Regulatory Watch: Weekly recap of retail-related judicial, legislative developments – Sept. 3
Federal – The Labor Department’s Wage and Hour Division announced that it will hold public listening sessions throughout the country over the next several months to gather input on its proposed rewrite of the overtime rule. The announcement signals the beginning steps in the process of the long-awaited update to policies around overtime pay.
California – The state supreme court rejected a request from Starbucks to revisit a decision earlier this month that found that the company must pay workers for off-the-clock work at closing. At issue is a Starbucks policy that requires an employee to clock out before uploading data about employees’ hours, sales and other information.
Michigan – The state supreme court continues to weigh an appeal by the restaurant-backed group, Michigan Opportunity, of a lower court’s decision to reject the group’s challenge to the proposed minimum wage ballot initiative. As a result, the initiative may appear on the Nov. ballot and if passed, would raise the minimum wage to $12/hr in 2022 and gradually increase the tipped wage from the current $3.52/hr to $12/hr by 2024. The legislature could choose to pass a law that would replace the ballot initiative, but senate leadership has, to date, indicated they will not take up the issue unless the house takes action first.
Miami Beach, FL – The state supreme court has set a date for oral arguments of the city’s appeal of a lower court’s decision to nullify the local 2016 minimum wage ordinance. The lower court found that the city’s ordinance is in violation of state preemption law preventing localities from passing wage ordinances.
Disney – After months of contentious contract negotiations, Walt Disney World Resort reached a deal with unions and announced that it would be raising the minimum wage for the theme park’s workers to $15/hr by 2021.
Microsoft – The technology company announced a new policy requiring its suppliers and contractors with more than 50 employees to provide paid parental leave to their workers. Vendors to the company must offer 12 weeks of paid leave capped at $1000/wk to employees that are assigned to Microsoft. This is an expansion of the company’s 2015 policy requiring vendors to provide at least 15 days per year of paid sick and vacation time.
EEOC – The Equal Employment Opportunity Commission filed a lawsuit alleging that the restaurant chain, Burgers & Beer, discriminated against male applicants in violation of Title VII of the Civil Rights Act. The commission states that the company maintains a workforce that is more than 90 percent female and routinely rejected male applicants for server positions.
NLRB – President Trump renominated Mark Gaston Pearce for a new five-year term on the National Labor Relations Board. Mr. Pearce, an Obama-era appointee, and one-time chairman is considered the architect of many of labor’s top priorities at the NLRB and has drawn the ire of many Republicans and the business community. Many speculate that the administration cut a deal to reappoint Pearce, in exchange for fast-tracking several Labor Department appointees. Expect the business community and some Senate Republicans to continue their opposition campaign against Mr. Pearce’s nomination vote.
NLRB – The National Labor Relations Board ruled in favor of the SEIU-backed Michigan Workers Organizing Committee in a case against a Burger King franchisee. It ruled that an employee cannot be prohibited from discussing wages and potential union activity in the parking lot of the establishment.
Labor Department – The Labor Department announced the new Office of Compliance Initiatives which will focus on helping businesses comply with wage, safety and benefits laws.
Labor Department – The Labor Department released an opinion letter which establishes that employees who participate in voluntary wellness programs do not need to be compensated for their participation time. Some employers offer benefit programs for their employees such as biometric screenings, health education classes and gym memberships.
California – A bill passed the general assembly that would require employers with fifty or more workers to maintain internal records of employee complaints involving sexual harassment for a minimum of five years. The bill has moved to the governor’s desk for consideration.
California – A bill passed both chambers that mandates publicly-traded companies based in the state must have at least one female member on the board of directors. The bill further stipulates that boards with five or more directors have two or three women by the end of 2021, depending on the board’s size. The bill has moved to the governor’s desk for consideration.
Amazon – The online retail giant has faced growing criticism from Senator Bernie Sanders regarding the working conditions of employees in the company’s network of fulfillment centers. Sanders has accused the company of paying low wages and inferred that many employees are in government assistance programs such as SNAP. The company pushed back by publicly encouraging their employees to tell their stories and highlight the positive working environment at their fulfillment centers.
Target – The National Labor Relations Board announced this week that it approved a union election to occur at a 250-worker Target store in Huntington Station, N.Y. The United Food and Commercial Workers Union (UFCW) is organizing the effort but recently failed to organize a similar-sized group at another New York location. The vote could occur in early Sept. and if the UFCW is successful, it would become the first unionized location in the Target system
Tesla – The National Labor Relations Board filed a complaint against Tesla CEO Elon Musk for tweeting that employees at a Fremont, CA plant who were attempting to organize would no longer receive stock options if they successfully unionized. Musk disputes the NLRB’s interpretation of his tweet.
Federal Trade Commission – The Federal Trade Commission recently announced it will hold a series of public hearings on whether broad-based changes in the economy, evolving business practices, new technologies, and international developments require any adjustments to consumer protection enforcement laws. The hearings may produce policy recommendations that could alter business models for any entity that collects personal information from consumers.
California – The state attorney general weighed in publicly on the landmark consumer privacy law that passed the legislature and was signed into law earlier this summer. The Aug. 22 letter details what his office views as “unworkable obligations and serious operational challenges” within the law. Some of the issues may be addressed in “clean-up” legislation that is moving through both chambers and may pass before the legislature adjourns for the year. Advocates, business groups, and many legislators acknowledge that further adjustments may be needed before the law goes into effect in 2020.
South Dakota – The governor released proposed language for consideration during the state’s upcoming special session that would put its remote seller law into effect on Nov. 1. The action comes after the state prevailed in the landmark U.S. Supreme Court decision that nullified the physical nexus requirement for collection of sales taxes.
In-N-Out – The California Democratic Party Chairman called for a boycott of the popular quick service chain after learning of a $25,000 donation the company made to the state’s Republican Party. Following public backlash, the Democratic Party spokesperson quickly backed off the call for a boycott. The company has acknowledged similar contribution levels made to both political parties over the past several cycles.
NAFTA – The Trump administration announced a deal with Mexico on several of the outstanding bilateral trade issues between the two countries. The deal on issues of automobile production and energy could allow Canada to reenter trilateral negotiations to revamp the entire agreement. A revised NAFTA deal would also need congressional approval before taking effect.
Amazon – A New York federal judge determined that the online retail giant is not liable for injuries caused by a defective coffee maker sold on its website. The judge found there was no evidence that Amazon ever owned the product sold by a third party via the company’s online marketplace and therefore, according to state law, it cannot be held liable for defects of the product.
- The results of the gubernatorial primary election in Florida may be the best indicator of what the 2020 presidential election may look like. In the biggest swing state in the country, Democrats nominated a Bernie Sanders-style progressive while Republicans nominated a Trump acolyte. Many Democrats think Sen. Clinton was not progressive enough to energize their base which ultimately led to her defeat in 2016. Now progressives have the kind of candidate they wished for. If their nominee, Andrew Gillum, wins or at least runs very strongly, it could forecast the type of candidate they will run against President Trump in 2020.
- After a 40-year hiatus from the headlines, the proposed Equal Rights Amendment has quietly come within one state of ratification (numerous legal hurdles notwithstanding). Proponents are hoping to leverage the recent progressive gains in Virginia to make it the 38th and final state needed to ratify. As that effort heats up, the issue of women’s rights – including workplace issues such as gender equity, pay equity, family leave and others – may quickly escalate in the public dialogue. In the current political environment, employers and their political allies may eventually be cast into a harsh light. Brands need to stay aware of this effort and prepare accordingly.
Legislature Status for Week of 9/4/18
- The United States Senate is in session this week
- The United States House is in session this week
- Four state legislatures are meeting actively this week:
- MA, MI, NJ & VA
Check out our Working Lunch podcast each week that includes further analysis into these legislative issues, policy, politics and much more. You can find Working Lunch on the Nation’s Restaurant News website, or by clicking here, and when you download the podcast and subscribe on iTunes here.
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