This Alert highlights certain federal law developments as well as those occurring in Illinois, California, New York and Georgia that will affect employers in 2014. No significant employment-related statutory developments are to take effect in 2014 in Michigan or Washington, DC.
- New OFCCP Rules: Effective March 24, 2014, government contractors will be required to comply with revised regulations under the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA) and Section 503 of the Rehabilitation Act of 1973 that were issued by the Office of Federal Contract Compliance Programs (OFCCP) last year. (Compliance with certain obligations with respect to affirmative action programs can be delayed until the employer’s first affirmative action program following the effective date, however.) Among the new obligations, government contractors will be required to invite applicants to self-identify as a protected veteran and as an individual with a disability at both the pre-offer and post-offer stage of the hiring process, utilizing specific OFCCP language with respect to status as an individual with a disability. Contractors also will be required to invite their existing workforce to self-identify disability status, utilizing specific language, and to establish a utilization goal for individuals with disabilities and a hiring benchmark for veterans. There are also new obligations with respect to documenting and updating comparisons with respect to the number of veterans and individuals with disabilities who apply for and fill jobs, notifications to subcontractors and the inclusion of specific language in covered subcontracts, assessment of outreach efforts, making postings accessible to individuals with disabilities, and new data and record retention requirements, among others. The OFCCP has provided and is updating compliance and technical assistance materials for these requirements on its website.
- Workplace Violence Prevention: Effective January 1, 2014, employers with five or more employees will be permitted to take proactive steps to protect employees from workplace violence, harassment, and stalking. Employers will be able to apply for an order of protection against disgruntled workers who have made a documented threat against the business or another employee. Employers are required to provide an affidavit that there is a credible threat of violence against the workplace or an employee to apply for an order of protection.
- Protection of Social Media Accounts: Effective January 1, 2014, an amendment to the Illinois’ Right to Privacy Act in the Workplace Act will go into effect. Since January 1, 2013, the Act has prohibited employers from requesting or requiring that employees or applicants provide passwords or related social media account information, or provide access to their profile on a social networking website. The amendment limits the scope of the Act’s prohibition on requesting or requiring access to social media accounts. Following the amendment, employers will be permitted to access professional accounts where the employer has a “duty to screen employees or applicants prior to hiring or retain employee communications as required under Illinois insurance laws or federal law or by a self-regulatory organization” as defined by the Securities Exchange Act. A “professional account” is defined by the Act as an account, service, or profile used or accessed by a current or prospective employee for business purposes of the employer. Employers will still be prohibited from requesting or requiring access to personal accounts unrelated to any business purpose of the employer.
- Legalization of Medical Marijuana: Effective January 1, 2014, registered users suffering from a “debilitating medical condition” will be allowed to purchase medical marijuana from state-licensed dispensaries. Employers may not penalize employees for their status as patients who are qualified and registered to purchase medical marijuana, unless failing to do so would cause the employer to lose monetary funding under federal law. However, employers retain the right to restrict or prohibit the use of marijuana in the workplace and may implement and enforce a drug-free workplace policy, provided the policy is enforced in a non-discriminatory manner. Employers also may adopt reasonable policies regarding the consumption, storage, or timekeeping requirements regarding the use of medical marijuana.
- Prevailing Wage Records Requirements: Effective January 1, 2014, contractors and subcontractors performing work on public works projects are required to keep payroll records, either electronically or on paper, of all workers employed on the project for at least five years (increased from three years) after the last payment on the contract.
- Concealed Weapons Law Developments Following last summer’s adoption of the Illinois Fire Concealed Carry Act, employers seeking to prohibit individuals from bringing concealed weapons onto their private property are required to post a sign to that effect at building entrances. The Illinois State Police recently released proposed rules regarding the sign, which consists of a white background and a depiction of a handgun in black ink with a circle (of four inches in diameter) around the handgun depiction with a diagonal slash across the firearm in red ink. No text or other marking is contained in the sign, except the reference to the Illinois code section 430 ILCS 66/1. The sign must be posted clearly and conspicuously at the entrance to the property. A template of the approved sign is available here: https://ccl4illinois.com/ccw/Public/Signage.aspx
- Same-Sex Marriage Recognized: Effective June 1, 2014, same-sex marriage will be recognized in Illinois. Same-sex and different-sex couples will be entitled to the same benefits, protections and responsibilities of civil marriage.
- California Minimum Wage Increase: Effective July 1, 2014, AB 10 will increase California’s minimum wage from $8 to $9 per hour. After July 1, 2014, the minimum monthly salary to preserve exempt status under California Labor Code § 515 will rise to $3,120 per month (currently $2773.33).
- Domestic Worker Compensation: Effective January 1, 2014, AB 241, known as the Domestic Worker Bill of Rights, establishes overtime compensation at a rate of one and one-half times the regular rate of pay for domestic workers who work more than nine hours in any workday or more than forty-five hours in any workweek. The bill does not apply to individuals who care for persons in facilities providing board or lodging in addition to medical, nursing, convalescent, aged or child care, including residential care facilities for the elderly.
- Protected Military or Veteran Status Under the FEHA: Effective January 1, 2014, AB 556 adds “military and veteran status” to the categories of persons protected from employment discrimination under the FEHA. ABA 556 also adds language providing “nothing in this section shall be interpreted as preventing the ability of employers to identify members of the military or veterans for purposes of awarding a veteran’s preference as permitted by law.”
- Temporary Leave of Absence to Voluntary Firefighters: AB 11 requires employers with 50 or more employees to allow an employee who performs emergency duty as a volunteer firefighter, reserve peace officer, or as emergency rescue personnel to take a temporary leave of absence for the purpose of engaging in fire, law enforcement, or emergency rescue training.
- Liquidated Damages Awards for Minimum Wage Violations: Effective January 1, 2014, AB 442 amends Labor Code sections 1194.2 and 1197 to make an employer who is liable for minimum wage violations subject to liquidated damages equal to the amount of wages that should have been paid, in addition to civil penalties.
- Expanded Anti-Retaliation Protections: Effective January 1, 2014, AB 263: (1) makes it illegal under Labor Code § 98.6 for employers to retaliate against employees who make oral or written complaints regarding unpaid wages, and makes the employer liable for a penalty of up to $10,000 per violation regardless of the employee’s immigration status; (2) amends Labor Code Section 98.7 to provide that an employee need not exhaust administrative remedies or procedures to enforce the Labor Code unless the provision in question requires exhaustion; and (3) prohibits an employer from retaliating against an employee who provides information to, or testifies before, any public body conducting an investigation, hearing, or inquiry. AB 263 also makes it unlawful for an employer or any other person to engage in, or direct another person to engage in, an unfair immigration-related practice against a worker in retaliation for exercising a legal right. An “unfair immigration-related practice” is defined as: (1) requesting more or different documents than required under federal immigration law and/or refusing to honor documents that reasonably appear to be genuine; (2) using the federal E-Verify system when not required to do so by federal law; (3) threatening to file or filing a false police report regarding the worker; or (4) threatening to contact or contacting immigration authorities. An “unfair immigration-related practice” does not include conduct undertaken at the express and specific direction or request of the federal government. AB 263 creates a rebuttable presumption that engaging in an unfair immigration-related practice within 90 days of a person’s exercise of rights protected under the Labor Code or local ordinance constitutes unlawful retaliation.
- Changes to Exhaustion of Administrative Remedies Requirements. Also effective January 1, 2014, SB 666 creates Labor Code Section 244. Section 244 provides that it is not necessary for an employee to exhaust administrative remedies in order to bring a civil action for violation of any provision of the Labor Code unless the provision specifically requires exhaustion. The bill further subjects an employer’s business license to revocation or suspension if the licensee has been determined by the Labor Commissioner to have violated Section 244. Further, SB 666 makes it a cause for suspension, disbarment, or other discipline for any California licensed attorney to report or threaten to report the suspected immigration status of a witness or party to a civil or administrative action, or the person’s family member, because the person exercises a right related to employment.
- Time Off for Victims to Testify: SB 288 creates Labor Code § 230.5. This section prohibits employers from discriminating or retaliating against employees who are victims from taking time off from work to appear in court to be heard at any proceeding in which the victim’s right is at issue in connection with the following offenses: vehicular manslaughter while intoxicated; felony child abuse; assault resulting in the death of a child under eight years of age; felony domestic violence; felony physical abuse of an elder or dependent adult; felony stalking; solicitation for murder; a serious felony, as defined in the Penal Code; hit-and-run causing death or injury; felony driving under the influence causing injury; and sexual assault, as defined in the Penal Code. A “victim” means any person who suffers direct or threatened physical, psychological, or financial harm as a result of a crime or delinquent act, and also includes the person’s spouse, parent, child, sibling or guardian. SB 288 also revises Labor Code Sections 230 and 230.1 to extend protections to stalking victims. Employers must engage in an interactive process and provide reasonable accommodations, absent undue hardship, for a victim of domestic violence, sexual assault or stalking who requests an accommodation for his or her safety while at work, who has disclosed his or her status as a victim. The employer may request certification from the employee requesting an accommodation demonstrating his or her status as a victim.
- Premium Payments For Denial Of Heat Recovery Periods: Labor Code Section 226.7 requires employers to make a premium payment consisting of one hour’s pay to employees who are required to work during legally mandated meal or rest periods. Effective January 1, 2014, Section 226.7 is expanded to include “recovery periods,” as well as meal and rest periods. Section 226.7 defines “recovery periods” as a “cool down periods afforded to an employee to prevent heat illness.” Where such recovery periods are required by law (for example, under Cal OSHA) and the employer fails to comply, SB 435 now requires the employer to pay one hour’s pay to each affected employee.
- Recovery of Defense Costs in Wage Disputes: SB 462 amends Labor Code section 218.5 to provide that an employer who prevails in defending against an employee’s unpaid wages claim cannot recover its defense costs unless the employer proves that the action was brought “in bad faith.”
- Pre-Employment Questions Regarding Prior Convictions: SB 530 amends Labor Code section 432.7 to add that an employer cannot ask an applicant to disclose, nor can the employer use as a factor in determining any condition of employment, information concerning a conviction that has been judicially dismissed or ordered sealed. Section 432.7 creates exemptions where (1) the employer is required by law to obtain that information; (2) the applicant would possess or use a firearm in the course of his or her employment; (3) an applicant is banned from holding the position regardless of whether the conviction was expunged; and (4) the employer is prohibited by law from hiring an applicant who has been convicted of a crime.
- Paid Family Leave Benefits: Effective July 1, 2014, SB 770 expands the definition of “family” for Paid Family Leave benefits to include seriously ill grandparents, grandchildren, siblings and parents-in-law. This law does not create any new family care leave entitlement under the California Family Rights Act (“CFRA”).
- Sexual Harassment Need Not Be Motivated By Sexual Desire: Effective January 1, 2014, employees who assert claims of Sexual Harassment under California’s Fair Employment and Housing Act (“FEHA”) need not show that the harassment was motivated by sexual desire. Rather, sexually crude, offensive, and/or demeaning statements or gestures may be actionable if they meet the other elements of a sexual harassment claim.
- Minimum Wage Increase: New York state’s minimum hourly wage increased effective December 31, 2013 from $7.25 to $8.00. Effective December 31, 2014, the minimum wage will rise to $8.75, and then to $9.00 on December 31, 2015.
- Exempt Employee Salary: Effective December 31, exempt executive and administrative employees must receive at least $600 per week. The minimum salary for exempt workers will increase again on December 31, 2014 and December 31, 2015, to $656.25 and $675 per week, respectively.
- Pregnancy Accommodation: On January 30, 2014, the most recent amendment to the New York City Human Rights Law takes effect, obligating city employers to accommodate an employee’s pregnancy, as well as childbirth and related medical conditions, as long as the accommodation enables the employee to perform the essential functions of her position.
- Sick Leave: On April 1, 2014, the New York City Earned Sick Time Act will require New York City businesses that employ 20 or more workers to provide employees with up to 40 hours of paid sick leave every year. Implementation for New York City companies that employ between 15 and 20 workers is delayed until October 2015.
- Unemployment Benefits: Effective January 1, 2014, pursuant to the Unemployment Insurance Integrity Act, a former employee is precluded from receiving unemployment benefits for any week in which the employee receives severance pay greater than the maximum benefit rate, with lump sum severance payments allocated on a weekly basis. A claimant will remain eligible for unemployment benefits where he or she receives the severance pay 30 or more days after the last day of employment.
- Background Checks for Child Care Employees: On January 1, 2014, H.B. 350 takes effect, which requires Georgia’s approximately 6,000 child care facilities to undergo national fingerprint-based background checks for employees. (Previously, only state and local background checks were required, thus allowing people with criminal backgrounds in other states to be cleared to work in Georgia child care programs.) Any employee hired after January 2014 will undergo a fingerprint-based background check, and all current child care employees must be fingerprinted no later than Jan. 1, 2017.
RECENT LABOR AND EMPLOYMENT PUBLICATIONS
“Fifth Circuit Overrules NLRB’s D.R. Horton Decision,” Labor and Employment Update (December 06, 2013)
“Illinois Joins Growing Cadre of States Recognizing Marriage Equality,” Labor and Employment Update (November 22, 2013)
“New Requirements for Federal Contractors Outlined in Revised VEVRAA and Section 503 Rules,” Labor and Employment Update (August 30, 2013)
“Ninth Circuit Now on the Class Action Waiver Bandwagon” Labor and Employment Update (August 23, 2013)