Following a developing nationwide trend, on September 3, 2014, Chicago Mayor Rahm Emanuel signed an executive order that will require City of Chicago contractors and concessionaries (those operating retail businesses on City property) to pay a minimum wage of $13 per hour to all employees. The September 3 executive order is anticipated to affect approximately 1,000 employees who perform work for the City in areas such as landscaping, maintenance, security, concessions, and custodial work.
Amendment to California Law Prohibiting Retaliation against Whistleblowers Who Lack Work Authorization
California Governor Jerry Brown recently signed Assembly Bill No. 2751 (AB 2751) to amend a recently-enacted law that prohibits employers from retaliating against undocumented workers who engage in protected activity.
The California Law-Making Baton Passes From Legislature to Governor
By its own declaration, the California Legislature finished its 2013-2014 session in the early morning hours of Saturday, August 30 – a day early. Those bills it passed are now on the way to, or pending before, Governor Jerry Brown. The Legislature is in recess, with adjournment scheduled for November 30, 2014.
Philadelphia Extends Protections to Nursing Mothers in the Workplace
Under an ordinance signed on September 3, 2014, Philadelphia now requires public and private employers to provide reasonable accommodations to employees who need to express breast milk. Philadelphia employers must provide employees paid (if otherwise available to the employee) or unpaid break time to express milk as well as a private, sanitary space that is not a bathroom to express milk. The ordinance exempts an employer from these requirements only if they pose an “undue hardship.” The ordinance is an amendment to Philadelphia’s Fair Practices Ordinance (Chapter 9-1100), and is effective immediately.
Washington Supreme Court Decision May Spur Joint Employer Class Actions
In a matter of first impression, the Washington Supreme Court has held that the “joint employer doctrine” is a viable theory under Washington’s Minimum Wage Act (WMWA), and adopted the Fair Labor Standards Act’s economic reality test to determine whether one or more entities are joint employers for purposes of minimum wage and/or overtime liability. This ruling extends the joint employer doctrine to Washington opt-out class actions under the WMWA, and potentially subjects entities to broader liability for the pay practices of their subcontractors.
Illinois Governor Signs Bill Amending Illinois Migrant Labor Camp Law
On August 25, 2014, Illinois Governor Pat Quinn signed Senate Bill 3551 (“SB 3551”) amending the Illinois Migrant Labor Camp Law (“IMLCL”).
IRS Releases Draft ACA Reporting Form Instructions
On August 28, the Internal Revenue Service (IRS) released draft instructions for completing health insurance reporting forms required under the Affordable Care Act (ACA). The release of the instructions comes a month after the IRS released the draft forms employers and insurers must use to report information regarding health care coverage.
Right to Union Representation Applies to Employer Referrals for Drug and Alcohol Tests, NLRB Rules
The National Labor Relations Board (“Board”), in its July 31, 2014 decision in Ralph’s Grocery Co., 361 NLRB No. 9 (2014), ruled that so-called “Weingarten rights” – the general right of a unionized employee to request union representation in connection with an investigatory interview that could lead to discipline – apply when employees request representation after an employer refers them for a workplace drug and alcohol test. Based on this ruling, the Board overturned an employee’s suspension and discharge, finding the actions were inextricably linked to the employee’s request for representation after referral for a drug test, and ordered a make-whole remedy.
NLRB’s Recent Triple Play Decision Tackles Two Critical Social Media Issues for Employers
With the intersection between cutting-edge social media and the Depression-era National Labor Relations Act (NLRA or the Act) still relatively new, employers are looking for answers to some fundamental questions when it comes to regulating employees’ off-duty social media posts about work. The National Labor Relations Board’s (NLRB or the Board) recent decision in Three D, LLC (Triple Play), 361 NLRB No. 31 (2014), answered two of those questions: (1) How far can employees go when posting social media content protected under Section 7 of the NLRA before their posts lose that protection?; and (2) Can employees who do nothing more than click on the ubiquitous thumbs-up icon to “Like” social media content claim the protections of Section 7 of the NLRA? In addition to answering these two critical questions, Triple Play provides useful guidance for employers on drafting a social media policy without raising a red flag for the NLRB.
Ten Tips for Preparing an Effective Acceptable Use Policy
Corporate computers and information and communications systems (collectively, “electronic resources”) remain the workhorse for most businesses, even as alternatives, such as third-party text messaging services, external social media, and cloud computing, flourish. Employees rely on corporate electronic resources for e-mail, calendaring, business contacts, Internet access, document creation and storage, and a multitude of other business applications. Consequently, for employers, it is critical to establish and maintain their right to inspect all information stored on, and to monitor all communications transmitted by, corporate electronic resources. The corporate acceptable use policy is the linchpin of that effort.
Who’s in Control Here? California’s Supreme Court Establishes New Standards for Potential Franchisor Liability for Employee Tort Claims
On August 28, 2014, the Supreme Court of California, in Patterson v. Domino’s Pizza, LLC, decided whether a franchisor was entitled to summary judgment on the plaintiff’s claims that the franchisor was vicariously liable for alleged tortious conduct by the franchisee’s employee. In a 4-3 decision, the court held that a franchisor becomes potentially liable for the actions of a franchisee’s employees only if the franchisor:
Agencies Issue New Regulations Governing ACAs Contraception Mandate
On August 27, 2014, new interim final regulations were published by several administrative agencies entitled “Coverage of Certain Preventive Services Under the Affordable Care Act.” On the same day, the agencies released a Notice of Proposed Rulemaking with the same title. As we have previously written, the Patient Protection and Affordable Care Act (ACA) imposes insurance coverage obligations on both non-profit and for-profit religious organizations. These coverage mandates have been the subject of extensive litigation.
Fast Food Workers Plan Another Round of Coordinated Protests this Week
Employers at fast food chains around the nation should brace themselves for a series of protests and acts of civil disobedience that will occur this Thursday, September 4. The strikes, organized by members of the “Fight for 15” movement, are part of the nationwide crusade to raise the minimum wage. The Fight for 15 organization carried out a similar campaign to raise wages last spring. There are few details on the nature of the protests that will reportedly occur in as many as 150 cities across the country.
EEOC Directly Challenges Wellness Program for the First Time
The EEOC has filed its first lawsuit directly challenging the operation of a wellness program. In EEOC v. Orion Energy Systems, Civil Action 1:14-cv-01019, the EEOC alleged that the employer imposed a wellness program on its employees in violation of the ADA. According to the complaint filed on August 20, 2014 in the U.S. District Court for the Eastern District of Wisconsin, the EEOC claims that the defendant, Orion Energy Systems, administered a wellness program in which employees were asked to complete a health risk assessment, which included questions regarding medical history and blood work. In addition, the suit alleges that the assessment included a test on a Range of Motion Machine in the company’s physical fitness room. The suit does not allege that any part of the wellness incentive was based on any result of the assessment.
Illinois Amends the Human Rights Act to Provide Greater Protections Regarding Pregnancy
On August 26, 2014, Illinois Governor Pat Quinn signed into law House Bill 8 (the amendments), which amends the Illinois Human Rights Act (the Act) to provide greater protections to applicants and employees who are or become pregnant. The Act previously prohibited an employer from discriminating against applicants and employees on the basis of pregnancy. The amendments expand an employer’s obligations with regard to accommodating pregnancy, childbirth, and medical or common conditions related to pregnancy or childbirth. The amendments go into effect on January 1, 2015.