UPDATE: DOL Issues Families First Coronavirus Response Act Guidance on Employer Coverage and Obligations to Provide Paid Sick and Family and Medical Leave

Jason E. Reisman and Taylor C. Morosco

Yesterday evening, the U.S. Department of Labor (“DOL”) published its first round of guidance on the Families First Coronavirus Response Act (“FFCRA”), which takes effect on April 1, 2020.[1]

The guidance—provided in a Fact Sheet for Employees, a Fact Sheet for Employers, and Questions and Answers—answered some of the high-level questions employers have been asking. This update summarizes several of those important answers. However, more guidance is needed and expected in the coming days.

What is the FFCRA?

COVID-19 legislation that contains two key paid leave acts—the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act.

In a nutshell, the Emergency Paid Sick Leave Act entitles employees to paid sick leave when they cannot work or telework due certain COVID-19-related circumstances affecting the employee or someone for whom the employee is caring.[2] The Emergency Family and Medical Leave Expansion Act provides paid leave for employees caring for a child due to school or childcare provider closures related to COVID-19. For an overview of both Acts, check out Blank Rome’s Update.

When is a business covered by FFCRA?

When a business employs fewer than 500 employees within the United States. Continue reading “UPDATE: DOL Issues Families First Coronavirus Response Act Guidance on Employer Coverage and Obligations to Provide Paid Sick and Family and Medical Leave”

Colorado Goes “Wage & Hour” Crazy—Enhances Employee Protections a la California

Jason E. Reisman and Alix L. Udelson

For all of those employers with employees based in Colorado, we wanted to update you on some sweeping changes to Colorado wage and hour laws that went into effect on March 16, 2020. As you know, employers generally must comply with both state and federal wage and hour laws—essentially meeting the requirements that are most protective of employees. To date in Colorado, the state law’s applicability has been limited—but that’s not going to be the case any longer.

The new law, known as the Colorado Overtime & Minimum Pay Standards (“COMPS”) Order #36, replaces all prior Colorado Minimum Wage Orders. The most significant changes include: (1) extending Colorado’s wage and hour laws to even more employers than before; (2) adjusting the salary thresholds required for eligibility under the federal overtime exemptions for executive, administrative, and professional employees; (3) changing employee rest period requirements and requiring meal periods; (4) clarifying the definition of “time worked” for purposes of being considered “compensable time”; (5) imposing new posting and distribution requirements that will require changes to employee handbooks; (6) creating new earnings statement requirements that may require payroll to update your earnings statements; and (7) modifying the calculation of overtime so that it is based not only on a weekly basis, but on a daily and consecutive hourly basis too. More details are below, and a copy of the COMPS Order can be found here. Continue reading “Colorado Goes “Wage & Hour” Crazy—Enhances Employee Protections a la California”

NEWS FLASH: The Ban Is Back! Philadelphia Employers Can’t Ask About Salary, Wage, and Benefits History

Thomas J. Szymanski

Effective immediately, Philadelphia employers are prohibited from asking job applicants about their salary, wage, and benefits history.

As a bit of background, in 2016, the Philadelphia City Council passed an ordinance banning salary, wage, and benefits history inquiries by employers (and also barring employers from setting a new hire’s initial pay based on their salary history), which was signed into law in January 2017. However, the ban on salary and wage history inquiries has been on ice since April 30, 2018, when it was enjoined by the United States District Court for the Eastern District of Pennsylvania. Today, the U.S. Court of Appeals for the Third Circuit dissolved the district court’s injunction; therefore, Philadelphia employers must immediately stop asking job applicants about their salary, wage, and benefits history. The Third Circuit also upheld the lawfulness of the ordinance’s bar on using salary history to set initial pay.

Please contact a member of Blank Rome’s Labor & Employment practice group if you have any questions about compliance with Philadelphia’s salary, wage, and benefits ban or any other employment issues.

As We Predicted, Challenges to NY Reproductive Health Decision-Making Law Have Begun

Stephen E. Tisman

In a December 17, 2019, Blank Rome Workplace post, we described the law enacted in New York expanding “protected status” to cover employee decision-making regarding reproductive rights matters. (See blankromeworkplace.com/2019/12/17/new-york-expands-discrimination-protection-to-reproductive-health-decision-making/). We concluded with the prediction that:

The law will undoubtedly be challenged by an employer claiming that providing such coverage violates the employer’s religious beliefs (think Masterpiece Cakeshop v. Colorado Civil Rights Commission). The ultimate fate of this statute will be resolved under federal First Amendment law.

That challenge has begun. On January 31, 2020, a lawsuit was filed in federal district court seeking a declaration that the statute is unconstitutional and void, and for an injunction to bar enforcing it against the plaintiffs. Christopher T. Slattery, et al. v. Andrew M. Cuomo, et al., U.S.D.C., N.D.N.Y., Case No. 5:00-at-99999.

Stay tuned for developments.

Breaking: California Grants Preliminarily Injunction of AB-51

Caroline Powell Donelan

UPDATE: Today, a federal court preliminarily enjoined the enforcement of AB-51 (California’s anti-arbitration law discussed here, here, and here) as it relates to arbitration agreements governed by the Federal Arbitration Association (“FAA”). We will get a detailed order from the court soon, but the minute order issued today is below. A great reminder to employers who wish to implement arbitration that the agreement should always expressly state it is governed by the FAA. Continue reading “Breaking: California Grants Preliminarily Injunction of AB-51”

No New York Employee Wage Liens—Yet!

Stephen E. Tisman

In July, we reported that the New York State Legislature had passed a bill that could substantially alter the legal landscape of wage disputes by allowing employees with wage claims to file liens against their employers’ assets in the amount of the claim. The lien could be filed without any court order or determination of probable liability. The bill further permitted attachments of the employer’s property and would have expanded the personal liability of the 10 largest shareholders of non-public companies by making them liable not only for wages, but also for interest, penalties, liquidated damages, attorneys’ fees, and costs.

On January 1, 2020, anxious employers got a reprieve—albeit a temporary one—when Governor Cuomo vetoed the legislation. Continue reading “No New York Employee Wage Liens—Yet!”

Salary History Ban Spreads—New Jersey and New York Jump on Board!

Alix L. Udelson

New Jersey and New York are the latest states to prohibit employers from asking job applicants about their pay history and considering pay information in making employment decisions.

New Jersey

In New Jersey, effective January 1, 2020, private employers cannot screen applicants based on their pay history. Employers also cannot require an applicant’s salary history satisfy a certain minimum or maximum criteria. Employers may not consider an applicant’s refusal to provide compensation information in making an employment decision.

There are several noteworthy exceptions and limitations to this law. Continue reading “Salary History Ban Spreads—New Jersey and New York Jump on Board!”