FEDERAL UPDATES

Federal Contractors:

OFCCP AAP certification – the portal opened April 1, and will remain open until July 1.  Employers required to submit affirmative action plans must log into the portal and certify their plan before it closes.  Contractors who fail to certify on time are more likely to be chosen for a compliance evaluation, so following the rules can help avoid being selected for an audit.

VEVRAA Hiring Benchmark – OFCCP adjusted the hiring benchmark for veterans (eff 3/31/24) by reducing it from 5.4% to 5.2%, continuing the trend of reducing it each year.  Federal contractors can establish their benchmark using the “five-factor” method described in 41 CFR 60-300.45(b)(2), or use the default OFCCP benchmark.

Use of AI – As part of the trend toward evaluating whether the use of automated screening programs may result in adverse impact discrimination, OFCCP released a notice that employers selected for a compliance review will now be required to “identify and provide information and documentation of policies, practices, or systems used to recruit, screen, and hire, including the use of artificial intelligence, algorithms, automated systems or other technology-based selection procedures”.

STATE/LOCAL UPDATES

California

Workplace Violence Prevention Plans – Cal/OSHA recently published an FAQ page on the CA DIR website to assist with non-healthcare WVPP compliance.  It is expected to continue updating the FAQs and working toward final regulations, but the initial FAQs cover some basic information about definitions, employers, requirements, violent incident logs, training, and recordkeeping.

Some of the more notable topics include:

• Employers must provide initial WVPP training by July 1, 2024, when enforcement commences.
• The WVPP must be “specific to the hazards and corrective measures for each work area and operation”, not a generic corporate plan applicable to all sites.
• The WVPP must be available and easily accessible to employees, authorized employee representatives, and Cal/OSHA representatives at all times. It depends on the “nature of the workplace”, but suggestions include placing copies in common areas, in a binder, or on the company website.
• Workplace violence includes all “acts of violence or threat of violence”, including animal attacks.
• Cal/OSHA is working on regulations and anticipates having a first advisory meeting on proposed regulations in Q2 2024.

Fast Food Minimum Wage.  The California Department of Industrial Relations recently published FAQs regarding the new law that sets a $20 minimum wage for certain fast-food workers effective April 1.  Employers that qualify as “fast food restaurants” should have adjusted their wages and posted the new supplemental minimum wage poster.  They should also be aware that the increase in the minimum wage also increases the CA exempt salary basis:  managers must now make at least $83,200 per year to qualify as exempt.

Some employers may also have some welcome relief due to the adoption of AB 610, which includes additional exemptions based on this reasoning: Restaurants that are operated in conjunction with larger enterprises such as airports, hotels, large event centers, theme parks, museums, gambling establishments, corporate campuses, and certain public lands, generally do not share the same characteristics as traditional fast food restaurants that are part of national fast food chains, because restaurants operated in conjunction with larger enterprises have distinct economics and a captive customer base, are often operated subject to concession or food service contracts, and have different employment structures. 

Specific definitions are included in the amended statute, and among others exclude the following “restaurants” from the statute:

• Hotels – residential buildings that are designated or used for lodging and other related services for the public, including any space contracted, leased, or sublet in connection with or operated in conjunction with the building’s purpose, or providing services at the building.
• Event centers – publicly or privately owned structures of more than 20,000 square feet or 1,000 seats used for public performances, sporting events, business meetings, or similar events, and include concert halls, stadiums, sports arenas, racetracks, coliseums, and convention centers. “Event center” also includes any contracted, leased, or sublet premises connected to or operated in conjunction with the event center’s purpose.
• Theme parks – commercially operated, admission-based grounds or enclosures featuring amusement park rides of a permanent or semi-permanent nature, shows, and attractions that are presented, shown, staged, or offered to the public, along with games, merchandise, and food offered for sale in the park, and any contracted, leased, or sublet premises that are connected to, located within, or operated in conjunction with that park, whether or not an admissions ticket is required for entry.
• Office buildings/campuses – restaurants located in and operated in conjunction with a building, group of buildings, or campus used for office purposes primarily or exclusively by a single, for-profit corporation and its affiliates that primarily or exclusively serve employees of that corporation or its affiliates rather than the general public, and that is part of, or subject to, a concession or food service contract covering the building, group of buildings, or campus.

Massachusetts – H.1434 Background Checks/Credit:  Massachusetts is enacting a new type of prohibition on discrimination by barring the use of credit reports for employment purposes.  It takes effect on January 1, 2025, and is one of the most restrictive laws of its kind in the country.  The law bans employers from requesting a consumer report that checks an individual’s “credit worthiness, credit standing or credit capacity”, and prohibits the use of any such information for employment purposes, including hiring, promotion, reassignment, and termination.  It does not affect other types of background check information, such as criminal records, driving records, or verification of education or employment.

Oregon: Significant changes are coming to OFLA and Paid Leave Oregon (eff. 7/1/24).  The state had been attempting to coordinate these leaves by defining each instance when they would run concurrently, but that was adding a layer of complication for employers and BOLI.  As a result, the state switched gears by enacting SB 1515, which amends OFLA and PLO to separate the types of leaves available under each entitlement and specifies that they will not run concurrently.  Some of the most significant changes include:

• Family and medical leave will fall exclusively under PLO (and possibly FMLA), and sick child leave (whether it is a serious health condition or not), pregnancy disability (but not baby bonding), and bereavement will fall exclusively under OFLA.
• Employees on PLO leave will be entitled to use any employer-offered paid leave accruals to supplement their PLO benefits up to full wage replacement rather than leaving it up to the employer’s election.
• There will no longer be a cap on combined usage (16-18 weeks), although theoretically the maximum amount of leave per year increases to 38 weeks. For example, an employee could use 12 weeks for a sick child or bereavement under OFLA, 12 weeks for pregnancy disability under OFLA, 12 weeks for a serious health condition or baby bonding under PLO, and an additional 2 weeks of pregnancy disability under PLO.
• Bereavement leave is capped at 2 weeks per family member, and 4 weeks total per year.
• OFLA will temporarily provide an additional two weeks of leave for the fostering or adoption process, which will move to PLO starting January 1, 2025.

OFLA may still offer additional unpaid leave after PLO is exhausted in some situations, such as when an employee uses 12 weeks of PLO to care for a child with a serious health condition, and is then entitled to an additional 12 weeks of OFLA leave to care for a sick child.

Regulations have not yet been released, so additional technical changes will be forthcoming.  Employers should be prepared to revise their handbooks and Oregon leave policies in the coming months.

Washington

Paid Sick Leave – The Governor just signed SB 5793 (eff. 1/1/25) to amend the state paid sick leave law.  The changes will:

• Expand permitted uses of WA paid sick leave to cover business and place of care closures after a declaration of an “emergency” (in addition to the existing reason for closures due to health-related reasons).
• Expand the definition of “family member” to include anyone who regularly resides in the employee’s home or where the relationship creates an expectation that the employee will care for that person, and that person depends on the employee for care.  It does not include someone who lives with the employee and has no expectation of care (i.e. roommates or shared housing)
• Expands the definition of “child” to include a child’s spouse.
• Redefines “grandchild” and “grandparent” to mean the employee’s grandchild or grandparent.

Minimum Wage (Renton) – As part of what is becoming a regional trend as some areas lose workers to nearby cities with higher minimum wage, the City of Renton passed Resolution 4516 in response to a citizen initiative passed in February.  It is nearly identical to Tukwila’s minimum wage ordinance, which is in turn a response to increases in the minimum wage in SeaTac and Seattle.  The ordinance is effective July 1, 2024, raises the minimum wage in Renton, and includes a right of first refusal for existing employees when there is additional available work.  Highlights include:

• The minimum wage will increase on July 1 to $20.29 for large employers (500+ worldwide) and will be phased in starting at $18.29 for smaller employers with 15+ employees OR at least $2 million in gross revenues. By July 1, 2026, the minimum wage be the same for all covered employers.
• The minimum wage will increase each year based on inflation. Rates will be announced in October and effective each January 1.
• All tips and service charges must go to the employee unless there is a clear notice to customers that a service charge will go to the employer, and tip credits are not permitted.
• Employers must offer more hours to part-time employees before hiring new employees or subcontracting the work (i.e. hiring temp workers).
• There is a presumption of retaliation if an adverse employment action occurs within 90 days after an employee complains about wages or exercises any rights under the ordinance.
• Records must be kept for at least five years.

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.