On May 20, 2021, the Wisconsin Supreme Court limited the tort claims an employee may bring based on alleged conduct that occurred between injuries covered under the state’s workers’ compensation law. The opinion in Graef v. Continental Indemnity Company may support employer arguments to limit employment-related litigation claims brought by employees because worker’s compensation provides an exclusive remedy to employees injured in the course of employment.
The Virginia Overtime Wage Act (VOWA), Va. Code § 40.1-29.2, becomes effective July 1, 2021, and will significantly alter employers’ wage and hour obligations in Virginia. At first glance, the VOWA appears to track federal law under the Fair Labor Standards Act (FLSA). Upon closer examination, however, this new law contains important nuances that deviate from the FLSA, such as a new method for calculating the regular rate of pay, an extended statute of limitations, automatic liquidated damages, possible treble damages, and the effective elimination of popular pay schemes.
The first part of this two-part blog series focused on the Biden administration’s first 100 days and reviewed the administration’s legislative plans. The second part of the series addresses policy developments occurring at the executive branch agencies and independent agencies.
April 30, 2021, marked President Joe Biden’s 100th day in office, and his administration has wasted little time advancing its policy priorities. At this moment, the administration is focusing most of its attention on repealing much of the policy accomplishments of the previous administration but can be expected to advance its own proposals in short time. Additionally, Democrats in the U.S. House of Representatives are looking for ways around the U.S. Senate’s legislative filibuster in order to advance their ambitious legislative agenda. Below is a very brief outline of the major labor and employment legislative actions of President Biden’s first 100 days.
Like the federal Fair Labor Standards Act, Wisconsin law allows hospitality employers to pay certain tipped employees less than the minimum wage with the understanding that the tips they receive will cover the difference. More specifically, Wisconsin law allows employers to claim a tip credit of up to $4.92 per hour for employees who “customarily and regularly receive tips.” Among other things, Wisconsin law requires employers to have a “signed tip declaration” in order to claim the credit.
On April 26, 2021, the U.S. Department of Labor (DOL) posted an update on its blog regarding its new Essential Workers, Essential Protections initiative, which is designed to “ensure that workers know about the wage and hour laws that protect them – and how to contact [the DOL] to get help if they need it.”
The COVID-19 pandemic has shifted a number of previously in-person positions to remote work and telecommuting. In the meantime, many employees have moved out of state from their usual office locations for personal or financial reasons. As a result, many employers are left wondering what their legal obligations are for remote employees working out of state. The biggest concerns are local employment laws, workers’ compensation insurance, and unemployment insurance obligations. Employers may also be subject to out-of-state payroll tax obligations.
Mandatory arbitration clauses for employment disputes have received a great deal of attention in recent years. In the First Circuit, there is now more clarity regarding the factors used to determine the enforceability of online arbitration agreements.
On March 16, 2021, the City Council of Costa Mesa, California, passed an urgency ordinance establishing premium pay for retail grocery and pharmacy workers during the COVID-19 pandemic. Costa Mesa is a large city in Orange County located southeast of Los Angeles. The ordinance requires that large retail establishments that sell groceries or prescription and nonprescription drugs in Costa Mesa provide their workers with premium pay of $4.00 for each hour worked. The ordinance took effect immediately and will expire 120 days from its effective date.
Within days, California employers may have to provide employees with even more COVID-19–related paid leave. On March 18, 2021, the California Legislature passed Senate Bill 95, which creates new Labor Code Section 248.2 and Labor Code Section 248.3. These new Labor Code sections provide covered employees and in-home supportive service providers with up to 80 new hours of COVID-19 supplemental paid sick leave. As explained below, the bill is far more expansive than the California COVID-19 supplemental paid sick leave statute that expired on December 31, 2020. The new legislation covers more employers and requires paid sick leave for many more reasons. If Governor Newsom signs SB 95, the law will take effect 10 days later and expire on September 30, 2021, unless extended.
On March 15, 2021, the City Council of West Hollywood added new categories of workers to its existing hero pay mandate of $5.00 per hour worked for large-chain grocery store employees. The new ordinance goes into effect on April 16, 2021, and expires on August 16, 2021.
The California Department of Industrial Relations (DIR) recently updated its “Guide to COVID-19 Related Frequently Asked Questions [FAQs]” to include wage and hour issues and vaccinations.
On March 1, 2021, the City Council of San Mateo, California, adopted “An Emergency Ordinance Requiring Large Grocery Stores and Large Drugstores to Provide Hazard Pay to their Employees” to ease the burdens caused by the COVID-19 pandemic. San Mateo is an incorporated city located in the San Francisco Bay Area.
Employers recognize that the Fair Labor Standards Act (FLSA) requires that they pay nonexempt employees overtime wages for all hours worked in excess of 40 hours in a workweek. Additionally, the FLSA imposes recordkeeping requirements on employers regarding the hours worked by their nonexempt employees. A recent Fifth Circuit Court of Appeals decision, U.S. Department of Labor v. Five Star Automatic Fire Protection, LLC, illustrates the danger to employers when they fail to keep complete timekeeping records of their nonexempt employees’ work.
On March 11, 2021, President Joe Biden signed into law the American Rescue Plan Act of 2021—a $1.9 trillion economic relief package. While the legislation marks the first major legislative victory for President Biden and the administration, it is the sixth federal legislative relief package aimed at addressing the COVID-19 pandemic and its economic fallout. The legislation continues some programs established in these previous efforts, but it also adds some important components. Set forth below are some of the major provisions of the American Rescue Plan Act.
On March 1, 2021, the City Council of Pomona, California, passed an ordinance that establishes premium pay for retail food workers during the COVID-19 pandemic. Pomona is an incorporated city located in Los Angeles County and is not subject to the county’s hero pay ordinance.
On March 2, 2021, the City Council of Santa Ana, California, passed an urgency ordinance establishing premium pay for grocery and retail pharmacy workers during the COVID-19 pandemic. Santa Ana is the county seat of Orange County, located southeast of Los Angeles.
On February 25, 2021, the U.S. District Court for the Central District of California denied a motion for preliminary injunction brought by the California Grocers Association (CGA) against the City of Long Beach. In California Grocers Association v. City of Long Beach, CGA asked the court to stop the city from enforcing its Premium Pay for Grocery Workers Ordinance, one of the many “hero pay” or “hazard pay” ordinances enacted by California localities in the past several weeks.
Taking a meal break in California is no simple affair. Culminating seven years of litigation involving one California employer, on February 25, 2021, the Supreme Court of California issued its unanimous opinion in Donohue v. AMN Services, LLC, resolving two questions regarding California meal periods. The court’s opinion also raised, but did not resolve, questions regarding meal period compliance that will likely challenge employers and litigants for years.
On February 1, 2021, in an unpublished opinion resolving a Fair Labor Standards Act (FLSA) attorney’s fees dispute, the Eleventh Circuit Court of Appeals, in Batista v. South Florida Womans Health Associates, Inc., struck another blow against unreasonable plaintiffs’ counsel seeking “reasonable” fees.
On February 3, 2021, the California Department of Fair Employment and Housing (DFEH) updated its frequently asked questions (FAQs) to make clear that employers can seek an extension for reporting year 2020—known as a request for an “enforcement deferral period”—as to its newly enacted pay data reporting requirement that reports are otherwise due on March 31, 2021.
On February 16, 2021, the City Council of San Leandro, California, passed an ordinance titled “Retail Food Worker Hazard Pay Ordinance,” which establishes premium pay for retail food workers during the COVID-19 pandemic. San Leandro is an incorporated city located in Alameda County in the San Francisco Bay Area.
On February 23, 2021, the City Council of Irvine, California, passed a hero pay ordinance entitling retail grocery store and drug store workers premium pay for hours worked during the COVID-19 pandemic.
The Fair Labor Standards Act (FLSA) requires employers to pay nonexempt employees at least minimum wage for all hours worked up to 40 hours in a workweek and time and one-half for all hours worked over 40 hours in the same workweek. An exception to this rule exists for volunteers, who are not categorized as “employees” under the statute. Typically, volunteers are individuals who donate their time to non-profit, civic, religious, and other charitable organizations.
On February 16, 2021, the City Council of West Hollywood, California, passed an urgency ordinance establishing premium pay for grocery workers during the COVID-19 pandemic.
On January 27, 2021, the City Council of Montebello, California, passed an ordinance titled “Premium Pay for Grocery and Drug Store Workers Ordinance.” Montebello is an incorporated city located in Los Angeles County, California. The ordinance requires employers to provide grocery and drug store workers with premium pay of $4.00 for each hour worked. The ordinance took effect immediately and expires in 180 days, unless otherwise extended.
On February 10, 2021, the City Council of Coachella, California, passed the “Premium Pay for Agricultural, Grocery, Restaurant, and Retail Pharmacy Workers Ordinance.” Coachella is located in Riverside County, California. Other cities in the state that have enacted similar measures in 2021 include Montebello, in Los Angeles County, and Oakland, in Alameda County.
The COVID-19 pandemic continues to affect the global economy, and employers are increasingly considering which are the most and least employer-friendly places new offices, distribution centers, and operational locations, both during the pandemic and after emerging from it. The Arizona State University Center for the Study of Economic Liberty recently released Doing Business North America 2020 (DBNA), a report analyzing and comparing data indicative of the regulatory context for business activity in a number of metropolitan areas. The report ranked 130 cities across Canada, Mexico, and the United States, based on 111 variables for determining where the best places to do business are currently (although given the ever-changing local, state, and federal landscapes, the assessment may change frequently). The variables underlying the rankings fall into six broad categories: starting a business; employing workers; obtaining electricity, land and space use; and paying taxes and resolving insolvency.
On February 2, 2021, the City Council of Oakland, California, passed the “Grocery Worker Hazard Pay Emergency Ordinance” to provide a boost in pay for frontline workers during the COVID-19 pandemic.
Minnesota employers will be heading back to the drawing board to revise their handbook disclaimers. The Minnesota Supreme Court now requires specific language in policies that set out the terms and conditions for payment of certain employee benefits such as payouts of vacation and paid time off (PTO).