CA Accelerates Wage Hike

Due to economic conditions, CA is raising its minimum wage on January 1, 2023 to $15.50 instead of $15.00. Under CA law, the rate adjustment is to be the lower of 3.5% or the rate of inflation (which is 7.9% during the measurement period).

Employment Litigation Down

In 2021, just 21,193 employment law cases were filed in federal district courts, an 18.5% drop from 2012, according to the Lex Machina report, released Thursday, which examined over 245,500 federal district court cases and over 20,600 federal appellate cases filed from 2012 to 2021, including suits brought under the Fair Labor Standards Act, Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act and the Family and Medical Leave Act.

Some commentator attribute the decline to increase use of arbitration and arbitration agreements, but I believe that this is a product of COVID shutdowns and delays in processing charges/investigations at the EEOC. I am seeing an uptick in administrative activity, so I would expect next year to show a marketed increase in litigation.

E-Verify Mismatch Normal Deadlines Return

On July 15, 2022, USCIS announced that E-Verify cases referred to the SSA no longer have an extended timeframe to resolve SSA Tentative Nonconfirmations (TNCs). USCIS announced a phase out schedule:

  1. Employees whose E-Verify cases are referred to the SSA on or after July 15 2022, will have 8 business days (the pre-COVID timeframe) to contact their local SSA offices to begin resolving the mismatches.
  2. Employees whose E-Verify cases were referred to the SSA between March 2, 2020, and July 14, 2022, are still eligible for additional time and will have until September 29, 2023, to resolve the discrepancies.

I-9 Update

In March 2020, the USCIS adopted a policy allowing acceptable documents provided for Form I-9 to be “scanned, faxed, photocopied, or similarly reproduced provided that the copy must be of an original document containing an original handwritten signature, unless otherwise specified.”

On July 25, 2022 USCIS made this a permanent policy.

Small Employers In Miami-Dade County, FL Beware

A recent Third District Court of Appeal opinion in White v. AutoZone Investment Corp. has opened the door for small businesses to be sued in Dade County under the county’s employment discrimination ordinance. In short, employees can sue small employers (i.e., with 5+ employees) for employment discrimination (including race, color, religion, ancestry, sex, national origin, age, disability, marital status and gender identity) without first filing an employment discrimination complaint with the Miami-Dade County Fair Employment Practices Section.

Sexual Orientation Protected Under MI Law

In Rouch World, LLC et al. v. Department of Civil Rights et al., No. 162482 (July 28, 2022), the Michigan Supreme Court found that the MI Elliott-Larsen Civil Rights Act (ELCRA), MCL 37.2101 et seq., prohibition of sex-based discrimination also prohibits discrimination based on sexual orientation.

PA Wage & Hour

Today, the Pennsylvania Minimum Wage Act (PMWA) that goes into effect. The new regulations provide: “The regular rate for salaried employees who are not exempt from overtime is the amount of remuneration determined under subsection (a), [which provides that all remuneration shall be included, with certain exceptions,] divided by 40 hours.” 34 Pa. Code § 231.43(g). The new prohibits the use of the fluctuating-workweek method to calculate overtime for non-exempt salaried employees.

In addition, the regulations define “tipped employee” to be “an employee engaged in an operation in which the employee customarily and regularly receives more than $135 a month in tips.” 34 Pa. Code § 231.1(b). So, the $135 must be paid every month. And, “The employer must notify its employees of any required tip pool contribution amount[.]” 29 C.F.R. § 531.54(c)(2).

Monkeypox Now a National Health Emergency

Recently, the CDC reported that there are over 3500 cases of monkeypox in the US.  Last week, NY Governor Kathy Hochul today issued an Executive Order declaring a State Disaster Emergency in response to the ongoing monkeypox outbreak. This, week CA and IL did the same. Yesterday, the President declared a national health emergency.

So, treat monkeypox like COVID: employees should not come to work with the condition. And, if an employee has had close contact with someone who has been diagnosed with monkeypox or exposed to the virus, they should monitor themselves closely for symptoms for a 21-day incubation period.

Finally, there are no state or federal laws that require employers to provide paid leave for monkeypox, but that could change. For now, follow all state paid sick leave requirements if an employee needs leave for monkeypox.

Shameless Self-Promotion

I have again been named  in The Best Lawyers in America for 2022 in Employment Law – Management.

Gordon M. Berger


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