New Laws Effective January 2019

Aside from the minimum wage increases, there are a number of new laws that went into effect on January 1st.  Below please find a summary of the new laws/regulations that may affect your business …

Law Summary of Change
Fair Labor Standards Act Consolidated Appropriations Act – Amends the FLSA as it relates to tipped employees by prohibiting employers from keeping tips received by its employees for any purposes (this includes allowing managers or supervisors to keep any portion of employees’ tips), regardless of whether the employer takes a tip credit.

 

State New Law as
Alaska House Bill 79 — Amends Alaska Workers’ Compensation Act as follows:

·   excludes independent contractors from coverage under the Act; and

·   prohibits employers from discriminating against employees who file a workers’ compensation claim.

Employers are not prohibited from requiring applicants fill out a prior health or disability history form.

Effective November 22, 2018

California Assembly Bill 1654 –Amends the Private Attorneys General Act to exclude construction workers who are covered by a collective bargaining agreement that contains certain provisions.

Effective January 1, 2019

Assembly Bill 1976 – Expands California’s lactation accommodation requirements as follows:

·   requires employers provide the employee with the use of a room or other location, other than a bathroom, that is close to the employee’s working space to privately express milk.

·   Allows employers to make a temporary lactation location available to an employee, provided that certain conditions are met

Effective January 1, 2019

Assembly Bill 2034 – Updates the California Human Trafficking Notice that certain employers must post in the workplace.  Also requires mass transit employers provide certain employees with Human Trafficking training by January 1, 2021.
Assembly Bill 2282 – Amends the California salary history inquiry ban law by providing guidance regarding: (a) the types of questions employers can ask about salary during an interview and (b) when employers are required to disclose pay scales for positions.

Effective January 1, 2019

Assembly Bill 2334 – Increases the amount of time Cal/OSHA has to issue recordkeeping citations to 5 years.

Effective January 1, 2019

Assembly Bill 2338 – Requires talent agencies to provide employees with the following materials:

·   anti-harassment materials and

·   materials relating to eating disorders.

Effective January 1, 2019

Assembly Bill 2455 – Requires the State Department of Social Services to share information contained in the Home Care Aide Registry with labor unions – upon request of a labor union – starting July 1, 2019.

Effective January 1, 2019

Assembly Bill 2587 – Repeals the 7-day waiting period for state disability benefits with respect to Paid Family Leave.

Effective January 1, 2019

Assembly Bill 2610 – Amends the California meal period law to require certain commercial drivers receive meal period after 6 hours of work provided that the driver is paid at least 1.5 times minimum wage and the driver receives overtime.

Effective January 1, 2019

Assembly Bill 2770 – In response to a job reference inquiry, allows an employer to tell another employer that it would not rehire a former employee because the former employee had engaged in sexual harassment.

Effective January 1, 2019

Assembly Bill 2844 – Requires that any commission payable to insurance broker be at the rate and in accordance with the terms agreed to in writing between the insurer and the broker-agent. Also creates a rebuttable presumption that a commission is lawful if it is paid in accordance with the above-described laws relating to the termination of a insurance broker’s contract and minimum commission amounts.

NOTE: This law only applies to contracts entered into or modified on or after January 1, 2019.

Effective January 1, 2019

Assembly Bill 3109 – Renders any provision in a contract or settlement agreement void and unenforceable if it waives a party’s right to testify in an administrative, legislative, or judicial proceeding concerning alleged criminal conduct or sexual harassment.

NOTE: This law only applies to contracts or settlement agreements entered into on or after January 1, 2019.

Effective January 1, 2019

Assembly Bill 3247 – Requires a Court to order parties to arbitrate the dispute unless grounds exist for rescission of the arbitration agreement – in a situation where one party to an arbitration agreement refuses to arbitrate the dispute.

Effective January 1, 2019

Senate Bill 224 – Amends the list of persons who can be held liable for sexual harassment to include a person who holds himself or herself out as being able to help the plaintiff establish a business, service, or professional relationship with the defendant or a 3rd party – including, but not limited to an investor, elected official, lobbyist, director, and producer.

Effective January 1, 2019

Senate Bill 820 – Prohibits including a provision in a settlement agreement that prevents the disclosure of factual information relating to certain claims of sexual assault, sexual harassment, or harassment or discrimination based on sex, that are filed in a civil or administrative action.

NOTE: This law only applies to settlement agreements entered into on or after January 1, 2019.

Effective January 1, 2019

Senate Bill 826 – Requires publicly held corporations whose principal executive offices are located in California to have a minimum of one female on its board of directors. No later than the close of the 2021 calendar year, if the corporation has 5 directors, the required minimum number of female directors increases to at least 2 and, if the corporation has 6+ directors, the required minimum number of female directors increases to at least 3.

Effective January 1, 2019

Senate Bill 970 – Requires certain hotels and motels provide at least 20 minutes of training regarding human trafficking awareness to any employee who is likely to come into contact with victims of human trafficking.

Effective January 1, 2020

Senate Bill 1123 – Expands the scope of the family temporary disability insurance program to include time off to participate in a qualifying exigency related to the covered active duty, as defined, or call to covered active duty of the individual’s spouse, domestic partner, child, or parent in the armed forces of the United States starting January 1, 2021.

Effective January 1, 2019

Senate Bill 1252 – Amends California Labor Code §226 to allow employees to obtain a copy of wage records upon request.

Effective January 1, 2019

Senate Bill 1300 – Prohibits employers, in exchange for a raise or bonus, or as a condition of employment of continued employment, from requiring the execution of a release of a claim or right under FEHA or from requiring an employee to sign a nondisparagement agreement or other document that purports to deny the employee the right to disclose information about unlawful acts in the workplace, including, but not limited to, sexual harassment.

Effective January 1, 2019

Senate Bill 1343 – Require employers who employ 5 or more employees, including temporary or seasonal employees, to provide at least 2 hours of sexual harassment training to all supervisory employees and at least one hour of sexual harassment training to all nonsupervisory employees by January 1, 2020, and once every 2 years thereafter, as specified.

Effective January 1, 2019

Senate Bill 1402 – Establishes joint and several liability for customers who use or engage port drayage motor carriers if those carriers have unpaid wages, taxes, or workers’ compensation claims.

Effective January 1, 2019

Senate Bill 1412 – Limits the circumstances where an employer is permitted to ask an applicant about a criminal conviction to the following:

·   Where an employer is required to inquire into a particular category of criminal offenses or criminal conduct, or

·   Where the employer is prohibited from hiring an individual with a particular conviction.

Also clarifies that in the above circumstances, an employer may also inquire about convictions that have been expunged, judicially ordered sealed, statutorily eradicated, or judicially dismissed following probation.

Effective January 1, 2019

Senate Bill 1428 – Prohibits the denial of a work permit to a minor on the basis of a minor’s grades, grade point average, or school attendance if the minor is applying for the work permit in order to participate in a government-administered employment and training program that will occur during the regular summer recess or vacation of the school that the pupil attends.

Effective January 1, 2019

Senate Bill 1500 – Prohibits employers from discharging or halting benefits of an employee for being a member of the military reserve or because of ordered military duty or training.

Effective January 1, 2019

Colorado HB 1186 — Requires health insurers that issue individual and group sickness and accident policies, contracts, or plans that are required under current law to provide contraception coverage to reimburse participating providers or in-network dispensing entities for multiple-months’ supply of prescription contraceptives or contraceptive ring intended to last for a three-month period.

Effective January 1, 2019

Connecticut Public Act 16-29 (2016) à Conn. Gen. Stat. §§ 31-410 — Requires private-sector employers without their own workplace-based retirement plans to enroll employees in Individual Retirement Arrangements (IRAs) sponsored by the state.

NOTE: This is legislation that was passed in 2016 and the implementation date was deferred.  The law will be phased in starting in 2019.

HB 5210 – Requires that health insurance policies provide coverage for certain types of medical conditions and expands required benefits for women and persons 21 and under to include coverage for preventive services and screenings, immunizations, and contraceptives.

Effective January 1, 2019

HB 5386 – Amends the Connecticut Equal Pay Act to prohibit inquiries into an applicant’s salary history before an offer of employment – unless that information is voluntarily disclosed by the applicant.

Effective January 1, 2019

Delaware HB 360 – Requires employers with 50+ employees provide sexual harassment training to their supervisory employees six months after they assume the supervisory role, and the training must be conducted every two years.

Effective January 1, 2019

HB 409 — Creates a state mass layoff and plant closing notice requirement law (mini-WARN Act) that requires certain larger employers to provide their employees with adequate notice when they plan to go out of business, close a plant, or lay off a large number of employees.  Also requires employers to also notify the Delaware Department of Labor planned mass layoffs and plant closings, so the Department can provide dislocated workers with services to assist them in returning to work as soon as possible.

Effective January 7, 2019

HB 483 — Creates a training minimum wage and a youth wage that is not more than $0.50 less than the minimum wage rate.  The training rate can be paid for the first 90 days of employment for employees 18 and older.

Effective January 1, 2019

Hawaii SB2351 – Prohibits prospective employers from requesting or considering a job applicant’s wage or salary history as part of an employment application process or compensation offer. Prohibits enforced wage secrecy and retaliation or discrimination against employees who disclose, discuss, or inquire about their own or coworkers’ wages.

Effective January 1, 2019

Illinois SB 2999 – Requires employers reimburse their employees for all necessary expenditures or losses incurred by the employee directly related to services performed for the employer.

Effective January 1, 2019

SB 3547 – Creates the Service-Member Employment and Reemployment Rights Act, which, among other things, prohibits employer from imposing conditions for military leave

Effective June 1, 2019

Massachusetts HB 4640 – Increases minimum wage in Massachusetts to $15 per hour by 2023.  Gradually eliminates requirement that employer pay retail employees time-and-one-half for hours worked on Sundays and holidays (eliminated entirely by 2023).  Requires employers provide employees with Paid Family Leave starting January 1, 2021.

Effective January 1, 2019

SB 2632 – Requires employers provide a Veteran employee with time off, if requested by the Veteran employee, to observe Veterans Day.   Requires employers provide a Veteran employee with time off, if requested by the Veteran employee, to participate in an exercise, parade, or service in their community.

Effective November 8, 2018

Michigan Michigan Paid Sick Leave Initiative (legislature-adopted ballot initiative) – Requires employers provide employees with paid sick leave benefits.

Later amended by  Senate Bill 1175 (the Paid Medical Leave Act) Requires employers with 50+ employees provide covered employees with at least 40 hours of paid sick leave per year.

Effective April 1, 2019

 Michigan Minimum Wage Initiative (legislature-adopted ballot initiative) – Increases minimum wage in Michigan to $12 per hour by 2022.

Later amended by Senate Bill 1171 (the Improved Workforce Opportunity Act) , which slows the rate of increase of Michigan’s minimum wage so minimum wage does not reach $12 until 2030.  The first scheduled increase is April 1, 2019 to $9.45 per hour.

Effective April 1, 2019

Approved Ballot Measure: Proposal 18-1 (Michigan Regulation and Taxation of Marihuana Act) – Legalizes the recreational use of marijuana for individuals 21 and over. Protects an employer’s right to

·   Implement workplace drug policies, including zero-tolerance policies,

·   Discipline (including terminate) employees who violate workplace drug policies or who report to work under the influence of marijuana

·   Hold an individual’s recreational use of marijuana against the individual when making employment decisions.

Effective December 6, 2018

Minnesota Duluth Ordinance No. 15071 – Requires employers in Duluth with 5+ employees provide employees with 1 hour of paid sick leave for every 50 hours worked.

Effective January 1, 2020

Missouri Approved Ballot Measure: Amendment 2 (the Medical Marijuana and Veteran Healthcare Services Initiative)  – Legalizes the use of marijuana for medicinal purposes in Missouri.  Does not prohibit employers from drug testing potential or current employees.

Effective June 4, 2019

New Hampshire HB 1372 – Prohibiting the implanting of subcutaneous identification devices in individuals.

Effective January 1, 2019

New Mexico HB 276 – Requires employers to electronically submit annual statements of withholding to the state tax department.

Effective January 1, 2019

New York New York City Int. 879-A and Int. 905-A – Requires NYC employers with 4+ employees provide “lactation rooms” for breastfeeding employees to express milk in the workplace.  Requires employers to develop a written policy relating to lactation accommodation that must be provided to all employees and all new employees upon hire.

Effective March 18, 2019

New York City Int. 632 – Requires NYC employers with 15+ employees provide sexual harassment training to employees who work more than 80 hours in a calendar year.

Effective April 1, 2019

Westchester County Local Law 10623 – Requires employers in Westchester County provide employees with 1 hour of paid sick leave for every 30 hours worked.

Effective April 1, 2019

Ohio SB 220 – Provide legal safe harbor to employers who implement a compliant cybersecurity program.

Effective November 3, 2018

Texas San Antonio Ordinance 2018-08-16-0620 – Requires employers in San Antonio provide employees with 1 hour of paid sick leave for every 30 hours worked.

Effective August 1, 2019

Utah Approved Ballot Measure: Utah Proposition 2 (Medical Marijuana Initiative) – Legalizes medical marijuana for individuals with qualifying conditions.

Later amended by House Bill 3001 (Utah Medical Cannabis Act).

Effective July 1, 2019

Washington HB 2822 – Defines “service animal” as any dog or miniature horse that is individually trained to do work or perform tasks that are directly related to the individual’s disability that are for the benefit of an individual with a physical, sensory, psychiatric, intellectual, or other mental disability.  Penalizes individuals that misrepresent an animal as a service animal.

Effective January 1, 2019

SB 5975 – Requires employers to provide employees with 12 weeks of Paid Family Leave for qualifying reasons.

Effective December 31, 2019

Seattle Ordinance, CB 119286 – Establishes labor standards for domestic workers, including minimum wage, rest breaks.

Effective July 1, 2019

REMINDER: Massachusetts Employers Have New Requirements For Tipped Employees

As we reported earlier (in NEW LAW: Massachusetts to Increase Minimum Wage with Grand Bargain), the Massachusetts’ “Grand Bargain” legislation increased the state minimum wage and the “service  rate” (tip credit) that tipped employees could receive.  Effective January 1, 2019, the minimum wage in Massachusetts increased to $12 per hour and the “service rate” increased to $4.35 per hour.

Under Massachusetts law, employees who make at least $20 per month in tips can be paid a “service rate” provided that (1) they are notified in writing that they will be paid the service rate and (2) the employee’s total wages (the service rate plus all tips earned in the shift) equal or exceed minimum wage. Continue reading REMINDER: Massachusetts Employers Have New Requirements For Tipped Employees

NEW CASE: California Employers Beware – Business Owners Can Be Held Personally Liable For Wage And Hour Violations

In a recent case (Atempa v. Pedrazzani), the California Court of Appeal held that an owner of a restaurant can be held personally liable for violations of California’s wage and hour law.

In this case, two former employees of a restaurant filed a claim against the restaurant (business entity) and the owner of the restaurant (personally) for unpaid wages.  Specifically, the former employees claimed that they were not paid minimum wage and overtime in accordance with California law.

By including the owner of the restaurant in the lawsuit, the former employees were testing whether the amendments made to California Labor Code §558.1 through the A Fair Day’s Pay Act (SB 588) really meant that certain individuals could be held personally liable for wage and hour violations without first “piercing the corporate veil” (i.e. claiming that the employer engaged in fraud, failed to follow corporate formalities, or the company was inadequately capitalized). Continue reading NEW CASE: California Employers Beware – Business Owners Can Be Held Personally Liable For Wage And Hour Violations

NEW LAW: Pennsylvania Human Rights Commission Expands Protections Of Pennsylvania Human Relations Act To Include LGBT Bias

In new Guidance Materials (“Guidance On Discrimination On The Basis Of Sex Under The Pennsylvania Human Relations Act”), the Pennsylvania Human Rights Commission has stated that it will consider sex discrimination to include not only an individual’s biological sex, but also sexual orientation, gender identity, gender expression, gender transition, and/or transgender status.

What this means for employers – it is recommended that employers take note of this expansion in the definition of sex and educate their managers/supervisors that an employee’s LGBT status is protected under Pennsylvania law.

NEW LAW: Connecticut Employers, Remember That The New Pay Equity Law Prohibits Salary History Inquiries

On January 1, 2019, Connecticut’s new pay equity law went into effect.  Under this new law, Connecticut employers are prohibited from inquiring into a prospective employee’s salary/wage history.  This includes, but is not limited to:

  • Including inquiries about salary history on an employment application;
  • Directly asking a candidate for employment about his/her salary history during the interview process;
  • Directly asking a candidate’s former employer about the candidate’s salary history; and
  • Using a third party to inquire into an applicant’s salary history.

Employers are still able to inquire about components of an applicant’s former compensation structure (e.g. retirement benefits, stock option plans), but the employer cannot ask about the value of the individual components. Continue reading NEW LAW: Connecticut Employers, Remember That The New Pay Equity Law Prohibits Salary History Inquiries

NEW LAW: Cuyhoga County, Ohio Protects LGBTQ Employees From Discrimination

The Cuyahoga County Council recently passed County Ordinance #O2018-0009, while protects individuals from discrimination based on sexual orientation and gender identity in employment, among other things.  Employers in this county should review the new ordinance and provide training to their managers about the new ordinance.

NEW CASE: Without More, Full-Time Attendance Is Not An Essential Job Function

In a recent case (Hostettler v. College of Wooster), the US Sixth Circuit Court of Appeals held that a requirement that an employee work full time, without a duties-based reason for the requirement.

In this case, the plaintiff was an HR Generalist at College of Wooster. The plaintiff had recently had a baby and, when she was released to return to work, her doctor provided a restriction that the plaintiff could only work part-time because the plaintiff was suffering from postpartum depression and separation anxiety.

Initially, the employer granted the requested accommodation – allowing the employee to work 5 half days per week.  The plaintiff worked that modified schedule for one month and then turned in a note from her doctor stating that she would need to continue working the modified schedule for an additional two months.  The next day, the employee was terminated.  The reason given – the department could not function properly because the plaintiff was not working full-time and working a full-time schedule was an essential function of the HR Generalist position.  The plaintiff filed a lawsuit claiming that her termination was discriminatory. Continue reading NEW CASE: Without More, Full-Time Attendance Is Not An Essential Job Function

NEW LAW: Michigan Amends Earned Sick Time Act

Earlier this year, we reported that Michigan had passed a new paid sick leave law (see NEW LAW: Michigan’s New Earned Sick Time Law).  In this article, we cautioned employers that since the law that was initially passed was scheduled to be a ballot initiative (the Michigan Paid Sick Leave Initiative) in the November 2018 election, the Michigan legislature would likely amend the law (and in amending the law, would make substantial changes to the requirements).

Well, the Michigan legislature did not disappoint.  On December 14, 2018, Michigan Governor Rick Snyder signed Senate Bill 1175 (the Paid Medical Leave Act) into law.  This new law amends and greatly overhauls the Michigan paid sick and safe time law as follows: Continue reading NEW LAW: Michigan Amends Earned Sick Time Act

NEW LAW: Michigan Amends Improved Workforce Opportunity Act

Earlier this year, we reported that Michigan had passed a new paid sick leave law (NEW LAW: Michigan To Incrementally Increase Minimum Wage to $12.00 Per Hour).  In this article, we cautioned employers that since the law that was initially passed was scheduled to be a ballot initiative (the  Michigan Minimum wage Initiative) in the November 2018 election, the Michigan legislature would likely amend the law (and in amending the law, would make substantial changes to the minimum wage increase).

Well, the Michigan legislature did not disappoint.  On December 14, 2018, Michigan Governor Rick Snyder signed Senate Bill 1171 (the Improved Workforce Opportunity Act) into law.  This new law while it still increases Michigan’s minimum wage to over $12.00 per hour, it changes the planned increase in two important ways: Continue reading NEW LAW: Michigan Amends Improved Workforce Opportunity Act

NEW CASE: California Court Approves Employer’s Rounding Practice

In a recently-decided case (Donohue v. AMN Services, LLC), a California appellate court found that an employer’s rounding of employee’s time to the nearest 10-minute increment did not violate California law because the practice did not disfavor employees.

In this case, the plaintiff was a non-exempt nurse recruiter who worked for a healthcare staffing company.  The recruiters, including the plaintiff, logged their time using a computer-based timekeeping system.  Despite the fact that the computer-based timekeeping system logged employees’ punches in real time, the company had a practice of rounding employees’ time to the nearest 10 minutes (e.g. all punch times between 7:55 a.m. and 8:04 a.m. would record as 8:00 a.m., and all punch times between 8:05 a.m. and 8:14 a.m. would record as 8:10 a.m.).  The plaintiff filed a class action lawsuit against the employer claiming that the company’s rounding practice violated California law. Continue reading NEW CASE: California Court Approves Employer’s Rounding Practice