National minimum wage enforcement – six traps to avoid (UK)

Definition of the word Minimum wage in a dictionaryJust before Christmas, somewhat lost perhaps amidst the Plan B vs the did-he, didn’t-he Christmas Party merry-go-round, the government released the latest list of employers being “named and shamed” for failing to pay the minimum wage. As you may recall, although the naming and shaming scheme has been around since 2011, it was paused in 2018 pending a governmental review. The government announced that the scheme would re-start (with some changes) in February 2019 and the first list of employers named under the new scheme was published in January 2021. This most recent list is therefore only the third under the new scheme.

The companies named range from multinational businesses and large high street names to SMEs and sole traders, in what the government has trumpeted stridently and probably unnecessarily as “a clear message that no employer is exempt from paying their workers the statutory minimum wage”. Assuming that the majority of these were inadvertent breaches, the immediate question is how a large employer with significant financial and administrative resources can pay below the NMW by accident. Really? What the government’s commentary on the list does not include, and in the interests of fairness probably should, is the reality that if you aim quite lawfully to pay at or just above the NMW, then however big you are, it is distressingly easy to find that you have inadvertently slipped below it.

The press release states that the employers in question had underpaid their workers in the following ways:

  • 37% – making deductions that reduce minimum wage pay, for example leaving workers out of pocket to comply with the dress code
  • 29% – unpaid working time such as mandatory training, trial shifts or travel time (NB, not commuting time)
  • 16% – failing to pay the correct rate to apprentices
  • 11% – not increasing NMW pay in line with government rises or paying the wrong minimum wage, for example paying a 23 year old the 21-22 year old rate

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Supreme Court Halts Implementation of OSHA Vaccine-or-Test Rule (US)

In a per curiam majority decision issued on January 13, 2022, the United States Supreme Court stayed the implementation of the U.S. Occupational Safety and Health Administration’s (“OSHA”) Emergency Temporary Standard (“ETS”) that would have obligated employers with 100 or more U.S. employees to require proof of COVID-19 vaccination or weekly COVID-19 testing, plus imposed face covering and other mitigation strategies. Last month, the Sixth Circuit Court of Appeals lifted another federal appellate court’s earlier stay of the ETS, leaving employers scrambling just before the holidays to develop and disseminate policies and gather vaccination records before the effective date of the ETS (which was deferred until January 10, 2022). With the Supreme Court’s pronouncement, these efforts can be placed on hold for now.

Although recognizing that the Occupational Safety and Health Act (the “Act”) empowers OSHA to issue emergency standards before adhering to ordinarily-required notice-and-comment procedures prior to implementation, the Court noted that this extraordinary power may be exercised “only in the narrowest of circumstances,” where there is the risk of grave danger from exposure to substances or agents determined to be toxic or physically harmful and the emergency standard is necessary to protect employees from such danger. The Secretary of Labor/OSHA (the “Secretary”) had exercised this emergency power only nine times prior to the instant ETS, six of which times were challenged in court. Of these, only one instance of the exercise of authority was found to be lawful, and then only in part. Continue Reading

Looking into workplace investigations, Part 7 – the inclusivity imperative (UK)

Workplace InvestigationThe increased spotlight upon D&I matters which seems to be replacing covid as our clients’ dish of the day shines upon investigations too.  How you investigate employees’ disclosures or complaints (especially but by no means necessarily, of discrimination or harassment) can make a considerable difference as to how those employees and others sharing their protected characteristics view the integrity and value of that process.  If you do not believe that you will get a fair hearing because of your race or gender, for example, you are less likely to make disclosures or complaints in a good faith attempt to improve the situation.  Instead, you are more likely to sit on stuff which the best interests of the business would suggest should be disclosed, and/or just to leave, denying your employer all your talent, experience and commitment, and in no mood to recommend your employer to others who may share that characteristic.  Maximising the confidence of all your staff in your investigations process, whether they feature in it as complainant or accused or witness, is therefore a key part of your getting the most out of doing it properly.  They must believe that the investigation process you propose is suitable for their complaint or disclosure, that it will be looked at objectively and impartially and that it will lead on to meaningful redress where appropriate.

Here are some considerations to that end:

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Collective agreements – EU to limit impact of competition law on self-employed people

On 9 December, the European Commission published draft Guidelines on the application of EU competition law to collective agreements on the working conditions of solo self-employed people providing services. The draft Guidelines are the product of an initial impact assessment published this time last year and a subsequent consultation with stakeholders from March to May. They are wide in scope, defining solo self-employed people as “persons who do not have an employment contract or who are not in an employment relationship and who rely primarily on their own personal labour for the provision of the services concerned”. The practical relevance of the Guidelines is that solo self-employed people now have the certainty that they can discuss and agree on collective actions essentially as if they were employees. Put bluntly: a “union” of solo self-employed persons is not a cartel.

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Looking into workplace investigations, Part 6 – preparing the statutory defence (UK)

Workplace InvestigationOnce you have done all the scoping out and refining of allegations you can before starting your investigation, there will come the point where you have to raise the allegations made with the people they are made against.

If the allegations are false, those people will be very angry.  If they are true, they will be angrier still.  As a minimum they foresee hours they don’t have being hoovered into an investigation they don’t want into conduct they didn’t commit with who knows what acrid taint of smoke without fire clinging to their reputation thereafter.  At worst, it is career-threatening stuff with their job, their home, their marriage, etc. all at stake.

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US Federal Labor Viewpoints – Week of December 27, 2021

From our Capital Thinking blog, our public policy colleague Stacy Swanson shares the latest federal employment law developments in in the legislative and executive branches during the week of December 27, 2021.

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This is a weekly post spotlighting labor topics in focus by the US legislative and executive branches during the previous week.In this issue, we cover:

  • Federal Vaccine Mandate Legal Challenges Update
  • COVID-19 Updates
  • Notable Labor Department Developments

The first session of the 117th Congress adjourned officially on Thursday, December 30.  Lawmakers return to Washington next week for the second session of the 117th Congress, which convenes on January 3, 2022.

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US DOS Extends and Expands Visa Interview Waiver Eligibility; President Rescinds Latest Covid Travel Ban (US)

Due to the limited capacity to adjudicate visa applications during the COVID-19 pandemic, the Department of State (DOS) announced the extension and expansion of its nonimmigrant visa interview waiver program through Dec. 31, 2022. Currently, U.S. consular officers may waive the in-person interview requirement for applicants who are renewing any type of nonimmigrant visa in the same visa category within 48 months of its expiration. That authorization has now been extended indefinitely.

On Dec. 23, 2021, DOS, in consultation with the Department of Homeland Security, granted consular officers through the end of 2022, the authority to waive the in-person interview requirement for certain nonimmigrant visa applicants and their qualifying derivatives who have a petition approved by the U.S. Citizenship and Immigration Services (USCIS). The expanded authority applies to H-1, H-3, H-4, L, O, P and Q applicants, provided the applicants meet certain conditions. Continue Reading

State Law Round-Up: Year-End Edition (US) (Part 2 of 2)

social network of the united states of america, abstract image visualWelcome to Part 2 of the 2021 Year-End Edition of the State Law Round-Up, covering states in the second half of the alphabet. Part 1, covering the first part of the alphabet, can be found here.

Maine:  Maine’s “ban-the-box” law, HP 845, went into effect October 18, 2021.  The law prohibits private employers from requesting criminal history record information on an initial application form or stating on an initial application form or advertisement that a person with a criminal history may not apply or will not be considered for a position.  Violators may be subject to a daily penalty per violation of up to $500 per day.  Employers are exempt from these requirements if federal or state law, regulation or rule provides that (i) a criminal conviction disqualifies an applicant, (ii) imposes an obligation on an employer not to hire anyone convicted of a certain offense, or (iii) requires employers to conduct a criminal history record check.  Continue Reading

State Law Round-Up: Year-End Edition (US) (Part 1 of 2)

social network of the united states of america, abstract image visualWelcome to the 2021 Year-End Edition of the State Law Round-Up! Due to the large number of updates, we will be splitting this State Law Round-Up into two parts, with each part organized alphabetically by state; today we will cover the first half of the alphabet, and tomorrow the remainder. Two exceptions:

  • First – Minimum Wage Updates. State and local governments are still leading the charge to higher minimum wage rates. Our updated minimum wage chart, with rates in effect as of January 1, 2022, is available here.
  • Second – Hairstyle Discrimination Prohibitions Continue to Gain Momentum. Dozens of jurisdictions have passed laws prohibiting employers from discriminating against employees based upon traits typically associated with race, including hairstyle and hair texture. In fact, six states and almost twenty municipalities have passed laws that went into effect during 2021 or will become effective by January 1, 2022. These include: Connecticut; Delaware; Nebraska; Nevada; New Mexico; Oregon; Tucson, AZ; Clayton County and East Point, GA; Louisville, KY; Shreveport, LA; Ann Arbor, MI; St. Louis, MO; Durham, Orange County, and Greensboro, NC; Albuquerque, NM; Columbus, OH; Pittsburgh, PA; Dane County, WI; and Beckley, Charleston, Lewiston, and Morgantown, WV.

And now, for the state-by-state updates!

California:

  • For California updates, please see our recent blog post here.

Connecticut:   

  • Paid Family and Medical Leave Act. Beginning on January 1, 2022, eligible employees may apply for paid family and medical leave benefits under Connecticut’s Paid Family and Medical Leave Act. The PFMLA provides partial wage replacement to eligible employees who take leave for qualifying events; it does not provide a leave entitlement or job protection.
  • Lactation Accommodation Changes. Currently, under C.G.S. 31-40w, all Connecticut employers must make reasonable efforts to provide a room or other location where employees can express breast milk in private.  Following the lead of New York City and California, Connecticut has amended its law to further specify the nature of the room or other location that an employer must provide.  Effective October 1, 2021, unless it would impose an undue hardship on the employer, the room or other location: must be private; must include or be near a refrigerator or employee-provided portable cold storage device in which the employee can store breast milk; and must have an electrical outlet. 
  • Equal Pay. Under HB 6380, beginning on October 1, 2021, Connecticut employers must: (a) disclose the wage range for a position to an applicant upon the earlier of (i) the applicant’s request or (ii) when the applicant is given an offer of compensation; and (b) must provide the wage range for an employee’s position upon hire, upon a change in position, or upon an employee’s request.  “Wage range” is defined as the “range of wages an employer anticipates relying on when setting wages for a position, and may include reference to any applicable pay scale, previously determined range of wages for the position, actual range of wages for those employees currently holding comparable positions or the employer’s budgeted amount for the position.”  In addition, employers are prohibited from discriminating against employees by paying employees who perform comparable work at different rates.
  • Sexual Harassment Training Requirement Amendments. Under current Connecticut law, employers with three or more employees must provide employees with at least two hours of sexual harassment prevention training at least once every ten years. SB 1023 modifies this requirement.  Effective October 1, 2021, if an employee has received the CHRO in person or online training (not private training) with a different employer within two years of hire, the new employer is not required to provide training upon hire.
  • Employment Application Restrictions. Under SB 56, effective October 1, 2021, Connecticut employers may no longer ask applicants to provide their age, date of birth, or dates of attendance at or graduation from an educational institution on an initial employment application, unless the information is based upon a bona fide occupational qualification or is needed to comply with applicable law.
  • Voting Leave. Effective June 23, 2021, Included in a Connecticut special session bill (SB 1202) is a requirement that employers provide their employees with two hours of unpaid time off to vote in state elections.  The mandate took effect June 23, 2021.
  • Marijuana Testing. While recreational adult use of marijuana was legalized in Connecticut as of July 1, 2021, employers may still prohibit recreational marijuana use in the workplace. However, under SB 1201, employers (with a few exceptions for employers in certain industries) may not take adverse action against applicants for pre-employment marijuana use, and can only take adverse action against a current employee who tests positive for use of marijuana if the testing was based on “reasonable suspicion” of intoxication, part of a “fitness for duty” requirement, or was conducted on a random basis (if the employer has a written random drug testing policy or has a legal requirement to perform random testing).

District of Columbia: As reported in our last State Law Round-Up (here), earlier this year Washington, D.C. banned non-compete agreements, with few exceptions. However, effective date of the non-compete ban has been extended to April 1, 2022, giving employers more time to prepare (and giving the District time to consider changes to the non-compete law).

Florida:  Florida’s Combating Corporate Espionage in Florida Act took effect on October 1, 2021. Among other things, the Act increases the penalties for stealing (or attempting to steal) trade secrets to up to five years in prison and creates a new penalty for someone trafficking (or attempting to traffic) trade secrets they knew or should have known were obtained without authorization.

Illinois:

  • Chicago Amends Paid Sick Leave Law. Changes to Chicago’s paid sick leave ordinance went into effect on August 1, 2021.  The amendments include an expansion of the reasons for which an employee may take paid sick leave to include reasons relating to quarantine or isolation.   Additionally, the amendments allow employees to bring wage theft claims against employers for wages due, paid time off required under the paid sick leave law, other laws, or any contract between the employee and the employer, or for employee benefits required by contract.  Finally, the amendments require employers to post and disseminate to employees a revised notice, informing employees of their expanded rights.
  • Illinois Equal Pay Reporting. As anticipated in our last State Law Round-Up, earlier this year, Illinois amended its Equal Pay Act, requiring employers of 100 or more employees in Illinois to obtain an equal pay registration certificate from the Illinois Department of Labor (IDOL) by March 23, 2024 and to renew that certification every two years.  To obtain the certificate, the employer must apply and provide disclosures and affirmations.  Failure to obtain the required certification, or having the certification revoked or suspended, would result in a mandatory civil penalty of one percent of the employer’s gross profits.  On June 25, 2021, Illinois further amended the Equal Pay Act, among other things, changing the initial certification deadline, expanding the employer reporting requirements and doing away with the one percent penalty. Under the amendments, the IDOL will assign individual businesses a deadline by which to apply for certification; the deadline could be as early as March 24, 2022 or as late as March 23, 2024. If the IDOL does not assign a business a deadline, the business is not excused from compliance; rather, it should apply within the above deadlines. The amendments also modified in several aspects the information that employers must compile and submit or attest to as part of the certification process.
  • Illinois Wage Payment and Collection Act Amendment. A recent amendment to the Illinois Wage Payment and Collection Act (IWPCA) (820 ILCS § 115/1 et seq.), effective July 9, 2021, allows employees to recover 5% of the amount of underpayments for each month the amount goes unpaid.  This amounts to a 3% increase to an employer’s monthly liability in the event of a wage violation.
  • Illinois VESSA Amendments. The Victims’ Economic Security and Safety Act (VESSA) ­­­– under which eligible Illinois employees can receive unpaid time off for certain reasons if they (or a “family or household member”) were victims of domestic, sexual or gender violence – was recently amended by House Bill 3582.  Effective January 1, 2022, the definition of “family or household member” is expanded to include grandparents, children, grandchildren, siblings, members of a civil union, or “any other individual whose close association with the employee is the equivalent of a family relationship as determined by the employee.”  Moreover, victims of a “crime of violence” (as defined in the law) will now be eligible for VESSA leave.  HB 3582 also sets forth allowable documentation requirements and requires employers to hold all information received in connection with a VESSA request (including the request itself) in strict confidence.
  • Artificial Intelligence Video Interview Act (AIVIA). Employers who rely solely on artificial intelligence to determine an applicant’s qualifications for an in-person interview will – effective January 1, 2022 – be subject to additional collection and reporting requirements.  Under Illinois’ Artificial Intelligence Video Interview Act (AIVIA), as amended by B. 53, employers will be required to collect race and ethnicity information for all applicants and all individuals ultimately hired.  Moreover, starting December 31, 2022, employers must submit annual reports to the Department of Commerce and Economic Opportunity regarding all collected data for the preceding 12-month period ending November 30.

Indiana: Indiana H.B. 1309 went into effect on July 1, 2021; the law merely requires employers with fifteen or more employees to respond to any requests for an accommodation related to pregnancy or childbirth within a reasonable time, and prohibits such employers from retaliating against employees for requesting such accommodations. The Act does not require employers to grant any accommodations.

Kentucky: Amendments to Kentucky’s Adoption Leave Law went into effect on June 28, 2021.  Previously, the law required employers to provide up to six weeks of adoption leave for adoption of children under age seven.  Under the amendments, the leave extends to adoptions of children under age ten; additionally, if an employer provides more than six (6) weeks of leave to employees following the birth of their biological child, then that longer amount of leave must be provided to qualifying adoptive parents as well. The amendments also require employers to provide the same benefits to adoptive parents as they do birth parents. Finally, the amendments include new restrictions, excluding adoptions by relatives and adoptions of foster children already in the foster parent’s care.

Louisiana:

  • Pregnancy Leave and Accommodations. Effective August 1, 2021, Louisiana expanded protections for pregnant employees; employers with 15 or more employees in Louisiana must now provide reasonable accommodations to employees who need such accommodations due to pregnancy, childbirth, lactation, postpartum or related medical conditions, unless it would pose an undue hardship on the employer.  Reasonable accommodation includes up to four months of unpaid leave (limited to six weeks for normal pregnancy, childbirth or related medical conditions) during any period of disability. Examples of other reasonable accommodations include providing more frequent breaks, providing light duty, if available, and modifying work schedules.  Employers are required to notify employees of the new requirements by December 1, 2021, must notify new employees upon commencement of employment, and must post notice of the law’s requirements in a conspicuous place.
  • Louisiana “Ban-the Box” Law. Louisiana has joined a growing list of states enacting “ban-the-box” laws, which limit employers from inquiring into an applicant’s criminal history.  As of August 1, 2021, employers may not, when making a hiring decision, request or consider an applicant’s arrest record or charge that did not result in a conviction if the information was received in the course of a background check. Further, employers may not consider an applicant’s criminal history unless they have made an “individual assessment” (as described in the law) as to whether it “has a direct and adverse relationship” with the specific duties of the job.  Finally, if the applicant submits a written request, employers must provide the applicant with any background check information used during the hiring process.
  • Louisiana Independent Contractor Test.  Effective August 1, 2021, Louisiana adopted a new multi-factor test to determine if a worker is an independent contractor under the state’s unemployment law.  Per HB 705, if an employer fails to properly classify an individual as an employee, they may be assessed an administrative penalty of $500 per individual (although the penalty may be waived if the employer becomes compliant within 60 days of the penalty).  The penalty for misclassification doubles to $1,000 for a second offense.  All penalties thereafter will be $2,500 per offense.

 

US Supreme Court to Hear Vaccine Mandate Appeals

In a pair of orders consolidating several pending cases, on December 22, 2021, the US Supreme Court agreed to hear emergency appeals from orders from multiple federal appellate courts relating to two of the pending COVID-19 vaccine mandates – the Emergency Temporary Standard (ETS) issued by the US Occupational Safety and Health Administration (OSHA) and the Executive Order issued by President Biden requiring vaccination for certain health care workers. As we’ve extensively covered in prior blog posts, both measures were initially enjoined by lower federal courts. The health care worker mandate remains blocked, but following the Sixth Circuit Court of Appeals’ dissolution of the Fifth Circuit’s order enjoining the ETS, that requirement, applicable to all US private employers with 100 or more employees, was cleared to move forward, with initial compliance required by January 10, 2022.

The Court set the cases for oral argument on January 7, 2022, but did not stay the lower courts’’ decisions pending its hearing. Employers impacted by the ETS and health care worker mandate therefore should strongly consider continuing preparations for compliance in the event the Court decides that these measures can be enforced.

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