New laws affecting employers in several states.
Arbitration Company Disclosures: Private arbitration companies must provide arbitration data on their websites beginning January 1, 2015. Large private arbitration companies (such as AAA and JAMS) must publish certain information on a quarterly basis, including their arbitration cases for the past five years with the names of the parties, how the dispute was resolved, the amount of the award and attorneys’ fees, the amount of the arbitrator’s fees and how the fees were split among the parties, as well as other items. The law is intended to overcome the benefit of confidentiality that arbitration has over the court system.
Anti-bullying Training: Effective January 1, 2015, California employers with 50 or more employees must train their supervisors on how to prevent abusive conduct in the workplace. Abusive conduct includes insults, threats, humiliating or offending a person, and sabotaging or undermining a person’s work performance. The training must be incorporated into California’s existing requirement of sexual harassment training.
Paid Sick Leave: Effective July 1, 2015, California employers must provide a minimum of 3 paid sick days per year (1 hour for every 30 hours worked). Employers with an existing paid time off (PTO) policy offering 3 or more sick days per year are in compliance. Employers without an existing PTO policy should consider structuring one, as the law allows customizable options such as capping use and accrual.
Anti-Harassment of Unpaid Interns: California’s Fair Employment and Housing Act will now apply to unpaid interns, effective January 1, 2015. The law prohibits employers from subjecting unpaid interns to discrimination and/or harassment based on their race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status. Employers should incorporate this distinction into their company policies and advise unpaid interns of their rights.
Compensation for Rest or Recovery Periods: Rest or recovery periods, which are afforded to employees by law to prevent heat illness, must be counted as hours worked and may not be deducted from pay. California employers of outdoor workers must ensure that rest or recovery periods are paid beginning January 1, 2015.
Driver’s License Nondiscrimination: California employers may not discriminate against individuals with driver’s licenses issued to undocumented workers, nor require a person to present a driver’s license, unless required or permitted by law, beginning on January 1, 2015.
Labor Contracting Liability: Employers may be jointly liable for wage, Cal/OSHA, and workers’ compensation violations by its staffing agency or labor contractor as of January 1, 2015. California employers should take preventative steps such as reviewing the vendor’s legal compliance measures, service contract terms, and securing adequate insurance. However, employers may still obtain indemnification from the contractor, and the law does not apply to employers with 25 or fewer employees, or with 5 or fewer contracted workers at any given time.
Pregnancy Discrimination: In April 2014, the Florida Supreme Court held that the Florida Civil Rights Act (“FCRA”) prohibits discrimination in employment on the basis of pregnancy. In Delva v. Continental Group, Inc., the court decided, 6 to 1, that discrimination on the basis of sex includes discrimination based on pregnancy, which is a natural condition and primary characteristic unique to the female sex.
Workers’ Compensation as Exclusive Remedy Unconstitutional: In August 2014, the 11th Judicial Circuit for Miami-Dade County determined that the exclusive remedy provision of the Workers’ Compensation Act was unconstitutional because the law did not provide adequate benefits compared with the tort system. The court, in Cortes v. Velda Farms LLC, granted a number of injured parties the right to pursue damages outside of the workers’ compensation system.
Pregnancy Discrimination and Accommodation: Effective January 1, 2015, Illinois employers must accommodate new and expectant mothers with certain workplace protections during pregnancy and after childbirth. For example, employers may be required to provide more frequent or longer bathroom breaks, private non-bathroom space for breastfeeding, assistance with manual labor, modified work schedules, time off to recover from childbirth, and any other requested reasonable accommodation. The law applies to employers of all sizes and to all employees, regardless of part-time or temporary status.
20-Factor Employee/Independent Contractor Test: The Kansas Supreme Court set forth a 20-factor test for determining whether an individual is an employee or an independent contractor under the Kansas Wage Payment Act. In the case of Craig v. FedEx Ground Package System, Inc., a number of FedEx delivery drivers were found to be employees entitled to overtime compensation, despite having contractually agreed to be independent contractors.
Unemployment Benefits for Medical Marijuana Discharge: Although Michigan employers are not required to accommodate an employee’s medical marijuana use in the workplace, a card-carrying employee will nonetheless be entitled to receive unemployment benefits if his or her use of medical marijuana caused the discharge. The Michigan Court of Appeals decided that while the employee’s termination may be proper, the employer will be responsible for unemployment benefits.
New York City Minimum Wage: New York City Mayor, Bill de Blasio, entered an executive order to immediately increase the minimum wage for employees in the Big Apple. Businesses that are located in buildings that receive $1 million or more in city subsidies, and do not offer health insurance to workers, must immediately begin paying workers no less than $13.13 per hour. For employers in such buildings that do offer health insurance, the minimum wage will be $11.90 per hour. However, a number of exemptions apply, including for small businesses with revenues less than $3 million and buildings that have a certain percentage of residential units.
This client alert is intended to inform clients and other interested parties about legal matters of current interest and is not intended as legal advice.