- NEW FEDERAL UPDATES -

On July 30, 2018, OSHA published a Notice of Proposed Rulemaking (NPRM) in the Federal Register to amend its recordkeeping regulations by rescinding the requirement for establishments with 250 or more employees to electronically submit information from OSHA Forms 300 and 301. These establishments will continue to be required to submit information from their Form 300A summaries. OSHA is amending its recordkeeping regulations to protect sensitive worker information from potential disclosure under the Freedom of Information Act (FOIA). OSHA believes that this proposal maintains safety and health protections for workers while also reducing the burden to employers of complying with the current rule. OSHA will accept comments on this proposal for 60 days, particularly on its impact on worker privacy, including the risks posed by exposing workers' sensitive information to possible FOIA disclosure.

The U.S. Department of Labor's Wage and Hour Division (WHD) has released Field Assistance Bulletin (FAB) 2018-4: Determining Whether Nurse or Caregiver Registries are Employers of the Caregiver. This Field Assistance Bulletin (FAB) provides guidance to Wage and Hour Division (WHD) field staff to help them determine whether home care, nurse, or caregiver registries (registries) are employers under the Fair Labor Standards Act (FLSA). A registry is an entity that typically matches people who need caregiving services with caregivers who provide the services, usually nurses, home health aides, personal care attendants, or home care workers with other titles (collectively, caregivers).

President Trump has nominated the Honorable Brett M. Kavanaugh to succeed retiring Justice Kennedy to the Supreme Court of the United States. Judge Kavanaugh's philosophy and record in employment-related decisions are generally regarded as conservative and pro-employer, leaning toward a very narrow statutory interpretation. If confirmed, Kavanaugh may have an opportunity to impact U.S. labor law in critical areas including unions, discrimination and arbitration. The Senate Judiciary Committee is expected to begin interviews and hearings in anticipation of a committee vote on the nomination followed by a full Senate debate and vote. It is possible that the new justice could be confirmed before the next SCOTUS term begins in October.

On July 24, 2018, Immigration and Customs Enforcement (ICE) issued a press release confirming that its Homeland Security Investigations (HSI) division had completed the second phase of a nationwide operation from July 16-20, serving 2,738 I-9 Notices of Inspection (NOIs) to US businesses around the country after serving 2450 during its first phase earlier this year. The ICE press release reminds employers about its "three-pronged approach to worksite enforcement: compliance, form I-9 inspections, civil fines and referrals for debarment; enforcement, through the criminal arrest of employers and administrative arrest of unauthorized workers; and outreach, through the ICE Mutual Agreement between Government and Employers, or IMAGE program, to instill a culture of compliance and accountability."

 

Governor Jerry Brown signed S.B. 1500, extending the protections against discharge from employment to U.S. Armed Forces federal reserve members and State Military Reserve members. The law also prohibits places of public entertainment or amusement from refusing entrance to any member of the U.S. Armed Forces because he or she is wearing a military uniform.

Assembly Bill 2770 was signed into law and is effective January 1, 2019. This measure targets defamation claims stemming from sexual harassment allegations. Under the law, certain employee and employer statements regarding sexual harassment allegations are deemed privileged and therefore cannot be used to support a defamation claim.

The governor also signed AB 2587, also effective January 1, 2019. The legislation removes a sentence that references a 7-day waiting period rule to ensure consistency with legislation that went into effect earlier this year that eliminated a statutory seven-day waiting period for Paid Family Leave (PFL) benefits. Prior to January 1, 2018, there was a seven day waiting period before PFL benefits could begin. If employers required an employee to take up to two weeks of earned but unused vacation before receiving PFL benefits, they could apply this vacation time to the seven-day waiting period.

AB 2282 was signed by the governor and is effective January 1, 2019. Existing California Labor Code prohibits an employer from relying on the salary history information of an applicant for employment as a factor in determining whether to offer an applicant employment or what salary to offer an applicant, except in specified circumstances. Existing law requires an employer, upon reasonable request, to provide the pay scale for a position to an applicant applying for employment. This legislation defines "pay scale," "reasonable request," and "applicant" for purposes of these provisions and specifies that these provisions do not prohibit an employer from asking about an applicant for employment's salary expectation for the position being applied for. This bill would authorize an employer to make a compensation decision based on an employee's current salary as long as any wage differential resulting from that compensation decision is justified by one or more specified factors, including a seniority system or a merit system.

The California Supreme Court ruled in Troester v. Starbucks Corporation—a decision likely to increase California employers' exposure to claims by workers paid on an hourly basis for small pre-shift and post-shift tasks that are now treated as insignificant and not compensable. The court held that the relevant California statutes and wage order did not incorporate the de minimis doctrine found in the Fair Labor Standards Act and did not allow employers to require employees to routinely work for minutes off-the-clock without compensation. The Court left open whether there are activities so irregular or brief that employers may not be required to compensate employees for the time spent on them.