When the California Legislature chose to go its own way on immigration reform in 2013, it pulled employers in California into the middle of the immigration debate and a potentially very high stakes enforcement game. The constitutional issues with California’s choice can be left for another day and another forum. We deal here, today, with what is. Among the seemingly more innocuous non-employment laws passed last year was AB 60, which directed California DMV to begin issuing documentation authorizing persons who are not authorized to be in the United States under federal law, to nonetheless be authorized to operate a motor vehicle in California.
Two Executive Orders have been recently issued requiring federal government contractors to adopt practices ensuring the fair treatment of certain classes of workers. A new GT Alert, authored by Johnine P. Barnes, Ryan C. Bradel and Józef S. Przygrodzki, discuss the “Fair Pay and Safe Workplaces Executive Order,” which makes a contractor’s compliance with certain federal and state labor laws a part of the procurement process, and the “LGBT Non-Discrimination Executive Order,” which prohibits government contractors from discriminating against lesbian, gay, bisexual and transgender employees in hiring decisions.
Employees at large companies have at various times received nice perks as part of their jobs. 401(k) matches are pretty standard fare these days. Bonuses on Wall Street and at other firms during bull markets are legendary. But sometimes the everyday work incentives are a little more generous.
The perks showered upon tech company employees in Silicon Valley are well documented: kitchens stocked with gourmet made-to-order meals; beer on-tap; colorful bikes to peddle around campus; break rooms with video game consoles, pool tables and other entertainment; fitness facilities and training classes; weekly concerts and team-building activities. Companies promote this culture as a “work hard, play hard” lifestyle that is good for the bottom-line because it creates happy employees who are diligent and stick around.
If you work for such a company, life is good – until the tax man shows up. What used to be a free incentive to employees that was deducted by the company may soon show up as taxable income on a W-2. The new worry about possible action by the Internal Revenue Service, and thus California action, comes from a recently released list of regulatory items the Treasury Department intends to pursue (referred to as the Priority Guidance Plan). The agenda item that has raised interest about the IRS plans simply states that the Treasury Department and IRS intend to provide “guidance under Sections 119 and 132 regarding employer-provided meals.”
Starting July 1, 2015, California employers will be required to provide at least three days of paid sick leave each year under a new law. The Healthy Workplaces, Healthy Families Act of 2014 will affect employers of all sizes, with only unionized workers, home health care providers, and airline flight crews exempt from the mandate. It is anticipated that 6.5 million workers in the state will benefit from the law. Koray Bulut discusses the specifics of the new paid sick leave law in this GT Alert.
In an important decision, the Third Circuit recently held in Lupyan v. Corinthian Colleges, Inc. that an employee’s sworn statement — and nothing more — that she did not receive management’s mailed notification that her leave was designated as qualifying under the Family and Medical Leave Act (FMLA), created a fact question precluding summary judgment on plaintiff’s FMLA interference and retaliation claims. The Greenberg Traurig authors, Robert H. Bernstein, Michael J. Slocum and Stefanie D. Hilliard*, discuss the case and suggest steps employers can take to avoid facing similar claims.
*Not admitted to the practice of law.
In August of 2014, the governor of Massachusetts signed into law, An Act Relative to Domestic Violence. This law requires Massachusetts employers to provide to their employees up to 15 days of annual leave where an employee or family member is a victim of domestic violence. The Greenberg Traurig authors, Terence P. McCourt, Justin F. Keith and Jack S. Gearan, discuss key aspects of the new law and offer action items for employers to come into compliance.
The Governor of New Jersey signed into law the Opportunity to Compete Act, which prevents employers from inquiring about an applicant’s criminal history on an employment application or during the initial job interview. The “ban-the-box” law becomes effective March 1, 2015. Greenberg Traurig attorneys, Robert H. Bernstein and Andrew B. Buckman, discuss the key points of the law and suggest employers in the state of New Jersey conduct a comprehensive review of their hiring practices and procedures that relate to the use of an applicant’s criminal history.
Employers operating in the delivery and livery sectors continue to be targeted with lawsuits alleging violations of the Massachusetts Independent Contractor Statute and Wage Act. Specifically, these lawsuits allege that drivers have been misclassified as independent contractors. Damages in these types of cases can compound quickly and the Wage Act provides for the mandatory recovery of treble damages and attorneys’ fees. As a result, it is imperative that employers classify their workers correctly. The authors of this GT Client Advisory, Greenberg Traurig attorneys David G. Thomas and Jack S. Gearan, discuss the three-prong test used to determine whether an individual is properly classified as an independent contractor and related litigation. The authors suggest that Massachusetts employers consult with counsel when determining how to classify new employees or auditing existing classifications.
Illinois has joined the increasing number of states that have enacted “Ban the Box” laws (so named because they prohibit employers from including on job applications a box for applicants to check if they have ever been convicted of a crime). On July 19, 2014, the Governor of Illinois signed the Job Opportunities for Qualified Applicants Act (JOQAA). That law, with certain exceptions, prohibits Illinois employers and employment agencies from inquiring into, considering, or requiring disclosure of a job applicant’s criminal record or criminal history until the applicant has been determined qualified for the position sought and notified that he/she has been selected for an interview, or if there is no interview, until after a conditional offer of employment is made.
On May 28, California’s Division of Occupational Safety and Health (Cal/OSHA) proposed amendments to CCR, Title 8, Section 3395 (heat illness prevention rule) that would add significant burdens to employers with employees working outdoors. The draft proposal can be found online at CA.gov’s Heat Illness Prevention Programs and Regulations page. Among other things, the changes:
- Imply that a preventative cool down rest break taken by an employee shall be treated as a period of recovery from heat illness, rather than as a preventive measure when an employee feels the need to cool down. [Section (d)(3)]
- Impose new duties to monitor employees for signs of heat illness, duties that may force employers to assess all employees for symptoms of heat illness during all breaks in temperatures over 80 degrees. In addition to the burden, they add a significant new exposure to “be a supervisor, go to jail” liability. [Sections (d)(4), (g)(3) and elsewhere]
- Force employers to draft and implement unspecified methods to acclimatize employees when temperatures rise. [Section (f)(1)(D)]
- Change the as-needed cool down rest into a mandatory recovery period every two hours for agricultural employees under high heat conditions. This unprecedented mingling of wage and hour requirements with health and safety requirements greatly facilitates private attorney actions to enforce heat illness prevention requirements, a precedent that could spread to all industries. [(e)(6)].