This article briefly summarizes federal and state law changes and emerging trends in employment law that may affect employers in 2017. State information is included for Arizona, Colorado, Utah, Montana, New Mexico, California, and Wyoming.
U.S. Supreme Court
2016 saw a handful of employment-related decisions from the highest court in the land, most of which are of passing significance to MSEC members. They are as follows:
In Tyson Foods, Inc. v. Bouaphakeo et al. (U.S. 2016), the Court held that employees could use an expert’s report to establish hours worked donning and doffing protective gear by showing that each member in the Fair Labor Standards Act class-action lawsuit could have relied on that sample to establish liability, had each brought an individual action.
In Heffernan v. City of Paterson, New Jersey (U.S. 2016), the Court held that when a public employer demotes an employee out of a desire to prevent the employee from engaging in protected political activity, the employee is entitled to challenge that unlawful action under the First Amendment and Section 1983 of the Civil Rights Act of 1871.
In CRST Van Expedited, Inc. v. EEOC (U.S. 2016), the Court held that under Title VII’s fee-shifting statute, defendants who prevail can recover whenever the plaintiff’s claim is frivolous, unreasonable, or groundless. A ruling on the merits is not necessary for a defendant to be a prevailing party.
In Encino Motorcars, LLC v. Navarro, et al. (U.S. 2016), the Court held that the Fair Labor Standards Act’s exemption for certain auto dealer employees must be interpreted without placing controlling weight on the U.S. Department of Labor’s (DOL) 2011 regulation, which interpreted the term “salesman” to mean only an employee who sells vehicles.
In Green v. Brennan (U.S. 2016), the Court held that a constructive-discharge claim accrues—and the limitations period begins to run—when an employee gives notice of resignation, not on the effective date of resignation.
The DOL’s final rule requiring federal contractors to provide paid sick leave to employees who work on certain federal contracts takes effect January 1, 2017. According to the DOL, the rule will allow these workers to use paid leave if they are sick, need to take care of a sick family member, or must see a doctor or take a family member to a medical appointment. Workers may also use paid sick leave for reasons related to domestic violence, sexual assault, or stalking.
The final rule implements Executive Order 13706, signed by President Obama on September 7, 2015, and applies to all covered contracts solicited and awarded on or after January 1, 2017.
The 2017 minimum wage rate for Colorado is $9.30 per hour. The new rate will take effect January 1, 2017. Colorado also passed an initiative that will raise the minimum wage incrementally every January 1 until it reaches $12 an hour on January 1, 2020.
Utah’s minimum wage will remain at $7.25 per hour in 2017.
Arizona’s minimum wage will increase to $10 per hour on January 1, 2017, with the City of Flagstaff at $12 per hour. In the 2016 General Election, Arizonans passed Proposition 206, which will raise the minimum wage incrementally each year until it reaches $12 per hour on January 1, 2020. Starting in 2021, Arizona’s minimum wage will adjust based on the cost of living.
Montana’s minimum wage will increase from $8.05 per hour to $8.15 on January 1, 2017.
New Mexico’s minimum wage will remain at $7.50 per hour in 2017. However, some municipalities and counties will have higher minimum wages.
Wyoming will continue to default to the federal minimum wage of $7.25 per hour in 2017.
In 2017, California’s state minimum wage of $10.50 per hour will apply to employers with 26 or more employees. Those with fewer than 26 employees will pay no less than $10 per hour until 2018. Certain cities, town and counties may vary from this rate. Contact an MSEC attorney with your specific questions.
Effective August 10, 2016, the Occupational Safety and Health Administration’s (OSHA) final rule requiring certain employers to electronically submit injury and illness data to OSHA contains anti-retaliation provisions designed to promote complete and accurate reporting.
OSHA delayed enforcement of the anti-retaliation provisions to December 1, 2016.
A covered employer must submit the data beginning in 2017. Requirements change for larger employers in 2018, and the due date changes for all covered employers in 2019.
The Equal Employment Opportunity Commission’s final rules on wellness programs and the Americans with Disabilities Act and Genetic Information Nondiscrimination Act take effect January 1, 2017. They apply on the first day of the first plan year that begins on or after this date.
United States Citizenship and Immigration Services released a revised Form I-9 in November 2016. Employers may continue to use the current version of Form I-9 with a revision date of 03/08/2013 through January 21, 2017. Beginning January 22, 2017, employers must use the new form and all previous versions of Form I-9 will be invalid.
Beginning July 1, 2017, employees in Arizona will accrue paid sick leave. The new law requires businesses with 15 or more employees to provide 40 hours annually of paid sick leave. Businesses with fewer than 15 employees will be required to provide 24 hours. Paid sick leave accrues at the rate of one hour per 30 hours worked. This leave is available to address the medical care, public health emergency, or domestic violence issues for employees or their family members. The law applies to part-time and temporary employees in addition to full–time employees. There are many new aspects to implementing the new law. For questions, contact an MSEC attorney.
Beginning January 1, 2017, employees of private employers can review their employment files at least annually, and former employees can review them one time. The review can be restricted to the presence of an employer representative in charge of files. The definition of “personnel file” is specified and excludes confidential investigations or other materials kept in separate files. Public employees and those of a chartered financial institution are exempt. Colorado employers should take action now to prepare, ensure compliance, and avoid undesirable complications.
Effective August 10, 2016, Colorado eliminated its employment verification affirmation requirement, which the General Assembly found duplicative of the federal I-9 requirement.
Also effective August 10, 2016, the Colorado Pregnant Workers Fairness Act may require an employer to provide reasonable accommodations to pregnant women if doing so would not cause an undue hardship. An employer is also required to comply with new posting and notification requirements.
The Utah Antidiscrimination Act was amended effective May 10, 2016, to require an employer with 15 or more employees to provide reasonable accommodations for pregnancy, childbirth, breastfeeding, and related conditions, unless the employer can demonstrate an undue hardship.
Utah’s noncompete law also took effect on May 10, 2016. With very limited exceptions, the law voids noncompete agreements signed on or after May 10, 2016, with a restrictive period greater than one year. The one-year period begins on the first day after employment ends. The law also provides the employee with financial remedies if the noncompete is determined to be unenforceable. These remedies include arbitration costs, attorney fees and court costs, and actual damages.
California’s expanded Family School Partnership Act and Kin Care Law, effective January 1, 2016, expands the currently authorized reasons for which an employee can take a job-protected leave without the fear of discrimination or termination under the Family School Partnership Act and aligns certain definitions in California’s kin care law with the Healthy Workplaces, Healthy Families Act of 2014.
Effective January 1, 2016, state agencies will be prohibited from signing contracts for goods and services over $100,000 and doing business with companies that do not offer the same health care coverage and benefits to transgender workers that they provide to other workers.
The California Fair Pay Act, which amends California’s Equal Pay Law, took effect January 1, 2016. The amendments address various aspects of the law and make it easier for employees to bring discrimination and retaliation claims based on wage differentials while increasing the burden on employers. The amended law also revises recordkeeping requirements.
Effective January 1, 2016, California’s E-Verify law was amended to expand the definition of “unlawful employment practice” to include an employer using E-Verify in a manner not required by federal law or not authorized by a memorandum of understanding to check the employment authorization status of an existing employee or an applicant who has not received an employment offer, except as required by federal law or as a condition of receiving federal funds. It will also require an employer to comply with any employee notification procedures if the employer receives a tentative non-confirmation, which indicates the information entered in E-Verify did not match federal records. Finally, the amendments provide for a civil penalty up to $10,000 for each violation.
Amendments to California’s Fair Employment and Housing Act became effective April 1, 2016. The amended regulations are far-ranging and cover the standard for establishing discrimination claims, policy and posting requirements, supervisor training, and many other areas.
California’s prohibition against smoking in the workplace includes the use of an electronic device, effective June 9, 2016. An amendment to the law expands the definition of smoking to include the use of an electronic smoking device in any manner or form, including electronic cigarettes, cigars, pipes or hookahs that creates an aerosol or vapor, or the use of any oral smoking device for the purpose of circumventing the prohibition.
Effective July 1, 2016, private employers in Wyoming may grant a preference in hiring and promotion decisions to a veteran, a spouse of a veteran with a disability, or a surviving spouse of a deceased veteran. Granting of a veterans preference shall not constitute a discriminatory or unfair employment practice under local or state equal employment opportunity law.