Transcript Document

2014 – What’s on tap?
FOOD INDUSTRY ASSOCIATION EXECUTIVES
86TH ANNUAL CONVENTION
November 8, 2013
Mark M. Trapp
Epstein Becker & Green, P.C.
[email protected]
Attorney-Client Privileged
Privileged and Confidential
Topics Covered
Pay Issues
Leave Issues
Discrimination Issues
Obamacare
Employee Misclassification
• Many states have proposed or passed laws
addressing the practice of labeling workers as
independent contractors, rather than
employees.
• It allows employers to avoid:
– payroll taxes
– workers compensation, and
– unemployment insurance.
• Also labeled “wage theft”
States are
looking for
money – so
expect more
proposals to stop
“wage theft”
• Very “trendy” right now (states are broke!)
Employee Misclassification
• In the last six years, more than half the
states have passed legislation seeking
to curtail misclassification
– Many have signed MOUs with WHD
– WHD actively pursuing others
• Among the “funding highlights” listed
in President Obama’s 2013 budget:
– “Maintain support for agencies that
protect workers’ wages, benefits, health
and safety, and invest in preventing and
detecting the misclassification of
employees as independent contractors.”
Numerous states
have signed MOUs
partnering with
WHD; agree to
share information
and coordinate
enforcement
efforts.
Minimum Wage
• The perennial favorite – the minimum wage!
• At least 13 states set to increase
– Arizona
– California
– Connecticut
– Florida
– Montana
– New York
– Ohio
– Oregon
Federal
minimum wage
= $7.25
Many states
mandate higher
– Rhode Island
– Washington
• Also MO, VT and CO have undetermined increases
Minimum Wage
• On November 5, New Jersey voters
approved a constitutional
amendment
• Boosts the $7.25 hourly minimum
wage to $8.25
• Effective January 1, 2014
• Provides for annual cost-of-living
– tied to inflation
• Seattle vote initiative – SEATAC
– $15.00/hr for airport employees
Many localities
try to mandate
higher wages as
well
Mandatory Paid Sick Leave
• Could come up in numerous states
• Three cities have recently enacted
– New York, NY (40 hours annually)
– Portland, OR (accrue 1 for every 30)
– Jersey City, NJ (accrue 1 for every 30)
• Common themes
– Recordkeeping provisions
– Must inform employees of sick leave
Push for paid
sick leave is
becoming
increasingly
prevalent
– Anti-retaliation provisions
• Sets relatively low thresholds for paid leave,
then mandates unpaid leave below that
Working parents and caregiver leave
• Rhode Island recently passed
– Temporary Caregiver Insurance Law
• Two main components:
– Employers required to provide
•
•
•
At least 4 weeks job-protected leave per year
To employees to care for seriously ill:
Child, spouse, domestic partner, parent, grandparent
•
Or to bond with newborn, adopted or foster child
Caregiver
leave is
percolating in
many places
– Employees eligible to receive payments
• Benefits apparently payable by state (through employer
sponsored insurance)
• Vermont enacted similar legislation in 2013
• California and New Jersey also allow statesponsored short-term disability benefits even if
employee not personally disabled
Working parents and caregiver leave
• San Francisco recently passed
– Friendly Workplace Ordinance
• Provides:
– Request flexible work arrangement
• For caregiving responsibilities for SHC
– Twice a year
• Or after birth, adoption, increase in caregiving
– Accommodations
Flexible work
arrangements
are on way to
being
mandated
• Alternative work schedules
• Telecommuting
• Job sharing
• Part-time work schedule
• Employer must meet with employee within 21
days, and may deny for bona fide reasons
Accommodations for Pregnant Employees
• Seven states have expressly required
accommodations of pregnant employees
– Alaska
– California
– Connecticut
– Hawaii
– Louisiana
– Maryland
– Texas
Pregnancy
accommodations can
also be protected
under the ADA and the
Pregnancy
Discrimination Act,
and many states
human rights laws
• Other laws pending before NY and Congress
• Maryland’s requires employers to explore “all
possible means of providing the reasonable
accommodation”
Accommodations for Pregnant Employees
• New York City enacted last month
– Amended the NYC human rights law
• Effective January 30, 2014
• Prohibits employers from refusing to accommodate employee
• Due to pregnancy, childbirth or related medical condition
• Reasonable accommodations include
• Bathroom breaks
• Breaks to facilitate increases water intake
• Periodic rest for those who stand long time
• Assistance with manual labor
• Flexible schedules
• Time off for medical appointments
• Leave for period of disability arising from childbirth
• Employer not required if can prove “undue hardship”
Discrimination Based on Unemployment Status
• Many states have sought to address
– New Jersey
– Oregon
– District of Columbia
– Nine other states introduced in 2013
• NYC enacted law in June 2013
As economy continues
to struggle, look for
these kinds of items to
keep coming up.
• Bars hiring decisions based on employment status
• Bars advertising for jobs that list current
employment as qualification
• First to create private right of action
• Punitive damages, injunctive relief, attorneys fees
Legalization of Medical Marijuana
• In past 3 years, eight states have
passed
• Illinois becomes effective Jan 1
• Compassionate Use of Medical
Cannabis Pilot Program Act
Don’t worry, if you
can’t find a job, you
can always smoke
dope…
• Can’t discriminate or penalize
individuals for status as “patient”
• May prohibit use on property
• Enforce policies regarding drug testing
(??)
Criminal Background Checks and Credit Reports
• In past 3 years, EEOC has made push
against employers for using
You mean to tell me
background checks to exclude
you didn’t hire me,
applicants
just because I’m a
• Wisconsin has similar law
• Many states (such as Illinois) have
also enacted legislation prohibiting
use of credit checks in employment
• Must have legitimate business reasons
criminal?!? Or a
deadbeat?!?
NLRB “quickie election” rule
• NLRB now has 5 Senate-confirmed
members for first time in 10 years
• Will likely try to resurrect rule
• Quickie elections, stayed last year
• 95 percent of elections are held within 56
days of the filing of a petition.
• Under the rule, this could drop to as little
as 10-21 days.
• The rule would also restrict an
employer's ability to assess the
appropriate unit and effectively litigate
the issues
The NLRB – never
met a union it didn’t
like…
Wait, it’s not the ENDA…
• Senate yesterday passed (for first time)
• Employment Non-Discrimination Act
(ENDA)
• Bans workplace discrimination against persons
because of sexual orientation
• Senate approved 64-32
• Ten Republicans joined Democrats
• Little chance of passing House
• Boehner – would cost small businesses
and increase “frivolous litigation”
First time such
legislation ever
passed the senate
was yesterday.
Obamacare – what’s the deal?
• Rollout is a fiasco
• Who knows how bad it will get
• At least 10-14 democrats have voiced
support for delaying the ACA
• President apologized last night
• Four pending lawsuits might
be major shake-up to law
Obamacare –
demonstrating the
competence of the
federal government.
Are you kidding me
– 6 people??
Obamacare – what’s the deal?
• Section 1311 of the law establishes state insurance
exchanges.
“What we said
• It provides, in part, that “[e]ach State shall . . . establish an was you can keep
American Health Benefit Exchange . . . for the State.”
it, if it hasn’t
changed since the
• Congress can’t force states to do so
law was passed.”
• So set up incentives, one of which is subsidies
– Subsidies are available only to people whose plans “were
enrolled in through an Exchange established by the State
under section 1311 of the Patient Protection and Affordable
Care Act.”
• Trigger for employer mandate is that an employee get a
subsidy
• So if no subsidies in a state, no employer mandate
• 36 of 50 states have exchanges established by federal
government
NOTE -- this could be a very BIG DEAL….
QUESTIONS?