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.

 

Our colleague Brian Cesaratto at Epstein Becker Green has a post on the Health Law Advisor Blog that will be of interest to our readers in the technology industry: “Harden Your Organization’s Domain Name System (DNS) Security to Protect Against Damaging Data Loss and Insider Threat.”

Following is an excerpt:

Although there is no specific mention of DNS in HIPAA, the Gramm Leach Bliley Act, the GDPR or State cybersecurity laws or regulations, including California, Massachusetts or New York, an organization cannot comply with those regulatory frameworks requiring reasonable network security safeguards without considering threats to DNS. The statutory requirements do not generally mandate the particular mix of cybersecurity controls required to protect DNS. Rather, the frameworks require organizations to implement formalized processes to anticipate and assess risks from cyber threats and then adopt reasonable safeguards. Organizations may reference NIST publications and other technical guidance for a catalog of controls to choose from based on the risk assessment. Consistent with the regulatory imperatives requiring vigilance and appropriate counter-measures to safeguard data when threats evolve, organizations should revisit their defenses given the recent threats to DNS.

Attackers seek to disrupt the normal operations of DNS servers and applications responsible for resolving domain names to properly route network communications between computers. DNS looks up the IP address of the computer to receive the communication based on its domain name and advises the computer requesting a connection of the associated IP address to send the request to. For example, when a user types “www.anycompany.com” in his or her web browser or sends an email (e.g., “tsmith@anycompany.com”) DNS resolves the domain name (“www.anycompany.com”) to a numerical IP address, such as 172.30.xxx.xxx. DNS advises the requesting computer of the IP address corresponding to the domain name and the requesting computer accordingly directs the traffic. …

Read the full post here.

Our colleague Tzvia Feiertag at Epstein Becker Green has a post on the Health Employment and Labor Blog that will be of interest to our readers in the technology industry: “NJ Employers and Out-of-State Employers with NJ Residents Prepare: State Updates Website on Employer Reporting for New Jersey Health Insurance Mandate.”

Following is an excerpt:

As employers are wrapping up their reporting under the Affordable Care Act (“ACA”) for the 2018 tax year (filings of Forms 1094-B/C and 1095-C/B with the IRS are due by April 1, 2019, if filing electronically), they should start preparing for new reporting obligations for the 2019 tax year.

After a string of failed efforts to repeal the ACA, Congress, through the Tax Cuts and Jobs Act of 2017 (“TCJA”), reduced the federal individual shared responsibility payment assessed (with limited exceptions) against individuals who failed to purchase health insurance to $0 beginning January 1, 2019. In response, to ensure the stability and provide more affordable rates for health coverage, States, such as New Jersey, have stepped in and adopted their own individual health insurance mandates. New Jersey’s individual health insurance mandate requires employers to verify health coverage information provided by individuals. To assist with employer reporting, New Jersey has launched an official website (lasted updated on March 19, 2019) with guidance on the filing requirements. …

Read the full post here.

Technology, media, and telecommunications organizations are at the forefront of tackling new challenges in handling employee information and managing employee populations. As legislatures (from the federal level down to states and cities) address how technology impacts today’s new workforce, employers must grapple with changes in managing data—from privacy concerns to the use of artificial intelligence in employment matters—and keeping workers happy, including dealing with wage increases, the rise in union activity, and contingent workers in the #MeToo era. A changing workplace landscape requires creative thinking and outside-the-box solutions.

Continue Reading <i>Take 5</i> Newsletter – The Future of Work: Five Developing Trends for Technology, Media, and Telecommunications Employers

Our colleague Nancy Gunzenhauser Popper at Epstein Becker Green has a post on the Retail Labor and Employment Law Blog that will be of interest to our readers in the technology industry: “April Fools Joke? No. NYC Employers Really Have Two Sets of Training Requirements.”

Following is an excerpt:

Don’t forget – April 1 marks the beginning of a new set of sexual harassment training requirements in New York City. While the training requirement began across New York State on October 9, 2018 (and must be completed by October 9, 2019), the City imposes additional requirements on certain employers. Both laws require training to be provided on an annual basis.

While the State law requires training of all employees, regardless of the number of employees in each state, the City law applies only to employers with 15 or more employees. When counting employees, an employer must count independent contractors who work for the employer. …

Read the full post here.

Our colleague Laura A. Stutz at Epstein Becker Green has a post on the Health Employment and Labor Blog that will be of interest to our readers in the technology industry: “Race Discrimination on the Basis of Hair Is Illegal in NYC.”

Following is an excerpt:

The New York City Commission on Human Rights published legal enforcement guidance defining an individual’s right to wear “natural hair, treated or untreated hairstyles such a locs, cornrows, twists, braids, Bantu knots, fades, Afros, and/or the right to keep hair in an uncut or untrimmed state.”   The guidance applies to workplace grooming and appearance policies “that ban, limit, or otherwise restrict natural hair or hairstyles”:

[W]hile an employer can impose requirements around maintaining a work appropriate appearance, [employers] cannot enforce such policies in a discriminatory manner and/or target specific hair textures or hairstyles. Therefore, a grooming policy to maintain a ‘neat and orderly’ appearance that prohibits locs or cornrows is discriminatory against Black people because it presumes that these hairstyles, which are commonly associated with Black people, are inherently messy or disorderly. This type of policy is also rooted in racially discriminatory stereotypes about Black people, and racial stereotyping is unlawful discrimination under the [New York City Human Rights Law].

A grooming or appearance policy prohibiting natural hair and/or treated/untreated hairstyles to conform to the employer’s expectations “constitutes direct evidence of disparate treatment based on race” in violation of the City’s Human Rights Law. …

Read the full post here.