Schiff Hardin’s Labor & Employment Group again presents our annual legislative update, summarizing legislation slated to take effect in 2018 under federal law and Illinois, California, New York, Georgia, Michigan, and District of Columbia law.

 

Federal

EEO-1 Report: Covered employers must file their Employer Information Report (EEO-1) collecting race, ethnicity, and gender data by job category by March 31, 2018. Data must be selected from a payroll period in October, November, or December of 2017. In 2017, the Office of Management and Budget issued a stay of the expanded EEO-1 Report that was to require collection of employee pay and hours data. The 2017 EEO-1 Report will be unchanged from prior years and will not include pay and hours data.

OSHA Reporting: The Occupational Safety and Health Administration’s (OSHA) Final Rule to Improve Tracking of Workplace of Injuries and Illnesses, which took effect January 1, 2017, requires employers to electronically submit OSHA Log data for posting to the OSHA website. For 2017, employers with 250 or more employees (and employers with 20-249 employees in certain high-risk industries) were required to electronically submit information from their 2016 Forms 300A by an expanded December 15, 2017 deadline. Currently, for 2018, employers with 250 or more employees are required to submit data from all 2017 forms (300A, 300, and 301) by July 1, 2018, and employers with 20-249 employees in high-risk industries are required to submit 2017 forms 300A by July 1, 2018. In a November 22, 2017 announcement, OSHA stated that it is reviewing provisions of the rule and intends to publish a notice of proposed rulemaking to reconsider, revise, or remove portions of this rule in 2018.

Executive Order 13658 Minimum Wage Increase: Despite the repeal of certain Obama-era federal contractor rules in 2017, Executive Order 13658, which established a minimum wage for contractors, remains intact. Starting January 1, 2018, the minimum wage rate for employees working on or in connection with contracts covered under the Order has increased to $10.35 per hour. Also effective January 1, 2018, tipped employees performing work on or in connection with covered contracts generally must be paid a minimum cash wage of $7.25 per hour. Covered contractors should display the updated poster setting forth these rates, available here.

National Labor Relations Board: The National Labor Relations Board (NLRB) closed out 2017 with four significant decisions that affect most every unionized employer in the country in 2018, and can impact the rights of non-union employers and employees as well.  These decisions are summarized in this recent blog post.

Illinois

Temporary Day Laborers: Effective June 1, 2018, Illinois’ Responsible Job Creation Act will increase protections for temporary day laborers. Among other things, it will require employers to notify workers of the kind of protective clothing, gear, and training they will need for the work; bring workers back from job sites if they provide transportation to the job; and attempt to place temporary workers into permanent positions when they become available.

Religious Garb: Effective since August 11, 2017, SB 1697 (known as the Religious Garb Law) amended the Illinois Human Rights Act to increase religious-based protections. The law prohibits employers from requiring a person to refrain from wearing attire, clothing, or facial hair that is mandated in accordance with the requirements of his or her religion (or any other sincerely held religious belief) as a condition of employment.

Genetic Information: The Genetic Information Privacy Act prohibits employers from requiring employees to submit to genetic testing. Effective January 1, 2018, the law has been expanded to prohibit employers from retaliating against employees who choose not to submit to any genetic tests or disclose genetic information.

Emergency Volunteer Responders: Illinois’ Volunteer Emergency Worker Job Protection Act was amended to expand protections for voluntary emergency responders. In addition to protecting employee absences and tardiness, the amended law now also prohibits employers from retaliating against an employee who responds on a volunteer basis to an emergency call during work hours. The law applies to volunteer firefighters, volunteer paramedics, and other volunteer emergency specialists, and became effective on January 1, 2018.

Sexual Harassment Training for Lobbyists: On November 16, 2017, Governor Bruce Rauner signed into law sweeping legislation that requires all lobbyists and their employers to establish, by January 1, 2018, a written sexual harassment policy. The policy must include specific provisions including a prohibition on sexual harassment and retaliation, details on how to report sexual harassment, and the consequences for making false reports of sexual harassment. All lobbyists must complete approved sexual harassment training provided by the Illinois Secretary of State within 30 days of filing their initial registration or annual renewal. Employers must annually certify compliance with the new rules. Violations may result in a $5,000 fine per offense.

California

Minimum Wage: SB 3, originally passed in 2016, contains a “phase in requirement” to raise the statewide minimum wage to $15/hour by 2023. Effective January 1, 2018, the statewide minimum wage has increased to $11/hour for employers with 26 or more employees and to $10.50 per hour for employers with fewer than 25 employees. Many municipalities in the state have also taken action to increase minimum wages beyond the statewide minimums, including: Los Angeles Ordinance 184320 (increasing Los Angeles minimum wage effective July 1, 2018, to $13.25/hour for employers with 26 or more employees and to $12/hour for employers with 25 or fewer employees; San Francisco Proposition J (increasing San Francisco minimum wage effective July 1, 2018 to $15/hour with annual cost-of-living increases each July 1 thereafter, as part of the 2014 ballot initiative to raise the local minimum wage over a four-year period); and San Jose Ordinance 29829 (increasing San Jose minimum wage effective January 1, 2018 to $13.50/hour).

Ban the Box: Effective January 1, 2018, AB 1008 prohibits employers with five or more employees from asking applicants about prior convictions until a conditional job offer has been made. Where an offer is conditioned on a background check, the employer may conduct a background check and inquire about the applicant’s conviction history, but must conduct an individualized assessment of whether any prior conviction that is discovered has a direct adverse impact on the duties of the position before withdrawing the offer. If the offer is withdrawn, the law imposes detailed employer notice requirements and applicant rights upon receiving notice of withdrawal.

Salary History: AB 168, effective January 1, 2018, prohibits employers from pre-employment inquiry into a job applicant’s salary history, compensation or benefits, and from using such information in making hiring decisions or setting salaries when hiring. The law does not prevent employers from obtaining wage history disclosed by the applicant “voluntarily and without prompting,” and employers may use such voluntarily disclosed information in making compensation decisions. The law also requires employers to provide wage scales upon “reasonable request” from an applicant.

Parental Leave: Effective January 1, 2018, SB 63 supplements existing unpaid leave plans under California law and the Family Medical Leave Act (FMLA) by requiring employers that employ at least 20 employees within a 75 mile radius to provide eligible employees up to 12 work weeks of unpaid, protected leave during any 12-month period to “bond with a new child within one year of the child’s birth, adoption, or foster care placement.” Where an employer employs both parents and both are entitled to leave under the law for the same birth, adoption, or foster placement, the mandated leave is capped at 12-weeks for both parents, which may, but does not have to, be granted simultaneously. The statute does not apply to employees that are covered by both the FMLA and the California Family Rights Act, both of which already provide 12 weeks of unpaid, protected leave for baby bonding purposes to eligible employees of employers with at least 50 employees.

LGBT/Harassment Training: Effective January 1, 2018, SB 396 requires that the mandatory sexual harassment training programs required for supervisory personnel at employers with at least 50 employees include training on harassment based on gender identity, gender expression, and sexual orientation. The law also requires covered employers to display a poster regarding transgender rights prepared by the Department of Fair Employment and Housing, available here.

Immigrant Worker Protection: Effective January 1, 2018, AB 450 imposes requirements on public and private employers with regard to federal immigration agency worksite enforcement actions. Subject to specified exceptions, AB 450 prohibits an employer from providing voluntary consent to an immigration enforcement agent to 1) enter nonpublic areas at the place of employment, unless the agent provides a judicial warrant, and/or 2) access, review, or obtain the employer’s employee records without a subpoena or court order. The law requires employers to provide notice to employees both before and after certain immigration inspections take place, including notifying employees within 72 hours of receiving a Notice of Inspection of I‐9 Employment Eligibility Verification from any immigration enforcement agency. The law also prohibits an employer from re-verifying the employment eligibility of any current employees in a manner that is not already required by federal law and provides for fines of up to $10,000 per violation. Violations can subject an employer to fines ranging from $2,000 to $5,000 for a first violation and $5,000 to $10,000 for subsequent violations.

Human Trafficking: SB 225 expands the list of employers required to post a notice containing information related to slavery and human trafficking. In addition to the 12 categories of businesses and establishments that were required under the prior law, effective January 1, 2018, hotels, motels, and bed and breakfast inns also must display such posters. The poster can be found here.

Paid Family Leave and State Disability: Effective January 1, 2018, AB 908 increases the amount of paid family leave (PFL) and state disability insurance (SDI) an employee can receive to either 60 percent or 70 percent of earnings, depending on earning level, with a maximum weekly benefit limit. The law removes an existing seven-day waiting period before an employee is eligible to receive PFL benefits.

Subcontractor Employees’ Unpaid Wages: Effective January 1, 2018, AB 1701 requires that general contractors are liable for payment of all unpaid wages and fringe benefits that their subcontractors fail to pay to their employees. The law authorizes the California Labor Commissioner to bring an enforcement action. It also authorizes enforcement actions by 1) unions or other third parties owed fringe or other benefit payments or contributions on the employee’s behalf, and 2) joint labor-management cooperation committees seeking recovery of unpaid wages owed to an employee by the general contractor or subcontractor. The law does not provide for a private right of action by an aggrieved employee.

Military Service Members: AB 1710 expands existing protections for current and former military service members, including broadening the protections to include “discrimination in terms, conditions, or privileges of employment.” The law also provides enhanced criminal and civil penalties for violation of the law.

DLSE Enforcement: SB 306 expands the enforcement powers of the Department of Labor Standards (DLSE). Effective January 1, 2018, the DLSE will be authorized to commence investigation of an employer, with or without a complaint being filed, when retaliation or discrimination is suspected. On a finding of reasonable cause, the DLSE may petition for injunctive relief which may include reinstatement or ordering the employer to reverse the alleged retaliatory action, and provides for civil penalties payable to the employee for failure to comply with an injunctive order.

New York

Paid Family Leave: Effective January 1, 2018, under the New York State Paid Family Leave Program, New York employers will be required to provide eligible employees with up to 12 weeks of paid family leave each year for bonding with a new child, care for a family member with a serious medical condition, or leave related to a family member’s active military duty employment. Paid family leave coverage is funded by employee payroll contributions.  Beginning in 2018, employees are eligible to receive 50 percent of their weekly wage for up to eight weeks of their leave. This amount will increase yearly until 2021, when employees will be eligible to receive 67 percent of their weekly wage for up to all 12 weeks of leave. All employers, regardless of size, are subject to the new paid family leave program. Full-time employees become eligible after 26 weeks of employment; part-time employees become eligible after 175 days of work.

Minimum Wage/Overtime: The New York minimum wage increased effective December 31, 2017, as set forth in the following schedule:

Effective date Min. wage:
New York City
(11+ employees)
Min. wage:
New York City
(10 or fewer employees)
Min. wage:
remainder of downstate
(Nassau, Suffolk and Westchester counties)
Min. wage:
remainder of state
(outside of NYC; Nassau, Suffolk and Westchester counties)
Dec. 31, 2017 $13/ hour $12/ hour $11/ hour $10.40/ hour
Dec. 31, 2018 $15/ hour $13.50/ hour $12/ hour $11.10/ hour
Dec. 31, 2019 $15/ hour $13/ hour $11.80/ hour
Dec. 31, 2020 $14/ hour $12.50/ hour
Dec. 31, 2021 $15/ hour

Salary thresholds for the executive and administrative exemptions are also set to increase effective December 31, 2017 as follows:

Effective date Weekly salary:
New York City
(11+ employees)
Weekly salary:
New York City
(10 or fewer employees)
Weekly salary:
remainder of downstate
(Nassau, Suffolk and Westchester counties)
Weekly salary:
remainder of state
(outside of NYC; Nassau, Suffolk and Westchester counties)
Dec. 31, 2017 $975 $900 $825 $780
Dec. 31, 2018 $1,125 $1,012 $900 $832
Dec. 31, 2019 $1,125 $975 $885
Dec. 31, 2020 $1,050 $937
Dec. 31, 2021 $1,125

 

Call-In Pay (proposed):  Currently, New York employees who report for work on any day must be paid for at least four hours at minimum wage, or the number of hours in the regularly scheduled shift, whichever is less. A proposed regulation would require employees who work a shift that has not been scheduled at least 14 days in advance to be paid at least six hours at the minimum wage, and also would require employees to be paid four hours at the basic minimum hourly wage where an employer cancels, or reserves the right to confirm or cancel a shift, less than 72 hours in advance.  The proposed rule is is subject to a 45-day comment period, and could go into effect as early as January if accepted.

New York City

Amendment to Earned Sick Time Act: Currently, under New York City’s Earned Sick Time Act, employees who work at least 80 hours in a calendar year are entitled to paid sick leave, which may be used for the employee’s or their family members’ medical care, diagnosis, and treatment. Beginning May 5, 2018, paid sick leave may also be used for “safe time” if an employee or the employee’s family member is a victim of domestic violence, sexual assault, or stalking. Safe time includes, among other things, time to obtain social services, meet with a lawyer or pursue legal remedies, participate in safety planning or relocation, and take other actions necessary to maintain, improve, or restore the physical, psychological, or economic health or safety of the employee or the employee’s family member. Employees accrue one hour of paid safe/sick time per 30 hours worked, up to 40 hours per year, which may be carried over up to 40 hours into the next year.

Salary History: Effective October 31, 2017, New York City employers are prohibited from inquiring about a job applicant’s current or prior earnings or benefits, or relying on a job applicant’s current or prior earnings or benefits, in setting compensation. Employers may ask about the applicant’s compensation expectations or demand. The law exempts internal applicants and applicants for public sector jobs for which the salary is governed by a collective bargaining agreement. On December 6, 2017, a similar law went into effect in Albany County, New York.

Smoke-Free Air Act:  Effective November 22, 2017, the law requiring New York City employers to keep all areas of the workplace smoke-free also includes e-cigarettes. 

Georgia

Predictive Scheduling: An amendment to the Georgia minimum wage statute (O.C.G.A. § 34-4-1 et seq.) took effect last July that prohibits Georgia localities from passing “predictive scheduling” ordinances that would require employers to compensate employees for work schedule changes implemented without sufficient notice (typically two to four weeks). This amendment to Georgia’s minimum wage law is the latest in a series of laws restricting Georgia localities from passing ordinances that exceed requirements under state and federal law.

Paid Sick Leave: On July 1, 2017, a new paid sick leave law went into effect in Georgia under the Family Care Act, Ga. S.B. 201/AP (2017), requiring certain employers to allow employees up to five days of accrued paid sick leave to care for immediate family members (which, under the Act, include an employee’s “child, spouse, grandchild, grandparent, or parent or any dependents as shown in the employee’s most recent tax return”). The law applies to most private employers with 25 employees and all state government employees that already voluntarily provide paid sick leave to their employees.

Michigan

Minimum Wage:  The minimum wage in Michigan increased on January 1, 2018 to $9.25/hour, under Michigan’s Workforce Opportunity Wage Act enacted in 2014.

District of Columbia

Minimum Wage: Effective July 1, 2018, Law Number L21-0144 will increase the minimum wage rate in the District of Columbia to $13.25/hour for non-tipped workers (up from $12.50/hour), and $3.89/hour for tipped workers (up from $3.33/hour).

For more information on these or other developments, please contact any member of Schiff Hardin’s Labor & Employment Group.