iStock-649373572Authored by Katherine M. Smallwood

Seyfarth Synopsis: On May 8, 2017, Governor Nathan Deal signed a law expanding the reach of a pre-existing statute that prohibits Georgia localities from passing ordinances affecting worker pay in Georgia. The amendment is in line with a trend of states’ laws proactively limiting counties’ and cities’ abilities to promulgate ordinances that exceed worker protections that state and federal laws provide.

House Bill 243, authored by Representative Bill Werkheiser (R – Glennville), amends the Georgia Minimum Wage Law to preempt any local government rules requiring additional pay to employees based on schedule changes. The Georgia Minimum Wage Law already prohibited local governments, such as counties, municipal corporations, and consolidated governments, from adopting mandates requiring an employer to pay any employee a wage rate or provide employment benefits not otherwise required under state or federal law.

Prior to the adoption of House Bill 243, the Georgia Minimum Wage Law defined “employment benefits” to mean “anything of value that an employee may receive from an employer in addition to wages and salary,” including but not limited to, “any health benefits; disability benefits; death benefits; group accidental death and dismemberment benefits; paid days off for holidays, sick leave, vacation, and personal necessity; retirement benefits; and profit-sharing benefits.” House Bill 243 amends the definition of “employment benefits” to include “additional pay based on schedule changes.”

According to the National Federation of Independent Business, House Bill 243 benefits employers by protecting them from predictive scheduling requirements, which are intended to require employers to set employees’ work schedules in advance and pay an employee for lost or adjusted time if the schedule changes after the employer initially sets it. Proponents of the Bill argued that members of the food, service, and retail industries rely heavily on scheduling flexibility to serve their customers, and that these business realities justified the Bill’s protection from predictive scheduling requirements that localities might promulgate if it were not passed into law.

The Georgia Minimum Wage Law and this new amendment to it are part of the larger wave of so-called preemption bills, which seek to preclude localities from enacting ordinances that impose additional obligations on employers operating within their boundaries. Numerous states, including South Carolina, Minnesota, Tennessee, Missouri, and Arkansas, have either passed or considered similar preemption laws. While the laws in these several states (each of which is generally perceived to be business-friendly) should provide some solace to employers on the lookout for business-impacting local laws, they also highlight the need for caution in states whose legislatures are less willing to restrict cities’ and counties’ from passing worker protection laws.

Authored by Alex Passantino

‘Twas the week before Christmas, 2-0-1-5
When the poetry elves on the blog came alive.
Crafting their rhymes with a purpose so clear:
Presenting the wage-hour gems of the year.

In January, for new regs in this year our breath bated.
Then for six painful months, we speculated and waited.
And just as we geared up to celebrate Independence,
Out came a proposal that will create more defendants.

With a salary level that for 10 years has been flat,
They looked at New York’s and said “higher than that.”
More than double the old; and then they got clever …
The proposed sal’ry level will increase for forever.

Anticipated changes to duties caused quite a fuss
When DOL said “If you’ve got some ideas, just tell us.”
Of the Department’s proposal, employers were understandably wary,
So we wrote down some ideas on how to make it less scary.

Nearly 300 thousand comments they have to review,
It will be late into next year before they are through.

Next up on the list of your wage-hour joy,
Are the efforts to change what it means to employ:
ContractorsJoint employment. Fissured industry.
Interns. The “third way” and gig economy.

Economic realityRight to control.
They’re integral to your business? Now you’re in a deep hole.
So many angles, it can drive you berserk.
As agencies and courts figure out what is “work.”

And if divergent decisions bring you a sense of elation,
Then please focus attention on class certification.
Approvals, denials, and some decerts, too.
No matter the side, there’s a case for you.

But as summer approached, there arose quite a stir,
A case that’d explain what the class cert rules were.
A Supreme explanation, o my-o, o me-o
We’d learn about class via Bouaphakeo.

They’ve argued, but there’s no decision, not yet,
And a limited ruling on records might be all that we get.
But the cases keep coming. Their numbers broke the charts.
Whether giant class actions or cases broken in parts.

And the response to those filings? The employers’ retort?
A wide range of ways to get them out of court.

Some cases get mooted. Some cases do not.
At Genesis’s open question, SCOTUS might take a shot.
Does an offer of judgment that’s not been accepted
Mean the plaintiff cannot proceed with his class as expected?

Increasingly used as a litigation life saver
Arbitration agreements with a class action waiver;
And when asked if state laws could class waivers prevent, yo,
The Supremes laid the smack-down to dear Sacramento.

With all of these options, it comes as a surprise then,
That one resolution keeps on getting the Heisman.
For reasons that many cannot understand,
To settle wage claims courts think they must hold your hand.

That’s our year in review, we whipped you right through it.
Next year? The new regs and a mad dash to review it.
But before 2015 joins the past’s ranks,
You keep on reading our blog, and for that we give thanks!

THANKS TO ALL OF OUR READERS. BEST WISHES FOR A HAPPY, HEALTHY, AND PROSPEROUS NEW YEAR!

Authored by Abad Lopez

Starting July 1, 2015, the minimum wage in the City of Chicago is $10 per hour. The Chicago City Council approved an ordinance that also increases the city’s minimum wage in successive increments through July 1, 2019. By enacting this ordinance, Chicago becomes one of the largest U.S. cities to adopt such a measure—following a trend that threatens to sweep the nation. This substantial wage increase adds to an already complex and burdensome landscape for employers in the Chicagoland area, which includes a recently enacted Cook County Wage Theft Ordinance that can strip employers of their business license for violating any wage laws.

In the Chicago Ordinance, the coverage for employees is broad—including all individuals and business entities that maintain a business within the city limits and/or are subject to license requirements of Chicago. What’s more, the ordinance applies to employers employing as few as one covered employee, which is defined as any person who spends two or more hours working in the City of Chicago in any two-week period. And with respect to “working,” travel time to sales calls and for deliveries is compensated time if done within Chicago’s city limits.

Going forward, the City minimum wage will increase all the way up to $13 per hour by July 1, 2019. Tipped employees also get a raise—the ordinance increased their new rate based on the state or federal minimum wage—whichever is greater—plus $.50. This increases to an additional $1 per hour starting July 1, 2016. Starting each July 1 from 2017 and onward, tipped employees are entitled to the highest of federal, state, or city minimum wage for tipped workers from the year prior. Practically, the tipped minimum wage, which is currently $4.95 at the state level, will increase to $5.95 by 2016. The Ordinance also mandates that employers post a notice of these changes at their business facility. A copy of that notice can be found here. Employers face civil fines of between $500 to $1,000 for each offense. Employees can also file civil lawsuits under this Ordinance, in which they can recover up to three times the amount of underpayment, in addition to attorney fees and costs. What’s more, the City can deny a business license to any employer for committing three violations of this Ordinance within the last 24 months.

This adds to the pitfalls in the Cook County Wage Theft Ordinance, which threatens stiff sanctions for any wage law violations. Under this ordinance, effective since May 1, 2015, any employer who has violated state and federal wage laws, including the Illinois Minimum Wage Law or other federal or state laws (including from other states) will be ineligible to hold a Cook County business license. There is a five-year look back period, so any violations in the preceding five years carry the same consequences. What does this mean? According to the Cook County Ordinance, if there was a wage violation outside of Cook County or even in another state, employers could lose their Cook County business license, among other potential consequences.

To avoid liability and harsh penalties, employers should determine which employees will be affected by both ordinances, revise pay ranges for any covered employees, and comply with the notice requirements. Employers should also take heed—and generally be wary of local wage ordinances—which are likely to be enacted throughout the U.S. with greater frequency and, like the Chicagoland ordinances, may include traps for the unwary with potentially drastic consequences.

Authored by Robert S. Whitman

For New York City employers, there’s a new sheriff in town.

Make that a new Mayor.

As we have reported previously, New York City recently enacted the Earned Sick Time Act, which requires most private employers to give up to 40 hours of sick leave a year to their employees working in the City.

Now, barely two weeks into his tenure – and more than two months before the law is slated to take effect on April 1 – Mayor Bill de Blasio has proposed a significant expansion to the Act’s provisions.

According to the City website, the revised version of the Act would:

  • Extend paid sick leave to workers at businesses with five or more employees.  (The current version requires paid leave only for businesses with 20 or more workers when the Act takes effect, and for business with 15 or more workers 18 months later.  Mayor de Blasio estimates that this will result in paid coverage for an additional 355,000 workers.  Smaller employers would continue to be required to provide unpaid leave.)
  • Eliminate the phase-in of coverage.  (The current version mandates paid leave for companies with 20 or more employees in the first 18 months after the law goes into effect, and companies with 15 or more employees thereafter.)
  • Remove the exemptions for manufacturing employers.  (The current version exempts employers classified under sections 31-33 of the North American Industry Classification System.)
  • Add grandparents, grandchildren, and siblings to the definition of family members.  (The Act requires employers to allow employees to use sick leave to care for ill family members.  Under the current version, “family member” is limited to an employee’s child, spouse, domestic partner or parent, or the child or parent of an employee’s spouse or domestic partner.)
  • Eliminate the economic trigger for the Act to take effect.  (The economic trigger, however, has already been pulled, with the law scheduled to go into effect on April 1, 2014.  It does not appear that the revised version would take effect any earlier than April 1.)

These changes look to have strong support in the City Council.  Mayor de Blasio will introduce the revisions as a new version of the overall legislation, which City Council Speaker Melissa Mark-Viverito has pledged to move quickly to a vote.