Category: Wage and hour advice and litigation

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

Jacob W.E. Kearney, Stephen E. Tisman, Anthony 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”

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!

City of LA Publishes Rules and Regulations Clarifying COVID-19 Supplemental Paid Sick Leave Order

Caitlin I. Sanders

As we previously reported, on April 7, 2020, Los Angeles City Mayor Garcetti issued an emergency order calling for supplemental paid sick leave for City employees who are not covered by the federal Families First Coronavirus Response Act and who must miss work for reasons related to COVID-19. On April 11, 2020, the Los Angeles Office of Wage Standards (“OWS”) issued rules and regulations clarifying Mayor Garcetti’s supplemental paid sick leave order. The rules and regulations can be found on the OWS website here.

The OWS anticipates updating these rules and regulations, and we will continue to monitor the OWS for the latest guidance.

For the latest updates, please visit Blank Rome’s Coronavirus (“COVID-19”) Task Force page.

Emergency COVID-19 Order Issued in City of Los Angeles: Additional Paid Sick Leave Requirements for Large LA Employers

Caitlin I. Sanders

On April 7, 2020, Los Angeles City Mayor Eric Garcetti issued an Emergency Order requiring certain employers to provide up to 80 hours of supplemental paid sick leave to employees who are not covered by the federal Families First Coronavirus Response Act for reasons related to COVID-19. The Emergency Order can be found on Mayor Garcetti’s website here.

Here are the basic provisions of Mayor Garcetti’s COVID-19 Supplemental Paid Leave Order (“Order”):

Who Is Covered by the Supplemental Paid Sick Leave Order?

Employers with 500 or more employees within the City of Los Angeles or 2,000 or more employees nationally may be required to provide supplemental paid sick leave to employees who are unable to work or telework if they meet the following criteria: (i) they have worked for the same employer from February 3, 2020, through March 4, 2020, and (ii) they perform work in the City of Los Angeles.

Emergency and health services, parcel delivery services, and government agency employees are expressly exempt from the Order. Continue reading “Emergency COVID-19 Order Issued in City of Los Angeles: Additional Paid Sick Leave Requirements for Large LA Employers”

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”

Uncharted Territory: Restaurant Survival Guidance Amid COVID-19 Pandemic

Alix L. Udelson

Across the United States, everyday life is being upended by the coronavirus COVID-19 pandemic. Due to a combination of strong advice from health officials for all Americans to practice social distancing measures, and similar laws and directives from state and local governments, businesses are being forced or called upon to shutter their doors for the foreseeable future. The restaurant industry—an industry especially dependent on daily cash flow and known for operating on low profit margins—is on the front line of this crisis, directly and instantaneously feeling the widespread ramifications of the current crisis.

In this unprecedented time, restaurants are looking to creative solutions to help blunt the impact of this pandemic on their businesses, employees, and communities. Continue reading “Uncharted Territory: Restaurant Survival Guidance Amid COVID-19 Pandemic”

Coronavirus Update: Senate Passes Virus Relief Bill, Plans for Even Bigger Stimulus

Jason E. Reisman and Andrew I. Herman

The Senate cleared the second major bill responding to the coronavirus pandemic, with lawmakers rushing to follow up with an additional economic rescue package that President Donald Trump’s administration estimates will cost $1.3 trillion. The 90-8 vote Wednesday, following House passage on Saturday, sends Trump a measure providing paid sick leave, food assistance for vulnerable populations and financial help for coronavirus testing. As the Senate voted, Republican and Democratic leaders were already working on the next proposal.

For the latest updates, please visit Blank Rome’s Coronavirus (“COVID-19”) Task Force page. 

Coronavirus Update: House Passes Bill for Paid Leave and Other Emergency Relief

Jason E. Reisman and Andrew I. Herman

On March 14, 2020, the U.S. House of Representatives passed legislation in response to the increasing disruption that coronavirus (“COVID-19”) is having on businesses and daily life. The Emergency Families First Coronavirus Response Act (H.R. 6201) includes several measures to address the significant impact of COVID-19 on employment for American workers and their families, including provisions for emergency paid leave and sick time, as well as funds and support for state unemployment compensation programs. To protect against the creation of “permanent” paid leave benefits and limit it to addressing the COVID-19 impact, this bill sunsets at the end of 2020.

On March 16, 2020, the House passed a “technical corrections” bill by unanimous consent, which included changes intended to address concerns that the legislation’s provisions for emergency paid leave and sick time would be devastating to small and midsize businesses.  

THE EMERGENCY FAMILY AND MEDICAL LEAVE ACT

The bill amends the Family and Medical Leave Act (“FMLA”) to provide employees of employers with fewer than 500 employees with the ability to take up to 12 weeks of job-protected leave on a partially paid basis under the FMLA if the employee is unable to work (or telework) due to a need to care for a child due to the closure of a school or place of care, or a childcare provider is unavailable, because of COVID-19 public health emergency.

Who is eligible for COVID-19 leave?

Any employee who has been employed for at least 30 calendar days by an employer with fewer than 500 employees. There is no minimum hours threshold like the normal FMLA eligibility requirement that an employee have worked at least 1,250 hours over the preceding 12 months.

How much must an employee be paid for COVID-19 leave?

The first 10 days of COVID-19 leave is unpaid. An employee can choose to use vacation or other paid time off during this period. A provision restricting employers from requiring employees to do so was removed in the bill’s “technical corrections.”

Employers must pay two-thirds of an employee’s regular rate of pay after the first 10 days of COVID-19 leave, but such pay is not to exceed $200 per day or $10,000 in the aggregate.

Please click here for the full client alert. 

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”