Employment Law October 2020 Poster Report a Feature of the J

Employment Law October 2020 Poster Report A Feature of the J. J. Keller Employment Law Poster Update Service Federal contractors may need new posting An executive order on diversity and inclusion Not in effect yet training includes a new posting requirement for The posting requirement in the executive order federal contractors. applies to contracts signed after The Executive Order on November 21, 2020. Combating Race and Sex It is possible that the posting Stereotyping, signed by requirement will be delayed or pulled President Donald Trump back, however. The executive order on September 22, requires will likely face legal challenges. The government contractors to post outcome of the November 3 election a copy of a notice relating to may also have an impact. the contractor’s commitments under the executive order. We will be watching for developments. DOL proposes independent contractor rule The Department of Labor (DOL) is looking at changing a rule that determines whether a Key factors worker is an employee or independent contractor. Under the proposed rule, these factors help On September 25, the DOL published the determine whether a worker is an independent Independent Contractor Status Under the contractor or an employee: Fair Labor Standards Act proposed rule in the Federal Register. It bases the determination Core factors of independent contractor status on two core • The nature and degree of the worker’s control factors and three additional guideposts. over the work, and The proposal does not mention posting impact. • The worker’s opportunity for profit or loss based However, subscribers to the Employment Law on initiative and/or investment. Poster Update Service from J. J. Keller & Associates Guideposts would automatically receive a new poster if one • The amount of skill required for the work, is needed. • The degree of permanence of the working You can weigh in relationship between the worker and the The DOL is accepting comments on the proposed employer, and rule through October 26, 2020. Comments can • Whether the work is part of an integrated unit be submitted through the federal e-rulemaking of production. portal at https://www.regulations.gov.

Judge invalidates joint employment rule...... 2 In This Recent posting changes...... 2 Issue Potential posting changes...... 3 No posters needed in closet (AKA home office)...... 4

Copyright 2020 J. J. Keller & Associates, Inc. Judge tosses out parts of joint employment rule A New York circuit court judge has invalidated parts of the Department of Labor’s (DOL’s) joint employment rule which took effect earlier this year. The DOL’s rule narrowed the definition of joint employer under the Fair Labor Standards Act (FLSA). The judge’s September 8 ruling invalidated the rule’s vertical joint employment test, which relates to employment relationships such as staffing agencies and subcontractors. The judge’s ruling could be appealed by the DOL. When multiple businesses are joint employers, they are all responsible for following regulations and are subject to liability. Until the issue is resolved, businesses should carefully consider wage and hour compliance, including compliance with posting regulations.

Recent changes: State postings Recent changes: Specialty postings

• Connecticut — Minimum Wage ! • California — COVID-19 Paid Sick Leave ! • California — Santa Monica Hotel Workers • Colorado — Paid Leave, Discrimination • Illinois — Public Employer OSHA • Hawaii — Discrimination • Maine — Human Trafficking • New Jersey — Public Employer OSHA • Illinois — VESSA, Minimum Wage, ISERRA • New York — Public Works • Oregon — Minimum Wage • Oregon — Agricultural Employer Minimum Wage • Wisconsin — Minimum Wage for People with • Maryland — Equal Pay for Equal Work Disabilities

• Nevada — Overtime • Wisconsin — Retaliation for Health Care Providers

• New Mexico — Discrimination, OSHA Recent changes: Local postings

• New York — Minimum Wage Illinois • Milpitas ! • Cook County • Pasadena • Rhode Island — Minimum Wage • Chicago • San Francisco • South Carolina — Discrimination California • San Leandro • Alameda • Santa Monica • Virginia — Non-compete, Human Rights, OSHA • Berkeley • Santa Rosa • Emeryville • Wisconsin — Health Care Benefits All changes relate to • Los Angeles minimum wage increases.

The following posting changes will be in effect on January 1, 2021: • Alaska — Minimum Wage

• Arizona — Minimum Wage

• California — Minimum Wage, CFRA

• Colorado — Minimum Wage

• Florida — Minimum Wage Potential changes: Local postings • Louisiana — EIC The following local posters will have a • Maine — Minimum Wage, Regulation of mandatory posting change on Employment January 1, 2021:

Arizona • San Diego • Minnesota — Minimum Wage • Flagstaff • San Francisco • Missouri — Minimum Wage

California • San Jose • Montana — Minimum Wage* • Belmont • San Mateo • New Mexico — Minimum Wage • Santa Clara • Cupertino • New Jersey -- Minimum Wage • Daly City • Sonoma • New York — Minimum Wage** • El Cerrito • South San Francisco • Ohio — Minimum Wage • Half Moon Bay • Sunnyvale • South Dakota — Minimum Wage* • Hayward Maine • Vermont — Minimum Wage • Los Altos • Portland • Virginia — EIC • Menlo Park New Mexico • Mountain View • Albuquerque • Washington — Minimum Wage* • Novato • Bernalillo County *Posting not mandatory, but minimum wage will increase. **Effective December 31, 2020 • Oakland • Las Cruces

• Palo Alto Washington Potential changes: Federal • Petaluma • Seattle • Redwood City • Federal Contractor Minimum Wage All changes are due to a • Richmond minimum wage increase • Federal Contractor Training except for San Francisco • San Carlos (health care security). • Fair Labor Standards Act

Oct. 26 The view from the closet Comments are due on the independent contractor Ah, the pandemic. status proposed rule.

Until it arrived in March, my husband and I thought we Nov. 3 were empty nesters. Our house was starting to feel It’s Election Day. Make sure to follow any employee pretty big. voting leave laws that apply.

Then we both began working from home and it got a Nov. 21 little cozier. We updated an existing home office nook in Under an executive order, a new training posting the family room for my husband and I began working out requirement applies to federal contracts signed of our son’s vacated bedroom. No problem! after this date.

Then our daughter’s lease expired, and she moved home Nov. 26 to save money on rent and go to school online. Our son, Happy Thanksgiving! Taking time to remember who was working remotely, thought that looked like a what you are grateful for can relieve stress and great idea and moved home a few months later. improve your mood. This meant I had to give up my new office, so I cleaned Jan. 1, 2021 out a walk-in closet and voila! I had a new workspace. Happy New Year! New minimum wage rates and other employment laws take effect on this date. What does this have to do with labor law posters? I don’t Make sure you have up-to-date posters displayed. need to have them posted in my closet. Thank goodness! I barely have room to think in here.

I can view employment law posters on our company’s intranet rather than in the workplace lunchroom like I did pre-pandemic. For remote workers like me, electronic posting is a great option. When employees are in the workplace, paper posting is required.

Will I ever return to a workplace with paper posters? We’ll see. We do have one more child who’s not yet living at home…and I’m in her closet. Check back with me in a few months, when her lease is up.

Terri Dougherty Terri L. Dougherty, PHR, SHRM-CP, is an editor on the human resources publishing team at J.J. Keller & Associates in Neenah, Wis. She oversees the editorial content of the employment law poster and sign lines and keeps the products up-to-date. She has written articles and white papers about posting compliance and answers customer questions about posting requirements.

Copyright 2020 J. J. Keller & Associates, Inc., Neenah WI USA Neither the Employment Law Poster Report nor any part thereof may be reproduced without the written permission of the publisher. The articles in this newsletter do not necessarily express the viewpoints or opinions of J. J. Keller & Associates, Inc. Editor: Terri Dougherty For Subscription Information, call 1-844-840-3449