NEW DEVELOPMENT: Certain Truck Drivers Exempted From California’s Rest and Meal Period Requirements

Good news for certain California trucking companies — California’s meal period and rest break requirements no longer apply to truck drivers who are regulated by the U.S. Department of Transportation’s hours-of-service requirements.

How did this happen?

To understand how this happened, we need to first give a brief history of this issue.

California’s meal period and rest period laws are quite onerous – especially for trucking companies.  These laws require all California employers provide employees with a duty-free 30-minute meal period to begin before the employee completes five hours of work; employers must also provide paid 10-minute duty-free rest breaks for every four-hour work period or “major fraction thereof.”   Among the problems that trucking companies have with complying with these requirements is actually proving compliance with the requirements.  How does one prove that a driver actually took the rest and/or meal period? Continue reading NEW DEVELOPMENT: Certain Truck Drivers Exempted From California’s Rest and Meal Period Requirements

NEW CASE: Non-Solicitation Clauses In Employment Agreements Are Unenforceable In California

In a recent case (Barker v. Insight Global), the California Court of Appeals has held that non-solicitation clauses (i.e. a contract provision that restricts former employees from soliciting former co-workers) in employment agreements are unenforceable.  This is the second California Court of Appeals to reach this conclusion in less than six months (the previous case was AMN Healthcare, Inc. v. Aya Healthcare Services). 

In both cases, the Court concluded that non-solicitation clauses in employment agreements constitute an unlawful restraint on trade and are therefore unenforceable.

It is recommended that all California employers review their employment-related agreements and remove any non-solicitation clauses.

NEW CASE: NLRB Changes Its Independent Contractor Test

In a recent decision (SuperShuttle DFW, Inc.), the NLRB has overruled a 2014 decision (FedEx Home Delivery) and reinstated the common law independent contractor test as the standard the NLRB will use when evaluating whether an independent contractor is properly classified.

In its 2014 FedEx Home Delivery decision, the NLRB had issued a new independent contractor test decided that, in determining whether an individual is an independent contractor or an employee, “entrepreneurial opportunity represents merely ‘one aspect of a relevant factor that asks whether the evidence tends to show that the putative contractor is, in fact, rendering services as part of an independent business.’”

 This new decision (SuperShuttle DFW, Inc.), the NLRB has returned to the common law test to determine whether an individual is an independent contractor (and thereby not a covered individual for purposes of the NLRA).  These factors include: Continue reading NEW CASE: NLRB Changes Its Independent Contractor Test

NEW GUIDANCE: DOL Reminds Employers How To Properly Calculate The Regular Rate Of Pay

The US Department of Labor (DOL) recently issued an opinion letter that reminds employers how to properly calculate an employee’s regular rate of pay for purposes of overtime compensation.

In this letter, the DOL was responding to an inquiry about whether a company’s compensation plan, which pays an average hourly rate that may vary from workweek to workweek, complies with the Fair Labor Standards Act (FLSA).  Specifically, to calculate weekly pay, the company was multiplying an employee’s time with clients by his or her hourly pay rate for such work.  The employer then divided the product by the employee’s total hours worked.  The company then explained that its “standard rate of pay” was $10 per hour and that it paid overtime based on the $10 per hour rate.

According to the DOL, while the employer’s plan likely complied with the FLSA’s minimum wage requirement (that an employee is paid at least minimum wage for every hour worked), it might not comply with the FLSA’s overtime requirement. Continue reading NEW GUIDANCE: DOL Reminds Employers How To Properly Calculate The Regular Rate Of Pay

NEW CASE Reminds California Employers Of The Business Expense Reimbursement Requirement

A recent $5.4 million settlement of a California wage and hour class action (Marley Castro, et al. v. ABM Industries, Inc.) reminds employers of the far-reaching scope of California Labor Code section 2802’s business expense reimbursement requirement.

In this case, the plaintiffs alleged that the company had failed to reimburse all employees for the required use of their personal cell phones for business-related purposes.  According to the plaintiffs, the company required all employees to use their personal cell phones to (1) clock in and out from work and (2) to communicate with their supervisors.

While this case was settled, it serves as an important reminder that California employers are required to reimburse their employees for business-related use of their personal cell phones.  Specifically that California law requires that employers reimburse employees for “some reasonable percentage” of their cellphone bills if the employer requires them to use their personal cellphones for a business purpose – regardless of whether the employee incurs charges over and above what his or her plan costs.

Some common business-related uses for which employers may require employees use their personal cell phones include:

  • Clocking in and out for work or meal periods;
  • Checking or updating schedules via a scheduling app or otherwise requiring them to use data;
  • Texting or calling a manager regarding scheduling or for other work-related purposes;
  • Using data plans for GPS purposes;
  • Requiring employees to use cellphones for purposes of responding to emergency calls or for on-call time periods;and
  • Any other required use of a personal cellphone (text, call, or data) for business-related purposes.

It is recommended that all California employers review their current reimbursement policies and determine whether they are currently reimbursing employees for required business-related cell phone usage.  If employees are required to use their cell phones for work, employers have the following options available to them:

  • reimburse employees for actual cell phone fees incurred for business purposes;
  • reimburse for a percentage of cell phone fees that accurately reflects the amount of mandatory business usage (and inform employees that if their business-related use exceeds that flat rate, a process employees should follow for reimbursement); or
  • provide employees with a cellphone or another communication alternative for business use .

NEW GUIDANCE: Massachusetts Department of Family and Medical Leave Publishes FAQs on Massachusetts Paid Family and Medical Leave Law

As we previously reported (in “NEW LAW – Paid Family and Medical Leave Coming to Massachusetts“), starting in 2021,  employees will be able to begin collecting paid family and medical leave benefits.

While the Massachusetts Department of Family and Medical Leave  is not required to publish its proposed regulations relating to the  Massachusetts Paid Family and Medical Leave Law until March 31, 2019, it has published FAQs for both employers and employees relating to the new program.

These FAQs clarify some of the questions that people have had about this new program — most importantly —

  • What are the employer’s contribution limits?
    • The employer’s contribution will be limited to 0.63% on the first $128,400 of an individual’s annual earnings ( this figure may be adjusted annually)

and

  • When in 2021 employees are able to start collecting these benefits
    • On January 1, 2021, employees can begin claiming benefits for bonding with a child or newborn; service-member related events; and dealing with the employee’s own serious health condition; and
    • On July 1, 2021, employees can begin claiming benefits to care for a family member with a serious health condition.

The FAQs can be found here for employers and here for employees.

REMINDER: Connecticut Employers Must Provide Rebuttal Opportunity For Employee Discipline

There is one aspect of Connecticut employment law that some Connecticut employers overlook …

Connecticut General Statute §31-128e(b) requires employers include in any

  • documented disciplinary action,
  • notice of termination of employment or
  • performance evaluation

a “statement in clear and conspicuous language” that informs the employee that he has the right to “submit a written statement explaining his position” should the employee disagree with any of the information contained therein.

This “rebuttal statement” must be kept in the employee’s personnel file and accompany the document that it is rebutting should that document be disclosed to any third party.  In other words, the rebuttal statement essentially becomes a part of the the write-up, evaluation or notice of termination.

It is recommended that all Connecticut employers review the forms used for employee discipline, performance evaluation, and termination and verify that the required language is present.  If it isn’t, be sure to add the required language.

NEW LAW: Illinois Employers Are Your Handbooks Compliant With The New Sexual Harassment Notice Requirements?

Attention Illinois employers … The 2018 Amendments to the Illinois Human Rights Act (IHRA) (found in Public Acts 100-0588 and 100-1066) imposed new requirements on employers relating to notifying their employees about sexual harassment.

Under these amendments, employers are required to provide employees with specific information about employee rights to be free from sexual harassment.   In particular, employers must include the text contained in the new anti-harassment/discrimination notice (titled “You Have the Right to Be Free From Job Discrimination and Sexual Harassment”) in the employee handbook.

It is recommended that all Illinois employers review their handbooks and verify that the required language is included.

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