Everybody's Working
Oct 7, 2020


A variety of employment related matters are making news this week.  You want to be in the know?  Come on - let’s go around the country for a closer a look at some of the headlines.  



The Colorado Department of Labor and Employment (CDLE) proposed a series of rules pursuant to the state’s newly amended Equal Pay for Equal Work Act.  The first rule on the CDLE register is Equal Pay Transparency (EPT).  It contains first-in-the-nation requirements related to job postings. Under the proposed rules, Colorado employers must include compensation range and available benefits in job postings, even for positions that cannot (or even might not) be filled in Colorado. The rule applies to any employer with one or more employees in Colorado, regardless of where the employer is headquartered or incorporated, or where the rest of its workforce is located.



Additionally, the CDLE proposes an amended definition of “professional employees” for exempt status.  Under the proposed rule, an exempt professional employee must have a primary duty of work that requires the consistent exercise of discretion and judgment, as distinguished from routine work that is mental, manual, mechanical, or physical.  And, the professional must possess either knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study, or “invention, imagination, originality or talent in a recognized field or artistic or creative endeavor.”  The CDLE is holding a remote public hearing on these proposed rules on Nov. 2 and is accepting written comments through Nov. 5.  The final rules will be adopted on Nov. 10 and take effect on Jan. 1, 2021. 



In California, Governor Gavin Newsom (D-CA) signed Senate Bill 973, which requires employers to transmit certain pay equity and pay data.  The new law authorizes the Department of Fair Employment & Housing (DFEH) to investigate and prosecute complaints alleging pay disparities that violate California’s equal pay law. The law applies to private employers in California that have 100 or more employees and are required to file an annual Employer Information Report under federal law.  On or before March 31, 2021, covered employers must submit a pay data report for each California establishment, which includes the number of employees (across 10 job categories) by race, ethnicity, and sex, and the number of those employees who fall within federal pay bands used by the Bureau of Labor and Statistics.  The measure will be effective on January 31, 2021.   



The Seattle City Council unanimously approved a fair pay standard, which establishes the highest legislated earnings floor for transportation network drivers.  Advocates lauded the measure which completes the Emerald City’s Fare Share Plan, which also included first-in-the-nation sick pay and hazard pay for gig workers, the nation's first protections against unwarranted deactivation, and funding for driver support services through a Driver Resolution Center.



And finally this week, the Pennsylvania Department of Labor and Industry announced the state's new overtime rules went into effect after the approved regulation was published in the PA Bulletin Sunday.  These changes represent the first update to the commonwealth’s overtime regulations in more than four decades.  We’ll keep watch on these issues.   


First Monday


In other news, all eyes are on Washington to see if a new justice will be confirmed, or whether the pandemic will affect the Senate’s ability to hold hearings, or whether the eight justices will be called upon to decide any disputes that arise in a contested election.  And in the midst, Monday was the start of the 2020 – 2021 session of the United States Supreme Court. There are a number of matters before the Court affecting the risk and insurance industry.   Here is a brief look at a few of the headlining cases.  



In Rutledge v. Pharmaceutical Care Management, the Court will decide whether an Arkansas law regulating pharmacy benefit managers’ drug-reimbursement rates is pre-empted by the Employee Retirement Income Security Act (ERISA).  In Ford Motor Company v. Montana Eighth Judicial District, the Court will decide whether a state court may exercise personal jurisdiction over a nonresident defendant with very limited in state contacts.  In transnational litigation, Nestlé USA, Inc. v. Doe will clarify the scope and reach of the Alien Tort Statute over conduct by domestic corporations within the United States that may have caused harms abroad.  In employment matters, Henry Schein Inc. v. Archer and White Sales will address the parameters of a “clear and unmistakable delegation” to an arbitrator.  And, in Salinas v. United States Railroad Retirement, the Court will determine whether the Railroad Retirement Board’s denial of a request to reopen a prior benefits determination is a “final decision” subject to judicial review.  We’ll be tracking these and other developments from the Court.


Making Our Way Around the Country


South Dakota will offer two ballot initiatives seeking to legalize medical and recreational marijuana on Election Day.  No state has previously attempted to move the drug from illicit to recreational state.  South Dakotans will vote to establish a medical marijuana industry in the state for patients with predefined debilitating medical conditions and vote on a constitutional amendment to legalize recreational marijuana.  Of note, the recreational measure doesn't establish a medical marijuana program or provide hemp guidelines in the state. Therefore, if approved at the ballot, the South Dakota State Legislature would have to establish rules and regulations governing a medical cannabis and hemp industry by April 1, 2022. 



The Tennessee Bureau of Workers' Compensation (BWC) introduced a new tool to enable injured workers to type or speak answers to questions that are used to fill out state workers’ compensation forms. The BWC calls the new, free tool a "WC Bot."  At the conclusion of the interview, the tool provides a completed form accepted in all workers' compensation courts in Tennessee.



New York City Council passed a bill requiring the Department of Buildings (DOB) to study the feasibility of using small unmanned aircraft systems (sUAS) to inspect building facades. The city’s Facade Inspection and Safety Program requires owners of buildings higher than six stories to conduct facade inspections and repairs every five years. A 1948 Local Law prohibiting certain take-offs and landings within New York City limits drone use. The 2020 bill’s sponsor commented, “an outdated local law, drafted decades before the advent of ‘drones,’ is leaving New York City on the ground while other cities are already using rapidly advancing technologies to support business and improve safety.”  The bill takes effect immediately and the study must be completed no later than Oct. 31, 2021.



Bi-partisan lawmakers in the U.S. House of Representatives introduced the Online Accessibility Act to expand the Americans with Disabilities Act’s (ADA) to cover consumer-facing websites and apps operated by private companies.   The ADA applies to “public accommodations,” but does not define standards beyond physical locations.  Neither Congress nor the Justice Department has issued guidance on what constitutes proper access to a website. The proposed bill would outline “substantial compliance” with the ADA and would empower the Justice Department to issue regulations spelling out definitions and details and establish a dispute resolution process.  Under the bill, violators could be fined $20,000 for a first offense and up to $50,000 for subsequent offenses. Private lawsuits would be allowed but only after all administrative remedies are exhausted.



Back to our main story this week, the U.S. Department of Labor’s theme for this month’s annual observance of National Disability Employment Awareness Month (NDEAM) is “Increasing Access and Opportunity.”  Each October, the NDEAM celebrates America’s workers with disabilities and reminds employers of the importance of inclusive hiring practices. This year marks the 75th anniversary of this significant commemoration and we recognize the courageous efforts in our industry to focus our best attention on ability.  Until next week, stay well, stay safe, and stay connected.


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