Last year, the United States Supreme Court in Viking River decided, in part, that where a valid arbitration agreement existed, individual PAGA claims could be compelled to arbitration and the remaining representative PAGA claims could be dismissed for lack of standing. For the full background on Viking River, our blog article on that decision can be found here.
At the time, we predicted that this would not be the last we heard about PAGA standing because the U.S. Supreme Court left open the possibility that it misunderstood PAGA and that the California courts would have the last word on the subject. Now the California Supreme Court has weighed in on the scope of PAGA standing.
Last week, the California Supreme Court issued its decision in Adolph v. Uber Technologies, Inc. The Court, disagreeing with Viking River, found that PAGA plaintiffs retain standing to pursue representative claims on behalf of aggrieved employees in court, even when their individual claims have been compelled to arbitration. As the final arbiter of what PAGA requires, the California Supreme Court made it clear that PAGA standing “is not affected by enforcement of an agreement to adjudicate a plaintiff’s individual claim in another forum. Arbitrating a PAGA plaintiff’s individual claim does not nullify the fact of the violation or extinguish the plaintiff’s status as an aggrieved employee.”
On January 1, 2024, the Paid Leave for Workers Act (“Act”) will require Illinois employers to provide their employees with up to 40 hours of paid leave within a 12-month period, to be used for any reason. Illinois is among only two other states and the first in the Midwest to require employers to pay mandatory time off to their employees. Under existing law, Illinois employers are not required to provide their employees with any paid leave. Illinois employers need to review their own leave policies to ensure they are in compliance with the Act.
We are mid-way through 2023, and there have been several changes to the employment laws in the District of Columbia, Maryland, and Virginia that employers need to take note of. All of these laws, which were passed in 2022 or the more recent 2023 legislative sessions, went into effect on July 1, 2023, including amendments to minimum wage laws, leave laws, marijuana laws, and laws related to nondisclosure, confidentiality, and non-disparagement agreements. Below is an overview of some of the key changes that employers need to carefully analyze to ensure existing employment policies and practices are up to date.
District of Columbia
Minimum Wage Hike. Beginning on July 1, 2023, DC minimum wage increased from $16.50 per hour to $17 per hour. Tipped workers will see their base wage increase from $6 per hour to $8 per hour, and if their tips don’t bring their total hourly earnings up to $17 per hour overall, their employer needs to make up the difference.
Recreational Cannabis Use Protection in Effect. Under the DC Cannabis Employment Protections Amendment Act of 2022, which went into effect on July 1, 2023, employers cannot take any adverse action against an employee because of the employee’s recreational cannabis use, participation in D.C. or another state’s medical cannabis program, or failure to pass an employer-required or requested cannabis drug test. In simple terms, employers are prohibited from terminating, suspending, demoting, refusing to hire, failing to promote, or otherwise penalizing an employee for cannabis use, but there are two notable exceptions: Continue reading →
Beginning July 1, 2023, the minimum hourly wage for employees in the District of Columbia will increase from $16.00 per hour to $17.00 per hour, and the minimum hourly cash wage for tipped employees will increase from $6.00 per hour to $8.00 per hour. The District’s minimum wage for workers is now among the highest in the nation.
Each year, on July 1, the D.C. minimum wage increases based on the Consumer Price Index. This year is unique in that the minimum hourly cash wage for tipped employees will increase twice.
Increasing Minimum Cash Wages for Tipped Employees
Under the federal law and the laws of many states, an employer is allowed to count an employee’s tips toward the employer’s standard minimum wage obligation. This is called a tip credit. Employers may pay employees a subminimum wage – the minimum cash wage for tipped employees – as long as the employee’s tip earnings added to the subminimum wage equal the standard minimum wage. If not, the employer must pay the difference to ensure the tipped employee earns at least the standard minimum wage. Continue reading →
Last week the Illinois General Assembly sent Governor Pritzker HB3129, a pay transparency amendment to the Equal Pay Act. If signed, HB3129 would require employers with 15 or more employees to include the pay scale and benefits for a position in any specific job posting.
The Act, as written and enforced now makes it unlawful for an employer in the state of Illinois with one or more employees to:
discriminate against employees on the basis of race or sex when determining employee wage rates;
seek the wage or salary history, including benefits and other compensation, of a job applicant from their current or former employer; and
retaliate against an employee who exercises their rights under the Act.
The amendment does not specify whether all 15 employees must work in the state of Illinois or whether the employer must have 15 or more employees corporate wide for the amendment to apply.
The amendment does however provide that the posting requirements apply to positions that will be physically performed, at least in part, in the state of Illinois. If the job will be performed outside the state of Illinois, but the employee will report to a supervisor, office, or other work site in the state of Illinois the amendment similarly applies.
The “pay scale and benefit” information that must be included in the specific job posting includes the wage or salary, or the wage or salary range. Additionally, the posting must include a general description of the benefits and other compensation, including, but not limited to, bonuses, stock options, or other incentives the employer reasonably expects in good faith to offer for the position. Continue reading →
Wage and hour issues continue to be hotly litigated under the numerous federal and state laws governing employee wages, hours worked, meal and rest breaks and more. The availability of class actions and representative actions raise the stakes even higher for employers.
On Thursday, April 20, 2023, Daniel Deacon and Samuel Rose presented a webinar regarding Pay Transparency Laws and New State Laws re: Non-Compete Agreements.
Pay transparency laws have taken the country by storm. In December 2021, New York City Council passed a pay transparency measure that went into effect in November 2022. California passed a similar law that went into effect in January 2023. The trend will likely spread to other states across the country. This webinar explained the laws, compliance challenges, and some tips to make compliance easier. It also covered a general overview of new state laws regarding non-compete agreements, including the District of Columbia’s Ban on Non-Compete Agreements Amendment Act, which went into effect in October 2022.
The Illinois Paid Leave for All Workers Act (Senate Bill 208), which will provide paid leave to virtually all Illinois employees, was passed by the Illinois legislature on January 10, 2023 and was sent to the Governor J.B. Pritzker for signature on January 30, 2023. Governor Pritzker has publicly supported this bill and it is expected he will sign the bill into law soon. Illinois is set to join Nevada and Maine as the only three states in the country with a mandatory paid leave law- requiring nearly all Illinois employers to provide employees up to 40 hours of paid leave per year for “any purpose.” This will have significant impact on Illinois employers, and it is imperative for employers to take proactive steps to review existing leave policies and prepare to implement the Act’s requirements when it goes into effect on January 1, 2024.
Scope of the Act
The Act will apply to all Illinois employers except school districts organized under the School Code and park districts organized under the Park District Code. Furthermore, all Illinois employees will be covered with a few limited exceptions:
employees under the federal Railroad Unemployment Insurance Act or the Railway Labor Act;
students employed by a college or university for less than 2 consecutive calendar quarters during a calendar year with no reasonable expectation of being rehired by the same employer of the same service in a subsequent calendar year;
employees working in the construction industry who are covered by a collective bargaining agreement (“CBA”); and
employees covered by a collective CBA with an employer that provides services nationally and internationally of delivery, pickup, and transportation of parcels, documents, and freight.
The Act will not impact the validity or otherwise modify the terms of a CBA in effect on January 1, 2024. The Act’s requirements can be waived in a bona fide CBA as long as the waiver is set forth explicitly in the agreement in clear and unambiguous terms.
Th Act also exempts those employers that are covered by a municipal or county law in effect on Jan. 1, 2024, such as the Chicago Minimum Wage and Paid Sick Leave Ordinance and the Cook County Earned Sick Leave Ordinance. For any municipal or county ordinances enacted or amended on or after January 1, 2024, employers are only required to comply with the provisions of the local ordinance to the extent that it provides greater benefits, rights, and remedies to employees than those provided under the Act.
Accrual and Use of 40 hours of Leave in 12-Month Period
Beginning on January 1, 2024, covered employees will accrue one hour of paid leave for every 40 hours worked. However, employees cannot use their paid leave until they have completed 90 calendar days of employment, or until March 31, 2024, whichever is later.
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 3 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 2023 series, click here to send us an email request, and we will register you. If you missed any of our programs from the past eight years of our annual Labor and Employment Webinar Series, here is a link to an archive of recordings of those webinars.
After a series of amendments passed by the New York City Council in the Spring of 2022 postponed the effective date of the New York City Pay Transparency Law, the law finally went into effect on November 1, 2022. Employers need to take swift action to ensure that their job advertisements comply with the law, if they haven’t already done so. The law amended the New York City Human Rights Law (NYCHRL) to make it an unlawful employment practice for a covered employer to advertise a job, promotion, or job transfer without disclosing the minimum and maximum salary or hourly wage range of compensation for the position that the employer in good faith believes it would pay for the position.
A covered employers is any employer with four or more employees, including independent contractor and owners, or one or more domestic workers, that has at least one employee who works, at least in part, in New York City. The law also covers employment agencies of any size. Temporary help firms that recruit, hire, and assign their own employees to perform work or services for other organizations to support or supplement the other organization’s workforce are exempt from the disclosure requirements. However, employers that work with temporary help firms must follow the disclosure requirements.
Prior guidance issued by the New York City Commission on Human Rights (the “Commission”) provides that the “salary” employers must disclose is the “base annual or hourly wage or rate of pay,” and it does not need to include other forms of compensation or benefits offered in connection with the advertised job, such as health insurance, 401K contributions or employer-funded pension plans, severance pay, overtime pay, commissions, tips, bonuses, and stock. The guidance also provides further instruction about how the law applies, which include the following highlights:
Coverage and Application
The four employees do not need to work in the same location, and they do not need to all work in New York City.
As long as one of the four employees works in New York City, the workplace is covered.
The disclosure requirements apply to any position that can or will be performed, in whole or in part, in New York City, whether from an office, in the field, or remotely from the employee’s home. In other words, employers outside of New York City need to be aware of the law’s potential reach, especially with respect to remote jobs that could be filled by persons living (and working from) New York City. Employers that post for remote jobs and have more than four employees should include compliant salary/wage ranges in postings for those jobs.