Senate Majority Leader Chuck Schumer is proposing legislation that would provide for the federal decriminalization of marijuana, although the bill appears to lack the support it needs to gain Senate approval. The measure includes provisions for the expungement of marijuana-related criminal records, and it would mandate the establishment of a federal standard for gauging marijuana-impaired driving.
Bill to Protect Same-Sex Marriage gets House Approval
Legislation that would preserve federal recognition of same-sex marriages and interracial marriages has passed the House in a 267-157 vote. The bill wouldrepeal the Defense of Marriage Act, which the US Supreme Court deemed unconstitutional in a 2012 decision.
MD Wage & Hour Law Differs from FLSA
Maryland’s highest court has ruled that the federal Portal-to-Portal Act is not incorporated into the state’s Wage Payment and Collection Law. This means that employers may be responsible for more wages for their Maryland employees under state law than under federal law.
Under MD law, “hours of work” means the time during a workweek that an individual employed by an employer is required by the employer to be on the employer’s premises, on duty, or at a prescribed workplace.” And, travel time is hours worked if the individual “[t]ravels during regular work hours” or “[t]ravels from one worksite to another.” Until now, it has been unclear whether the state law incorporated the federal Portal-to-Portal Act and therefore whether the regulations should be applied in that context.
Note that the Portal-to-Portal Act excludes from working time the time spent traveling to and from the actual place of performance of the employee’s principal employment activity, as well as preliminary and postliminary activities to that principal activity. Therefore employers are not required to compensate employees for such time under Federal law.
Biden Remains True to Pro-Union Stance
The NLRB announced via a press release on July 15, 2022 an increase in the number of union representation petitions filed with it. During the first 9 months of FY 2022 (which runs from October 1, 2021–June 30, 2022) 1,892 union representation petitions were filed at the NLRB, up 58% from those filed in the first three quarters of FY 2021 (1,197) and a already more than the number of union representation petitions filed in FY 2021 (1,269), as well as being greater than the annual number of petitions filed in each of the last five fiscal years. The highest election activity thus far in FY 2022 were in Region 05 (Baltimore), Region 13 (Chicago), Region 18 (Minneapolis), Region 19 (Seattle), and Region 21 (Los Angeles). In addition, the number of unfair labor practice (ULP) charges filed at the Board in the first nine months of FY 2022 is up 16% compared to the number of ULP charges filed during the same period in FY 2021.
So, if you think that unions will not impact your workplace, think again.
Los Angeles Increases Minimum Wage for Healthcare Workers
LA City Mayor signed the Healthcare Workers Minimum Wage Ordinance, requiring employers with qualifying healthcare workers who work in LA with a minimum wage of $25/hour.
A “healthcare worker” must: (1) be employed to work at or by a covered healthcare facility (as defined in the ordinance); and (2) provide patient care, healthcare services, or services supporting the provision of healthcare. Under the first prong, a healthcare worker is employed to work at a covered healthcare facility only if that individual’s primary work assignment is physically located at one or more such facilities.
Be Careful With Wage & Hour Settlements
As I have reported in the past, in many jurisdictions, an employer cannot settle a wage and hour claim without judicial or US DOL approval. This means that if you negotiate a settlement of a claim with an employee (for example, over a disputed amount of commissions), the employee might be able to keep the settlement payment, but still pursue a claim against the employer under the FLSA. And, know that many judges will not approve an FLSA settlement that does not “make the plaintiff(s) whole”, meaning the settlement must pay the entire amount owed, not a reduced or compromised amount.
NY Establishes Harassment Hotline
Earlier this year, S.812B/A.2035B amended the New York State Human Rights Law, N.Y. Exec. Law § 296, to require a state-wide, toll-free, confidential hotline for complaints of workplace sexual harassment. On July 19, 2022, Governor Hochul announced the launch of this new hotline.
New York employees may now call 1-800-427-2773 to receive free legal counseling regarding any complaint of workplace sexual harassment or to submit a complaint regarding such harassment. The hotline will operate during regular business hours and will be staffed by a team of pro bono attorneys for the New York State Division of Human Rights (“Division”).
Time To Update I-9s
On July 6, 2022, DHS announced that employers are required to update Forms I-9 by July 31, 2022, for all employees who completed their I-9 verifications with expired documents between May 1, 2020, and April 30, 2022.
If an employee presented an expired List B document between May 1, 2020, and April 30, 2022, employers are required to update their Forms I-9 by July 31, 2022.
Note that employers that have employees who were hired during the pandemic and who have remained fully remote remain under a temporary DHS rule through October 31, 2022. Once the employee returns to the office on a regular basis, the I-9 documentation must be physically inspected by a company representative.
Written by: Gordon M. Berger, Partner