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December Updates

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This Short List addresses the following topics:
  1. 2020 Minimum Wage Increases for Federal Contractors
  2. Second Circuit: Sexual Harassment vs. Sex Discrimination
  3. Third Circuit: Blue Penciling Noncompete Agreements is Okay
  4. Sixth Circuit: Statute of Limitations Cannot be Shortened for Title VII Cases
  5. Ninth Circuit: Home Care Workers’ Overtime Rule Retroactive Effective Date Applied
  6. Tenth Circuit: FLSA Applies to Workers in Cannabis Industry
  7. California: Calculating Meal and Rest Premiums Clarified
  8. California: Mandatory Service Charges May be Gratuities
  9. Bernalillo County, NM: PTO Start Date Moved Up
  10. New York: Reproductive Health Decisions Protected
  11. New York City, NY: Guidance on National Origin/Immigrant Status-based Discrimination
  12. Oregon: Don’t Retaliate – Even After Termination
  13. Columbia, SC: Criminal and Salary History Inquiries Banned
  14. San Antonio, TX: Paid Sick Leave on Hold – Again

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Seventh Circuit: ADA Reasonable Accommodation and Discrimination Claims Tempered by Employee Behavior

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July 23, 2019

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In Graham v. Artic Zone Iceplex, LLC, a former employee claimed a violation of the Americans with Disabilities Act (ADA) by the employer for (1) failure to provide reasonable accommodations of his disability, and (2) terminating him due to his disability. The Court explained that identifying a “reasonable accommodation” for an employee requires input from both employee and employer, and is a collaborative effort. This includes notice by the disabled employee to the employer if an accommodation provided does not meet the employee’s needs. If the employee fails to provide sufficient information in this regard, the employer cannot be held liable for failing to accommodate the employee.

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October Updates

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This Short List addresses the following topics:
  1. OFCCP Releases new FAQs on Independent Contractors, Compliance Evaluations, and AAP
  2. Ninth Circuit: ERISA Claims May be Arbitrated
  3. California: PAGA-only Claims May Not Seek Unpaid Wages
  4. Petaluma, CA: Minimum Wage Increases on January 1, 2020
  5. Colorado: Courts Are Not Required to Blue Pencil Noncompetition and Nonsolicitation Agreements
  6. Massachusetts: Counting 1099-MISC Workers for Paid Family Medical Leave
  7. New Jersey: Hairstyles are Protected under the Law Against Discrimination
  8. Bernalillo County, NM: Enacts Wellness Act
  9. New York: Hairstyles are Protected under the State Human Rights Law
  10. Toledo, Ohio: Salary History Inquiries Banned
  11. South Carolina: State Supreme Court Abolishes Common Law Marriage
  12. Dallas and San Antonio, TX: Paid Sick Leave Update

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California: State Supreme Court Takes a Heavy-Handed Look at Unconscionability in Arbitration Agreements

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August 29, 2019

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In Oto, LLC v. Kho, the California Supreme Court again pushed back on arbitration agreements in employment. The U.S. Supreme Court historically has said that states cannot discriminate against arbitration as a forum for resolving disputes or in favor of some disputes over others. Here, the California Supreme Court attacked the unconscionability of the agreement, meaning that the agreement was unfair in how it was presented to the employee.

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Nebraska: Employees are Permitted to Discuss Wages

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September 6, 2019

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LB 217 updated the Nebraska Fair Employment Practice Act (FEPA) to prohibit employer discrimination of employees who “inquired about, discussed, or disclosed information regarding employee wages, benefits, or other compensation” outside of working hours. This rule does not apply to employees whose job functions allow them access to this information and disclose it to someone who does not otherwise have authorized access to the information, except under limited circumstances. It also does not apply to employees who disclose such wage information to the general public or to the employer’s competitors.

The rule expressly states that employers are not required to disclose information regarding employee wages, benefits, or compensation. However, it also states that this information is not proprietary information. This means that employers should have their nondisclosure agreements reviewed by legal counsel to ensure they are compliant with the current rule.

Action Items

  1. Read the text of the bill here.
  2. Have employee handbooks and employer policies updated where applicable.
  3. Have nondisclosure agreements updated where applicable.
  4. Have managers trained on the new rule.
  5. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

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

September Updates

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This Short List addresses the following topics:
  1. REMINDER! EEO-1 Component 2 Reporting is Due September 30th
  2. DOL Says DOT Drivers Sleeping in Berths While Off-Duty is Unpaid Time
  3. 2nd Circuit: Collectively Bargained Arbitration is Governed by the Scope of the Agreement
  4. 9th Circuit: The Dynamex Independent Contractor Test Does Not Apply Retroactively – For Now
  5. New Noncompete Restrictions in Maine, New Hampshire, and Rhode Island
  6. Arizona: Mini-COBRA and Bona Fide Associations Updates
  7. California: Hairstyles Soon to Be Protected From Discrimination
  8. Emeryville, CA: Small Independent Restaurant Minimum Wage Hold Repealed
  9. Florida: Unemployment Compensation Protections for Domestic Violence Victims
  10. Indiana: Direct Sellers are Exempt from Minimum Wage Rules
  11. Iowa: Enacts Negligent Hiring Protections for Employers
  12. Louisiana: Electronic Notice to Employees Permitted for Group Health Insurance Plans
  13. Kansas City, MO: Enacts Salary History Inquiry Ban
  14. New Hampshire: Child Labor Hours Restricted
  15. New York: Paid Family Leave Benefit Schedule Update
  16. New York: Whistleblower’s Immigration Status is Protected
  17. Ohio: Motor Carrier Drivers Excluded from Definition of “Employee”
  18. Pittsburgh, PA: Paid Sick Leave is Revived by State Supreme Court
  19. Vermont: Expunged Records Make Criminal Convictions Vanish
  20. Virginia: Updates to Minimum Wage Exemptions and Nondisclosure Agreements
  21. West Virginia: Effect of Expunged Criminal Convictions

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New York: Get Ready for Expansive State Discrimination Law Reforms

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The New York legislature recently passed an omnibus bill that will amend a number of existing laws, greatly expanding the state’s expansive workplace harassment and discrimination protections.  In addition, the amendments will cover all New York employers of any size. Governor Cuomo is expected to sign the bill shortly. Key changes are noted as follows.

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Oregon: Updates to Discrimination and Harassment Protections

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SB 726, also known as the “Oregon Workplace Fairness Act,” extends discrimination and harassment protections for employees. On October 1, 2019, the statute of limitations for discrimination, harassment, and retaliation claims will be extended from one to five years. On October 1, 2020, with limited exception, employee agreements cannot require confidentiality, nondisclosure, nondisparagement, no-rehire provisions, or similar restrictions that prevent employees from disclosing sexual harassment or discrimination. Similarly, golden parachute clauses in employment agreements may be voided if the employer determines through a “good faith investigation” that the employee engaged in discrimination that was a “substantial contributing factor” in the employee’s termination.

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Washington: Added Harassment Protections in the Hospitality and Adult Film Industries

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Employers of WA Employees in the Hospitality and Adult Film Industries

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SB 5258 amends the Washington Law Against Discrimination to add the following requirements applicable to hotel, motel, retail, security guard entity, or property services contractor employers whose workers spend a majority of their working hours alone.

  • Adopt a sexual harassment policy;
  • Provide mandatory supervisor/manager training on sexual harassment, sexual assault, and discrimination;
  • Provide employees with a designated list of resources to combat sexual assault and harassment;
  • Provide a panic button to employees (excluding contracted security guard companies); and
  • Reporting requirements for property services contractors.

Hotel and motels with 60 or more rooms must meet these requirements by January 1, 2020. All other applicable employers must meet the requirements by January 1, 2021.

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May Updates

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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

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