Rhode Island Governor Daniel McKee signed pay equity legislation (H 5261A, S 0270A) that will go into effect on January 1, 2023. The new legislation amends Rhode Island’s existing pay equity law and contains the following key provisions.
On June 30, 2021, Pennsylvania Governor Tom Wolf signed an approximately $40 billion state budget package. In exchange for increased funding for public schools in the state budget, Governor Wolf agreed to repeal Pennsylvania’s new overtime regulations, which were set to increase the minimum salary that employers must pay to certain salaried employees to classify them as exempt from overtime requirements under the Pennsylvania Minimum Wage Act of 1968.
It has been more than five months since President Biden took office, and while there is still a lot to learn about the prospective enforcement focus of the Mine Safety and Health Administration (MSHA), some priorities have become clearer.
On May 25, 2021, Nevada Governor Steve Sisolak signed into law Assembly Bill (AB) 47, which amends Nevada’s noncompetition statute, NRS 613.195 and the Nevada Unfair Trade Practices Act. The changes will go into effect on October 1, 2021.
As the delta variant (B.1.617.2, which is one of the genetic variants of SARS-CoV-2) fuels a substantial rise in COVID-19 cases in unvaccinated individuals, the U.S. Centers for Disease Control and Prevention (CDC) updated its guidance on masking and a number of other issues on July 27, 2021.
On July 22, 2021, the U.S. Department of Labor (DOL) published a notice of proposed rulemaking to outline the standards and procedures that it will use to administer President Joe Biden’s Executive Order 14026, which he signed on April 27, 2021. Executive Order 14026 proposed an increase to the minimum wage for workers performing work on federal contracts to $15 per hour beginning January 30, 2022. The proposed rule applies only to federal contractors. It builds upon Executive Order 13658 signed by then-president Barack Obama that established a minimum wage of $10.10 for federal contractors with annual increases for inflation. The current rate is $10.95 per hour; the minimum wage for tipped federal contract workers is $7.65 per hour. Below is a brief summary of the scope of the DOL’s proposed rule and changes, if finalized.
The U.S. Equal Employment Opportunity Commission (EEOC) recently announced that it is loosening the requirement on companies to provide notice to the federal agency of acquisitions, mergers, and spinoffs. By way of background, in addition to requiring the submission and certification of two years of EEO-1 reports, the EEOC had created a new filing platform for the 2019 and 2020 EEO-1 filings, which are due by August 23, 2021. The transition to the new platform and the requirement to file two years of EEO-1 reports has resulted in a rocky EEO-1 filing cycle. As a continued sign of these difficulties, the EEOC implemented a major change to the procedure for handling mergers, acquisitions, and spinoffs for EEO-1 reporting.
Louisiana’s nondiscrimination law protecting “pregnancy, childbirth and related medical conditions” in employment (La. R.S. 23:341–42) was recently amended primarily by including an express reasonable accommodation requirement and adding a definition section providing reasonable accommodation examples, La. R.S. 23:341.1. The pregnancy nondiscrimination statutes are part of the larger body of laws making up the Louisiana Employment Discrimination Law at La. R.S. 23:301, et seq.
In November 2020, the Colorado Department of Labor and Employment (CDLE) adopted Colorado Overtime and Minimum Pay Standards Order (COMPS) #37, which went into effect on January 1, 2021. COMPS #37, like its predecessor orders, outlined the requirements for employees to qualify for exemption from Colorado’s overtime and minimum wage requirements. Among other things, COMPS #37 clarified a point that employers had long struggled with: Colorado’s requirement that an employee “directly serve” an “executive” to qualify for the administrative exemption.
Germany’s nationwide “emergency brake” system—the public health framework of rules and restrictions first implemented by the German government in April 2021 to help contain the spread of COVID-19—expired on June 30, 2021, and, slowly but surely, some semblance of normality has begun returning to German citizens’ private and working lives. Due to a sharp drop in COVID-19 infection rates in Germany and because of the progress of Germany’s vaccination campaign, the federal government recently determined that the time was right to relax restrictive measures.
On July 21, 2021, the City of Pasadena health officer issued an order titled, “Order for Wearing of Face Masks in Public Settings.” As did the Los Angeles County Department of Public Health’s (LACDPH) health order of the previous week, the City of Pasadena’s health order requires all individuals “regardless of vaccination status” to wear face coverings in “all indoor public settings, venues, gatherings, and businesses.”
Employers covered by the Colorado Equal Pay for Equal Work Act, Part 2 (EPEWA) will now have to post wage and benefit information for all covered promotional opportunities and job openings (including remote jobs that can be performed anywhere), unless that work is specifically tied to a non-Colorado worksite. In a reversal of its prior interpretation, the Colorado Department of Labor and Employment (CDLE) issued a revised Interpretative Notice & Formal Opinion (INFO) #9 on July 21, 2021—six months after the law went into effect on January 1, 2021. The revised INFO #9 contains several critical changes with regard to the CDLE’s interpretation of the EPEWA that will affect virtually all employers with at least one employee in Colorado.
During the pandemic, Mexico’s federal government has used a four-tiered biweekly traffic light monitoring system to alert residents to the epidemiological risks of COVID-19 and provide guidance on restrictions on certain activities in each of the country’s states. The federal government is currently evaluating the factors for measuring the epidemiological traffic light system, first implemented in June 2020, and, accordingly, the government has not issued the federal-level report for the period of July 19, 2021, through August 1, 2021.
As the COVID-19 pandemic enters a new phase in the United States and employees return to the workplace, some employers may need to face controversial issues regarding vaccinated and unvaccinated employees. Below are some considerations for employers as they take steps to prevent or resolve workplace disagreements regarding vaccines and other workplace safety measures to help employees focus on work.
As the United States gradually emerges from the pandemic, employers (and especially those in the tech sector whose workforces can easily work remotely) are looking for ways to help frazzled and burned-out employees. In addition, many employees are seeking opportunities to preserve the flexibility they gained during pandemic remote-work arrangements. Time off, company holidays, and workday flexibility are among the top remedies for these concerns. But outmoded state and federal labor laws may impede a new era of worker freedom.
On June 25, 2021, the Supreme Court of the United States issued a ruling that provides additional guidance related to the Fair Credit Reporting Act (FCRA), a federal law that regulates the collection of consumers’ credit information and access to their credit reports. In the employment context, the FCRA most frequently applies to background checks, including class actions alleging the most common background check claim—unlawful disclosure and authorization screens/forms (usually because of too much or too little information)—resulting in an informational injury.
Plan participants can be hit with surprise medical bills when they receive care from out-of-network providers. Sometimes, this happens when participants do not know that the care they are receiving is from an out-of-network provider, like when they have surgery at an in-network facility only to find that the facility-appointed anesthesiologist, for example, is out-of-network. Now, employers have a bit more clarity about how those surprise medical bills are supposed to be paid, beginning January 1, 2022, under new “No Surprises Act” regulations.
Texas courts generally look to federal courts’ interpretation of federal anti-discrimination laws to assist in interpreting the anti-discrimination provisions of the Texas Commission on Human Rights Act (TCHRA). However, the provisions of the TCHRA do not always exactly mirror the language of parallel federal anti-discrimination laws. The Texas Supreme Court recently examined such differences in interpreting the scope of the anti-retaliation provisions of the TCHRA.
The government of Canada announced, on July 19, 2021, that the Canada-U.S. border, which has been closed to non-discretionary travel since March 21, 2020, will be reopened for eligible Americans on August 9, 2021, at 12:01 AM EST, and September 7, 2021, for those elsewhere in the world.
On Friday, July 16, 2021, the Los Angeles County Department of Public Health (LACDPH) issued a health order requiring all individuals regardless of vaccination status to wear face coverings in “[a]ll indoor public settings, venues, gatherings, and businesses.” The order’s list of locations in which all individuals must wear face coverings includes “offices, retail, restaurants, theaters, family entertainment centers, meetings, and state and local government offices serving the public.”
The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) is a federal law that protects the civilian employment of active and reserve component military personnel and veterans. USERRA is a straightforward law with a central objective: to not penalize service members for their service. While most employers have probably handled numerous leave requests related to pregnancy, disability, or illness, employers are perhaps less likely to encounter requests for USERRA leave. Less than one percent of the population serves in the United States military, with approximately 1.3 million active duty personnel and 802,248 active reserve component members from all branches combined. Still, the number of military personnel in the civilian workforce is substantial enough that employers are likely at some point to receive a military leave request or USERRA-related question.
On July 8, 2021, the Oregon Occupational Safety and Health Division (Oregon OSHA) adopted temporary rules to bolster worker protections from the hazards of high and extreme heat, including requirements to provide shade, drinking water, cool-down breaks, an effective emergency medical plan, and training to all employees. Oregon OSHA adopted the Temporary Rules to Address Employee Exposure to High Ambient Temperatures on an emergency basis in response to direction from Oregon Governor Kate Brown, following a record-breaking heat wave that hit the Pacific Northwest in late June.
On July 15, 2021, the California Supreme Court issued a decision that will increase dramatically California employers’ potential liability for missed meal, rest, and recovery breaks. In Ferra v. Loews Hollywood Hotel, LLC, the court unanimously held that employers must pay premium payments to employees for missed meal, rest, and recovery breaks at the employee’s “regular rate of pay” instead of their base hourly rate, as many employers were doing.
The Pay Equity Act, which Canada’s federal government passed in 2018, is going into effect on August 31, 2021. The act aims to address the systemic gender-based discrimination faced by women in federally regulated sectors by achieving pay equity through proactive measures. The act will require all federally regulated employers to analyze their compensation practices, even if they have not received a complaint and even if they believe there is no wage gap in their organization.
On July 9, 2021, a federal district court in Nashville, Tennessee, granted a preliminary injunction, halting enforcement of a new Tennessee law on bathroom signage. That law mandates that businesses post specific signs next to their public bathrooms, if they allow people to use the bathroom that conforms with their gender identity.
On June 17, 2021, the U.S. District Court for the District of Oregon issued an opinion and order in Munger v. Cascade Steel Rolling Mills, Inc., addressing an employee’s claims under the Family and Medical Leave Act (FMLA) and an analogous state law after the employee’s separation from employment due to excessive unexcused absences. The principal issue before the court was whether the employee was entitled to FMLA leave when the employee had failed to follow his employer’s usual and customary notice requirements for requesting FMLA leave.
Ogletree Deakins’ Traditional Labor Relations Practice Group is pleased to announce the publication of the Summer 2021 issue of the Practical NLRB Advisor. This issue offers insight into the significant and accelerated changes in labor relations policy we have seen since President Joe Biden took office.