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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: AB 5 Cements the Dynamex Independent Contractor Test

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January 1, 2020

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In 2018, in Dynamex Operations West, Inc. v. Superior Court (Lee), the California Supreme Court set forth an ABC test for determining when an individual is an independent contractor rather than an employee for wage and hour-related claims. Specifically, the Court stated that a workers is presumed to be an employee unless the business proves: (A) the worker is free from control and direction of the hirer in connection with the performance of the work, based in contract and in fact; (B) the worker performs work that is outside the usual course of the hiring entity’s business; and (C) the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity. The previous Borello standard was left in place for determining independent contractor status for non-wage and hour claims.

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North Dakota: Recent Employment Updates

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August 1, 2019

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North Dakota enacted several new laws before the close of this year’s legislative session; key provisions are summarized below.

Volunteer Emergency Responder Leave. Covered leave now includes all volunteer members of the army or air national guard in any state, not just North Dakota.

Marijuana “Decriminalization”. North Dakota reduced penalties for first-time possession of up to a half ounce of marijuana to only a fine, not jail time. However, possession of larger amounts, repeat offenses, and sales or trafficking can still result in harsher sentences. The lessening of punishment for first-time offenders does not make marijuana legal; it merely treats the infraction more like a traffic ticket.

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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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Colorado: Look for Local Minimum Wage Laws Enacted in 2020

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January 1, 2021

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HB19-1210 allows up to 10% of Colorado’s local jurisdictions to enact local minimum wage rates for individuals performing work while physically within the locality’s jurisdiction, which rates cannot increase by more than$1.75 or 15% annually, whichever is higher. Also, adjoining communities may join together to implement regional minimum wage rages. County minimum wages will only be applicable to the unincorporated areas of the county. Employee time spent traveling through a jurisdiction, or for stopping to refuel or for an employee’s personal meal or errands, is not subject to local minimum wage rates.

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Massachusetts: Commission-Only Workers Get Overtime

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May 8, 2019

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In Sullivan v. Sleepy’s LLC, the Massachusetts Supreme Judicial Court recently stated that retail salespeople who are paid entirely in commissions or draws are entitled to separate and additional overtime or Sunday pay. There, employees who worked more than 40 hours in a week and on at least one Sunday, did not receive any additional compensation beyond their daily draw and commissions. Even though the compensation received always equaled or exceed the minimum wage and overtime and Sunday pay rates, the court stated that this was insufficient. Overtime and Sunday pay laws, as well as Department of Labor Standards’ (DLS) opinion letters, supported its interpretation.

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Nevada: Legislature Defines “Health Benefits” for Lower-Tier Minimum Wage Rate

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January 1, 2020

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Senate Bill 192 recently passed defining “health benefits” for purposes of employers paying the lower-tier minimum wage. Specifically, employers may pay a lower tier minimum wage if they provide health benefits to employees. There has been some controversy over what “health benefits” means. Last year, in MDC Restaurants, LLC v. The Eighth Judicial Dist. Court, the Nevada Supreme Court stated that health benefits must be “at least equivalent to the one dollar per hour in wages that the employee would otherwise receive” for the higher-tier minimum wage, and cost the employer at least an additional dollar in wages.

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June Updates

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This Short List addresses the following topics:
  1. U.S. Supreme Court: Title VII Claims to the EEOC are Merely Procedural and Not Jurisdictional to Courts
  2. U.S. Supreme Court: State Wage and Hour Rules Don’t Apply to Workers on the Outer Continental Shelf
  3. DOL Issued Updated Poster for Federal Contractors and Subcontractors
  4. California: July 1st REMINDERS for Employers
  5. Emeryville, CA: July 1st Minimum Wage Increase Paused for Small Independent Restaurants
  6. Colorado: Wage Garnishment Reform on the Horizon
  7. Connecticut: Minimum Wage Increasing to $15 an Hour
  8. Minneapolis, MN: Sick and Safe Time Rule Is Still Up in the Air
  9. Kansas City, MO: Bans Pre-Employment Salary History Inquiries
  10. Nevada: Mandatory Safety Training Expanded to Trade Show and Convention Workers
  11. New Jersey: Required Workplace Postings Receive an Update
  12. Texas: Dallas and San Antonio Paid Sick Leave Set to Go into Effect August 1st

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Arkansas: 2019 Legislative Employment Updates

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As indicated

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The Arkansas state legislature’s 2019 session ended on April 10, 2019 with several changes to employment-related laws. Key points are summarized below. All bills go into effect on July 23, 2019 unless otherwise stated.

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