A Cascade of Enhanced Employee Protections Is Sweeping the Country

With everything the United States economy has gone through in the past couple of years, including what now seem to be ubiquitous staffing shortages, it should not be a surprise that city and state governments are expanding their employee protection laws in various ways. In this article, we will briefly review three laws that are soon to go into force, each of which attempts to provide additional employee protections.

Illinois Amends its One Day Rest in Seven Act

On May 13, 2022, Illinois Governor JB Pritzker signed into law Senate Bill (SB) 3146, an amendment to the One Day Rest In Seven Act (“ODRISA”). This amendment fills some holes in ODRISA that have been identified over the last few years.

First, the amendments revise the interval at which employees must receive a day off. Currently, a covered employee (for ODRISA’s day-of-rest provisions, this means non-exempt employees) need only be provided one day of rest within any given calendar week. Thus, an employer is compliant if it schedules an employee to get Sunday off in week one, work the next 12 days, and then have the following Saturday off, as the employee would not work seven days in either calendar week. Under the new amendments, however, the employee must be given one day of rest in “every consecutive seven-day period.”

The amendments are effective January 1, 2023. Therefore, beginning January 1, 2023, employers have to make sure that they provide this day of rest every rolling seven days or will otherwise have to obtain waivers from the Illinois Department of Labor to allow the employees to work more than six consecutive days.

Additionally, the amendments will provide a 20-minute meal break for the first 7.5 hours worked and then another 20-minute break for each additional 4.5-hour period worked after this initial 7.5-hour period. A second (or third) meal break is currently only provided for every additional 7.5-hour period. In other words, now, an employee must be scheduled to work 15 hours to be eligible for a second meal period. Beginning on January 1, 2023, that amount drops to 12 hours (7.5 plus 4.5). Unlike many states, these time frames are absolute, so someone scheduled to work 11 hours would still only be entitled to one meal period.

Finally, the amendments add increased penalties for violations of ODRISA.

California Increases Minimum Wage for All Employers

Earlier this month, California Governor Gavin Newsom announced that California’s minimum wage will increase to $15.50 for all employees, effective January 1, 2023. Previously, California had different minimum wages for smaller employers versus those with 26 or more employees. However, as of January 1, 2023, the new minimum wage will be the same for all employers – regardless of size. This change results from a 2016 Labor Code amendment that included a gradual increase in California’s minimum wages, including an automatic increase to combat inflation – which we are all experiencing currently.

Additionally, employers with employees in California should keep in mind that many California cities and counties have their own separate minimum wages with different effective dates. For example, the minimum wage will increase to $16.04 for all covered employees in the City of Los Angeles and $15.96 for unincorporated areas of Los Angeles County.

New York City Amends Wage Transparency Law

Recently, New York City amended its New York City’s Wage Transparency Law to provide clarity around some of the law’s more confusing aspects. The amended version of New York City’s Wage Transparency Law will require covered employers and employment agencies to include the minimum and maximum annual salary or hourly wage in all advertisements for all covered job, promotion, or transfer opportunities. Covered entities must begin complying with the amended law on November 1, 2022.

The Transparency Law will apply to all employment agencies and all employers that employ four or more employees if one of those employees works within New York City. For example, suppose a company headquartered in Pennsylvania employs 100 people in Scranton and only five in a small office in NYC. In that case, that company must nevertheless comply with the law on its effective date.

The New York City Commission on Human Rights’s (“CHR”) guidance indicates that a covered “advertisement” is “a written description” of a job opportunity that is “publicized to a pool of potential applicants” via any available mechanism, including internet posts, flyers, or newspaper help-wanted ads.

As such, if an employer advertises a job opening with a written description, the CHR has stated that the minimum and maximum wage ranges listed in the advertisement must be those that covered employers “honestly believe” that they would pay (without, however, defining an “honest belief”). In the absence of specific guidance, employers may want to consider the historical compensation paid to employees in the position and current market forces when determining the relevant compensation range.