THE LAST 60 DAYS OF ACTION IN EMPLOYMENT LAW

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Patricia Tsipras

October 2, 2020 Download as PDF

Federal
On September 22, 2020, President Trump issued an Executive Order prohibiting the use of “divisive concepts” regarding race and sex stereotyping in workplace diversity training offered by the federal government, federal contractors, or federal grantees.  See Executive Order.

 The United States Department of Labor (DOL) made four significant rulings over the past 60 days.

First, on September 8, 2020, a federal judge in New York ruled against much of the DOL’s employer-friendly joint employer rule, calling it “arbitrary and capricious.”  Under the Fair Labor Standards Act (FLSA), in addition to their employer, employees may have one or more joint employers – additional individuals or entities who are jointly and severally liable with the employer for employees’ required minimum wage and overtime pay.  In January, the DOL released its final rule on joint employment and how it relates to the FLSA. The rule became effective in March.  Previously, the DOL considered “economic realities” in deciding whether a joint employment relationship exists.  Under the final rule, the DOL uses a four-part test that measures whether a company actually exercises control over a worker, not simply whether they have the right to exercise control.  For this reason, among others, the New York federal court deemed the final rule to be too narrow.  New York v. Scalia, et al., No. 20-01689, 2020 U.S. Dist. LEXIS 163498 (S.D.N.Y. Sep. 8, 2020).

Second, on August 24, 2020, the DOL issued guidance regarding the obligations of employers to track the number of hours of compensable work, including unscheduled work hours, performed by employees who are teleworking or otherwise working remotely.  The guidance responds directly to issues that have arisen during the COVID-19 pandemic, but it applies equally to all teleworking arrangements.

Third, on August 7, 2020, the DOL revised its regulation for computing overtime compensation of salaried nonexempt employees who work hours that vary each week (a fluctuating workweek) under the FLSA.  The final rule clarifies that payments in addition to the fixed salary are compatible with the use of the fluctuating workweek method of compensation, and that such payments must be included in the calculation of the regular rate as appropriate under the FLSA.  The DOL also added examples and made minor revisions to make the rule easier to understand.  See final rule here.

Fourth, in early August 2020, a New York federal court invalidated portions of the DOL’s final rule concerning who qualifies for coronavirus-related emergency paid sick and family leave and the requirements for intermittent leave under the Families First Coronavirus Response Act (FFCRA).  New York challenged the rule in four key areas: (1) provisions excluding employees from leave benefits when their employers do not have work for them; (2) the DOL’s interpretation of the FFCRA’s exclusion of health care providers from emergency paid sick leave and family leave; (3) restrictions on taking intermittent leave; and (4) documentation requirements for intermittent leave.  The New York federal court found that the rule exceeded the bounds of the FFCRA in nearly all four challenged areas, thereby making COVID-related leave available to more employees under the FFCRA.  Effective September 16, 2020, the DOL issued revised rules reaffirming or revising the portions of the rule impacted by that ruling and explaining its positions.  For more information, see our articles, New York Federal Court Invalidates Portions of DOL Rule Concerning Who Qualifies for Leave Under the FFCRA and DOL Revises Rules Related to FFCRA Leave in Response to New York Federal Court’s August Decision.

On August 5, 2020, the Equal Employment Opportunity Commission issued guidance that addresses how the Americans with Disabilities Act requires reasonable accommodations and other workplace protections for opioid users and addicts who are not currently using drugs illegally.

California
On September 17, 2020, Governor Newsom signed legislation that extends job-protected paid leave to Californians who work for small employers.  Specifically, Californians who work for an employer with five or more employees may take job-protected leave to bond with a newborn, care for a seriously ill family member, address a military exigency, or care for their own illness.  See Cal. SB 1383.

On July 29, 2020, Governor Newsom announced the formation of an Employment Development Department (EDD) strike team to modernize information technology programs so that unemployment insurance claims may be processed more quickly.  The EDD is working to process unpaid claims and to enhance partnership with the California Legislature to improve communication with claimants.  See press release here.

Colorado
Effective September 14, 2020, Colorado amended its Anti-Discrimination Act to prohibit discrimination based on hair texture, hair type, and protective hairstyles commonly or historically associated with race.  See 2020 Colo. HB 1048.

Connecticut
On September 16, 2020, due to the COVID-19 pandemic, the Connecticut Commission on Human Rights and Opportunities extended the deadline for employers to conduct sexual harassment training from October 1, 2020 to January 1, 2021.  See Notice.

Delaware
On August 3, 2020, Governor Carney signed an Executive Order creating the Rapid Workforce Training and Redeployment Training Initiative to assist Delaware workers and their families who have lost jobs and income due to the COVID-19 crisis.  Pursuant to the order, the Delaware Department of Labor will work with the Delaware Workforce Development Board to establish approved training and certification programs for unemployed and underemployed Delawareans.  The training programs will focus on in-demand occupations and skills currently demanded in Delaware workplaces.  See Executive Order #43.

Florida
Effective July 1, 2020, Florida amended and expanded its Florida Disaster Volunteer Leave Act to allow state employees to take up to 120 hours of administrative leave to serve with certain organizations to provide disaster response and recovery services to an area that has been declared a disaster by the Governor.  See Fla. Stat. Ann. § 110.120.

Georgia
On August 5, 2020, Georgia enacted a law requiring employers to provide reasonable break time to employees for the purpose of expressing breast milk at the workplace during work hours.  Employers cannot require that employees use paid leave for these breaks or reduce an employee’s salary as a result of the employee taking a break to express breast milk.  The law also requires that an employer provide a private location at the workplace, other than a restroom, where an employee may express breast milk.  See O.C.G.A. § 34-1-6.

Hawaii
On September 15, 2020, Hawaii amended its ban-the-box law to remove the 10-year lookback period for all convictions and allowing employers to consider only an employee’s felony conviction record within the last seven years and misdemeanor record within the last five years.  See Haw. Rev. Stat. Ann. § 378-2.5(c).

Louisiana
Though the national trend is moving towards limiting restrictive covenants, Louisiana recently broadened them.  Specifically, effective August 1, 2020, a corporation, partnership, or LLC may enter into agreements with their shareholders, partners, and LLC members that restrict them from taking equity stakes in a competing business or merely becoming employees with a competing business.  Prior to this change, a corporation, partnership, or LLC could enter an agreement to stop a shareholder, partner, or member only from owning or holding interest in a competing business (provided it complies with the statutory requirements for restrictive covenants regarding geographic scope and duration), but could not prevent those individuals simply from working for a competing business.  See La. R.S. 23:921.

Maine
On September 17, 2020, Maine’s Department of Labor issued final rules and frequently asked questions regarding its paid leave law, which becomes effective on January 1, 2021.

Maryland
Effective October 1, 2020, Maryland amended its Economic Stabilization Act to require employers that employ at least 50 employees to provide 60 days’ written notice to employees, as well as to continue health, pension, severance, and/or other benefits, before implementing a reduction in operations affecting 15 or more employees.  A “reduction in operations” under Maryland law, which is broader than the triggering events under the Federal WARN statute, includes (1) a relocation of part of an employer’s operations; and (2) the shutdown of a workplace, or portion of operations, that reduces the number of employees by at least 25% or 15 employees, whichever is greater, over any three-month period.  The amendment empowers the state secretary of labor to issue both orders compelling compliance and fines for violations of the notice requirement.  See 2020 Md. S.B. 780.

Also effective October 1, 2020, Maryland amended its Equal Pay for Equal Work Act to prohibit employers from taking adverse action against an employee who makes an inquiry regarding his or her own wages.  See 2020 Md. HB 14.

New Jersey
On August 3, 2020, the New Jersey Department of Labor and Workforce Development (NJDOL) announced new regulations that will ensure protections and fair wages for tipped workers.  The NJDOL also created a guide to help employers learn their obligations to tipped workers, and tipped workers to know their rights under the law.  A “tipped employee” is defined as any employee who customarily and regularly receives more than $30 per month in tips, typically in businesses such as restaurants and catering, barbershops, and hair and nail salons.  An employer of a tipped worker must either (1) pay the tipped employee the state minimum wage in full; or (2) take a “tip credit” for a portion of the employee’s tips while paying the employee a minimum cash wage.  The tip credit plus the cash wage must equal the state minimum wage.  If the minimum cash wage plus an employee’s tips do not equal at least the state minimum wage, then the employer must pay the employee the difference.  Furthermore, in cases where a tipped employee spends more than 20 percent of their time performing duties that are non-tipped, the employer is prohibited from taking a tip credit for that time and must pay the full minimum wage (also known as the 80/20 rule).  Similarly, if an employee performs multiple duties, including tipped and non-tipped, for the same employer, the employer may take a tip credit only for the hours during which the employee performed tipped work.  Most importantly, the NJDOL’s regulations make clear that tips belong exclusively to the employee.  Tips may be used only as wages or as contributions to a valid tip pool, and cannot be used for any other purpose, such as paying credit card transaction fees.

Also on August 3, 2020, Governor Murphy signed an Executive Order, which will last for the duration of the public health emergency, allowing public employees hired on or after March 9, 2020, to enroll immediately in the State Health Benefits Program, rather than waiting two months.  See Executive Order No. 172.

New York
New York passed a law requiring all employers to provide paid sick leave at the rate of one hour of paid leave for every 30 hours worked.  Employees began accruing leave on September 30, 2020 and can take leave beginning January 1, 2021.  See 2020 NY S.B. 7506.  For more information, see our article, New York Enacts State-Wide Sick Leave Law.

On September 28, 2020, Mayor de Blasio signed into law a bill that amends the New York City Earned Sick and Safe Time Act to align it New York law.  See the bill.  The amendments, which became effective on September 30, 2020,

• revise the amount of leave that New York City employers are required to provide starting on January 1, 2021 (four or fewer employees, net income of < $1 million in the prior tax year = 40 hours of unpaid leave per year; < 100 employees, net income of > $1 million in the prior tax year = 40 hours of paid leave per year; 100+ employees = 56 hours of paid leave per year)
• impose new employer reporting requirements (for each pay period, employers must provide employees with a written record of the amount of leave accrued and used in the pay period and the total balance of accrued leave)
• create new employer reimbursement obligations in connection with requested documentation (the law requires employers to reimburse employees for all reasonable costs or expenses incurred in obtaining documentation for the employer in support of leave)
• expand the scope of prohibited retaliation under the law (though the law always prohibited retaliation, the amendments define the prohibited adverse action)
• impose a requirement to provide notice to employees of the amendments to current employees by October 30, 2020
• expand enforcement mechanisms

Effective August 25, 2020, Suffolk County, New York enacted a ban-the-box law prohibiting pre-employment inquiries into an applicant’s criminal conviction history and the consideration of criminal history at the initial application phase.  See Suffolk County Local Law No. 14-2020.

Pennsylvania
Effective October 7, 2020, construction industry employers in Pennsylvania will be required to use a system called E-Verify, a web-based program, to verify a construction worker’s work authorization. See 2019 Pa. HB 1170.

South Carolina
Effective on August 24, 2020, South Carolina enacted the Lactation Support Act, which requires employers to provide employees reasonable unpaid break time, or paid break time or mealtime, each day to express breast milk.  Employers also must make reasonable efforts to provide a room or other location (other than a bathroom stall) in close proximity to the employee’s work area for the employee to express milk in privacy.  See 2020 S.C. SB 406.

This article is designed to provide one perspective regarding recent legal developments, and is not intended to serve as legal advice, nor does it establish an attorney-client relationship with any reader of the article where one does not exist.  Always consult an attorney with specific legal issues.