Spring 2018 Update
March 1, 2018
Sick Leave Laws
Maryland Passes Paid Sick Leave Law, Effective February 2018
On Jan. 12, 2018, Maryland passed its first and long-disputed paid sick leave law. The bill came to fruition after the Maryland Senate voted to override Governor Larry Hogan’s previous veto of the bill. The new law requires Maryland employers with 15 or more employees to provide employees with up to five days of paid sick leave per year. Sick leave is accrued over time with employees earning one hour of sick leave for every 30 hours worked. The new law went into effect on Feb. 12, 2018.
Additional information on the law can be found here.
New York City Expands Sick Time Leave Law, Effective May 2018
Additions to New York City’s Earned Sick Time Act now require protected time off for employees who are victims of domestic violence, sexual assault, stalking or human trafficking. The recently renamed Earned Safe and Sick Time Act requires New York City employers with five or more employees to provide eligible employees with up to 40 hours of paid sick or safe leave per year, and employers with fewer than five, the same amount of time though it may be unpaid. Amongst other things, covered “safe time” includes situations when an employee uses time off to obtain services from a domestic violence shelter, rape crisis center or other shelter or services program, to participate in safety or relocation planning or to take other actions to increase the safety of the employee or employee's family members from future harm, to meet with an attorney or other social service provider to obtain information and advice on any family offense matter or to take other action necessary to maintain, improve or restore the physical, psychological or economic health or safety of the employee or the employee's family member. The law goes into effect May 5, 2018.
Additional information on the law can be found here.
Austin, Texas Passes Paid Sick Leave Law, Effective October 2018
On Feb. 16, 2018, Austin became the first city in the state of Texas to pass a mandatory paid sick leave law. Under the new law, most privately-owned businesses operating in Austin are required to provide employees with up to 64 hours of paid sick leave per year while businesses employing 15 or fewer employees are required to provide 48 hours. Employees accrue one hour of paid sick leave for every 30 hours worked regardless of employer size. The law is expected to impact an estimated 87,000 workers and goes into effect Oct. 1, 2018.
Additional information on the law can be found here.
Family Leave Laws
Massachusetts Pregnant Workers Fairness Act Goes into Effect April 2018
On July 27, 2017, Governor Charlie Baker signed into law the Massachusetts Pregnant Workers Fairness Act which protects women who are pregnant or have pregnancy-related medical conditions from discrimination in the workplace. The law prohibits Massachusetts employers with six or more employees from denying a reasonable accommodation for an employee’s pregnancy or related condition (including lactation) unless the employer can prove undue hardship, taking adverse action against an employee who makes a request for such accommodations, denying employment opportunities to an employee based on the need to make these accommodations and knowingly refusing to hire a person who is pregnant in order to avoid these accommodations. The law goes into effect on April 1, 2018.
Additional information on the law can be found here.
Hawaii Senate Labor Committee Passes Paid Family Leave Bill
On Feb. 6, 2018, the Hawaii Senate Labor Committee passed Senate Bill 2990 which implements a program for paid family leave. Senate Bill 2990 calls for the creation of a Paid Family Leave fund into which $1.5 million will be deposited from the general revenue of the State in the 2018-2019 fiscal year. The bill also creates a special task force to implement specific rules for the program; this should be implemented in total by January 2023.
Additional information on the law can be found here.
State & Local Laws
New Jersey Expands “Ban the Box” Legislation, Effective Immediately
On Dec. 20, 2017, New Jersey Governor Chris Christie signed into law Senate Bill 3306 amending New Jersey’s Opportunity to Compete Act (“OTCA”) “ban the box” legislation. Under the amendments, New Jersey employers are now explicitly prohibited from inquiring into a job applicant’s expunged criminal history. This includes any references to expunged criminal records both on a job application and in any other oral or written points presented during the job application process. The law went into effect the same day that it was signed on Dec. 20, 2017.
Additional information on the law can be found here.
Sandoval County, New Mexico Passes Right to Work Ordinance, Effective Immediately
On Jan. 19, 2018, the Sandoval County Commission voted to make Sandoval County a right-to-work county. The effect of the ordinance is to prevent employees from being required to choose between joining a union or paying mandatory fees. In other words, the ordinance makes it unlawful for Sandoval employers to require that employees be a member of a union as a condition of employment. The ordinance applies to both public and private unions in the county. The ordinance has seen a significant amount of opposition, including from New Mexico’s Attorney General Hector Balderas, who has suggested that the ordinance violates the NLRA. The Ordinance went into effect on the same day that it was signed although litigation attempts are expected to overrule it.
Additional information on the law can be found here.
New Jersey Expands Workplace Protections for Breastfeeding Mothers, Effective Jan. 2018
On Jan. 8, 2018, New Jersey Governor Chris Christie added breastfeeding to the list of protected acts under the state’s Law Against Discrimination. Effectively, New Jersey employers are required to make accommodations, including a private room and designated break times, to allow women to breastfeed during the workday. The law applies to all New Jersey employers except those who can prove that the accommodation would create undue hardship on business operations. The law went into effect the same day that it was signed in January of this year.
Additional information on the law can be found here.
New York City Expands Human Rights Law’s Definition of Gender and Sexual Orientation, Effective May 2018
On Jan. 11, 2018, The New York City Council passed Int. No 1186-A which amends the New York City Human Rights to expand the definitions of gender and sexual orientation. The definition of gender is expanded to include “gender identity and gender expression including a person’s actual or perceived gender-related self-image, appearance, behavior, expression or other gender-related characteristic.” Sexual orientation is also expanded to mean an “individual’s actual or perceived romantic, physical or sexual attraction to other persons, or lack thereof, on the basis of gender. A continuum of sexual orientation exists and includes, but is not limited to, heterosexuality, homosexuality, [or] bisexuality, asexuality, and pansexuality.” The expanded definitions effectively provide for broader protections under the New York City Human Rights Law for individuals who are the subject of discrimination based on gender or sexual orientation. The new law takes effect May 11, 2018.
Additional information on the law can be found here.
San Francisco, California Passes Salary Ban History Law, Effective July 2018
Last July, the city of San Francisco passed a salary history ban law that goes into effect this summer. The law applies to all San Francisco employers, including city contractors and subcontractors, and all San Francisco employees, including temporary, contingent, seasonal and part-time employees. The law prohibits employers from asking about a job applicant’s current or prior salaries, relying on an applicant’s salary history when determining whether to make a job or salary offer or retaliating if an applicant refuses to disclose this information. Employers are also not permitted to release a former employee’s salary without written authorization unless disclosure is publicly available, part of a collective bargaining agreement or otherwise required by law. The new law goes into effect July 2018 with penalties for employers who violate it beginning July 2019.
Additional information on the law can be found here.
Spokane, Washington Passes “Ban the Box” Legislation, Effective June 2018
The city of Spokane recently joined Seattle as the second city in Washington State to pass “ban the box” legislation. The new law limits the ways in which Spokane employers can look into the prior criminal history of prospective job applicants. Furthermore, the law disallows employers from advertising job openings in a way that excludes people with criminal backgrounds, inquiring orally or in writing about a job applicant’s conviction record until after a conditional offer of employment has been made, disqualifying an applicant solely because of criminal background unless the conviction is related to significant duties of the job and rejecting an applicant based on the applicant’s failure to disclose a criminal record. The law applies to all private Spokane employers beginning June 14, 2018 with penalties for violating the law beginning Jan. 1, 2019.
Additional information on the law can be found here.
Kansas City, Missouri Passes “Ban the Box Plus” Ordinance, Effective June 2018
On Feb. 1, 2018, the Kansas City, Missouri City Council passed a “ban the box” ordinance that restricts private-sector employer inquiries into current or prospective employees’ criminal records. The law mirrors a 2013 Kansas City Ordinance that imposes the same restrictions on Kansas City government employers. Notably, the Ordinance does not prohibit employers from making these inquiries altogether, but does postpone their allowance until after a prospective employee is deemed qualified for the position and has gone through the interview process. Exceptions exist where federal, state or local law make individuals with a criminal record per se ineligible for certain jobs. The law goes into effect on June 9, 2018.
Additional information on the law can be found here.
Federal Level Changes
2017 EE0-1 Reporting Deadline, March 2018
The Equal Employment Opportunity Commission is now accepting employer submissions of the Employer Information Report (“EE0-1”) for the year 2017. All private employers with more than 100 employees are required by federal law to file this report. The report provides a snapshot of employee data categorized by race, ethnicity, gender and job category for any given employer during the last quarter of the year. The deadline for submission is March 31, 2018.
The EEOC submission portal can be accessed here.
NLRB Overrules Joint-Employer Test
In late December 2017, the National Labor Relations Board (“NLRB”) overruled their own 2015 Obama-era ruling in the controversial Browning-Ferris decision which changed the understanding of “joint employment” under the National Labor Relations Act (“NLRA”). The effect of the December ruling is to return to the pre-Browning-Ferris definition of “joint employment.” This definition recognizes two or more entities as “joint employers” under the NLRA when one entity exercises direct and immediate control over the other entity’s employees in a way that is not limited or routine. This understanding is effective immediately and impacts both public and private sector employers and unions.
Additional information on the law can be found here.
Department of Labor Reinstates Previously Rescinded Wage & Hour Opinion Letters
On Jan. 5, 2018, the Wage & Hour Division of the U.S. Department of Labor (“DOL”) reissued 17 Bush-era advisory Opinion Letters that were rescinded during the Obama administration. DOL Opinion Letters provide often needed clarification on specific compliance questions posed by employers regarding the Fair Labor Standards Act (“FLSA”) and other federal employment laws. Although the Opinion Letters do not create new laws, they stand as the DOL’s official interpretation of applicable federal employment laws. Amongst other topics, these 17 reinstated Opinion Letters shed additional light on the salary basis test for exempt status under the Code of Federal Regulations (“CFR”), the compensability of on-call hours under the FLSA and the applicability of overtime rules to bonus pay under the FLSA.
The full list of DOL Opinion Letters can be found here.
New ERISA Disability Claims Procedure, Effective April 2018
On Dec. 19, 2016, the DOL issued final rules on the claims and review procedure for disability benefits plans under the Employees Retirement Income Security Act of 1974 (“ERISA”). The new rules modify the way that reviews and decisions regarding employee disability claims under ERISA are conducted. Specifically, the modifications include several new protections for claimants, including additional explanation requirements for denied claims more stringent notice requirements. Although these final rules focus on the role of advisors, they also impose compliance obligations on employers who sponsor 401(k) plans. The original Jan. 1, 2018 deadline has been postponed and the changes are now set to take effect on April 2, 2018.
More on the DOL’s final rule can be found here.
Important Court Cases
Ninth Circuit Rules that Student Interns are not Employees under the FLSA; DOL Agrees
On Dec. 18, 2017 in the case of Benjamin v. B&H Education, Inc., The Ninth Circuit joined several other Circuit courts and weighed in on the issue of whether interns should be considered employees and entitled to the protections of the FLSA, including minimum wage and overtime pay. Adopting the Second Circuit’s seven-factor test, the Ninth Circuit ruled that the students were not employees subject to wages. Instead, the interns were considered “primary beneficiaries of the educational program” for whom the FLSA should not be applicable. Soon after the Ninth Circuit decision, the DOL issued a press release explaining that it would adopt this “primary beneficiaries” test moving forward in determining the issue of whether interns are employees under the FLSA.
A summary of the Ninth Circuit decision can be read here, and the DOL Opinion Letter can be found here.
Massachusetts Supreme Court Rules Unused Sick Time Does Not Count as “Wages”
On Jan. 29, 2018, Massachusetts’s highest court ruled in Mui v. Massachusetts Port Authority that unused but accrued paid sick time does not qualify as “wages” under the Massachusetts Wage Act (“the Act”). In Mui, the plaintiff argued that he should be paid for his unused accrued paid sick time and that his employer’s failure to do so amounted to a violation of the Act. The Court rejected the plaintiff’s argument noting that the Act does not explicitly list sick leave as a type of “wage” under the Act. Relying on a plain reading of the Act, the Court ruled in the employer’s favor.
Additional information on the law can be found here.
California Court of Appeal Rules that WARN Act Applies to Temporary Layoffs
The California Court of Appeal, Fourth Appellate Division, recently broadened the scope of California’s Worker Adjustment Retraining Notification (“WARN”) Act to include temporary layoffs. In International Bhd. of Boilermakers, et al. v. NASSCO Holdings Inc., employees of NASSCO and their union sued NASSCO for failure to provide adequate warning prior to several weeks of furlough. In its decision, the Court decided that this separation from work did constitute a “mass layoff” under the terms of the WARN Act, thereby triggering a 60-date notice period when 50 or more employees experience a “layoff” during any 30-day period. The Court noted that there is no temporal limitation to the matter of layoffs, and that any significant separation from work or payment is covered under the WARN Act. Because NASSCO failed to provide sufficient warning to its employees prior to temporary separation, they were in violation of WARN Act. Thus, Court ruled in favor of the plaintiffs.
The full decision can be found here.
Feature & Television Collective Bargaining Agreements
SAG-AFTRA
In Dec. 2017, the SAG-AFTRA guild elected to divert 0.5 percent of the wage increase that would otherwise apply on July 1, 2018 to the contribution rate of the SAG Pension Plan and the AFTRA Retirement Fund.
SAG-AFTRA National Television Show Sheet
On Jan. 1, 2017, SAG-AFTRA released the latest version of its National Television Show Sheet. This document contains the National Television Show Listings which includes the production title, network, shooting location and the guild to which the contributions should be directed.
This National Television Show Sheet can be found here.
Recent & Upcoming Benefit Rate Increases
Rate Group 43 East Coast Benefits Increase
Effective March 25, 2018, Rate Group 43’s East Coast Agreement’s Pension Plan will increase from $4.073 per hour to $4.413 per hour. This increase effects Locals 600, 700, 52, 161 and 817 (Location Managers/Scouts). The contribution rate of the Active and Retiree Health Plans will remain at $8.415 per hour and $1.960 per hour, respectively.
New Reporting Code 47 for Teamsters Local 817
Starting Feb. 4, 2018, employers are required to use Code 47 to report contribution for covered Teamsters Local 817 employees (which include Drivers and Location Department employees). This new code change will have no impact on the contribution rates that are currently in effect. Please note that any contributions prior to Feb. 4, 2018 should continue to use Code 36.
If you have any questions, please email LaborRelations-Questions@castandcrew.com.
