Our colleagues in Latin America prepared a succinct briefing of the most impactful recent employment law changes in Mexico, Brazil, Argentina, Chile, Colombia, Venezuela and Peru. From changes to teleworking rules to greater obligations related to family leave, outsourcing and more, there’s a lot to keep up with.
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Together we navigated operational challenges caused by the pandemic, and together we will weather this. What follows is information and practical advice for employers concerned with satisfying their payroll obligations in the near term in the face of their bank falling into receivership.
Continue Reading Navigating Fallout From a Bank Receivership | Practical Tips for US Employers
California employers may soon need to rethink and revise their time-rounding policies–even if they’re neutral. In Camp v. Home Depot, USA, the California Supreme Court is set to weigh in on whether, under California law, employers may use neutral time-rounding practices to calculate employees’ work time for purposes of paying wages. A decision limiting or prohibiting the practice could require major changes to common timekeeping practices for payroll purposes, so employers–especially those engaging in time rounding–will want to keep a close eye on developments.
Here’s what’s happened so far, and what employers should do now.Continue Reading Is Time Rounding Over for California Employers? The California Supreme Court Will Weigh In
Commissioner Sonderling is recognized for his thought leadership on inclusive AI. He is at the forefront of advocating for rational AI enforcement that meets the mandate of equality without disrupting innovation. He has noted the value of learning the perspectives of innovators
California employers will need to review and confirm their employees’ exempt status and non-exempt hourly wage rates before the start of the new year because of an unusual change in the statewide minimum wage applicable to all California employees.
On July 27, 2022, the California Director of the Finance Department sent a letter to Governor
Summer in Chicago always brings welcome change, but the end of the Illinois legislative session in the spring can mean a flurry of new obligations in the summer for Illinois employers. This year is no exception. We highlight five changes Illinois employers should be aware of as they prepare their workforce for this summer and beyond.
On June 29, 2022, Governor Pritzker signed the Create a Respectful and Open Workplace for Natural Hair Act (“CROWN Act”) into law, banning race-based hair discrimination by employers in Illinois. Specifically, the CROWN Act, which is effective January 1, 2023, expands the definition of “race” under the Illinois Human Rights Act (IHRA) to include “traits associated with race, including, but not limited to, hair texture and protective hairstyles such as braids, locks, and twists.” Though a similar law, Illinois SB 817, was signed into law in August 2021, it only prohibited schools from issuing policies on hairstyles historically associated with race or ethnicity. The CROWN Act, expands the protection by prohibiting race-based hair discrimination in employment, housing, financial transactions and public accommodations.
Illinois and 16 other states (including California, Colorado, Connecticut, Delaware, Louisiana, Maine, Maryland, Nebraska, Nevada, New Mexico, New Jersey, New York, Oregon, Tennessee, Virginia, and Washington) and several municipalities have enacted similar CROWN laws. In addition, the US House of Representatives passed a federal CROWN Act in March of this year which would make hair discrimination illegal in all 50 states if passed, but the bill has not yet been approved by the Senate.
What should Illinois employers do now?
Illinois employers should:
On April 27, 2022, the Chicago City Council passed Substitute Ordinance 2022-665, amending the Chicago Human Rights Ordinance and creating new obligations for Chicago employers relating to sexual harassment prevention. The amendments became effective July 1, 2022.
Here are the key changes Chicago employers need to know:
New written policy requirements
Employers must have a written policy prohibiting sexual harassment as of July 1, 2022. The written policy must include:
The written policy must be made available to employees within their first calendar week of starting employment, in the employee’s primary language.
The Chicago Commission on Human Relations (the “Commission”) has provided model sexual harassment policies in several languages on its website.
New training requirements
The written policy also must include a requirement that all employees participate in annual sexual harassment prevention training–and employers are required to mandate their employees participate in the trainings beginning July 1, 2022, meaning that by June 30, 2023 all employees must receive their first round of required annual training. Specifically:
The State of Illinois model sexual harassment prevention training program, which provides one hour of training, is sufficient for the sexual harassment prevention training for employees. In addition, training templates and materials for the additional hour of training (for supervisors / managers) and for the hour of bystander training have been made available to employers on the Commission’s website.
New notice requirements
Effective July 1, 2022, all employers are required to conspicuously display–in at least one location where employees commonly gather–posters, both in English and in Spanish, designed by the Commission about the prohibitions on sexual harassment. The posters are available for download on the Commission’s website.
Recordkeeping requirements
Employers must keep a record of the employer’s written policy prohibiting sexual harassment, trainings given to each employee, and records demonstrating compliance for at least five years–or for the duration of any claim, civil action, or pending investigation relating to the law, whichever is longer. If employers fail to maintain the records, a presumption is created that the employer is in violation of the law (rebuttable only by clear and convincing evidence).
Longer statute of limitations, longer notification period for the Commission, and penalties
Employees now have a 365 day statute of limitations (instead of 300 days) to report all forms of discrimination, including sexual harassment. In addition, after receiving a report of an alleged violation, the Commission has 30 days to notify a respondent (increased from 10 days)–which, according to outreach materials on the amendments, is intended to mitigate retaliation such as denial of a reasonable accommodation request.
Any employer who violates the written policy, training or notice requirements is subject to a fine of between $500-$1000 per day, per offense.
What should Chicago employers should do now?
Continue Reading Illinois Employer Summer Checklist: 5 Recent Changes You Should Know
The U.S. Supreme Court just handed employers a huge win in the continuing war over California’s Private Attorneys General Act (PAGA), a bounty-hunter statute that deputizes employees to sue on behalf of the state. In yesterday’s Viking River Cruises, Inc. v. Moriana, decision, the Supreme Court held that employers may compel employees to arbitrate
The Supreme Court of California has just resolved a long-standing debate over whether employees may recover additional statutory penalties if employers do not include unpaid premium payments for meal period and rest break violations (commonly referred to as “break penalties”) on employee paystubs, or include such premium payments with an employee’s final wages due immediately
Actions under California’s Private Attorneys General Act (PAGA) have long plagued employers, both large and small, but that all may change this year.
PAGA, enacted in 2004, permits a single employee to stand in the shoes of the state’s Attorney General and file suit on behalf of other “aggrieved” employees to recover penalties for California Labor Code violations. The potential recovery against employers can be substantial, with default penalties calculated as $100 “for each aggrieved employee per pay period for the initial violation,” and $200 per aggrieved employer per pay period for “each subsequent violation.” As such, potential PAGA awards commonly reach millions of dollars against small employers, and tens of millions against large employers, just for simple administrative oversights.
In addition to the potential for steep penalties, several California court decisions have expanded the reach of PAGA over the years. In 2009, the California Supreme Court held that employees bringing actions under PAGA need not comply with the strict procedural rules governing class actions. See Arias v. Superior Court, 46 Cal. 4th 969 (2009). Then, in 2014, the California Supreme Court held that employees could not waive their right to bring PAGA claims in court, paving the way for an increase in PAGA litigation. See Iskanian v. CLS Transportation Los Angeles, LLC, 59 Cal. 4th 348 (2014).
Recently, California courts have provided some limits to the expansion of PAGA. In 2021, the California Court of Appeals provided a potential “manageability” defense for employers. Specifically, in Wesson v. Staples The Office Superstore, LLC, the Court of Appeals held that trial courts have the discretion to strike claims for penalties under PAGA if the claims will be unmanageable due to individualized issues at trial. See 68 Cal. App. 5th 746 (2021).
However, the fate of PAGA may rest in the hands of California voters this year. In December 2021, California’s Secretary of State approved the distribution of a petition to put an initiative on the 2022 ballot called “the California Fair Pay and Accountability Act.” The California Fair Pay and Accountability Act aims to essentially repeal PAGA, and replace it with an alternative framework for the enforcement of labor laws.Continue Reading California Employers: An End To California’s Private Attorneys General Act (PAGA)?
Wary of wage and hour class actions, many employers have been grappling with whether and how to compensate employees for activities related to COVID-19. After nearly two years of guessing, on January 20, 2022, the US Department of Labor (DOL) posted Fact Sheet #84, “Compensability of Time Spent Undergoing COVID-19 Health Screenings, Testing, and Vaccinations Under the Fair Labor Standards Act (FLSA),” on its website. The next day, and with no explanation, Fact Sheet #84 disappeared.
Before it disappeared, Fact Sheet #84 addressed the compensability of time spent undergoing those COVID-19 activities with reference to the Occupational Safety and Health Administration’s COVID-19 Vaccine and Testing Emergency Temporary Standard (the OSHA ETS). Given that the OSHA ETS had been stayed just a week earlier by the US Supreme Court and then was subsequently withdrawn by OSHA on January 26, Fact Sheet #84’s sudden disappearance is perhaps not surprising. Nevertheless, employers should keep their eyes peeled for an updated Fact Sheet #84 that addresses compensability of testing and vaccination time without references to the OSHA ETS, especially since the advice in the now withdrawn Fact Sheet #84 is in line with other prior DOL advice on compensable time for employer-required testing and medical procedures under the FLSA.
The guidance in Fact Sheet #84 distinguished between testing and vaccination that occurs during regular work hours and after regular hours:
Activities that occur during normal working hours
