On October 21, 2016, Global Cash Card, Inc., a payroll debit card servicing company, filed a petition with the New York State Industrial Board of Appeals (IBA) for review of regulations related to methods of payment of wages. The IBA is an independent review agency that reviews the validity and reasonableness of certain rules, regulations or orders issued by the Commissioner of Labor by conducting formal administrative hearings. Global Cash Card, Inc. argued that the debit card and direct deposit regulations are invalid because they exceed the New York Department of Labor’s authority and “violate separation of powers between the executive and state legislature, are preempt by federal banking law, and include vague and unreasonable provisions.”
The ADEA & Disparate Impact
The Age Discrimination in Employment Act (ADEA) prohibits employment discrimination against persons over the age of forty. One way an employee can demonstrate age discrimination is by showing that a specific employer policy or practice has a “disparate impact” on members of the protected class. For example, a particular hiring practice that disproportionately impacts applicants over forty can be the basis for an age discrimination case.
Usually, disparate-impact claims are proven with statistical evidence showing the impact of the specific employment decision or policy on employees over forty compared to workers under forty. It also happens that a specific employment policy may adversely impact a “subgroup” of protected workers as compared to younger workers who are within the protected class. For example, an employer’s reduction-in-force decisions may adversely impact a subgroup of workers fifty-and-over as compared to workers between forty and fifty.
As we reported last week, citizens of Arizona city Flagstaff will get the chance in 2018 to decide whether to eliminate the “escalator” clause mandating that the municipal minimum wage remain $2.00 above state levels. It turns out, however, that the state minimum wage will undergo examination even sooner—and not by voters, but by the courts.
The November 2016 general election which established Flagstaff’s minimum wage also saw the passage of Proposition 206, a voter-led ballot initiative which raised Arizona’s minimum wage from $8.05 to $10.00 on January 1, 2017. Prop 206, passed into law as the Fair Wages and Healthy Families Act, also entitles employees state-wide to accrue and use paid sick time as of July 1, 2017.
States across the nation continue the sick leave momentum. Each year, more states and municipalities are requiring employers to provide employees with sick leave time. Michigan might be the latest state to pass such legislation. Since 2014, several Michigan proponents have tried to generate enough signatures to send a paid sick time proposal to the state’s legislature. Failing to collect enough signatures, the proponents tried collecting more signatures in 2016. Failing, again, to collect enough signatures, proponents will continue their attempt in 2018. The goal is to generate enough signatures in 180 days, starting from the time of the first signature, to take the proposal to Michigan’s Legislature.
Frequently, employers’ timekeeping practices include “rounding policies” and “grace periods”. These policies permit employees’ clock-in time to be adjusted around start and stopping work times for administrative purposes. If an employer has a quarter-hour “rounding policy,” employee time is rounded to the nearest quarter hour. Therefore, an employee who clocks in at 8:07 AM would see his wage statement reflect a clock-in time of 8:00 AM, whereas a clock-in time of 8:08 AM would be rounded to 8:15 AM. Likewise, an employer may have a “grace period” that excludes the time an employee is clocked-in either ten minutes before or after the employee’s scheduled shift.
After months of conflict, citizens of Flagstaff finally have an answer as to whether the city’s controversial minimum wage ordinance will live or die…that answer being “not yet, but try again later.” In a widely-attended Valentine’s Day session, the Flagstaff City Council elected not to hold a special election allowing citizens to vote on amendments to the ordinance. Instead, the proposed amendments will appear on the ballot during the November 2018 general election, more than a year after the minimum wage increase goes into effect.
On February 1, 2017, the state of South Dakota introduced Senate Bill 150, which would establish certain provisions regarding paid maternity leave. If passed, the law would permit an employee who has worked an initial one year period as a full time employee for the same employer to take four weeks of paid parental leave. The leave would be to give birth or receive an adoption placement of a child under the age of 18. Employees would need to give their employer at least a two week notice stating the anticipated date of departure and date of return.
California’s Division of Occupational Safety and Health, better known as Cal/OSHA, leads the way in protecting workers from heat exposure in outdoor places of employment. For years, Cal/OSHA has campaigned to raise awareness of outdoor heat exposure and improve the working conditions of outdoor laborers. That focus led Cal/OSHA to release new outdoor heat regulations in 2015. The new regulations cover access to shade, cool drinking water, cool-down rest periods, acclimatization methods, monitoring workers for heat illness, and emergency response procedures. The new regulations also require employers to develop written Heat Illness Prevention Plans and provide training to employees and supervisors in their spoken languages.
On February 6, 2017, Missouri became the 28th Right-to-Work state. Governor Eric R. Greitens signed S.B. 19, prohibiting employees from being required to support a union as a condition of employment. As stated in the text of the law, no individual should be required to:
- become, remain, or refrain from becoming a member of a labor organization,
- pay any dues, fees, assessments, or other similar charges however denominated of any kind or amount to a labor organization, or
- pay to any charity or other third party any amount equivalent to, or on a pro rate basis, any dues, fees, assessments, or other charges required of members of a labor organization.
Furthermore, any agreement between the labor organization and employer that violates the employees’ rights is unlawful, null, and void. An individual that violates any provision of the law will be guilty of a class C misdemeanor. If an individual becomes injured as a result of a violation of the law, he or she may be entitled to injunctive relief against violator. Additionally, injured individuals may recover all damages, costs, and attorneys’ fees.
Each year, more states and communities are requiring employers to provide their workers with sick leave benefits to care for themselves or family members who are ill or injured. This year, Illinois follows the trend with its own Employee Sick Leave Act. The Act doesn’t give workers any additional time off, but it does require employers who already have sick leave or paid time off policies to allow their employees to use up to one-half of their time off to care for family members.
The list of relatives for whom employees can use their sick time includes the employee’s child, spouse, sibling, parent, mother-in-law, father-in-law, grandchildren, or grandparents, stepparents, stepchildren and a domestic partner. The leave can be used for routine illnesses or injuries and medical appointments as well as more serious conditions.