What’s New Update – Spring 2019

March 7, 2019

Each year Cast & Crew provides its clients with a summary of key changes in the labor, employment and payroll-administration area. 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 Employer Deadlines

  • March 18, 2019 – Lactation Accommodations in New York City
  • April 1, 2019 – Paid Sick Leave in Westchester County, NY (see our previous post)
  • April 1, 2019 – Paid Sick Leave in Michigan (see our previous post)
  • April 1, 2019 – Sexual Harassment Training in New York City (see our previous post)

Sick Leave Laws

Paid Sick Leave in Austin, TX and San Antonio, TX Remain Unsettled

The status of paid sick leave ordinances in both Austin and San Antonio remain in flux. Both ordinances have met significant opposition since they were passed in 2018. In November, a state appeals court struck down the Austin ordinance, finding that it violated the state’s constitution. San Antonio’s ordinance is set to become enforceable this summer, though it is unclear if the ordinance will proceed given the fate of Austin’s very similar ordinance.

Additional information is available here.

Family Leave Laws

Paid Family Leave in Washington D.C., Effective April 2019

In 2016, the Washington D.C. legislature passed the Universal Paid Leave Amendment Act of 2016 (“Paid Leave Act”). The Paid Leave Act will provide D.C. workers with up to eight weeks of parental leave to bond with a new child, six weeks of family leave to care for an ill family member with a serious health condition, and two weeks to care for an employee’s own serious health condition. The program is employer-funded and functions like a payroll tax. All covered employers will be required to contribute 0.62 percent of the wages of each D.C. employee beginning April 1, 2019. Benefits become available to eligible employees beginning July 1, 2020.

Additional information is available here.

Paid Family Leave in Massachusetts, Effective July 2019

In 2018, the Massachusetts legislature passed the Paid Family & Medical Leave Law (“PFML”). The PFML program will provide paid time off to employees working in Massachusetts who need to care for their own or a family member’s medical condition, to bond with a child during the first 12 months of birth, adoption or fostering, or to tend to certain military-related events. In most cases, the program is co-funded by employer and employee through payroll deductions. The total deduction rate for the year beginning July 1, 2019 is 0.63 percent of an employee’s annual earnings, subject to the social security cap. Benefits become available to employees beginning in January 2021. More information on the PFML program is expected in the upcoming months.

Additional information is available here.

Increased Paid Family Leave Benefits in New Jersey, Effective July 2019

On Feb. 19, 2019, New Jersey Governor Phil Murphy signed into law a bill that expands several provisions of New Jersey’s Paid Family Leave Program. The “definitions” section of the bill was amended to expand the definitions of “parent,” “family member” and “covered employer.” The amendments also add incidents of domestic or sexual violence as covered reasons for leave. Benefit amounts and amount of time off will also increase. Employees taking leave after July 1, 2020 will be entitled to receive 85 percent of their average weekly wage up to a maximum of 70 percent of the statewide average weekly wage for up to 12 consecutive weeks, or 56 days of intermittent leave. The expansions to the programs go into effect July 1, 2020.

Additional information is available here.

State & Local Laws

Employment Discrimination Based on Hairstyle Banned in New York City, Effective Immediately

On Feb. 18, 2019, the New York Commission on Human Rights issued guidance that employer policies on appearance and grooming that seek to ban, limit or otherwise restrict natural hair or hairstyles may violate the New York City Human Rights Law (“NYCHRL”). “Natural hair” is defined to include “the natural texture and/or length of hair” and “hair that is untreated by chemicals or heat and can be styled with or without extensions.” The guidance states that hair-based discrimination may violate the NYCHRL’s prohibitions against discrimination on the basis of race, gender, religion or ethnic and cultural identity. Examples of discriminatory conduct may include employer policies that ban or require the alteration of natural hair, facially neutral policies that are applied in a discriminatory manner, policies that require employees to wear their hair in a particular manner or harassment, unfair conditions or other types of discrimination that are based on aspects of an employee’s appearance associated with their race. The rules are effective immediately.

Additional information is available here.

Lactation Accommodation in New York City, Effective March 2019

Two new laws in New York City impose increased obligations on employers in New York City to provide additional accommodations for breastfeeding mothers. The laws apply to employers with four or more employees in New York City. The first law imposes specific requirements for lactation rooms themselves. The room must be a sanitary room, other than a restroom, that is shielded from view, free from intrusion and can be used by breastfeeding mothers to express breast milk. Rooms must also contain a refrigerator, an electrical outlet, a chair, a surface to place a breast pump and nearby access to running water. There are limited exceptions to complying with these requirements for employers who are able to show that providing a lactation room would pose an undue hardship on the business. The second law requires that employers implement a written policy about the lactation room, and that the policy be distributed to all new employees. The New York City Commission on Human Rights is expected to make available a model policy before the laws go into effect on March 18, 2019.

Additional information is available here and here.

Protections for Reproductive Health Choices in New York City, Effective May 2019

Recent amendments to the New York City Code will prohibit employment discrimination and harassment on the basis of an employee’s reproductive health decisions. Under the law, a “reproductive health decision” is defined as “any decision by an individual to receive services, which are arranged for or offered or provided to individuals relating to sexual and reproductive health, including the reproductive system and its functions. Such services include, but are not limited to, fertility-related medical procedures, sexually transmitted disease prevention, testing and treatment, and family planning services and counseling, such as birth control drugs and supplies, emergency contraception, sterilization procedures, pregnancy testing and abortion.” Employers are prohibited from taking adverse action against employees for fertility treatments, STD prevention and abortion. The law goes into effect May 20, 2019.

Additional information is available here.

Salary History Ban in Suffolk County, NY, Effective June 2019 

Suffolk County, NY recently passed the Restricting Information on Salaries and Earnings Act (“RISE Act”). The law prohibits employers from making inquiries into an applicant’s wage or salary history, including compensation and benefits, during the hiring process. The law also explicitly prohibits employers from conducting a search of publicly available records or reports to ascertain an applicant’s prior wage or salary history. Employers are further prohibited from relying on prior wages or salary in determining the wage or salary amount in an applicant’s offer for employment or employment contract. The law goes into effect on June 30, 2019.

Additional information is available here.

Federal Changes

Equal Employment Opportunity Commission EEO-1 Survey Deadline Postponed Until May 2019

Due to delays caused by the late 2018/early 2019 government shut-down, the Equal Employment Opportunity Commission (“EEOC”) has postponed the deadline for employer submission of the annual EEO-1 Report. Each year, the EEOC requires employers with 100 or more employees to submit workforce data from employers across the country via the EEO-1 Report. The reporting deadline usually falls in March of each year, but this year the deadline for submission has been extended until May 31, 2019.

Additional information is available here.

NLRB Reverts to Pre Obama-Era Independent Contractor Test, Effective Immediately

The National Labor Relations Board recently repealed the Obama-era rule for determining whether an individual qualifies as an employee or an independent contractor under the National Labor Relations Act. The NLRB decision moves away from the Obama-era “economic-realities test” and back to the “common-law test,” which looks to the extent of “entrepreneurial opportunity” the individual exerts to determine their status as either an employee or independent contractor. Relevant factors in the common-law test include the extent of control an individual has over their work, the extent of supervision, the method of payment and the length of employment. The decision is effective immediately.

Additional information is available here.

Important Court Cases

California Supreme Court Limits Liability for Payroll Service Providers

On Feb. 7, 2019, in Goonewardene v. ADP, LLC, the California Supreme Court sought to answer the question of whether an employee could make a claim for unpaid wages against their employer’s payroll services provider in addition to their employer. The Court ruled in favor of the payroll services provider, finding that the employee could not also bring claims against ADP. The employee’s argument rested on the theory that the employee was a third-party beneficiary of the contract between employer and payroll service provider, and therefore the employee could bring contract and tort claims against the payroll service provider. The Court found that neither argument was tenable and that the duty to pay wages rested solely with the employer.

Additional information 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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