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Regulatory Wrap-Up: Weekly review of retail-related judicial, legislative developments - Aug. 27


Michigan - The state court of appeals rejected an industry-backed challenge and ordered the minimum wage ballot initiative to be placed on the Nov. ballot. The group that brought the case, Michigan Opportunity, said it would appeal the decision to the state supreme court. Should the initiative reach the ballot and pass, it 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.

St. Paul, MN - The Citizens League’s $15 Minimum Wage Study Committee is expected to submit a report to both the city council and the mayor’s office on Aug. 31, outlining its recommendations. The committee which consists of business owners, labor representatives, local chambers, workers and other community organizations met several times over the summer. The findings are expected to outline the implementation of the mayor’s proposal for a $15/hr minimum wage by year’s end.

BLS Report - The Bureau of Labor Statistics released a report this week that found the U.S. average weekly wage rose 3.7 percent over the last year. Many economists have noted that the increase has been stifled by a corresponding increase in inflation.

Disney - In an effort to temper an ongoing feud with city officials, Disneyland executives requested that the city of Anaheim cancel the slated $267 million in tax subsidies that was part of the development deal for a proposed luxury hotel. The move could also allow the proposed property to avoid a pending $18/hr minimum wage ballot initiative that applies to hotels receiving city subsidies. The labor-backed measure will appear on the Nov. ballot.

Paid Leave

Federal - Nebraska Senator Joni Ernst proposed an amendment to a funding bill that would amend the Family and Medical Leave Act. The amendment failed to be adopted but may come back up in future debates. It would have required 12 weeks of unpaid leave per spouse for the birth of a child or when a family member is on military deployment. Under current law, married spouses employed by the same company only receive 6 weeks of unpaid leave per spouse, as opposed to the mandatory 12 weeks for all other employees.

San Antonio, TX - Instead of allowing a paid leave proposal to appear on the Nov. ballot, the city council last week voted to enact it into law. This week the mayor, who has been publicly skeptical of a local paid leave mandate, announced that he will establish a commission to propose potential changes to the ordinance. This process will allow for business community input and could also delay implementation, allowing the state legislature time to take up the matter in 2019.

Wage Theft

Labor Department - Several prominent Democratic senators sent a letter to the labor secretary criticizing the administration's Payroll Audit Independent Determination (PAID) program.  The PAID program allows employers to self-report wage violations to avoid hefty fines. The senators argue that the program’s lack of consequential enforcement could result in increased instances of wage violations.

California - The state labor commissioner fined a construction company $1.9 million for wage theft violations. The company paid its workers a flat daily rate regardless of actual hours worked and failed to allow for government-mandated rest breaks throughout the workday.

New York - Celebrity chef Marc Murphy faces a proposed class action in state court alleging the company charges its catering customers a mandatory fee for service but does not remit that money to the workers in the form of gratuities.

Minneapolis, MN - Worker advocacy groups have asked the city council and the mayor to consider legislation that would increase enforcement against wage theft in the city. The groups are proposing increased penalties for repeat offenders and dedicated funds for investigation and enforcement efforts.

Health Care

Maryland - The Trump Administration granted the state’s request for a waiver that will allow it to create a reinsurance program that could reduce rates by as much as 30% through 2020. A bipartisan effort was required to create the program that essentially provides an insurance fund, paid for by insurance companies, that can offset the risk of covering customers with expensive medical conditions.

Labor Policy

NLRB - Mark Pearce, an Obama-era appointee, and one-time chairman of the National Labor Relations Board is about to complete his term which expires at the end of Aug. Mr. Pearce is considered the architect of many of labor’s top priorities at the NLRB, drawing the ire of many Republicans and the business community. He is lobbying for another 5-year term, which requires appointment by the President and approval by the U.S. Senate. Some are speculating that President Trump may cut a deal, reappointing Pearce, in exchange for fast-tracking several Labor Department appointees.

No-Poaching Agreements - Washington Attorney General Bob Ferguson announced an agreement with eight more chain restaurants to end the use of no-poach clauses that prevent employees from moving from one franchise location to another. Applebee’s, Church’s Chicken, Five Guys, IHOP, Jamba Juice, Little Caesars, Panera Bread and Sonic joined seven other chains (Arby’s, Carl’s Jr., McDonald’s, Jimmy John’s, Auntie Anne’s, Buffalo Wild Wings and Cinnabon) which announced a similar agreement last month. Although the Attorney General’s investigation is specific to operations in Washington state, the chains have announced their intention to end the practice nationwide.

California - A house-passed bill that prevents employers from mandating employees sign arbitration or nondisclosure agreements as a condition of employment passed the senate and heads to the governor’s desk for consideration. A similar bill was vetoed by Governor Brown in 2015 and some legal scholars have opined that it would ultimately be preempted by federal law. It remains to be seen if the governor will change his stance on the issue.

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