June 1, 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 in the new year.
Sick Leave Laws
New Jersey Enacts Paid Sick Leave Law, Effective Oct. 2018
On May 2, 2018, New Jersey joined nine other states and the District of Columbia in enacting a law that provides mandatory paid sick leave for most New Jersey employees. Notably, the new Paid Sick Leave Act (the “Act”) preempts all existing and future local paid sick leave ordinances within the state. The Act applies to all employers in the state of New Jersey regardless of size. Covered employees are allowed up to 40 hours of paid sick leave per year, either accrued at a rate of one hour of paid sick leave for every 30 hours worked or frontloaded upon commencement of employment, at the discretion of the employer. Exceptions may exist for certain New Jersey employees covered by a valid collective bargaining agreement. The new law goes into effect Oct. 29, 2018.
Additional information on the law can be found here.
Maryland Department of Labor Issues Guidance on New Paid Sick Leave Law
Despite partisan efforts at delay, Maryland’s Healthy Working Families Act went into effect this past February. The new law requires Maryland employers with 15 or more employees to provide up to five days of paid sick leave per year, and employers with 14 or fewer employees to provide up to five days of unpaid sick leave per year. On March 9, 2018, the Maryland Department of Labor issued documentation to provide further guidance on the law to help employers ensure compliance. The published guidance includes FAQs, model policies and employee notice posters in both English and Spanish.
The Department of Labor resources can be found here.
State & Local Laws
Wisconsin Passes Law Preempting Local Enactment of Wage and Hour Regulations, Effective Immediately
On March 22, 2018, the Wisconsin legislature passed Assembly Bill 748 which limits the authority of local Wisconsin governments to pass their own wage and hour laws. The law’s intended purpose is to create uniformity among Wisconsin laws that govern the employment relationship anywhere in the state. Some of the notable explicit prohibitions include laws that govern shift scheduling, salary history bans and regulation of wage claims. The law went into effect the same day it was signed in April 2018.
Additional information on the law can be found here.
Washington Expands Employment Discrimination Protections for Domestic Violence Victims, Effective June 2018
Washington recently amended its employment discrimination laws to expand workplace protections for victims of domestic violence. Under the amendments, Washington employers are prohibited from firing, demoting, suspending, discriminating against or refusing to hire a qualified applicant because he or she is a victim or perceivedvictim of domestic violence. Employers are also required to make “reasonable workplace safety accommodations” when requested by a victim of domestic violence except in limited certain situations that impose undue hardship on the business. “Reasonable safety accommodations” are defined as including a modified job schedule, transfer or reassignment, changes in contact information or other physical safety procedures. Taking protected leave is also allowed under the law, though the employer may require certain notice and verifications prior to leave. The law goes into effect June 7, 2018.
Additional information on the law can be found here.
Washington Passes Laws Addressing Sexual Harassment in the Workplace, Effective June 2018
In response to the national “#MeToo” Movement, Washington recently passed several laws to protect sexual harassment victims in the workplace. S.B. 5996 prohibits employers from requiring employees to sign a nondisclosure agreement, waiver or other document that prevents the employee from disclosing sexual harassment or sexual assault occurring in the workplace as a condition of employment. Likewise, S.B. 6313preservesan employee’s right to file a complaint or cause of action for sexual harassment by making employment contracts or agreement stating otherwise void as a matter of public policy. Finally, S.B. 6471 sets forth model policies to avoid sexual harassment in the workplace. All three laws go into effect June 7, 2018.
Additional information on these laws can be found here.
Washington Passes “Ban-the-Box” Legislation, Effective June 2018
On March 23, 2018, Washington passed the Washington Fair Chance Act (the “Act”) making it unlawful for employers to inquire into a job applicant’s criminal history. The new Act includes prohibitions against employers asking questions about an applicant’s criminal history either orally or in writing, performing a criminal background check on applicants or otherwise obtaining information about an applicant’s criminal record until after a determination has been made. The law applies to both public and private employers throughout the state of Washington and does not preempt existing local “ban-the-box” ordinances nor prevent municipalities from passing their own. Seattle and Spokane both currently have their own “ban-the-box” laws. The law goes into effect on June 7, 2018.
Additional information on the law can be found here.
Michigan Passes Law to Ban Local Job Interview Rules, Effective June 2018
On March 29, 2018, Governor Rick Snyder signed an amendment to Michigan’s Local Government Labor Regulatory Limitation Act that preemptively bans local municipalities from regulating the types of questions Michigan employers are permitted to ask during the job interview process. The law effectively bans local Michigan municipalities from passing increasingly popular “ban-the-box” legislation, though no Michigan locality has this type of law in effect to date. The law goes into effect June 24, 2018.
Additional information on the law can be found here.
New Jersey Passes Equal Pay Act, Effective July 2018
On March 26, 2018, the New Jersey Legislature passed Senate Bill 103, which amends New Jersey’s existing Law Against Discrimination to strengthen employment wage discrimination protections. Specifically, the law makes it unlawful for an employer to pay employees of a protected class less than similarly situated employees who are not in a protected class for work that is substantially similar based on the skill, effort and responsibility of the employee. Though the law is primarily aimed at promoting equality for women, it is broad in its scope and provides protections for members of all of the following protected classes: race, creed, color, national origin, ancestry, age, marital status, civil union status, domestic partnership status, affectional or sexual orientation, genetic information, pregnancy or breastfeeding, gender identity or expression, disability or atypical hereditary cellular or blood trait of any individual, or liability for service in the armed forces. The law goes into effect July 1, 2018.
Additional information on the law can be found here.
Attorney General Offers Guidance on Massachusetts Equal Pay Act, Effective July 2018
On March 1, 2018, the office of the Attorney General of Massachusetts published official guidance to help employers interpret and implement the Massachusetts Equal Pay Act (“MEPA”), which seeks to reduce the gender pay gap by requiring employers to pay men and women the same amount for “comparable work.” The Attorney General’s guidance does not carry the force of law but it does provide useful clarifications on areas including: which employers are covered under MEPA, how “comparable work” is defined under the law, examples of lawful justifications for variations in pay, and self-auditing tips for employers to ensure compliance with the law. The law goes into effect July 1, 2018.
A copy of the Official Guidance can be found here.
Vermont Enacts Salary History Ban Law, Effective July 2018
On May 11, 2018, Vermont Governor Phil Scott signed into law H.294 which prohibits employers from requiring job applicants to disclose their salary and benefit history during the application process. Employers are also otherwise prohibited from seeking this information except with express permission from the application. General questions about salary expectations and voluntary disclosures are permissible exceptions to the law. The law goes into effect July 1, 2018.
Additional information on the law can be found here.
New York City Enacts Scheduling Flexibility Law, Effective July 2018
Recent amendments to New York City’s Fair Workweek Law give employees the right to request a flexible and predictable schedule. Specifically, the law requires New York City employers to grant qualifying employees at least two temporary schedule changes per year for “personal events.” Personal events include providing child care to a minor, attending a legal proceeding or hearing, or any circumstance that could constitute permissible use of sick or safe time under New York City’s Earned Safe and Sick Time Act. The law applies to employees who have been employed for at least 120 days for the same employer and who work at least 80 hours in New York City in a calendar year. Exceptions exist for certain employees working in the motion picture industry and for employees covered by a collective bargaining agreement whose agreement provides separate terms for temporary changes to work schedules. The law goes into effect July 18, 2018.
Additional information on the law can be found here.
New York City Passes Several Sexual Harassment in the Workplace Laws, Effective Sept. 2018
On April 11, 2018, The New York City Council passed the Stop Sexual Harassment in NYC Act, a package of laws prohibiting harassment in the workplace. For example, Int. 657-A will expand New York City Human Rights Law to cover sexual harassment cases for employees working for small employers (fewer than four employees). Int. 663-A will lengthen the current one-year statute of limitations for sexual harassment claims under New York Human Rights Law to three years. Several other provisions impose duties on employers, including a posting requirement under Int. 630-A and a mandatory interactive sexual harassment training for certain employees under Int. 632-A. These anti-sexual harassment laws only represent a portion of changes in the law. The law goes into effect Sept. 6, 2018.
Additional information on the laws can be found here.
Massachusetts Adds Limits on Employer Inquiries into Applicants’ Criminal History, Effective Oct. 2018
On April 13, 2018, Governor Charlie Baker signed amendments to the Massachusetts Criminal Justice Reform Laws adding further restrictions on questions employers are permitted to ask prospective employees with regards to their criminal history. Massachusetts was the second state in the nation (after Hawaii) to implement this type of increasingly popular “ban-the-box” legislation back in 2010. Under the new amendments, sealed and expunged criminal records are added to the list of records employers are prohibited from discussing with prospective employees. In addition, the law adjusts the time frame for inquiries into misdemeanor convictions to three years. The amendments to the law go into effect Oct. 13, 2018.
Additional information on the law can be found here.
Federal Changes
OSHA Renews Alliance with Performing Arts Organizations to Protect Health and Safety of Workers in the Entertainment Industry
On Feb. 22, 2018, the Occupational Safety and Health Administration (“OSHA”) renewed an alliance with the United States Institute for Theatre Technology (“USITT”) and the International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of the United States, its Territories and Canada, AFL-CIO, CLC (“IATSE”). The five-year alliance seeks to protect the safety and health of workers in the entertainment industry by raising awareness of OSHA’s rulemaking and enforcement initiatives, and by providing trainings, outreach and communications about industry-specific dangers in the workplace.
A copy of the renewed Agreement can be found here.
Important Court Cases
California Supreme Court Sets Formula for Factoring Bonuses into Overtime Pay Rates
On March 5, 2018, the California Supreme Court ruled to change the method of overtime calculation for employers who pay employees a flat-rate bonus and overtime in Alvarado v. Dart Container Corporation of California. The new California calculation differs from the federal FLSA rule, which allows employers to divide total compensation by total hours worked when calculating overtime pay. Under Alvarado, when an employer calculates overtime for pay periods in which an employee earned a flat-rate bonus, employers must divide the total compensation earned in a pay period by only the non-overtime hours worked by an employee. The Court differentiated between “flat-sum bonuses” and other kinds of non-hourly compensation such as production bonuses, piece work and commissions. The Alvaradorule only applies to flat-sum bonuses whereas other types of bonuses may be subject to a different analysis.
A copy of the decision can be read here.
Colorado Supreme Court Clarifies Statute of Limitations Under Colorado Wage Act
On March 5, 2018, the Colorado Supreme Court redefined the applicable statute of limitations for wage claims brought under the Colorado Wage Claim Act (the “Wage Act”) in Hernandez v. Ray Domenico Farms, Inc. Under the new ruling, wage claims under the Wage Act must be brought within two years of when the wages became due and payable, or within three years for willful violations. The ruling departs from prior rulings that set the statute of limitations at two or three years from the date of termination.
A copy of the decision can be read here.
Ninth Circuit Determines that Prior Salary History Cannot Justify Gendered Wage Differences
On April 9, 2018, in Rizo v. Yovino, the Ninth Circuit Court of Appeal issued an opinion holding that using prior salary history to justify a pay differential between men and women violates the Equal Pay Act (the “EPA”). Historically, under the EPA, employers could justify a wage differential so long as it was the legitimate result of “another factor other than sex.” The Ninth Circuit limited the scope of this exception, rationalizing that prior salary is not a legitimate measure of work experience, ability, performance or any other job-related quality. The Court went on to note that relying on past discriminatory practices to justify future discriminatory practices is directly contrary to the purpose of the EPA and thus should not be permitted. The Ninth Circuit covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington.
A copy of the decision can be found here.
Second Circuit Determines that Sexual Orientation Discrimination is Covered by Title VII
On Feb. 26, 2018, the Second Circuit Court of Appeals ruled that Title VII of the 1964 Civil Rights Act protects individuals against discrimination on the basis of sexual orientation in Zarda v. Altitude Express, Inc. The court reasoned that “sexual orientation” is necessarily a “sex-based consideration,” thus pulling it into the protections provided under Title VII. The Second Circuit (whose territories include Connecticut, New York and Vermont) joins the Seventh Circuit (covering Illinois, Indiana and Wisconsin) in its more protective interpretation of Title VII.
A copy of the decision can be read here.
Sixth Circuit Provides Title VII Protected Status for Transgender Employees
On March 7, 2018, the Sixth Circuit Court of Appeals extended Title VII civil rights protections to transgender employees inEEOC v. R.G. & G.R. Harris Funeral Homes, Inc. Though Title VII only expressly prohibits discrimination on the basis of sex, the U.S. Equal Employment Opportunity Commission (“EEOC”) has interpreted Title VII to include prohibitions on discrimination on the basis of sexual orientation and gender identity. Though the Second and Seventh Circuits have recognized sexual orientation as a form of sex discrimination under Title VII, the Sixth Circuit is the first federal court of appeals to apply Title VII protections to transgender employees. The Sixth Circuit governs Kentucky, Michigan, Ohio and Tennessee.
A copy of the decision can be read here.
Feature & Television Collective Bargaining Agreements
SAG-AFTRA National Television Show Sheet
On May 1, 2018, SAG-AFTRA released the latest version of its National Television Show Sheet. This document contains National Television Show Listings which includes the production title, network, shooting location and guild to which contributions should be directed.
This National Television Show Sheet can be found here.
SAG-AFTRA Benefit Rate Updates, Effective July 2018
SAG-AFTRA has made the following changes in its benefit contribution rates, effective July 1, 2018 through June 30, 2019:
- The guilds electedto allocate 0.5 of the negotiated minimum salary rate increases to the AFTRA Retirement Fund and SAG-Producers Pension Plan contribution rates, leaving an increase of 2.5 percent to the minimum salary rates.
- The AFTRA Retirement Fund contribution rate will increase from 9.085 percent to 9.585 percent.
- The SAG Pension Plan will increase from 10.19 percent to 10.69 percent.
- The total aggregate contribution rate of pension and health plans increase from 17.5 percent to 18 percent.
DGA Wage Increases, Effective July 2018
Beginning July 1, 2018, there will be wage increase of three percent, including certain director-category exceptions as well as an outsized wage gain for directors employed on one-hour basic cable programs. The DGA reserves the right to allocate 0.5 percent of the three percent wage increase to employer-pension contributions.
For further information, please contact LaborCompliance@castandcrew.com.
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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.