Judge rules that transgender employee can sue under ADA

In a ruling on May 18, 2017, U.S. District Court judge Joseph F. Leeson, Jr.  of Pennsylvania ruled that a transgender woman could move forward with a sexual discrimination lawsuit against an employer under the Americans with Disabilities Act (ADA).  Currently under law, the ADA explicitly excludes transgender individuals from any protections.  This marks the first time ever that a transgender person will be able to sue under the ADA.

Judge Leeson Jr. avoiding ruling on the constitutionality of the ADA, but he found that the case could go forward as the ADA is designed to give people with disabilities the right to pursue discrimination claims.  However, being transgender is not considered a disorder, but it can give rise to what is known as gender dysphoria, which is a type of anxiety- which may require medical treatment.  The Judge ruled in the plaintiff’s favor due to gender dysphoria, as the plaintiff claimed that they were fired after a pattern of harassment which included of her being denied use of the women’s bathroom, and being forced to use a name tag which had her male name given at birth.   

Minneapolis Plastic Bag Ban Effective June 1, 2017

Effective June 1, 2017, businesses in Minneapolis will no longer be allowed to provide plastic bags as a carry out option.  This was passed by the Minneapolis City Council, who voted 10-3 in April.  The goal of the ordinance is to reduce litter, waste, and the environmental impact that plastic bags have.  The ordinance states that:

a.       Retail establishments may not provide plastic carryout bags

b.      Retail establishments may only provide recyclable bags to customers, compostable bags, or bags that are designed to be used multiple times

c.       If a retail establishment is to provide a bag, the establishment must charge at least $.05 per bag(or choose to take on this cost on their own).  Those customers who receive food assistance are exempt from the charge.

City Councilman Cam Gordon has stated that Minneapolis will not enforce the ban, likely not until the next year.  This ordinance does have a few exemptions, for example: take-out food, newspaper bags, dry cleaning bags, and some grocery items.

For any support with this ordinance, contact us at myHRcounsel

Ordinances Taking Effect July 1, 2017

Sick Leave

With a number of sick leave laws already in place, the latest batch of sick leave laws are schedule to take effect this July.  Employers in the following cities and states should take the time to review current policies to make sure they are compliant with the changes on the effective date, or you could face penalties!  For any assistance in implementing the changes in policies to reflect the new laws, contact us at myHRcounsel.  As a reminder, a handbook update is included in our services.

Arizona (Effective July 1, 2017)

Arizona residents passed Proposition 206 in November 2016, which is known as the “Fair Wages and Healthy Families Act.”  Under the act, it raised the minimum wage (effective January 1, 2017) and added a state-wide sick leave law (effective July 1, 2017).  Arizona has become the sixth state to pass a sick leave law.  Under the law, employees must accrue at least one hour of paid sick leave time per 30 hours worked.  For businesses with 15 or more employees, employers must allow the employees to accrue and use up to 40 hours of paid sick time per year.  For employers with less than 15 employees, the number goes down to 24 hours.

Chicago/ Cook County, IL (Effective July 1, 2017)

The Chicago paid sick leave ordinance covers all employers that maintain a business within the Chicago city limits, or are subjected to one or more of the city’s licensing requirements.  Under the law, employees may accrue up to 40 hours of paid sick leave per year- at the rate of 1 hour of paid sick leave for every 40 hours worked.  Additionally, employees can carry unused sick leave hours across years. 

The Cook County ordinance is largely the same as Chicago’s, however several municipalities have opted out: (Barrington, Bedford Park, Mount Prospect, Rosemont, Tinley Park, and Oak Forest.

Minneapolis and Saint Paul, Minnesota (Effective July 1, 2017)

The Minneapolis paid sick leave ordinance requires employers with at least 6 employees to provide paid sick and safe leave time to employees who work in the Minneapolis city limits.  The ordinance requires that employees accrue one hour of sick leave for every 30 hours worked, for up to 48 hours of sick leave per year.

The Saint Paul Ordinance is similar to the Minneapolis ordinance, however it is mandated to all employers with no minimum amount of employees.  The effective date however is due to the amount of employees.  For employers with 24 or more employees, it is effective July 1, 2017.  Employers with 23 or fewer employees have an additional year to prepare and it is effective July 1, 2018.

Los Angeles (Effective July 1, 2017)

Last June, the Los Angeles City Council passed an ordinance which mandated paid sick leave beyond the requirements required by the state of California's "Healthy Workplaces, Healthy Families Act of 2014."  For employers with more than 26 employees, this ordinance took effect July 1, 2016, however for businesses with 25 or fewer employees, this is effective on July 1, 2017.  Under this ordinance, employees will accrue up to 1 hour of paid sick leave for every 30 hours worked, with any unused time allowed to be carried over.  An employer will have the right to cap the paid leave at a minimum of 72 hours however.  

The Los Angeles Minimum wage is also rising on July 1, 2017.  Employers with 26 or more employees must pay a minimum of $12.00 per hour to employees.  For employers with 25 or fewer employees, or approved non-profit corporations (with 26 or more employees) may pay a deferred rate of $10.50 per hour to employees.

For a required poster, click here.

Scheduling

 

Seattle (Effective July 1, 2017)

On September 19, 2016 the Seattle, WA City Council passed the Secure Scheduling Ordinance (CB 118765).  The ordinance mandates that large retail and food service employers in the city provide at a minimum of two-weeks notice to employees of their work schedules.  If the schedule is altered, employees are due compensation.  

Background Checks

 

California (Effective July 1, 2017)

The California Department of Fair Employment and Housing (DFEH) has passed new regulations which will limit the ability of employers to consider criminal history when making decisions regarding employment.  Under the regulations, employers are prohibited from using criminal records in any employment decision if: 

a. If the use has an impact on individuals in a legally protected class designated by FEHA, or

b.  The applicant or employee able to demonstrate an effective and less discriminatory way of achieving the specific business necessity.

An employer must be able to demonstrate that the consideration or use of a criminal background check is both job related and consistent with business necessity.  However, an employee may still prevail if they can demonstrate a less discriminatory policy or practice.

 

St. Louis Minimum Wage Set to Increase to $10 per Hour After Court Decision

The Missouri Supreme Court has refused to reconsider their decision from late February of this year, which will overturn an injunction that business leaders had sued for.  The court decided that the state of Missouri’s minimum wage does not preempt the city of St. Louis from establishing a higher minimum wage. This decision will means that the 2015 St. Louis city wage hike ordinance will go into effect, and all workers in the city will receive a pay of $10 per hour this year, and jumping to $11 per hour in 2018.  The minimum wage is set to increase to $10 per hour by next week and all employers should adjust wages to reflect the changes, or face stiff wage & hour violations.  

Contact us at myHRcounsel for any questions you may have!

Asking about salary history could soon be on the way out nationwide

The practice of banning questions on salary history continues to gain steam nationwide.  The laws are designed to close the gender pay gap.  So far, Massachusetts is the only state that has a ban that affects private employers from asking about salary history (effective July 1, 2018), however other cities and states have either passed laws prohibiting the question, or considered form of legislation.  A CNN article reports that 22 states have considered similar measures to Massachusetts.  While there is no federal law yet on a salary history, this is something that employers should review in their hiring practices as well as their pay practices.  Let’s review these initiatives:

Massachusetts

On August 1, 2016, Massachusetts Governor Charlie Baker signed the Equal Pay Act, which requires men and women to be paid equally for comparable work(which is further defined).  In addition, there is a provision that prohibits private and state employers from asking prospective workers about their salary history from previous jobs.  This goes into effect on July 1, 2018.

New York

New York Governor Andrew Cuomo issued Executive Order No. 161 “Ensuring Pay Equity by State Employers.”  This executive order bans state entities from asking applicants about previous salary history.

New York City

On April 5, 2017 the New York City Council approved a bill which will prohibit all employers in the city from inquiring about an applicant’s salary history.    Mayor de Blasio signed this pay equity law on May 4, 2017.  This new law, which applies to private-sector employers is effective on October 31, 2017.

New Orleans, LA

Similar to the law already in New York, on January 25, 2017, New Orleans Mayor Mitch Landrieu signed an executive order which forbids city agencies from asking about prior salary history.

Philadelphia, PA

On January 23, 2017, Philadelphia mayor Jim Kenney signed an ordinance which bans private-sector employers from asking applicants about prior salary history.  This ordinance was the first private-sector ban in the country.  This was scheduled to go into effect on May 23, 2017, however it is currently on hold pending a lawsuit brought on by the Chamber of Commerce for Greater Philadelphia.

Pittsburgh, PA

The Pittsburgh City Council passed a bill on January 24, 2017 which prohibited the city from asking about previous salary history.  The Mayor officially signed it on January 30th, and has taken effect.  The private-sector is not included in this law.

 

Stay tuned as we follow all the latest changes in employment law! Contact us to consult with one of our attorneys to help implement these changes into your on-boarding policies

 

Wage Theft Violations Now Public in Colorado

On Thursday, April 13th, Colorado Governor John Hickenlooper signed into law a bill that will now allow the public to know if an employer steals wages from his or her workers.  This bill will now be included under Colorado’s Open Records Act.

In a previous century-old law, the violations were considered trade secrets, so the public had no idea if an employer had previous wage theft violations.  Both the Senate and House passed the new legislation, which led to Governor Hickenlooper signing the bill.  The goal of the bill was to allow Colorado citizens who are searching for or considering employment, that they are aware of previous offenders and will level the playing field for employers who did not have any violations.

Please contact us at myHRcounsel for any questions about this new bill

Hazy On The Rules About Marijuana In The Workplace? Here’s The Straight Dope.

As many of you know, April 20th is commonly recognized by many people as the unofficial “national smoke marijuana day,” which provides us with the perfect opportunity to clear the air on the latest law changes, so you don’t have to fear the reefer.  Currently, 26 states and the District of Columbia have laws that legalize the use of marijuana in recreational or medical form, and in some cases both.  Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon, and Washington, plus the District of Columbia have laws that allow marijuana to be used recreationally. 

At the federal level, marijuana is still considered to be a Schedule I drug, which is the highest classification- which also includes drugs like heroin and ecstasy.  Additionally at the federal level, Congress passed a spending bill in 2014 that included a provision that barred the Justice Department from using funds to go after state medical marijuana programs (This provision still remains). 

The first states to blaze the trail for legalizing recreational use happened in 2012, when Barack Obama was in office.  Obama’s administration essentially left the legalization as mostly a states’ rights issue.  It is more unclear what President Trump’s administration plans to do, however during the campaign, his stance mostly aligned with Obama’s.  At odds with that is the appointment of Jeff Sessions as Attorney General.  He has a long history of opposing the legalization of marijuana and could aggressively prosecute marijuana cases, even in states that have legalized its use.  The general sentiment seems to be that he will be harsher on marijuana crimes than his predecessors, unless, that is, he was just blowing smoke.   

Many see the benefits of a tax, where in Colorado, the tax brought in around $200 million, and in Washington about $256 million - where most of the money goes to the public school systems.  Invariably, other states will find it hard to just say no to that kind of tax revenue.  Indeed, this money has created high hopes amongst those that support the legalization movement, which is now picking up steam in other states.  Lawmakers this year in 17 states, including Connecticut, Hawaii, and Minnesota have introduced measures and tax the sales. 

Employers in states that allow some use of marijuana chronically face questions on drug testing dos and don’ts.  myHRcounsel will help you weed through the issues that you face as employers. 

President Trump Signs "Buy American and Hire American" Executive Order

On April 18th, President Donald Trump signed executive order “Buy American and Hire American,” to continue with his campaign promise to put Americans first.  He claimed that the order would promote and use American-made goods as well as ensuring American labor is used first. The executive order took aim at the H-1B visa program, which under the government allows 85,000 foreign workers annually, where many are highly skilled in the tech, industrial and medical & science fields.  President Trump has previously criticized the program and believed that American employers were abusing it to hire foreign workers instead of higher salaried American workers.

However, the executive order does not take direct action to change the program, but it initiates a series of reviews and assessments calling on federal departments (Specifically named: the Secretary of State, Attorney General, the Secretary of Labor, and the Secretary of Homeland Security) to begin proposing reforms to the programs.  The executive order directs federal agents to strictly enforce H-1B visa laws and propose reforms to the program to prevent fraud and abuse as well as ensuring the visas are used on the highest skilled workers.

The “Buy American” section of the executive order is aimed at directing the federal government to provide a preference for the purchase of goods, products, or materials produced in the U.S., including steel, iron, and manufactured goods for federal projects.

Contact us at myHRcounsel for any questions you may have.  To learn more about the “Buy American and Hire American” executive order, click here.

 

Representatives Introduce Bill to Amend the FMLA to Require Child Bereavement Leave

On March 16, 2017, a bipartisan group of Representatives, including Paul Gosar(R-AZ), Don Beyer(D-VA), Barbara Comstock(R-VA), Martha McSally(R-AZ), Brad Schneider(D-IL), and Thomas Suozzi(D-NY) introduced a bill (H.R. 1560) that would amend the Family and Medical Leave Act (FMLA) to allow parents of up to 12 weeks of unpaid, job protected leave for the death of a child.  Currently, only 60% of private-sector workers in the U.S. are provided with paid time off after the death of a loved one, and usually that is only for a few days. 

The current FMLA law allows eligible employees to take up to 12 weeks off per year for the following:

·         The birth of a child and to care for the newborn child within one year of birth

·         The placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement

·         To care for an employee’s spouse, child, or parent who has a serious health condition

·         A serious health condition which makes the employee unable to perform essential duties of the job

·         Or for any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on active duty, or;

·         Twenty-six workweeks of leave during a 12-month period to care for a covered service member with a serious injury or illness if the eligible employee is the service member’s spouse, son, daughter, parent, or next of kin.

*Source: https://www.dol.gov/whd/fmla/

 

There have been similar bills introduced in recent years without success, however the Representatives believe this bill has a better chance of advancing due to the bipartisan support.  There are 3 Republicans and 3 Democrats as sponsors of the bill.  However in the Senate, there are 12 Democrats and 1 Independent sponsoring the bill known as the Parental Bereavement Act of 2017.  Senator Jon Tester(D-MT) introduced the bill (S. 528) in the Senate on March 6, 2017.

Continue to follow us at myHRcounsel for the latest on the bill.  If passed, please contact us for support in implementing policy for the FMLA amendment.

Paid Family Leave Updates

New Jersey

Earlier this March, Democratic law makers announced a proposal to expand New Jersey’s paid leave program for workers to collect more of their missed pay.  The original law, which was passed in 2009, provides workers six weeks of paid-leave per year while they can collect two-thirds of their salary.  The new plan would provide workers 12 weeks of paid leave benefits and allow the workers to collect 80% of their salary.  The proposal needs to be approved by the Legislature and then passed by Governor Chris Christie before taking effect July 2017. 

New York

New York State officially announced regulations have been filed to implement the paid family leave program.  Governor Cuomo claims that it is the strongest and most comprehensive paid family leave policy in the nation.  The policies will be phased in over a four-year period effective January 1, 2018.  The program will provide workers with wage replacement during time away from a job to care for a new child or close relative with a serious illness and to help at home if a family member is deployed to active military service.  Workers will receive 8 weeks of coverage in 2018 at 50% of the employee’s salary.  Workers will receive 10 weeks of coverage in 2019 and 2020, then in 2021 workers will receive 12 weeks of coverage at 67% of the worker’s salary.

Seattle

On Tuesday March 21st, Seattle City Council member Lorena Gonzalez unveiled a proposal which would provide private-sector workers paid family leave.  Under the proposal all employers in Seattle would be required to offer up to 26 weeks of paid family leave in the event of a birth, adoption, or caring for a sick family member.  Employees would be required to be paid 100% of their wages up to $1,000 per week.  In addition to paid family leave, the proposal would mandate up to 12 weeks of paid sick leave for workers.  The Washington State legislature is also currently considering two competing bills for paid family and parental leave.  The Democratic bill would provide up to 26 weeks of paid leave for a new child or a sick family member.  The Republican plan calls for up to 12 weeks of paid leave by 2023.