State & Local Employment Law Developments: Q1/Q2 2020

State and local governments are increasingly regulating the workplace. In the first and second quarters of 2020 alone, legislatures were particularly active in passing laws addressing sexual harassment training, discrimination including hair discrimination, criminal background inquiries, salary history, and a variety of unpaid and paid leaves. Although it is not possible to discuss all state and local laws, this update provides an overview of recent and upcoming legislative developments to help you and your organization stay in compliance. (Please note that developments specifically related to COVID-19 are not included in this update.)

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Complying With WARN Act Requirements During the Coronavirus Pandemic

In response to the COVID-19 (coronavirus) pandemic, major retail chains, manufacturers, hospitality providers and other employers have been reducing hours/pay or closing employment sites. For many employers, these layoffs are expected to be temporary while the virus runs its course, but economic challenges could turn short-term layoffs into events that trigger notice obligations under the federal Worker Adjustment and Retraining Notification (WARN) Act or state “mini-WARN” Acts. This article answers employers’ common wage and hour and WARN Act questions caused by the coronavirus.

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California Employers: Required Security Screening May Be Compensable Work Time

Employees must be paid for time spent waiting for, and undergoing, searches of their bags, packages and personal technology devices, the California Supreme Court ruled February 13, 2020, in Amanda Frlekin, et al. v Apple, Inc., Case No. S243805, answering a question posed to it by the U.S. Court of Appeals for the Ninth Circuit in a case involving Apple. This decision marks a signature departure from the federal Fair Labor Standards Act of 1938, under which time spent undergoing mandatory security screenings is not compensable, the U.S. Supreme Court previously held in Integrity Staffing Solutions, Inc. v. Busk, 574 U.S. 27 (2014). This is yet another example of the greater protection that California state laws typically offer employees.

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Third Circuit Upholds Philadelphia Ban on Salary History Inquiries

In early February 2020, the Third Circuit Court of Appeals decided that a Philadelphia ordinance passed years ago could go into effect and that Philadelphia employers will no longer be able to ask job applicants about their salary history in job interviews and related contexts.

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Landmark Chicago “Fair Workweek” Ordinance Entitles Employees to Pay for Schedule Changes and Lost Work Hours

On July 23, 2019, the Chicago City Council passed the controversial Chicago Fair Workweek Ordinance (the Ordinance). Once Chicago Mayor Lori Lightfoot, a vocal proponent of the Ordinance, signs it into law, the Ordinance is scheduled to take effect for the majority of covered employers on July 1, 2020.

The Chicago Ordinance covers:
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Are You Correctly Calculating Overtime?

Recently, the California Supreme Court issued its decision in Alvarado v. Dart Container Corporation of California. The Court’s decision changes the manner in which an employer must calculate overtime for employees who earn a flat sum bonus during a single pay period. Accordingly, based on the Court’s decision, this is yet another area where the rules in California differ from the federal rules. This decision is significant because it applies retroactively subject to the applicable statute of limitations.

By way of background, both state and federal laws require that amounts awarded as bonuses be included in determining a non-exempt employee’s overtime rate, except in the case of discretionary bonuses.  This means that when the employee works overtime hours and receives a non-discretionary bonus, this bonus program will increase the non-exempt employee’s hourly rate for calculating overtime.

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