In response to the ongoing COVID-19 pandemic and its continued impact on daily life, Governor Gavin Newsom issued Executive Order (EO) N-63-20 on May 7, 2020, extending certain statutory and regulatory deadlines for individuals, businesses, and governmental agencies in California. In addition to other temporary changes, EO N-63-20 extends the time for employees to file certain claims for unpaid wages with the state labor commissioner, the time for the state to issue certain workplace safety citations under the California Occupational Safety and Health Act, and the time for employers to appeal such citations.
Oregon employers feeling the financial strain of economic disruptions caused by the COVID-19 pandemic are bracing themselves for another impact. On July 1, 2020, Oregon’s minimum wage increase will take effect.
On April 30, 2020, the Texas Workforce Commission (TWC) issued guidance identifying the circumstances in which an employee may remain eligible for the receipt of unemployment benefits despite the employee’s refusal of an offer to return to work. These circumstances included, for example, an individual being considered high risk due to his or her age (65 or older) or being diagnosed with COVID-19 and not having recovered.
Effective with the May 19, 2020, publication in the Federal Register, the U.S. Department of Labor’s (DOL) Wage and Hour Division revokes the arbitrary lists it created in 1961 identifying industries that may, or would not, qualify as retail or service in nature “for purposes of an exemption from overtime pay applicable to commission-based employees.”
On April 30, 2020, the Supreme Court of California issued its decision in Nationwide Biweekly Administration, Inc. v. Superior Court of Alameda County, a case that received a fair amount of attention in 2019 when it seemed possible the court might allow claims under California Business & Professions Code Sections 17200 et seq. and 17500 et seq. (commonly called the unfair competition law (UCL)) to be tried by jury.
For the last several months, employers have been forced to learn how COVID-19 spreads, how to maintain or resume safe work environments, and how to navigate a complex web of new and existing laws and regulations implicated by the pandemic. Employers have also had to contend with a growing wave of COVID-19–related employment litigation.
The “shelter in place” or “stay-at-home” orders that numerous states have issued in response to the COVID-19 pandemic have prompted some employers to require that their employees work remotely from their homes. As states roll back these orders, some employers will continue to have employees telecommute as they prepare their return-to-work strategies. Working from home or telecommuting may create a business presence in a state that establishes nexus, obligating nonresident employers to withhold state and local payroll taxes.
On May 4, 2020, Minnesota Governor Tim Walz signed Emergency Executive Order (EO) 20-50, which temporarily suspends the service of wage garnishment summonses in Minnesota for consumer debts originating “from the purchase of goods or services purchased primarily for a personal, family, or household purpose, and not for a commercial, agricultural, or business purpose.”
As daily headlines have shown, the economic fallout from the COVID-19 pandemic has led businesses of all types to announce dramatic changes in workforce levels and employee pay. Many of these companies have made the decision to reduce the salaries they pay to their exempt employees.
In the early stages of the COVID-19 pandemic, inconsistent reports claimed everything from children being immune to COVID-19 to children being more vulnerable to the virus to children acting as asymptomatic carriers. More recently, the CDC has reported that “[w]hereas most COVID-19 cases in children are not severe, serious COVID-19 illness resulting in hospitalization still occurs in this age group.” The CDC’s latest guidance states that not only can children contract the virus, but the “prevalence of asymptomatic SARS-CoV-2 infection and duration of pre-symptomatic infection in children are not well understood.” It seems clear that like asymptomatic adults, asymptomatic children have not, at this time, undergone mass testing.
Virginia has long billed itself as a business-friendly state with low taxes and commonsense employment regulations. But recent changes—largely adopted with little fanfare or scrutiny—are poised to revolutionize the labor and employment landscape in Virginia. These changes—compounded by the likely recession resulting from the COVID-19 pandemic—will present tremendous challenges for Virginia employers.
Although the Supreme Court of the United States has not yet taken up the issue, California courts routinely hold an employee cannot be compelled to submit to arbitration an action seeking penalties under the Private Attorneys General Act of 2004 (PAGA), although the employee may be compelled to arbitrate his or her individual wage claims. In determining whether a litigant seeks individual damages and therefore may be compelled to arbitrate wage claims, does the plaintiff’s Labor and Workforce Development Agency (LWDA) notice letter control?
We first wrote about Philadelphia’s Fair Workweek Employment Standards Ordinance shortly after it was signed into law on December 20, 2018. Now, with the Mayor’s Office of Labor having issued final regulations on February 3, 2020, and the ordinance having taken effect on April 1, 2020, we offer a brief overview of the ordinance along with additional information for retailers as they implement procedures to comply with the ordinance’s provisions. Enforcement of some aspects of the ordinance, such as its good-faith estimates requirement, will not go into effect until July 1, 2020.
As COVID-19 continues to remain a critical issue across the country, an increasing number of employers that are allowed to remain open despite shelter-in-place orders may be experiencing staffing shortages. This is because employees may be increasingly absent due to mandatory or voluntary quarantines. To maintain operations, many of these employers are turning to areas of their businesses or enterprises that may have a staffing surplus, and temporarily reassigning those employees to the more essential roles vacated by employees who are absent as a result of the COVID-19 crisis.
In Viet v. Copier Victor, Inc., No. 18-6191 (March 10, 2020), the U.S. Court of Appeals for the Sixth Circuit affirmed summary judgment for Copier Victor and its founder, Victor Le, on an employee’s overtime claims under the Fair Labor Standards Act (FLSA), finding the employee’s testimony regarding the number of hours he worked on a weekly basis too vague and conclusory to withstand summary judgment.
On March 28, 2020, the U.S. Department of Labor’s (DOL) Wage and Hour Division released an updated set of “Questions and Answers” (Q&As) that provide additional guidance concerning the impact of workplace closures and furloughs upon employers’ obligations to provide paid leave under the Emergency Family and Medical Leave Expansion Act (EFMLEA) and the Emergency Paid Sick Leave Act (EPSLA).
On March 28, 2020, the Department of Labor’s (DOL) Wage and Hour Division released an updated set of questions and answers (Q&As) that provide additional guidance concerning teleworking arrangements (Q&As 17–20) and intermittent leave (Q&As 21 and 22) under the Emergency Family and Medical Leave Expansion Act (EFMLEA) and the Emergency Paid Sick Leave Act (EPSLA), both of which are included in the Families First Coronavirus Response Act (FFCRA).
On March 28, 2020, the U.S. Department of Labor’s (DOL) Wage and Hour Division released an updated set of “Questions and Answers” (Q&As) that provide additional guidance concerning health care providers and emergency responders (question numbers 55, 56, and 57). The Emergency Family and Medical Leave Expansion Act (EMFLEA) and the Emergency Paid Sick Leave Act (EPSLA) authorize the DOL to issue regulations to exempt health care providers and emergency responders from eligibility for coverage under the FFCRA.
On March 26, 2020, the U.S. Department of Labor’s (DOL) announced the issuance of additional guidance related to the Families First Coronavirus Response Act (FFCRA). The guidance includes “Field Assistance Bulletin 2020-1: Temporary Non-Enforcement Period Applicable to the Families First Coronavirus Response Act” and model notices “for employers obligated to inform employees about their rights under this new law.”
On March 24, 2020, the U.S. Department of Labor’s (DOL) Wage and Hour Division issued preliminary guidance for employers and employees concerning the Emergency Family and Medical Leave Expansion Act (EFMLEA) and the Emergency Paid Sick Leave Act (EPSLA). Both laws are part of larger Families First Coronavirus Response Act (FFCRA) enacted on March 18, 2020.
California, Connecticut, Illinois, Pennsylvania, and New York have all issued statewide shelter-in-place orders in response to the COVID-19 pandemic, and more states may follow. Employers that do not qualify for an exemption under the applicable state order or that decide to severely curtail or shut down operations may want to consider some of the following issues.
In a 5-page summary order issued on March 5, 2020, the U.S. Court of Appeals for the Second Circuit held in Belizaire v. Ahold U.S.A., Inc., No. 19-457-cv, that the “delivery fee” paid by customers of Peapod LLC, a grocery delivery service, was not a charge purported to be a gratuity for an employee within the meaning of the New York Tip Law, codified as New York Labor Law (NYLL) § 196-d. The court reached its decision by applying the standards enunciated in the seminal Court of Appeals of the State of New York case, Samiento v. World Yacht Inc.
On March 9, 2020, the U.S. Department of Labor’s (DOL) Wage and Hour Division posted a helpful guidance for employers addressing some of the issues they are likely contemplating with respect to employee wages in different COVID-19 scenarios. “COVID-19 or Other Public Health Emergencies and the Fair Labor Standards Act Questions and Answers” offers answers to a number of questions related to emergencies generally under the federal wage and hour laws. Here is what you need to know.
In 2020, as part of its annual wage order rulemaking, the Colorado Department of Labor and Employment’s Division of Labor Standards and Statistics adopted Colorado Overtime and Minimum Pay Standards (COMPS) Order #36, a measure that will bring sweeping change to the state’s rules governing overtime, minimum wage, and working conditions standards.
Misclassifying an employee as an independent contractor can put a business at risk of tax assessments, penalties, and wage and hour claims. Understanding the difference between an employee and independent contractor is vital for any business to flourish in today’s ever-changing economy especially given the growth of the gig economy.
On February 12, 2020, the Massachusetts Supreme Judicial Court (SJC) issued an opinion with significant implications for Massachusetts employers with commissioned employees.
In 2015, the City of St. Petersburg, Florida, approved an ordinance prohibiting wage theft in the city. The Wage Theft Ordinance (WTO) “aims to eliminate the underpayment or nonpayment of wages” by giving private employees within the city’s limits an administrative process for seeking back wages, liquidated damages, and costs and attorney’s fees. Pinellas County maintains a similar, though not identical, wage theft ordinance.
In a 29-page decision, the U.S. Court of Appeals for the Second Circuit held in Fisher v. SD Protection Inc., No. 18-2504, that a district court had abused its discretion by rewriting a Fair Labor Standards Act (FLSA) settlement agreement to modify the allotment of the settlement funds to dramatically reduce the fees and costs provided to plaintiff’s counsel. In its holding, issued on February 4, 2020, the court determined that the district court had committed three errors requiring that its decision be vacated and remanded for further consideration.
It was a busy January 2020 in Trenton, with the state enacting several new employment laws, with more apparently on the way. This is in addition to the slew of new laws adopted in 2019 impacting New Jersey employers. Here’s a summary of recent employment law developments in New Jersey just one month into 2020, a look at what may be on the way, and a recap of 2019’s changes.
The Supreme Court of California recently agreed to review the California Court of Appeal’s decision in Ferra v. Loews Hollywood Hotel, LLC, 40 Cal. App. 5th 1239 (2019), as limited to the following question: Did the Legislature intend the term “regular rate of compensation” in Labor Code section 226.7, which requires employers to pay a wage premium if they fail to provide a legally compliant meal period or rest break, to have the same meaning and require the same calculations as the term “regular rate of pay” under Labor Code section 510(a), which requires employers to pay a wage premium for each overtime hour?