DC employers may be aware of the District of Columbia’s impending ban on non-compete agreements, which originally was scheduled to become effective on October 1, 2021 and which was set to become one of the most explicit bans on non-compete agreements in the nation.
The initial iteration of the law, titled the “District of Columbia Ban on Non-Compete Agreements Amendment Act of 2020 (the “Act”), prohibited employers from requiring employees who perform work in Washington D.C. (or a prospective employee whom the employer reasonably anticipated would perform work in Washington, DC), from signing any agreement that included a non-compete provision. The Act also made it unlawful for employers to have any workplace policy prohibiting employees from (i) being employed by another person; (ii) performing work or providing services for pay for another person; or (iii) operating their own business. In other words, the Act rendered virtually all non-compete provisions unenforceable and forbade employers from instituting workplace policies, such as anti-moonlighting rules, that limit employees’ ability to work for other people or start their own business.
However, along with the effective date of the Act being delayed several times (first to April 1, 2022 and now to October 1, 2022), the D.C. Council recently passed the Non-Compete Clarification Amendment Act of 2022 (the “Clarification Amendment Act”), which tempers certain aspects of the law.
Announcing Conn Maciel Carey’s 2022 Labor and Employment Webinar Series
The legal landscape facing employers seems as difficult to navigate as it has ever been. Keeping track of the ever-changing patchwork of federal, state and local laws governing the workplace may often seem like a full-time job whether you are a human resources professional, in-house attorney or business owner. Change appears to be the one constant. As we enter Year 2 of President Biden’s Administration, employers will continue to closely track the changes taking place at the NLRB, the DOL and the EEOC. At the same time, a number of states will continue introducing new laws and regulations governing workplaces across the country, making it more important than ever for employers to pay attention to the bills pending in the legislatures of the states where they operate.
To register for an individual webinar in the series, click on the link in the program description below. To register for the entire 2022 series, click here to send us an email request, and we will register you. If you missed any of our programs from the past seven years of our annual Labor and Employment Webinar Series, here is a link to an archive of recordings of those webinars.
2022 Labor and Employment Webinar Series – Program Schedule
Employment agreements and settlement agreements can be an effective way to address employer concerns regarding unfair competition and trade secret protections. Equally important is avoiding the pitfalls of non-compliant provisions. This webinar will review the scope of permissible provisions relating to non-compete and other restrictive covenants, state law efforts to push back on overly broad and restrictive agreements, and best practices for avoiding potential employment claims.
The legal landscape facing employers seems as difficult to navigate as it has ever been. Keeping track of the ever-changing patchwork of federal, state and local laws governing the workplace may often seem like a full-time job whether you are a human resources professional, in-house attorney or business owner. Change appears to be the one constant. As President Trump’s Administration comes to an end, employers will continue to closely track the changes taking place at the NLRB, the DOL and the EEOC. At the same time, a number of states will continue introducing new laws and regulations governing workplaces across the country, making it more important than ever for employers to pay attention to the bills pending in the legislatures of the states where they operate. This complimentary webinar series will focus on a host of the most challenging and timely issues facing employers, examining past trends and looking ahead at the issues most likely to arise.
To register for an individual webinar in the series, click on the link in the program description below. To register for the entire 2021 series, click here to send us an email request, and we will register you. If you missed any of our past programs from our annual Labor and Employment Webinar Series, click here to subscribe to our YouTube channel to access those webinars.
Late last year, we summarized the many new employment laws with which Illinois employers would have to comply in 2020, including the requirement to provide sexual harassment training by the end of the year. Now that 2020 is not so new anymore, employers should begin preparations to comply, so they are not left scrambling later this year. This article will summarize the key points you need to know to stay compliant.
Does this law apply to me—what is the threshold for coverage?
One and done—in other words, if you have at least one employee, the law applies to your company and you must train that employee… presumably in a one-on-one session.
What must we cover in the training session(s)?
Presently, we know that employer-provided training must cover, at a minimum, the following topics:
an explanation of sexual harassment consistent with the Illinois Human Rights Act (IHRA);
examples of conduct that constitutes unlawful sexual harassment;
a summary of relevant federal and state statutory provisions concerning sexual harassment, including remedies available to victims of sexual harassment; and
a summary of responsibilities of employers in the prevention, investigation, and corrective measures of sexual harassment.
Who must be trained and when?
The law went into effect on January 1, 2020, but employers have until the end of the year—December 31, 2020—to provide the required training to both employees and managers. There is no exception Continue reading →
Over the past year, there were a number of changes in the employment law landscape throughout the District of Columbia, Maryland, and Virginia. To keep employers apprised of the latest developments in these jurisdictions, below is a recap some of the key laws that took effect or were enacted in 2019 and a forecast of potential changes on the horizon in 2020.
DISTRICT OF COLUMBIA
Tipped Wage Workers Fairness Amendment Act of 2018 Not Fully Funded: The D.C. City Council enacted the Tipped Wage Workers Fairness Amendment Act in October 2018, which had the immediate impact of repealing Ballot Initiative 77 – a voter-approved ballot that eliminated the use of the tip credit in D.C. Thus, employers with tipped employees are still permitted to take a tip credit toward meeting minimum hourly wage requirements. But the Act also imposes certain training, reporting, and notice requirements for all employers of tipped employees – many of which have yet to take effect due to the lack of funding.
As explained in our previous blog article, the Act imposes certain training and notice requirements on all employers of tipped employees. The date on which employers must implement sexual harassment prevention training and provide the requisite notice to tipped employees, however, has not yet been determined, as a majority of the Act’s requirements have not been approved through budget funding. To date, the only provisions of the Act that are in effect, besides the repeal of Ballot Initiative 77, are related to employee and manager training on D.C.’s Minimum Wage Act Revision Act, certain notices to employees regarding their tips, and third-party payroll and wage reporting requirements (beginning Jan. 1, 2020). Employers should monitor this law throughout 2020, as it will likely be funded sometime next year.
Employees Can Claim D.C. Paid Leave Act Benefits Beginning July 1, 2020: D.C.’s Universal Paid Leave Amendment Act of 2016 (“Paid Leave Act”) provides up to eight weeks of parental leave to bond with a new child, six weeks of family leave to care for an ill family member with a serious health condition, and two weeks of medical leave to care for one’s own serious health condition. D.C. employees who take paid leave will be eligible to receive up to $1,000 per week, depending on their wage level. The leave program is funded by a quarterly 0.62% payroll tax on businesses that expected to generate a total of $250 million each year.
July 1, 2019 marked the date on which the District began collecting taxes from employers in preparation to administer paid leave benefits beginning on July 1, 2020. Employers should ensure that they have the Paid Family Leave Notice posted in their workplace, along with other labor law posters, by February 1, 2020, and ensure that all new employees hired after February 1, 2020 are provided with an electronic or hard copy of the notice. The proposed benefits regulations that contain instructions on how employees file for benefits are being finalized by the D.C. Department of Employment Services (“DOES”) and are expected to be rolled out in the next few months. Employers should familiarize themselves with this rule and the anticipated regulations, especially if they have not paid the quarterly taxes that DOES began collecting six months ago.
For further details on the D.C. Paid Leave Act and employer obligations, please check out our prior blog post.
Minimum Wage Increase in 2020: Under D.C.’s Fair Shot Minimum Wage Amendment Act of 2016, the minimum wage in the District of Columbia increased from $13.25 per hour to $14.00 per hour on July 1, 2019, and the base minimum wage for tipped employees increased from $3.89 per hour to $4.45 per hour. The law also provides for a progressive increase to $15.00 per hour on July 1, 2020, and a base increase of $5.00 per hour for tipped employees.
Drug Testing/Marijuana Updates Expected in 2020: The D.C. City Council is considering two bills that would eliminate drug testing employees for marijuana. Possession of marijuana and its recreational use is legal in D.C., and many employees have a valid prescription for medicinal marijuana. However, under current law, employees can still be disciplined at work if they test positive for marijuana.
The Prohibition of Marijuana Testing Act of 2019 proposes to eliminate marijuana testing as a condition of employment unless required by law. The second bill, the Medical Marijuana Program Patient Protection Amendment Act of 2019, would prohibit discriminating against D.C. government employees who are enrolled in the medical marijuana program, and would do away with marijuana testing on such employees who have a valid prescription under the program. This rule was already rolled out as emergency legislation in June 2019 but only went into effect for 90 days. Although neither of these laws are final, and private sector employers have not been impacted by these proposals yet, it is certainly something to keep a close eye on. Many states across the country have already, or are beginning to, incorporate employee protections in marijuana legislation, which significantly alters traditional employer policies, procedures, and practices related to drugs and drug testing policies.
Law Regarding Noncompete and Conflict of Interest Clauses Imposed Restrictions on Employment Agreements: A new Maryland law that went into effect on October 1, 2019 prohibits employers from including noncompete or conflict of interest clauses in any employment contract with an employee earning $15 or less per hour or $31,200 or less annually. Such provisions are considered void as against public policy. However, the bill specifically provides that employers may still prohibit such employees from taking client lists or other proprietary client-related information. Employers should carefully review their employment agreements with employees who are considered lower wage earners and revise them, as necessary, to ensure that company interests are protected while still complying with the law.
Workplace Harassment Amendment Expanded Scope of Liability for Employers: On October 1, 2019, under HB 679/SB 872, several changes to Maryland’s anti-discrimination law went into effect, which vastly expanded the scope of liability for employers under State law. For instance, the definition of “employee” was expanded to include independent contractors; the definition of “employer” was revised to increase the scope of liability for cases of harassment from any employer with 15 or more employee to any employer with a single employee; and a definition of harassment was specifically provided in the statute. Additionally, the time period for filing a complaint of harassment with the local human rights commission was expanded from six months to two (2) years, and the time period for filing a lawsuit alleging harassment in violation of the state anti-discrimination law was expanded from two (2) years to three (3) years. Employers should be wary of these changes to Maryland’s discrimination laws, as it certainly expands the risk of employer liability in Maryland and makes Maryland courts a more attractive forum to pursue such claims.
Equal Pay Law Penalties Increased: Penalties for Maryland’s Equal Pay for Equal Work law increased on October 1, 2019. Employers found to have violated the law two (2) or more than three (3) times within a three-year period may be assessed a penalty equal to 10% of the damages owed by the employers, which are paid into the General Fund of the State of Maryland.
Organ Donation Leave: Under the HB 1284, which took effect on Oct. 1, 2019, employers with 15 or more employees are required to provide eligible employees (employed for at least 12 months and at least 1,250 hours during the previous 12 months) up to 60 business days of unpaid leave in any 12-month period to serve as an organ donor, and up to 30 business days of unpaid leave in any 12-month period to serve as a bone marrow donor. Employers should consider adding a new provision to their leave policies in their Employee Handbooks and pay particularly close attention to any requests from employees for time off to donate an organ or bone marrow. Notably, such organ donor leave does not run concurrently with leave taken pursuant to the Family and Medical Leave Act.
Ban the Box Legislation Vetoed by Governor Hogan: Legislation passed by the Maryland General Assembly prohibiting employers with 15 or more employees from asking about an applicant’s criminal record prior to the first in-person interview was vetoed by Governor Larry Hogan in May 2019. Note, however, that there are several local ban-the-box laws throughout Maryland, including those enacted by Baltimore City, Prince George’s County, and Montgomery County – all of which provide greater restrictions on employers than what was proposed under the proposed bill.
Minimum Wage Increase in 2020: Beginning on Jan. 1, 2020, the minimum wage in Maryland will increase from $10.10 per hour to $11.00 per hour. Please note, however, that employers in Montgomery County, MD and Prince George’s County, MD are subject to separate, higher minimum wage rates, which may also vary depending on the size of the employer.
Maryland OSHA Still Has Not Adopted the E-Recordkeeping Rule: Maryland OSHA (“MOSH”) is the only state-plan safety and health agency in the country that has not adopted federal OSHA’s e-Recordkeeping Rule, which was promulgated back in May 2016. Under the revised federal rule issued in January 2019, which MOSH is required to adopt, establishments with 250 or more employees and establishments with 20 or more employees in high hazard industries are required to submit their 300A data by March 2nd of every year through federal OSHA’s Injury Tracking Application. Covered establishments should closely monitor this rule and be prepared to submit their 300A data, as it is will likely be finalized prior to the upcoming March 2, 2020 data submission deadline.
Repeal of Jim Crow-era Minimum Wage Exemptions: HB 2473 was enacted in March 2019 in an effort to modernize Virginia’s minimum wage law and to repeal certain Jim Crow-era provisions that endorsed wage discrimination against African Americans. The legislation rescinded exemptions that allowed employers to pay less than the minimum wage to newsboys, shoeshine boys, ushers, doormen, concession stand attendants, cashiers in theaters, and babysitters who work 10 hours or more per week.
Written Wage Statements Now Required in Virginia: Beginning on January 1, 2020, Virginia employers (with the exception of agricultural employers) must provide paystubs to employees on each regularly scheduled payday. Virginia Code § 40.1-20 was amended in April 2019 to require employers to provide a written statement by pay stub or online, which must include the following:
The name and address of the employer;
The number of hours the employee worked during the pay period;
The employee’s rate of pay;
The gross wages earned by the employee during the pay period; and
The amount and purpose of any deductions.
Given that the current law only requires employers to provide a written statement of employees’ gross wages and any deductions upon request, this may be a significant change for many employers. It is prudent to take steps to ensure that accurate pay stubs are provided beginning on January 1, 2020. Employers that already issue pay stubs should review their current payroll systems to verify that all of the code’s requirements, as listed above, are included in employee pay stubs.
Bi-Partisan Bill Limiting Non-Compete Agreements Not Put Up for Vote: A proposed bill that prohibits employers from entering into, enforcing, or threatening to enforce non-compete agreements with low-wage workers passed the Senate and House Commerce and Labor Committee. But the General Assembly did not put this bill up for a vote in the House during the last legislative session. Virginia employers should pay close attention to this bill moving forward, as it has bi-partisan support and other states have have continued to enact similar provisions, including Maryland.
Efforts to Increase Minimum Wage Fall Short: At least four bills were introduced in the General Assembly in 2019 to raise Virginia’s minimum wage, which is currently set at the federal floor of $7.25 an hour. Most of these bills were left in committee. One bill that did pass the Senate Commerce and Labor Committee would have mandated annual increases to the hourly minimum wage, raising it to $8 this year and reaching a final rate of $11.25 in 2022. Another bill that would have increased the minimum wage to $10 this year, $13 next year, and $15 by 2021 made it through committee but was then struck down by a Senate vote of 21-19. While none of these bills managed to increase the state minimum wage, efforts to increase the state minimum wage will certainly be an agenda item during the next legislative session. Given the narrow split on the issue, it is only a matter of time before Virginia’s minimum wage increases.
Marijuana Legislation at the Forefront of Issues for 2020: Currently, marijuana is strictly prohibited in Virginia and previous marijuana legislation efforts in the General Assembly have failed. However, with the advent of the November 2019 elections and democrats now controlling both the House of Delegates and the Senate, it appears that marijuana legislation is on the horizon.
Delegate Lee Carter pre-filed a bill (HB 87) for the 2020 legislative session that would decriminalize marijuana and allow adults 21 and older to possess and purchase cannabis from licensed retailers. Additionally, the bill would impose a 10 percent tax to fund veteran initiatives, transportation, and local municipalities. The bill also contains specific prohibited employment practices, which appear to limit an employer’s ability to discipline employees for use of marijuana outside of the workplace. Finally, Democratic Attorney General Mark Herring recently held a “Cannabis Summit” in Richmond to discuss decriminalizing marijuana and comprehensive marijuana reform, which includes recreational legalization. This topic is gaining significant attention heading into 2020, so employers should pay close attention to the bill pre-filed with Virginia General Assembly.
In the final days of California’s 2018 legislative session, and the end of his term, Governor Jerry Brown has signed into law a variety of employment bills, including a flurry of new legislation seeking to bolster the state’s workplace harassment laws in the aftermath of the #MeToo movement. Conn Maciel Carey LLP provides this summary of key new employment laws impacting California private sector employers. Unless otherwise indicated, these new laws just took effect on January 1, 2019.
Expanded Anti-Harassment Training Requirements
Existing law requires that employers with 50 or more employees provide at least two hours of sexual harassment training to all supervisory employees within six months of the individuals becoming supervisors, and at least once every two years thereafter. Covered employers must provide classroom or other effective interactive training that incorporates the topics of sexual harassment and abusive conduct as well as harassment based on gender identity and expression and sexual orientation.
Senate Bill (SB) 1343 broadly expands the harassment training requirements to small employers and for the first time requires training of non-supervisory employees.
It has been about a year since the #MeToo movement went viral, spreading greater awareness about sexual misconduct and harassment, and, more generally, the role of women, in the workplace. So, where are we now, and has anything changed? Was it just an awareness movement? Or, have things actually started to shift in the legal landscape with respect to the way employers are required to handle sexual misconduct and harassment? And what about with the way women are represented at work? Even if #MeToo may have started out as an awareness movement, states like New York and California are implementing changes in the law that are now imposing, or will soon impose, new requirements on employers, in hopes of giving #MeToo a significant, lasting effect. So, what should employers in New York and California do now? And, given that these states are often at the forefront of labor and employment issues, how should employers outside New York and California prepare in case new laws are passed in their states?
New York’s New Anti-Sexual Harassment Laws
On April 12, 2018, New York Governor Andrew Cuomo signed into law the 2019 New York State Budget, updating the state’s sexual harassment laws. Among other changes, there are two key components under these laws. First, every employer in New York must establish a sexual harassment prevention policy. These policies should have already been adopted and provided to all employees by October 9, 2018. The New York Department of Labor and New York Division of Human Rights have established a model sexual harassment prevention policy for employers to adopt. But employers are not required to use this model, so long as their policy meets or exceeds the minimum standards of the model and set forth in the laws. Employers must distribute the policy to all employees in writing or electronically, and must ensure that all future employees receive the policy before they start work. Additionally, employers are encouraged to post a copy where employees can easily access it.
With the rise of the #MeToo movement, there have been a number of responses from both employers and state legislatures to address workplace harassment. As discussed during the EEOC Special Task Force Meeting on June 11, 2018, several state legislatures are taking proactive steps to combat workplace sexual harassment. For example, on May 15, 2018, Maryland Governor Larry Hogan signed and ratified the Maryland Disclosing Sexual Harassment in the Workplace Act of 2018 – which passed the Maryland House (46-0) and Senate (136-1) with almost unanimous support.
Washington, D.C.-based OSHA and Labor & Employment law firm Conn Maciel Carey LLP is pleased to announce the launch of a Midwest Office in Chicago, IL and the addition of two prominent Chicago attorneys – Aaron R. Gelb and Mark M. Trapp.
“We are thrilled not only to expand the Firm’s national footprint to the Midwest, but especially to be doing so with such great lawyers as Aaron and Mark,” said Bryan Carey, the firm’s managing partner. “This move will enable us to better serve our existing national platform of clients, and will strengthen the firm’s specialty focus on Labor & Employment and Workplace Safety Law. We look forward to bringing Aaron and Mark on board, as they will add depth to all areas of the firm’s practice, including OSHA, litigation and labor counseling on behalf of our management clients.”
Mr. Gelb, former Labor & Employment Shareholder and head of the OSHA Practice at Vedder Price PC, in its Chicago office, represents employers in all aspects of the employer-employee relationship. Aaron’s practice has a particular emphasis on advising and representing clients in relation to inspections, investigations, and enforcement actions involving federal OSHA and state OSH programs, and managing the full range of litigation against OSHA.
“Aaron and I share the same vision of how we want to practice law and do business, thus entrusting him with the keys to our new Chicago office, and combining our expertise, talent, and resources together made so much sense,” said Eric J. Conn, Chair of the firm’s national OSHA practice. “We look forward to partnering with Aaron to build a solid brand for our Midwest practice among our client base and doing what we know best, providing top-notch service and excellent value to clients.”
Aaron also has extensive experience litigating equal employment opportunity matters in federal and state courts having tried a number of cases to verdict and defending employers before the EEOC as well as fair employment agencies across the country. In the past 5 years alone, Aaron has successfully handled more than 250 discrimination charges.
Mr. Gelb said “I am incredibly excited to join what I believe to be the country’s leading OSHA practice as the experience and expertise of the Conn Maciel team will enable me to enhance the workplace safety legal support I currently provide to my clients in the Midwest and beyond. I’ve known Eric for years and have great respect for what he and his colleagues have accomplished in the OSH field. At the same time, Kara’s employment defense group fits perfectly with my practice as we share a common client-focused philosophy and deep experience in many of the same industries. While leaving Vedder Price after nearly 20 years was not an easy decision, I simply could not pass up the opportunity to partner with two dynamic attorneys that so perfectly complement the dual aspects of my practice.”
Mr. Trapp joins the firm with seventeen years of experience, during which he has represented employers in all types of labor disputes, from union campaigns and collective bargaining to grievances and arbitrations. Mr. Trapp has defended employers before administrative agencies and in litigation brought under the ADA, ADEA, Title VII and other federal anti-discrimination laws.
Mr. Trapp said “I am thrilled to again have the opportunity to work with the top-notch legal professionals at Conn Maciel Carey.” According to Mr. Trapp, the expertise of a boutique firm focused on OSHA and other labor and employment matters “complements my experience handling labor and employment issues. I look forward to helping strengthen the team’s ability to provide exceptional knowledge and insights to labor and employment clients, and expanding the firm’s presence in the Midwest.”
Mr. Trapp is perhaps best known as a leading authority on multi-employer pension withdrawal liability. His articles on withdrawal liability and other labor and employment issues have been published in respected legal publications.
“I have worked with Mark for over a decade at various law firms, so I am excited that he has joined our boutique practice that focuses on positive client solutions and effective client service. His unique knowledge of traditional labor issues and multi-employer pension disputes is unparalleled and he has proven to be a creative and out-of-the-box adviser when counseling clients,”Kara M. Maciel, Chair of the Labor & Employment Practice reported.