The New Jersey Department of Labor and Workforce Development (NJDOL) has adopted regulations for the Opportunity to Compete Act, the state Ban-the-Box Law, clarifying many questions, including the Act’s impact on businesses with multistate operations.
Articles Discussing Labor And Employment Law In All Fifty Us States And Puerto Rico.
Philadelphia Expands Ban-the-Box Legislation
Amendments to Philadelphia’s “Ban the Box” legislation, the Fair Criminal Records Screening Standards, were signed into law by Mayor Michael Nutter on December 15, 2015. The amendments to Philadelphia’s ordinance, which take effect on March 14, 2016, expand the reach of existing law to more businesses. They also restrict the look-back period for background checks and reliance on criminal records as a basis for rejecting applicants for employment, imposing new obligations and legal risk on employers doing business in Philadelphia.
Supreme Court of Puerto Rico Adopts the “Sham Affidavit by Contradiction Doctrine” and Reaffirms that Bona Fide Reorganizations of Employers Constitute Just Cause for Termination
In what has been a string of recent favorable decisions for employers, the Supreme Court of Puerto Rico recently issued another opinion, this time elaborating on the evidentiary standard for wrongful termination claims under Act No. 80 of May 30, 1978 (“Act 80”) after a corporate reorganization. Additionally, and perhaps the most important holding of the opinion, the High Court adopted the sham affidavit doctrine, developed by federal courts, making clear that courts cannot consider a plaintiff’s affidavit that contradicts prior deposition testimony in determining whether a genuine controversy of a material fact exists that would preclude entering summary judgment.
High Court Again Finds a California Court Failed to Place Arbitration Agreements on Equal Footing With Other Contracts
On December 14, 2015, in DirecTV, Inc. v. Imburgia, the U.S. Supreme Court reversed a California State Court of Appeal decision that had invalidated an arbitration provision based on language from the agreement rendering the entire arbitration provision unenforceable if the “law of your state” makes class-arbitration waivers unenforceable.
Most New York City Employers Must Offer Commuter Transportation Benefits to Full-Time Employees
New York City’s Mass Transit Benefit Law requires that most New York City employers with at least 20 full-time employees offer such full-time employees the opportunity to use their pre-tax earnings, up to $130 per month,1 to pay for certain “qualified transportation fringe benefits,” but not qualified parking.
U.S. Opposes Lawsuit By States Seeking To Overturn Colorado Legalization of Marijuana
The U.S. Solicitor General filed a brief in the U.S. Supreme Court December 16, 2015 opposing Nebraska and Oklahoma’s challenge to Colorado’s legalization of marijuana. Last December, the states of Nebraska and Oklahoma filed a motion in the U.S. Supreme Court seeking permission to file suit against the state of Colorado, arguing that Colorado’s legalization of marijuana is unconstitutional. They argue that the “legal” marijuana in Colorado overflows into its neighboring states, creating law enforcement problems for those states. Among other things, Nebraska and Oklahoma argue that Colorado’s law is preempted by federal law which provides that marijuana is illegal. We blogged about that motion here.
New York City Council Adds Caregiver Status to List of Protected Classifications
Following other recent pro-employee legislation enacted in New York City, the New York City Council on December 16, 2015, passed a bill banning employment discrimination based on an individual’s actual or perceived status as a caregiver. (See our articles, New York City Issues Enforcement Guidance Related to City’s Fair Chance Act and City Agency Issues Guidance on New York City’s Newly Effective Credit Check Law.)
Georgia Minimum Wage Law Applies to Employees Exempt from Fair Labor Standards Act, State High Court Rules
In-home personal care employees in Georgia were covered by the state’s minimum wage law, the Georgia Supreme Court has ruled, notwithstanding the fact that those employees were exempt from the minimum wage requirements of the federal Fair Labor Standards Act. Anderson v. Southern Home Care Services, et al., No. S15Q1127 (Nov. 23, 2015).
Ohio Federal Court Rejects Challenge to Application of Companionship Exemption to Home Health Aide
Last week, an Ohio, a federal judge held that a home health aide failed to demonstrate that she performed general housework unrelated to the care of her patients, and therefore qualified as a provider of companionship services under the Fair Labor Standards Act’s previous formulation of the “companion” exemption. As such, the home health aide was not entitled to the minimum wage or overtime. Foster v. Americare Healthcare Servs., Inc., 2015 U.S. Dist. LEXIS 166550 (S.D. Ohio Dec. 11, 2015).
Oregon Supreme Court Case Reminds Businesses about the Complexity of Independent Contractor Classification
Correctly classifying workers as either employees or independent contractors can be complicated and difficult. Multiple and different classification tests apply to a single working relationship – including, but not limited to, distinct tests for: (1) workers’ compensation coverage and premiums; (2) wage-and-hour and civil rights issues; (3) federal taxes; and (4) state payroll and unemployment taxes. These tests are often subjective, and at times can conflict. Additionally, misclassifying a worker as an independent contractor can result in costly audits, assessments of back taxes, and stiff penalties.
Timing is Everything: Pair of California Retaliation Cases Lead to Opposite Results for Employers
Two cases involving employees who were terminated shortly following protected leaves of absence lead to opposite results for the employers, with one case being dismissed and the other proceeding to trial. In one case, the California Court of Appeal rejected a bank employee’s claim that she was wrongfully terminated in retaliation for taking a domestic violence leave of absence. Rosales v. Moneytree, Inc. In the other, the United States District Court for the Northern District of California ruled that triable issues of fact existed regarding an outside sales representative’s claim that her employer terminated her in retaliation for her complaining about the amount of documentation requested to support her medical leave of absence. Furtado v. United Rentals Inc.
What You Need To Know About California’s Amended Fair Pay Act That Takes Effect January 1, 2016
Executive Summary: California’s amended Fair Pay Act goes into effect on January 1, 2016, and is considered the most stringent law in the nation. The new law received broad support from both Republicans and Democrats in the Legislature. It arises out of their finding that “in 2014, the gender wage gap in California stood at 16 cents on the dollar. A woman working full time year round earned an average of 84 cents to every dollar a man earned. This wage gap extends across almost all occupations reporting in California. This gap is far worse for women of color; Latina women in California make only 44 cents for every dollar a white male makes, the biggest gap for Latina women in the nation.” California’s equal pay law has been on the books since 1949, and prohibited employers from paying a woman less than a man when they are both doing “equal work” at the same establishment. The amended law requires equal pay for “substantially similar work.” (The law specifically prohibits discrimination based on sex, but in light of the Legislature’s focus on the gender wage gap, this article addresses pay discrimination allegations made by women.)
Pair of Decisions On FLSA Retaliation and Work Comp Retaliation
Two new employment decisions were issued today, one by a California Court of Appeal and the other by the Ninth Circuit. In Prue v. Brady Company, the California court held that a plaintiff who suffered a work-related injury and subsequently was fired stated a valid legal claim against the employer for wrongful termination in violation of public policy. The employer argued that the plaintiff’s claim was invalid because it effectively was a Labor Code section 132a retaliation claim that could only be brought before the Workers’ Compensation Appeals Board, not in court. The court disagreed, reasoning that the plaintiff adequately alleged that he was wrongfully terminated for having a disability, in violation of the public policy of the Fair Employment and Housing Act, and therefore the claim was not barred by the doctrine of workers’ compensation exclusivity. The employer argued that even if the claim was based on the public policy of FEHA, the claim would be barred by the one-year statute of limitations applicable to FEHA claims. The court rejected this argument as well, ruling that a wrongful termination in violation of public policy claim is governed by a two-year statute of limitations and not by the statute of limitations applicable to FEHA claims. This decision is not particularly novel, but is a good reminder for employers that employees who believe they have been fired for reasons relating to a work comp injury can sue their employer in court and seek punitive damages (under a disability discrimination theory) and are not limited to the remedies set forth in Labor Code 132a.
No Class Action for Residential Care Facility Employees Over On-Duty Meal Periods
Denying class certification in an action for alleged meal period violations under the California Labor Code and Industrial Welfare Commission Wage Order No. 5-2001 (“Wage Order 5”), the California Court of Appeal ruled that a 24-hour residential care facility for developmentally disabled individuals did not have a policy that violated wage and hour laws common to the class members. Palacio v. Jan & Gail’s Care Homes, Inc. Specifically, the Court ruled that the residential care facility did not need to inform employees whom it required to waive their right to uninterrupted meal periods and eat their meals with the residents under Section 11(E) of Wage Order 5, that the employees could revoke the waiver at any time under Section 11(A).
New York City Enacts Municipal Office of Labor Standards; Office’s Initial Mandate Is To Enforce NYC Earned Sick Time Act
On November 30, 2015, New York City Mayor Bill De Blasio signed a bill establishing an “Office of Labor Standards,” to be headed by a Director appointed by the Mayor. The Office, once established, is tasked with “study[ing] and mak[ing] recommendations for worker education, safety and protection, educat[ing] employers on labor laws, creat[ing] public education campaigns regarding worker rights, and collect[ing] and analyz[ing] labor statistics.” The ordinance also empowers the Office to administer and enforce the requirements of New York City’s Earned Sick Time Act, which generally requires covered employers with at least 15 employees to provide paid sick time to covered, qualifying employees.