Regulatory Wrap-Up
Market Insights

Regulatory Wrap-Up

BY HBSDealer Staff

Wage

Arkansas – A senate committee heard legislation that would establish a youth wage and exempt small businesses from the recently-passed referendum raising the state minimum wage to $11/hr by 2021.

Florida – A prominent Orlando-area trial lawyer, John Morgan, announced plans to place a measure on the 2020 ballot that would increase the state’s minimum wage to $15/hr by 2026 and eliminate the tip credit. Morgan recently bankrolled a medical marijuana initiative that was approved by voters and he claims to already have enough signatures for a state supreme court review of the minimum wage ballot language, a first step in the process. The state’s current minimum wage is $8.46/hr.

New Jersey – The house passed a bill to raise the state’s minimum wage to $15/hr by 2024 with the first increase to $10/hr effective July 1, 2019. The bill also incrementally increases the state’s tipped wage to $5.13/hr by 2024 and establishes a training wage of 90% of the minimum wage for the first 120 days of employment. The bill is expected to pass both the house and the senate and could make it to the governor’s desk by the end of January.

New Mexico – A bill to raise the state’s minimum wage to $12/hr by 2021 with future increases tied to inflation passed its first house committee. The bill does not preempt localities from enacting further increases and it would also eliminate the tip credit. It will now move to a second committee hearing and is expected to advance to the full house where Democrats also hold a majority.

Virginia – The full senate voted along party lines to defeat a bill to raise the state’s minimum wage to $15/hr by 2021.

Wage Theft

New York – The governor is proposing an increase in penalties for employers that are found to have improperly withheld a worker’s pay. His proposal would create a new misdemeanor charge. Current law makes it a felony to repeatedly withhold a worker’s pay, but the governor’s office argues that the high legal threshold results in few prosecutions.

Paid Leave

Minnesota – A paid family leave bill is under consideration that would provide twelve weeks of partial wage replacement for medical leave (including pregnancy) and an additional twelve weeks to care for a newborn or family member. The state-run insurance program would be funded by a 0.31 percent payroll tax on both employers and employees.

Vermont – In response to the bi-state proposal last week from Republican governors Phil Scott (VT) and Chris Sununu (NH), Vermont legislative leaders pitched their own plan to expand paid leave, financing it with a payroll tax split between employers and employees. While further negotiations with the governor will occur, it is increasingly likely that some form of paid leave will find its way into law in Vermont.

Scheduling

Washington – Legislation was introduced in the house that would mandate two weeks advance notice, penalties for shift changes, rest between shifts, record-keeping requirements and other stipulations. As introduced, this is one of the more onerous bills we have seen to date. While the issue is unlikely to face much pushback from legislators, it is currently competing against a number of other policy priorities of legislative leaders.

Labor Policy

NLRB – The NLRB continues to narrow the definition of protected concerted activity, which was substantially expanded under the Obama NLRB. At the center of a recent case, a worker at Alstate Maintenance refused to perform work based on the belief that the customer would not tip well, saying to his supervisor that “we did a similar job a year prior and we didn’t receive a tip for it.” He was terminated as a result. His statement and action likely would have been protected under the previous standard because it was in a group setting; however, the Board found the employer’s termination was lawful. The Board concluded, “the fact that a statement is made at a meeting, in a group setting or with other employees present will not automatically make the statement concerted activity.” It found the action must be concerted and also in the interest of mutual aid or protection. Developments in this area of law are notable because it defines the latitude with which labor organizers can engage in protected speech within the workplace.

OSHA – The Labor Department’s workplace safety office issued a final rule rolling back part of an Obama administration rule requiring large employers to file detailed injury data over the internet, citing concerns about worker privacy. Democrats in Congress immediately criticized the action as “anti-worker.”

Colorado – Senate Democrats introduced pay equity legislation to prohibit gender discrimination in pay levels. The new legislation would expand Colorado’s existing pay equity law to equal pay for “substantially similar work” and create a private right of action. It would also explicitly establish a burden on the employer to prove that differentials were based upon seniority, merit or quantity/quality of production

Taxes

MassachusettsThe fiscal 2020 budget proposed by the governor requires marketplace facilitators to collect and remit sales taxes on behalf of third-party sellers on their platforms. The state legislature is expected to act on this issue.

Virginia – The senate finance committee passed an amended bill out that would require online marketplace facilitators to collect sales taxes on behalf of third-party sellers on their platform. The bill is expected to be further amended throughout the process.

Key Takeaways

  • As expected, paid leave is heating up in legislatures across the country, most notably this week in Minnesota and Vermont. And increasingly, the proposals are funded in part by employer contributions. Industry leaders need to begin the process of forging a mutually agreed upon legislative package that they can live with to eventually take to Congress in exchange for federal preemption.
  • The ballot process in 2020 is already underway as evidenced by minimum wage proponents in Florida clearing an important first step. Companies need to come together and determine if, how and when they will respond both in Florida and nationally. While the industry’s collective response to the ballot process in the past has been largely ambivalent, the political winds are blowing in a direction where we could see very large increases in numerous states. Brands are either going to pay now or pay later, with the second option being exponentially more expensive.

Legislature Status for Week of 1/28/19

  • The United States Senate is in session this week
  • The United States House is in session this week
  • Forty-one state legislatures are in regular session:
    • AK, AZ, AR, CA, CO, CT, GA, HI, ID, IL, IN, IA, KS, ME, MD, MA, MI, MN, MS, MO, MT, NE, NH, NJ, NM, NY, ND, OH, OR, PA, RI, SC, SD, TN, TX, UT, VT, VA, WA, WV, WY

Podcast

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.

The Regulatory Wrap-Up is presented by Align Public Strategies. Click here to learn how Align can provide your brand with the counsel and insight you need to navigate the policy and political issues impacting retail.

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