Florida employers, mark your calendars: The Florida Department of Economic Opportunity recently announced that on January 1, 2018, Florida’s minimum wage will increase from $8.10 to $8.25 per hour. The minimum wage rate for tipped employees of large employers will also increase from $5.08 to $5.23 per hour.
NEW LAW: California MINIMUM PAY FOR EXEMPT COMPUTER PROFESSIONALS AND HOURLY-PAID PHYSICIANS TO INCREASE IN 2018
The California Department of Labor Standards Enforcement (DLSE) recently announced that the minimum pay requirements for exempt computer professionals and hourly-paid physicians and surgeons will increase effective January 1, 2018 as follows:
- Exempt computer professionals must be paid at least $43.58 per hour, or a minimum salary of $7,565.85 monthly or $90,790.07 annually to be eligible for the professional exemption from overtime
- Hourly paid physicians and surgeons must be paid at least $79.39 per hour to be eligible for the professional exemption from overtime
It is recommended that employers who employ these type of employees review the compensation levels of these employees and verify that their compensation meets the new minimum pay rates in order for any exemption from overtime to be retained.
Attention California employers … on October 2, 2017, California Governor Jerry Brown signed SB 295 into law. This new law, which goes into effect on January 1, 2018, amends the California Labor Code §1684 and adds a new condition that must be met for receipt of a farm labor contractor license.
Under the current law, applicants for a farm labor contractor license must meet the following requirements before a license can be issued or renewed:
- Complete a written application (provided by the DLSE)
- Deposit a surety bond in an amount based on the size of the person’s annual payroll for all employees with the Labor Commissioner
- Pay the license fee and filing fee
- Pass a written examination (developed by the DLSE) addressing the person’s knowledge of the current laws and administrative regulations concerning farm labor contractors
- Register as a farm labor contractor pursuant to the federal Migrant and Seasonal Agricultural Worker Protection Act, when required
- Verify that all employees have registered as a farm labor contractor employee pursuant to the federal Migrant and Seasonal Agricultural Worker Protection Act, when required
- Provide sexual harassment training to all supervisorial employees at least once for at least two hours each calendar year
- Provide sexual harassment training to all new non-supervisorial employees, at the time of hire, and to all non-supervisorial employees at least once every two years
Under the new law, license applicants are required to provide sexual harassment training to each agricultural employee in “the language understood by that employee.” In addition, license applicants are required to provide the Labor Commissioner with the following information regarding their sexual harassment training program:
- a complete list of all materials and resources used to provide sexual harassment prevention training to agricultural employees and
- the total number of agricultural employees trained in sexual harassment prevention during the calendar year preceding an application
a complete list of all materials and resources used to provide sexual harassment prevention training to agricultural employees and the total number of agricultural employees trained in sexual harassment prevention during the calendar year preceding an application.
Take Home For Employers
The new law also gives the Labor Commissioner the right to levy civil penalties against any farm labor contractor licensee who fails to:
- Provide sexual harassment training to an agricultural employee at the time of hire;
- Provide sexual harassment training in a language understood by an agricultural employee;
- Provide an agricultural employee with sexual harassment training satisfying Section 1684’s minimum requirements;
- Provide an agricultural employee with a record of his or her training or a copy of the Department of Fair Employment and Housing’s “Sexual Harassment” pamphlet;
- Keep a record of training for each agricultural employee who receives sexual harassment training.
Therefore, it is important that farm labor contractor licensees familiarize themselves with this new law.
Attention California employers … on October 15, 2017, California Governor Jerry Brown signed SB 396 into law. This new law amends the California Fair Employment and Housing Act (FEHA) and requires that employers’ sexual harassment training programs include an additional training element.
Under current law, California employers who employ 50 or more employees are required to provide at least two hours of classroom or other effective interactive training and education regarding sexual harassment to all supervisory employees in California within six months of their assumption of a supervisory position. The training program must be presented by trainers or educators with knowledge and expertise in the prevention of harassment, discrimination, and retaliation and must include the following elements:
- Information and practical guidance regarding the federal and state statutory provisions concerning the prohibition against and the prevention and correction of sexual harassment,
- Information and practical guidance regarding the remedies available to victims of sexual harassment in employment,
- Practical examples aimed at instructing supervisors in the prevention of harassment, discrimination, and retaliation,
- Information and practical guidance regarding prevention of abusive conduct.
Under the new law, starting January 1, 2018, the sexual harassment training program must also address harassment based on gender identity, gender expression, and sexual orientation and include practical examples inclusive of harassment based on gender identity, gender expression, and sexual orientation.
In addition to the new training requirements, all California employers are required to post a poster regarding transgender rights in a prominent and accessible location in the workplace. This poster will be developed by the DFEH and is not yet available on the DFEH website. It is also recommended that employers consider distributing the DFEH’s brochure regarding transgender rights (Transgender Rights in The Workplace) to all employees.
Take Home for Employers
It is recommended that all affected California employers verify their sexual harassment training programs include the new required elements. In addition, all California employers should make sure to post the new poster in the workplace once it is available.
Attention California employers … on October 12, 2017, California Governor Jerry Brown signed AB 1008 into law. This new law amends the California Fair Employment and Housing Act (FEHA) and, starting January 1, 2018, officially “bans the box” on California (in other words, it prohibits California employers).
This new law applies to both public and private employers with five or more employees. Under the law, employers are prohibited from inquiring into an applicant’s conviction history until after a conditional offer of employment is made. Specifically, employers are prohibited from doing the following:
- Including any question that seeks the disclosure of an applicant’s conviction history on any application for employment — before the employer makes a conditional offer of employment to the applicant.
- Inquiring into or considering the conviction history of the applicant, including any inquiry about conviction history on any employment application, until after the employer has made a conditional offer of employment to the applicant.
- Considering information about any of the following while conducting a conviction history background check in connection with any application for employment:
- Arrest not followed by conviction.
- Referral to or participation in a pretrial or posttrial diversion program.
- Convictions that have been sealed, dismissed, expunged, or statutorily eradicated pursuant to law.
In addition, if an employer intends to deny employment based on the applicant’s conviction history (after conducting a lawful, post offer criminal background check), the employer must go through the “fair chance process” before employment is denied.
Under this process, employers must take the following steps:
- Make an individualized assessment of whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job that justify denying the applicant the position.
While not required to be in writing, it is recommended that employers document the assessment in writing
In making the assessment, the employer must consider all of the following:
- The nature and gravity of the offense or conduct.
- The time that has passed since the offense or conduct and completion of the sentence.
- The nature of the job held or sought.
- If, following the assessment, the employer makes a preliminary decision that the applicant’s conviction history disqualifies the applicant from employment, the employer shall notify the applicant of this preliminary decision in writing.
That notification may, but is not required to, justify or explain the employer’s reasoning for making the preliminary decision.
The notification must contain all of the following elements:
- Notice of the disqualifying conviction or convictions that are the basis for the preliminary decision to rescind the offer.
- A copy of the conviction history report, if any.
- An explanation of the applicant’s right to respond to the notice of the employer’s preliminary decision before that decision becomes final and the deadline by which to respond. The explanation shall inform the applicant that the response may include submission of evidence challenging the accuracy of the conviction history report that is the basis for rescinding the offer, evidence of rehabilitation or mitigating circumstances, or both.
- After receipt of the notification, the applicant has at least five business days to respond to the notice before the employer may make a final decision.
If, within the five business days, the applicant notifies the employer in writing that the applicant disputes the accuracy of the conviction history report and that the applicant is taking specific steps to obtain evidence supporting that assertion, then the applicant shall have five additional business days to respond to the notice.
- The employer must consider information submitted by the applicant (explained above) before making a final decision.
- If an employer makes a final decision to deny an application solely or in part because of the applicant’s conviction history, the employer must notify the applicant in writing of all the following:
- The final denial or disqualification. The employer may, but is not required to, justify or explain the employer’s reasoning for making the final denial or disqualification.
- Any existing procedure the employer has for the applicant to challenge the decision or request reconsideration.
- The right to file a complaint with the DFEH.
This new law does not apply to the following employers:
- Positions for which a state or local agency is required by law to conduct a conviction history background check,
- Criminal justice agencies,
- Farm labor contractors, and
- Employers required by state, federal, or local law to conduct background checks or restrict employment based on criminal history.
Take home for employers
With this new law (and the accompanying salary history ban, discussed here), it is critical that all California employers review the hiring practices to insure compliance with the new laws. In addition, employers need to provide training to those people involved in the hiring process about the new ban the box requirements, as these requirements impact the interview process. Finally, all California employers should review their job applications and verify that any inquiries regarding criminal history are removed from the application before January 1st.
NOTE: This new law does not supersede the local ordinances (i.e. in Los Angeles and San Francisco). Therefore, employers in these locations need to comply with the local ordinance requirements as well.
Attention California employers … on October 12, 2017, California Governor Jerry Brown signed AB 168 into law. In short, this new law amends the California Fair Pay Law by prohibiting all California employers from inquiring into an applicant’s salary history starting January 1, 2018.
Specifically, under the new law, all California employers are required to follow these rules during the hiring process:
- Employers cannot use (rely on) the salary history information of an applicant when determining whether to offer employment to an applicant or
- Employers cannot use (rely on) the salary history information of an applicant when determining what salary to offer an applicant.
- Employers cannot seek salary history information, including compensation and benefits, about an applicant.
- Upon reasonable request, employers must provide the pay scale for a position to an applicant applying for employment.
It is important to note that the law does not prohibit an applicant from voluntarily disclosing salary history information to a prospective employer. If an applicant voluntarily and, without prompting, discloses salary history information to a prospective employer, the law does not prohibit that employer from considering the voluntarily disclosed salary history information.
Next step for employers
California employers should review this new law and provide training to those people involved in the hiring process about the new requirements, as these new requirements impact the interview process. In addition, all California employers should review their job applications and verify that any inquiries regarding prior salary history or wage rates are removed from the application before January 1st.
Attention California employers … on October 12, 2017, California Governor Jerry Brown signed the New Parent Leave Act (SB 63) into law. Under this new law, starting January 1, 2018, certain California employers are required to provide eligible employees with 12 weeks of unpaid, job-protected parental bonding leave.
Which employers are covered under this law (and required to provide this new leave)?
California employers who employ 20 to 49 employees within 75 miles of each other are covered by this law and required to provide this new benefit.
Does this new law extend FMLA/CFRA baby-bonding leave time?
No, this law does not apply to employees who are covered under the FMLA/CFRA, as these laws already provide 12-weeks of baby bonding leave.
However, an FMLA/CFRA-employer that has smaller locations (e.g. locations where the employees are not FMLA/CFRA-eligible due to not meeting the 50 employees within 75 miles requirement) are required to provide baby bonding leave to those employees who work at a worksite with between 20 or more employees in a 75-mile radius.
What employees are eligible for California Parental Leave?
The eligibility requirements are extremely similar to those under the FMLA/CFRA. In other words, an employee is eligible for Parental Leave if he/she meets the following requirements:
- The employee has worked for the employer for at least 12 months,
- The employee has worked at least 1,250 hours in the 12-month period preceding the use of leave, and
- The employee works at a worksite with 20 or more employees in a 75-mile radius.
How much leave is available to eligible employees?
Eligible employees may take up to 12 weeks of unpaid, job-protected leave during a 12-month period to bond with a new child within one year of the child’s birth, adoption, or foster care placement.
Is this leave paid leave?
No, the leave itself is unpaid. However, employees are entitled to use accrued paid time off, such as paid vacation and sick leave, during the leave. In addition, employees may also use California Paid Family Leave benefits for 6 weeks of this leave.
Do employers have to maintain an employee’s health benefits under this leave?
Yes, in addition to providing the leave of absence, employers are required to maintain and pay for the employee’s continued coverage under a group health plan at the level and under the same conditions that coverage would have been provided had the employee continued to work. Yet, if the employee fails to return to work following the leave, the employer is able to recover their portion of the premium provided that the employee’s failure to return is not due to the continuation, recurrence or onset of a serious health condition, or “other circumstances beyond the control of the employee.”
What if both new parents work for the same employer? How does the leave work in that case?
In a case where both parents work for the same employer, both parents are entitled to a combined total of 12 weeks of unpaid parental leave. The employer may, but is not required to, grant simultaneous leave to both employees.
What steps should employers take to prepare for this new leave?
Before this new law takes effect on January 1, 2018, California employers should first determine if they are covered employers under this law. If yes, then affected employers should take steps to develop new policies and procedures relating to this leave of absence. In addition, employers should train their managers and supervisors on how to comply with these new requirements.
Ohio employers, mark your calendars. The Ohio Department of Commerce recently announced that on January 1, 2018, Ohio’s minimum wage will increase from $8.15 to $8.30 per hour for “large employers” (employers with more than $305,000 in gross annual receipts). The minimum wage rate for tipped employees of large employers will also increase from $4.08 to $4.15 per hour.
Minimum wage for “small employers” (employers with $305,000 or less in gross annual receipts) must continue to follow the federal minimum wage of $7.25 per hour for non-tipped employees or $2.13 per hour for tipped employees.
It is recommended that all Ohio employers prepare for these increases and download the revised minimum wage poster for 2018.
On October 5, 2017, California Governor Jerry Brown signed the Immigrant Worker Protection Act (Assembly Bill 450) into law. This new law, which goes into effect on January 1, 2018, adds a new section to the California Government Code (§7285.1), which prohibits employers from voluntarily agreeing to allow an immigration enforcement agent to enter any nonpublic areas of the workplace – unless otherwise required to under federal law. The new law does not apply if the immigration enforcement agent provides a judicial warrant.
What exactly does the new law do?
The new law limits an employer’s ability to voluntarily cooperate with immigration enforcement agent (specifically federal immigration authorities – ICE). Under current federal law, an employer may grant an ICE agent access to non-public portions of the worksite either by requiring a judicial warrant or by voluntarily consenting to access.
The new law removes an employer’s ability of employers to “voluntarily consent” to ICE access. Instead, employers will have to insist that the ICE agent provide a warrant in order to obtain access to the non-public areas of the workplace.
In addition to the foregoing, the new law also prohibits an employer from granting voluntary access to the employer’s employee records without a subpoena or judicial warrant. This excludes access to I-9 forms and other documents for which a Notice of Inspection has been provided to the employer.
Finally, the new law imposes new notice requirements on employers when faced with a notice of any inspection of I-9 forms or other employment records:
- Employers must provide current employees with a notice of any inspection of these records within 72 hours of receiving notice of the inspection.
- Upon reasonable request, an employer must provide an affected employee with a copy of a Notice of Inspection of I-9 forms.
- Employers must provide affected employees a copy of the notice that provides the inspection results within 72 hours of receiving it, as well as written notice of the obligations of the employer and the affected employee arising from the results of the inspection.
- NOTE – this notice must be hand-delivered at the workplace if possible, or by mail and email if hand delivery is not possible.
Take home for employers
The penalties for noncompliance with this new law are fairly steep.
An initial violation of the physical access requirements can amount to between $2,000 and $5,000 for an initial violation and $5,000 to $10,000 for each subsequent violation. The same penalty levels apply to a violation of the records access requirement and/or the notice requirement.
It is recommended that all California employers review the new law and train their management team and front line staff on the law’s new requirements.
In a recent decision (Hicks v. City of Tuscaloosa), the U.S. Court of Appeals for the Eleventh Circuit recently found that the Pregnancy Discrimination Act (PDA) bars discrimination not only on the basis of pregnancy, but also on the basis of pregnancy-related physiological conditions such as breastfeeding.
In this case, the plaintiff was a female police officer who had returned from maternity leave. Upon her return, the officer requested an alternative duty because her doctor informed her that wearing the required bulletproof vest could cause infection and prevent her from breastfeeding. The officer had requested to be assigned to a position where wearing a bulletproof vest was not required and the employer refused. As a result, the officer resigned and filed a lawsuit.
The court held that the employer’s refusal to accommodate this employee constituted discrimination under the PDA. In making this decision, the Court likened the officer’s situation to that of the employee in Young v. United Parcel Service, Inc. (where the U.S. Supreme Court held the PDA bars employers from refusing to accommodate pregnant employees when they provide accommodations for similarly situated employees who are not pregnant.) Here, the officer was able to show that her employer had provided alternative duties to employees with temporary injuries. As a result, the Court held the employer’s failure to provide the officer with an alternative duty constituted pregnancy discrimination.
Take Home for Employers
The key for employers to remember here is that the Pregnancy Discrimination Act is more expansive than one might initially assume. Specifically, even if an employee’s pregnancy (or pregnancy-related condition) does not amount to a disability under the Americans with Disabilities Act, the employer still might be required to provide the employee with an accommodation under the PDA.
NOTE: There are also many state laws that provide protections for pregnant employees. Before refusing accommodation to a pregnant employee and/or taking any adverse action against that employee, be sure to review the laws in your state.