On September 30, 2020, California Governor Gavin Newsom signed into law SB 973, which imposes new pay reporting requirements on certain employers. The law, which takes effect on January 1, 2021, requires employers to file an annual pay data report by March 31 of each year. According to the California legislature, the collection of pay data will permit the state to “more efficiently identify wage patterns and allow for targeted enforcement of equal pay or discrimination laws.” The new law is in response to the Trump Administration’s order in August 2017, suspending an Obama-era wage gap initiative that required employers to submit a federal Employer Information Report (EEO-1) that includes pay data by gender, race, and ethnicity beginning in 2018.

Under the new law, California employers with 100 or more employees, who were required to file an annual EEO-1 report under federal law, are now required to submit a pay data report to the California Department of Fair Employment and Housing (DFEH), that mirrors the reporting requirements of the EEO-1 form. Specifically, the report must include: (1) the number of employees by race, ethnicity, and sex in each of ten broad job categories, and (2) the number of employees by race, ethnicity, and sex whose annual earnings (defined as W-2 income) fall within each of the pay bands established by the U.S. Bureau of Labor Statistics in the Occupational Employment Statistics survey. The report must also include total hours worked by each employee within a given pay band. For reporting purposes, employers will create and submit a “snapshot” pay period in which it counts all individuals who were on the employer’s payroll in any single pay period of the employer’s choice between October 1 and December 31.

Employers with multiple establishments must submit a report for each establishment and a consolidated report that includes all employees. Employers must also provide the data in a format that allows the DFEH to search and sort the information using readily available software. Employers may, but are not required to, provide “clarifying remarks” about information submitted in the report. The law also requires the DFEH to make the reports available to the Department of Labor Standards Enforcement upon request and to maintain the reports for a minimum of 10 years. Additionally, the law authorizes the DFEH to seek an order requiring non-reporting employers to comply.

The new law does not clarify if the reporting requirements apply to employers with more than 100 employees overall (including those employees outside of the state) or only to those employers with more than 100 employees in California.  In addition, it is unclear if California employers will need to report data for all employees, even those who live outside of the state.

In light of these upcoming reporting requirements, California employers should start the process of evaluating whether they are in a position to generate the required data by the March 31, 2021 deadline. If you have questions regarding how to comply with California’s new pay data reporting requirements, please contact Kelley Drye’s Labor & Employment group.

 

 

On September 17, 2020, Governor Newsom signed a historic expansion of the California Family Rights Act (“CFRA”).  Here’s what California employers need to know about the expanded law, which becomes effective on January 1, 2021:

The new law expands which companies are required to provide job-protected family and medical leave.

  • Businesses with as few as 5 employees company-wide must provide 12 workweeks of unpaid protected leave under the CFRA to eligible employees.  There is no requirement that the 5 employees be within a 75-mile radius of one another.

The law also expands the reasons for which employees may take leave.

  • Under the prior CFRA statute, in addition to taking leave to bond with a new child of the employee or to care for the employee’s own serious health condition, an employee could only take CFRA leave in order to care for the employee’s parent, child, spouse, or domestic partner.  The new law permits an employee to also take CFRA leave to care for a grandparent, grandchild, or sibling with a serious health condition (additional covered family members that are not protected under the federal Family Medical Leave Act (“FMLA”)).
  • Employers must also grant up to 12 workweeks of unpaid protected leave during any 12-month period due to a qualifying exigency related to the covered active duty or call to covered active duty of an employee’s spouse, domestic partner, child, or parent in the Armed Forces of the United States.

The new law also eliminates two CFRA exemptions.

  • If both parents of a new child work for the same employer, said employer can no longer limit the amount of leave taken by the parents to bond with their child to a combined total of 12 workweeks.  Employers are now required to provide up to 12 workweeks of bonding leave to each employee.
  • Employers are no longer able to refuse CFRA leave under the “key employee” exception, which allows employers to refuse reinstatement to salaried employees who are among the highest paid 10 percent of the company’s employees within a 75-mile radius.

Smaller companies that were previously exempt from the CFRA should prepare CFRA leave policies and procedures in order to notify employees of their coverage under the law and to ensure that CFRA leave is properly administered after the law becomes effective.  Large companies must update their leave policies and procedures to reflect the new changes.  If you have questions regarding how to comply with the newly expanded CFRA, please reach out to one of Kelley Drye’s Labor and Employment attorneys.

The independent contractor/employee classification conundrum is nothing new. Courts, state legislatures, and even the IRS have developed a slew of multi-factor tests to assess whether a worker is an employee or independent contractor. Mixed among these tests is arguably the most significant-the U.S. Department of Labor’s six-factor test, which is now being given a much-needed makeover. On September 22, 2020, the DOL released a Notice of Proposed Rulemaking, announcing an employer-friendly proposed rule that nixes a balancing test in favor of a test that focuses on the two factors that matter.

As the rule currently stands, the DOL has a six-factor test to assess the worker’s economic dependence on the business, including: (1) the business’s control over the workers; (2) the permanency of the relationship; (3)the workers’ investment in facilities and equipment; (4) the skill required to complete the work; (5) the opportunities for profit or loss; and (6) the extent to which the workers’ services are integrated into the business. No one factor is given more weight than any other. Continue Reading It Takes Two: The DOL’s Proposed Rulemaking Regarding FLSA Worker Classification

Today, most Americans live in a jurisdiction that has enacted a “ban-the-box” law (also known as a “fair chance” law).  Ban-the-box laws restrict employers from inquiring about an applicant’s criminal background at various stages of the hiring process.  The purpose of these laws are to enable an ex-offender to display his or her qualifications in the hiring process before he or she must disclose a criminal record.  In fact, the origin of the laws’ colloquial name is the “box” that initial job applicants must check if they have a prior conviction.  These laws benefit an estimated 70 million people in the United States (or almost one in three U.S. adults) who have prior arrests or convictions.

Currently, there is no federal ban-the-box law generally applicable to private sector employers.  However, on December 20, 2019, President Trump signed into law the Fair Chance Act (also known as the Fair Chance to Compete for Jobs Act of 2019) which prohibits federal agencies and government contractors from inquiring about an applicant’s criminal history before making a conditional employment offer, unless a specified exception applies.  The law includes exceptions for law enforcement and national security positions that require access to classified information, and where an employer is legally obligated to conduct a criminal background check before making a conditional employment offer. Continue Reading North Carolina Also Bans-The-Box

Summer is coming to an end, and you know what that means: school is back in session. We’ve previously provided general guidance on the challenges facing students, parents and employers this fall as students return to school during the pandemic. This post focuses specifically on what employers doing business in New York should be considering.

The same overarching analysis applies when determining your obligations if an employee is seeking leave to care for children who would be in school if not for COVID-19:

  • Does FFCRA apply?
  • Does a state or local Emergency COVID-19 leave law apply in our jurisdiction?
  • Does a paid sick leave law apply in our jurisdiction?
  • Does a company benefit or policy apply?

New York has a number of leave laws that are implicated by school closures. Fortunately, employers need not worry about New York State’s Paid Family Leave for purposes of school closures. New York has explicitly stated in its FAQ that a COVID-related school closure is not a qualifying reason for purposes of Paid Family Leave benefits under the law. An employee may, however, avail himself or herself of such benefits if the employee or the employee’s minor dependent child is subject to a mandatory or precautionary order of quarantine or isolation issued by the State, department of health, local board of health, or government entity.

Continue Reading Back to School Cheat Sheet for Employers: New York

The EEOC again updated its Technical Assistance Questions and Answers (Q&A), which we have been following closely, and previously covered on June 11, 2020.

In its most recent update, the EEOC addressed specific questions related to administering COVID-19 tests (Q&A, A.7); permitting employees into the physical workplace, and permissible COVID-19 questions (Q&A, A.8, A.9, A.11, A.12, A.13, and A.14). The EEOC also updated its guidance regarding confidentiality of medical information (B.5, B.6, B.7, and B.8), as well as reasonable accommodations and teleworking (D.8, D.14, D.15, D.16, D.17, and D.18). Continue Reading UPDATE: EEOC Updates COVID-19 Technical Assistance Publication with Q&A

We’ve previously provided general guidance on the challenges facing students, parents and employers this fall.  This post focuses on what employers doing business in California need to consider in response to their employee’s requests for time off work due to school or childcare facility closures.

What are your obligations if an employee is seeking leave to care for children who would be in school or daycare if not for COVID-19 related closures:

  • Does FFCRA apply?
  • Does a state or local Emergency COVID-19 leave law apply in your jurisdiction?
  • Does a paid sick leave law apply in your jurisdiction?
  • Does a company benefit or policy apply?

Continue Reading Back to School Cheat Sheet for Employers: California

We’ve previously provided general guidance on the challenges facing students, parents and employers this fall.  This is the first week of remote school for all Chicago Public School students, and this post focuses on what employers doing business in Illinois need to consider.

The same overarching analysis applies when determining your obligations if an employee is seeking leave to care for children who would be in school if not for COVID-19:

  • Does FFCRA apply?
  • Does a state or local Emergency COVID-19 leave law apply in our jurisdiction?
  • Does a paid sick leave law apply in our jurisdiction?
  • Does a company benefit or policy apply?

Continue Reading Back to School Cheat Sheet for Employers: Illinois

This fall’s return to school will be a challenge for students, parents, and employers alike.  Most states are dealing with a wide array of approaches to begin the school year.  The approaches can generally be categorized in four broad categories:

  1. In-Person: All staff and students are learning onsite.
  2. Hybrid/Blending Learning: To reduce the density in school buildings, students attend school onsite some of time and would be remote learning for the rest of the time.
  3. Only Remote: No students in school buildings and remote learning for all.
  4. Families opting out of school in an abundance of caution and deciding to homeschool.

Like everything related to COVID-19, school re-opening plans are fluid.  Some school districts planned in-person or hybrid returns this fall, but quickly shifted to only remote learning.  Others will likely transition to only remote as the virus continues to spike.  The constant flux has encouraged a sizable population of parents to opt-out of the system and homeschool their children in micro-schools or pandemic pods.  Pods are small groups of children working with an in-person tutor. Continue Reading Back to School and the FFCRA: A Study Guide

In an August 13 decision the National Labor Relations Board upheld an administrative law judge’s decision denying William Beaumont Hospital’s motion for an in-person hearing for an unfair labor practice charge. The charge was brought by the Michigan Nurses Association  alleging “numerous Section 8(a)(3) and (1) violations during an organizing campaign.” The Board shot down the Hospital’s “list of sundry problems” which could potentially occur during a video hearing as speculative and premature, and found that in light of the Michigan Nurses Association’s claims of anti-union tactics the judge’s decision that the pandemic constituted “compelling circumstances” warranting a remote hearing was not an abuse of discretion. The decision can be found here.

Although the Board’s decision may usher in more frequent remote hearings in the future, it’s not all bad. The same day as the Board’s decision in William Beaumont Hospital, the NLRB’s Division of Advice published 5 new advisory memos addressing COVID-19 related questions posed by different Regional Offices. In each case, the Division applied established law and recommended dismissal. Although, each advisory memo was written in response to an individual unfair labor practice charge and the Division’s conclusions are binding only as to the parties involved in that particular case, they provide some insight as to how similar cases might be handled and make it clear  that COVID-19 pandemic or not – the same rules apply.

Continue Reading NLRB Approves Video Hearing For Nurses Against Hospital’s Opposition – But It’s Not All Bad…