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Production Labor Compliance Roundup

Original publish date: July 2, 2021

Brief roundup of changes to labor laws as they apply to production as of July 2021 – from COVID-19 compliance to state sick leave and the EEOC, plus vaccination considerations for union crew workforces.

COVID-19 Updates

EEOC COVID-19 FAQ Update, May 2021

On May 28, 2021, the EEOC released updated guidance regarding COVID-19 vaccinations and other commonly asked questions related to return to work.

Key points include information on activities fully vaccinated people can resume, mandatory and voluntary workplace vaccination, incentives for vaccination and accommodation considerations.  Guidance from public health authorities is likely to change as the COVID-19 pandemic evolves. Therefore, employers should continue to follow the most current information on maintaining workplace safety.

Cal/OSHA Emergency Temporary Standards (ETS), Effective June 2021

The board has voted on several updates to Cal/OSHA ETS to be effective immediately which are in place to protect workers from COVID-19 and for infection prevention.

The changes adopted phase out physical distancing and make other adjustments to better align with the state’s goal to fully reopen and more closely align with every other public health authority. California employers should carefully consider face coverings, physical distancing, partitions, COVID-19 testing, and prevention standards when developing its written COVID-19 Prevention Program.

Massachusetts Emergency Paid Sick Leave (MA EPSL), Effective June 2021

Massachusetts has established a statewide mandate, June 7 to September 30, 2021, for employers to provide employees up to 40 hours of emergency paid sick leave when they are unable to work due to reasons related to the pandemic, including for vaccinations. The new MA EPSL benefit is in addition to existing paid time-off benefits offered by employers, and the cost to employers is eligible for reimbursement from a newly established state fund. 

Additional information is available here.

Mandating COVID-19 Vaccination Among a Union Workforce

In a non-union environment, mandating the vaccine generally is permissible, so long as the employer allows exceptions for religious or health reasons.

However, employers of union-represented crew, cast and other employees know that wages, hours, and other conditions of employment are mandatory subjects of collective bargaining agreements that can only be changed if permitted by the applicable CBA or bargained for. Although the National Labor Relations Board (NLRB) has not yet explicitly addressed whether a mandatory COVID-19 vaccination program is a compulsory subject of bargaining, NLRB precedent strongly suggests that it is.

Production employers should continue to monitor any applicable SAG-AFTRA, IATSE and other crew union discussions for proposed changes to a CBA or other language related to health and safety practices and polices supporting a mandatory COVID-19 vaccination program among its union-represented cast and crew members.

Santa Clara County, CA Vaccination Status Tracking Requirement, May 2021

On May 18, 2021, the Santa Clara County health officer released an updated health order mandating employers determine the vaccination status of all employees, independent contractors, vendors, volunteers, and other personnel. The vaccination status assessment is required every 14 days, records of which must be maintained by employers.

Production Employment Law Updates: Federal

Form I-9 Guidance for H-2B Workers Seeking To Change Employers (86 FR 28198)

On May 25, 2021, the Department of Homeland Security and the Department of Labor published a joint Federal Register temporary rule to provide portability flexibility for H-2B workers already in the U.S. to begin work immediately with a new employer after an H-2B petition is received by USCIS and before it is approved.

Under this temporary rule, portability applies if the new employer’s extension of stay H-2B petition was received before May 25 and is pending on May 25. The new employer may employ the H-2B worker while the extension of stay petition is pending for a period of 60 days. Portability will also apply if USCIS receives the H-2B petition between May 25 and November 22, 2021. The H-2B worker is authorized to begin employment with the new employer for a period not to exceed 60 days.

Production Employment Law Updates: State and Local

California Pay Statement Requirement Court Decisions, May 2021

This is a key update to production payroll requirements, particularly concerning what needs to be on the payslip for production crew members paid hourly.

Recent federal and state decisions in California addressing the pay statement requirements of the Labor Code have provided helpful and favorable guidance to production employers navigating the web of employment statutes and regulations. The recent decisions demonstrate state and federal courts’ developing willingness to accept employers’ efforts at complying with the requirements of California’s employee-friendly Labor Code and rejected hyper-technical challenges.

These small victories for production employers also provide clarity and a reminder that the purpose of the wage statement is to enable crew employees to see how they are paid.

Virginia Overtime Wage Act (VOWA), Effective July 2021

On July 1, the Virginia Overtime Wage Act became effective and deviates from the Fair Labor Standards Act (FLSA) in a number of ways. Besides just being fun to say, “VOWA” establishes a new method for calculating regular rate pay for crew members and an extended statute of limitations.

For exempt crew workers, the VOWA deviates from the FLSA definition of a salaried worker’s regular rate of pay calculation and instead defines these employees’ regular rate of pay as one-fortieth of all wages paid in a particular week. In other words, adding overtime and other pay into the mix to factor into the regular rate of pay for exempt crew workers.

New Mexico Healthy Workplaces Act (HWA), Effective July 2021

New Mexico House Bill 20 was signed into law on April 8, 2021 and takes effect July 1, 2022. HWA will require all private employers to provide paid leave to employees that can be used to care for themselves or assist family members.

Accrual will be at the rate of one hour for every 30 hours worked with a 64-hour annual leave and accrual cap. Continued monitoring of the state’s website will be conducted for any updates before the July 1, 2022, effective date.

New York HERO Act, June 2021

On May 5, 2021, New York Governor Andrew Cuomo signed into law the New York Health and Essential Rights Act (HERO Act) to be effective June 4, 2021. The bill requires businesses to have safety standards in place to prevent further spread of COVID-19 and other airborne diseases. The Department of Labor and the Department of Health will issue mandatory guidelines and model safety plans which will be industry specific.

Illinois Wage Payment and Collection Act, May 2021

The amendment to the Illinois Wage Payment and Collection Act (IWPCA) will significantly increase penalties for wage payment violations by production companies, who remain the common law employers even when utilizing a production payroll service.

Under the IWPCA, employers that violate such legislation are liable for underpayments and statutory penalties of 2% for each month during which the amount remains unpaid. Effective immediately upon the Governor’s signature, the number of statutory penalties will more than double to 5% per month, which has the potential to greatly increase an employer’s exposure for violations.

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