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.
Employers often struggle over compliance with state wage deduction laws, and these potential violations carry with them considerable penalties. In Massachusetts, for example, employers face triple damages for violations of wage and hour laws. This post uses hypothetical examples to demonstrate how narrow the range of permissible activity is under California, Massachusetts, New York, and Washington D.C. laws even when a deduction to an employee’s salary appears as a common sense one or otherwise fair to both parties involved. Employers with employees located in these and other states should consult with legal counsel before making any deductions from employee wages, even if the employee authorizes such a deduction.
So, for example, can employers deduct from employee wages for the cost of uniforms? Personal expenses on corporate credit cards? Broken printers? Let’s explore…
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.
As wise employers focus strategic initiatives to enhance diversity and inclusion in the workplace, we periodically receive questions about limitations for proactive approaches in this area. To be clear, companies that conduct business with the federal government (and the OFCCP knows who you are) likely are subject to regulatory obligation to ensure and, where necessary, take affirmative action regarding the placement of women, minorities, protected veterans and persons with disabilities in relation to their availability for respective positions. Similarly, companies subject to a consent decree, conciliation agreement with the EEOC or some other legal finding or settlement involving a disparity affecting persons in protected classes would be subject to obligation of proactive steps to remedy such disparity.
But what of the company that engages in a “voluntary affirmative action policy” or merely seeks to put additional teeth to its diversity initiatives by attaching a qualitative scorecard to progress? The potential concern is that such efforts lead to vulnerability for a reverse discrimination claim.
On October 6, 2015, the D.C. Council introduced the Universal Paid Leave Act of 2014. If enacted, the proposed law will allow employees in D.C. to take up to 16 weeks of paid family and medical leave in a 12-month period, and as reported in the The Washington Post, D.C. “would become the most generous place in the country for a worker to take time off after giving birth or to care for a dying parent[.]” The law would also set up a system, paid into by employers, under which employees would be able to file a claim for paid family and medical leave benefits, similar to the way individuals file claims for unemployment benefits.
The D.C. Mayor’s office recently issued employee pay notices templates that employers may use to satisfy the pay notice requirements under D.C.’s new Wage Theft Prevention Amendment Act. The Act, which took effect on February 26, 2015, requires employers, among other things, to provide written pay notices to all new employees at the time of hire, and to existing employees by May 27, 2015. The Department of Employment Services’ website has now made available a template for general employers and a template for temporary staffing firms. Employers should now move forward with providing notices to all new and existing employees, but they need only do so in English and not in the employee’s primary language unless and until the Mayor’s office releases a template in that language.
On March 3, 2015, the D.C. Protecting Pregnant Workers Fairness Act of 2014 became effective. The Act provides increased protections for pregnant workers and requires employers to provide reasonable workplace accommodations for workers whose ability to perform job functions are limited by pregnancy, childbirth, a related medical condition, or breastfeeding. The Act, which applies to all D.C. employers, contains several important components, which are briefly described below.
The D.C. Council has passed emergency legislation to address certain ambiguities in and other issues raised by D.C.’s Wage Theft Prevention Amendment Act, which takes effect on February 26, 2015. As we noted last month, the Act’s language as previously written was unclear on whether exempt employees were subject to the Act’s heightened recordkeeping requirements. The emergency legislation directly addresses this ambiguity, and makes clear that employers are not required to record the “precise time worked” for exempt employees. In addition, the emergency resolution clarifies that employers are not required to pay “bona fide administrative, executive, and professional” employees at least twice per month, but rather must pay such employees at least once per month.
Last October, we reported on DC’s soon-to-be-enacted DC Wage Theft Prevention Amendment Act. This Act, which amends several existing DC wage and hour laws, includes new notice requirements and retaliation protections, increases employer liability for wage and hour violations and introduces a new administrative hearing process — all changes that employers with DC-based employees need to be aware of.