Employer Law Report

Multi-state employers: Be prepared for July 1 minimum wage increases

On July 1, 2019, the minimum wage will increase in several locations throughout the country. While the federal minimum wage has remained $7.25 per hour since July 2009, many states, cities and counties have adopted their own minimum wage laws which provide for a higher rate. In areas where minimum wage laws overlap, employees are entitled to receive the highest applicable rate.

The following minimum wage increases will become effective July 1, 2019:

 

California

  • Alameda, California: $13.50 per hour
  • Berkeley, California: $15.59 per hour
  • Emeryville, California: $16.30 per hour for all businesses (the rate is no longer differentiated by employer size)
  • Fremont, California: $13.50 (for businesses with 26 or more employees); $11.00 (for businesses with fewer than 26 employees)
  • Los Angeles, California (city and county): $14.25 (for businesses with 26 or more employees); $13.25 (for businesses with fewer than 26 employees)
  • Malibu, California: $14.25 (for businesses with 26 or more employees); $13.25 (for businesses with fewer than 26 employees)
  • Milpitas, California: $15.00 per hour
  • Pasadena, California: $14.25 (for businesses with 26 or more employees); $13.25 (for businesses with fewer than 26 employees)
  • San Francisco, California (city and county):$15.59 per hour
  • San Leandro, California: $14.00 per hour
  • Santa Monica, California: $14.25 (for businesses with 26 or more employees); $13.25 (for businesses with fewer than 26 employees)

The District of Columbia

  • $14.00 per hour

Illinois

  • Chicago, Illinois: $13.00 per hour
  • Cook County, Illinois: $12.00 per hour

Maine

  • Portland, Maine: $11.11 per hour

Maryland

  • Montgomery County, Maryland: $13.00 (for businesses with 51 or more employees); $12.50 (for businesses with fewer than 51 employees)

Minnesota

  • Minneapolis, Minnesota: $12.25 (for businesses with 101 or more employees); $11.00 (for businesses with fewer than 101 employees)

New Jersey

  • $10.00 per hour

Oregon

  • Portland Urban Growth Boundary, Oregon (applies to employers located within the urban growth boundary of Portland’s metropolitan service district, including those in Washington, Multnomah and Clackamas counties): $12.50 per hour.
  • Nonurban Counties, Oregon (Baker, Coos, Crook, Curry, Douglas, Gilliam, Grant, Harney, Jefferson, Klamath, Lake, Malheur, Morrow, Sherman, Umatilla, Union, Wallowa and Wheeler Counties): $11.00 per hour
  • Standard Rate, Oregon: $11.25 per hour

Additional minimum wage increases are set to become effective later in 2019 and in January 2020. Porter Wright will continue to provide updates on future increases.

Special thanks to Abigail Thederahn for her research and assistance in preparing this update.

United States Supreme Court makes it easier to get discrimination cases into court

The U.S. Supreme Court ruled recently that Title VII’s administrative exhaustion requirement – whereby an employee must file a claim with the EEOC prior to filing a lawsuit – is not a jurisdictional rule. This means that the employee’s failure to file a charge does not automatically mean the case cannot go to court. Instead, the employer must raise the “failure to file” issue as an affirmative defense and do so in a timely fashion. The case is Fort Bend County v. Davis.

Facts

Lois Davis filed a charge against her employer, Fort Bend County, with the Texas Workforce Commission (Texas’ EEOC equivalent) claiming sexual harassment and retaliation. While that charge was pending, Davis was terminated. She claimed it was  for failing to report to work due to a church commitment. After her termination, Davis attempted to raise the issue of religious discrimination in the ongoing Texas Workforce Commission investigation, but she did not add it to the actual charge. Shortly thereafter, she filed a lawsuit in federal district court alleging sexual harassment, retaliation, and religious discrimination under Title VII. Continue Reading

Supreme Court to determine if Title VII prohibits discrimination based on gender identity

This fall the Supreme Court will hear the case of EEOC v. R.G. & G.R. Harris Funeral Homes, in which it will decide whether Title VII prohibits discrimination on the basis of gender identity. The case is on appeal from a 2018 decision of the Sixth Circuit Court of Appeals.  EEOC v. R.G. & G.R. Harris Funeral Homes. In Harris Funeral Homes, a former employee of a funeral home was terminated after she transitioned from male to female. The Sixth Circuit ruled that, while transgender status is not specifically protected under Title VII, alleged discrimination based on transgender status can be pursued under Title VII as a form of  sex or gender-based stereotyping. The Supreme Court has accepted the case for appeal and is expected to resolve a split among federal appeals courts on the issue.

The number of people who openly identify as transgender, meaning a person whose sense of personal identity does not correspond with their birth sex or gender, or non-binary, meaning people who do not identify with or fit into the two-gender binary of male and female, is on the rise. The Supreme Court case may provide some clarity under federal law. In the meantime, many state and local governments have enacted laws to promote gender non-binary and transgender inclusive workplaces. Here is a brief summary of the major issues under federal and state law.

Federal law

The EEOC and OSHA take a position

The Equal Employment Opportunity Commission (EEOC) interprets Title VII’s prohibition of sex discrimination as forbidding any employment discrimination based on gender identity, contrary to the position taken by the Department of Justice that Title VII does not forbid gender identity discrimination. This difference in opinions will likely be resolved when the Supreme Court hears the R.G. & G.R. Harris Funeral Homes Case later this year.

The Occupational Safety and Health Administration (OSHA) takes the position that employees should be permitted to use the restroom that corresponds with their gender identity, regardless of their birth gender.

EEO-1 reporting

The federal EEO-1 form filed each year by companies with over 100 employees and certain federal contractors requires  identifying employees by gender, among other things. The current EEO-1 form only recognizes two genders—male and female. Thus, employers must classify each employee as either male or female, without exception, but doing so can be more difficult as employees increasingly identify as non-binary or transgender.

To this point the EEOC has not issued any guidance on how to best report gender non-binary and transgender employees on the EEO-1 form. One option is to allow employees to self-identify and report their genders accordingly. However, if an employee chooses not to self-identify as male or female, employers are still obliged to make a good-faith determination for the purpose of completing the EEO-1 Report.

State law

Several years ago, California became the first state in the nation to require all single-occupancy restrooms in businesses, government buildings, and places of public accommodation to be gender neutral. Cities like Washington D.C., Philadelphia, Seattle, Chicago, and New York have adopted similar requirements.

Twenty-two states and Washington D.C. prohibit workplace discrimination on the basis of gender identity or expression, and a number of municipalities, including New York City, have passed similar laws. In Ohio, over twenty cities have adopted similar protections, and a bill introduced in the state legislature could extend these protections to all employees working in the state.

Conclusion

We anxiously await the Supreme Court’s guidance in R.G. & G.R. Harris Funeral Homes later this year. Regardless of the Supreme Court’s decision, employers would be wise to recognize that this is an emerging area of the law in which state and city specific legislation is constantly enlarging the rights of transgender and non-binary employees.

Court ruling puts administration’s immigration policy on hold

On Friday, May 3, a Federal District Judge in North Carolina enjoined the Trump Administration’s effort to change the immigration policy on “unlawful presence” as it is applied to foreign students, in Guilford College et al. v. McAleenan, et. a.l. The concept of unlawful presence was first introduced into the immigration laws in 1996 to impose a penalty on those who remain in the U.S. after their authorized period of stay expires. This penalty, a bar, known as the “3/10-year bar,” is imposed from the day the foreign national departs the U.S., preventing their return for either 3 or 10 years, depending on whether they remained more than 180 days or 365 days after their authorization expired.

The key to imposing this bar, however, depends on the calculation of the date the authorized stay expired. For foreign students, who are admitted for the duration of status (d/s), there is no certain date by which they are told they must depart the United States. Therefore, in 1997 Legacy INS announced a policy that students would be deemed unlawfully present only when an immigration officer or Immigration Judge made a determination that they had violated their status. In the event such a determination was made, the student was informed of the decision and then given 180 days to depart the U.S. before the 3- or 10-year bar would be imposed. Continue Reading

UPDATE: EEO-1 reporting; Now open for business

Pay Data Required by September 30, 2019

Further action has occurred in the National Women’s Law Center v. Office of Management and Budget case, about which we reported here. Employers will need to report 2018 pay data to the Equal Employment Opportunity Commission (EEOC) by September 30, 2019. While it is clear that employers will be required to report 2018 pay data later this year, it is unclear whether pay data for 2017 will also be required at that time. The EEOC has until May 3, 2019 to decide what time period must be reported on September 30, 2019.

Porter Wright will continue to provide updates on this breaking news as more details become available.

Cincinnati bars questions about salary history

In March 2019, the City of Cincinnati became the latest in a small but growing list of states and municipalities prohibiting employers from asking prospective employees about their prior compensation. Citing concerns about the perpetuation of pay discrimination against women in the workforce, the legislation bars Cincinnati employers with 15 or more employees from asking applicants for positions in Cincinnati for their salary histories.

What does the law say?

The law prohibits employers from:

  • Asking for information about an applicant’s current or prior compensation, including salary, benefits, and other compensation, such as bonuses
  • Screening applicants based on their salary histories
  • Relying on an applicant’s salary history (even if volunteered by the applicant) when determining whether to make an offer of employment or determining the amount of compensation offered to an applicant
  • Lastly, refusing to hire or retaliating against an applicant who refuses to provide his or her salary history

The applicant may sue an employer for damages, including attorney’s fees, if the employer violates this law. The applicant has two years from the date of the violation to bring a lawsuit.

There’s a catch. Actually, there are two catches.

Cropped shot of a man and woman completing paperwork together at a desk

This legislation does not go into effect for a full year. And, a similar law in Philadelphia was ultimately struck down by a federal district court in a lawsuit brought by its local chamber of commerce. So, Cincinnati employers may continue to ask their applicants for and consider salary histories until March 2020, when the practice must be discontinued . . . unless the law is challenged and a court strikes it down.

Standard for religious accommodation requests may get Supreme Court review

Requests for religious accommodations at work can involve a wide range of issues including schedule changes, relief from weekend or overtime work, breaks to accommodate prayer or other religious practices, dress code accommodations and even tattoos. Religious accommodations must be granted if they are “reasonable.” Currently employers have a pretty low hurdle to cross when arguing that a requested accommodation is not reasonable. The U.S. Supreme Court is sending signals that hurdle may become higher.

“Undue burden”

In religious accommodation cases, just like disability accommodation cases, to show that a requested accommodation is unreasonable an employer must show it will cause an undue burden to the business. However the phrase “undue burden” has been interpreted much more narrowly in religion cases than in disability cases. To show that requests for religious accommodation will cause an undue burden, an employer must show only that it will cause some minimal disruption to the business. This relatively low burden has been in place since one of the earliest U.S. Supreme Court cases on religious accommodations, TWA v. Hardison. The current Supreme Court is considering whether to take up a religious accommodation case filed against Walgreens. The case involves an employee’s request for relief from Saturday work due to religious observances. The Court recently asked for input from the U.S. Department of Justice on the case. That, plus indications in some earlier decisions by this Court, suggest the Court may be ready to make a change in the way religious accommodation cases are decided. Specifically, the Court may be ready to impose on employers a more heavy burden to show significant harm to the business as a basis for denying a requested accommodation.

The current political climate may also make the Court more inclined to protect asserted religious freedom. That might result in a decision strengthening the religious accommodation rights of employees, even though a majority of the Court’s current Justices usually tend to favor business rights.

A word of caution

Even considering the current relatively low burden on employers for denying accommodation requests, companies are wise to approach religious accommodation requests deliberately and cautiously. Denying a request has to be supportable by facts showing there will be some harm to the business if the request is granted. Also, there are not only legal risks to consider. There may be employee relations and even public relations implications where religious accommodation requests are denied.

EEO-1 reporting; Now open for business

UPDATE – Pay Data Required by September 30, 2019

Further action has occurred in the National Women’s Law Center v. Office of Management and Budget case, about which we reported here. Employers will need to report 2018 pay data to the Equal Employment Opportunity Commission (EEOC) by September 30, 2019. While it is clear that employers will be required to report 2018 pay data later this year, it is unclear whether pay data for 2017 will also be required at that time. The EEOC has until May 3, 2019 to decide what time period must be reported on September 30, 2019.

Porter Wright will continue to provide updates on this breaking news as more details become available.

It’s that time of year again. The 2018 EEO-1 Survey is open and must be filed with the Equal Employment Opportunity Commission (EEOC) Office of Enterprise Data and Analytics’ Employer Data Team. Employers must submit their reports by Friday, May 31, 2019.

What is the EEO-1 survey?

Federal law mandates that certain employers submit employment data for compliance purposes. The survey requires employers to submit data on employee race, ethnicity and sex categorized by one of ten job categories. Employers must gather this data from one pay period in October, November or December of each reporting year. Data must include both full-time and part-time employees.

In addition to sex, employers must report data on the following race and ethnicity categories: Continue Reading

DOL seeks to limit joint employer liability for wage and hour claims

On April 1, 2019, the Department of Labor (DOL) announced a proposed rule to narrow the definition of a “joint employer” under the Fair Labor Standards Act (FLSA). Because joint employers are jointly and severally liable for wage and hour claims brought under the FLSA, the change could have a significant impact on wage and hour litigation as we know it, offering franchisers and businesses that hire workers through staffing firms a shield from liability for some minimum wage and overtime pay violations.

Proposed regulation

Image depicting stack of wage and hour claims

Part 791 of Title 29 of the Code of Federal Regulations contains the DOL’s official interpretation of joint employer status. Under the proposed regulation, it would be significantly revised for the first time in over 60 years. A four-factor test would be used to analyze whether a potential joint employer relationship exists. Those are, whether the potential joint employer exercises the power to:

  • Hire or fire an employee
  • Supervise and control an employee’s work schedules or employment conditions
  • Determine an employee’s rate and method of pay
  • Maintain a worker’s employment records

Significantly, the proposed rule removes the threat of businesses being deemed joint employers based on the mere possibility that they could exercise control over a worker’s employment conditions. As such, merely having a contractual right under a staffing-agency or franchise agreement to exercise control over employment conditions would not amount to the level of control necessary to establish a joint employment relationship.

Expect the unexpected

Once the proposed rule is published in the Federal Register, the notice-and-comment process will begin. The DOL will accept comments from interested parties for 60 days. After that, public hearings on the proposed rule will commence and the DOL will draft formal responses to substantive comments.

In the meantime, expect the unexpected. Workers’ rights advocates who believe the rule goes too far will likely challenge it in court before final publication (if we even get to that point). We will be keeping close tabs and will report on future developments.

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