This past year, a growing number of states and municipalities banished the Ghost of Christmas Past from haunting job applicants. As a result, employers in those jurisdictions must resolve now to bid auld lang syne to asking applicants about their salary and criminal histories. Employers should take a fresh look at their job applications, and hiring practices, policies and procedures and update them now to remain in compliance in the New Year.
As we enter the holiday season, we gather around the bubbler to sing about a few of our favorite (and not so favorite) things in the world of employment and labor law. Unfortunately, they’re not as sanguine as raindrops on roses or whiskers on kittens…
Some retail employers will be on Santa’s naughty list after the Sixth Circuit found that sales employees paid on a 100% commission or draw basis cannot be required to repay outstanding draws after termination of employment. The Senate decked the halls of the NLRB by confirming a new General Counsel, who will serve a critical policy role and is expected to move away from enforcement of the NLRB’s broadened joint-employer standard. This could be the last Christmas employees have to visit EEOC offices in person to file discrimination charges after the EEOC launched a new online portal, putting employers on alert of the possibility of increased charge filings in 2018. It’s a wonderful Christmas time for minimum wage workers in Montgomery County, Maryland, in DC’s metro area, who joined the small but growing ranks of jurisdictions increasing its minimum wage to $15.00 per hour beginning in 2021. Retail employees in New York might get a silent night away from work thanks to new employee scheduling regulations proposed by the New York State Labor Department that will limit “just in time” or “on call” scheduling and require additional pay for employees scheduled on short notice. While California employers may have longer than 8 nights, they don’t have quite a month to prepare for new regulations that will take effect January 1, 2018, which expressly prohibit employers from inquiring about an applicant’s criminal history prior to a conditional offer of employment.
Today we offer our last installment in our 2016 Year in Review segment, which will cover the key labor & employment law developments from 2016 in California. Prior installments for the DC Metro Area, New York and Massachusetts are available here. In addition, please join us in NYC on April 6, 2017 for Mintz Levin’s Third Annual Employment Law Summit as we address some of the key labor & employment issues impacting employers in 2017. Register here.
In 2016 employers in California had to adjust to compensation and benefits related changes such as a new state minimum wage, a new method of calculating compensation for “piece-rate employees,” and expanded “kin care” benefits. The California Fair Pay Act, aimed at addressing gender wage discrimination also went into effect, modifying existing laws in a few key ways. The legislature also amended California’s Private Attorneys General Act to grant employers a few new ways to “cure” violations.
In 2017 employers should ensure they are complying with “all gender” bathroom requirements and that when making hiring decisions they do not rely on “juvenile offense history.” Employers should also be aware that there is a trend for cities and/or counties to further limit the kinds of information employers may consider in making hiring decisions. Also on the horizon is the probability that the legislature will revisit a new unpaid parental leave law that would impact smaller businesses.
Today we continue with our Year in Review segment, which looks at the key labor & employment law developments from 2016 in New York, the DC Metro Area, Massachusetts, and California, while offering our thoughts about 2017. Today we turn to the DC Metro Area. In addition, please join us in NYC on April 6, 2017 for Mintz Levin’s Third Annual Employment Law Summit as we address some of the key labor & employment issues impacting employers in 2017. Register here.
The District of Columbia, Maryland (including Montgomery County) witnessed an active 2016 with respect to new and amended workplace laws that impose additional responsibilities on employers, and expand employee rights and avenues of enforcement. Employers should be aware of these new requirements and take immediate action to comply with them. We highlight below the most significant updates in both D.C. and Maryland; there were no changes or additions of significance in Virginia.
We have co-authored an alert with our affiliate government relations consulting group, ML Strategies entitled, “Massachusetts State Legislature Takes Action on Major Employment Reform as Legislative Session Ends”, which addresses key legislation concerning pay equity, transgender anti-discrimination, non-compete agreement reform, credit checks reform and wage theft. The alert provides a review of the new laws and their implications for employers.
In an important victory for employers, the Supreme Court in Spokeo, Inc. v. Robins held that a plaintiff does not have Article III standing to sue in federal court under the Fair Credit Reporting Act (FCRA) and other federal statutes absent a sufficient allegation of the existence of a concrete injury. The Supreme Court was clear that alleging a bare procedural violation absent any concrete injury to the plaintiff was insufficient to move a case forward. While it remanded the case to determine whether the plaintiff sufficiently alleged a concrete injury, employers should welcome this decision as a potential end to costly FCRA (and other statutory) class actions based on trivial violations of procedural requirements that don’t harm anyone.
If you follow my corporate divorce series, you are familiar with my affinity for the employment-as-marriage metaphor. I’ve already examined how employment relationships end or should end. But I have yet to address an employment metaphor relevant to annulments.
Unlike divorce, which is the judicial dissolution of a legal marriage, an annulment is actually a judicial (and sometimes also religious) decree that the marriage was never valid in the first place. Typically an annulment is based on a fundamental legal flaw, such as fraud or marrying close kin or some other core defect that goes to the heart of the marriage contract. An annulment declares that the “marriage” is treated as if it never existed, provided a core reason exists to nullify it.
So what, if anything, annuls an employment contract?
Last week, the Stop Credit Discrimination in Employment Act became effective. It amended the New York City Human Rights Law to prohibit most employers from making employment decisions based on an employee or applicant’s consumer credit history. You can read the specifics here. The NYC Commission on Human Rights has now released enforcement guidance detailing its interpretation of this new law. Our immediate takeaway: employers should attempt to utilize the law’s exemptions sparingly, and when they do, they should document it sufficiently. We breakdown the guidance below.
Written by David Cohen with Michael Arnold
Since 2012, many states have enacted laws that restrict an employer’s capacity to access employees’ personal email and social media accounts. Last month, Connecticut joined the party and became the 21st state to enact an employer-employee social media privacy law.
Have you ever been convicted of a misdemeanor or felony that was not dismissed, expunged, or sealed? New York City employers, if you ask that question on your employment application or some version of that question, then remove it. If you search the internet or other databases to learn about your applicants’ criminal history, then stop it. Or at least do so by the fall when the Fair Chance Act, New York City’s “ban the box” law, which Mayor de Blasio is expected to sign, goes into effect. New York City now joins a growing list of jurisdictions to ban criminal conviction inquiries during the screening process. The key difference here is that unlike most jurisdictions, New York City extends its prohibitions to private employers. We briefly summarize the law below.