On Feb. 8, 2017, the California Supreme Court ruled that California law allows local prosecutors to pursue civil penalties against employers accused of workplace-safety violations under California’s Occupational Safety and Health Act (Cal OSHA). Solus Indus. Innovations, LLC v. Superior Court, No. S222314, 2018 WL 771814 (Cal. Feb. 8, 2018). This means that California employers will be faced with both civil and administrative penalties for violations of workplace safety and health violations. This is significant, as the federal Occupational Safety and Health Act of 1970 does not allow civil penalties. As a result of this novel decision, California employers will be forced to litigate more alleged violations of workplace safety and health standards and regulations. Like other workplace safety and health issues in the past, other states may follow California and allow civil penalties for workplace safety and health violations.
The past year saw many significant developments in the area of labor and employment law at all levels of government. Simply by way of example, new legislation imposed additional obligations on employers that operate in New Jersey and New York; federal Courts of Appeals “clarified” standards applicable to workplace discrimination claims; and under the Trump Administration, several agencies—particularly the NLRB—began to rein in some of the more far-reaching policies and decisions from the Obama era.
Special thanks to Christopher Katsimaglesǂ for his valuable contribution to this GT Alert.
ǂNot admitted to the practice of law.
Marvin A. Kirsner authored an article in Corporate Counsel titled “Sexual Harassment Settlements With Nondisclosure Agreement No Longer Deductible.” The article explores a provision in the new Tax Cuts and Jobs Act which updates the tax code so that payments made for sexual harassment or abuse claims are no longer tax deductible if the settlement includes a nondisclosure agreement.
To read the full article, click here.
Employers with operations in Pennsylvania should beware that a recent Pennsylvania Superior Court opinion confirmed what federal courts in Pennsylvania previously predicted: Pennsylvania law entitles certain employees to more overtime pay than federal law. On Dec. 22, 2017, Judge Jeffery Moulton ruled that the Pennsylvania Minimum Wage Act (PMWA) entitles a nonexempt, salaried employee to an overtime premium of one-and-one-half times the regular rate, as opposed to the half-time premium allowed under federal law.
On Jan. 5, 2018, the United States Department of Labor (DOL) announced that it will utilize the so-called “primary beneficiary” test to determine whether interns are employees under the Fair Labor Standards Act (FLSA). This announcement marks a significant policy change from the DOL’s previous guidance which had been criticized by several courts as overly rigid.
A provision in the Tax Cuts and Jobs Tax Act will increase the “after-tax cost” for companies to settle “sexual harassment” or “sexual abuse” claims if they wish to maintain a “nondisclosure agreement” of the details. The law will disallow a business deduction for the amounts paid to settle such claims (including attorneys’ fees) if the settlement contains a nondisclosure agreement. This provision addresses the use of nondisclosure agreement terms to possibly prevent public disclosure of sexual harassment allegations or reports.
Just this month, the National Labor Relations Board (NLRB or the Board) successively overturned four decisions that adversely impacted employers and were made while President Obama was in office. The earlier decisions expanded the definition of “joint employer”; scrutinized neutrally-worded work rules; required employers to notify and provide an opportunity to bargain to unions prior to taking actions (even if those actions were consistent with an established past practice); and, shifted the burden to employers to prove that employees should be included in a group of employees in an appropriate unit (or election group) as opposed to using the community-of-interest standard and as a consequence allowing unions to determine the unit based on the union’s extent of organization.
The New York Paid Family Leave law (NYPFL), which becomes effective Jan. 1, 2018, mandates that private employers provide coverage for certain types of employee leave. The benefits will be administered and payments made by the employer’s disability carrier (or by the employer if self-insured), in the same manner as disability benefits. Funding of the coverage will come solely from employee contributions, not the employer. Employers are required to withhold 0.126 percent of an employee’s weekly taxable wages in order to fund the benefits. There is a maximum contribution based on the state’s average weekly wage; the maximum annual contribution for 2018 will be $85.56. Under the law, only those employees working less than 20 hours a week and less than 175 days a year can waive coverage and opt out of the mandatory state program; such persons must sign an opt-out form.
This year, New York City and New York State advanced a series of legislative and regulatory proposals affecting New York’s businesses and their employees. Following four public hearings across the state, the New York State Department of Labor (DOL) proposed regulations that would expand the current “call-in” regulations by requiring two weeks’ advance notice of work schedules issued to workers in most industries, with the exception of restaurants and hotels. The proposed regulations were published on Nov. 22, 2017, just before New York City’s package of “Fair Work Week” laws became effective on Nov. 26, 2017. DOL’s proposed regulations are subject to a 45-day public comment period, which expires on Jan. 6. Contemporaneously, negotiations are ongoing with the New York City Council regarding broad new legislation that would give employees a right to arrange flexible schedules.
MINIMUM WAGE INCREASE EFFECTIVE DECEMBER 1, 2017
Through a press bulletin published this past November 20, the Board of Representatives of the National Committee of Minimum Wages of the Ministry of Labor notified that effective December 1, 2017, the minimum wage will increase $8.32 pesos, thus reaching the amount of $88.36 pesos per day.
The professional minimum wages will also be increased 3.9% also as of December 1, 2017.
AUMENTO DEL SALARIO MÍNIMO GENERAL A PARTIR DEL 1° DE DICIEMBRE DE 2017
Mediante boletín de prensa emitido el pasado 20 de noviembre, el Consejo de Representantes de la Comisión Nacional de los Salarios Mínimos de la Secretaría del Trabajo y Previsión Social informó que a partir del 1 de diciembre de 2017, el salario mínimo aumentará $8.32 pesos, quedando así en la cantidad de $88.36 pesos diarios.
Los salarios mínimos profesionales aumentarán un 3.9% también a partir del 1° de diciembre de 2017.