California Gov. Gavin Newsom has signed legislation that broadly prohibits nondisclosure clauses in settlement agreements involving workplace harassment or discrimination on any protected bases, not just sex. The “Silenced No More Act” takes effect on Jan. 1, 2022. Senate Bill 331 will nullify and make void provisions within any agreement entered on or after that date that prevent or restrict an employee from disclosing factual information about any type of harassment, discrimination, or retaliation.
If you have pending employment litigation, you may want to look to settle before this new law goes into effect.
MA Family Leave Law Update
The Massachusetts Department of Family and Medical Leave has released important updates that will impact administration of Massachusetts Paid Family and Medical Leave benefits next year, including an increased average weekly wage, an increased maximum benefit for covered leave, and a decrease to the contribution rate from employee wages employers must withhold and remit to fund the PFML benefits.
Effective Jan. 1, 2022, there will be a new average weekly wage ($1,964.24) to calculate an employee’s weekly benefit amount. As a result, the maximum total PFML benefit will be $1,084.31 per week, up from $850. Employers should review their policies to ensure they are updated to reflect these changes, and those with private plans with an approved exemption from the department should confirm they are meeting the requirement to provide benefits that are at least as generous as PFML benefits provided by the department. Also on Jan. 1, 2022, the new contribution rate on employee wages for employers with more than 25 employees will decline from 0.75% to 0.68% of eligible wages.
IN At-Will Doctrine
Indiana has adopted the employment-at-will doctrine and it applies to all employers and employees, unless otherwise provided by contract or statute. Employment contracts that extend for a term of one year or more must be in writing and signed by the party to be charged. Indiana courts imply that employment contracts for an indefinite period of time are “at will.” They also imply a covenant of good faith and fair dealing in employment contracts. Courts will enforce only mandatory arbitration agreements as to those issues that the parties have agreed to arbitrate by clear and express language.
Daily Pay Practices in the Fifth Circuit
According to the Fifth Circuit in the latest string of Helix Energy cases, companies who do business in Texas, Louisiana, and Mississippi that pay employees based on a day rate must now pay those employees overtime even if their annual compensation far exceeds the FLSA’s highly compensated employee (HCE) exemption threshold.
In light of Helix Energy III, companies are now faced with two options when compensating day rate employees: (1) pay overtime wages even if compensation exceeds the FLSA’s HCE overtime exemption; or (2) provide a minimum weekly guaranteed amount paid on a salary basis—regardless of the number of hours, days, or shifts worked—according to actual earnings. If companies continue compensating their day rate employees without factoring in overtime hours or the requirements of Section 541.604(b) of the FLSA, they will likely have to defend lawsuits.
The Fifth Circuit’s application of Section 541.604(b) to day rate employees departs from the First and Second Circuits (although based on slightly differing facts). This creates a split among the circuits that could potentially lead to a future decision by the United States Supreme Court or a change in the law by Congress. However, companies in the Fifth Circuit are stuck with Helix Energy III for now and should consider adjusting their pay practices accordingly.
Texas Executive Order on Vaccinations
By now, most you have heard about Gov. Abbot’s August executive order banning state and local government entities from enforcing vaccine mandates. Now, Abbot issued a new executive order. The two-page executive order, issued Monday, prohibits employers in the state from requiring employees to be inoculated if they object to the vaccine on a religious basis, for medical reasons or for “any reason of personal conscience.”
The order does pose a problem for federal contractors in the state that are subject to the Biden administration’s requirement that all federal contractors be fully vaccinated by Dec. 8.
And it introduces a third potential category for exemptions to vaccine mandates: personal conscience, a term not defined in Abbott’s order or in Texas statutes.
As you also know, at the federal level, OSHA is working on formal regulations relating to vaccine mandates, I expect any rule issued will preempt Abbott’s executive order and any law passed by the Texas Legislature. Smaller businesses that fall below the 100-employee federal threshold would be subject to the Texas executive order or potential state statutes, which are expected to be challenged in court.
I also expect that the executive order will quickly be challenged in court, similarly to how Abbott’s statewide ban on mask mandates is currently being challenged.
OSHA Log Reporting Returning to Electronic Submission
OSHA intends to restore an Obama-era requirement that employers submit OSHA 300 logs and OSHA 301 reports electronically, ostensibly to improve the Agency’s data and to potentially target employers with injury rates over the industry average for additional scrutiny.
Written by: Gordon M. Berger, Partner