Employment Law This Week®: NLRB Rulings May Surge, Home Health Pay Dispute, Immigrant Worker Protection Act, Equal Pay Protections

Episode 88: Week of September 25, 2017

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We invite you to view Employment Law This Week® - a weekly rundown of the latest news in the field, brought to you by Epstein Becker Green. We look at the latest trends, important court decisions, and new developments that could impact your work. Join us every Monday for a new five-minute episode! Read the firm's press release here and subscribe for updates.

This week’s stories include ...

(1)  Miscimarra Signals Surge in NLRB Rulings

Our top story: NLRB Chairman Philip Miscimarra signals an upcoming surge in decisions from the Labor Board as his term winds down. Speaking at Epstein Becker Green's Annual Workforce Management Briefing, Miscimarra noted the NLRB traditionally strives to issue its decisions in cases in which a departing Board has participated before the member’s term concludes. In Chairman Miscimarra’s case, that will be December 16th of this year.

(2)  Another 24-Hour Wage Hour Decision for the Home Health Care Industry

New York home care agencies typically pay sleep-in home health aides for 13 hours per day, relying on a 2010 opinion from the state Department of Labor. Two home health attendants who claimed they did not “live in” the homes of their clients filed suit against their employers, claiming that their patients’ need for 24-hour supervision required them to be working or on call for all 24 hours. They argued that they should have been paid the minimum wage for each hour. A state appellate court ruled in favor of the plaintiffs, finding that the 13-hour rule violates the state's minimum wage law. The Department of Health is currently reviewing the decision. Mike McGahan, from Epstein Becker Green, has more:

“The highest court in the state is the Court of Appeals, so appeals still may be taken to that court. Two federal courts in New York this year have ruled on the identical issue and found that the opinion letter of the Department of Labor was entitled to deference, because it did not conflict with the underlying minimum wage order. Now, those decisions may not be binding on the Court of Appeals, but perhaps the reasoning in them will influence the outcome of the case on appeal.”

Watch the extended interview here.  For more, read Mr. McGahan’s recent blog post: http://www.ebglaw.com/eltw88-heal 

(3) California Lawmakers Pass Immigrant Worker Protection Act

New legislation in California around workplace ICE visits: State lawmakers recently passed the Immigrant Worker Protection Act, a series of regulations detailing employer obligations when dealing with Immigration and Customs Enforcement (ICE) agents. The law bars employers from allowing ICE officials to enter their workplaces without a warrant. It also requires employers to receive a subpoena before sharing confidential employee information with agents. The bill will now proceed to Governor Brown for his signature or veto.

For more, read our recent blog post: http://www.ebglaw.com/eltw88-mm

(4)  California Nears Expansion of Equal Pay Protections

California's strict pay equity laws are about to get even stricter: Three bills that would build significantly on the California Fair Pay Act have just passed in the state legislature. One would clarify that the Act applies to both private and public employers; another would prohibit employers from asking applicants about their salary history; and the third bill focuses on gender pay differentials. It would require employers with 500 or more employees to submit pay data for overtime-exempt male and female employees and board members. The information must be submitted to the Secretary of State by July 2020 and then again every two years, and the results will be published on a public website. The Governor has yet to indicate whether he will sign the bills into law.

For more, read our recent Act Now Advisory: http://www.ebglaw.com/news/californias-proposed-wage-shaming-law-is-another-mess/

(5) Tip of the Week

New York City has new legislation about to take effect that will bar employers from asking about salary history. The law goes into effect on October 31, 2017. Dana Sussman, Deputy Commissioner for Policy and Intergovernmental Affairs for the New York City Commission on Human Rights, offers some best practices for complying with the city’s new salary history law:

“Our best advice to employers is to change the tenor of the conversation. We know that it's been a well-established point in the conversation around negotiations and hiring to ask about what one currently makes, because it's part of the calculation of whether you can afford the person, whether it makes sense for your bottom line, and we understand that. What we're asking is that the conversation change from ‘what you're currently making’ to ‘what your salary demand is.’ ‘How much is it going to cost me to hire you away from your current job or from the last job you held?’ And that simple change is very important so that individuals can make that demand and set that expectation without having it be based on their prior salary or their current salary, which may be artificially suppressed because they have been paid less because they're a woman or person of color.”

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