Amid all the talk of the Department of Labor’s new overtime threshold rule, you may have missed the news about other recent developments in wage and hour. Here’s a quick round-up of the most notable recent changes:
South Dakota Signs on to Misclassification Initiative
On June 1, the U.S. Department of Labor announced that the Wage and Hour Division and the South Dakota Department of Labor and Regulation signed a three-year Memorandum of Understanding (MOU), adding South Dakota as the latest participant in the USDOL’s Misclassification Initiative. The Initiative now includes 30 state labor departments plus the U.S Internal Revenue Service. The various agencies have pledges to share resources and information, conduct joint investigations and provide outreach to employers, employees and other stakeholders, all in an effort to combat the misclassification of employees as independent contractors.
In addition to South Dakota, the other participating states are: Alabama, Alaska, Arkansas, California, Colorado, Connecticut, Florida, Hawaii, Idaho, Illinois, Iowa, Kentucky, Louisiana, Maryland, Massachusetts, Minnesota, Missouri, Montana, New Hampshire, New Mexico, New York, Oregon, Rhode Island, Texas, Utah, Vermont, Washington, Wisconsin, and Wyoming.
Connecticut Now Allows Use of Payroll Cards
As of June 7, 2016, a new law says Connecticut employers are permitted to use payroll cards to pay employees. Before June 7, the Connecticut Department of Labor had stated the use of payroll cards was not authorized under state law.
The law defines a payroll card as “a stored value card or other device used by an employee to access wages from a payroll card account and that is redeemable at the employee’s election at multiple unaffiliated merchants or service providers, bank branches or automated teller machines.”
There are restrictions on the use of these cards. For instance, employers cannot pass along any costs they incur for issuing or funding the cards to their employees. Also, employees must be permitted to make at least three fee-free withdrawals each pay period. Employees must expressly request to receive their pay through a payroll card, and employers are prohibited from requiring employees to accept payment through payroll cards.
There are other regulations and requirements, so if you’re a Connecticut employer who wants to offer payroll cards as an option to your employees, check with your employment law attorney to make sure you’ve got everything set up correctly.
San Diego Voters Approve Sick Leave & Minimum Wage Ordinances
Also on June 7, voters in San Diego approved an ordinance providing for an immediate increase in the minimum wage for workers within the city to $10.50 per hour, with additional increases in the future depending on the Consumer Price Index and the federal and state minimum wages at the time.
The ordinance also requires employers to provide one hour of earned sick leave for every 30 hours worked by an employee within the geographical boundaries of the city, with no limit to the amount of sick leave an employee can accrue. Employers can, however, limit the amount used to 40 hours in a consecutive 12-month period. Any unused sick leave accrued must be carried over to the next year. If employers offer paid time off, vacation, or paid personal days that exceed this amount and that can be used under the same conditions and for the same purposes as the ordinance, they are not required to provide additional leave.
There are penalties for non-compliance, and for retaliating against employees who try to take advantage of their accrued sick leave. If you have employees who work within the geographical boundaries of San Diego, you should check with your employment law attorney to ensure you’re up-to-date with the requirements of this new ordinance.
EEOC Increases Penalties
You’re probably aware that various government agencies require employers to post certain information in their workplaces where employees can read and review it. On June 2, the Equal Employment Opportunity Commission (EEOC) published a new final rule that adjusted the penalties for failure to properly post the require notification of Title VII of the Civil Rights Act of 1964 (“Title VII”), the Americans with Disabilities Act (ADA), and the Genetic Information Nondiscrimination Act (GINA). The penalties were adjusted to account for inflation.
Effective July 5, 2016, the penalty for noncompliance will increase from $210 to $525 for each violation.
To avoid possible penalties, check with your employment law advisor to ensure you have the correct version of all the required posters and notification, and that they are properly placed. Also, beware of “services” that offer to sell you the required posters — everything you need is available for download free from government websites.
Colorado Enacts Pregnancy Anti-Discrimination Law
The new law, which goes into effect August 10, 2016, requires employers to provide reasonable accommodations to both applicants and employees for health conditions related to pregnancy or the physical recovery from childbirth. The employer is required to engage in an interactive process with the applicant or employee, cannot require an applicant or employee to accept an accommodation they did not request, and cannot force an employee to take leave if the employer can provide another reasonable accommodation.
Employers are not required to provide an accommodation that causes “undue hardship.” However, if the employer has in the past provided an accommodation to other employees, the law presumes it does not impose an undue hardship. The employer would be required to allow a similar accommodation for a pregnant employee or applicant. Employers cannot retaliate against an employee who requests an accommodation, and they cannot refuse to hire an applicant based on their need for a reasonable accommodation.
Sometimes well-meaning employers want to mandate work restrictions — with the best of intentions! — for a pregnant employee, even when the employee didn’t request any accommodation, in a belief that it’s “for the good of the baby.” Under the provisions of this law, that would be illegal. There are also additional requirements, so if you’re a Colorado employer, check with your employment law attorney to make sure your policies are in line, and make sure your supervisors and managers are trained.
Ohio Legalizes Medical Marijuana
Effective September 6, 2016, it will be legal for residents of Ohio with a qualifying medical diagnosis to purchase and use medical marijuana.
The recently-passed law contains some protections for employers. Employers are not required to permit or accommodate an employee’s use, possession or distribution of medical marijuana. They are also not required to modify current zero-tolerance drug policies, and are allowed to implement new drug-free workplace policies. The bill also explicitly does not authorize any individual to sue an employer for an adverse employment action taken related to that person’s use of medical marijuana.
The law also says if an employer fires a worker pursuant to a violation of their zero-tolerance drug policy, this will constitute “just cause” for the purposes of unemployment claims. If the use of medical marijuana results in an injury, the employer is allowed to challenge a workers’ compensation claim, and can use a post-accident drug screen for marijuana to help establish the cause of the injury.
In other words, it can be business as usual for Ohio employers, even in the wake of this new law. If you don’t have a drug-free workplace policy and are concerned about the effect of employees under the influence of medical marijuana, consult with your employment law attorney to draft an appropriate policy. If you have a policy, check with your attorney to make sure it’s up to date with the new law. And in either case, train your supervisors and review your policy with all employees to avoid misunderstandings.
Check With Your Attorney
Can’t stress enough — if you are affected by any of these changes (or have any questions about whether you are) be sure to check with your employment law attorney. And if you don’t have your own in-house Human Resources department, check out AcroTime® HR Management. Our tools can help ensure you stay up-to-date with all the necessary reporting and notification requirements.