The Employer E-Letter: Labor and Employment Law News
from the Duluth, Minnesota law firm of
Hanft Fride, A Professional Association.
Co-Editors, Scott A. Witty, email@example.com and Richard R. Burns, firstname.lastname@example.org, or 218.722.4766. Please feel free to forward this e-mail or share it with others. If there are other topics of interest to you or any other suggestions concerning this newsletter, please let us know.
- MINNESOTA FRONTLINE WORKER PAY PROGRAM
- EEOC ISSUES TECHNICAL ASSISTANCE ON PANDEMIC AND CAREGIVER DISCRIMINATION
- NEW DIRECTIVE FROM THE DEPARTMENT OF LABOR’S OFFICE OF FEDERAL CONTRACT COMPLIANCE PROGRAMS
- TREND REQUIRING WAGE AND BENEFIT DISCLOSURE
- Tip Of The Month
The Minnesota Frontline Worker Pay Program was passed by the legislature and signed by Governor Walz in April. The Program was designed to provide payments to workers who faced risk of contracting COVID-19 during the peacetime emergency declared by the Governor in 2020. In order to be eligible for benefits under the program, employees (1) must have been employed at least 120 hours in Minnesota in one or more frontline sectors between March 15, 2020 and June 30, 2021; (2) were not able to telework due to the nature of their job; (3) must have worked in close proximity to people outside of the individual’s household; (4) must meet the income requirements applicable to patient care workers and non-patient care workers; and (5) must not have received unemployment payments for more than 20 weeks on a cumulative basis during the peacetime emergency. Following enactment of the Frontline Worker Pay Program, the Department of Labor and Industry developed an application process and guidance for employers and employees to facilitate the program, which was released on June 8. According to the DOLI, the application period will run from June 8 through July 22, 2022. Employers that employ workers in listed front line sectors (including, for example, long-term care, healthcare, emergency responders, courts, child care, schools, food service, retail, public transit, manufacturing and numerous others) must post a written notice with information regarding eligibility and the application process no later than June 23, 2022. A sample notice provided by the Department can be found here. Further information, including a list of the frontline sectors (those employers that must post notice under the law) can be found here.
The U.S. Equal Employment Opportunity Commission (EEOC) recently issued a technical assistance document applicable to employment discrimination involving caregivers to situations related to the COVID-19 pandemic. Although laws enforced by the EEOC do not prohibit discrimination against caregivers specifically, discrimination against applicants and employees related to pandemic caregiving responsibilities may be unlawful.
Caregiver discrimination violates federal employment discrimination laws when it is based on an applicant’s or employee’s sex (including pregnancy, sexual orientation, or gender identity), race, color, religion, national origin, age (40 or older), disability, or genetic information (such as family medical history). Caregiver discrimination also is unlawful if it is based on an applicant’s or employee’s association with an individual with a disability or on the race, ethnicity, or other protected characteristic of the individual for whom care is provided.
The technical assistance document provides examples of unlawful discrimination against caregivers. For example, it would violate the law if an employer refused to hire or promote a female based on an assumption that she, as a female, would primarily focus on caring for young children or adult relatives. It would also be unlawful for an employer to deny men leave or permission to work a flex schedule to care for a family member with COVID if the employer grants such requests when made by similarly-situated female employees.
For the complete technical assistance document visit www.eeoc.gov.
NEW DIRECTIVE FROM THE DEPARTMENT OF LABOR’S OFFICE OF FEDERAL CONTRACT COMPLIANCE PROGRAMS
On March 31, 2022, the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) issued Directive 2022-02, which revokes several Trump era policies that gave federal contractors more notice of OFCCP investigations and more transparency into how the agency conducts and closes out its audits. Directive 2022-02 replaces those directives with heavy enforcement policies which may cause contractors more difficulty than before.
Directive 2022-02 essentially revokes CERT initiative (Certainty, Efficiency, Recognition, and Transparency), which was established to benefit contractors in navigating audits and compliance review. The new directive rescinds the 30-day extension for audited contractors to submit requested data, except in “extra ordinary circumstances” such as medical absences of key personnel, death, disaster, or unexpected turnover or military leave. Directive 2022-02 also repeals the 45-day delay between OFCCP publishing its scheduling list for contractors (known as the Corporate Scheduling Announcement List, or CSAL) and auditing those contractors.
THE OFCCP advises contractors to routinely self-audit to ensure compliance with regulations. The repeals suggest the OFCCP plans to use its own discretion more broadly and be more rigid with contractors, specifically with respect to timelines.
The State of Washington joined Colorado in requiring in all cases where you have more than 15 employees to affirmatively disclose in all job postings a wage scale or wage range as well as all benefits and other compensation to be offered, in connection with the position. Prior law had required a request by the employee. This is clearly a trend which is likely going to be adopted in California and other states will probably follow. It is intended to promote equity and diversity, allowing employees as well as prospective employees to know where they sit on the salary range. Another trend is to prohibit asking questions about salary history, which is another type of law aimed at ending the cycle of pay discrimination. Again, Minnesota and Wisconsin have not passed laws in this regard, but 14 other states have. Finally, under Federal Labor Laws an employer cannot prohibit an employee from discussing their salaries with other employees as it would limit an employee’s rights to talk about activities related to “collective bargaining or other mutual aid or protection.”
TIP OF THE MONTH: The Me2 Movement has certainly raised awareness about sexual harassment in the workplace. Some employers attempt to bar all workplace romance, but this is seldom a practical solution. Some employers require disclosure of the relationship. Other employers only bar when one party reports to the other. The safest course is to transfer the highest-ranking partner but that is also a difficult recommendation to follow. In addition to concerns about sexual harassment, there also is the practical issue of how you terminate one of these persons with whom you know has a relationship and whether that will cause acrimony resulting in the other also leaving.
Hanft Fride’s business and trial lawyers are located at 1000 U.S. Bank Place, in Duluth, Minnesota. Visit our website at www.hanftlaw.com for general information on the firm and our attorneys. Our employment lawyers include Tom Torgerson, Rob Merritt and Scott Witty. Richard Burns is now of Counsel.
The information provided in this E-letter is general in nature and should not be used as a substitute for professional services and advice. The communication and receipt of this information is not intended to create an attorney-client relationship. Readers should consult with their legal counsel before taking any action on matters covered in this E‑letter.
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Copyright 2022 by Hanft Fride, P.A. All rights reserved. Hanft Fride, A Professional Association, 1000 U.S. Bank Place, 130 W. Superior Street, Duluth, MN 55802. Phone 218.722.4766; Fax 218.529.2401.