The new decade brings Schiff Hardin’s Labor & Employment Group’s annual legislative update, summarizing new legislation in 2020 under federal law and in Illinois, California, New York, Michigan, and the District of Columbia.
DOL Final Overtime Exemption Rule: The final overtime exemption rule issued by the U.S. Department of Labor (DOL) becomes effective January 1, 2020. Among other things, the rule raises the annual salary threshold to meet the white collar overtime exemption under the Fair Labor Standards Act (FLSA) to $35,568 per year or $684 per week, up from the prior threshold of $23,660 per year or $455 per week. The highly compensated employee exemption threshold is raised to $107,432 effective January 1, 2020, up from $100,000. The full text of the rule can be found here.
Exclusions from “Regular Rate”: Effective January 15, 2020, the DOL has updated the “regular rate” exclusions under the FLSA, such that: (i) all forms of unused leave are treated the same for determining whether the sums paid are excluded from the regular rate; (ii) a bona fide meal break period is not converted to hours worked even if it is paid, provided there is no agreement or past practice of doing so; (iii) reimbursable expenses are a permissible exception even if the reimbursement benefits the employer and the employee; (iv) reimbursement expenses are per se reasonable, provided they reflect actual expenses or are at or below the amounts listed in the Federal Travel Regulation; (v) on-site “specialist treatments,” gym access/memberships, employee wellness programs, employee discounts on retail goods, and tuition reimbursement are excludable as benefit and perk payments; (vi) employer contributions for “accident, unemployment, and legal services,” are excludable from the regular rate; and (vii) legally mandated “reporting,” “call-back,” “closing-then-opening,” and “schedule change” pay are excludable from regular rate calculations.
DOL Proposed Joint Employer Rule: Last spring, the DOL proposed a joint employer rule to determine whether an entity is a joint employer by analyzing whether the entity exercises the right to: (1) hire and fire; (2) control and supervise employee work schedules and/or other conditions of employment; (3) dictate the rate and method of employee payment; and (4) maintain employee records. The DOL expected the final rule to be released by the end of December 2019, but as of publication it has not been published.
NLRB New Election Rule: Modifications to the so-called “quickie election rule” will take effect on April 16, 2020, under which: (i) employers will have five business days to post and distribute the mandatory Notice of Petition for Election after receiving an election petition (up from two business days); (ii) a pre-election hearing will be scheduled around 14 business days from the service of the notice of hearing (up from eight calendar days); (iii) employers will have eight business days to file Statements of Position (up from seven calendar days); (iv) employers and unions will have a right to file post-hearing briefs where previously that was only permitted under special circumstances; (v) elections may not be scheduled less than 20 business days from the date the National Labor Relations Board (NLRB) directs an election, absent consent of the parties; (vi) employers will have five business days from approval of the stipulated election agreement or Decision and Direction of Election to file the mandatory Voter List (up from two business days); (vii) the various Regions at the NLRB will be permitted to extend deadlines for good cause shown; and (viii) issues regarding representation, unit scope, and voter eligibility will be resolved prior to scheduling an election. The full text of the rule can be found here.
Drug and Alcohol Clearinghouse Rule: Effective January 6, 2020, employers must fully comply with the Drug and Alcohol Clearinghouses mandated by the Moving Ahead for Progress in the 21st Century Act. Pursuant to the Act, all DOT/FMCSA-regulated employers — and other select agents — will be required to: (i) report violations of DOT drug and alcohol testing regulations by applicants and employees to the Clearinghouse; (ii) request consent from applicants to conduct a query of the Clearinghouse as part of a pre-employment driver investigation process; (iii) query for each current CDL driver employee on an annual basis; and (iv) provide “educational materials” to applicants and current employees that explain legal requirements and relevant employer policies. The rule can be found here.
OFCCP Proposed Disability Self-Identification Form: In October 2019, the Office of Federal Contract Compliance Programs (OFCCP) proposed a change to the Voluntary Self‐Identification of Disability Form required by Section 503 of the Rehabilitation Act. The modified form is intended to streamline the document and provide clarity to applicants and employees. The current form expires on January 31, 2020. The final rule has not been released, and the OFCCP has not indicated when it intends to do so.
New IRS W-4 Form: Effective January 1, 2020, employers must provide all new hires the redesigned IRS Form W-4, found here.
Illinois Minimum Wage Increase: On February 19, 2019, Governor J.B. Pritzker signed the “Lifting Up Working Families Act,” which amended the Illinois Minimum Wage Law by implementing a gradual increase to the state minimum wage, to reach $15 per hour by 2025 as follows:
- $9.25 per hour on January 1, 2020
- $10.00 per hour on July 1, 2020
- $11.00 per hour on January 1, 2021
- $12.00 per hour on January 1, 2022
- $13.00 per hour on January 1, 2023
- $14.00 per hour on January 1, 2024
- $15.00 per hour on January 1, 2025
Additional requirements under the Act have been in effect since last year, including requiring employers to keep records of the hours worked by all employees, notwithstanding an employee’s exempt status. Potential penalties include $100 per employee per infraction plus remedies of up to three times the amount of underpayment plus five percent of the underpayment for each month the underpayment remains unpaid.
Illinois Human Rights Act Amendments: Amendments to the IHRA take effect January 1, 2020. Among other things, the amendments broaden applicability of the IHRA to employers with one or more employees (up from 20 or more employees), broaden the definition of “employee” to include non-employees such as contractors or consultants, and permit employees (and non-employees) to bring harassment and discrimination claims based on an employer’s “perception” that an individual belongs to a protected category (whereas previously, such “regarded as” claims were limited to claims of disability discrimination). The amendments also clarify that the “working environment” is not limited to the physical location where an individual is assigned to perform duties. For more information, see our previous blog post on Public Act 101-0221.
Workplace Transparency Act: Effective January 1, 2020, the Illinois WTA requires employers to: (1) provide employees with annual sexual harassment prevention training; (2) refrain from entering into mandatory arbitration agreements or non-disclosure or non-disparagement agreements that cover harassment or discrimination claims, unless certain conditions are met; and (3) beginning July 1, 2020, disclose settlements and adverse judgments or rulings in which there was an allegation of sexual harassment or unlawful discrimination to the Department of Human Rights annually. For further information on compliance with the WTA, see our previous blog post on Public Act 101-0221.
Victims’ Economic Security and Safety Act Amendments: Effective January 1, 2020, VESSA has been amended to add a category of protection for victims of gender violence or employees who have families or household members who are victims of gender violence. As amended, affected employees receive the same job-protected leave as other victims of domestic or sexual violence previously covered by VESSA, the length of which depends on the size of the employer: four weeks per 12-month period for employers with 1-14 employees, eight weeks in a 12-month period for employers with 15-49 employees, and 12 weeks in a 12-month period for employers with 50 or more employees.
The Illinois Cannabis Regulation and Tax Act: Effective January 1, 2020, the Cannabis Regulation and Tax Act legalizes recreational use of marijuana in Illinois. The Act was passed in May 2019. Amendments were issued December 4, 2019, stating that employers may terminate employees or withdraw applicant job offers based on a “failed” drug test if pursuant to a “reasonable” workplace drug policy. The Act has prompted many Illinois employers to review their drug-free workplace and drug testing policies. For further information on the Act and its considerable impact on employers, see June and December 2019 updates on the Act.
Illinois Equal Pay Act Amendments: Effective September 29, 2019, under amendments to the Illinois Equal Pay Act, employers are banned from (1) requesting or requiring wage or salary history from an applicant as a condition of being interviewed, considered, or hired; (2) requesting or requiring an applicant to disclose wage or salary history as a condition of employment; (3) screening applicants based on their current or prior wages or salary histories; and (4) seeking an applicant’s wage or salary history from any current or former employer. These restrictions do not apply if the applicant is a current employee seeking another position within the same organization, or if the applicant’s salary history is available as a matter of public record. Likewise, an applicant may voluntarily disclose current or prior salary history, provided the employer does not rely on the voluntary disclosure in determining whether to extend a job offer or in determining wages or salary upon hire. For more information, see our August 2019 update.
Artificial Intelligence Video Interview Act: Effective January 1, 2020, the AIVIA requires employers to: (i) disclose to applicants that artificial intelligence will be used to evaluate their candidacy; (ii) explain how the relevant artificial intelligence technology operates in the review process; and (iii) describe the characteristics used by artificial intelligence to evaluate candidates. AIVIA also requires employers to obtain an applicant’s consent to use artificial intelligence before recording an interview, and restricts access to video recordings to the individuals necessary to evaluate the candidate. Employers are required to destroy all active and backup copies of collected recordings within 30 days of receiving such a request by an applicant.
Personal Information Protection Act: Effective January 1, 2020, PIPA requires data collectors to inform Illinois residents when they “own or license” an Illinois resident’s personal information and report to the Illinois Attorney General any data breaches affecting more than 500 Illinois residents. Data collectors reporting a breach must include a (i) description of the nature of the breach, (ii) the number of Illinois residents affected, and (iii) steps taken or to be taken to remedy the breach. An employer that “for any purpose, handles, collects, disseminates, or otherwise deals with nonpublic personal information” are potential “data collectors” under PIPA.
Living Donor Protection Act: Effective January 1, 2020, LDPA makes it unlawful for an employer to “retaliate against an employee for requesting or obtaining a leave of absence” under the Organ Donor Leave Act. The Organ Donor Leave Act provides employees up to 30 days of protected, unpaid organ donation leave in any 12-month period to serve as a bone marrow or organ donor, and up to 1 hour of leave to donate blood, 1-1/2 hours to donate double red cells, and 2 hours to donate platelets. Employers cannot require employees to use sick or vacation leave before being eligible for organ donation leave.
Hotel and Casino Employee Safety Act: Effective July 1, 2020, covered hospitality and casino industry employers must provide employees with a personal safety device that can be used to summon for help, must expressly inform covered employees of their right to leave a work area if they perceive danger, and must provide additional sexual harassment prevention training in excess of what is required by the WTA.
Chicago Fair Workweek Ordinance: Effective July 1, 2020, this Ordinance will impose sweeping predictive scheduling requirements for covered employers. The Ordinance, available here, contains detailed definitions for covered employers and covered employees, and an employer need not necessarily be located in Chicago for the Ordinance to apply. Instead, employers with at least 50 employees who are physically present in Chicago for the majority of their work time may be subject to the Ordinance, if certain other conditions are met. The requirements of the Ordinance include, among other things:
- providing new hires with estimated work schedules for the first 90 days of employment;
- providing employees with work schedules at least 10 days before the employee is scheduled to work;
- imposing financial consequences on employers for canceling or reducing work with less than 24 hours’ notice or scheduling an employee for a shift that begins less than 10 hours after the prior shift ended (with said employee being able to refuse any such shift scheduled at the employee’s option);
- requiring employers to offer work to current employees (to the extent such hours can be worked without paying overtime) before offering it to seasonal or temporary employees.
Covered employers must post a notice of employees’ rights under the Ordinance, to be promulgated by the Commissioner of the Department of Business Affairs and Consumer Protection. For more information, see our July 2019 update here.
Minimum Wage: Effective January 1, 2020, the minimum wage for California employers with 25 or fewer employees is $12.00/hour and the minimum wage for employers with 26 or more employees is $13.00/hour. Many municipalities have increased their minimum wages beyond these statewide minimums, as follows:
|City||Minimum Wage||Effective Date|
|Cupertino||$15.35/hour||Jan. 1, 2020|
|El Cerrito||$15.37/hour||Jan. 1, 2020|
|Los Altos||$15.40/hour||Jan. 1, 2020|
|Los Angeles (25 or fewer employees)||$14.25/hour||Jul. 1, 2020|
|Los Angeles (26 or more employees)||$15.00/hour||Jul. 1, 2020|
|Redwood City||$15.38/hour||Jan. 1, 2020|
|San Diego||$13.00/hour||Jan. 1, 2020|
|San Jose||$15.25/hour||Jan. 1, 2020|
|Sunnyvale||$16.05/hour||Jan. 1, 2020|
|San Mateo (citywide)||$15.38/hour||Jan. 1, 2020|
|San Mateo (501(c)(3) nonprofits)||$15.38/hour||Jan. 1, 2020|
|Santa Clara||$15.40/hour||Jan. 1, 2020|
|Malibu (25 or fewer employees)||$14.25/hour||Jul. 1, 2020|
|Malibu (26 or more employees)||$15.00/hour||Jul. 1, 2020|
|Milpitas||$15.00/hour + Bay Area CPI increase (TBD)||Jul. 1, 2020|
|Mountain View||$16.05/hour||Jan. 1, 2020|
|Pasadena (25 or fewer employees)||$14.25/hour||Jul. 1, 2020|
|Pasadena (26 or more employees)||$15.00/hour||Jul. 1, 2020|
|San Francisco||$15.59/hour + Bay Area CPI increase (TBD)||Jul. 1, 2020|
|San Leandro||$15.00/hour||Jul. 1, 2020|
|Santa Monica (25 or fewer employees)||$14.25/hour||Jul. 1, 2020|
|Santa Monica (26 or more employees)||$15.00/hour||Jul. 1, 2020|
Independent Contractor Test: Effective January 1, 2020, AB 5 codifies the “ABC Test” for independent contractors as set forth by the California Supreme Court in Dynamex v. Superior Court of Los Angeles (see our September 2019 update). The full text of the law is available here. The ABC test requires the following factors to be satisfied for a worker to be an independent contractor: (A) the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact; (B) the worker performs work that is outside the usual course of the hiring entity’s business; and (C) the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity. It is now a statutory violation under AB 5 to classify a worker as an independent contractor unless all three components of this test are satisfied. AB 5 applies to claims under the California Labor Code, unemployment claims, and wage orders of the state Industrial Welfare Commission. (In response to a lawsuit filed by the California Trucking Association, a temporary restraining order was issued on December 31, 2019, by a federal judge in California barring implementation of AB 5 as it pertains to the trucking industry. The temporary injunction will last until January 13, 2020, at which time a full hearing is scheduled which is likely to lead to further orders regarding applicability of AB 5 to the trucking industry.)
Employment Data Temporarily Excluded from CCPA Requirements: Effective January 1, 2020, the California Consumer Privacy Act (CCPA) provides that covered businesses must notify consumers of data breaches and, upon request, provide consumers with copies of the personal data collected and maintained by the business. Personal data includes not only typical consumer data, but also “[b]iometric information” such as “imagery of the iris, retina, [and] fingerprint” and provides for a private right of action, including potential class actions, for data breaches. The text of the CCPA is unclear as to whether it applied to employee or applicant data collected by an employer, including any biometric data employers collect, such as by requiring employees to punch in by scanning their fingerprints or retinas. AB 25 temporarily exempts all information collected from a job applicant, employee, owner, director, or officer of a business from the reporting requirements of CCPA until January 1, 2021, but does not impact the notice requirements of the Act — requiring covered businesses to notify consumers of (1) the categories of personal information collected and (2) the purposes for which such personal information will be used — nor consumers’ private right of action, including potential class actions, if personal information is exposed in a data breach where the breach is caused by a failure to implement and maintain “reasonable” security procedures.
Mandatory Arbitration as a Condition of Employment: AB 51 (available here) prohibits employers from requiring an applicant or employee to consent to mandatory arbitration of California Fair Employment and Housing Act (FEHA) or related claims as a condition of employment, continued employment, or employment-related benefits, and prohibits discrimination or retaliation against employees or applicants who refuse to consent to such requirements. AB 51 excludes from coverage “post dispute settlement agreements or negotiated severance agreements,” and also is not intended to invalidate arbitration agreements covered by the Federal Arbitration Act. The law applies to any contract for employment entered into, modified, or extended on or after January 1, 2020. However, on December 30, 2019, a federal judge in California granted a temporary restraining order temporarily blocking AB 51 from taking effect in U.S. Chamber of Commerce v. Becerra, E.D. Cal. (No. 19-01142) over concerns that AB 51 is preempted by the Federal Arbitration Act. A full hearing is scheduled for January 10, 2020.
Prohibition on No Re-Hire Provisions in Settlement Agreements: Effective January 1, 2020, AB 749 prohibits no re-hire provisions in any agreement settling an employment dispute entered into on or after January 1, 2020. Specifically, where a person has filed a claim against his or her employer in any court, administrative agency, or via alternative dispute resolution, or has complained through the employer’s “internal complaint process,” the employer may not prevent that person “from working for the employer or the employer’s parent company, subsidiary, division, affiliate, or contractor” as part of an agreement settling the claim. The law provides an exception to the no re-hire prohibition “if there is a legitimate nondiscriminatory or nonretaliatory reason for terminating or refusing to rehire the person,” or where the individual is determined by the employer to have engaged in sexual harassment or sexual assault. The law is available here.
Immediate Reporting of Occupational Injuries: Effective January 1, 2020, AB 1804 requires employers to report serious workplace injuries, illnesses, or death immediately by telephone or through an online platform to be developed by the Division of Occupational Safety and Health. Until the online platform is available, employers are permitted to make these reports by telephone or email. Failure to comply may result in a $5,000 civil penalty.
“Serious Injury” Redefined Under California OSH Act: Effective January 1, 2020, AB 1805 recasts the definition of “serious injury or illness” by removing the 24-hour minimum time requirement for qualifying hospitalizations to constitute a “serious injury or illness” under the California Occupational Safety and Health Act.
Prohibition on Discrimination Based on Hair Style: SB 188 (the CROWN Act), expands the definition of “race” under FEHA, effective January 1, 2020, to include traits historically associated with race, such as hair texture and protective hairstyles, which include, but are not limited to, “braids, locks, and twists.”
Expanded Lactation Requirements: Effective January 1, 2020, SB 142 expands the law relating to lactation accommodation requirements. Currently, an employer must provide a lactation room or location that is not a bathroom, that is shielded from view and free from intrusion, and is close to the employee’s work area. SB 142 further requires that the location be safe, clean, and free of hazardous materials, contain a place to sit and a surface to place a breast pump and personal items, and have access to electricity or alternative devices such as extension cords or charging stations to operate a breast pump. Employers also must provide access to a sink with running water and refrigerator for storing milk (or another cooling device suitable for storing milk) close to the employee’s workspace. Where a multipurpose room (such as a conference room) is used for this purpose, use of the room for lactation must take precedence over other uses. Denial of reasonable break time or adequate space to express milk is a failure to provide a rest period in accordance with state law. Employers may not discharge or otherwise discriminate or retaliate against an employee for exercising rights protected under the law. Finally, employers must implement a lactation accommodation policy that includes a statement about the right to request lactation accommodation, the process by which such a request is made, the employer’s obligation to respond to such a request, and the employee’s right to file a complaint with the Labor Commissioner for violations. The policy must be included in an employee handbook “or set of policies that the employer makes available to employees,” and distributed to new employees upon hire and when an employee requests or inquiries about parental leave. The full text of the law is available here.
Sexual Harassment Training Requirement Deadline: SB 778 gives employers more time to comply with California’s sexual harassment training law for by pushing the training requirement deadline for existing employees from January 1, 2020 to January 1, 2021, and thereafter once every two years. New hires or newly appointed supervisors still must receive the required training within six months of their hire or placement to a supervisory position. SB778 is available here.
Minimum Wage/Overtime: New York state minimum wage increases went into effect on December 31, 2019, as follows:
New York City
(10 or fewer employees)*
|Long Island/Westchester||Remainder of New York State **|
|12/31/21||$15.00||**To be determined by Labor Commissioner by 10/1/21|
*For New York City employers with 11 or more employees, the minimum wage will remain $15.00 per hour.
**For the remainder of the state of New York, the minimum wage will continue to increase annually until the rate reaches $15 minimum wage. The Commissioner of Labor will publish these annual increases on or before October 1, starting in 2021.
Weekly salary thresholds for the executive and administrative overtime exemptions under the New York Minimum Wage Act also increased effective December 31, 2019, as follows:
New York City
(10 or fewer employees)*
|Nassau, Suffolk, and Westchester Counties||Remainder of New York State (outside of New York City and Nassau, Suffolk, and Westchester counties)|
*For New York City employers with 11 or more employees, the weekly salary threshold will remain $1,125 per week.
LLC Liability for Unpaid Wages: Effective February 10, 2020, New York’s Limited Liability Company Law is amended to hold the 10 largest members of a foreign limited liability company liable for wages owed by the limited liability company to a worker as a result of work performed within New York state, as determined by the percentage of each member’s ownership interest when the unpaid services were performed. (The 10 largest members of a domestic limited liability company are already held liable for unpaid wages under the law.)
New York State Human Rights Law Amendments: In August 2019, Governor Andrew Cuomo signed into law sweeping changes to the NYSHRL, affecting both the nature of and process for claims that can be brought under the law. Notable amendments include:
- Effective August 12, 2019, upon hire and during each mandatory annual sexual harassment training required under the NYSHRL, employers must provide employees a notice containing the employer’s sexual harassment policy and the information presented at the employer’s sexual harassment prevention training program.
- Effective October 8, 2019, unlawful discrimination based on religion includes discrimination based on an employee’s religious attire, clothing, or facial hair.
- Effective October 11, 2019, non-employee service providers (including independent contractors, vendors, and consultants) who previously were protected against only sexual harassment, are protected from all unlawful discrimination under the NYSHRL.
- Effective October 11, 2019, prevailing plaintiffs in litigation, and prevailing complainants before the New York State Division of Human Rights, may recover both punitive damages and attorneys’ fees.
- Effective October 11, 2019, the “severe or pervasive” standard for proving harassment claims under the NYSHRL was changed to “inferior terms, conditions or privileges of employment because of the individual’s membership in one or more  protected categories,” and the “Faragher-Ellerth” defense (potentially applicable where an employer has an effective harassment policy and complaint procedure) is eliminated for harassment claims under the NYSHRL.
- Effective October 11, 2019, restrictions regarding mandatory arbitration clauses and non-disclosure agreements, which previously applied only to sexual harassment claims, apply to any claims of unlawful discrimination.
- Effective October 25, 2019, unlawful retaliation includes reporting or threatening to report an employee’s (or the employee’s family or household members’) suspected citizenship or immigration status to federal, state, or local agencies.
- Effective February 8, 2020, the NYSHRL applies to all employers, regardless of size. Before this amendment, except as to sexual harassment, the law covered employers with at least four employees.
- Effective August 12, 2020, complainants have three years to file a complaint of sexual harassment under the NYSHRL with the New York State Department of Human Rights. (Discrimination and other types of harassment claims under the NYSHRL continue to be subject to a one-year statute of limitations.)
Domestic Violence Victim Protections: Effective November 18, 2019, NYSHRL amendments expand protections for domestic violence victims. The amendments (1) prohibit discharging or otherwise discriminating against victims of domestic violence, (2) prohibit making any reference that expresses any limitation or discrimination about someone’s status as a victim of domestic violence in connection with prospective employment, and (3) require reasonable accommodation for an employee who is known to be a victim of domestic violence when such employee must be absent from work for a reasonable time for covered reasons.
Hairstyle Discrimination: Effective July 12, 2019, the definition of race under the NYSHRL was expanded to include “hair texture and protective hairstyles,” which includes such hairstyles as braids, locks, and twists. The New York City Human Rights Commission issued similar guidance on February 19, 2019, stating that grooming and other policies restricting dreadlocks, braids, cornrows, or other hairstyles constitutes race discrimination under the City’s Human Rights Law.
Reproductive Health Decision Making: Effective November 8, 2019, under the amended New York State Labor Law, employers cannot discriminate or retaliate based on an employees’ or their dependents’ reproductive health decisions, including the decision to use a particular drug, device, or medical service. Employers also are prohibited from accessing information about an employees’ or their dependents’ reproductive health without prior consent. By January 7, 2020, employers with employee handbooks must include in their handbooks a notice of employees’ rights under the reproductive health decision discrimination provisions. New York City passed a similar prohibition on discrimination based on sexual or reproductive health decisions, effective May 20, 2019.
Salary History Ban: New York State has joined an expanding list of states and localities in passing a salary history ban. Effective January 6, 2020, under the amended New York State Labor Law, employers may not: (1) rely on an applicant’s wage or salary history in determining whether to offer employment or in determining the individual’s wage or salary, (2) request or require an applicant or current employee’s wage or salary history as a condition to be interviewed or considered for employment, or as a condition of employment or promotion, (3) request an applicant or current employee’s wage or salary history from a current or former employer, or (4) refuse to interview, hire, promote, employ, or otherwise retaliate against an applicant or current employee based on the individual’s prior wage or salary history, the individual’s refusal to provide wage or salary history information, or the filing of a complaint with the Division of Human Rights alleging a violation of this law. Certain exceptions apply in situations where salary history is voluntarily disclosed or where an applicant or employee is negotiating compensation with an employer. The law is available here.
Pay Equity Law: Effective October 8, 2019, New York expanded the pay equity provisions of the New York State Labor Law to prohibit discrimination in pay based on age, race, creed, color, national origin, sexual orientation, gender identity or expression, military status, disability, predisposing genetic characteristics, familial status, marital status, or domestic violence victim status. Under the law, no employee within a protected class shall be paid at a rate less than an employee outside the protected class, for “equal work on a job the performance of which requires equal skill, effort, and responsibility, and which is performed under similar working conditions, or substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions,” except if the differential is due a reason specified by the law. Differentials may lawfully be based on: (i) a seniority system, (ii) a merit system, (iii) a system which measures earnings by quantity or quality of production, or (iv) a bona fide factor other than status within a protected class, such as education, training, or experience. The text of the law if available here.
Data Privacy: Effective March 21, 2020, the Stop Hacks and Improve Electronic Data Security (SHIELD) Act requires employers to implement safeguards to protect “private information” of employees who are New York residents. “Private information” includes an employee’s social security number, driver’s license number, financial account numbers, biometric information, username or e-mail address and password, and any unsecured protected health information as defined by HIPAA. To comply with the SHIELD Act, a business must implement a “data security program” that includes reasonable administrative, technical, and physical safeguards. These safeguards include, among other requirements, designating one or more employees to coordinate the program, assessing risks in network design, software design, and information processing and storage, and disposing of private information within a reasonable time after it is no longer needed for business purposes.
Contraceptive Coverage: Under the Comprehensive Contraception Coverage Act, group health policies issued, amended, renewed, effective, or delivered on or after January 1, 2020, must provide certain contraceptive coverage, including coverage of all FDA-approved contraceptive drugs, devices, and other products and related follow-up services, voluntary sterilization procedures, and patient education and counseling on contraception.
Time Off to Vote: Effective April 12, 2019, the New York State Election Law requires employers to allow employees who are registered voters to take up to three hours of leave, without loss of pay, to vote in any election.
New York City
Reasonable Accommodation: Effective November 11, 2019, the New York City Human Rights Law prohibits employers from retaliating against an employee based on a request for reasonable accommodation of a disability.
Drug Testing: Effective May 10, 2020, the City of New York Administrative Code is amended to prohibit employers from requiring applicants to submit to drug testing for marijuana or THC as a condition of employment, subject to certain exceptions. Applicants for certain safety and security sensitive jobs and jobs that requires the supervision or care of patients may still be tested, as can applicants for positions where testing is required by the U.S. Department of Transportation, federal contracts or grants, federal or state statutes, or collective bargaining agreements.
Minimum Wage: Effective January 1, 2020, under the Improved Workforce Opportunity Wage Act (IWOWA), the minimum wage in Michigan will increase to $9.65/hour for non-tipped workers (up from $9.45/hour), and to $3.67/hour for tipped workers (up from $3.59/hour).
District of Columbia
Minimum Wage: Effective July 1, 2020, the minimum wage will increase to $15.00/hour for non-tipped workers (up from $14.00/hour) and $5.00/hour for tipped workers (up from $4.45/hour). Beginning in 2021, the minimum wage will increase during each successive year consistent with the Consumer Price Index for both tipped and non-tipped employees.
Paid Family Leave Law: On July 1, 2020, the District of Columbia will begin providing paid leave benefits under the Universal Paid Leave Amendment Act. The law provides up to eight weeks of paid parental leave to bond with a new child, six weeks of paid family leave to care for an ill family member with a serious health condition, and two weeks of paid medical leave to care for one’s own serious health condition. The District of Columbia’s Office of Paid Family Leave is currently working to define the program’s rules and regulations. The law is available here.
Commuter Benefits: Since January of 2016, employers with 20 or more employees have been required to provide at least one of three transit benefit options to their employees under the DC Commuter Benefits Law. Effective November 14, 2019, employers that are not in compliance with the law will be subject to fines starting at $100 per covered employee for the first offense.
Tipped Workers: As reported last year, the Tipped Wage Worker Fairness Amendment Act of 2018 added new requirements for employers of tipped workers in the District of Columbia. Effective January 1, 2020, employers of tipped workers (except hotel employers) must use a third party payroll service. The payroll service (or hotel) must submit a quarterly wage report to the Mayor within 30 days of the end of each quarter certifying that each employee was paid at least the required minimum wage, including gratuities. By December 13, 2020, owners, operators, managers, and employees of employers of tipped workers must attend sexual harassment prevention training. New employees must receive training within 90 days of hire unless the employee has participated in training within the past two years. Managers, owners, and operators must attend training at least once every two years.
For more information on these developments, please contact any member of Schiff Hardin’s Labor & Employment Group.