A bulletin on employment, labor, benefits and immigration law.
Massachusetts has one of the most employee-friendly independent contractor laws in the country. The Massachusetts law creates a heavy presumption of employee status and makes it very difficult to establish independent contractor status. Many Massachusetts employers have struggled with its application, a task made more difficult by the state’s aggressive enforcement. Recently, the Massachusetts Joint Enforcement Task Force on the Underground Economy and Employee Misclassification announced “the commissioning of a research study to show the current depth and scope of employee misclassification and the underground economy in Massachusetts.” The study is expected to be completed in 2013 and may be a harbinger of more onerous enforcement yet to come.
The California high court is deliberating the standard of proof required to prove employment discrimination in “mixed motive” cases under the California Fair Employment and Housing Act. Harris v. City of Santa Monica, No. S181004 (Cal. Dec. 4, 2012). In these cases, the employer asserts it would have terminated or taken other adverse action against an employee, regardless of any alleged discrimination. At the oral argument, the California Supreme Court justices appeared divided regarding the appropriate standard, questioning both the employer’s argument that “but-for” causation is required to impose liability and the employee’s argument that liability may be imposed if discrimination is “a motivating factor” in the employer’s decision. Some justices suggested that liability could be imposed if the discrimination was a “substantial factor” in the decision.
Amendments to California’s pregnancy anti-discrimination regulations will extend coverage to “perceived pregnancy,” defined as “being regarded or treated by an employer or other covered entity as being pregnant or having a related medical condition.” With no additional guidance as to who is included in this protected class (which may include those who are not pregnant, but, because of a perception that they are, suffer adverse employment actions), it remains to be seen how the Department of Fair Employment and Housing Fair Employment and Housing Commission or California courts will interpret this term.
Despite angry protests at the state capitol, Michigan’s Governor Rick Snyder signed a right-to-work statute into law on December 11. Michigan joins 23 other states in exercising the 65-year-old option under the Taft-Hartley amendments to the National Labor Relations Act to prohibit “union security” clauses (in general, clauses that require employees to pay dues to a union as a condition of employment) in collective bargaining agreements.
A person may not be required to disclose or furnish his or her Social Security Number (SSN) for any purpose under new section 399-ddd of New York’s General Business Law, effective December 12, 2012. The new law safeguarding SSNs applies to employers and certain other entities in the state. Businesses must review their practices relating to employees, customers and other individuals in situations where all or a part of the SSN is involved.
Affirming a $14 million judgment against Starbucks Corporation for violation of Massachusetts’ unique tip law, the U.S. Court of Appeals for the First Circuit has ruled that the employer’s shift supervisors could not participate with baristas in tip pools based on tips left in the ubiquitous counter-top jars. Matamoros v. Starbucks Corp., 2012 U.S. App. LEXIS 23185 (1st Cir. Nov. 9, 2012). The Court found the law’s definition of “wait staff employee” expressly limits participation to individuals who have “no managerial responsibility.” Although the parties did not dispute that shift supervisors perform much of the same service work performed by baristas, because they also direct the baristas’ work, they were out of the tip pool.
The Wage Theft Prevention Act (“WTPA”), passed in 2011, requires employers to provide employees with an annual notice regarding their compensation and other terms of employment. The notice must be provided to all employees between January 1 and February 1 of each year, regardless if they previously received a notice. Earlier this year, the New York State Senate approved the repeal of the annual WTPA notification requirement, but the bill was not adopted by the Assembly. So for now, the annual notice requirement remains.
The New Jersey Senate has approved a bill (S3) that would raise the state minimum wage from $7.25 to $8.50 per hour and base future increases on the consumer price index (CPI). The proposed measure now heads to the state Assembly. The Assembly approved an almost identical bill earlier this year. If S3 becomes law, the wage increase would take effect on March 1, 2013, and the CPI provision would go into effect on January 1, 2014.
The following chart lists the major pieces of employment legislation introduced in the California State Senate and Assembly during 2012 that were signed into law by Governor Jerry Brown. All of the bills listed become effective January 1, 2013.
A bulletin on employment, labor, benefits and immigration law.
Beginning in 2011, Texas law prohibits most public and private employers from preventing employees who otherwise lawfully possess a firearm or ammunition from transporting or storing those items in a locked, privately owned motor vehicle in employer-provided parking areas. Texas employers may not impose handgun bans by posting a notice under the Texas Penal Code or by including such a ban in a mandated, federally approved facility security plan, the Attorney General of Texas has said in an opinion released November 5, 2012. In addition, the Attorney General noted that, although the Texas Labor Code (Section 52.061) does not provide a specific remedy to employees for any such violation by an employer, employees might be able to pursue claims for violations against employers under the Uniform Declaratory Judgments Act.
California Governor Jerry Brown has signed into law new requirements specifying when and how employers must respond to their employees’ requests for inspection and copying of their personnel files. The new requirements become effective January 1, 2013.
Under California law, employers’ timekeeping policy that rounds employee punch-in and -out times to the nearest one-tenth of an hour is permissible, the California Court of Appeal has ruled. See’s Candy Shops, Inc. v. Superior Court, No. D060710 (Cal. Ct. App. Oct. 29, 2012). Previously, no California statute or case law expressly permitted this common employer practice, though the practice is permissible under federal law, which is followed by the California Division of Labor Standards Enforcement (DLSE). The Court reversed summary judgment for the plaintiff in the certified wage and hour class action. Jackson Lewis’ David S. Bradshaw, James T. Jones, and Paul F. Sorrentino represented the employer in this case.
By a two-to-one ratio, voters in the City of Albuquerque decided in the November 6 General Election to amend The Albuquerque Minimum Wage Ordinance to raise the City’s minimum wage from $7.50 per hour to $8.50 per hour effective January 1, 2013. The amended Ordinance also requires a cost-of-living (COL) adjustment to the minimum wage beginning on January 1, 2014, and each year thereafter, rounded to the nearest multiple of five cents. However, for employers who provide healthcare or childcare benefits equal to or in excess of an annualized cost of $2,500.00, the minimum hourly rate payable to those employees is $1.00 less than the then-current minimum wage. The amendment also includes changes to tipped employees’ compensation.