June 09, 2017
Despite legislative sessions winding down across the country, critically important developments are still taking place, as a major gender pay equity law was enacted in Oregon, more pay equity proposals advanced in California, and New York City adopted a slew of scheduling measures. According to Littler’s most recent Workplace Policy Institute State of the States report, the new NYC ordinances ban "on call" scheduling, prohibiting retailers from adjusting work shifts by way of canceling, adding, or changing them within 72 hours of the start of the scheduled shift. These and similar ordinances that apply to fast food establishments will take effect in November. Meanwhile, the California State Assembly has recently passed a pair of bills that would respectively prohibit employers from seeking salary information of job applicants and require employers with 250 or more employees to collect and publish specified information on gender pay differentials and submit the information to the Secretary of State. Other significant developments at the state and local level include:
Gender Pay Equity (Oregon, Delaware, New Jersey, Illinois, New York City) Last week, Oregon became the most recent state to enact a sweeping new gender pay equity law when Governor Kate Brown signed the Oregon Equal Pay Act of 2017, which had been unanimously passed by both houses of the legislature. According to an analysis by the Littler law firm, the new law bans inquiries of applicants regarding salary history or basing a new hire’s pay on that history. It also prohibits pay disparities involving "work of comparable character," unless based on a bona fide factor related to the position, which may include, among others, level of education, training or experience. Employers that have voluntarily assessed their own pay practices to identify and eliminate discriminatory pay practices are provided a safe harbor against being subjected to compensatory and punitive damages. Most of the law’s provisions take effect January 1, 2019. Meanwhile, bills similar to the California measures have progressed through at least one chamber in Delaware and New Jersey, and both chambers in Illinois. The Delaware and New Jersey bills preclude an employer from asking about prior salary and from requiring that prior salary be used to qualify or disqualify an applicant for the job. The New York City measure, which we have highlighted before, prohibits employers from inquiring about a prospective employee's salary history or relying on that salary history when setting compensation for the applicant.
Paid Sick Leave (Illinois, Maine) An Illinois measure, which passed both houses, would permit employees to accrue paid time off (one hour for each 40 hours worked) in order to care for their physical or mental needs, to tend to the needs of a family member, to attend medical appointments, to care for children when school or daycare are closed due to an emergency, or to address domestic or sexual violence situations. Meanwhile, a bill in Maine that would require employers of 50 or more employees to provide employees with one hour of paid sick leave for every 30 hours worked has cleared a House committee.
Joint Employer (North Carolina, Alabama, New Hampshire) North Carolina enacted a law that states "[n]either a franchisee nor a franchisee's employer shall be deemed to be an employer of the franchisor for any purposes." This law becomes operative at the end of August. Alabama passed a nearly identical law, while a New Hampshire bill would establish that a franchisor may be considered an employer or co-employer only if it agrees in writing to taking on the role.