Vermont Governor Phil Scott signed legislation on May 11 that will bar employers from asking job candidates about their salary histories during the recruiting process, Littler Mendelson attorney Joseph A. Lazazzero reports at Lexology:
The new law, H. 294, effective July 1, 2018, prohibits asking a prospective, current, or former employee about or seeking information regarding his or her compensation history. For these purposes, compensation includes base compensation, bonuses, benefits, fringe benefits, and equity-based compensation. Under the new law, employers are also prohibited from requiring that a prospective employee’s current or past compensation satisfy minimum or maximum criteria for employment. If an employer discovers a prospective employee’s salary history, the employer may not determine whether to interview the prospective employee based on this information.
Like similar prohibitions in other states, Vermont’s new law still allows employers to confirm a candidate’s past pay if the candidate discloses it voluntarily, as well as to ask about candidates’ salary expectations. When the bill was introduced in the state legislature in January, its sponsors told Vermont Public Radio that it would help close the state’s gender pay gap, which stands at around 16 percent for full-time workers. The original bill also instructed the Vermont Department of Labor to collect new data on gender pay disparities in the state, VPR reported at the time, but this provision does not appear in the final bill signed by Scott last week.
New Jersey Governor Phil Murphy signed a bill into law on Wednesday that will require employers throughout the state to allow nearly all employees to accrue paid sick leave, Matt Arco and Brent Johnson report at NJ.com:
The law—which takes effect in six months—will require employers in the state to offer workers one hour of sick leave for every 30 hours they’ve worked. Workers can use up to 40 hours of sick leave a year. Many companies in the state do offer paid sick leave. But about 1.2 million workers — about one-third of New Jersey’s workforce — still don’t have access. …
Under the law (A1827), time off may be used because the employee or a family member are ill, to attend a school conference or meeting, or to recover from domestic violence. The law allows employers to black out certain dates that can’t be taken off and exempts per-diem hospital employees and construction workers under contract.
As reported when the bill first passed the state Assembly in March, employees begin to accrue this time as soon as they start a new job but are not eligible to use it until the 120th calendar day of their employment. Employers with all-purpose paid time off policies are considered compliant with the law as long as their employees’ PTO accrues at a rate equal to or greater than that mandated by the law.
In a ruling handed down on Monday, the California Supreme Court found in favor of drivers for the last-mile delivery service company Dynamex, who claimed to have been misclassified by the company as independent contractors when they were really its employees. Gizmodo’s Brian Menegus outlines the facts at issue in the lawsuit, first filed in 2005:
Starting in 2004, drivers were required to provide their own vehicles—and pay for all the incurred costs that came with that, like gas, maintenance, insurance, and tolls—while being “generally expected to wear Dynamex shirts and badges […] and/or the customer’s decals to their vehicles when making deliveries for the customer.” … They were converted from employees to this new, more precarious classification “after management concluded that such a conversion would generate economic savings for the company,” the ruling states, creating a deeply lopsided power dynamic.
The court’s decision will have far-reaching consequences, as it ruled not only on the merits of these drivers’ complaint, but also on the manner in which the distinction between employees and contractors should be drawn. The judges significantly reinterpreted their predecessors’ ruling in the 1989 case of S. G. Borello & Sons, Inc. v Dept. of Industrial Relations, which had historically been cited as establishing a standard for classifying workers as contractors based largely on the degree of control a company exercised over their work. The court instead favored the “ABC” standard used in other jurisdictions like Massachusetts and New Jersey, which treats workers as contractors only under the following conditions:
Last month, the US Department of Labor’s Wage and Hour division announced that it was preparing a six-month pilot of the Payroll Audit Independent Determination (PAID) program, to launch this month, which will allow employers to self-report potential overtime and minimum wage violations under the Fair Labor Standards Act and resolve them by paying employees the back wages they are owed, avoiding additional fines and the expensive and time-consuming process of litigation. A similar program was offered under the Bush administration during the 2000s, but the Wage and Hour division took a more aggressive enforcement approach under former President Barack Obama, often assessing double damages.
Wage and hour disputes already being litigated or investigated are not eligible for resolution through the PAID program, nor can employers use it to resolve the same violation twice. Advocates of the PAID program consider it a win-win for employers and employees, allowing underpaid workers to be made whole much more quickly, without having to pay attorney fees. Critics, however, say it goes against the division’s role as an enforcer of employment law and lets unscrupulous employers off the hook, while also expressing concern over having voluntary self-audits take the place of Labor Department investigations.
Among those critics are a number of state attorneys general, who co-signed a letter sent by New York’s Attorney General Eric Schneiderman on Wednesday to Labor Secretary Alexander Acosta informing him that they had serious concerns about the PAID program and would not refrain from pursuing wage and hour investigations under state law against employers who participate in it:
Wednesday morning, the Internet was abuzz with the news that former House Speaker John Boehner had joined the advisory board of Acreage Holdings, a company that grows, processes, and distributes cannabis in states where the drug has been legalized, as had former Massachusetts Governor Bill Weld. The two former politicians, both Republicans, claim never to have tried the drug themselves, but Weld, who was the Libertarian Party candidate for vice president in 2016, has advocated legalizing medical marijuana since the early 1990s. Boehner, by contrast, once said during his time in the House that he was “unalterably opposed” to legalization.
The former congressman attributed his dramatic reversal on the issue to the potential for cannabis as a safer substitute for opioid painkillers, as well as the considerable number of nonviolent drug offenders in the US prison population. Boehner’s change of heart is more than just a quirky political news story, however; it speaks to the rapid pace at which mainstream acceptance of marijuana is growing, even as the drug remains illegal under federal law. Attorney General Jeff Sessions opposes legalization and in January withdrew assurances given by the Obama administration that the Justice Department would not seek to prosecute marijuana users or dispensaries in legal states, but more and more states are moving to decriminalize or legalize the use of marijuana for medical or even recreational purposes.
These changes have major implications for employers, many of whom are unsure how these new laws affect their workplace drug policies, or are beginning to wonder whether rejecting a candidate or firing an employee on the basis of their testing positive for marijuana is actually counterproductive in an uncommonly tight labor market. The latest benchmarking survey from the background-check firm HireRight found that 67 percent of US employers now have policies addressing medical marijuana use, Amy X. Wang reports at Quartz, compared just when 21 percent who said they had such a policy or planned to develop one six years ago.
State legislators in Delaware are considering a bill that would take an unusually aggressive policy approach to combating sexual harassment in the workplace. A bill introduced at the end of March by Rep. Helene Keeley would classify sexual harassment as an unlawful employment practices and require all organizations with 50 employees or more to give supervisors two hours of training on sexual harassment prevention every two years, the Delaware State News reports:
The measure offers a relatively broad description of sexual harassment, defining it as “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature.” … The measure specifies an employer could be held responsible for sexual harassment when it “knows or should have known of the conduct and fails to take immediate and appropriate corrective action.”
The bill comes amid a slew of measures Delaware lawmakers are taking to strengthen the state’s policies against sexual harassment, including the adoption of written sexual harassment policies by the legislature itself and an attempt to add an Equal Rights Amendment to the state constitution, which recently passed the House for the first time, the News Journal adds.
The Delaware State Chamber of Commerce has expressed some reservations about Keeley’s bill and is making recommendations on how it might be amended, but does not oppose it in principle, according to the State News:
The practice of basing a new hire’s salary offer partly on what they have earned in the past has become controversial in recent years in light of the theory that this practice may encourage pay inequities to persist throughout an employee’s career. In 2016, Massachusetts became the first US state to bar employers from asking candidates for their salary histories in an amendment to its equal pay law, and other states have followed suit, including California, Delaware, and Oregon, as well as New York City.
Despite the proliferation of these bans, a recent survey from WorldatWork finds that most employers are still using salary histories as a factor in their pay negotiation process in locations where they are still permitted to do so. While 37 percent of employees surveyed said they had prohibited the practice in all their US locations, 35 percent said they did so only in areas where state and local bans exist and 27 percent said they do not operate in any of these areas.
Smaller organizations were the least likely to ban the use of salary histories nationwide, WorldatWork found, with just 25 percent of organizations with under 500 employees saying they did (49 percent said they did not operate in any locales with statutory bans). Large organizations, in contrast, have done so at greater rates: 46 percent of organizations with 10,000 employees or more said they had stopped using salary histories nationwide, while 37 percent said they had dropped them in jurisdictions where bans are now place.