In the recent election, San Jose voters passed a voter initiative creating the “Opportunity to Work” ordinance. The purpose of the ordinance, which will become effective on March 13, 2017, is to promote full-time jobs and to prevent San Jose employers from choosing to employ workers on a part-time basis only as a means of reducing costs of providing health insurance or other benefits. The ordinance requires San Jose employers to offer hours of work to existing qualified part-time employees before hiring new staff, to keep records of its compliance with the ordinance, and to refrain from retaliation against any employee who exercises rights under the ordinance.
In October, the Department of Justice (“DOJ”) Antitrust Division and the Federal Trade Commission (“FTC” and collectively the “Antitrust Agencies”) jointly issued new guidance for Human Resource professionals regarding agreements between competitors related to hiring and compensation of employees (the “Guidance”). The Guidance explains the Antitrust Agencies’ position with regard to wage-fixing and no-poaching agreements between competitors in the employment marketplace. It also highlights the agencies’ intent to shift toward criminal prosecution of companies and individuals who enter into these types of agreements when they are not ancillary to a legitimate business collaboration, such as a joint venture or a merger or acquisition.
On November 14, 2016, U.S. Citizenship and Immigration Services (“USCIS”) issued a revised Form I-9. The prior Form I-9 which has a 2013 revision date, may only be used until January 21, 2017. Employers should transition to using the new I-9 as soon as possible. Immigration & Customs Enforcement (“ICE”) requires use of the new I-9 no later than January 22, 2017.
Employers must maintain a completed Form I-9 on file for every employee on their payroll and for terminated employees during the required retention period. The purpose of the Form I-9 is to require the employer to establish the employee’s identity and authorization to work in the U.S.
On November 22, 2016, a federal court in the Eastern District of Texas issued a preliminary injunction blocking the Department of Labor from enforcing new regulations that would have drastically reduced the number of white collar employees who are exempt from overtime. The disputed regulations were set to take effect on December 1.
By now, most employers have heard about the changes to the overtime regulations that will increase the salary threshold for overtime exemptions under the federal Fair Labor Standards Act (“FLSA”) to $913 per week as of December 1, 2016. Recently, the New York State Department of Labor (“NYSDOL”) proposed similar regulations which would incrementally increase the salary threshold for the overtime exempt classification under New York State law as well. Depending on the size and location of the employer within New York State, the proposed incremental increases would reach up to as much as $1,125.00 per week over the next few years.
On November 16, 2016, a federal district judge in Texas barred the Department of Labor (“DOL”) from enforcing its new so-called “Persuader Rule.” The rule, which would have imposed broad disclosure requirements on employers responding to union-organizing campaigns, has been mired in controversy since it was proposed in 2011. In April 2016, Sheppard Mullin wrote about the changes the final rule would have made; in June, we covered a proposed carve-out for legacy agreements between employers and third-party advisors.
Effective March 7, 2017, employers who pay wages via direct deposit and/or payroll debit card will need to comply with more stringent requirements. The New York State Department of Labor (the “NYSDOL”) recently issued final regulations governing the methods that New York employers may use to pay most “non-exempt” employees. The regulations impose a number of new requirements on employers who remit wages via direct deposit and payroll debit card, including new notice and consent requirements that employers must comply with prior to utilizing such payment methods.
Earlier this year, the Occupational Safety and Health Administration (OSHA) issued its final rule to Improve Tracking of Workplace Injuries and Illnesses. The new rule has two components – one relating to employee involvement, which takes effect on December 1, 2016, and the other relating to employer recordkeeping, which will be effective January 1, 2017.
Last month, Cook County passed an ordinance requiring employers in the County to provide eligible employees with certain paid sick leave benefits. The ordinance largely mirrors a recent amendment to the Chicago Minimum Wage Ordinance, which was passed in July 2016. Both are scheduled to go into effect on July 1, 2017, and a new Illinois law pertaining to sick pay benefits is set to take effect on January 1, 2017.
Cook County’s ordinance applies to employees throughout the county except where a home rule municipality has passed its own sick leave law. So far, Chicago is the only home rule municipality in the County to have done so, although some other cities in Cook County have expressed an intent to potentially opt out of the ordinance. In addition to these two new ordinances, the state of Illinois has also passed a new law that extends sick pay benefits to family members of employees.
The U.S. Antitrust Agencies (the Antitrust Division of the Department of Justice and the Federal Trade Commission) recently issued a document entitled “Antitrust Guidance For Human Resource Professionals” intended to alert HR professionals to potential antitrust violations involving hiring and compensation decisions.
The Guidance states that firms that compete to hire or retain employees are competitors in the “employment marketplace,” regardless of whether they make the same products or compete to provide the same services. It advises that it is unlawful for competitors to expressly or implicitly agree not to compete and notes that the Antitrust Agencies have taken enforcement actions against employers that have agreed not to compete for employees. To underscore this, the Guidance briefly discusses the enforcement actions that the Antitrust Agencies have taken against entities for agreeing not to compete for employees or agreeing to uniform compensation terms, including actions against high profile technology companies.