AUGUST 2020 LEGAL UPDATE

STATE COMPLIANCE UPDATES

CALIFORNIA

Oakland Enacts Right of Re-Employment Ordinance for Hospitality Workers

Oakland has passed a new right to re-employment ordinance that requires covered Oakland employers in industries related to certain hospitality operations to offer eligible laid-off employees any job positions that become available that the employee is qualified for with the employer. Covered hospitality industries include airport hospitality, event centers with more than 50,000 square feet or 5,000 or more seats, hotels, and restaurant employers with more than 500 total employees.

Such offers must be made in writing and can be provided by registered mail to the laid-off employee’s last known physical address, by email, and by text. Eligible laid-off employees shall be given no fewer than ten days from the postmark date of the mailed letter or date of email or text notification to accept or decline the offer.

If a person other than a laid-off employee is hired due to lack of qualifications of a laid-off employee, employers must provide written notice within 30 days to laid-off employees who are not rehired. The employer must document and retain for at least three years the reason for the decision not to rehire the laid-off employee.

The ordinance applies to any employee who was employed for at least six months in the twelve months prior to January 31, 2020 and whose most recent separation from employment occurred after January 31, 2020 and was due to an economic, non-disciplinary reason.

COVID-19 Reopening Playbook Issued for California Employers

California recently released guidance to help employers plan and prepare for reopening and “to support a safe, clean environment for workers and customers.”

The guidance addresses steps employers can take to open safely; what to do if a COVID-19 case occurs in the workplace; enforcement and compliance; and worker education. The document also includes employer and worker resources, enforcement and compliance contacts, and case studies illustrating the playbook’s principles.

The 34-page playbook can be downloaded here: COVID-19 Employer Playbook.

COLORADO

Garnishment Withholding Limits Amended

Effective for garnishment orders issued on or after October 1, 2020, H.B. 1189 reduces the amount of an employee’s or independent contractor’s weekly disposable earnings that are subject to creditor garnishment withholding.

The new limits are the lesser of 20% of weekly disposable earnings; the amount by which weekly disposable earnings exceed 40 times the federal minimum wage; or the amount by which weekly disposable earnings exceed 40 times the state minimum wage.

In addition, the definition of weekly disposable earnings is changed to include the amount remaining after deductions for the cost of any employer-provided health insurance that is voluntarily withheld from a worker’s earnings. Tips are excluded from earnings subject to garnishment.

Hairstyle Discrimination Prohibited

Effective September 14, 2020, the Creating a Respectful and Open World for Natural Hair Act of 2020 (“CROWN Act”) amends the definition of race under the Colorado Anti-Discrimination Act to include hair texture, hair type, or a protective hairstyle that is commonly or historically associated with race. The CROWN Act defines a protective hairstyle to include braids, locs, twists, tight coils or curls, cornrows, bantu knots, afros, and head wraps.

CONNECTICUT

Anti-Sexual Harassment Training Requirements Expanded

Employers in Connecticut with fewer than three employees are required to provide at least two hours of anti-sexual harassment training to supervisory employees by October 1, 2020 or within six months of an employee assuming a supervisory position. Employers with three or more employees must provide all existing employees who have not already received anti-harassment training with two hours of training by October 1, 2020.

Employers needing a 90-day extension of the October 1, 2020 deadline may request one from the Commission on Human Rights and Opportunities (“CHRO”) at CHRO.Questions@ct.gov no later than September 9, 2020 for reasons relating specifically to the Covid-19 pandemic.

The CHRO has published training materials and legal notices available at no cost to employers here: CHRO Training and CHRO Resources.

GEORGIA

Legal Immunity Enacted for Healthcare Providers and Businesses

Effective August 5, 2020, the “Georgia COVID-19 Pandemic Business Safety Act” (Senate Bill 359) protects healthcare facilities, healthcare providers, businesses, individuals, state government agencies, and other entities from being held liable for damages involving a COVID-19 liability claim, unless the claimant can show that the entity’s actions involved “gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm.”

Businesses must post a sign or issue a receipt or proof of purchase for entry to the premises with provided language to create a “rebuttable presumption of the assumption of risk” under the act.

A sign posted at the business point of entry must contain the following statement in at least one-inch Arial font:

“Under Georgia law, there is no liability for an injury or death of an individual entering these premises if such injury or death results from the inherent risks of contracting COVID-19. You are assuming this risk by entering these premises.”

A receipt or proof of purchase must include the following statement in at least 10-point Arial font:

“Any person entering the premises waives all civil liability against this premises owner and operator for any injuries caused by the inherent risk associated with contracting COVID-19 at public gatherings, except for gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm, by the individual or entity of the premises.”

The Act applies to any causes of actions through July 14, 2021.

ILLINOIS

Sexual Harassment Prevention Training Required by December 31

No later than December 31, 2020 and every year thereafter, Illinois employers must provide sexual harassment prevention training to all employees. Because employers are liable for harassment by non-employees performing services for the employer under contract, the Illinois Department of Human Rights (“IDHR”) strongly advises that employers also provide sexual harassment prevention training to contractors and consultants.

The IDHR has published a free harassment prevention training program here: IDHR Training.  Employers can instead choose to implement their own sexual harassment prevention training program, as long as the training meets the minimum training requirements of the IDHR.

In addition, the IDHR requires a supplemental training program for sexual harassment prevention tailored to the restaurant and bar industries. Minimum supplemental training standards can be found here: Supplemental Training Standards for Restaurants & Bars.

Employers should document the names of employees trained, date(s) of training, sign-in worksheets, copies of certificates of participation, copies of all written or recorded training materials, and the name of the training provider.

For additional information, see answers to frequently-asked questions about the training here: FAQs.

MASSACHUSETTS

Juneteenth Designated as a Partially-Restricted State Holiday

A new law designates Juneteenth (June 19th) as an annual state holiday in Massachusetts and adds Juneteenth as a partially-restricted holiday covered by the state’s Blue Laws.

Under the Blue Laws, retail stores that employ more than seven people are required to compensate employees for work on Sunday (excluding executives, administrative employees or professional employees who earn more than $200 per week) at a premium rate of pay. In 2020, that premium rate of pay is 1.3 times an employee’s regular rate of pay. The premium is scheduled to decrease by .1 percent per year until it is entirely eliminated in 2023.

Regardless of the number of employees, retailers cannot require employees to work on Sundays (although employees may choose to do so voluntarily, referred to as “voluntariness”) and cannot discriminate, terminate, or otherwise penalize employees for refusal to work on Sunday.

The Blue Laws create different obligations on retailers for different holidays.

On “restricted” holidays,” work may be performed only if the Massachusetts Department of Labor Standards (“DLS”) and the local police department have issued appropriate permits. DLS generally issues such permits that are applicable to all retail employers on a statewide basis. On these days, the premium pay and voluntariness of employment apply. The restricted holidays are: 

• Columbus Day before 12:00 PM
• Veterans’ Day before 1:00 PM
• Thanksgiving Day
• Christmas Day

On “unrestricted holidays,” work may be performed without a permit and premium pay does not apply. They include: 

• Martin Luther King Day
• Presidents’ Day
• Evacuation Day
• Patriots’ Day
• Bunker Hill Day

On “partially restricted” holidays, work may be performed without a permit, but the premium pay and voluntariness of employment requirements do apply. The partially restricted holidays are: 

• New Year’s Day
• Memorial Day
• Juneteenth
• Independence Day
• Labor Day
• Columbus Day after 12:00 PM
• Veterans’ Day after 1:00 PM

MISSOURI

Punitive Damages in Workplace Safety Lawsuits Limited

Effective August 28, 2020, SB 591 amends and restricts the way punitive damages are considered in lawsuits brought by current or former employees who allege intentional harm by a representative of the employer such as a manager, supervisor or HR professional.

The new law establishes that punitive damages will only be awarded if the plaintiff “proves by clear and convincing evidence that the defendant intentionally harmed the plaintiff without just cause or acted with a deliberate and flagrant disregard for the safety of others.” It also establishes that punitive damages may only be awarded against an employer because of an act by an employee if: (1) the employer authorized the employee’s conduct; (2) the employee was “unfit” and the employer “was reckless in employing or retaining [the employee]”; (3) the employee “was employed in a managerial capacity and was acting in the scope of employment”; or (4) the employer “ratified or approved” the employee’s conduct.

NEW JERSEY

High Court Allows Arbitration Agreement with Independent Contractors

The New Jersey Supreme Court recently ruled that companies in the transportation industry in New Jersey can enforce arbitration agreements with employees and independent contractors under the New Jersey Arbitration Act (“NJAA”). The ruling established that arbitration agreements may be enforceable under the NJAA even if they are exempt under the Federal Arbitration Act.

Safe Harbor for Inadvertent Disclosures

Effective July 1, 2020 under an amendment to the New Jersey Rule of Evidence, a “safe harbor” is available to clients and attorneys who inadvertently disclose information protected by the attorney-client privilege or work-product doctrine.

The amendment adds new paragraph to address a variety of circumstances concerning disclosure of privileged or work-product communications and closely aligns with the federal evidence standard. An inadvertent disclosure will not operate as a waiver in a state proceeding if a disclosing party can demonstrate that the disclosure was inadvertent; if the holder of the privilege took reasonable steps to prevent disclosure; and if the holder promptly took reasonable steps to correct the error.

Tip Credit Regulations Amended

Effective August 3, 2020, New Jersey’s minimum wage regulations have been amended. Employers that intend to claim a tip credit are now required to provide advance notice to employees. The notice must include the amount of the cash wage that is to be paid to the tipped employee; the amount of the tip credit to be claimed by the employer, which may not exceed the value of the tips actually received by the employee; that all tips received by the tipped employee must be retained by the employee, except for a valid tip-pooling arrangement limited to employees who customarily and regularly receive tips; and that the tip credit will not apply to any employee who has not been informed of the tip credit requirements.

Employers are prohibited from using employees’ tips to pay credit card fees and from claiming a tip credit when an employee spends more than 20% of their time performing related duties. 

NEW YORK

Four FFCRA Final Rules Struck Down in New York Court Case

In the case State of New York v. U.S. Department of Labor, a federal district judge in the Southern District of New York has struck down four DOL rules related to the two types of leave provided under the Families First Coronavirus Response Act (“FFCRA”). Unfortunately, it is not yet clear if the ruling applies nationwide or only in the Southern District of New York encompassing counties of Bronx, Dutchess, New York, Orange, Putnam, Rockland, Sullivan, and Westchester. 

The New York court’s ruling struck down the DOL’s definition of who qualifies for the healthcare provider exemption, finding the definition is too broad. However, the court did not provide a new definition.

The ruling also struck down the DOL’s interpretation that FFCRA leave is not available to employees whose employers do not have work for them and instead found that availability of work is irrelevant. The court ruled that if an employee is still employed — whether on the schedule or not, they should be allowed to use FFCRA leave for qualifying reasons.

The DOL’s requirement that employees secure consent for intermittent leave for certain qualifying reasons was also struck down. The court found that if an employee needs intermittent leave to care for their child whose school or place of care is unavailable because of COVID-19, the employer must allow it.

Lastly, the court overruled the DOL’s requirement that employees provide documentation before taking FFCRA leave. The court acknowledged that employers can still require documentation to substantiate FRCRA leave and the corresponding tax credit, but ruled that they cannot prevent an employee from starting leave until after the documentation is received.

Unless and until further guidance or rulings are issued, human resources and legal professionals recommend that employers err on the side of caution when considering FFCRA leave requests and assume these particular rules no longer apply.

PENNSYLVANIA
Philadelphia to Enforce Salary History Ban

Effective September 1, 2020, a 2017 wage equity ordinance will be enforced, prohibiting employers from requesting pay history from prospective employees or relying on pay history in determining wages. The law had been on hold pending appeal.

Answers to frequently-asked questions about the ordinance can be found here: FAQs. 

VIRGINIA

Notice of Pregnancy and Lactation Rights Required

The Virginia Human Rights Act (“VHRA”) requires employers with 15 or more employees to provide written notice no later than October 29, 2020 to all employees regarding the unlawfulness of discrimination based on pregnancy, childbirth and related medical conditions (including lactation) and the right to reasonable accommodations.

Applicable employers are required to:

• Post a notice conspicuously in the workplace;
• Include a notice in an employee handbook policy;
• Provide a notice to new employees at the commencement of employment; and
• Provide a notice to an employee who discloses their pregnancy to the employer within 10 days after the disclosure.               

WASHINGTON

Job Protections for High-Risk Employees Extended

On July 29, 2020, Proclamation 20-46 – which provides job protections for high-risk employees – was extended through the duration of the governor’s current state of emergency.

 Proclamation 20-46 provides eligible high-risk employees the following rights:

• When eligible employees request alternative work arrangements to protect themselves from the risk of exposure to COVID-19 on the job, employers must utilize all available options, including telework, alternative or remote work locations, reassignment, and social distancing measures. If alternative work arrangements are not feasible, employers must allow employees to use all of the employee’s employer-granted accrued leave options or unemployment. It is the employee’s decision to use accrued leave or unemployment insurance in any sequence.
• If the eligible employee’s paid time off is exhausted during the period of leave, the employer must fully maintain all employer-related health insurance benefits until the employee is deemed eligible to return to work.
• Employers may not retaliate against or take adverse employment action in a way that would result in the permanent replacement of employees who exercise their rights under the proclamation.
• Employers and unions cannot enforce any provisions in an employment contract that contradict or interfere with the proclamation.
• Employers should construe the proclamation to protect employees from losing their positions or employment benefits, or from retaliation for decisions related to the proclamation.
• Employers may hire a temporary employee, as long as it does not negatively affect the “permanent” employee’s right to return to their existing position without any negative ramifications.
• An employer may require an employee who does not report to work in reliance on the proclamation to give the employer up to five days of notice of the employee’s intention to report or return to work.
• Employers may take employment action when “no work reasonably exists,” such as after a reduction in force. However, where no work exists, employers may not take action that may adversely affect the employee’s eligibility for unemployment benefits.

High-risk employees are defined as:

• Employees who are age 65 or older;
• Employees whose conditions are listed by the U.S. Centers for Disease Control and Prevention (CDC) under the “increased risk” category, including:
  • Cancer
  • Chronic kidney disease
  • Chronic obstructive pulmonary disease
  • Immunocompromised state from solid organ transplant
  • Obesity with a body mass index of 30 or higher
  • Serious heart conditions such as heart failure, coronary artery disease, or cardiomyopathies
  • Sickle cell disease
  • Type 2 diabetes mellitus
• Employees whose conditions are listed by the CDC under the “might be at increased risk” category, if, based on the employee’s medical circumstances and workplace conditions, the employee is in fact at increased risk for suffering severe illness from COVID-19. This category includes employees with moderate-to-severe asthma; cerebrovascular disease; cystic fibrosis; hypertension or high blood pressure; immunocompromised state from blood or bone marrow transplant, immune deficiencies, HIV, use of corticosteroids, or use of other immune weakening medicines; neurologic conditions (such as dementia); liver disease; pregnancy; pulmonary fibrosis; smoking; thalassemia; or Type 1 diabetes mellitus.

Employers may require verification from an employee’s medical provider when the employee falls within the “might be at an increased risk” category. In addition, employers may require verification from an employee’s medical provider when the employee seeks to use any leave where a state or federal law, collective bargaining agreement, or contractual obligation separately requires verification (including, but not limited to, Washington Paid Sick Leave, any employer-administered paid leave, paid leave under the federal Families First Coronavirus Response Act, and unemployment insurance compensation).

For additional details, read the full text of the Proclamation and the recently-added Guidance Memo.