What’s New Update – Fall 2018

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

Sick Leave Laws

Paid Sick Leave in Austin, TX

In February 2018, the Austin City Council passed the first local paid sick leave law in the State of Texas. Under the new law, employees who work at least 80 hours per year for an employer within the city accrue one hour of paid sick leave for every 30 hours worked. Employers with 15 or fewer employees may limit employee sick time hours to 48 hours per year, and large employers may limit sick time hours to 64 hours per year. Sick leave may be used when an employee needs to care for their own or a family member’s health, illness or injury, or to tend to their own or a family member’s needs in connection with situations of domestic abuse, sexual assault or stalking. The law was set to go into effect Oct. 1, 2018, but a court of appeals ruling from Aug. 2018 placed the ordinance on hold. The current fate of the law is unclear.

In November 2018, a Texas Court of Appeals ruled that the Austin Paid Sick Leave Ordinance violates the Texas constitution, thereby continuing the hold on the ordinance. It is unclear at this time whether the City will appeal the decision to the Texas Supreme Court. For the time being, the law is not effective.

Additional information on the law can be found here and here.

Paid Sick Leave in San Antonio, TX, Effective August 2019

In August 2018, the San Antonio City Council passed the second paid sick leave law in the State of Texas. Under the new law, sick leave is accrued at a rate of one hour of paid sick leave for every 30 hours worked. Employers with 15 employees or less may cap sick leave at 48 hours per year, and larger employers may cap sick leave at 64 hours per year. Texas State Attorney General Ken Paxton has opined that the sick leave ordinance is in violation of state law, leaving the fate of the law unclear. The law is set to go into effect August 2019.

Additional information on the law can be found here.

Family Leave Laws

Federal Paid Family Leave Program Introduced in the Senate

On Aug. 2, 2018, Senator Marco Rubio introduced the Economic Security for New Parents Act in the Senate. If passed, the federal law would give U.S. workers paid leave to care for a newborn or adopted child. Funding for the proposed program is through Social Security, and would allow new parents to use a portion of their Social Security benefits to finance up to two months of paid family leave. In return for receiving Social Security benefits early, parents would postpone their retirement by three to six months, depending on the length of leave taken. Congresswoman Ann Wagner is expected to introduce a similar bill into the House this fall.

Additional information on the proposed law can be found here.

State & Local Laws

Clarity on Salary History Ban Legislation in California, Effective Immediately

Last fall, California enacted Assembly Bill 168, which prohibits California employers from making inquiries into the salary history of prospective job applicants. The law was drafted in such a way that left certain important terms undefined. To rectify the ambiguity, Governor Jerry Brown signed Assembly Bill 2282 on July 18, 2018. The bill provides clarity for employers on how to ensure compliance with the law’s salary history inquiry ban, including definitions to integral terms like “applicants,” “pay scale” and “reasonable request.” The law is effective immediately.

Additional information on the law can be found here.

Sexual Harassment in the Workplace in New York, Effective September and October 2018

In May 2018, Governor Andrew Cuomo signed into law a series of regulations aimed at combatting sexual harassment in the workplace. Effective Oct. 9, 2018, all employers in the state are required to adopt a sexual harassment policy and training program that meet criteria consistent with the Model Policy developed by the New York State Department of Labor and the New York State Division of Human Rights. Effective the same date, New York employers are required to provide annual, interactive sexual harassment training for all employees. New York City also passed a series of sexual harassment bills in the spring, with some of the City’s requirements differing from the state’s. Most notable, New York City employers must comply with new anti-sexual harassment posting and notice requirements by Sept. 6, 2018.

Additional information on the requirements can be found here and here.

Non-Compete Agreements in Massachusetts, Effective October 2018

On Aug. 10, 2018, Governor Charlie Baker signed Massachusetts House Bill 4868 which regulates the use of non-compete agreements in employment relationships in the state. Specifically, the Act places structural and procedural limitations on agreements between employers and employees that seek to prohibit the employee from engaging in activities that compete with the employer’s business practice once the employment relationship has ended. Non-compete agreements may be allowed when they are “reasonable,” in writing, signed by both employer and employee, and make explicit note of the employee’s right to consult with counsel before signing. The law applies to any non-compete agreements signed after Oct. 1, 2018.

Additional information on the law can be found here.

Sexual Harassment in the Workplace in Maryland, Effective October 2018

On May 15, 2018, Maryland Governor Larry Hogan signed into law the Disclosing Sexual Harassment in the Workplace Act. The law applies to employers in Maryland with 50 or more employees and has two major requirements. The first requires employers to report to the Maryland Commission on Civil Rights information regarding settlements they have entered into in claims of sexual harassment. The reporting deadlines go into effect July 1, 2020 and the Commission is expected to release more information about the process before that date. The second major component voids provisions in employment contracts that require employees to waive their rights or remedies related to sexual harassment claims. As of Oct. 1, 2018, existing provisions addressing such a waiver will be deemed void as a matter of public policy.

Additional information on the law can be found here.

Amendments to “Ban the Box” Legislation in Massachusetts, Effective October 2018

In April 2018, Massachusetts Governor Charlie Baker signed a bill amending the state’s 2010 “Ban the Box” law. Entitled “The Act Relative to Criminal Justice Reform,” the law places further limits on the information employers may collect on a prospective employee’s criminal record as part of a job application. Under the new law, employers are prohibited from asking applicants about criminal records that have been sealed or expunged. In addition, the time period for employers to ask questions about a prospective employee’s misdemeanor charges will be three years, down from five. Finally, the law requires a new mandatory written notice requirement on job applications that provides further information about what applicants with expunged records are required to disclose. The law goes into effect Oct. 13, 2018.

Additional information on the law can be found here.

Salary History Ban Law Enacted in Connecticut, Effective January 2019

On May 22, 2018, Connecticut Governor Dannel P. Malloy signed a law prohibiting employers in the state from inquiring into a prospective job applicant’s salary history. Connecticut joins the growing trend of state and local jurisdictions passing these kinds of laws, aimed at combatting the gender pay gap between men and women in the workplace. Entitled “An Act Concerning Pay Equity,” the new law disallows employers from inquiring into a job applicant’s wage or compensation history at any point during the hiring process. Employees are permitted to voluntarily disclose this information. The law goes into effect Jan. 1, 2019.

Additional information on the law can be found here.

Extensive Data Privacy Law Enacted in California, Effective January 2020

On June 28, 2018, California Governor Jerry Brown signed into law the California Consumer Privacy Act (“CCPA”). The CCPA grants consumers a host of new rights to request information from businesses about how their personal data is being used. Amongst other things, the law creates a consumer right to request that a business disclose the categories of personal information that it collects about the consumer, the sources from which the information is collected, and the business purpose for collecting the information. Consumers will also have the right to request that a business delete any personal information about the consumer which the business collects from them (with limited exceptions for transaction completion, research, free speech and a few others). The law, which goes into effect Jan. 1, 2020, is projected to have a sweeping impact on the way businesses both collect and monetize consumer data of California residents.

Additional information on the law can be found here.

Federal Changes

New Alternative Dispute Resolution Pilot Program at the National Labor Relations Board

On July 10, 2018, the National Labor Relations Board (NLRB) announced the launch of a new pilot program focused on encouraging alternative dispute resolution (ADR) for cases that come before the Board. The NLRB’s ADR program was established in 2005 and provides free mediation services to parties who want to try to settle their case rather than bring it before the Board for determination. Under the new pilot program, the Board will “proactively engage” parties to determine if their case is appropriate for the ADR program. Mediation services are free and participating parties may withdraw at any time.

Additional information about the program can be found here.

Important Court Cases

FLSA’s De Minimis Doctrine Rejected by California Supreme Court

In Troester v. Starbucks Corporation, the California Supreme Court ruled that California wage and hour laws do not incorporate the Federal Labor Standard Act’s (FLSA) de minimis doctrine. The doctrine alleviates employers of the duty to pay employees for small amounts of work that are irregular and administratively difficult to track. The case arose when a former Starbucks supervisor claimed that he was not paid for all hours worked because he was required to perform certain tasks in order to close the store after he had clocked out. The California Supreme Court examined California Labor Code statutes, Industrial Welfare Commission’s Wage Orders, and California legislative history and determined that the de minimis doctrine is inapplicable to California workers. The Court also noted that it is up to employers, not employees, to devise methods to track these small amounts of regularly performed worked so that employees are paid for all hours worked.

A copy of the decision can be read here

If you have any questions, please email 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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