Minimum Wage, Paid Leave Law Developments, California Compliance, Illinois Update, and More…

Minimum Wage

With federal minimum wage stuck at $7.25, state and local governments continue to raise minimum wages. Our current state and local minimum wage chart, showing changes that will be going into effect for the new year, is available here.

Paid Leave Laws

• San Antonio’s paid sick leave law, which was revised (pdf) in October, was set to go into effect December 1, 2019, but as of November 22, 2019 was put on hold pending a legal challenge.

• Bernalillo County, New Mexico has joined Nevada (effective January 1, 2020) and Maine (January 1, 2021) in requiring employers to provide paid leave to employees (see our prior coverage on the Maine and Nevada laws here). Bernalillo County’s paid leave ordinance (pdf) was originally scheduled to go into effect January 1, 2020, but a proposed amendment (pdf) would push back the effective date to July 1, 2020. Under the law, employees who work in the county for at least 56 hours per year are entitled to accrue one hour of earned paid time off for every 32 hours worked, up to 28 hours per year; employees may carry over up to 28 hours of unused leave the next year and may use up to 28 hours of leave per year. The amount of leave that may be accrued, used and carried over increases to 44 hours on January 1, 2021 for employers of 11 or more employees, and to 56 hours on January 1, 2022 for employers for 35 or more employees (the January dates would become July dates if the proposed amendment passes). Paid leave under the ordinance may be used for any reason, although may not be taken until after the 90^th day of employment. As with paid sick leave laws, the law provides for specific notice requirements upon hire and requires employers to display a compliant poster in the workplace.

• Westchester County, New York, enacted a safe time leave law, effective October 30, 2019. The safe time is in addition to the sick leave available to employees under the County’s sick leave law. Under the safe time leave law, employees are entitled to up 40 hours of paid safe leave per year to attend or testify in a criminal or civil court proceeding related to domestic violence or human trafficking, or move to a safe location. Employers must provide employees with a copy of the law and notice of how it applies to them upon hire (or, for current employees, by January 28, 2020); employers must also display a copy of the law and a poster in a conspicuous location accessible to employees.

California Compliance

• On January 1, 2020:

  • The California Consumer Privacy Act (“CCPA”) goes into effect. The CCPA “grants consumers various rights with regard to their personal information held by businesses, including the right to know, access and request deletion of their data.” Any personal information a business maintains that can identify applicants, current and former employees, contractors, employee emergency contacts, and employees’ dependents/spouses is subject to CCPA. Employers should take immediate steps to ensure compliance with the CCPA.

  • Amendments to the Michelle Maykin Memorial Donation Protection Act go into effect. The amendments will extend the amount of leave an employee may take under the state’s organ donor leave law. Currently, the Act requires private employers with 15 or more employees to provide employees 30 business days of paid leave for organ donation in a one-year period and up to five business days of paid leave for bone marrow donation. As of January 1, 2020, private employers must provide eligible employees an additional 30 business days of unpaid leave in a one-year period to participate in an organ donation.

  • Senate Bill 142, which makes significant changes to lactation accommodation requirements for employers, goes into effect. First, the recent amendments specify that the break time shall be provided “each time such employee has need to express milk,” rather than a “reasonable amount of break time,” as previously required. The new law maintains the requirement that a lactation room shall not be a bathroom, and shall be in close proximity to the employee’s work area. It also further adds that the room must be shielded from view and free from intrusion while the employee is lactating. Additionally, the new law requires that a lactation room must: be safe, clean, and free of hazardous materials; contain a surface to place a breast pump and personal items; contain a place to sit; and have access to electricity or alternative devices, including, but not limited to, extension cords or charging stations needed to operate an electric or battery-powered breast pump. Senate Bill 142 further requires an employer to provide access to a sink with running water and a refrigerator suitable for storing milk in close proximity to the employee’s workplace. Lastly, the new law provides that, where a multipurpose room is used for lactation among other uses, the use of the room for lactation shall take precedence over the other uses, but only for the time it is being used for lactation purposes. Employers must develop and implement a lactation policy to include in an employee handbook or set of policies made available to employees, as well as distribute the policy to new employees upon hire and when an employee makes an inquiry about or requests parental leave. California employers should review and update their policies and procedures for providing lactation accommodations to comply with this law.

  • “No rehire” provisions contained in settlement agreements entered into on or after January 1, 2020, will be void, except in certain limited circumstances, such as when an employer has made a good faith determination that the separated employee engaged in sexual harassment or assault. The law does not require an employer to rehire a former employee, however, so long as there is a legitimate, non-discriminatory reason for terminating the employment relationship or refusing to rehire the individual.

  • Per AB 51, contracts for employment entered into on or after January 1, 2020, cannot require an applicant or employee, “as a condition of employment, continued employment or receipt of any employment-related benefit . . . to waive any right, forum or procedure” for any claim arising under California’s Labor Code and its Fair Employment and Housing Act. The law also provides that “an agreement that requires an employee to opt out of a waiver or take any affirmative action in order to preserve their rights is deemed a condition of employment.” For a more in-depth analysis of AB 51 please see our prior post here.

Illinois Updates

• The Illinois General Assembly passed Senate Bill 1557, revising the language of the Recreational Cannabis Law to provide clarity for employers regarding their employment policies. As we previously reported here, Illinois Governor J.B. Pritzker signed the Illinois Cannabis Regulation and Taxation Act, legalizing recreational use and possession of marijuana by adults aged 21 or older beginning January 1, 2020. As initially enacted, the Act specifically allows employers to maintain and enforce reasonable zero tolerance or drug free workplace policies prohibiting marijuana use, and more explicitly, to discipline employees based on an employer’s “good faith belief” that the employee “manifests specific, articulable symptoms” of being under the influence or marijuana while working. The Act further permits employers to prohibit employees from being under the influence or of using marijuana in the workplace or while on call. However, the Act raised questions regarding potential liabilities for employers. In response to these concerns, the legislature modified the Act’s provisions as it relates to employment and employer liability, clarifying permissible drug testing and limiting the potential causes of action against an employer. The Act, as amended, states that employers cannot be sued for “actions taken pursuant to an employer’s reasonable workplace drug policy, including but not limited to subjecting an employee or applicant to reasonable drug and alcohol testing, reasonable and nondiscriminatory random drug testing, and discipline, termination of employment, or withdrawal of a job offer due to a failure of a drug test.” Though, the language regarding an employer’s “good faith belief” remains. Therefore, employees may still pursue litigation alleging such a belief is required for lawful termination, and that the employer lacked this requisite belief in terminating the employee. The amended bill has passed both houses of the legislature and is awaiting Governor Pritzker’s signature. The law will take effect January 13, 2020, unless Governor Pritzker signs or vetoes the bill before then.

• Employers should ensure that contracts with employees entered into on or after January 1, 2020 that contain confidentiality provisions are compliant with the Workplace Transparency Act. For more information, see our prior post here.

• Effective January 1, 2020, the Illinois Victims’ Economic Security and Safety Act (“VESSA”) is amended to extend victims of gender violence (as defined in the law) the same leave entitlements as victims of domestic or sexual violence.

• Also, as we previously reported, effective January 1, 2020, certain changes to the Illinois Human Rights Act (“IHRA”) go into effect. Specifically, the amendments provide:

  • Perceived membership in a protected class will be protected.

  • Employer liability to non-employees (such as independent contractors or consultants) in the workplace.

  • Employers will not be liable for harassment by non-managerial employees unless the employer was aware of the harassing conduct and failed to take reasonable corrective actions.

  • Employers will be required to provide annual harassment training to all employees using a model program to be developed by the Illinois Department of Human Rights (“IDHR”) or another program that equals or exceeds certain statutory standards. A tailored program will be available for employers in the bar/restaurant industry.

  • Bar and restaurant employers will be required to distribute a written sexual harassment policy in both English and Spanish to employees within the first week of their employment; the policy must include specific substantive information detailed in the IHRA.

• In addition, effective July 1, 2020:

  • The IHRA’s definition of employer will expand to cover those who employ one or more employees (it currently is defined as those with 15 or more employees). This means that small employers will be subject to claims of discrimination under the IHRA that currently only apply to employers of 15 or more employees.

  • Employers must make annual disclosures of information regarding adverse judgments or administrative rulings against them in the prior year to the IDHR; the IDHR will compile the information for publication in an annual report (although individual data will be aggregated to protect personal information).

• Effective August 1, 2020, changes to the Illinois school conference and activity leave requirements go into effect. Currently, under 820 ILCS 147, employers of 50 or more employees in Illinois are required to provide up to eight hours of leave per year (if the employee has exhausted any vacation, personal, or other available leave) to attend school conferences or classroom activities related to the employee’s child if the conference or activity cannot be scheduled during non-work hours. The amended law provides that the leave can be used for school conferences, behavioral meetings or academic meetings, and provides that employers cannot terminate an employee’s employment based solely on an absence for one of these reasons.

• As we previously reported here, joining a growing number of cities and states, the Chicago City Council passed the Fair Workweek Ordinance, which will take effect July 1, 2020. The Ordinance applies to employers in the retail, hospitality, restaurant, health care, manufacturing, warehouse services, and building services industries which have more than 100 employees globally (250 for a non-profit) and at least 50 covered employees. Restaurants are covered if they have at least 30 locations and 250 employees worldwide. “Covered Employee” is defined as an employee who spends a majority of their work in a covered industry within Chicago, and makes $50,000 or less per year, or $26.00 or less per hour. Employers must provide employees with at least 10 days’ advance notice of their work schedule (including shifts and on-call status). An employer who makes a schedule change after the notice deadline with no loss of hours worked must pay one hour of “predictability pay” to the employee at their normal hourly rate for each such shift. If the employer reduces an employee’s hours or cancels a regular or on call shift, the employee is entitled to 50% of their regular rate of pay for those hours lost as a result of the schedule change. Also, employees may not be required to work a schedule that does not provide at least 10 hours between the end of a shift and the start of a new shift, and must receive 1.25 times their regular rate if they do work such shifts. The Ordinance further obligates the employer to provide new employees with good faith estimates of projected days and hours of work, as well as work shifts and on-call expectations, to which a new employee may ask for modifications that the employer must respond to in writing within three days.

Other Noteworthy Developments

• Following New York City’s amendment to the Human Rights Law earlier this year, on November 8, 2019, New York Governor Andrew Cuomo signed Senate Bill S660, amending the New York State Labor Law to prohibit employment discrimination based on an employee’s or a dependent’s “reproductive health decision making,” which took effect upon signing. The law broadly defines “reproductive health decision making” as “including, but not limited to, the decision to use or access a particular drug, device or medical service.” Employers are prohibited from accessing an employee’s personal information regarding the employee’s reproductive health decisions or those of the employee’s dependents, without the employee’s prior informed affirmative written consent; discriminating or taking any retaliatory action against an employee based on the employee’s reproductive health decisions or those of the employee’s dependents; and requiring an employee to sign a waiver or other document which purports to deny the employee the right to make his or her own reproductive health care decisions. By January 8, 2020, employers must include in their employee handbooks a notice to employees of their rights and remedies under this anti-discrimination law. New York employers should promptly review and update their employee handbooks and policies to comply with this law.

• As we previously reported here, employers with at least 20 employees must offer their New Jersey employees a pre-tax transportation fringe benefit beginning on March 1, 2020; employers can offer these benefits directly or through third party providers. As of November 14, 2019, employers in Washington, D.C. may face fines if they are not compliant with its commuter benefits law. D.C.’s law requires employers with at least 20 employees in D.C. to offer commuter benefits to employees who spent at least 50% of their time working in D.C. or are based in D.C. and perform a substantial amount of work there (and less than 50% in any other state).