FEDERAL UPDATES

Exempt Salary Basis Update – The DOL’s decision to raise the minimum salary necessary to designate employees as exempt took another step forward by passing the OIRA (White House) approval process.  The next step is publication of a Final Rule, which could raise the minimum salary to $55,068 per year ($1,059 weekly) or even higher.  The Final Rule would take effect 60 days after publication, although it may be paused at any point by litigation.  In the meantime, employers should review the current salaries of their exempt employees, and assess the impact of raising those salaries to the new threshold or converting some employees to nonexempt status.

Pregnant Workers Fairness Act (PWFA) – The PWFA (15+) is already effective, and the EEOC just released a Final Rule of over 400 pages.  The Final Rule will technically become effective on June 18 but provides guidance on how the EEOC will interpret the PWFA so employers are advised to understand and follow it now to avoid conflicts with the EEOC.  Under the ADA, the PWFA requires an interactive dialogue to identify reasonable accommodations for pregnant employees.  Examples provided by the EEOC include:

• more frequent breaks
• permitting sitting/standing
• changing work schedules
• allowing part-time, reduced hours, or telework
• leave of absence
• adjusting parking assignments
• providing light duty or temporary reassignment
• making the work environment more accessible
• job restructuring
• temporarily suspending one or more essential functions of the job (departure from the ADA)
• acquiring or modifying equipment, uniforms, or devices
• adjusting or modifying examinations or policies.

The PWFA covers pregnancy, childbirth, and “related medical conditions”, including lactation, morning sickness, miscarriage, stillbirth, and “having or choosing not to have an abortion”.

Unnecessary delays in making reasonable accommodations or conditioning accommodation on unnecessary medical documentation may result in a violation of the PWFA.

Like the ADA, an accommodation is not reasonable if it imposes an undue hardship (defined as significant difficulty or expense), and prohibits an employer from requiring an employee to take leave if another effective reasonable accommodation exists.

When considering whether temporary suspension of an essential function causes an undue hardship employers should, at a minimum, consider:

• the length of the suspension,
• whether there is other work for the employee to do,
• frequency,
• availability of other employees or third parties to fill in,
• past practices involving similarly situated employees,
• the impact of postponing or leaving the essential function unperformed.

Muldrow v. City of St. Louis – Discrimination/Lateral Transfers.  The U.S. Supreme Court issued a pivotal employment discrimination ruling, holding that employees subjected to a lateral transfer do not have to show “significant harm” to file a discrimination claim (although they still have to prove that discrimination was involved).  This allows employees to file a discrimination claim based on just about any change in their job, even if the harm is minimal, and may significantly broaden consideration of “adverse” or “ultimate” employment actions.

The case involved a female police officer who was transferred from a specialized division to a more administrative uniformed police officer role that required her to wear a uniform, work some weekend shifts, oversee neighborhood patrol officers, and give up her “take-home” car. She alleged gender discrimination, claiming that the transfer was discriminatory even though she received the same pay and held the same rank.  Previously, in at least some jurisdictions the claim would have been dismissed at an early stage.  Now even minor changes in an employee’s job can result in a Title VII lawsuit.  Employers considering reorganizations, transfers, or changes in job titles or duties should carefully assess potential discrimination and document the legitimate business reasons for the changes.

I-9 Work Permit Extensions:  To address processing delays, USCIS again temporarily increased the automatic extension period for certain work permits from 180 days to 540 days.  It applies to eligible EAD applicants who filed renewal applications on or after Oct. 27, 2023 (when the last extension period expired) that were still pending as of April 8.  It also applies to EAD renewal applications filed between April 8, 2024, and Sept. 30, 2025.  Permits covered under this policy change include green card applicants, the spouses of H-1B recipients, workers granted Temporary Protected Status, and asylum seekers. The rule does not apply to applicants seeking initial approval for work authorization.  The agency expects processing delays to decrease going forward due to the decision in September 2023 to increase EAD terms from 2 years to five years.

STATE/LOCAL UPDATES

Florida:  Minor Work Restrictions – effective July 1, 2024, Florida will loosen some of the work restrictions for minors.  For those who are 16-17 years of age, the amended law will allow parents and school superintendents to waive 30 hours per week maximum while school is in session, will allow more than eight hours of work on Sundays and holidays even when there is school the next day, and will lower the age restriction on minors working more than six consecutive days from 17 to 15.  Additionally, 16-17-year-olds scheduled to work 8+ hours in a day will be entitled to a meal break of at least thirty minutes for every four hours of continuous work.

Illinois (Chicago):  Paid Leave – Chicago passed an ordinance last November requiring 40 hours of paid leave for any purpose and 40 hours of paid sick and safe leave.  Although the year-end effective date was delayed at the last minute, it is still scheduled to go into effect on July 1, 2024, and applies to all employers.  Employers should be prepared to update their handbooks and provide the required notices.  Of particular note, employers with “unlimited” PTO are required to pay out 40 hours of PTO (less any amount used in the last 12 months) at termination.  Employers subject to the Chicago ordinance are exempted from the state Paid Leave for All Workers Act.

Maryland:  Family and Medical Leave (FAMLI) Coming Soon.  Maryland passed the “Time to Care Act” in 2022, requiring all employers to provide up to 12 weeks of paid family and medical leave for employees who have worked 680+ hours in the preceding 12 months.  It covers an employee’s or their family member’s serious health condition, baby bonding, care of a military service member, and “qualifying exigencies” arising out of a family member’s deployment to military service. Leave may be extended up to 24 weeks of leave period for combined baby bonding and recovery from a serious health condition.

FAMLI benefits will be funded through payroll deductions starting October 1, 2024, and benefits will be available starting January 1, 2026.  Initial contribution rates are 0.90% of covered wages, up to the Social Security taxable wage base.  Contributions will be divided equally between employees and employers (0.45% each).  Employers with 14 or fewer employees are not required to make the employer contribution.

Washington – Legislative Update.  The 2024 legislative session ended with over 1,200 bills introduced, 340 of which were passed and sent to the Governor.  It was a very quiet year for new employment-related laws, but there are a few to be aware of:

• The “Employee Free Choice Act” (ESSB 5778 eff. 6/6/24) prohibits employers from requiring workers to attend meetings or listen to employer speeches on “political or religious matters”. The definition of “political matters” goes well beyond elections or support for certain candidates, and also includes topics like changes in legislation or regulations and decisions to join or support a union.
• Equal Pay and Opportunities Act (SHB 1905 eff. 7/1/25) was expanded to include all protected classes under RCW 49.60.040. Pay equity laws will apply to age, sex, marital status, sexual orientation, race, creed, color, national origin, citizenship or immigration status, honorably discharged veteran or military status, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability.
• PFML Health Care Certifications (SHB 2102 eff. 6/6/24) In what could speed up the processing of paid leave claims, this new law requires healthcare providers to issue a certification of a serious health condition for Washington PFML within seven calendar days after a patient’s request and authorization and prohibits charging for the certification (but not the underlying visit).

Pay transparency class action lawsuits continue to proliferate in Washington, with attorneys scouring job postings for non-compliant employers.  Unfortunately, the legislature rejected a bill that would have required written notice of violations and a 10-day cure period and would have required plaintiffs to prove they were bona fide applicants.

If you’d like to speak to an Asure HR expert about your business, connect with us.

Asure Software provides this information for general information purposes only.  We are not attorneys, and the information in this update should not be relied upon or regarded as legal advice.  This information may not be accurate or complete as it relates to a particular company or situation, and does not reflect all developments or laws in all jurisdictions.