On July 29, 2016, the Illinois General Assembly adopted SB 2613 – the Child Bereavement Leave Act (“Act”) which provides eligible employees with the right to take bereavement leave for the death of a child.  The law went into effect immediately.

Covered Employers.  The Act defines covered employers the same way the federal Family and Medical Leave Act (FMLA) defines employers.  Therefore, a covered employer is one that is engaged in commerce or any industry affecting commerce, and employs fifty (50) or more employees for each working day of twenty (20) or more calendar weeks during the current or preceding calendar year.

Eligible Employees:  The Act defines eligible employees the same way that the FMLA defines employees.  Therefore, an eligible employee is an employee who has worked for the covered employer for at least 12 months (which does not have to be consecutive); has worked for the covered employer at least 1,250 hours during the 12 consecutive months preceding the start of bereavement leave; and works at a worksite where there are at least 50 employees within a 75-mile radius.

Leave Entitlement.   An eligible employee is entitled to use a maximum of two (2) weeks (10 work days) of unpaid bereavement leave to:

  • Attend the funeral or alternative to a funeral for a child;
  • Make arrangements necessitated by the death of the child; or
  • Grieve the death of the child.

Bereavement leave must be completed within sixty (60) days after the date on which the employee receives notice of the death of the child.

Read the rest of the article here: http://blog.hrusa.com/blog/illinois-child-bereavement-leave-act/

In a 3-1 ruling, the National Labor Relations Board (“Board”) recently revised its back pay formula and radically departed from its traditional remedy for compensating employees who have been unlawfully terminated. The Board’s ruling now supports employees’ rights to recover search-for-work and interim employment expenses, regardless of whether the employees have interim earnings and regardless of the amount in question.

The case involved King Soopers, Inc. who employed the complainant who was a barista at a Starbucks kiosk in a King Soopers grocery store located in Denver, Colorado. The employee had been asked by a store manager to assist with bagging groceries. She refused and questioned whether she should be doing the work, given that she belonged to a different union. The employee was suspended for five days and then terminated for gross misconduct after a meeting with store managers and her union. In its decision, the Board affirmed the finding that King Soopers violated the National Labor Relations Act (“NLRA”), which protects an employees’ right to engage in protected, concerted activity. It found that she was within her rights to question whether the work she was being assigned belonged to a different union.

To read the rest of this article or others similar to it, please visit the HRUSA blog here: http://blog.hrusa.com/blog/nlrb-revises-back-pay-formula/

California employers hoped for significant changes following Governor Brown’s budget proposal that called for the Labor and Workforce Development Agency (LWDA) to have more oversight of claims made under the Private Attorneys General Act of 2004 (PAGA).   The budget proposal noted that the departments tasked with investigation and enforcement of the Labor Code has never “had the staffing and resources to effectively review notices, or choose cases for further investigation.”  This is especially true given that the notices are currently being reviewed by a single employee.

Employers in California were optimistic that Governor Brown’s proposal to establish a PAGA unit and hire new employee would reduce unnecessary litigation and lower the cost of doing business.  Although such investigations may still lead to claims and the payment of civil penalties, employers in California were encouraged by the belief that the LWDA would refuse to impose frivolous actions.  Nor would employers be required to pay for attorneys’ fees anytime civil penalties are due.  Unfortunately, Governor Brown’s original proposals were not enacted.  The amendments to PAGA that were enacted do not alleviate most employers concerns with PAGA.  The amendments focus on the procedure rather than substance.  The amendments became effective June 27, 2016.  The amendments provide five primary changes.J. Schoendienst 20

First, an aggrieved employee must pay a $75.00 filing fee when providing the notice of claim to the LWDA.  Previously, an aggrieved employee was only required to provide notice of his or her claims by certified mail to the LWDA and employer. Employers responding to the claim notices with cure notices must also pay the $75.00 filing fee.  The aggrieved employee or employer may obtain a fee waiver by submitting a Confidential Request to Waive Court Fees (Judicial Council Court Form FW-001) or similar form and submit it online with the notice or response.

Second, all notices, both notices of claims filed by the aggrieved employee and cure notices filed by the employer must be submitted to the LWDA online.  A copy of the employee’s notice or employer’s response must be sent by certified mail to the other party.

Third, the amendments extend the time limit for the LWDA to review the claim notice and notify the parties of its intent to investigate.  The LWDA now has 60 days to review the claim notice from the aggrieved employee, instead of the previous 30 days.  The amendments also allow the LWDA 65 days to notify the aggrieved employee and employer of its intent to investigate instead of the 33 days.  This means that if the LWDA does not provide notice of its intent to investigate within 65 days, the aggrieved employee may file his or her civil action.

Fourth, “any settlement of any civil action” filed under PAGA must be approved by the court.  Previously, the court was only required to approve “any penalties sought as part of the proposed settlement.”  Many courts in California interpreted the previous duty only to allow the court to approve of the amount of the penalties and gave them no authority to question any of the other aspects of the settlement agreement.  Now the statute clearly provides the court with the duty to approve the settlement in its entirety.  It is unclear whether this amendment will make obtaining settlement approval more difficult, but it certainly gives the court greater discretion in scrutinizing PAGA settlement agreements.

Fifth, the amendments require the aggrieved employee to provide a file-stamped copy of the complaint to the LWDA within ten (10) days of filing a PAGA action.  It also requires that a copy of a court judgment or any other order that provides for or denies civil penalties under PAGA be submitted to the LWDA within ten (10) days following entry of the judgment or order.

Overall the PAGA amendments will provide the LWDA with the information that it currently lacks – namely how much PAGA litigation is occurring and how much is being allocated for the settlement of these actions.  This will enable the LWDA and lawmakers to decide what, if any, substantive changes or increased funding would be beneficial to reduce unnecessary litigation under PAGA.  Time will tell whether PAGA will continue to be a substantial risk to California employers.  For now the amendments do not provide a solution for employers who hoped the amendments would result in less unnecessary litigation and lower costs of employing employees in California.

The California Labor Commissioner Launches New On-Line Reporting System

On August 31st, the Department of Industrial Relations (Labor Commissioner) launched an online system allowing anyone to report a business’ alleged labor law violations. According to the Labor Commissioner’s Press Release, the new online reporting system is simple to use and enables the Labor Commissioner to receive real time leads on businesses that are breaking labor laws so that it’s Bureau of Field Enforcement can investigate and take enforcement action.

The Report of Labor Law Violations (“Report”) can be completed and submitted on-line or it can be printed out for completion and either mailed in or hand-delivered to the Labor Commissioner’s Office.  The Report asks a number of questions about: 1) the identity and location of the employer being reported; 2) the number of employees; 3) the employers’ business hours; 4) whether the employer has a union contract; 5) the designated workweek and normal/standard work schedule; 6) when meal and rest periods are scheduled; 7) whether the employer keeps time records; 8) the employer’s pay day and method of payment; 9) how employees are paid (hourly, salary, piece rate, etc.); and 10) what languages are spoken by employees at the company.Beth-West-15_web

The Types of Suspected Violations that Can Be Reported Include:

  • Failure to maintain workers’ compensation insurance
  • Child labor violations
  • Minimum wage violations
  • Overtime violations
  • Pay stub violations
  • Meal period violations
  • Rest break violations
  • Pay date violations
  • Business expense reimbursement violations
  • Recordkeeping violations
  • Other wage violations (e.g. failure to pay at a contract rate or pay premium pay for missed meal or rest breaks)
  • Mandatory posting violations
  • Misclassification violations (independent contractor v. employee, exempt v. non-exempt)
  • Licensing/registration violations
  • Lactation accommodation violations
  • Other violations

The Report seeks the name and contact information of the individual making the report but asks expressly if the individual wants his or her name to be used in the investigation or if he or she wants the Labor Commissioner to keep his or her name and contact information confidential.  As such, if a Report is made against a company for alleged labor law violations, it is possible that the company may never know who made it.

Takeaway:  Employers should regularly audit their wage and hour practices to ensure they are in compliance with California’s very strict – and very technical – wage and hour laws.  With the Labor Commissioner’s new on-line reporting system, it will be easier for current or former employees to report what they perceive to be systemic wage and hour violations, and for the Labor Commissioner’s Bureau of Field Enforcement to have more of what the Labor Commissioner refers to as “real time leads” on businesses that may be violating the law.

The attorneys in Weintraub Tobin’s Labor & Employment Group are experienced in assisting employers in conducting wage and hour audits.  Please feel free to contact any one of them if you need assistance with your audit.  http://www.weintraub.com/practice-areas/labor-and-employment.

On May 3, 2016 the Governor of Georgia signed Senate Bill (SB) 277 to amend Chapter 1 of Title 34 of the Official Code of Georgia Annotated.  SB 277 is a very brief and succinct bill that adds the following Section 34-1-9 to Title 34:

“Notwithstanding any order issued by the federal government or any agreement entered into with the federal government by a franchisor or a franchisee, neither a franchisee nor a franchisee’s employee shall be deemed to be an employee of the franchisor for any purpose.”

SB 277 becomes effective on January 1, 2017.

To read the rest of the blog, click here: http://blog.hrusa.com/blog/georgia-protects-small-businesses-from-joint-employer-liability/