July 2021: Reminder: New York Hero Act Model Standards Available

The NY HERO Act requires the state’s Department of Labor (DOL) to create workplace safety standards for airborne infectious disease prevention. Employers are required to either adopt the DOL-issued standard that is relevant to their industry and workforce or to establish their disease prevention plan that must satisfy the minimum requirements set by the legislation.

Employers will be required to post the plan they choose in the workplace and any employers who distribute an employee handbook must include the plan in their handbook and must distribute the plan to all employees after re-opening following a closure due to an airborne infectious disease. Businesses permitted to operate as of the effective date of the legislation must distribute the plan to existing employees as well.

Employers can find the model workplace standards, sorted by industry, at the DOL’s webpage, here.

July 2021: Nevada Employers Must Now Post DETR Notices

Update Applicable to:
All employers in Nevada.

What happened?
On May 29, 2021, Governor Sisolak approved Assembly Bill 307.

What are the details?
The bill, effective as of October 1, 2021, instructs that the Department of Employment, Training and Rehabilitation (DETR) prepare notices regarding the job training and services it proves. Employers in private employment are required to post and maintain DETR’s notice(s) concerning its job services and employment programs. The notices must be posted in a conspicuous place where notices are customarily posted and read.

The bill can be read here.

A short article on the bill can be read here.

What do employers need to do?
Employers should stay aware of any notices that the DETR provides and have them posted when available or updated.

July 2021: Nevada Enacts Right to Return Act for Hospitality and Travel Employees

Update Applicable to:
Employers of the below industries in Nevada

What happened?
On June 8, 2021, Governor Sisolak approved Senate Bill 386 (Nevada Hospitality and Travel Workers Right to Return Act) into law.

What are the details?
The bill is set to be effective July 1, 2021, and will remain in effect until the Nevada governor terminates the emergency or August 21, 2022. The bill will impact employers in the following “covered enterprises”:

  • Airport hospitality operation, an airport service provider, a casino, an event center or a hotel that is located in a county whose population is 100,000 or more; and
  • Employs or exercises control over the wages, hours or working conditions of 30 or more employees” or did so on March 12, 2020.

The bill requires employers to offer their former employees, that were laid off or furloughed due to the COVID-19 pandemic, the opportunity to return to work. It also requires a notice to employees who will be laid off that is different from a federal Worker Adjustment and Retraining Notification Act (WARN) notice.

Employers must provide written notice of the layoff in Spanish, English, and any other language that is spoken by not less than 10 percent of the employer’s workforce that includes:

  • Notice of the layoff and its effective date;
  • A summary of the right to reemployment provided by the Act, or clear instructions on how to access such information; and
  • Contact information for the person designated by the employer to receive notice of a violation of the Act.

The bill does not require advance notice of the layoff to be provided but must be provided at the time the layoff occurs. If the layoff took place before July 1, 2021, the notice must be provided within 20 days after July 1, 2021. The notice must be given “either in person or mailed to the last known address of the employee and, by telephone, text message or electronic mail.” Because the contents of the notices under this Bill differ from the WARN notices, employers should keep in mind that the bill’s requirements are in addition to the WARN notice, if a WARN notice is required.

In order for an employee to qualify for protection under the bill’s layoff provisions, laid-off employees must have been employers for at least six months during the period of March 12, 2019, through March 12, 2020. The six months do not need to be consecutive, and the employee’s separation must have occurred after March 12, 2020, and have been “due to a governmental order, lack of business, reduction in force, or another economic, non-disciplinary reason. The Bill applies to all employees, except for the following:

  • Managerial and executive employees who are who are exempt from the Fair Labor Standards Act;
  • Theatrical or stage performers; or
  • Employees who are party to a valid severance agreement.

Employers must also retain the following records for at least two years after the date the layoff notice is provided to the employee: 

  • The employee’s full legal name, last job classification, and date of hire;
  • The employee’s last known address, email address, and telephone number;
  • A copy of the written layoff notice; and
  • Records of each offer of reemployment made to the employee including the date and time of each offer.

An employer must offer laid-off employees each position that becomes available after July 1, 2021, and that the employee is “qualified” for. An employee is considered “qualified” if they held the same or similar position within the same job qualification at the time of separation from the employer.

The available positions must be offered first to laid-off employees who held the same position when they were separated and then to laid-off employees who held a similar position within the same job classification. The more than one laid-off employee is entitled, the employer must first offer the position to the employee with the greatest length of service. Employers may extend simultaneous employment offers conditioned on applying the order of preference. Each offer must be in writing and sent by mail to the last known address of the employee and, if known, by telephone, text message, or electronic mail.

The laid-off employee must have at least 24 hours after receipt of the offer, to accept or decline the offer. If a laid-off employee is offered a job or position and either does not accept/decline the offer within 24 hours or is not available to return to work within five calendar days after accepting the offer, the employer may recall it to the next available employee with the greatest length of service.

If an employer does not recall a laid-off employee because the employee lacks qualifications and then hires a different person, the employer notifies the laid-off employee in writing and identifies all the reasons for the decisions within thirty days of the decision.

After an employer makes an offer to a laid-off employee, the employer is not required to make additional offers to that employee if:

  • The employee states in writing that they do not wish to be considered for future open positions, or future open positions with regularly scheduled work hours that are different from those the employee worked immediately before their separation.
  • The employer extends and the employee declines three “bona fide offers” of employment, with not less than three weeks between each offer.
  • The employer attempts to make three offers of employment and each offer made by mail is returned as undeliverable; any offer made by electronic mail is returned as undeliverable; and the employee’s telephone number is no longer in service.

The bill can be read here.

An article on the bill can be read here.

What do employers need to do?
Applicable employers should review the law and its procedures to be in compliance with hiring starting the effective date. The law firm, Jackson Lewis P.C., recommends that employers carefully review the Act’s extensive list of definitions and their personnel records to confirm if they and any of their employees are covered.

July 2021: Nevada Law Makes Hair-Based Discrimination Illegal

Update Applicable to:
All employers in Nevada.

What happened?
On June 2, 2021, Senate Bill 327 was approved by Governor Sisolak.

What are the details?
The bill was put into effect beginning June 2, 2021, making hair-based discrimination illegal. The law prohibits discrimination based on traits that are typically associated with race, including hair texture and protective hairstyles.

Protective hairstyles include natural hairstyles, afros, bantu knots, curls, braids, locks, and twists. Notwithstanding the protections for hair texture and protective hairstyles, an employer may enforce health and safety requirements set forth in federal or state law. Additionally, the Nevada Equal Rights Commission (NERC) may investigate claims of illegal hair-based discrimination.

The Bill can be read here.

A short article on the bill can be read here.

What do employers need to do?
Employers should review their workplace dress code policies to ensure they are in compliance with the law.

 

July 2021: Nevada Employers May Not Seek Employee Salary History

Update Applicable to:
All employers in Nevada.

What happened?
On June 2, 2021, Governor Sisolak approved Senate Bill 293.

What are the details?
The bill, effective starting October 1, 2021, prohibits an employer or employment agency from seeking the salary history of an applicant. The bill also prohibits the employer or employment agency from the following:

  • Discriminate, refuse to hire, promote or employ an applicant for not revealing their salary history.
  • Relying on a salary history of an applicant to determine if they want to hire the employee or determine their rate of pay.

Employers may ask an applicant about their wage or salary expectation for the position they are applying for. The employer or employment agency are also required to provide the following to an applicant who has completed an interview for the employment position:

  • The wage or salary range/rate for the position.
  • The wage or salary range/rate for a promotion or transfer to a new position if certain conditions are satisfied.

The bill can be read here.

A short article on the bill can be read here.

What do employers need to do?
Employers should review the law to update their applicable policies to be in compliance once the law is in effect.

July 2021: Chicago Implements New Wage Theft Protections and Amends Paid Sick Leave with Ordinance

Update Applicable to:
Employers in Chicago.

What happened?
On June 25, 2021, Chicago City Council passed Ordinance No. O201-2182 into law.

What are the details?
The ordinance, effective August 1, 2021, establishes wage theft protections for employees as well as, modifying and expanding several reasons that are covered for the use of Chicago Paid Sick Leave (CPSL).

An employer is now liable for wage theft when they fail to timely pay a covered employee. It includes non-payment of any wages required for work performed and paid time off (including Chicago paid sick leave (CPSL)) and any contractually required benefits.

The employers may be held liable for any underpayments and damages of either:

  • 2% of the amount of any underpayments for each month following the date of payment during which such underpayments remain unpaid; or
  • the amount specified by the Illinois Wage Payment and Collection Act, if the amount in the state law is greater.

Employers should be aware that these penalties are in addition to penalties for any failure to comply with the CPSL obligations as well.

The ordinance lists several new and modified reasons that are covered under the CPSL. Some of the included modified or new reasons are as follows:

  • Modified Reason. The employee is ill or injured, or for the purpose of receiving processional care, including preventive care, diagnosis, or treatment, for medical, mental, or behavioral issues, including substance abuse disorders.
  • Modified Reason. The employee needs to care for a family member whose school, class, or place of care has been closed
  • New Reason. An employee obeys an order issued by the mayor, the governor of Illinois, the Chicago Department of Public Health, or a treating healthcare provider, requiring the employee: to stay at home to minimize the transmission of a communicable disease, to remain at home while experiencing symptoms or sick with a communicable disease, to obey a quarantine order issued to the employee, or to obey an isolation order issued to the employee.

The CPSL ordinance requires a workplace posting and indicates the posting must also address the employee’s ability to seek remedy for wage theft. Employers are required to distribute a new notice to their employees by the end of July. With the first paycheck issued to a Covered Employee, and annually with a paycheck issued within 30 days of July 1st, every Employer shall provide a notice advising the Covered Employee of the current minimum Wages under this chapter, the Covered Employee’s right to Paid Sick Leave, and information about human trafficking and resources to help combat it. The Commissioner has prepared the required notice that can be found here.

The ordinance can be read here.

An article on the ordinance is found here.

What do employers need to do?
Employers should review the Ordinance and information above to ensure they follow the obligations to stay in compliance with wage payments and CPSL. The law firm, Littler Mendelson P.C., recommends employers revisit their paid sick leave policies in Chicago to ensure compliance with these new requirements. Employers will need to distribute the notice mentioned above by the end of the month to their employees.

July 2021: Florida Requires Trafficking Training for Hospitality Industry

Update Applicable to:
Employers operating in the hospitality industry.

What happened?
In 2019 Governor De Santis Signed HB 851, creating a requirement for hospitality businesses to provide training to their employees.

What are the details?
Public lodging establishments will be required to train their employees, as well as post a human trafficking public awareness sign in a conspicuous location in the establishment which is accessible to employees, at least 11 inches by 15 inches in size.

The training requirement may be satisfied by conducting the training in person, or online. The content must be certified by the Department of Business and Professional Regulation. The department requires training to cover the following topics:

1) The definition of human trafficking and the difference between the two forms of human trafficking: sex trafficking and labor trafficking.

2) Guidance specific to the public lodging sector concerning how to identify individuals who may be victims of human trafficking.

3) Guidance concerning the role of the employees of a public lodging establishment in reporting and responding to suspected human trafficking.

The training is provided by the Florida Restaurant and Lodging Association free of charge, in conjunction with the State, here.

If a business wishes to submit a new curriculum to DBPR for review and approval, send the curriculum as an email attachment to DHR.Info@myfloridalicense.com, along with a brief statement requesting a review of the curriculum. Alternatively, businesses may present the training curriculum to a representative of the Division during an inspection visit to the establishment, providing the option for the curriculum to be reviewed during the inspection.

The bill can be found here.

What do employers need to do?
Employers should review the above information and update their training policies. The state has provided the following link to help satisfy the sign requirement, here.

 

July 2021: Florida Passes Amendments to Telemarketing Laws

Update Applicable to:
All employers who use telemarketing in Florida.

What happened?
On June 29, 2021, Governor DeSantis signed CS for SB 1120 into law. 

What are the details?
The bill, effective July 1, 2021, expands the preexisting telemarketing (call, text, or voicemail) restrictions in Florida while also removing certain exceptions for communications that were previously lawful as well as permitting called parties to seek statutory damages via private litigation.

The bill removes exceptions to autodialer/recorded message restrictions which include:

  • calls made in response to calls initiated by the called party;
  • calls made to numbers screened for unlisted numbers and against the Florida Department of Agriculture and Consumer Services “no sales solicitation calls” list; and
  • calls concerning goods or services previously purchased by the called party.

Communications like the above may only be made with “the prior express written consent of the called party” confirmed with a signed (electronically or physically) form that complies with the new statute.

Additional changes that occur due to the bill include the reduction of permitted telemarketing hours to 8 a.m. to 8 p.m. and prohibiting a telemarketer from calling a given consumer on the same subject matter more than three times in a 24-hour period. It is also unlawful to use technology that deliberately displays a different caller identification number. These restrictions apply even without the use of an autodialer or recorded message, but do not carry the same private right of action as the following.

The enforcement of the provisions is expanded and creates a private right to action that allows a “called party aggrieved by a violation” to recover $500 in statutory damages (up to $1,500 for willful or knowing violations) and possibly attorneys’ fees. The private right of action is not limited to autodialer and recorded messages claims, it also applies to other violations including preexisting restrictions on calls to persons who either registered their phone number on the state’s do-not-call list or made a do-not-call request directly to the caller; calls disguising the caller’s voice; and calls that fail to transmit the caller’s or seller’s originating and redialable telephone number.

The bill can be read here.

An article on the bill can be read here.

What do employers need to do?
Employers who use telemarketing should read the bill and information above to update their policies as needed.

July 2021: Los Angeles Issues New Vaccine Paid Sick Leave*

Update Applicable to:
All employers in Los Angeles.

What happened?
On June 24, 2021, Mayor Garcetti issued the Vaccine Paid Sick Leave Due to COVID-19 (CVL) Order.

What are the details?
The order, effective immediately, requires all employers to provide covered employees with CVL to receive a COVID-19 vaccine. This also includes the time an employee spends traveling to and from an appointment and the time to recover from vaccination-related side effects that prevent the employee from being able to work or telework.

Employees who are qualified are those who work within the geographic boundaries of Los Angeles for an employer, and who have been employed with the same employer for 60 days. A collective bargaining agreement (CBA) in place on June 24, 2021, may supersede the CVL Order if it contains provisions providing CVL. If that CBA expires or is open for renegotiation, compliance with the CVL Order can be waived if the waiver is explicitly set forth by the CBA in clear and unambiguous terms. If the CBA does not address CVL, an employer must comply with the CVL Order unless and until the CBA is amended.

The CVL Order is retroactive to January 1, 2021. Qualified employees who on or after January 1, 2021, took leave that would have been qualified leave for the CVL Order and was paid less than what the CVL Order requires can, on or after June 24, 2021, submit a request (written or oral) to receive retroactive payment. Employers must make the payment on or before the payday for the next full pay period after the request has been made. If employers required employees to use leave other than the California Supplemental Paid Sick Leave Due to COVID-19 (SPSL) or Los Angeles SPSL such as vacation, paid/unpaid time off, other sick leave benefits, then upon an employee’s request the employer must reclassify paid leave taken as CVL and restore the leave the employee took. Any reclassification, restoration, or adjustment of other leave previously taken, as well as the remaining hours of CVL, must be reflected on the employee’s pay stub on or before the payday for the next full pay period after the employee’s request.

Employer’s full-time employees must be provided up to four hours of CVL to obtain each vaccine injection, and up to either hours of CVL to recover from any vaccination-related side effects that prevent the employee from working or teleworking. For non-full-time employees, the amount of CVL is prorated based on the average number of hours worked in the 60 days preceding injection or recovery. The following is an example of the calculation included in the order:

  • Employee worked 240 hours in the last 60 days (including non-working days). Dividing 240 by 60 creates a four-hour daily average. Multiplying the daily average by seven produces a 28-hour weekly average. The employee is eligible for 2.8 hours (2 hours 48 minutes) per injection and 5.6 hours (5 hours 36 minutes) for recovery.

Although the CVL Order requires all covered employers to provide the same amount of CVL, employers with 26 or more employees need only provide CVL to employees who have exhausted all available California SPSL or Los Angeles SPSL.

Employers that provide another supplemental benefit that is in addition to any other accrued leave- including but not limited to California PSST and California SPSL, for leave taken on or after January 1, 2021, that is payable for the same reasons as CVL and is paid in an amount that equals or exceeds what the CVL order requires, can count those supplemental benefit hours toward the amount of CVL hours they must provide.

The pay for employees will differ based on if they are exempt or non-exempt. For non-exempt employees, the employers must pay CVL at the highest of the following rates:

  • Employee’s normal rate of pay for the workweek the employee takes leave;
  • L.A. minimum wage; or
  • Employee’s average hourly pay for the preceding 60 days (excluding overtime).

Exempt employees are to be paid in the same manner as they calculate wages for other forms of paid leave. The pay cap under the order is $511 per day (or $255.50 for each 4-hour period) or $1,022 in the aggregate unless the federal government establishes a higher pay amount.

Employers cannot discharge, reduce in compensation, or otherwise discriminate against employees for opposing any practice the order prohibits, requesting to use or actually using CVL, participating in proceedings related to the CVL Order, for seeking to enforce, or otherwise asserting, CVL Order rights. Additionally, employees cannot waive their CVL Order rights except in a CBA.

The order can be read here.

An article on the Order can be read here.

*  Please note that this leave is a new entitlement whereas the “Los Angeles Revises COVID Sick Leave Order” article is discussing an expansion of existing benefits provided by the PSL Program within LA.

What do employers need to do?
Employers should review the law and the above information with their current leave policies to ensure they are in compliance with the order.

July 2021: Los Angeles Revises COVID-19 Sick Leave Order

Update Applicable to:
All employers in Los Angeles.

What happened?
On June 24, 2021, Mayor Garcetti revised the Supplemental Paid Sick Leave Due to COVID-19 (SPSL) Order.

What are the details?
The revised order is applicable to employers with either 500 or more employees in L.A. or 2,000 or more employees in the U.S.

The order now allows employees to use the Los Angeles SPSL to cover time off to receive a COVID-19 vaccine, including time to travel to and from the appointment as well as recovering from any symptoms. Secondly, the order now has an exemption that permits employers to require employees to verify their receipt of a COVID-19 vaccine. The order still generally prohibits employers from requiring a doctor’s note or other documentation to substantiate SPSL use.

The order can be read here.

An article on the order can be read here.

What do employers need to do?
Employers should review their leave policies and make any needed changes to ensure they are in compliance with the updated order.