BOP NEWSLETTER • Summer 2022

Salary Pay to Avoid Overtime: Does it Work?

by Rebecca Boartfield

West Virginia Enacted Changes to the Wage Payment Law Involving Payroll Cards?

Effective on June 9, 2022, under Senate Bill 245, which amends Sections 21-5-3 and 21-5-4 of the Wage Payment and Collection Act, the employer may unilaterally elect to pay employee wages via payroll card, provided the employer discloses in writing any applicable fees associated with the payroll card. Previously, both the employer and the employee had to agree to use of the pay method. Additionally, the following applies:

• The employee must have the ability to make at least one withdrawal or transfer from the payroll card per pay period without cost or fee, for any amount up to the amount contained on the card.
• The employee must be able to make unlimited in-network withdrawals or transfers from the payroll card without any cost or fee, for any amount up to the amount contained on the card.
• Employers who use payroll cards must give employees the option of being paid by direct deposit instead.

The Governor of Illinois Signed One Day Rest in Seven Act Amendment into Law?

Illinois Governor JB Pritzker signed into law Senate Bill 3146, an amendment to the One Day Rest in Seven Act (ODRISA). ODRISA provides meal breaks to all employees and a consecutive twenty-four-hour rest period to most employees. The amendments are effective January 1, 2023. Here’s the highlights:

• The amendment has deleted “calendar week” and instead provides that beginning next year, employers must allow most employees “at least twenty-four consecutive hours of rest in every consecutive seven-day period.”
• The amendment provides that “[a]n employee who works in excess of 7½ continuous hours shall be entitled to an additional 20-minute meal period for every additional 4½ continuous hours worked.” The amendment specifies that “a meal period does not include reasonable time spent using the restroom facilities.”
• The amended ODRISA will require employers to “post and keep posted, in one or more conspicuous places” where notices are customarily posted, a notice provided by the director of the Illinois Department of Labor (IDOL) “summarizing the requirements of [ODRISA] and information pertaining to the filing of a complaint.” For “employees who do not regularly report to a physical workplace, and instead work remotely or travel for work, employers will be required to “provide the notice by email … or on a website, regularly used by the employer to communicate work-related information, that all employees are able to regularly access, freely and without interference.”
• The amendment provides that an employer that violates ODRISA’s rest and meal break provisions “shall be guilty of a civil offense.” The penalties are as follows:
  • “For an employer with fewer than 25 employees, a penalty not to exceed $250 per offense, payable to the Department of Labor, and damages of up to $250 per offense, payable to the employee or employees affected.”
  • “For an employer with 25 or more employees, a penalty not to exceed $500 per offense, payable to the Department of Labor, and damages of up to $500 per offense, payable to the employee or employees affected.”

An “offense” under ODRISA “shall be determined on an individual basis for each employee whose rights are violated” as follows:

• “Each week that an employee is found to not have been allowed 24 consecutive hours of rest … shall constitute a separate offense.”
• “Each day that an employee is found not to have been provided a meal period … shall constitute a separate offense.”
• A violation of the notification requirements will constitute a single offense and be subject to a civil penalty not to exceed $250, payable to the IDOL.

Rhode Island Legalized Recreational Marijuana and Protects Off-Duty Use?

The new law, which took effect immediately on May 25th, legalized recreational marijuana in the state. Adults age 21 and older now can possess up to an ounce of cannabis, may grow cannabis within their primary residence (up to certain limits) and possess up to 10 ounces of cannabis in addition to live plants. Retail sales may begin as early as December 1, 2022.

Here’s the impact on employers:

• They are not required to accommodate the use or possession of marijuana, or being under the influence of marijuana, in any workplace or other location where the employee is performing work (including remote work).
• They are permitted to refuse to hire, terminate, discipline or take other employment action based on an individual’s violation of a workplace drug policy or because the individual was working while under the influence of cannabis.
• They are generally prohibited from terminating or taking disciplinary action against an employee “solely for an employee’s private, lawful use of cannabis outside the workplace and so long as the employee has not and is not working under the influence of cannabis.”
• Further, the law also provides for automatic expungement of certain civil and criminal convictions related to the possession of marijuana. All eligible records will be expunged by July 1, 2024. Employers may not require an employee to disclose a sealed or expunged offense unless otherwise required by law.

Colorado Expanded the Notice Requirement for Unemployment Benefits Upon Termination?

The new law, Senate Bill 22-234, which became effective immediately on May 25th, requires employers to provide each employee with written notice regarding the potential availability of unemployment benefits upon termination, whether voluntary or involuntary.  

The written information must include:

• The availability of unemployment compensation benefits;
• Employer’s name and address;
• Employee’s name and address;
• Employee’s ID number or the last four digits of their SSN;
• Employee’s first and last dates worked, year-to-date earnings, and wages for the last week worked; and
• Reason for separation.

We anticipate the state will provide a form for giving notice to separated employees that will include the above criteria.