NEW LAW: DC To Require Sexual Harassment Training for Tipped Employees

Attention DC Employers, on October 23, 2018, the District of Columbia Mayor signed the “Tipped Wage Workers Fairness Amendment Act of 2018.”  While this law repealed Initiative 77 (discussed in NEW LAW – Washington DC Elimination of Tip Credit Repealed) and imposed new posting requirements on all DC employers (discussed in COMING SOON: New Posting Requirements for All DC Employers), the new law also imposes the following new requirements on employers of tipped employees:

Mandatory Sexual Harassment Training For Tipped Employees

Employers will be required to provide sexual harassment training to their tipped employees and managers.  This training must be either through a course developed by the Office of Human Rights (OHR) or from an OHR-certified provider. Continue reading NEW LAW: DC To Require Sexual Harassment Training for Tipped Employees

NEW RULE: DOL Eliminates “80/20” Tip Credit Rule

On November 8, 2018, the US Department of Labor issued a new Opinion letter (Opinion Letter FLSA 2018-27) wherein the DOL rescinded the 80/20 tip credit rule.  Under this rule, employers were not able to use the tip credit for tipped employees who spend more than 20% of their time performing allegedly non-tip generating duties.

In lieu of this rule, the DOL has stated that ““We do not intend to place a limitation on the amount of duties related to a tip-producing occupation that may be performed, so long as they are performed contemporaneously with direct customer-service duties and all other requirements of the Act are met.”

NEW CASE: Employer Must Pay for Post-Offer Medical Exams

In a recently decided federal case ( EEOC v. BSNF Railway Company), the U.S. Court of Appeals for the Ninth Circuit held that employers are required to pay for an employer-required post-offer medical examination.

In this case, the company made an offer of employment to an individual and conditioned the offer of employment on the candidate successfully completing a medical examination.  This candidate had a history of back issues and was required to obtain an MRI as a part of the examination (which the candidate was going to have to pay for out-of-pocket).  The candidate told the company that he could not afford to pay for the MRI and the company rescinded the job offer.

The Court confirmed that ADA permits follow-up medical testing where such testing is “medically related to previously-obtained medical information.”  However, the ADA does not specify who should pay for the additional testing.  The Court determined that requiring the candidate to assume the costs of the additional testing could go against the anti-discrimination provisions and the policy purposes of the ADA, by forcing them “to face costly barriers to employment.”  As a result, the Court found that employers must bear the costs of any such testing.

NEW CASE: Harassment Policies Should be Provided In Multiple Languages

In a recently decided federal case (Tinoco v. Thesis Painting, Inc.), the United States District Court, for the Southern District of Maryland held that a company’s  anti-discrimination policy, was “defective or dysfunctional” because it was provided to employees only in English.

In this case, a female employee claimed that she had been sexually harassed by her male coworker.  The company attempted to avoid liability using the Faragher/Ellerth affirmative defense.  Under this defense, an employer may avoid liability for co-worker harassment if the employer exercises reasonable care to prevent and correct promptly any harassing behavior, among other things.  “Exercising care” can be demonstrated by implementing and distributing an effective harassment policy.

Here, the Court found that the company’s anti-discrimination policy was ineffective because it was only distributed to employees in English.  The alleged harasser only spoke Spanish and did not understand any English.  Therefore, he was unable to read or understand the policy. Continue reading NEW CASE: Harassment Policies Should be Provided In Multiple Languages

COMING SOON: New Posting Requirements for All DC Employers

Attention DC Employers, on October 23, 2018, the District of Columbia Mayor signed the “Tipped Wage Workers Fairness Amendment Act of 2018.”  While this new law primarily affects employers of tipped workers, there are two elements of the new law that apply to all DC employers.

Under the new law, the Mayor of DC is required to create a website setting forth employees’ rights and benefits under D.C.’s anti-discrimination and labor laws (including wage and leave laws), and providing resources for consultation.

In addition to this new website, all DC employers will be required to: Continue reading COMING SOON: New Posting Requirements for All DC Employers

NEW LAW: Missouri Voters Approve Increase of Minimum Wage

Attention Missouri employers:  On November 6, 2018, Missouri voters approved Proposition B: The $12 Minimum Wage Initiative.

As a result of this victory, Missouri’s minimum wage will gradually increase by 85 cents per year until it reaches $12.00 per hour in 2023.  Since Missouri law allows employers to claim a tip credit of 50% of the minimum wage, the minimum wage for tipped employees will also change.

The exact scheduled increases are as follows:

  • January 1, 2019 — increases to $8.60 per hour ($4.30 per hour for tipped employees)
  • January 1, 2020 — increases to $9.45 per hour ($4.725 per hour for tipped employees)
  • January 1, 2021 — increases to $10.30 per hour  ($5.15 per hour for tipped employees)
  • January 1, 2022 — increases to $11.15 per hour  ($5.575 per hour for tipped employees)
  • January 1, 2023 — increases to $12.00 per hour. ($6.00 per hour for tipped employees)
  • January 1, 2024 and beyond — the minimum wage will increase each year based on changes in the Consumer Price Index for Urban Wage Earners and Clerical Workers.

All Missouri employers should prepare for this increase.

NEW LAW: Arkansas Voters Approve Increase of Minimum Wage

Attention Arkansas employers:  On November 6, 2018, Arkansas voters approved Arkansas Issue 5, Minimum Wage Increase Initiative.

As a result of this victory, Araknsas’ minimum wage will gradually increase until it reaches $11.00 per hour in 2021.  The tipped employee minimum wage ($2.63 per hour) will not change.

The exact scheduled increases are as follows:

  • January 1, 2019 — increases to $9.25 per hour
  • January 1, 2020 — increases to $10.00 per hour
  • January 1, 2021 — increases to $11.00 per hour.

All Arkansas employers should prepare for this increase.

NEW LAW — Minimum Wage Increases for Certain New Mexico Localities

Attention employers in Albuquerque and Unincorporated Bernalillo County, New Mexico:… minimum wage in these localities is increasing on January 1, 2019.

For employers in Albuquerque, minimum wage is increasing on January 1, 2019 as follows:

  • For employers that provide a certain amount of healthcare and/or childcare benefits, minimum wage is  increasing from $7.95 to $8.20 per hour (and is increasing from  $5.35 to $5.50 per hour for tipped employees) and
  • For employees not provided qualifying benefits, minimum wage is  increasing from $8.95 to $9.20 per hour (and is increasing from  $5.35 to $5.50 per hour for tipped employees).

Continue reading NEW LAW — Minimum Wage Increases for Certain New Mexico Localities

NEW LAW — Minimum Wage Increases for Certain Washington Cities

Attention employers in SeaTac, Seattle, and Tacoma, Washington … minimum wage in these cities is increasing on January 1, 2019.

For employers in SeaTac, minimum wage is increasing for certain employers in the hospitality and transportation industries from $15.64 to $16.09 per hour on January 1, 2019.

For employers in Seattle, minimum wage is increasing on January 1, 2019 as follows: Continue reading NEW LAW — Minimum Wage Increases for Certain Washington Cities

NEW LAW — Minimum Wage Increases for Certain California Cities

Attention employers in Mountain View and Sunnyvale, California … minimum wage in these cities is increasing on January 1, 2019.

For employers in both Mountain View and Sunnyvale,  minimum wage is increasing from $15.00 to $15.65 per hour on January 1, 2019.

Employers in these cities should prepare for the increase and download the update minimum wage poster available here: