents reviewed for compliance with the expanded NJLAD.

New York: Guidance on Tax Treatment of PFL Contributions and Benefits now Available

The New York Department of Taxation and Finance (“DOTF”) recently issued the following guidance on taxing employee wages under the state’s new Paid Family Leave Program: (1) paid benefits are taxable non-wage income included in federal gross income; (2) taxes will not be automatically withheld from benefits, but employees can request voluntary tax withholding; (3) premiums will be deducted from employees’ after-tax wages; (4) employers must report employee contributions in Box 14 on Form W-2; and (5) benefits should be reported by the State Insurance Fund on IRS Form 1099-G and by all other payers on IRS Form 1099-MISC. The notice can be viewed in full here.

Nevada: Pregnant Workers’ Fairness Act Poster Now Available

Nevada’s Pregnant Workers’ Fairness Act notice and posting requirements recently became effective.  Employers have been required to inform employees of their rights under the Act since June 2, 2017.  The Nevada Equal Rights Commission recently released a poster employers may use to fulfill the notice and posting requirements.  Employers can view the poster here.

North Carolina:  Fair Classification Act Emphasizes State Focus on Proper Employee Classification

Effective December 31, 2017, the North Carolina Employee Fair Classification Act (the “Act”) creates a new section in the North Carolina Industrial Commission responsible for receiving and investigating reports of worker misclassification.  This section will also provide information to other state agencies about employee misclassification.

The Act does not change the definitions of “employee” or “independent contractor”; it provides a new mechanism for workers to make complaints. Employers do, however, have new posting requirements.  A notice containing the following information must be posted conspicuously in the workplace:

·         Workers must be treated as employees unless they are independent contractors;

·         Workers who believe they have been misclassified have the right to report the alleged misclassification to the Employee Classification Section; and

·         The physical address, e-mail address, and telephone number where alleged misclassifications can be reported.

Employers can view the bill here.

Texas: Hurricane Harvey Relief for Employees

From August 23, 2017 to January 31, 2018, the Internal Revenue Service (“IRS”) is lifting barriers for employees to access funds in employer-sponsored retirement plans, such as loans and hardship distributions.  This relief only applies to employees who reside in specified counties in Texas who were affected by Hurricane Harvey. The IRS notice can be reviewed here.  Additionally, the U.S. Department of Labor (“DOL”) will relax enforcement of the Title I temporary delay in making contributions to an employee pension benefit plan for affected victims of the hurricane, among other considerations.  The DOL guidance can be reviewed here.

Washington:  New Biometric Information Protection law

Effective July 23, 2017, HB 1493 implements new requirements for individuals handling biometric information.  “Biometric information” is defined as data generated by automatic measurements of an individual’s biological characteristics, such as a fingerprint, voiceprint, eye retinas, irises, or other unique biological patterns or characteristics used to identify a specific person.

The bill generally prohibits persons from recording, enrolling, selling, leasing, or disclosing biometric identification without the individual’s consent.  The type of notice and consent that must be obtained prior to handling biometric information depends on the context.  Persons maintaining biometric information must also have reasonable safeguards to protect the confidentiality of the biometric information, and must not retain the biometric information longer than necessary to carry out specific functions.

For detailed information on these responsibilities, view the bill 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.

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