By Robert T. Szyba, John W. Egan, and Nicolas A. Lussier
Seyfarth Synopsis: Summer hiring for entertainment companies and various attractions is in full-swing. Since last year, legislatures across the country have focused their attention on expanding employee protections. Now more than ever it is necessary for employers to apprise themselves of recent developments that might impact recruitment and hiring practices such as background checks and pay transparency laws, employee disability accommodations, eligibility for paid sick leave, employee rest laws, medical and recreational cannabis, union activity, and ADA Title III public accommodations.
As the 2023 summer hiring season begins, employers should take note of several legal developments that could materially impact decision-making at various stages of the employment relationship, starting with recruitment and hiring. Jurisdictions across the country have broadened workers’ rights by enacting new statutes and regulations that govern the way employers communicate with applicants, current employees, and the public. These developments include things like pay transparency laws, paid sick leave laws, meal breaks and pay requirements, compliance with the Americans with Disabilities Act, background checks, and increased interest in unionization.
- Pay Transparency Laws: States and local jurisdictions, like New York City, California, Colorado, and Washington, among others (with additional bills pending at press time), require job postings to contain a wage scale or salary range under certain circumstances. There are nuances unique to each such law as to what must be disclosed, when, in what format, and under what circumstances, as well as whether the requirements apply to remote or hybrid positions. Employers operating in these jurisdictions should apprise themselves of these requirements to ensure compliance as 2023 hiring begins.
- Paid Sick Leave Laws: Multiple states enacted paid sick and safe leave laws that could apply to seasonal workers. For example, California requires accrued and unused sick leave to be restored if a covered employer re-hires the same worker within 12 months from the previous separation. As for New York, the state’s sick and safe leave law applies to all private sector workers working for a covered employer, regardless of industry, occupation, part-time status, overtime exempt status, and seasonal status.
- Meal Breaks; Clock-in/Clock-out Rules: Some states maintain rules governing meal breaks. California, for example, draws a lot of attention because of its meal and rest break laws, but other states, like Illinois, Nevada, and New York, among others, also enforce a variety of meal and/or rest break obligations. Similarly, various jurisdictions regulate employee clocking-in and clocking-out, which themselves involve various nuances. Still other jurisdictions also have rules regulating certain wage notices that need to be provided at the time of hire, as well as the information that must be contained on a pay stub. Last, there has been an increase in class action litigation pertaining to pay frequency and the timing of regularly scheduled pay periods.
- ADA Title III Compliance: In addition to their role as employers, entertainment and attractions companies are also places of public accommodation with an obligation under Title III of the ADA to provide equal access to their facilities, products and services to customers with disabilities. In this space, the absence of effective regulation has resulted in the explosive growth of website accessibility litigation, particularly in key jurisdictions like New York, California, and Florida. In 2022, 3,255 federal lawsuits were filed over allegedly inaccessible websites (not including demand letters and state court cases), which represents a nearly 400 percent increase in the last five years. While federal and state disability access laws have not squarely addressed website accessibility, enforcement proceedings initiated by the U.S. Department of Justice, as well as certain court rulings have contributed to legal uncertainties regarding whether, and to what extent, public accommodations need to make their digital properties accessible, resulting in the emergence of a “cottage industry” of serial filings directed at a broad scope of industries, including entertainment and attractions.
- Background Check Requirements: During the last several years many state and local jurisdictions passed “Ban the Box” laws that regulate above and beyond federal law the types of information employer can obtain or consider as part of a criminal background check. States such as California, Illinois, Massachusetts, and Washington, and various localities like Westchester County (NY), Chicago, Philadelphia, Washington DC, San Francisco, Los Angeles, and New York City, have passed a varieties of laws resulting in a patchwork of requirements and regulations. In addition to regulating the types of information that can be obtained and considered, such laws often require specific procedures and notifications that must be made prior to taking an adverse employment action.
- Cannabis: A multitude of state and local jurisdictions added laws regulating cannabis. Some states permit medicinal use only while others have decriminalized or legalized cannabis use. For example, the use of cannabis by adults over the age of 21 is generally considered to be protected activity under Section 201-D of the New York Labor Law. Some of these state and local laws directly impact employers’ ability to do pre-employment and post-incident drug testing, as well as creating obligations for disability accommodations. As with some of the examples above, this has resulted in a nationwide patchwork of regulations.
- Union Activity: Employers should be aware of increased union activity among employees covered by the National Labor Relations Act. In fiscal year 2022, approximately 2,510 union representation petitions were filed with the NLRB’s 48 Field Offices—a 53% increase from the 1,638 petitions field in 2021. This is the highest number of union representation petitions filed since 2016. Indeed, accounting for both unfair labor practice charges and representation petitions, total case intake at the Field Offices increased 23%—from 16,720 cases in 2021 to 20,498 cases in 2022. This increase of 3,778 cases is the largest single-year increase since 1976 and the largest percentage increase since 1959. This increase in union activity has impacted a broad range of industries and employers.
- Temporary Staffing Laws: Recently, New Jersey enacted the Temporary Worker Bill of Rights. The new law requires temporary help service firms to provide notice covering approximately a dozen different points and requires temporary workers to be paid minimum wage after accounting for meal and transportation deductions. Additionally, the law provides that temporary workers must be paid the same average rate as compared to permanent counterparts under certain conditions (wages and benefits). The law also provides for joint liability, so any business utilizing temporary workers should take note of this expansive law. Indeed, the law covers more than what is discussed in this update. For more information, see Seyfarth’s alert here.
With all these developments, attractions and entertainment employers embarking on hiring for the 2023 season have a variety of new and updated legal requirements and obligations to factor into their policies and practices. Employers with any questions can feel free to reach out to Seyfarth for any assistance with auditing existing policies or practices, recommendations on best practices in light of these legal developments, and for assistance and defense of any active disputes.