On July 1, 2018, the newly implemented Hotel Housekeeping Musculoskeletal Injury Prevention Program (MIPP) regulation took effect.1 This program requires all California hotel/motel employers to institute and maintain written policies and training practices regarding housekeeping-related workplace hazards. The new Cal-OSHA regulation, which is intended to prevent and reduce work-related injuries to housekeepers in the hospitality industry, specifically requires that the MIPP be part of the employers Injury Illness and Prevention Program (IIPP) and that it be in writing, readily accessible to employees during their shift, and include the following components
California Provides Guidance Regarding Its Salary History Ban
On January 1, 2018, California’s salary history ban (A.B. 168) took effect. Under A.B. 168, California employers are prohibited from “seek[ing] salary history information” from an applicant.1 The statute also prohibits employers from relying on an applicant’s prior salary history “as a factor in determining whether to offer employment . . . or what salary to offer an applicant.”2 In short, employers cannot ask applicants what they made at their last job, and, if the information is involuntarily disclosed, cannot rely on this information—in any way—in determining the terms of an employment offer. On July 18, 2018, Governor Jerry Brown signed AB 2282, the Fair Pay Act Bill, which takes effect on January 1, 2019, and clarifies the application of California’s Equal Pay Act.
OSHA Proposes to Rescind Major Portions of its Electronic Reporting Rule
On Monday, July 30, 2018, the Occupational Safety and Health Administration (OSHA) issued a proposed rule to abolish much of the existing electronic reporting obligations for establishments with 250 or more employees. Under the proposed rule, OSHA would drop the requirement for establishments with 250 or more employees to electronically submit injury or illness data (OSHA Form 300) or incident reports (OSHA Form 301).
WPI State of the States: Employer Liability, Harassment, and Salary History Bans Continue to Occupy State Legislatures
As the summer months heat up, state legislative activity has noticeably cooled. Only two states (New Jersey and Massachusetts) are in active session, and Rhode Island, which had been in recess, is scheduled to adjourn at the end of the month. California’s brief recess is set to end on August 6, when state lawmakers will try to usher a host of bills through committee and eventually to the governor’s desk. Only a handful of other state legislatures will similarly reconvene after a summer recess. The few labor and employment bills and ordinances enacted in July address the same topics that have remained popular throughout the year: discrimination and harassment, equal pay, paid sick leave, and wage and hour. This month’s State of the States discusses these enacted measures and those that moved in July 2018.
Massachusetts Legislature Passes Comprehensive Noncompete Reform
After years of negotiation, on July 31, 2018, the Massachusetts legislature finally was able to pass legislation that, if signed by Governor Charlie Baker, would significantly limit the enforceability of noncompetition agreements in the Commonwealth. The Massachusetts Noncompetition Agreement Act (“the Act”) would apply to all noncompetition agreements entered into on or after October 1, 2018. If signed into law, the Act generally would limit all post-employment noncompetes to a maximum duration of 12 months, and, absent agreement to the contrary, require employers to pay 50% of the former employee’s base salary – termed “garden leave” pay – during the restricted period, among other constraints. This significant change to employment relationships in Massachusetts was included in a broader economic development bill, and is now on Governor Baker’s desk for signature.
Sixth Circuit Rejects Argument that Full-Time Job Requires Full-Time Hours in ADA Failure to Accommodate Case
Holding that full-time presence at the workplace is not always an essential job function, on July 17, 2018, the U.S. Court of Appeals for the Sixth Circuit reversed summary judgment in favor of the employer in an Americans with Disabilities Act (ADA) failure to accommodate case. The decision in Hostettler v. College of Wooster1 undermines the deference often afforded to employers in determining whether a particular function is an “essential” job function. Moreover, it appears to eliminate—at least within the Sixth Circuit—the argument that an accommodation permitting an employee to work less than full-time hours in a full-time position is per se unreasonable.
WPI Wage Watch: Minimum Wage & Overtime Developments (July Edition)
Usually legislative and regulatory developments slow down in the summer months, which is good news because July brings more pressing matters than reading bills or proposed rules, like eating too many hot dogs or yelling at an air conditioner. So to help employers work on their compliance tans – and avoid getting burned – below we will quickly recap this month’s minimum wage, overtime, and tip-related developments.
Puerto Rico Governor Signs Executive Order Increasing Minimum Wage for Construction Workers in Government-Funded Construction Projects
On July 30, 2018, the governor of Puerto Rico signed Executive Order No. 2018-033, increasing the minimum wage for construction workers, enforcing laws requiring use of locally produced cement, and requiring the use of project labor agreements in government-funded construction projects. More specifically, the Executive Order requires that if any construction project is financed in whole or in part with funds from the Puerto Rico Government, its agencies, instrumentalities or public corporations, the contractor or subcontractor must pay employees hired to work on that project at least $15.00 per hour.
The Sexual Harassment Problem in the Food and Hospitality Industries
Imagine that your employee comes to you and tells you that a few days ago when she was helping a busboy change out the kegs in the basement, he groped her.
OSHA Update: Court of Appeals Upholds Employer’s Criminal Liability and Maximum Fine in Employee’s Death
On July 17, 2018, the U.S. Court of Appeals for the Eighth Circuit affirmed a verdict that had found an employer criminally liable for an employee’s fatal fall. Declining to overturn the lower court’s decision, the three-judge panel found that prosecutors presented sufficient evidence to support the company’s conviction for willfully violating safety regulations and causing the worker’s death.
Change at the Top: Ondray Harris Stepping Down as OFCCP Director
Littler has confirmed that Ondray Harris will be stepping down as head of the Department of Labor’s Office of Federal Contractor Compliance Programs (OFCCP) effective July 27, 2018. Mr. Harris will be replaced by Deputy Director Craig Leen, who will serve as the Acting Director.
Working Time and Commutes in France
France’s labor code does not ordinarily consider an employee’s commute as effective working time. When the commute’s length surpasses the usual trip between one’s home and the workplace, however, the employee must be compensated with either time or money. This leaves room for questions regarding employees who are constantly on the move: Is their transit working or rest time? And should it be compensated?
House Members Introduce Bipartisan Anti-Harassment Legislation
On July 17, 2018, a bipartisan group of House lawmakers—Reps. Lois Frankel (D-FL), Ted Poe (R-TX), Jerrold Nadler (D-NY), Barbara Comstock (R-VA), and Lisa Blunt Rochester (D-DE) —introduced legislation targeting workplace harassment. Senators Kamala Harris (D-CA) and Lisa Murkowski (R-AK) introduced a companion bill in the Senate last month. The Ending the Monopoly of Power Over Workplace harassment through Education and Reporting (EMPOWER) Act (H.R. 6406, S. 2994) would, among other obligations, ban nondisclosure and non-disparagement agreements related to harassment as a condition of employment or receipt of employment-related benefits, and would require certain public disclosures. This federal bill comes on the heels of several state-level proposals stemming from the #MeToo movement.
Littler Global Guide – Puerto Rico – Q2 2018
Guidance on the Federal Employee Retention Benefit for Certain Employers Affected by Hurricane Irma and María
Fighting FMLA Abuse in the Summertime: Top 10 Employer Tools to Keep Employees Honest
It’s 82° and sunny today in Chicago. I’ve got my feet up and I’m feeling the warmth of the summer sun on my face. We live for these days here, since in the blink of an eye, it will be December, 20° and snowing.