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April 2, 2020
It goes without saying (but I will say it anyway) that the biggest news in recent weeks has been the COVID-19 public health concern. Of course, we are committed to providing information and guidance on COVID-19; however, this publication addresses employment law changes unrelated to COVID-19 in the last 60 days. For COVID-19 updates, visit our website and click on COVID-19 Update Center from the landing page for guidance regarding the pandemic.
An African-American-owned television network operator alleged that Comcast systematically disfavored 100% African-American-owned media companies in violation of 42 U.S.C. § 1981 (a statute passed in the aftermath of the Civil War that promises that all persons shall have the same right to make and enforce contracts, to sue, be parties, and give evidence as is enjoyed by white citizens). On March 23, 2020, the United States Supreme Court concluded that, to prevail on such a claim, a plaintiff had to initially plead and ultimately prove but-for causation – i.e., but for race, the plaintiff would not have suffered the loss of a legally protected right – not simply that race was a motivating factor in the challenged decision. But-for causation is a higher burden that will make it more difficult for minorities to prevail on claims under Section 1981. Comcast Corp. v. Nat’l Ass’n of African Am.-Owned Media, No. 18-1171, 2020 U.S. LEXIS 1908 (Mar. 23, 2020).
On March 16, 2020, the United States Department of Labor’s rule, which limits the scope of joint employer liability for wage and hour matters through the use of a four-factor balancing test, became effective. When an employee works one set of hours for an employer that simultaneously benefits another individual or entity, the rule has replaced the previously applicable “not completely disassociated” standard for determining joint employer status, and provides that the other entity is a joint employer only if that entity is acting directly or indirectly in the interest of the employer in relation to the employee. The four factors include whether the other individual or entity (1) hires or fires the employee; (2) supervises and controls the employee’s work schedules or conditions of employment to a substantial degree; (3) determines the employee’s rate and method of payment; and (4) maintains the employee’s employment records. Additional factors may be relevant for determining joint employer status in this scenario, but only if they indicate whether the potential joint employer is exercising significant control over the terms and conditions of the employee’s work. See 29 C.F.R. § 791.2.
In an important win for equal pay proponents, the Ninth Circuit Court of Appeals held, on February 27, 2020, that plaintiff’s prior rate of pay was not a “factor other than sex” that allowed defendant to pay her less than male employees who performed the same work, and that only job-related factors may serve as affirmative defenses to Equal Pay Act claims. The court overruled Kouba v. Allstate Ins. Co., 691 F.2d 873 (9th Cir. 1982), which held that prior pay could qualify as an affirmative defense if the employer considered prior pay in combination with other factors and used it reasonably to effectuate a business policy. See Rizo v. Yovino, No. 16-15372, 2020 U.S. App. LEXIS 6345 (Feb. 27, 2020).
On February 25, 2020, the National Labor Relations Board issued the final version of its joint employment test, reinstating the pre-Obama-era standard that a business is a joint employer only if it has “substantial direct and immediate control” over another company’s workers. The rule becomes effective April 27, 2020. See 85 FR 11184.
On February 5, 2020, the National Labor Relations Board overturned an Administrative Law Judge’s finding that an employer unlawfully maintained overbroad Confidential Information, Electronic Communications, and Cell Phone Policies, and unlawfully terminated its employees for violation of the Cell Phone Policy. The Board held that a facially neutral confidentiality agreement that barred employees from disclosing “earnings” and “employee information” was lawful because it applied only to the company’s proprietary business information. The Board further held that the company’s restriction on employees’ use of its email system to “business purposes and not for personal purposes” also was lawful because employees had access to forms of communication – such as oral solicitation, literature distribution during non-work time, personal email, and social media – that did not require using the company’s email system, and no allegation existed that the company discriminatorily applied the policy. Lastly, the Board held that employees would not reasonably interpret the Cell Phone Policy to potentially interfere with their right to engage in concerted activity, as it was limited to prohibiting drivers’ possession or use of cell phones while operating commercial vehicles. See Argos Ready Mix LLC, 2020 NLRB LEXIS 51 (Feb. 5, 2020).
On February 4, 2020, the Second Circuit Court of Appeals ruled that no proportionality requirement exists in connection with awards of attorney’s fees in the settlement of actions under the Fair Labor Standards Act. See Fisher v. SD Prot, Inc., 948 F.3d 593 (2d Cir. 2020).
On January 31, 2020, the United States Citizenship and Immigration Services released a new form I-9 to be used to verify eligibility to work in the United States. See US Citizenship and Immigration Services.
On March 12, 2020, the California Supreme Court held that aggrieved employees who settle their individual claims still may file representative actions under the Private Attorneys General Act (PAGA). PAGA authorizes aggrieved employees to file lawsuits to recover civil penalties on behalf of themselves, other employees, and the State of California for Labor Code violations. See Kim v. Reins Int. Cal. Inc., No. S246911, 2020 Cal. LEXIS 1593 (Mar. 12, 2020).
On February 13, 2020, the California Supreme Court ruled that the time that employees spend waiting for and undergoing mandatory searches of bags, packages, or personal technology devices voluntarily brought to work for personal convenience is compensable as hours worked. See Frlekin v. Apple Inc., 8 Cal. 5th 1038 (Feb. 13, 2020).
Effective March 16, 2020, Colorado issued an Overtime and Minimum Pay Standards Order, amending the state’s wage and hour laws. Most notably, the Order
See 7 CCR 1103-1.
Maryland Governor Larry Hogan vetoed the Criminal Record Screen Practices Act, which prohibits employers from inquiring about a prospective employee’s criminal record prior to the applicant’s first in-person interview. On January 30, 2020, Maryland’s General Assembly overrode that veto. The law became effective February 29, 2020.
Effective February 6, 2020, Montgomery County, Maryland amended its antidiscrimination law to prohibit discrimination based on traits that historically are associated with race, including hair texture and protective hairstyles. See Montgomery County Code Sec. 27-6.
On February 12, 2020, the Massachusetts Supreme Judicial Court held that unpaid commissions that were lost as a result of retaliation are subject to treble damages under the state’s wage act. The court further held that an employer cannot rely on a requirement of continuous employment as a contingency to pay commissions when the employer creates the circumstances that prevent the employee from meeting the continued employment contingency. See Parker v. EnerNOC, Inc., 484 Mass. 128 (2020).
The New Jersey Supreme Court held, on March 10, 2020, that employees may bring a disability discrimination action under the New Jersey Law Against Discrimination (NJLAD) for adverse employment actions suffered as a result of their lawful use of medical marijuana outside of work during non-work hours. The court further held that employees may bring a failure to accommodate claim under NJLAD based on their lawful use of medical marijuana. See Wild v. Carriage Funeral Holdings, No. 082836, 2020 N.J. LEXIS 299 (Mar. 10, 2020)
On March 2, 2020, the New Jersey Civil Rights Division released enforcement guidance on the state’s equal pay act. See https://www.nj.gov/oag/dcr/downloads/DCR-Equal-Pay-Guidance-3.2.20.pdf.
On March 4, 2020, New Mexico enacted a law limiting the use of nondisclosure provisions in settlement agreements involving claims of workplace harassment, discrimination, and retaliation. The law becomes effective on May 20, 2020. See 2020 NM H.B. 21.
Effective March 1, 2020, the City of Santa Fe increased its minimum wage to $12.10 per hour.
Effective February 10, 2020, New York amended its laws to hold liable the top 10 members of any foreign limited liability company for wages owed to workers for work performed within the state. See N.Y. Ltd. Liab. Co. Law § 609.
Effective March 13, 2020, the City of Cincinnati enacted a law that prohibits employers from inquiring about an applicant’s salary history. See Cincinnati, Ohio Code of Ordinances Sec. 804-03.
On February 15, 2020, the City of Pittsburgh Mayor’s Office of Equity issued revised guidelines and frequently asked questions regarding the Paid Sick Days Act. The guidance addresses accruals, front-loading policies, documentation, and employee coverage and became effective March 15, 2020. See Guidelines and FAQ.
On February 6, 2020, the Third Circuit Court of Appeals upheld a law of the City of Philadelphia that prohibits employers from inquiring and relying upon a prospective employee’s wage history in determining pay. See Greater Phila. Chamber of Commerce v. City of Phila., 949 F.3d 116 (3d Cir. Feb. 6, 2020).
On February 28, 2020, Utah enacted a law clarifying that the Utah Medical Cannabis Act does not require private employers to accommodate the use of medical cannabis. See 2020 UT S.B. 121.
On February 25, 2020, and effective January 1, 2021, the Vermont Legislature overrode the Governor’s veto of a minimum wage bill, thereby implementing a minimum wage of $11.75 by 2021 and $12.55 by 2022. See 2019 VT S.B. 23.