Beltway Buzz, February 8, 2019
Pearce Withdraws. The Buzz has written extensively about the end of former National Labor Relations Board (NLRB) member Mark Gaston Pearce’s term in August 2018, his subsequent renomination just days letter, and the expiration of that renomination upon the adjournment of the 115th Congress. Well, it seems as though this ongoing saga may have finally reached an endpoint, as Bloomberg BNA reported earlier this week that Pearce had withdrawn his name from consideration for another term on the Board.
Third Circuit Rules That FAAAA Does Not Preempt New Jersey’s ABC Test for Determining Independent Contractor Status
On January 29, 2019, the Third Circuit Court of Appeals concluded that the Federal Aviation Administration Authorization Act of 1994 (FAAAA) does not preempt New Jersey’s ABC test for determining whether a worker is an independent contractor or employee. The case is Bedoya v. American Eagle Express Inc.
This Valentine’s Day, Fall in Love With These Hiring Practices
The hiring process can be one of the most stressful steps of any employment relationship. As the employer, you are opening your doors to somebody who is hopefully going to contribute to your company’s success. Moreover, hiring is a process that requires both time and money. Thus, employers often want to expedite the hiring process.
Through the Veil: OFCCP’s Transparency Results in Even Minor Contractor Violations Being Published by the Agency
Recently, the Office of Federal Contract Compliance Programs (OFCCP) began posting in its Freedom of Information Act (FOIA) Library links to conciliation agreements between the agency and federal contractors that contain only material technical violations. Until now, the only conciliation agreements posted in OFCCP’s FOIA library have been those in which OFCCP has identified material discrimination violations.
Unsettled Waters at the Accommodation of Last Resort
In 2019, we are poised to learn where the Fourth Circuit stands on reassignment as an accommodation—an issue that has split the Circuits.
EEO-1 Report Deadline Pushed Back to May 31
The deadline for filing EEO-1 Reports for 2018 has been extended from March 31 to May 31.
Top Five Labor Law Developments for January 2019
The National Labor Relations Board (NLRB) reinstated its pre-2014 standard for determining whether an individual is an independent contractor or an employee. SuperShuttle DFW, Inc., 367 NLRB No. 75 (Jan. 25, 2019). The NLRB determined that the employer’s shuttle van drivers were not employees, but independent contractors.
Rumors and Gossip in Workplace Can Create Employer Liability for Harassment, Fourth Circuit Holds
Employers may be liable under Title VII of the Civil Rights Act for failing to effectively address and stop gossip and rumors of an alleged sexual relationship between a female employee and a male supervisor, the federal appeals court in Richmond has held. Parker v. Reema Consulting Servs., No. 18-1206 (4th Cir. Feb. 8, 2019).
Former Winery Employees Awarded $11 million
Plaintiffs Megan Meadowcroft and Amanda Brown, two winery employees, alleged that they had been harassed on numerous occasions by their supervisor, General Manager Pinero. Specifically, Brown alleged that Pinero attempted to flirt with her, and physically made contact with her. Meadowcroft alleged that Pinero made sexually explicit gestures, sexually explicit comments, put his hands on her waist and under her buttocks as she was serving customers, and on at least one occasion told her that she could be a manager if she would have sex with him. Along with a claim of harassment, they filed claims of retaliation, failure to prevent harassment/retaliation, and negligent supervision, retention, and hiring.
Arizona Law Prohibiting Municipalities From Enacting Employee Benefits Ordinances Held Unconstitutional
The Arizona Court of Appeals, Division One, has ruled that the Arizona State Legislature overstepped its authority in 2016, when it prohibited Arizona cities and other municipalities from enacting their own employee benefits ordinances. The ruling reinstates a portion of a 2006 law that permits Arizona municipalities to pass local ordinances requiring employers to provide employment benefits more favorable than those provided under statewide laws. However, federal law, such as the Employee Retirement Income Security Act of 1974 (ERISA), still imposes limits on how much these local ordinances may compel employers to do.
New Jersey’s Minimum Wage to Reach at Least $15 by 2024
New Jersey has joined the ranks of California, Massachusetts, New York, and the District of Columbia in requiring a phased increase of the minimum wage to $15 an hour as a result of a bill (A-15/S-15) signed into law by Governor Phil Murphy on Monday, February 4, 2019. The law will raise the minimum wage rate from the current rate of $8.85 per hour to at least $15.00 an hour by 2024. After 2024, it will increase annually based on changes in the consumer price index. Noticeably absent from the new law is an off-ramp from this policy that would allow the wage hikes to be suspended in the event of a recession or budgetary crunch.
Texas Workforce Commission Issues Proposed Rules Excluding Certain Gig Workers From the Definition of “Employment” Under Texas Unemployment Laws
The issue of whether workers who utilize online digital platforms to obtain business and deliver services to third parties are employees or independent contractors has already been subject to much debate and litigation. In the growing gig economy, questions surrounding these issues can create uncertainty for both businesses and gig workers.
California Court of Appeal Finds That In-Home Caregivers May Be Employees of Placement Agencies
In Duffey v. Tender Heart Home Care Agency, LLC, the California Court of Appeal for the First District addressed whether an in-home caregiver was an independent contractor or employee. Reversing a trial court order dismissing the plaintiff’s overtime claim, the court of appeal concluded that an in-home caregiver may be an employee when the caregiver’s placement agency has control over the caregiver’s wages.
South Carolina Court of Appeals Weighs in on South Carolina’s Political Opinions Statute, Approves Discharge of Employee for Excessive Personal Use of Company Phone and Laptop
In Owens v. Crabtree, Opinion No. 5616 (January 16, 2019), the South Carolina Court of Appeals held that a company’s termination of an employee for using company devices, on company time, to oppose a local building project that the company had a financial stake in was valid and did not violate public policy. The holding (1) illustrates the benefits of a written company policy regarding the use (including personal use) of company devices/technology and (2) provides an example of a valid termination that did not violate South Carolina public policy.
California Court of Appeal Identifies Triggers for Reporting Time Pay Obligation
In a ruling that will have a significant impact on the retail and restaurant industries, among others in California, the California Court of Appeal ruled that a retail employer’s call-in scheduling policy—in which employees were required to call the employer in advance of a shift to find out if they needed to show up for work—triggered the reporting time pay obligation set forth in the California Industrial Welfare Commission’s (IWC) Wage Orders.
Did You Know California has a State Mandated Retirement Plan?
What is CalSavers?
New 2019 California Employment Laws Creating Compliance Challenges
California employers seemingly need a scorecard each year to keep up with all of the employment law changes afoot, but this is especially true in 2019.
Illinois Legislature Approves Bill to Raise Minimum Wage to $15.00, Sends to Governor for Signature
The Illinois legislature has now passed the “Lifting Up Illinois Working Families Act,” under which the state’s minimum wage will increase to $15.00 per hour over the next six years. Governor J.B. Pritzker has stated that he intends to sign the bill into law prior to his first budget speech on February 20th.
Tackling Employee Expense Reimbursements Under New Illinois Law
Illinois employers are collecting receipts and preparing payments to comply with new legislation that requires employers to reimburse employees for business expenses incurred by the employee during the scope of employment. Specifically, employers are required to reimburse employees for all necessary expenditures and those expenses directly related to services performed for the employer. The Act defines “necessary expenditures” as all reasonable expenditures or losses required of the employee in the discharge of employment duties and that inure to the primary benefit of the employer.
Federal Court Rejects Free Speech Challenge to New York City's Payroll Deduction Law
xecutive Summary: On February 6, 2018, a New York federal judge rejected a challenge to a New York City law requiring fast-food businesses to, upon request of their employees, forward voluntary deductions from employee paychecks to nonprofits. The 2017 Deductions Law requires these businesses to create and maintain a payroll deduction system by which employees can donate a portion of their wages to certain nonprofits registered with the New York City Department of Consumer Affairs.
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