ALERT! PA Increases White Collar Exemption Salary Thresholds

Jason E. Reisman

Finally, the Pennsylvania Department of Labor and Industry (“Department”) formalized its leap to modernize and streamline its regulation governing the executive, administrative, and professional (“EAP”) exemptions (and the outside sales exemption) from the minimum wage and overtime requirements of the Pennsylvania Minimum Wage Act. To confirm, yes, the Commonwealth is leaving the U.S. Department of Labor’s recent rule in the dust! See our last blog post on this from February here, as well as the ones from July 2018 and January 2018.

Although the Department took great pains to better—but not fully—align its requirements with those under the Fair Labor Standards Act (“FLSA”), the hallmarks of this new regulation are the new salary threshold increases:

      • $35,568 ($684 per week) effective 10/3/2020 (which matches the FLSA threshold that was effective 1/1/2020—see our prior post here);
      • $40,560 ($780 per week) effective 10/3/2021;
      • $45,500 ($875 per week) effective 10/3/2022; and
      • On 10/3/2023, and every third year thereafter, the minimum salary will change to match the 10th percentile of wages for Pennsylvania workers who work in exempt EAP positions.

Continue reading “ALERT! PA Increases White Collar Exemption Salary Thresholds”

New York City Matches New York State’s Sick Leave Requirements, and Adds More

Jacob W.E. KearneyStephen E. TismanAnthony A. Mingione, and Mara B. Levin

New York City recently amended its Earned Safe and Sick Time Act (the “Act”) to match New York State’s recent changes to the Labor Law requiring all employers to provide sick leave to employees as discussed in our prior posts (Empire State Requires All Employers to Provide Sick Leave; Act Now! Changes to New York Sick Leave Are Here). New York City’s Act now matches the New York State requirements that employers must allow employees to accrue safe/sick time of between 40 to 56 hours per year (depending on employer size and net income). Although effective September 30, employees may be restricted from using any additional accrued paid time under the new legislation until January 1, 2021. New York City employers are also required to provide notice of the changes to their employees by October 30, 2020.

Mirroring the new Labor Law requirements, the New York City Act provides that:

    • Employers with 100 or more employees must allow employees to accrue at least 56 hours of paid safe/sick time each calendar year;
    • Employers with between five and 99 employees must allow employees to accrue at least 40 hours of paid safe/sick time each calendar year;
    • Employers with fewer than five employees but having a net income greater than one million dollars in the previous tax year must allow employees to accrue at least 40 hours of paid safe/sick time each calendar year; and
    • Employers with fewer than five employees and having a net income less than one million dollars in the previous tax year must allow employees to accrue at least 40 hours of unpaid safe/sick time each calendar year.

Continue reading “New York City Matches New York State’s Sick Leave Requirements, and Adds More”

Act Now! Changes to New York Sick Leave Are Here

Jacob W.E. Kearney, Stephen E. Tisman, Mara B. Levin, and Anthony A. Mingione

New York State’s amendments to its Labor Law requiring all employers to provide sick leave to employees are effective on Wednesday, September 30, 2020. Signed into law by Governor Cuomo in April as part of the State Budget (Senate Bill S7506B), our prior post detailed that the new amendments require employers to provide between 40 and 56 hours of guaranteed sick leave depending on employer size and net income. Starting Wednesday, covered employees will be entitled to accrue sick leave although the employees may be restricted from using that accrued leave until January 1, 2021.

Under New York’s Labor Law’s new requirements:

      • Employers with 100 or more employees must allow employees to accrue at least 56 hours of paid sick leave each calendar year;
      • Employers with between five and 99 employees must allow employees to accrue at least 40 hours of paid sick leave each calendar year;
      • Employers with fewer than five employees but having a net income greater than one million dollars in the previous tax year must allow employees to accrue at least 40 hours of paid sick leave each calendar year; and
      • Employers with fewer than five employees but having a net income less than one million dollars in the previous tax year must allow employees to accrue at least 40 hours of unpaid sick leave each calendar year.

Continue reading “Act Now! Changes to New York Sick Leave Are Here”

Trump Administration Bans Contractors from Providing Certain Types of Diversity Training

Brooke T. Iley, Dominique L. Casimir, and Tjasse L. Fritz







On Tuesday evening, the Trump administration surprised the federal contracting community by issuing an Executive Order (“EO”) titled “Combating Race and Sex Stereotyping” that will ban federal contractors from conducting certain types of anti-discrimination training. In particular, the EO prohibits workplace racial sensitivity and diversity and inclusion (“D&I”) training programs that contain so-called “divisive content,” defined in the EO as instilling a belief in the existence of systemic racism and inherent bias. The EO expands an earlier ban issued in a September 4, 2020, memorandum that prohibits certain anti-discrimination training from being conducted within federal agencies.

The EO comes on the heels of a widespread social and racial justice movement that dominated much of the summer of 2020, in response to which corporate America has taken a stand, with companies pledging millions to social justice reform movements. An overwhelming number of employers either have offered or plan to offer some form of diversity training to their employees. This latest EO leaves many federal contractors and subcontractors wondering whether and how to proceed, and what penalties they may face if they offer such training. Continue reading “Trump Administration Bans Contractors from Providing Certain Types of Diversity Training”

Philly’s Salary History Ban to Be Enforced Starting in September

Asima J. Ahmad

As outlined in a previous post, the Philadelphia Wage Equity Ordinance is back in play. And now that the litigation dust has settled, the city announced that the Philadelphia Commission on Human Relations (“PCHR”) will begin enforcing the ordinance on September 1, 2020.

As a reminder, the Ordinance prohibits all employers, employment agencies, or their agents from asking about a job applicant’s current or prior salary history during the application or hiring process if the position is located in Philadelphia. Shortly after the salary history ban was announced, the Chamber of Commerce for Greater Philadelphia sued to block it from going into effect on free speech grounds. The case proceeded to the Third Circuit, which ultimately held that the ordinance was constitutional in a unanimous decision issued this February.

The PCHR recently issued a set of FAQs which provide some useful information for employers, including whether the ordinance applies to internal candidates (no), whether an employer can rely on market data for salaries (yes), and whether an employer can ask a job applicant about their salary expectations (yes, but employers should not ask candidates if their salary “expectation” is tied to their current or prior salary history). The FAQs also outline suggested best practices for compliance, including:

    • Focusing questions on the applicant’s salary demands, experience, skills, and qualifications during the interview process;
    • Establishing salary ranges or pay scales for open positions;
    • Creating or modifying written policies to reflect compliance with the ordinance;
    • Training interviewers, hiring staff, and other applicable staff regarding compliance;
    • Refraining from seeking prior salary history from other sources, including a former employer or public records;
    • Instructing background reporting agencies to exclude information found regarding an applicant’s salary history; and
    • Developing protocols for discarding or isolating salary information that employers inadvertently receive but are prohibited from considering.

Job applicants who are asked about their salary history in violation of the ordinance can file a complaint with the PCHR and may be awarded compensatory damages, punitive damages, reasonable attorneys’ fees, costs, injunctive relief, or other relief. Employers are prohibited from retaliating against applicants who refuse to provide their salary history.

We recommend contacting a member of Blank Rome’s Labor & Employment team as soon as possible to ensure that your hiring process and practices follow the ordinance’s requirements, and that your staff understands the do’s and don’ts of the new law. We are happy to answer any questions about compliance or updating your policies and procedures, or to schedule a training.

No More Double the Trouble: DOL Relents on “Automatic” Liquidated Damages

Jason E. Reisman

After enduring a decade or so of the U.S. Department of Labor (“DOL”) “automatically” demanding double the amount of back pay in virtually every settlement of a wage and hour investigation under the Fair Labor Standards Act (“FLSA”), employers around the country can now breathe a heavy sigh of relief. In a Field Assistance Bulletin (“FAB”) dated June 24, 2020, the DOL said it “will no longer pursue pre-litigation liquidated damages as its default policy from employers in addition to any back wages found due in its administratively resolved investigations.”

First, it is somewhat amazing that the DOL admitted that liquidated damages was its “default policy.” While the FLSA clearly allows the recovery of liquidated damages in an amount equal to 100 percent of the back wages due, nowhere does the statute authorize the DOL to impose such damages in an investigation. Though arguably beyond the DOL’s authority in pre-litigation proceedings—that good old ultra vires concept—the lack of explicit statutory authority did not stop the agency from imposing liquidated damages in nearly every case without regard to whether any evidence of bad faith or willfulness existed. Not only did the DOL impose them as a penalty, but it also leveraged the threat of litigation to “persuade” employers to settle and accept the imposition of liquidated damages—remember, it almost never makes sense to fight the government in litigation, as it can outspend just about anyone, while doing so using “your” tax money.

Now, according to the FAB, effective July 1, 2020, the DOL will not assess these double damages if, for example, there is no evidence of bad faith or willfulness or the employer has no previous history of violations or the matter involves complex “white collar” exemption issues. Importantly, seeking pre-litigation damages will require approval from two top DOL officials: the Wage & Hour Division Administrator and the Solicitor of Labor. More hurdles for the DOL—a plus for employers doing their best to comply with a complex, nuanced, and at times tedious statute and regulations.

But, alas, this “practice” change may be short-lived if a new administration takes the White House in 2021. Stay tuned and enjoy it while it lasts!

“Supremes” Validate Title VII Protection for LGBTQ Workers

Jason E. Reisman     

Yesterday, the United States Supreme Court issued a long-awaited, watershed decision confirming that Title VII of the Civil Rights Act of 1964 does protect against discrimination in employment based on gender identity and sexual orientation. It may be the most significant employment-related decision in more than 20 years. The decision addresses a connected trio of separate cases that were argued in the fall before the Court: Bostock v. Clayton County, Georgia (on appeal from the 11th Circuit), Altitude Express, Inc. v. Zarda (on appeal from the 2d Circuit), and R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC (on appeal from the 6th Circuit). For a little background, see our prior blog here.

With a 6-3 majority, the four “liberal” justices joined with two “conservative” justices to reach this momentous decision—in fact, Justice Gorsuch penned the decision. Clearly finding that the word “sex” in Title VII encompasses employment actions based on gender identity or sexual orientation, Justice Gorsuch admitted that the original legislators who drafted Title VII “might not have anticipated their work would lead to this particular result.” The focus on interpreting the text of the law, which was often championed by the late Justice Antonin Scalia, carried the day—leading to “new” protections that will enhance the rights of the LGBTQ worker community throughout the country, especially in numerous states and locales that do not otherwise provide such protection. The decision also ensures that the “paradoxical legal landscape in which a person can be married [to a same sex partner] on Saturday and then fired on Monday for just that act” (raised in 2017, by a panel of the Seventh Circuit Court of Appeals in Hively v. Ivy Tech. Community College) has drifted off into the sunset.

Simply put, the Supreme Court said, “Because discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex, an employer who intentionally penalizes an employee for being homosexual or transgender also violates Title VII.”

For employers across the country, the uniformity created by this decision will impact millions of workers in states where there was no similar protection for such discrimination—which is more than 50 percent of the states. There is much to consider. For example, if an employer employs 15 or more employees and does not have a policy prohibiting gender identity and sexual orientation discrimination, it is time for a handbook update…as the immediate first step, with a corresponding move to update and implement new workforce training. As important, employers should take this valuable opportunity to engage with all employees. Be mindful of, and creative in, bringing positive and productive communication and, where needed, change to the workplace—culture emanates from the top and cannot be overestimated as to its impact on the effectiveness and health of the workforce.

It is inevitable that there will be additional questions as this decision filters out into the workplace and the lower courts interpret it. Cases down the line will likely force the courts to address issues relating to the interplay of this decision with the exercise of religious freedom.  Also, as the dissent from Justice Alito noted, the ruling could have unforeseen consequences, leaving courts to address its implications in athletics, bathroom and locker room access, university housing, and other contexts. Though undoubtedly putting to bed one of the most substantive issues in employment law in the 21st century so far, as with all significant decisions of the highest court, the ripple effects will engender further battles and be felt for decades to come.

Empire State Requires All Employers to Provide Sick Leave

Mara B. Levin, Anthony A. Mingione, and Jacob W.E. Kearney

Late last month, Governor Cuomo signed into law the State Budget (S7506B), which includes new paid and unpaid sick leave requirements for employers in New York State. The law requires that all employers provide workers with job-protected sick leave, with the amount of leave dependent upon the employer’s size, number of employees, and net income. The law goes into effect September 30, 2020, but employers can prohibit the use of sick leave accrued under the law until January 1, 2021.

The law requires:

  • Employers with 100 or more employees must provide at least 56 hours of paid sick leave each calendar year;
  • Employers with between five and 99 employees must provide at least 40 hours of paid sick leave each calendar year;
  • Employers with fewer than five employees but having a net income greater than one million dollars in the previous tax year must provide at least 40 hours of paid sick leave each calendar year; and
  • Employers with fewer than five employees but having a net income less than one million dollars in the previous tax year must provide at least 40 hours of unpaid sick leave each calendar year.

Employers can fulfill their obligations by either providing the sick leave in a lump sum at the beginning of the calendar year (i.e., frontloading it) or by allowing employees to accrue sick leave at a rate of not less than one hour for every 30 hours worked, beginning at the later of September 30, 2020, or the commencement of  employment. While current employees will begin accruing sick leave in 2020, employers are not required to permit usage of that accrued time until January 2021. Employees must be allowed to carry unused sick leave over to the next calendar year, but employers can restrict the use of sick leave to the maximum hours guaranteed under the law (either 40 or 56). The carryover of hours is intended to allow employees to maintain continuity and a bank of sick leave, which avoids accruals starting from zero every year; and the cap is meant to keep the total usage in a given year from being problematic for employers. Employers are not, however, required by the law to pay an employee for unused sick leave upon the employee’s termination, resignation, retirement, or other separation from employment.

The law’s requirements act as a floor, and employers can provide employees with additional benefits and sick leave in excess of the law’s requirements.  Significantly, the sick leave requirements in S7506B are not limited to the COVID-19 pandemic but rather are permanent.

Another Round for the Garden State! New Jersey Again Changes Leave and Disability Benefits for COVID-19 Impacted Employees

Thomas J. Szymanski

New Jersey Governor Phil Murphy recently signed S2374 into law, expanding the New Jersey Family Leave Act (“NJFLA”) and New Jersey Temporary Disability Benefits Law (“NJTDBL”) and providing additional employee protections during the coronavirus COVID-19 pandemic and future epidemics, including (1) the expansion of reasons for leave; (2) certification changes; (3) intermittent use of such leave; (4) changes related to highly compensated employees; and (5) the expansion of the scope of compensable leave under NJTDBL. These changes are effective immediately and apply retroactively to March 25, 2020.

NJFLA—Expanded Reasons for Leave

During a state of emergency declared by the Governor, or when indicated to be needed by the Commissioner of Health or other public health authority, due to “an epidemic of a communicable disease, a known or suspected exposure to the communicable disease, or efforts to prevent spread of a communicable disease,” an employee may use NJFLA leave for the following new reasons:

    1. Childcare—to care for a child due to a school or daycare closure;
    2. Mandatory quarantine— to care for a family member subject to mandatory quarantine; and
    3. Voluntary self-quarantine—to care for a family member whose doctor recommends a voluntary self-quarantine.

Continue reading “Another Round for the Garden State! New Jersey Again Changes Leave and Disability Benefits for COVID-19 Impacted Employees”

Understanding Paid Sick Leave and Family Leave in New York Following the Enactment of Families First Coronavirus Response Act

Christopher Cody Wilcoxson, Anthony A. Mingione, and Mark Blondman

On Wednesday, March 18, 2020, Governor Cuomo signed Senate Bill 8091 (the “NY Act”) providing coronavirus COVID-19 relief for affected employees. Blank Rome’s Coronavirus Task Force covered the immediate enactment on our Blank Rome Workplace Blog. The NY Act provides sick leave and benefits that are in excess of those provided by the Families First Coronavirus Response Act (“FFCRA”), which President Donald Trump signed into law on the same day. Blank Rome’s Coronavirus Task Force detailed the FFCRA when it was enacted; and provided updated guidance on March 25, 2020.

Employers in New York are required to comply with both the NY Act and the FFCRA and must determine whether any benefits in excess of those provided by FFCRA are required. This update summarizes several of the key differences between the New York and federal benefits.

What Employers Are Covered?

NY ACT: All employers are subject to the NY Act; however, benefits vary based on the size and net income of the employer.

FFCRA: Only businesses with fewer than 500 employees within the United States are subject to the FFCRA. Continue reading “Understanding Paid Sick Leave and Family Leave in New York Following the Enactment of Families First Coronavirus Response Act”