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Legislative Updates August 2018

Aug 02 2018 | In: Posted on Categories Legislative Updates
Hawaii Joins Salary History Ban Trend

Hawaii has joined the list of jurisdictions generally prohibiting employers from asking applicants about their prior compensation history by signing into law Senate Bill 2351 on July 5, 2018.

The new ban will become effective on January 1, 2019 and as long as employers have at least one employee in the state – they are covered.

The salary history bans the following:

Prohibited Inquiries – covered entities may not inquire about an applicant’s current or prior wage, benefits or other compensation

Reliance – covered entities prohibited from relying on salary history to determine applicant’s compensation for the job

Permissible Inquiries – covered entities may discuss applicants’ compensation expectations for the job without violating the law

Voluntary Disclosures – information “voluntarily and without prompting’ disclose by applicant can be considered in setting compensation for the job

Current Employees – law does not apply to applicants for internal transfer or promotion with their current employer

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Chicago Considers Fair Workweek Ordinance

The Chicago City Council currently has before it the proposed “Chicago Fair Workweek Ordinance”.  If passed, it would severely limit Chicago employers’ ability to change employees’ posted schedules, and would restrict employers in employee scheduling.

Designed to mirror laws recently enacted in New York, San Francisco and Seattle – the goal is to provide predictability, flexible schedules and financial stability to hourly workers in Chicago.

As written, the proposed ordinance exempts businesses with fewer than 50 employees, construction workers and railway workers.

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Revised Seattle Paid Sick & Safe Time Rules Give Employers Limited Time to Comply

Seattle’s Office of Labor Standards (OLS) revised its rules concerning the Paid Sick and Safe Time (PSST) Ordinance.

As rules were published to better align with the state PSST law, many revisions incorporate state law standards.

Employers have less than one month from the state PSST adoption date of June 4, 2018 to review and revise policies and practices.  Seattle’s PSST Ordinance took effect July 1, 2018.

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Lyft Beefing Up Background Checks After Latest Driver Arrest

Joining fellow ridesharing competitor Uber, Lyft is upping its background check game in response to an incident involving one of its drivers in San Francisco.

Lyft is choosing to do so after one of its drivers was arrested for rape, and after was also found to be in the US illegally.

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Portland, OR Proposes to Help Renters to Expunge Convictions

The city of Portland has a plan to help low-income renters wipe some criminal convictions from their record as a means of removing a barrier to housing.

In the state of Oregon, violations, misdemeanors and low-level felonies can be expunged – and only after 10 years without another conviction.

The Portland Housing Bureau would contract with Metropolitan Public Defender, a local defense firm, to comb through renters’ criminal history for expungement.  The firm might also help these renters clear other blemishes from their records, including charges that might have been dropped, outstanding warrants, debts or pending evictions.

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Continued Enforcement of New York’s Ban the Box Law

In late June, the New York Attorney General announced a settlement with national retailer Aldo Group, Inc. for violating New York City’s ban the box law.  The investigation revealed that Aldo’s employment applications impermissibly inquired into the applicant’s criminal history, and Aldo also lacked consistent policies and procedures for evaluating the criminal records of applicants and employees.

Under the settlement, Aldo will pay a $120k fine to the NY State, modify their job applications to bring them into compliance, create new policies and training, and report the company’s remediation to the New York Attorney General.

The city of Boston has also been on the hunt for ‘Ban the Box’ Violators.

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Oregon Will Become the First State with a Predictable Scheduling Law

On July 1, the state of Oregon became the first state with a predictable scheduling law in effect.  As with similar laws passed by municipalities such as New York City and San Francisco, the law imposes certain financial penalties on covered employers that make changes to employees’ schedules – and may restrict scheduling practices such as on-call shifts.

Covered employers by the Oregon state law include retail, hospitality or food service employers with 500 or more employees  with operations in Oregon.

Covered employers have time to develop a compliance plan as the law will not be enforced until at least January 2019.

Read Full Article for Key Takeaways and Details


NYC’s Temporary Schedule Change Law is Now Effective

New York City’s “Temporary Schedule Change” law became effective on July 18, 2018.

All employees who have worked for an employer for 120 days and have logged 80 hrs. of work in NYC are now eligible to seek temporary schedule changes under the law.

The law provides eligible employees with the right to request two temporary schedule changes per calendar year for “personal events”, and employers in NYC must now be prepared to respond to these requests.

Types of requested schedule changes can include a limited alteration of scheduled hours and location where employee is expected to work, using paid time off, permission to work remotely, permission to swap shifts with another employee, and permission to use short-term unpaid leave.

The also sets forth the type of “personal events” that qualify for lead under this law.  Be sure to read the Full Article for details.

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New Jersey – Out-of-State Plaintiffs Covered by Open Public Records Act, Court Says

The Appellate Division in NJ has ruled that a person seeking records under the state’s Open Public Records Act does not have to be a resident of the state.

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Bridgeport, CT School Board Debates Criminal Background Limits to Employment

The Bridgeport, CT School Board is currently debating just how long, and how much, of a criminal background should make someone ineligible to run a program for the school district.

The discussion started because of a man that had been convicted in 2012 of nine counts of second-degree harassment for hundreds of frightening late-night phone calls to district school teachers.  This man is now attempting to bid to run an alternative education program for special education students and classes for expelled students.

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District Court Preliminarily Enjoins Some Components of California Sanctuary Laws Impacting Employers

The US Dept of Justice obtained a partial victory in its challenge of California’s Immigrant Worker Protection Act (AB 450) when a CA federal court held that certain provisions of AB 450 violated the Supremacy Clause of the US Constitution.

For now, private employers in California are no longer prohibited from consenting to ICE agents entering its nonpublic premises or consenting to access, review, or obtain a current employee’s records.  California can still prevail over this preliminary injunction as the case progresses.

Many more details are included in the Full Article.

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US Department of Labor Issues First Substantive Guidance on Independent Contractors

The Wage and Hour Division of the Department of Labor issued a bulletin in July titled “Determining Whether Nurse or Caregiver Registries Are Employers of the Caregiver.”  Although this focuses on the caregiver registry industry, it provides the current administration’s first substantive guidance on independent contractor classification.

This signals the DOL’s return to the traditional, multi-factor balancing test to determine independent contractor status with a primary focus on control of the worker.

A lot more to know about this – check out the Full Article for details.

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Puerto Rico – New Act Extends the List of Authorized Deduction to Non-Exempt Employees’ Wages

The Governor of Puerto Rico recently signed into law Act No. 115, extending the list of authorized payroll deductions under Act 17-1931 (“Act 17”).

Act No. 115 was enacted following Hurricane Maria to provide employees with an additional source of income in the state of emergency situations.

The Act provides that an employer may deduct or withhold a fixed amount of money from an employee’s wages to fully repay (without interest) the sum corresponding to a loan, advance, equipment, material or goods that the employer provided that is directly related to an emergency situation.

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FTC: Fair Credit Reporting Act Still Top Priority

During July testimony before the Senate Banking, Housing and Urban Affairs Committee, the Federal Trade Commission left little doubt that enforcing the FCRA remains a top priority.

Maneesha Mithal, associate director of the FTC’s Division of Privacy and Identity Protection, noted that the FTC has brought more than 30 actions to enforce the FCRA against CRAs, users of consumer reports, and furnishers of information to CRAs.

During the testimony, she also reviewed the agency’s efforts to protect consumer privacy, promote data security, and educate consumers and business about the law’s requirements.

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State Farm Defeats Job Applicant’s Credit Check Lawsuit

State Farm defeated a lawsuit by a job applicant who said it didn’t give him a chance to review incorrect information in a credit check before it turned him down for a job.

The plaintiff in this case accused State Farm of relying on inaccuracies in his credit history when it rejected him.  The report showed that he had unpaid debt, but certain information about the debt was incorrect.

The justices rules that a business publishing information about someone that is inaccurate, but doesn’t cause harm, may not violate rights under the FCRA.

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Ninth Circuit Holds Plaintiff Lacked Standing for an Alleged Violation of the FCRA’s “Pre-Adverse Action” Notice Provision

While State Farm successfully defended itself from violating the FCRA (see above), the case was litigated based on the US Supreme Court’s ruling in another FCRA case.

Check out the article below for an interesting read on Robins v. Spoken, Inc., the case that is influencing FCRA cases currently.

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Maine – Child Care Workers to Face Background Checks, Fingerprints

Overriding the Governor’s veto, Maine lawmakers approved a law that will require thousands of child care workers in Maine to undergo criminal background checks and fingerprinting.

The state estimates 5,000 background checks in the law’s first year, then 2,00 annually after that.

The state will reimburse agencies for the cost of the background check fees and processing costs.

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The National Law Review Provides California’s Data Privacy Law: What it is and How to Comply (A Step-by-Step Guide)

Just as US companies are getting used to the UE’s General Data Protection Act (GDPR), California just passed the California Consumer Privacy Act of 2018 (CCPA).

The law takes effect on January 1, 2020 and will require US companies to implement a number of privacy initiatives similar to GDPR.

The National Law Review put together a great Step-by-Step guide for compliance – check it out below.

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Data Privacy: The Hong Kong Approach

Speaking about Data Privacy – here’s a good read on how companies in Hong Kong are dealing with this ever-developing issue.

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