Beginning in 2020, Nevada employers can no longer refuse to hire a job applicant for failing a preemployment marijuana screening test. The law, known as “AB132,” became effective on June 5 and is the first of its kind among the states. Although the law is limited in scope to drug screenings involving the presence of marijuana, it has broad implications for employers operating in Nevada (and potentially for employers in other states).
Joining a steadily growing national trend, the Connecticut Legislature recently passed a generous paid family and medical leave bill, which will make Connecticut the seventh state — in addition to California, Massachusetts, New Jersey, New York, Rhode Island and Washington, not to mention the District of Columbia — to offer paid family leave.
Assuming the bill is signed into law, Connecticut employees will be eligible for 12 weeks of paid time over a 12-month period for reasons allowed under Connecticut’s Family Medical and Leave Act (FMLA). An additional two weeks of leave will be available for serious health conditions resulting in incapacitation during pregnancy. Continue Reading
Colorado’s 2019 legislative session was busy, including producing a trio of new employment laws that tighten regulations on employers in the areas of pay equity, criminal history inquiries and wage theft. Employers face comprehensive changes and should review pay practices, application processes, advancement and promotion policies, and employee record-keeping to comply with these new laws. Continue Reading
On June 11, Gov. Phil Murphy, D-N.J., signed into law legislation that will require hotels that have 100 or more guest rooms to provide their housekeepers and room service employees with panic buttons effective January 2020. Panic buttons have gained widespread attention as a result of the #MeToo movement – the idea being that a housekeeper is isolated from other employees and an easy target for sexual harassment and assault. Recently several pieces of legislation have been introduced that would require the provision of the buttons. Some cities (such as Chicago and Seattle) have already passed similar measures, and some hotel chains have voluntarily agreed to provide panic buttons, regardless of local laws. Hotels in New Jersey will no longer have the choice, and failure to comply with the new law will result in fines. Continue Reading
In a follow-up to our August 2018 blog post regarding a $1.1 million class settlement of the Equal Employment Opportunity Commission’s (EEOC) first parental leave lawsuit against a large cosmetics company, a large financial institution has just agreed to pay $5 million to settle a class action parental leave lawsuit brought by the American Civil Liberties Union (ACLU) and a plaintiff-side firm on behalf of an employee. The lawsuit alleges that the bank discriminated against fathers based on gender stereotypes by giving mothers more parental leave. The settlement, once approved by the court, will be payable to a class of hundreds, if not thousands, of male employees who can demonstrate that they would have taken the full 16 weeks of primary caregiver leave between 2011 and 2017 if they had not been deterred from doing so. Continue Reading
Colorado tightened its protections for pay equity when the state’s Equal Pay for Equal Work Act (the “Act”) was signed into law on May 22. The Act, which will take effect on Jan. 1, 2021, provides protections more demanding than those of federal laws and results in changes that employers should immediately consider.
The Act applies to all Colorado employers regardless of size and contains provisions regarding wage discrepancy, wage history, wage notice requirements and wage transparency in promotion and advancement opportunities. Notably, the Act also provides an applicant or an employee with a private right of action against an employer for alleged violations. This private right of action is in addition to the Colorado Division of Labor’s ability to enforce and investigate alleged violations of the Act on behalf of individuals, and it does not foreclose an applicant’s or an employee’s ability to seek relief from the Colorado Civil Rights Commission for pay discrimination. Continue Reading
On May 28, Connecticut Governor Ned Lamont signed Public Act No. 19-4, entitled “An Act Increasing the Minimum Fair Wage,” that will raise the Connecticut minimum wage to $15.00 per hour in 2023, which is more than double the current federal minimum wage of $7.25 per hour.
Under the new law, the current Connecticut minimum wage of $10.10 an hour will increase incrementally to $11.00 per hour on October 1, 2019, to $12.00 per hour on Sept. 1, 2020, to $13.00 per hour on Aug. 1, 2021, to $14.00 per hour on July 1, 2022, and then to $15.00 per hour on June 1, 2023. Future minimum wage increases will be tied to the federal employment cost index, which is calculated by the U.S. Department of Labor. Continue Reading
Washington state employers that rely on noncompetition agreements will face a dramatically different legal landscape beginning Jan. 1, 2020, when a new noncompetition law takes effect.
Key Elements of the New Law
Under the new law, noncompetition agreements will be void and unenforceable against an employee under the following conditions:
- The employer fails to disclose the terms of the agreement in writing to the prospective employee no later than the time of acceptance of the offer of employment.
- The noncompetition agreement is entered into after the start of employment, unless the employer provides independent consideration (such as a promotion, bonus or other benefit).
- The employee’s earnings from the employer do not exceed $100,000 per year annualized, to be adjusted for inflation.
- The employee is laid off, unless the employer provides compensation equivalent to the employee’s base salary for the period of enforcement minus compensation earned through subsequent employment.
Noncompetition agreements with a duration exceeding 18 months will also be presumed unreasonable and unenforceable, but this presumption will be rebuttable with clear and convincing evidence that a longer duration is necessary to protect the party’s business or goodwill. And employees earning less than twice the state minimum wage of $12.00 per hour may not be prohibited from having an additional job, supplementing their income by working for another employer, working as an independent contractor or being self-employed.
Interestingly, noncompetition agreements will also be void and unenforceable against independent contractors unless their earnings from the party seeking enforcement exceed $250,000 per year, to be adjusted for inflation. And noncompetition agreements also may not require an employee or an independent contractor to adjudicate the noncompetition agreement outside of Washington state.
Penalties Under the New Law
The new law will apply to any legal proceeding that is commenced after Jan. 1, 2020, regardless of when the cause of action arose or when the noncompetition agreement was signed.
There will be stringent penalties for employers who craft or seek to enforce noncompetition agreements that violate the above requirements. Specifically, if a court or arbitrator determines that an agreement violates the new law or reforms, rewrites, modifies or only partially enforces a noncompetition agreement, the employer must pay the employee/independent contractor the greater of their actual damages or a $5,000 statutory penalty, plus reasonable attorneys’ fees, expenses and costs incurred in the proceeding.
Importantly, for noncompetition agreements signed on or after Jan. 1, 2020, employees or independent contractors may bring a declaratory judgment action to invalidate unlawful noncompetition agreements and receive the above remedies. However, after Jan. 1, 2020, employers that seek to enforce unlawful noncompetition agreements, including agreements signed before Jan. 1, 2020, will be subject to the above remedies.
Given this new legal landscape, employers should begin the process of re-evaluating their existing noncompetition agreements to ensure they will be enforceable when the new law takes effect in six months.
As discussed in our New York Quarterly Newsletters, employers in New York City who have 15 or more employees (inclusive of independent contractors) are required to provide anti-sexual harassment training on or before December 31, 2019 to all employees who work in New York City (this includes employees who only work part time in New York City, or who only interact with employees working in New York City).
Employers have been awaiting a model training module from the City that would satisfy the City and New York State’s training requirements, and the City has finally delivered. The model training, which is a 45 minute video, rather than a Power Point presentation, like the state’s model training, can be found on New York City’s website, and will satisfy the mandatory training requirement for both New York State and New York City. Employers are not required to use the City’s model video, and instead, may use their own training methods, provided they meet the City’s minimum requirements.
If you would like assistance in determining whether the model training video, or a more customized approach is appropriate for you, please reach out to Amy J. Traub for more information.
On March 22, 2019, the DOL announced the official publication of its Notice of Proposed Rulemaking in the Federal Registrar and the commencement of the 60-day period for public comments. All public comments on the proposed new rule must be received by May 21, 2019 in order to be considered by the DOL in preparing its final rule. BakerHostetler’s Employment Group is available to assist in the preparation and drafting of any comments for submission to the DOL on this matter.
Once published, the DOL’s Final Rule will provide the date that the new rule will go into effect. Based upon the DOL’s current timing, it appears that the agency is targeting January 2020 for the new rule to go into effect.
Read more analysis in a recently published BakerHostetler client alert.