DOL OT Rule Going Away? Don’t count your chickens… .

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In a new development, 21 states and many business groups are requesting that the Texas court enjoin implementation of the new DOL overtime exemption rules.  As far as their chance of success, at least in the near term, it is not good.

Reports are that both cases have been assigned to Judge Amos Mazzant, who was nominated by President Barack Obama in 2014. It has been suggested that this assignment may not bode well for the plaintiffs.  Theoretically, prospects may improve if the lower court decision is taken up on appeal to the Fifth Circuit.

The states are claiming that the DOL overstepped by raising the salary level for what should be exempt duties–regardless of salary. Moreover, the plaintiffs allege that the automatic indexing that raises the threshold salary over three years is an overreach of authority and should include provisions for economic conditions or the effect on resources.

Our view is that we all stay the course, and continue compliance efforts. With the compliance date of December 1 so close, it would be risky to leave the fate your workplace with the courts. In the meantime we will closely monitor this case and if the courts stop implementation, that will be a wonderful surprise.

EMPLOYMENT LAW ALERT: Less than 3 months to comply with overtime rules

Why all the hype

  • The long-awaited and much-debated “White Collar” regulations issued on May 18, 2016, become effective December 1, 2016 – your compliance deadline.
  • The DOL has already set up field offices in every state and is conducting random audits. The fines associated with these audits are high. In addition to unpaid overtime, misclassification of employees can result in liquidated damages, equitable relief, and reimbursement of attorneys’ fees.
  • The risk is not limited to the FLSA. Each state has its own unique employment laws. Some of these laws are consistent with the FLSA, others are not. State agencies and Attorney Generals’ Offices also conduct audits and initiate lawsuits, compounding the risk to employers.
  • The new overtime regulations have given every employer the perfect opportunity to not only reclassify positions impacted by the new salary levels, but to correct positions that were improperly classified as exempt from the start. This is a unique and limited opportunity.

Do I need a lawyer?

  • In the event of a lawsuit, internal audits of exempt/non-exempt classifications can be used as evidence of a willful violation of the FLSA, which lengthens the statute of limitations from two to three years. The strongest protection is the careful use of the attorney-client privilege to protect the audit itself. Engaging human resources staff or consultants or even in-house counsel to conduct the audit will not allow the company to avail itself of the attorney-client privilege. By retaining outside counsel to perform this service, all findings are protected by Attorney-Client privilege.
  • This is an exceptional chance to obtain an indemnified legal opinion that all the jobs in your workplace are accurately classified as exempt or non-exempt, under both state and federal law.

We Get It!

  • That is why we developed our 2016 Positions Classification Service and charge a fixed/flat fee for that service.
  • Getting started is very easy.
  • We provide your team the forms, checklists and worksheets that will carefully guide you through the classification process.
  • We will review the forms, checklists and documents that you provide us to insure exempt positions comply with state and federal law.
  • You can relax knowing that you have well-written job descriptions and that each employee is correctly classified and being compensated under the pertinent state and federal laws.

Introducing Our Service:

Introducing Our New Lawyer

Speaking of help, we are very proud and excited to introduce Attorney Julie Fletcher to our practice. Prior to joining Foley & Foley, Julie worked in the areas of immigration and employment law for several years at national law firms in Boston. Check out her bio.

Closing Thoughts

The United States Department of Labor has been on a roll, impacting wages, job classifications, the FMLA and Affirmative Action Compliance for Federal Contractors, just to name a few of their recent initiatives.

Please let us know how we can help your team better manage employment law compliance and HR-related risk.

CONTACT US 508-548-4888 or mike@foleylawpractice.com

We can help.


© 2016 FOLEY & FOLEY, PC, ALL RIGHTS RESERVED

Sick of Sick Time? If you have remote or traveling employees, be prepared to get sicker.

 

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Five states, 27 cities, and one county across the United State have paid sick time laws on the books.  For some employers, determining whether they must comply with the sick leave law will be simple.  For employers with a traveling or remote workforce, the determination is quite a bit more complex, and represents a trap for the unwary.

 

Below is a breakdown of the states, cities and county that mandate paid sick leave as well as the employers that need to comply. In many cases, it does not matter how many employees the employer actually has working in the city or state.  Instead, the laws look to the overall employer size and the number of hours the employee works in the city or state.

 

STATE LAWS

 

Massachusetts

Under the Massachusetts Earned Sick Time law, all employers, regardless of their size, must provide sick leave to employees.  Employers with 11 or more employees must provide paid sick leave, and employers with fewer than 11 employees must provide unpaid sick leave.

If an employer maintained an average of 11 or more employees on the payroll during the preceding calendar year, the sick leave must be paid. All full-time, part-time, seasonal and temporary employees must be counted, including employees who work outside of Massachusetts.  Even temporary employees provided by a staffing agency are counted as employees of both the employer and the staffing agency for purposes of determining whether the employer maintained an average of 11 or more employees.

 

Connecticut

Connecticut’s Paid Sick Leave Act, requires certain employers with 50 or more employees in Connecticut to provide 40 hours of paid sick leave per year to service workers.

 

California

The Healthy Workplace Healthy Family Act applies to any employee who has worked in California for the same employer for 30 or more days within a year from the beginning of his/her employment, even if the employee is a non-resident and/or the company is headquartered out of state.  This means that any employer who has even one employee who works for more than 30 days within a year in California must provide paid sick leave.

 

Oregon

Oregon’s Sick Leave Act applies to employers with 10 or more employees in Oregon (6 or more employees for employers located in Portland). Employers with less than 10 employees (less than 6 for employers located in Portland) must provide up to 40 hours of unpaid protected sick time.         

 

Vermont

Vermont’s Sick Leave Law will go into effect for most employers in Vermont on January 1, 2017.  Employers with five or fewer employees who are employed for an average of at least 30 hours per week do not have to comply with the new law until January 1, 2018.

The law applies to any employer doing business in or operating within Vermont.  This means that any employer with employees in Vermont will be responsible for complying with the law, regardless of where the employer is headquartered.

 

COUNTY ORDINANCE

 

Montgomery County, Maryland

Under the Montgomery County Sick Leave Law, any employer operating and doing business in the County that employs 1 or more persons within the country in addition to the owners must provide earned sick and safe leave to each employee for work performed in the County.

 

CITY ORDINANCES

 

New York City, NY

Employers located outside New York City must provide sick leave to employees who work more than 80 hours per calendar year in New York City. Employers with five or more employees who work more than 80 hours per calendar year in New York City must provide paid sick leave to employees who work in New York City. Employers with one to four employees who work more than 80 hours per calendar year in New York City must provide unpaid sick leave.

 

Newark, Passaic, East Orange, Paterson, Irvington, Trenton, Montclair, Bloomfield, Jersey City, Elizabeth, Plainfield

Under the New Jersey cities’ various sick leave ordinances, workers employed in the relevant city (Newark, Passaic, East Orange, Paterson, Irvington, Trenton, Montclair, Bloomfield, Jersey City, Elizabeth, or Plainfield) for at least 80 hours in a year must be provided with paid sick leave.

 

 

 

Philadelphia, PA

Under Philadelphia’s Promoting Healthy Families and Workplaces Law, any employer that employs at least 10 employees (including full-time, part-time, or temporary employees) for more than 40 weeks a year is obligated to provide paid sick leave.  All chain establishments—those with 15 or more establishments doing business under the same trade name—are also required to provide paid sick leave regardless of the number of  employees they have at the establishments in Philadelphia.

 

*Pittsburgh, PA

This ordinance is currently ineffective due to a judge’s ruling that blocked implementation.  The matter is now before an Appeals Court, but the law remains ineffective pending the appeal.  Under Pittsburgh’s Paid Sick Days Act, any employer that is situated or does business in Pittsburgh, and employs one or more persons in exchange for any form of compensation, is required to provide paid sick leave.

 

Washington, D.C.

The D.C. Accrued Sick and Safe Leave Act of 2008 (SSLA) applies to employers of any size with any employees in D.C. Only employees working in D.C. are counted for the purpose of determining how many sick days must be provided. An employee works in D.C. when:

  • he or she spends more than 50 percent of his or her working time in D.C.; or
  • his or her employment is based in D.C., he or she regularly spends a substantial amount of his or her work time in D.C., andhe or she does not spend more than 50 percent of his or her work time working in any particular state.

 

Chicago, IL

Beginning July 2017, all employees who work at least 80 hours within any 120-day period for an employer that maintains a business facility within the city of Chicago or that is subject to city licensing requirements are entitled to sick leave, regardless of the number of persons the employer employs. In other words, the paid sick leave requirement will apply to most employees in the city of Chicago.

 

Minneapolis, MN

The Paid Sick and Safe Time Ordinance for the City of Minneapolis will be effective July 1, 2017.  Under the ordinance, employers with six or more employees must provide paid sick and safe time, while smaller employers must at least provide unpaid leave. The Ordinance applies to private employers of all sizes, including employers with only one employee, as long one employee works within Minneapolis city limits.

 

Los Angeles, CA

With some limited exceptions, the Ordinance applies to all employees who work two or more hours during a particular week in the City of Los Angeles.

 

 

San Francisco/Oakland/Emeryville, CA (these laws are grouped together because they are almost identical)

Both the San Francisco and Oakland ordinances define employees as anyone working within the geographic boundaries of the respective cities, including part-time and temporary workers. Accrual caps are dependent on the size of the employer.  The size of the employer is based on the total number of employees within the company NOT the total number of employees within geographic boundaries of the city.

 

San Diego, CA

All employers regardless of size must comply with the ordinance. All employees who perform at least two hours of work in the City in one or more calendar weeks of the year are entitled to paid sick leave.

 

Santa Monica, CA

All employers regardless of size must comply with the ordinance. Any employee who works at least two hours in the City in a particular week is entitled to paid sick leave.

 

Seattle, WA

All employers who employ more than four full-time employees (in any city or state) and have at least one employee who performs work within the City of Seattle must comply with Seattle’s Sick/Safe Leave law.

 

Tacoma, WA

Every private sector employer that employs at least one employee is covered by the ordinance. All employees who work within the geographic boundaries of Tacoma are covered, including temporary and part-time employees. Employees who work in Tacoma only occasionally are covered by the ordinance if they perform more than 80 hours of work in Tacoma in a calendar year.

 

Spokane, WA

The ordinance provides paid sick and safe leave to employees performing more than 240 hours of work physically in the city of Spokane in a calendar year.

 

Questions?  We can help. 

Pay Equity in Massachusetts – What Employers Need to Know Before the New Law Takes Effect July 1, 2018  

 

Here’s What We Know:

  • It is no secret that there is still a workplace wage gap between the genders.
  • Prior to the passage of certain laws a little over five decades ago, female employees working full-time were earning on average only about sixty percent (60%) of the amount earned by their male counterparts.
  • Progress has been made in closing the pay gap.
  • According to the Economic Policy Institute, women are taking home 83 cents for every dollar earned by men.
  • According to the Federal Department of Labor, pay equity for younger workers is near parity.
  • Today, in Massachusetts, employees who believe that they are underpaid on the basis of their gender currently have recourse to four statutes when seeking relief:
    • The Federal Equal Pay Act (“FEPA”);
    • Title VII of the Civil Right Act of 1964 (“Title VII”);
    • The Massachusetts Equal Pay Act (“MEPA”); and
    • Chapter 151B of the General Laws of Massachusetts (“151B”).
  • The National Labor Relations Act governs most private sector employers in the Commonwealth and throughout the country. That law makes it abundantly clear that employees have the right to engage in protected concerted activity. That means that no employer is allowed to retaliate against, discipline or terminate an employee who discusses how much money they make or how much money someone else makes.
  • Here is the bottom line: For decades, it has been illegal in the United States for an employer to discriminate against women, including discrimination against women in terms of compensation.

 

What Will Change When The New Law Goes Into Effect On 7/1/18:

  • The current Massachusetts Equal Pay Act (“MEPA”) requires employers to provide “equal pay” for “equal work.” The new law prohibits differences in pay for “comparable work,” which is defined as solely meaning “work that is substantially similar in that it requires substantially similar skill, effort and responsibility and is performed under similar working conditions.”
  •  Unfortunately, we will have another vague term that creates an ambiguous standard that will expand employers’ obligations to insure equal pay within it workplace.
  • The current practice of assessing pay equity within job titles and job descriptions must now expand across different jobs to meet the “comparable work” standard.
  •  Wage Disclosure Restriction – The law will prohibit employers from requiring an applicant’s compensation history prior to making a job offer that includes pay/compensation. However, applicants can voluntarily disclose wage history and job applications should note that providing pay history information is voluntary. Make no mistake – the new law does not govern or in any way restrict conversations within the recruitment process related to portable business. Such as: how many clients do you currently work with? How many of those clients are likely to follow you? How much revenue do you expect those clients to generate if they follow you and you land here? Tell us about how you create and maintain your contact network, including the number and types of contacts you have within our industry?
  • We also know that conversations in the workplace about pay are protected.

 

How Can Employers Avoid Liability:

  • Wage differentials between employees of opposite genders must be based upon one of the following factors:
    • Seniority – Provided that time spent on leave due to a pregnancy-related condition and protected parental, family and medical leave should not reduce seniority.
    • Merit system;
    • Quality or Quantity of Production – A system which measures earnings by quantity or quality of production, sales, or revenue;
    • Geographic location in which a job is performed;
    • Education, training or experience to the extent such factors are reasonably related to the particular job in question; and
    • Travel, if travel is a regular and necessary condition of the particular job.

 

  • Create a rolling affirmative defense by conducting a self-evaluation of pay practices that is “reasonable in detail and scope in light of the size of the employer” and make “reasonable progress” toward eliminating pay differentials uncovered by the evaluation. This evaluation creates an affirmative defense if it is completed within the three years prior to the commencement of a wage discrimination claim.

 

  • Our Pay Equity Audit will create a rolling affirmative defense for your company.

 

Take Full Advantage Of The Next 23 Months To Achieve Compliance:

  • Benjamin Franklin was right: an ounce of prevention is really worth a pound of cure and nevermore than in wage issues.
  • Take advantage of our Pay Equity Audit to achieve compliance and create a rolling affirmative defense.
  • Revise pertinent policies, your company’s employment application, training and hiring practices to reduce exposure.

 

We can help!

The EEOC reaches out to young workers about religious discrimination.

Religious discrimination remains an issue in the American workplace. In fiscal year 2015, EEOC received 3,502 charges alleging discrimination on the basis of religion, with the top issues alleged being discharge, harassment, terms and conditions of employment, and reasonable accommodation.

The EEOC has issued a one page fact sheet “designed to help young workers better understand their rights and responsibilities under the federal employment anti-discrimination laws prohibiting religious discrimination.”

If you have young workers in your employ, check out the EEOC Fact sheet.

Questions? We can help. 508-548-4888 or info@foleylawpractice.com

 

 

 

 

 

Addiction in the Workplace

Earlier this year Massachusetts Governor Charlie Baker signed a comprehensive law intended to combat the state’s opioid addiction epidemic.  In recent years, opiate abuse has claimed thousands of lives in Massachusetts. Unfortunately, addiction is not limited to opiate abuse, and many employers know first hand the unique challenges addiction and drug and alcohol abuse and addiction pose in the workplace.

Title I of the Americans with Disabilities Act, and Massachusetts law specifically permit employers to ensure that the workplace is free from the illegal use of drugs and the use of alcohol.  At the same time, the ADA and state law provide limited protection from discrimination for recovering drug abusers and for alcoholics.  This tension leaves employers faced with the dual task of addressing workplace addiction and avoiding the threat of a discrimination lawsuit.

Here is a brief summary of the current state of the law as related to drug and alcohol abuse and addiction:

  • An employer may prohibit the illegal use of drugs and the use of alcohol at the workplace, and employees may be required to follow the Drug-Free Workplace Act of 1988. At this time, the prohibition may include marijuana and medicinal marijuana.
  • An employee who is currently engaging in the illegal use of drugs is not an “individual with a disability” under the ADA or Massachusetts law.
  • Employers who test for the illegal use of drugs are not in violation of the ADA, but must comply with state drug testing laws.
  • Employers may terminate or deny employment to those currently engaged in the illegal use of drugs.
  • Employees who use drugs or alcohol can and should be required to meet the same standards of performance and conduct as other employees.
  • Employers may not discriminate against those with a history of drug addiction provided the individual is not using drugs and is actively engaged in rehabilitation.
  • Employers may not discriminate against alcoholics.  However, this protection does not extend to employees who are currently abusing alcohol.

When are drug users protected by the ADA and state discrimination laws? 

An employee who is “currently engaging” in the use of illegal drugs is not entitled to protection under the ADA and state disability laws.  Employers that consistently enforce workplace rules prohibiting employees from illegally using drugs, and disciplining employees who violate the policy will not be in violation of the ADA.

Where the law in this area can get tricky is that individuals who are undergoing treatment for drug and/or alcohol abuse are protected by the ADA. Specifically the ADA protected individuals:

  • who have been successfully rehabilitated and who are no longer engaged in the illegal use of drugs;
  • who are currently participating in a rehabilitation program and are no longer engaging in the illegal use of drugs; and
  • who are regarded, erroneously, as illegally using drugs.

Additionally a former drug addict may be protected under the ADA because the addiction may be considered a substantially limiting impairment. However, according to the EEOC Technical Assistance Manual on the ADA, a former casual drug user is not protected:

[A] person who casually used drugs illegally in the past, but did not become addicted is not an individual with a disability based on the past drug use. In order for a person to be “substantially limited” because of drug use, s/he must be addicted to the drug. The EEOC Technical Assistance Manual can be found here.

Alcoholism as a Disability

Alcoholism is a recognized disability under both Massachusetts law and the ADA. Individuals regarded as alcoholics, and those with a record of alcoholism, may be considered disabled.That means that if an employee comes to you and tells you that he or she needs to get help or take time off for an AA meeting, an employer should respond the same as any other request for accommodation under the ADA or state law.  Furthermore, if the employee is in fact an alcoholic, treating him or her differently from other employees could expose an employer to a discrimination claim under state and/or federal law. Under Massachusetts law:

An employer may only subject an addicted individual to discipline, including termination, if the employer would subject a non-handicapped individual to similar discipline for similar misconduct; and an employer may not treat the misconduct of an addicted employee more harshly than it would the misconduct of a non-handicapped individual.  Massachusetts Commission Against Discrimination Guidelines: Employment Discrimination on the Basis of Handicap, Chapter 151B § X.D (1998). Furthermore, an employer must provide reasonable accommodation to individuals handicapped as a result of their addiction to alcohol where such accommodation permits them to perform the essential functions of the job, unless such accommodation creates an undue hardship.  Id.

Brief Overview of the American With Disabilities Act (ADA)

The ADA prohibits discrimination in hiring and placement against disabled persons who are otherwise qualified and who can perform the essential functions of a job with or without reasonable accommodation. Under the ADA, an employer must accommodate employees or applicants who request accommodation for a disability unless accommodation would create an undue hardship.  The ADA also permits employers to require, as a job qualification, that an individual not “pose a direct threat to the health or safety of other individuals in the workplace.” The defense of “direct threat” is one that is raised frequently by employers in dealing with issues of substance abuse. The ADA defines direct threat as “a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.”

 

In all cases, the determination that an individual with a disability poses a direct threat must be based on an individualized assessment of the person’s present ability to safely perform the essential functions of the job.  In determining whether an individual poses a direct threat, the factors to be considered include:

  • the duration of the risk;
  • the nature and severity of the potential harm;
  • the likelihood that the potential harm will occur; and
  • the imminence of the potential harm.

It is important to note that the EEOC has emphasized that an employer may not deny employment to an individual with a disability “merely because of a slightly increased risk. The risk can only be considered when it poses a significant risk, i.e., high probability of substantial harm; a speculative or remote risk is insufficient.”

Employers beware: 

  • The ADA requires an individualized assessment of every disability and request for accommodation.  There is no one size fits all approach that can be applied in every situation.  With each employee and each request for accommodation, the employer should engage in an interactive dialogue with the employee or applicant.
  • Discrimination has been found in cases where employers require routine testing in response to an employee self-disclosing as an alcoholic when other employees were not required to submit to the same routine testing.  As such, unless it is your policy that all employees submit to routine testing, you may not require it of this employee.

 

 

Get Ready California

Get Ready California: Los Angeles, Santa Monica, and San Diego Passed Minimum Wage and Paid Sick Leave Ordinances

In a move that will leave many employers scrambling for timely compliance, the cities of Los Angeles, Santa Monica, and San Diego recently approved minimum wage and sick leave ordinances that will apply to all employees who work within city lines.  The ordinances will impose additional compliance obligations on employers still coming to terms with extensive California state law requirements. Below is a summary of the new ordinances as well as a comparison to existing California law.  For employers with employees working in San Diego, Santa Monica, and Los Angeles, the ordinances will require modifications of existing sick leave policies.

Los Angeles

Minimum Wage

Commencing July 1, 2016, employers with 26 or more employees working at least two hours in a particular week in Los Angeles will increase to $10.50.  For employers with 25 employees or less, the minimum wage will remain at $10.00 until July 1, 2017.

The minimum wage increase:

Date 26+ Employees Less than 25employees
July 1, 2016 $10.50 $10.00
July 1, 2017 $12.00 $10.50
July 1, 2018 $13.25 $12.00
July 1, 2019 $14.25 $13.25
July 1, 2020 $15.00 $14.25
July 1, 2021 $15.00 $15.00

Employers operating outside an incorporated city, but inside the County of Los Angeles will also be required to comply with the County’s Minimum Wage Ordinance.  Minimum wage for employees in unincorporated areas of Los Angeles County will increase according to the schedule above.  The ordinance does not require employers to provide sick leave.

Sick Leave

Employees who work in the City of Los Angeles for the same employer for 30 or more days within a year of the start of their employment will be entitled to 48 hours of sick leave per year.  This sick leave ordinance is more generous than the 24 hours or 3 days that California law currently requires.

Like the state mandatory sick leave law, employees must begin accruing sick leave immediately upon hire (or July 1, 2016, whichever is later) and may use accrued sick leave after their 90th day of employment.

Accrual

Employers have the option of granting employees all 48 hours of paid sick leave at the beginning of each year of employment, calendar year, or 12-month period; or allowing employees to accrue one hour of sick leave for every 30 hours worked.  Employees will be entitled to take up to 48 hours of sick leave each year.

Employers will have the ability to cap accrual of sick leave at 72 hours, but must allow employees to carry over all accrued but unused sick leave to the following year.  This is a higher accrual cap than California law, which allows employers to cap accrual at 48 hours or 6 days.

Like the state mandatory sick leave law, employers do not have to pay out accrued, unused sick leave at termination or resignation, although they do have to reinstate accrued, unused leave for any employee rehired within a year.

Existing Policies

The law does state that if an employer has vacation or PTO policy that provides employees with at least 48 hours of time off, the employer does not need to provide any additional sick leave, provided employees are allowed to use the time for the purposes set forth in the law. However, where most of these plans were drafted to comply with the requirements of the state mandatory sick leave law, it is unlikely existing plans will comply.

Use

In addition to the sick leave uses set forth in the state sick leave law (i.e. the employee’s own illness, medical appointments, caring for family members, or taking time off due to domestic violence and related incidents), under the Los Angeles ordinance, employees may also utilize sick leave to care for any individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship.

Documentation

The Los Angeles ordinance does expressly allow employers to require employees to provide reasonable documentation of an absence from work for which paid sick leave will be used; however, the California state law does not expressly allow this.  Current guidance from the DLSE has discouraged employers from requesting documentation under the state mandatory sick leave law, so employers should proceed carefully with requests for documentation.

Los Angeles Citywide Hotel Worker Minimum Wage Ordinance

Hospitality employers and employers with businesses operating inside Los Angeles hotels should also be aware of the separate minimum wage, paid time off, and sick leave requirements of the Citywide Hotel Worker Minimum Wage Ordinance.

Santa Monica

With some limited exceptions, the Santa Monica Ordinance applies to all employees who work two or more hours during “a particular week” in the City of Santa Monica.  Private employers that are situated, or do business, in Santa Monica will be required to meet the minimum wage standards and provide paid sick leave in excess of the requirements under state law.

Minimum Wage

The Santa Monica minimum wage provision largely mirrors the Los Angeles ordinance, raising the minimum wage to $15.00 an hour by 2020.

 Sick Leave

Similar to state law, under the Santa Monica Ordinance, employees will accrue one hour of paid sick time for every 30 hours worked (including overtime hours) in Santa Monica, unless the employer provides for a faster accrual rate. Sick time accrues only in whole hour increments.

It is important for employers to note that like the San Francisco sick leave ordinance, the Santa Monica Ordinance does not expressly allow for front-loading of sick leave, which is allowed under the California mandatory sick leave law.  Additionally, current employees will begin to accrue sick time on the effective date of the ordinance or the 90th day of employment, whichever is later.  This is a slightly different requirements from the California mandatory sick leave law, which requires accrual beginning the first day of employment, but allows an employer to prevent employees from using sick leave until the 90th day of employment. It is important to note that because Santa Monica-based employees must accrue sick time during their first 90 days of employment under California law, an employer cannot limit accrual during the first 90 days under the Santa Monica Ordinance. Similarly, although California law allows employers to provide a lump sum of 24 hours of sick leave at the start of the benefit year, the Santa Monica ordinance will require employers who provide a lump sum of 24 hours to continue to track sick leave hours so that employees continue to accrue until they reach the maximum accrual.

Accrual

Employers with 26 or more employees must permit employees to accrue up to a maximum bank of 72 hours of paid sick time; and employers with 25 or fewer employees must permit employees to accrue up to a maximum bank of 40 hours of paid sick time.  However, this accrual is a floating accrual rather than an annual accrual.  This means that an employee may accrue a paid sick leave bank up to 72 hours, and once that employee uses that leave, the employee will immediately begin to accrue new sick time, and can use that additional accrued sick time during the same year immediately upon accrual.

Use of Leave

Other than the differences addressed above, the Santa Monica Ordinance largely mirrors the requirements of California law in terms of usage, notice, and anti-retaliation provisions.

Existing Leave Policies

The law does allow for employers to continue to maintain other paid leave policies, such as vacation, sick, floating holidays, personal days, or other paid time off (PTO) provided the policies meet or exceed the of the Ordinance.  However, as stated above, where most policies were drafted to comply with the California mandatory sick leave law, we recommend that all employers revisit their policies to ensure compliance. The requirements of the Ordinance may be waived in a collective bargaining agreement, so long as the waiver is explicitly set forth in the agreement in clear and unambiguous terms.

Minimum Wage

The Ordinance increases the minimum wages for private sector, non-hotel industry employees on the same time schedule listed above for the City of Los Angeles and Los Angeles County.

Hotel Workers

The Ordinance also establishes minimum wage rates for hotel workers.  Starting on July 1, 2016, Santa Monica’s minimum wage will be $13.25 for hotel workers, including those who work in sublet businesses in a hotel facility or in conjunction with a hotel. Note that these rates do not track the Los Angeles Citywide Hotel Worker Minimum Wage Ordinance, which does not apply to Santa Monica-area hotels.  On July 1, 2017, the minimum wage will increase to $15.37 per hour and will then mirror the Los Angeles Citywide Hotel Worker Minimum Wage rate, currently in effect.  Starting on July 1, 2018, the minimum wage rate for Santa Monica hotel workers will increase according to the Consumer Price Index.

Certain “hotel workers,” (excluding managerial, supervisory, or confidential employees) whose primary place of employment is at one or more hotels in Santa Monica are also covered by the sick leave ordinance, regardless of how many hours worked during “a particular week” in Santa Monica.

San Diego

Effective as soon as the City Clerk certifies the election results (which could be any time between now and mid-July), San Diego will increase the minimum wage to $10.50 per hour and employees who work at least two or more hours in a calendar week within the city limits will be entitled to paid sick leave.

Minimum Wage

The ordinance will immediately increase the City of San Diego’s minimum wage to $10.50 per hour, rising to $11.50 per hour, effective January 1, 2017.  Beginning January 1, 2019, minimum wage increases will be based on San Diego’s Consumer Price Index.

Sick Leave

San Diego’s sick leave ordinance requires provides employees with one hour of paid sick leave for every 30 hours worked within the city limits.

Accrual

Although employers may limit employees’ use of paid sick leave to 40 hours per year, employers may not cap accrual of leave.  This means that employees may continue to accrue sick leave indefinitely, although they may use only 40 hours of sick leave per year.  The ordinance is a steep increase from the state’s mandatory sick leave law, which requires employers to provide 24 hours or three days of paid sick leave per year with an optional cap of 48 hours or six days.  Like the California mandatory sick leave law, employees will begin accruing sick leave upon hire, but employers may prohibit use of sick leave until the 90th day of employment.

Use of Leave

The San Diego ordinance tracks the California mandatory sick leave law usage requirements, allowing employees to use sick leave for the employee’s own illness, medical appointments, caring for family members, or taking time off due to domestic violence and related incidents.  Also like the state law, employers may require the leave to be used in increments of at least two hours, and employers are not required to pay out unused sick leave at separation from employment.

Existing Policies

The ordinance provides that if an employer provides sufficient paid sick leave or other paid time off (including paid vacation or paid personal days) that satisfies the conditions of the ordinance, the employer will not be required to provide any additional sick leave to its employees.  However, as noted with regard to the Los Angeles and Santa Monica ordinances, policies drafted for compliance with the California mandatory sick leave law will not be in compliance with the San Diego ordinance.

The San Diego ordinance also requires employers to post notices within the workplace, and to provide each new employee with written notice of the minimum wage and paid sick leave requirements of the ordinance on the date of hire.

Recommendations

Employers in Los Angeles, Santa Monica and San Diego who crafted sick leave policies in compliance with the California mandatory earned sick leave law will need review and likely amend their policies to reflect the additional responsibilities imposed by the city ordinances. This can be accomplished either by drafting an addendum to current sick leave policies, or by crafting a new policy that tracks the language of the ordinance.

Specifically, policies should be amended to reflect that each of the ordinances increases the minimum number of hours of paid sick leave employers must offer, the accrual, and the carryover provisions required by the state sick leave law.  Although each of the ordinances states that existing paid leave policies may comply, it is unlikely that any employer has an existing policy that sufficiently tracks the language of the ordinances.

Our office is available to help amend and draft policies to ensure timely compliance with these new ordinances. This blog post should not be considered legal advice.

 

More Overtime News

Nothing says freedom like an increase in civil penalties.  In preparation for Independence Day, the DOL announced increases to civil penalties for violations of a number of federal law including OSHA and the FLSA.  Specifically, the DOL will be increasing civil penalties for willful violations of the FLSA minimum wage and overtime provisions. Those penalties will increase from $1,100 to $1,894.

If you are interested, a list of of each agency’s individual penalty adjustments is available here.

The takeaway here is that if you have not yet begun to prepare for the new overtime rules, set to go into effect on December 1, 2016,  you are quickly running out of time.  Several groups have made attempts to stop these new rules, and several groups have failed. The changes to the overtime rules are coming.

 

Let Freedom Ring–Happy July 4th

May the sun in his course visit no land more free, more happy, more lovely, than this our own country! ~Daniel Webster

We have exciting news at Foley & Foley, PC –Attorney Mikaela McDermott will join our team July 12, 2016. She brings years of experience in public and private sector employment and labor law. She will make our strong team even stronger.

The Massachusetts legislature has been busy. Two bills that will impact employers are still in the works and may land on the Governor’s desk soon:

Noncompete reform

The Massachusetts House passed a comprehensive noncompete reform bill on June 29, 2016. Because the Senate passed a fairly similar measure last year, the bill is expected to be approved by the Senate before the session closes on July 31, 2016. Whether Governor Baker will sign the bill is unknown at this time. The major changes:

    • By far the most significant change would introduce what is referred to as a “Garden Leave” clause requirement. Under the current version of the law, employers would have a choice of paying either 50% of the employee’s salary for the length of the non-compete or “other mutually-agreed upon consideration… .”
    • Noncompete period is limited to 12 months in duration unless the employee has breached a fiduciary duty or taken property, in which case 24 months is allowed;
    • Noncompetes are not allowed for several categories of workers:
      • Employees terminated for cause or laid off;
      • Non-exempt (OT eligible) employees;
      • Ages 18 or younger; and
      • Undergraduate or graduate interns.
    • Noncompete must include a right to consult with counsel before signing, and must be provided to the employee by a formal offer or 10 business days before the start date, whichever is earlier.
    • Any noncompete entered during employment must be supported by additional consideration beyond continued employment.
    • A court may not strike out unlawful provisions of a noncompete in violation of this law–the entire agreement will be invalid, which is not the practice now.

Should this bill become law many current noncompetes in Massachusetts will need to be rewritten.

Pay Equity

The Senate Bill Proposal – 2119 “An Act to Establish Pay Equity” is gaining momentum. Attorney Mike Foley recently presented on this topic at a Government Affairs Committee of the New Bedford Chamber of Commerce – more about his presentation

Here is the bottom line: For decades, it has been illegal in the United States for an employer to discriminate against women, including discrimination against women in terms of compensation.

In Massachusetts, employees who believe that they are underpaid on the basis of their gender currently have recourse to four statutes when seeking relief:

  • The Federal Equal Pay Act (FEPA);
  • Title VII of the Civil Rights Act of 1964 (Title VII);
  • The Massachusetts Equal Pay Act (MEPA); and
  • Chapter 151B of the General Laws of Massachusetts (151B).

Depending upon your perspective, here are the highlights or low lights regarding the pending pay equity law:

    • Significantly changes the definition of “comparable work” under MEPA. That critical phrase under the proposed law “shall solely mean work that is substantially similar that it requires substantially similar skill, effort and responsibility and is performed under similar working conditions.. .” The key question is how will this impact merit pay, commission pay and any pay system that is not seniority driven.
    • It would become unlawful for an employer to seek the salary history of any prospective employee.
    • Employers could not prevent employees from disclosing their wages, benefits or other compensation or inquiring about or discussing the wages of any other employee.

There is more to this far ranging bill and we will, of course, keep you informed.

As always, please contact us with any concerns or questions. We can help.


© 2016 FOLEY & FOLEY, PC, ALL RIGHTS RESERVED

TEN YEARS IN THE MAKING

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By: Tim Kenneally – tim@foleylawpractice.com

After a decade of discussion and negotiation, the Federal Aviation Administration (FAA) has released its new regulations for Unmanned Aircraft Systems (UAS) [1].   Yes, the regulations are more friendly to commerce than the previous rules.  No, they will not revolutionize the skyscape by eliminating all unreasonable obstacles to commercial use.  Businesses interested in using drones need to understand and comply with the law to avoid exposure to government sanctions and liability.

Here are the highlights:

  1. Businesses will be permitted to operate small UAS (55 lbs. or less) at 400 feet or lower without a pilot’s license and without a Section 333 Exemption. Instead, a person will now be allowed to pilot a small UAS for commercial endeavors under a remote pilot airman certificate with a small UAS rating or under the direct supervision of a person holding a remote pilot certificate.
  1. When operation is within 400 feet of a structure (a dam for example), the operator can exceed 400 feet.
  1. Operations in Class B, C, D and E airspace are allowed with ATC permission.
  1. Operators must keep the UAS within their visual-line-of-sight (VLOS).
  1. The Operator cannot fly the UAS over people not directly involved with the flight.
  1. Operators will be required to pass a test before operating in a commercial enterprise.
  1. No night operation is permitted.
  1. FAA airworthiness certification is not However, the remote pilot in command must conduct a preflight check of the small UAS to ensure that it is in a condition for safe operation.
  1. Most of the restrictions in the regulations are waivable through a certificate of waiver.

Certain businesses should see quick growth because of these new regulations.  The film industry, asset and facilities management, the inspection industry, and even aerial photography will all certainly benefit, as such operations can flourish at or below 400 feet and within VLOS.  The benefits for the mapping, surveillance, sports and agriculture industries are limited by the inability to fly beyond VLOS and over people. Those hoping to deliver packages by UAS will have to await further revisions to the law before their road gets any easier.

Even after these regulations take effect, which is expected to occur toward the end of August 2016, the FAA will still need to address larger UAS.  The FAA also needs to consider ways to further expand commercial opportunities, hopefully with further modification of these rules coming in a shorter window of time that these latest changes.

Businesses with questions about these new regulations or the process for acquiring a certificate of waiver or a remote pilot airman certificate are encourage to contact us.

How can we help?

[1] http://www.faa.gov/uas/media/Part_107_Summary.pdf

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