Category Archives: Guidelines

NEW CASE: Major Changes to California’s Reporting Time Pay Requirements

Does your organization require employees to call-in before a scheduled shift to determine if an employee actually needs to report to work that day?  If the answer is yes, then this new California Court of Appeals case imposes new reporting time pay requirements on your organization.

In a recent case (Ward v. Tilly’s Inc.), the California Court of Appeals has held that employers who require employees to call-in prior to a scheduled shift to determine whether the employee is needed that day, is required to pay the employee reporting time pay (at a minimum for 2 hours of work) even if the employee is told that he does not need to work that day.

Background

This case arises from a scheduling policy of a retailer (Tilly’s).  Under the policy, employees were required to call in approximately two hours before the start of a scheduled shift to determine whether they needed to come to work for that shift.  If the employee was told to come into work, the employee was paid for his scheduled shift.  However, if the employee was told not to come into work, the employee received no pay for the day. Continue reading NEW CASE: Major Changes to California’s Reporting Time Pay Requirements

NEW LAW: New Jersey To Incrementally Increase Minimum Wage to $15.00 Per Hour

On February 4, 2019, New Jersey Governor Phil Murphy signed A15 into law –making New Jersey the latest state to jump on the $15 per hour minimum wage bandwagon.

Under this new law, New Jersey’s minimum wage will increase as follows:

  • July 1, 2019 — increases to $10.00 per hour
  • January 1, 2020 — increases to $11.00 per hour
  • January 1, 2021 — increases to $12.00 per hour
  • January 1, 2022 — increases to $13.00 per hour
  • January 1, 2023 — increases to $14.00 per hour
  • January 1, 2024 — increases to $15.00 per hour

The minimum wage rate for tipped employees  will also increase as follows:

  • July 1, 2019 — increases to $2.63 per hour
  • January 1, 2020 — increases to $3.13 per hour
  • January 1, 2021 — increases to $4.13 per hour
  • January 1, 2022 — increases to $5.13 per hour
  • January 1, 2023 — increases to $5.13 per hour
  • January 1, 2024 — increases to $5.13 per hour

It is recommended that all New Jersey employers prepare for these increases.

NEW LAW: Prohibits Discrimination Based on Gender Identity or Expression in New York

On January 25, 2019, New York Governor Andrew Cuomo signed The Gender Expression Non-Discrimination Act (GENDA) into law. This new law amends the New York State Human Rights Law (NYSHRL) by adding gender identity and gender expression to the list of protected classes. With this addition, discrimination in the workplace based on an individual’s gender identity or gender expression is now prohibited.

“The term “gender identity or expression” means a person’s actual or perceived gender-related identity, appearance, behavior, expression, or other gender-related characteristic regardless of the sex assigned to that person at birth, including, but not limited to, the status of being transgender”.

What does this mean for employers?

  • Employers will have to develop and implement new anti-discrimination policies and anti-harassment policies.
  • Make sure anti-discrimination/anti-harassment training programs address gender identity or expression discrimination.
  • Training managers on detecting such discrimination will be needed.
  • Education/train employees on the forms of harassment and discrimination.
  • Provide reasonable accommodation if needed.

Cautious Optimism for Holding Disabled Employees Accountable for Attendance Issues

Many employers and HR professionals view disabled employees as being immune to disciplinary actions when they have attendance violations. This view is often based on past experience and the many negative “war stories,” that are often shared when employers are sued for disability discrimination – even after they believe that the were doing everything correctly.  The stress of these stories and experiences often causes business leaders to become overly cautious and implement practices where disabled employees are never terminated and never disciplined. While that might suit some situations, recent appellate court decisions have shown that such over-corrections might not be necessary in every case.

There are three recent decisions that come from the Court Appeals that point to the same conclusion – employers can consider attendance as essential to the function of just about and job and in some cases can terminate disabled employees for attendance related issues. The caveat of doing such terminations is that the attendance issues must not be for reasons that are protected leave under laws such as the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), and any state laws of this nature, including local sick leave laws. When unapproved absences are not related to a protected leave, these decisions show that courts have leaned in favor of employers being able to terminate disabled employees. Continue reading Cautious Optimism for Holding Disabled Employees Accountable for Attendance Issues

NEW LAW: Predictive Scheduling Coming to Philadelphia

Philadelphia Mayor Jim Kenney recently signed the Fair Workweek Employment Standards Ordinance into law. The new law, which goes into effect on January 1, 2020, will impact employee scheduling if the employer:

  • Is in the retail, hospitality, or food service industries;
  • Has 250 or more employees (including full and part-time); and
  • Has 30 or more locations worldwide in.

Employers must provide newly hired employees a “Good-faith” estimate of their work schedule which includes:

  • The average number of work hours the employee can expect to work each week over a typical 90-day period.
  • The expectation to work any on-call shifts,
  • Days and times the employee can typically expect to work and when they can expect to be off work.
  • A written work schedule through the end of the currently posted work period (provided before the first day of work).

Continue reading NEW LAW: Predictive Scheduling Coming to Philadelphia

Don’t Tell Me How To Dress, Or Can You?

This is the million-dollar question…literally (well almost). Violating the state and federal anti-discrimination laws can cost employers thousands of dollars per violation.

“Can’t an employer impose a dress code?”, you ask.  Do you have to allow employees to show-up in any “get up” they’ve imagined for the day, costing you customers, reputation and possibly your business.

Before we answer that question, let’s look at the issue from another perspective.

The law is continually expanding to cover more individuals and the definition of sex has grown to cover gender expression, gender identity, transgender, sexual orientation and other LGBT groups.

Because our definition of sex is no longer limited to “boy” or “girl”, our dress codes will also need to expand. Continue reading Don’t Tell Me How To Dress, Or Can You?

NEW CASE: Employee’s Voluntary Use Of Company Vehicle For Commuting Is Not Compensable

In a recent case, (Hernandez v. Pacific Bell Telephone Company) the California Court of Appeal clarified a long-standing law that an employee’s voluntary use of a company vehicle during normal commute is not be considered as “hours worked” for purposes of compensation

Background

The company has issued employees who performed home installations use company vehicles equipped with company tools that employees were required to use for installation jobs.  Prior to 2009, these employees began and ended their work day in the company parking garage, where the employees picked up and returned their company vehicle on a daily basis.  Employees were paid for the time spent travelling from the garage to their first job of the day and the time spent travelling back to the garage after their last job, but they were not paid for the time spent travelling between the garage and their residence.

In 2009, the company started a program where employees were able to voluntarily take the company vehicle home.  This enabled employees who chose to participate in the program to drive from home to the first job of the day and, following the last job of the day, drive back to their residence – bypassing the company parking garage. Continue reading NEW CASE: Employee’s Voluntary Use Of Company Vehicle For Commuting Is Not Compensable

Employers Beware — You Cannot Always Require Employees Exhaust Paid Leave Benefits During FMLA Leave

When administering FMLA , employers are generally advised to run FMLA concurrently with other leaves for which the employee may be eligible– as this practice prevents leave stacking.

However, when drafting FMLA policies, how an employer handles the use of paid leave during FMLA is commonly overlooked.  While most leave policies require employees to use their earned vacation, sick or PTO time concurrently with FMLA leave, employers tend to overlook the FMLA regulation that prohibits employers from requiring employees to use paid leave during FMLA.

Employers should consider how to handle situations where an employee who is requesting FMLA also has some type of paid leave available for his or her use. Continue reading Employers Beware — You Cannot Always Require Employees Exhaust Paid Leave Benefits During FMLA Leave

CALIFORNIA EMPLOYERS — Be Sure To Reset The Clock On Employee Sexual Harassment Training

This past fall, California enacted  Senate Bill 1343,  a law that greatly expands the sexual harassment training requirements (AB 1825 training requirements) in California.

As we previously reported (in”NEW LAW: New Sexual Harassment Training Requirements For California Employers“), this law requires California employers with five or more employees provide sexual harassment training to both non-supervisory and supervisory employees (including all temporary and/or seasonal employees) as follows:

  • Existing Non-supervisory Employees: At least 1 hour of sexual harassment training by January 1, 2020.  Thereafter, sexual harassment training must be provided once every two years.
  • Non-supervisory Employees hired after January 1, 2020: At least 1 hour of sexual harassment training within 6 months of the employee’s hire date.  Thereafter, sexual harassment training must be provided once every two years.
  • Temporary or Seasonal Employees: At least 1 hour of sexual harassment training within 30 calendar days after the hire date or within 100 hours worked if the employee will work for less than six months.
    • NOTE: If the employee is employed by a temporary services employer, the training must be provided by the temporary services employer, not the client.
  • Existing Supervisory Employees: At least two hours of sexual harassment training must be provided by January 1, 2020.  Thereafter, sexual harassment training must be provided once every two years.
  • Supervisory Employees hired after January 1, 2020: At least 2 hours of sexual harassment training within 6 months of the employee’s hire date.  Thereafter, sexual harassment training must be provided once every two years.

Continue reading CALIFORNIA EMPLOYERS — Be Sure To Reset The Clock On Employee Sexual Harassment Training

NEW GUIDANCE: FAQs Regarding Michigan’s Paid Medical Leave Act Published

Paid sick leave is coming to Michigan (at least for employers who employ more than 50 employees) — thanks to the Michigan Paid Medical Leave Act. (For an overview of the Paid Medical Leave Act, please see “NEW LAW: Michigan Amends Earned Sick Time Act“)

In anticipation of this new law, LARA (Michigan’s Department of Licensing and Regulatory Affairs) recently published FAQs relating to the Paid Medical Leave Act and also released the new required poster, which covered employers must post in the workplace.

One of the most important questions answered in the FAQs is addressing when the new  Paid Medical Leave Act takes effect.  According to LARA, the new law will take effect on March 29, 2019. Continue reading NEW GUIDANCE: FAQs Regarding Michigan’s Paid Medical Leave Act Published