Hunton Employment & Labor Perspectives

A new law recently signed by Massachusetts Governor Deval Patrick mandates that public and private employers with 50 or more employees grant up to 15 days of unpaid leave in any 12-month period if the employee or a covered family member of the employee is a victim of abusive behavior.  The bill was signed into law on August 8 and became effective immediately.  Covered employers are required to notify employees of their rights and responsibilities under the law.

On August 11, 2014, New Jersey’s Governor Chris Christie signed into law the “Opportunity to Compete Act.”  Beginning on March 1, 2015, employers will be prohibited from publishing advertisements providing that the employer will not consider any applicant with an arrest or conviction record, and more importantly, employers will be prohibited from inquiring about applicants’ criminal records “during the initial employment application process,” orally or on job applications.  “Initial employment application process” is defined as the period beginning with the initial inquiry about prospective employment until the employer has conducted a first interview, determined the applicant is qualified, and selected the applicant as the employer’s first choice to fill the position.  If an applicant voluntarily discloses information regarding a criminal record, the employer may inquire about it.

The Affordable Care Act required the Department of Health and Human Services (HHS) to establish a national health plan identifier (HPID) program under the HIPAA standard transactions rules. The resulting HHS rules generally require all HIPAA-covered entities, including self-insured plans with more than $5 million in annual claims, to obtain a HPID by November 5, 2014. Small self-insured health plans (i.e., those with annual claims of $5 million or less) will be required to obtain a HPID by November 5, 2015.

In response to a presidential memorandum directing the Department of Labor (“DOL”) to collect summary compensation data from federal contractors and subcontractors to combat pay discrimination, the DOL’s Office of Federal Contract Compliance Programs (“OFCCP”) recently proposed a rule calling on certain federal contractors to submit reports on employee compensation.  The rule, published in the Federal Register on August 8, requires covered contractors to annually submit an “Equal Pay Report.” Covered federal contractors and subcontractors are those who:

• File EEO-1 reports;
• Have more than 100 employees; and
• Hold federal contracts or subcontracts worth $50,000 or more for at least 30 days.

Starting September 30, 2014, many employers in the greater San Francisco Bay Area will be required to provide commuter benefits to their employees as part of the “Bay Area Commuter Benefits Program.” 

Unpaid interns have increasingly become a hot topic among lawmakers and courts.  Last week, New York Governor Andrew Cuomo signed into law legislation which prohibits New York State employers from discriminating against, or sexually harassing, unpaid interns.  New York State enacted this legislation only a few months after New York City passed a law which prohibits discrimination against unpaid interns.  New York City unanimously enacted its legislation in response to a district court ruling in October 2013, which found that an intern could not proceed with a sexual harassment claim because she was unpaid, and therefore, she was not entitled to protections under Title VII or the New York City Human Rights Law.  (Wang v. Phoenix Satellite Television US, Inc., 976 F. Supp. 2d 527 (S.D.N.Y. 2013)).  Although few jurisdictions currently offer unpaid interns protection from discrimination or sexual harassment (only New York, Oregon and Washington, D.C.), legislators in New Jersey and California have introduced bills which would grant unpaid interns these same protections.  The California bill has already passed the State Assembly and is being reviewed by the State Senate.