Q: Did the Pennsylvania Department of Labor & Industry amend regulations to increase the minimum salary employees must receive in 2021 and beyond?

A: The Pennsylvania Department of Labor & Industry recently amended Pennsylvania Minimum Wage Act (PMWA) regulations to increase the minimum salary employees must receive in 2021 and beyond to qualify for one of the so-called “white collar” (i.e., executive, administrative, and professional) exemptions from overtime pay. The final rule became effective on October 3 after its publication in the Pennsylvania Bulletin. Consequently, the state overtime regulations under the PMWA will now differ from the federal overtime regulations under the Fair Labor Standards Act (FLSA) in two important ways. First, starting on October 3, 2021, the PMWA will require a higher minimum salary than required by federal law. Second, the minimum salary required under the PMWA will adjust automatically every three years starting in 2023.

Q: What do I need to know about the recently enacted Philadelphia ordinance providing Philadelphia employees with paid public health emergency leave?

A: On September 17, Philadelphia Mayor Jim Kenney signed an ordinance, providing paid “public health emergency” leave benefits to workers in Philadelphia who physically report to their jobs and who may not have been covered by the Families First Coronavirus Response Act (FFCRA) — including employees working for businesses with more than 500 employees. The ordinance applies to all employees (and some nonemployees, including independent contractors) working within the geographic boundaries of the City of Philadelphia for at least 40 hours in a year. Potential nonemployees covered by the ordinance include domestic workers (e.g., housekeepers), health care professionals, home care workers, and gig workers (e.g., individuals driving for rideshare or food delivery services).

Q: Is there new legislation that expands COVID-19 protections to California employees?

A: Since the beginning of 2020, employers have had to make significant changes to their operations due to an increasing number of newly enacted legislation and requirements in response to the COVID-19 pandemic. As we enter the final quarter of 2020, California employers must again quickly respond to new legislation that expands COVID-19 protections to California employees and imposes stringent requirements on California employers. This month, California Governor Gavin Newsom signed three COVID-19-related bills into law that affect employee rights: (1) SB 1159, (2) AB 659, and (3) AB 1867.

Senate Bill 1159: “Workers’ Compensation: COVID-19”

Effective immediately for California employers with 5 or more employees, Senate Bill 1159 creates a presumption of entitlement to workers’ compensation benefits for employees infected with COVID-19 if:

  • The employee tested positive for or was diagnosed with COVID-19 within 14 days after performing labor or services at the employee’s “place of employment” (excluding the employee’s residence) at the employer’s direction; and
  • The employee tests positive during an “outbreak” at the specific place of employment (as determined by the employer’s claims administrator).

Q: What are the details of Assembly Bill (AB) 2257 and how does it change the way I utilize independent contractors?

A: On September 4, 2020, Gov. Gavin Newsom signed Assembly Bill (AB) 2257, which substantially revises and clarifies the exemptions to AB 5, a recently passed California statute that effectively precludes many industries from being able to utilize independent contractors.

AB 5 was signed into law on January 1, 2020, and requires using the “ABC Test” to determine whether a worker in California is an employee or independent contractor under the Labor Code, the Unemployment Insurance Code, and the Industrial Welfare Commission wage orders. Under the ABC Test, to defeat claims premised on independent contractor misclassification, a defendant must demonstrate: (A) the worker is free from control and direction of the hiring entity in connection with performing the work, both under contract and in fact; (B) the worker performs work outside the usual course of the hiring entity’s business, and; (C) the worker customarily engages in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity. Many industries have complained about component (B), which effectively precludes independent contractors from performing work in the business of the hiring company.

Q: What does the latest decision on joint employer liability mean for businesses?

A: On September 8, 2020, the United States District Court for the Southern District of New York issued a decision overturning the U.S. Department of Labor’s (DOL) March 2020 Final Rule, which had adopted a narrow four-factor test for determining joint employer liability in “vertical” employment relationships, such as contractor/subcontractor, franchisor/franchisee and company/staffing agency relationships. The test set forth in the Final Rule looked at whether the putative joint employer (i) hires or fires the employee; (ii) supervises and controls the employee’s work schedule or conditions of employment to a substantial degree; (iii)  determines the employee’s rate and method of payment; and (iv) maintains the employee’s employment records. These factors looked to the degree of control as the standard for determining joint employment, which was a sharp departure from prior DOL guidance which looked more broadly at the economic dependence between the parties.

HiringToFiring.Law is your go-to blog for information and guidance on every phase of employment — from interviewing potential candidates, to the first day of work, to the difficult decision to let someone go. Our authors cover the intersection of employment law, human resources counseling and employment litigation, where no question…

Reminder: HR Law Matters will be merging with Hiring to Firing, effective September 16. Our combined offering now has a deepened perspective to the ever-changing world of labor and employment law. Hiring to Firing will continue to be your go-to-resource on topics such as:

  • Discrimination, Harassment and Retaliation
  • Wage and

…

Q: I heard New York State recently enacted another sick leave law. I thought New York already enacted a COVID-19 sick leave law back in March. How is this new one different?

A: Effective September 30, 2020, New York will have two separate sick leave laws: one specific to COVID-19 (NY COVID-19 Sick Leave Law), and one that is general (New York Sick Leave Law). The covered reasons for leave are more expansive under the New York Sick Leave Law. In addition, unlike the NY COVID-19 Sick Leave Law, which is expected to expire at the end of the pandemic, the New York Sick Leave Law is expected to be permanent.

While employees start accruing New York Sick Leave on September 30, 2020, they may not use the sick leave until January 1, 2021.

HR Law Matters will be merging with Hiring to Firing, effective September 16. Our combined offering now has a deepened perspective to the ever-changing world of labor and employment law. Hiring to Firing will continue to be your go-to-resource on topics such as:

  • Discrimination, Harassment and Retaliation
  • Wage and Hour

…