What’s New Update – Fall 2019

Sept. 4, 2019

Each year Cast & Crew provides its clients with a summary of key changes in labor, employment and payroll-administration law. A few times during the year, we provide further important updates. While our “What’s New” series does not provide legal advice, it does seek to alert our clients to the myriad issues and challenges facing our industry in the new year.

Upcoming Deadlines

  • Sept. 30, 2019 – Component 2 of EEO-1 Reporting Due (see our previous post)
  • Oct. 1, 2019 – Paid Family Leave in Massachusetts (see our previous post)
  • Oct. 9, 2019 – Mandatory sexual-harassment prevention training in New York (see our previous post)

Changes in California

Paid Family Leave Benefits Expanded, Effective Jan. 1, 2020

A new California law expands benefits for employees taking time off to care for a seriously ill family member or to bond with a new child. Wage replacement benefits under the state’s Paid Family Leave program will increase from six weeks to eight weeks effective Jan. 1, 2020. Additional information is available here.

Discrimination Based on Natural Hair Explicitly Prohibited, Effective Jan. 1, 2020

The Creating a Respectful and Open Workplace for Natural Hair Act (“CROWN Act”) amends California’s Fair Employment and Housing Act (“FEHA”) to explicitly prohibit discrimination on the basis of traits historically associated with race, including hair texture and protective hairstyles like braids, locks and twists. The CROWN Act also prohibits workplace dress codes or grooming practices that prohibit natural hair or have a disparate impact on Black employees and applicants. Additional information is available here.

Changes in New York

Amendments to Data Breach Notification Law, Effective Oct. 23, 2019

The Stop Hacks and Improve Electronic Data Security Act (the “SHIELD Act”) expands provisions of the state’s already existing data breach notification law. Notably, the SHIELD Act broadens the definitions of “private information” and “breach” to include additional data pieces and additional circumstances giving rise to a breach scenario. The Act also imposes duties on employers to adopt reasonable safeguards to protect the security, confidentiality and integrity of personal information. The breach provisions go into effect Oct. 23, 2019 and the security provisions go into effect March 21, 2020. Additional information is available here.

Amendments to New York State Human Rights Law, Effective Oct. 8, 2019

  • Discriminatory Pay Practices Prohibited – Pay differentials based on any protected class listed in the NYSHRL are prohibited under new amendments to the New York State Human Rights Law (“NYSHRL”). Historically, the NYSHRL prohibited pay differentials only on the basis of sex, but no other protected class. Protected classes include race, creed, color, national origin, sexual orientation, gender identity or expression, military status, disability, predisposing genetic characteristics, familial status, marital status or domestic violence victim status. Pay differentials based on legitimate criteria including seniority, merit, education and training or experience are still permitted. Additional information is available here.
  • Religious Garb and Facial Hair Protections in the Workplace – Another amendment to the NNYSHRL explicitly prohibits employers from refusing to hire, retain or promote employees on the basis of their choice to wear particular clothing, attire or facial hair associated with their religious practices. While religious discrimination has long been prohibited in the state of New York, this amendment specifically prohibits certain types of discrimination related to religious garb. Additional information is available here.

Trending State Changes

MeToo Legislation

In the wake of the #MeToo Movement, a number of states and local jurisdictions have enacted laws that seek to reduce sexual harassment in the workplace. The laws include provisions mandating anti-sexual harassment training, extending the statute of limitations for employees bringing forth claims of harassment and widely prohibiting agreements that seek to quell an employee or former employee’s right to bring forth a claim or otherwise go public about instances of sexual harassment. The following states have enacted legislation closely aligned with the principles of the #MeToo Movement:

  • New York – New York continues to lead the country in progressive laws prohibiting various forms of discrimination in the workplace, including a recent package of bills that address sexual harassment in particular. Recent amendments expand the definition of “employer” to include all employers in the state, regardless of size, and expand legal protections to safeguard not only employees but independent contractors, vendors and consultants from all forms of unlawful discrimination where the employer knew or should have known that discrimination was occurring. The law also extends the statute of limitations from one year to three years for sexual harassment complaints in filings before the New York State Division of Human Rights and prohibits mandatory arbitration for all claims of discrimination. The different bills go into effect at different points throughout Fall 2019. Additional information is available here.
  • Oregon, Effective Oct. 1, 2020 – Oregon’s new Workplace Fairness Act imposes a series of #MeToo inspired requirements on employers. The law prohibits the use of agreements that have the purpose or effect of preventing employees from discussing instances of sexual assault or discrimination. In the employment context, this includes non-disclosure and non-disparagement agreements, severance agreements and settlement agreements. The law also lengthens the statute of limitation for discrimination claims from one year to five years. Finally, the law imposes training requirements whereby covered employers are required to adopt written policies, practices and procedures aimed at reducing and preventing instances of sexual assault and discrimination in the workplace. Additional information is available here.
  • Connecticut, Effective Oct. 1, 2019 – Connecticut’s “Act Combatting Sexual Assault and Sexual Harassment” requires covered employers to adopt and distribute an employee-wide anti-sexual harassment policy and to provide anti-sexual harassment training to all supervisors. The law also provides anti-retaliation protections for employees who make claims of sexual harassment in the workplace and extends the statute of limitations for discrimination and harassment claims from 180 days to 300 days. Additional information is available here.
  • Illinois, Effective Jan. 1, 2020 – Illinois recently passed a series of laws aimed at combating sexual harassment in the workplace. The Workplace Transparency Act prohibits any contract, agreement, clause, covenant, waiver or other document from restricting an employee’s right to report allegations of unlawful conduct to federal, state, or local officials for investigation. Contracts that require employees to waive or arbitrate claims of unlawful employment practices, including discrimination and harassment, are also void as a matter of law. The Sexual Harassment Victim Representation Act requires unions and employers to ensure that in a proceeding where a union member has been sexually harassed by another union member, the victim has a different union representative than that of the accused. Finally, amendments to the Illinois Human Rights Act (IHRA) require employers to provide annual anti-sexual harassment training to their workforce and to provide annual reports to the Department of Human Rights listing sexual harassment or unlawful discrimination judgements issued against them in the prior year. Additional information is available here.

Non-Compete Reform

In the last several years, an increasing number of states have passed laws limiting the use of non-compete agreements in employment contracts. In general, the laws seek to curb the misuse and overuse of restrictive covenants in employment agreements that limit employees’ ability to move freely into new employment after their previous employment ends. The following states have recently enacted non-compete reform laws:

  • New Hampshire, Effective Sept. 8, 2019 – The state’s existing non-compete law was amended to prohibit employers from requiring employees to sign agreements containing non-compete restrictions unless they earn in excess of 200 percent of the federal poverty level. Additional information is available here.
  • Maine, Effective Sept. 18, 2019 – The state enacted “An Act to Promote Keeping Workers in Maine” which prohibits employers from entering into a non-compete agreement with an employee whose wages are at or below 400 percent of the federal poverty level. Additional information is available here.
  • Rhode Island, Effective Jan. 1, 2020 – The Rhode Island Noncompetition Agreement Act prohibits non-compete agreements with undergraduate and graduate students, employees who are 18 years old or younger, and with low-wage employees defined as employees with average annual earnings of not more than 250 percent of the federal poverty level. Additional information is available here.

Salary History Bans

In an effort to mend the gendered pay gap between men and women, states and local municipalities are passing laws that prevent employers from asking prospective employees about their prior salary and wage history. The specifics of these laws vary in scope, terms and applicability. The following states and local municipalities are the latest to pass some version of a salary history ban law:

  • Illinois, Effective Sept. 29, 2019 – Recent amendments to the Illinois Equal Pay Act of 2003 strengthen provisions prohibiting the solicitation of salary history information from job applicants. Under the revised statute, Illinois employers are prohibited from screening job applicants based on salary history or requesting or requiring salary history information as a condition of interviewing or of employment. Additional information is available here.
  • New Jersey, Effective Jan. 1, 2020 – New Jersey’s newly-enacted salary history ban prohibits employers from screening a job applicant based on salary history or from requiring that an applicant’s salary history meet a certain minimum or maximum threshold to be considered for employment. The law provides exceptions in the cases of internal transfer or promotion, when federal or other regulation explicitly requires the disclosure or verification of salary history, or if an applicant voluntarily – and without prompting or coercion – chooses to disclose their salary history. Additional information is available here.

Family Leave Laws

In the last several years, a number of states have passed laws mandating that employers provide employees with paid time off to deal with certain family or medical situations. Federal legislation on paid family leave has been introduced in Congress but ultimately has not seen much traction. The following states continue to pass their own legislation in the absence of a federal program:

  • Nevada Paid Time Off, Effective Jan. 1, 2020 – Covered Nevada employees will be entitled to up to 40 hours of paid leave each year under the state’s new paid time off law. Unlike other paid sick leave or paid family leave programs, the Nevada program allows eligible employees to take time off for any Nevada employers with 50 or more employees are subject to the law’s requirements unless they are in their first two years of operation or, pursuant to a contract, policy or collective-bargaining agreement, already provide employees an equal or greater amount of time off. Employees accrue paid time off at a rate of 0.01923 hours of paid time off for every hour worked and may use up to 40 hours per year. Temporary, seasonal and on-call employees are exempt from the paid leave benefit. Additional information is available here.
  • Connecticut Paid Family Leave, Effective Jan. 1, 2021 – Connecticut employers will be required to provide eligible employees with to 12 weeks of paid leave for reasons covered by the federal Family and Medical Leave Act and for certain reasons related to family issues with domestic violence. The program is funded through employee payroll deductions at a rate of 0.5 percent of employee gross wages and benefits cap at $780 per week. Details of the program are still in development. Additional information is available here.
  • Oregon Paid Family Leave, Effective Jan. 1, 2022 – Oregon employers will be required to provide eligible employees with 12 weeks of paid leave with total paid and unpaid leave capped at 16 weeks (or up to 18 weeks for women who experience complications due to pregnancy or childbirth. Employees who earned at least $1,000 in wages during the base year are eligible for the program. The program is co-funded by employee and employer through employee payroll deductions and employer contributions. Rates, benefit amounts and other details are still in development. Additional information is available here.

Other State Changes

Wage Theft Prevention in New Jersey, Effective Nov. 1, 2019

New Jersey’s Wage Theft Act provides the country’s most protective wage theft provisions and imposes the harshest penalties on employers who fail to comply. Under the Act, employees who are able to prove that their employer failed to pay wages owed to them are entitled to recover not only the wages owed, but also damages equal to up to 200 percent of the amount of unpaid wages. The Act also creates a cause of action for employees who are subject to adverse employment action in retaliation for bringing forth a wage theft claim. Employers who violate the Act may be subject to fines and criminal penalties. Additional information is available here.

Pregnancy Accommodation in Oregon, Effective Jan. 1, 2020

The Employer Accommodation for Pregnancy Act amends Oregon’s civil rights code to extend protections for employees against forms of discrimination related to pregnancy, childbirth and lactation. The law expands what types of reasonable accommodations must be provided to pregnant employees and prohibits employers from denying employment to an applicant based upon the need to make a reasonable accommodation, taking adverse action against an employee for inquiring about, requesting, or using a reasonable accommodation or requiring an employee to accept unnecessary reasonable accommodations. Additional information is available here.

Federal Changes

IRS Releases Draft 2020 Federal W-4 Form, Effective Jan. 1, 2020

On Aug. 8, 2019, The IRS released a second draft of the 2020 Form W-4, the final version of which will go into effect Jan. 1, 2020. Changes to the form stem from the Tax Cuts and Jobs Act of 2017 and are aimed at simplifying the tax filing process for individuals, business and tax exempt and government entities. The new form utilizes the same underlying information as the old design but eliminates deductions and traditional withholding exemptions. Though the final Form W-4 has not been released and is not expected for several months, the IRS and the Treasury Department have stated that there will be no further substantive changes. Employers are instructed to continue to compute withholding based on information from the employee’s most current Form W-4 with the new Form W-4 going into use Jan. 1, 2020. A version of the draft form is available here.

 For further information, please contact Compliance@castandcrew.com.

The proceeding information is provided for informational purposes only, should not be construed as or relied upon as legal advice and is subject to change without notice. If you have questions concerning particular situations, specific payroll administration or labor relations issues, please contact your counsel.

 

 

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