Before 2018 wrapped up, the year of the #MeToo movement, the Delaware and Philadelphia legislatures worked to ensure the passage of employee-friendly legislation. While Delaware’s new law focuses on sexual harassment, Philadelphia has turned its focus on the work schedules for those employed in service industries.
Delaware, like many other states in 2018, passed legislation to strengthen workplace harassment laws. The legislation was signed into law in August 2018, and went into effect on January 1, 2019. Delaware’s Discrimination in Employment Act has now been amended to include provisions specifically dedicated to sexual harassment that apply to employers with at least four employees in the state. It should be noted that Delaware’s law includes unpaid interns, applicants, joint employees and apprentices within its definition of employee. In addition to defining sexual harassment, the law provides that employers will be liable for sexual harassment if:
(1) A supervisor’s sexual harassment results in a negative employment action of an employee;
(2) The employer knew or should have known of a non-supervisory employee’s sexual harassment of an employee and failed to take appropriate corrective measures; or
(3) A negative employment action is taken against an employee in retaliation for the employee filing a discrimination charge, participating in an investigation of sexual harassment, or testifying in any proceeding or lawsuit about the sexual harassment of an employee.
However, the law provides that an employer may assert the following affirmative defenses: 1) that it “exercised reasonable care to prevent and correct any harassment promptly; and 2) that the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer.” Additionally, the Delaware law includes notice requirements for employers with at least four employees in the state and training requirements for employers with at least fifty employees in the state. Delaware employers must conduct training every two years, which must address the illegality of sexual harassment and retaliation; the definition of sexual harassment under state law, illustrated through examples; the legal remedies and complaint process provided by Delaware’s Department of Labor; and the Department’s contact information. Delaware supervisors will be required to receive additional training that details their specific role in “the prevention and correction of sexual harassment.” All training must be conducted by January 1, 2020 for existing employees and within one year from the start of employment for new employees. In regard to the notice requirement, employers must distribute to all employees an information sheet created by the state Department of Labor. The information sheet can be distributed physically or electronically, but must be given to new employees at the start of their employment or to existing employees by July 1, 2019.
Turning to Philadelphia’s recent legislative action, on December 20, 2018, Philadelphia Mayor Jim Kenney signed the Fair Workweek Bill into law. The law, which goes into effect on January 1, 2020, will require Philadelphia employers in the retail, hospitality, and food services industries to provide employees with “reasonable notices of schedules, rest time between shifts, and opportunities for additional hours” with the goal to make work hours of service workers more predictable and stable. Philadelphia employers with at least 250 employees and 30 or more locations worldwide, including all chains and franchises, are covered under the new law.
One of the main provisions of the Philadelphia law requires that employees be given advance notice of work schedules. When an employee is hired by a covered employer, that employer must provide a written “good faith estimate of the employee’s work schedule,” which includes “the average number of work hours the employee can expect to work over a typical 90-day period” among other information. Furthermore, during the year of 2020 an employer must provide employees with their work schedule for the week, including any on-call hours, at least ten days prior to the first day of that schedule. Starting on January 1, 2021, employers will be required to provide employees with their schedules at least 14 days in advance. The schedules must be posted in an electronic format that is accessible to all employees or posted “in a conspicuous and accessible location where employee notices are customarily posted.” Lastly, an employee is free to decline work hours that are not included in the posted work schedule and consent to work such hours must be written.
In the event there are any changes to the schedule, notice must be provided “as promptly as possible and prior to the change taking effect,” and the schedule must be revised within 24 hours to reflect such changes. Further, the law provides that employees be compensated for schedule changes made by the employer with “Predictability Pay” in addition to their regular rate of pay. An employee is entitled to one hour of Predictability Pay at the employee’s regular rate of pay, when the employer adds time to a work shift or changes the date or time or location of a work shift, with no loss of hours. If an employer subtracts hours from a regular on-call shift or completely cancels it then Predictability Pay is calculated as no less than one-half times the employee’s regular rate of pay per hour, for any scheduled hours the employee does not work. Predictability Pay is not required when the change in schedule is the result of a written request by the employee, “a mutually agreed-upon shift trade or coverage arrangement between employees,” or a limited set of circumstances that prevent the employer from operating.
Additionally, the law provides that employees be free to decline work hours that occur within “less than 9 hours after the end of the previous day’s shift or during the 9 hours following the end of a shift that spanned two days.” If an employee desires to work such shifts, he/she must provide written consent and must be compensated $40 for working such shift, and consent may be revoked at any point during employment.
Employees must also be given the opportunity to work extra hours before employers hire new employees or subcontractors. Employers will be required to “provide written notice of available work shifts for at least 72 hours, unless a shorter period is necessary in order for the work to be timely performed.” The notice must include information about the open position, including the qualifications and the schedule of available shifts. If no employees take the opportunity to work the additional shifts within 24 hours, which must be confirmed in writing, the employer is free to offer the shifts to new employees. There is an exception under this requirement for additional work that is at a premium rate under state or federal law.
Employers should be aware that records demonstrating compliance with this law must be kept for two years, and that the state has enforcement and investigatory powers. Failure to comply with any of the provisions in the law could result in fines and penalties. The law also provides for a private right of action.
There is some possibility that before the Fair Workweek Bill even takes effect, it could be preempted. If Philadelphia’s House Bill 861 is passed, municipalities within the state would not be permitted to regulate or mandate employer practices or policies. However, Pennsylvania Governor Tom Wolf has promised to veto the bill if passed by the legislature.
If you have any questions regarding this blog, please feel free to contact any of the attorneys in the Gibbons Employment & Labor Law Department.