As we wrote last month, the state of Washington passed legislation barring most inquiries into salary history by employers, as well as requiring employers to divulge salary bands for posted jobs.  On May 9, 2019, the governor of Washington, Jay Inslee, signed the bill, confirming the law statewide.  The law will take effect on July 28, 2019, and prior to that date, Washington employers should plan to amend any employment applications and hiring practices to conform to the new law.

Our colleagues 

As we previously reported, on April 9, 2019, the New York City Council passed Int. 1445-A, which prohibits employers from pre-employment drug testing for marijuana and tetrahydrocannabinols (“THC,” the active ingredient in marijuana). On May 10, 2019, Int. 1445-A became law by operation of the New York City legislative process, which automatically made the bill law after 30 days without action by Mayor de Blasio. The law becomes effective May 10, 2020, giving New York City employers one year to prepare.

Under the law, employers, labor organizations, and employment agencies, and all of their agents, are prohibited from requiring a prospective employee to submit to a marijuana or THC drug test as a condition of employment. This conduct is now characterized as an “unlawful discriminatory practice.” There are, however, several exceptions to the law. For example, the law will not apply to employees in the following roles: safety-related positions, transport-related positions, caregivers, and certain federal contractors. Further, to the extent that a collective bargaining agreement requires drug testing, the law will not apply to such testing. Please see our Act Now Advisory for further details related to these exceptions. …

Read the full post here.

With warmer weather quickly approaching, many employers are beginning to schedule happy hours, parties, softball games, and other off-site events that employees (and interns) look forward to attending. However, at offsite work events, employees might forget—or might not realize in the first place—that they are still in a workplace setting. This could result in unwelcome behavior, such as sexual harassment, which could leave an employer open to liability.

Under federal law, as well as the law of many states, cities, and municipalities, sexual harassment is considered a type of prohibited gender discrimination. New York City and New York State now require employers to provide their employees with anti-sexual harassment training. States such as California, Connecticut, Delaware, and Maine have similar requirements. Further, even where not required, case law and agency guidance recommend anti-harassment training in several other states. New York does require employers to establish policies against sexual harassment.

Employers should remind their employees that they remain subject to company policies at events outside the workplace.

No matter if harassment occurs at an outside work event or during normal business hours, employers should have clear policies and provide training so that employees are aware of applicable complaint procedures, and can bring any instance of potential sexual harassment to the employer’s attention.

While the summer can be a time for workplace comradery and other off-site events, employers should remember to make sure their employees are aware of their expectations to remain professional and to never engage in discriminatory or harassing behavior.

This tip is featured as Rule #7 in Halting Harassment’s Rules of the Road. Check out the rest of the Rules, and learn more about how Epstein Becker Green’s Halting Harassment e-learning course can help your organization foster a respectful and inclusive environment—both inside and outside the workplace.

On February 19, 2019, New Jersey Governor Phil Murphy signed into law A 3975 (“the Law”), which significantly expanded the state’s the Family Leave Act (“NJFLA”), Family Leave Insurance Act (“NJFLI”), and Security and Financial Empowerment Act (“SAFE Act”).  We prepared an Act Now Advisory, summarizing the extensive changes made by the Law, including, among other things, the expanding and making uniform the definition of “family member” for all three laws, and, effective June 1, 2019, extending the NJFLA to employers that have 30 or more employees.

In response to these amendments, the state recently issued an updated NJFLA poster, which  may be accessed here and an updated NJFLI poster, which may be accessed here.  In addition, the NJDOL has posted updated FAQs regarding the NJFLI. The NJ Safe Act Poster has not yet been updated.

Washington State has begun implementing its new Paid Family & Medical Leave program (“PFML”). Other states, such as New Jersey, New York, and Rhode Island already have paid family and medical leave programs in place, and now Washington, Massachusetts and Washington, D.C. are set to join them over the next few years. Although the benefits portion of Washington’s program does not kick in until 2020, employers’ reporting and remitting of premiums for Quarters 1 and 2 are due between July 1 and July 31, 2019.

The Washington Employment Security Department (“ESD”), which will administer the PFML program, has provided a useful website that summarizes key components of the new statute. Beginning January 1, 2020, employees may collect benefits pursuant to the PFML for (i) their own serious health condition, (ii) to bond with a newborn child or a child placed for adoption or foster care, (iii) to care for a family member with a serious health condition, or (iv) for certain military-connected activities. Under the PFML, most employees will be eligible for a maximum of 12 weeks of partially paid leave.

Current Law Will Sunset

As the PFML becomes effective, Washington’s current Family Leave Act (“FLA”) will sunset on December 31, 2019. The PFML itself does not provide job-protected leave, so in order to receive job protection, employees must be covered under the federal Family and Medical Leave Act (“FMLA”).

Like the FMLA, the FLA provides 12 weeks of job-protected leave to employees who:  (i) work for an employer who employs at least 50 workers within a 75-mile radius,  (ii) work for 12 months for the employer, and (ii) work 1,250 hours in the prior 12 months.  Unlike the FMLA, however, the FLA, permits employees to take family and medical leave to care for a domestic partner. Further, the FLA does not run concurrently with any period of pregnancy disability leave. As a result  an employee may be eligible for a period of leave for her own serious health condition due to pregnancy disability (which is covered by the FMLA), and then may be entitled  to an additional 12 weeks of bonding time under the FLA. When the FLA sunsets, this leave for bonding will be partially paid but not job-protected. Notably, PFML benefits for birthmothers can reach up to 18 weeks (though only in circumstances where there is a serious pregnancy-related health condition that results in incapacity).

PFML Premium Collection and Important Dates

Generally, all Washington employees will be covered under the PFML law. Federal employers, federally-recognized tribes, and self-employed workers are not covered by the program; however, such tribes and self-employed workers may opt-in to participate and receive benefits. To qualify for PFML, employees must have worked for 820 hours or more in the first four of the last five completed calendar quarters. Employees who are covered by a collective bargaining agreement (“CBA”) that was in existence on or before October 19, 2017 are not subject to the PFML, and will not pay premiums for the PFML, until the CBA is reopened, renegotiated, or expires. Employers whose leave programs are comparable to or exceed the requirements of the state’s law may opt-out of the state program, and instead offer a voluntary plan.

Implementation of the program is already in progress, as employers were to begin collecting PFML premiums on January 1, 2019. Both employers and employees are responsible for the PFML premiums. The employee and employer split the medical leave premium and employees shoulder the family leave premium. Employers typically use payroll deductions to collect premiums from employees. For 2019, employee premiums are 0.4% of an employee’s gross wages (the ESD’s premium calculator is a helpful tool for determining premium amounts). The ESD will reassess the employee premium each year, based upon guidelines set by the commissioner of the ESD. Employers can opt to cover some or all of their employees’ share of the premiums. Importantly, companies with fewer than 50 employees in the state of Washington are not required to remit the employer-portion of the premiums, but must remit their employees’ premiums and report certain information, including employee wages and hours, to the ESD.

Employers’ reporting and remitting of premiums for Quarters 1 and 2 are due between July 1 and July 31, 2019. Note that if an employer did not start collecting premiums from employees on January 1, 2019, there is no penalty imposed by the ESD and the employer can, with one pay period advance notice, begin withholding employee premiums at any time. Employers may not, however, retroactively withhold premiums from employees, and employers are responsible for paying any missed employee premiums on behalf of those employees for whom premiums weren’t collected.

As the July 2019 deadline for reporting and remitting of premiums quickly approaches, employers should consider whether they are eligible for a voluntary plan exemption. The ESD began accepting voluntary plan applications on May 6, 2019, and employers can apply for their exemptions here. Employers that do not qualify for a voluntary plan should assess whether all the necessary elements for implementing the state plan are in place, including systems for collecting premiums and reporting employee information.

In an attempt to reduce the gender wage gap, the Washington State Legislature passed HB 1696,(“the Bill”), legislation that will prevent all private employers in Washington State from inquiring into the salary history of prospective employees  or requiring that an applicant’s prior wage or salary history meet certain criteria.  Additionally, the Bill mandates that, upon an applicant’s request, an employer with 15 or more employees must provide the applicant with certain details about the pay rate or salary range for the open position.

If, as expected, the measure is signed into law by Governor Jay Inslee,  the State of Washington will join an increasing number of jurisdictions (including New York City, California, and, most recently, Maine) that have imposed restrictions or bans on salary history inquiries. Similar to some of these other laws, the Bill allows an employer to confirm a prospective employee’s salary history (i) if the prospective employee has voluntarily disclosed his or her salary history, or (ii) after an offer of employment (including compensation) has been made to the prospective employee.

Unlike most of the other jurisdictions’ salary history inquiry bans, however, but, similar to California’s, the Bill requires an employer with 15 or more employees, upon request by a prospective employee who has been offered the position, to disclose the minimum wage or salary range for that position.  Upon request of an employee offered an internal transfer to a new position or promotion, the employer must provide the wage scale or salary range for the employee’s new position. If no range exists (due to a lack of employees or otherwise), the employer must provide a minimum wage or salary expectation prior to the posting of the position, making a position transfer, or making a promotion.

If signed by Governor Inslee, the Bill would become effective 90 days after adjournment of the session in which the bill is passed, on July 28, 2019. Washington’s employers should plan to amend hiring practices to conform to the new Bill’s prohibitions.

Webinar – Spring/Summer 2019

Internship programs can help employers source and develop talent, but they do not come without their pitfalls. If you are an employer at a tech startup, a large financial institution, a fashion house, or something else entirely, and you plan on having interns this summer, this webinar is for you. Learn the steps for creating a legally compliant internship program.

For many years, the U.S. Department of Labor (“DOL”) used the “six-factor test” when determining whether an employee was legally considered an unpaid intern, such that the intern would not be subject to the wage and hour requirements of the Fair Labor Standards Act. This changed at the beginning of 2018, when the DOL adopted the “primary beneficiary test” in a move allowing increased flexibility for employers and greater opportunity for unpaid interns to gain valuable industry experience. Employers that fail to follow the requirements to ensure that an intern is properly treated as an unpaid intern, rather than an employee who is entitled to minimum wages and overtime, could face costly wage and hour litigation.

Our colleagues Jeffrey M. LandesLauri F. Rasnick, and Ann Knuckles Mahoney guide viewers on how they can establish lawful unpaid internship programs. This webinar also addresses the extent to which wage and hour laws apply to interns, and the seven factors that make up the “primary beneficiary test.” This webinar provides viewers practical tips for administering an internship program, whether paid or unpaid, by identifying key considerations for all stages of the internship process.

Click here to request complimentary access to the webinar recording and presentation slides.

Our colleague Stuart Gerson recently authored an article in the Washington Legal Foundation’s Legal Backgrounder that will be of particular interest to our readers focused on privacy and cybersecurity: “Federal Preemption: An Essential Component of an Effective National Data-Security and Privacy Regime.”

Following is an excerpt:

Significant data breaches at every level of national life have pushed the privacy and security of personally-identifiable information (PII) to the forefront of state and federal policymakers’ agendas. In the interests of efficiency and effectiveness, the American business community has argued for several years for a uniform national breach-notification statute that is preemptive of state law. While there have been several congressional initiatives along this line, none have produced a politically viable solution. However, legislative interest has intensified of late for a federal law that encompasses data-breach notification and other aspects of privacy and security. Large and small businesses support a national, preemptive standard due in part to the risks of contradictory and discriminatorily enforced state rules that undergo constant changes and arbitrary administrative implementation.

Despite American businesses’ commitment to security compliance and training efforts, cybercrime and the losses it engenders continue to grow substantially. Moreover, the cyber landscape itself has changed, magnifying the effects of data-breach incidents at both the personal and national-security levels. Both domestic and foreign criminal activity, often sponsored or even conducted directly by, hostile nation states, has run rampant. Individuals, businesses, and government are caught up in a global cyber conflict that cannot be won with the current legal framework of fragmented and contradictory laws, inefficient and often pointless private litigation, inconsistent federal oversight and enforcement, and insufficient public-private trust. We can do better.

Federal preemption and a greater level of privacy and security for personal and enterprise data are not mutually exclusive. Indeed, this paper’s fundamental thesis is that enhancing security and coordination of effort and enforcement at the national level will help preserve individuals’ and businesses’ privacy.

As we recently reported, New York’s Westchester County has published on its website Employer and Employee FAQs, along with a Notice of Rights to Employees, concerning the county’s Earned Sick Leave Law, which became effective on April 10, 2019. The county has now issued the required poster. Covered employers can download the poster and display it in a conspicuous location at their office or facility.

Notably, the poster only references the obligation of employers with five or more employees to provide paid sick time; it is silent with respect to the mandate that employers with fewer than five employees provide unpaid sick leave. However, the county’s Human Rights Commission advises that all covered employers must display the poster.

A Trending News video has been posted now that the Stop Sexual Harassment in NYC Act is in effect. New York employers must provide annual anti-harassment training for their workers, and there are specific rules that apply to independent contractors. Contractors shouldn’t be harassed, and they can also create exposure if they engage in harassment. As a reminder to NYC employers: Don’t forget your contractors!

What the full video below.