FEDERAL UPDATES

Pregnant Worker Fairness Act (15+): The EEOC formally published proposed regulations for the PWFA (eff 6/27/23) on August 11.  They are still subject to a comment period so we can expect changes, but they are legally required to be finalized by December 29.  The regulations are currently about 275 pages long, so are extensive and extremely friendly to employees with “pregnancy, childbirth and related medical conditions”.  Those terms are defined broadly, so employers should be very cautious when denying accommodations (including leave) to employees who are pregnant, have been pregnant, or are trying to become pregnant.  In addition to the obvious conditions, the PWFA may also include things like fertility treatments, use of birth control, lactation, menstruation, miscarriage, and abortion.

Unlike the ADA, the PWFA may require “temporarily” excusing employees from essential functions of the job for up to 40 weeks during pregnancy, and up to 52 weeks after childbirth (absent substantial undue hardship).

Employers should make sure they have posted the current PWFA poster from the EEOC and be prepared to offer significant flexibility to affected employees.  Certain accommodations, such as allowing an employee to carry and drink water in their work area, allowing additional restroom or food/drink breaks, and allowing an employee to sit down are generally considered automatic, without the need for certification or an interactive process.  About 30 states and a handful of localities have similar laws, so employers in those areas should also be prepared to comply with the laws in those jurisdictions.

Workplace Civility, Social Media, and Other Rules: In an unsurprising but unwelcome ruling for employers, the NLRB made it much more difficult to adopt handbook policies or work rules that restrict employee speech and actions, even if they are reasonable and intended to promote a harmonious or productive workplace. Since 2017, employers have had a green light to enact reasonable and neutral work rules, and certain categories enjoyed presumptive validity.  The employee-friendly NLRB just reversed course and will now recognize that employees are financially dependent on their employer, and therefore many policies and rules that have a “reasonable tendency” to discourage employees from exercising their Section 7 rights are presumptively illegal and must be examined on a case-by-case basis.  As a result, employers now have the very high burden of proving that their rules not only further a substantial legitimate business interest but also show that there is no other less restrictive way to accomplish the same goals.

Although the decision may still be appealed, all employers (both union and non-union) should now carefully review and revise their handbooks and policies to avoid violating the NLRA.  For example, policies such as those that restrict speech (even if it is profane or malicious), prohibit recording or loitering, require professional or cooperative behavior, require confidentiality, or limit social media posting, and others should be reviewed considering the new NLRB ruling.

ADA Visual Disabilities: The EEO issued new technical guidance addressing how the ADA applies to applicants and employees with visual disabilities, including a helpful Q&A and examples of scenarios employers commonly fact.  The updated guidance addresses:

• when an employer may ask an applicant or employee questions about a vision impairment and how an employer should treat voluntary disclosures;

• what types of reasonable accommodations applicants or employees with visual disabilities may need;

• how an employer should handle safety concerns about applicants and employees with visual disabilities; and

• how an employer can ensure that no employee is harassed because of a visual disability.

The EEOC also addressed instances when algorithmic or AI tools may screen out individuals with visual impairments, and how those should be addressed.

STATE/LOCAL UPDATES

California:

Minimum Wage for all employers will increase from $15.50 to $16.00 per hour January 1, 2024.  The salary basis for exempt executive, administrative, or professional employees will increase from $64,480 to $66,560. Some local jurisdictions may have higher rates.

Time Clock Rounding – A CA Court of Appeal took another step toward prohibiting time rounding altogether in CA by rejecting a “neutral rounding standard” approved by some other CA courts.  It held that when an employer can capture and has captured, the exact amount of time an employee has worked during a shift, the employer must pay the employee for all the time worked. The CA Supreme Court is expected to resolve the issue statewide sometime next year and will likely eliminate the “neutral” time rounding standard.

Illinois:

Child Bereavement:  The new Child Extended Bereavement Leave Act (eff 1/1/24) amends the existing Family Bereavement Leave Act to require Illinois employers with 50+ full time employees in Illinois to grant additional unpaid leave to employees who suffer the loss of a child due to homicide or suicide.  Employers in Illinois with 50-249 full-time employees will be required to provide 6 weeks of unpaid leave, while those with 250+ full-time employees must provide 12 weeks.  Employees must have worked for their employer for at least two weeks and must take the leave within one year from when they notify their employer of their child’s death. It can be taken all at once, or intermittently in increments of no less than four hours.

Domestic/Sexual/Gender Violence Leave: Illinois also amended the Victims’ Economic Security and Safety Act (VESSA). VESSA provides leave from work to address issues related to domestic violence, sexual violence, or gender violence.  The amendment (eff 1/1/24) changes the leave provisions, allowing employees to take up to 10 workdays of unpaid leave when a family member or household member is killed in a crime of violence to (1) attend the funeral, funeral alternative, or wake, (2) make arrangements necessitated by the death, and (3) grieve. This is in addition to any leave under the Family Bereavement Leave Act.  Leave must be taken within 60 days after the date on which the employee receives notice of the death of the victim.

Gender Violence Liability: Employers may now be liable for gender-related violence committed by the employer or its agents in the workplace, effective immediately.  To be liable, employers must fail to train and supervise employees, or fail to investigate complaints and take necessary remedial measures.  Sexual harassment prevention training pursuant to the IL Human Rights Act qualifies as adequate training and provides a defense to liability, so employers should make sure they conduct compliant annual sexual harassment training, track participation, and investigate and document all complaints.

Illinois Equal Pay Act: Employers cannot longer submit their EEO-1 report to meet the requirements of the Act.  Instead, they must submit a separate compilation showing all employees during the past calendar year, separated by gender, race and ethnicity, county where they are employed, start date, total wages, and anything else the state requires to evaluate pay equity.

New Jersey:

New Jersey employers should be preparing for new Unemployment Compensation reporting obligations, which will require employers to conduct all communications with the New Jersey Department of Labor and Workforce Development (NJDOL) in electronic format and abide by new deadlines when terminating/separating employees, beginning sometime around July 31. Changes include:

• Form BC-10 (instructions for claiming unemployment) must be immediately submitted to the NJDOL electronically.

• Employee separation information must be immediately submitted to the NJDOL electronically.  The NJDOL is still in the process of developing the form.

Employers should create an account with the NJDOL as soon as possible to receive updates and further instructions and be prepared to comply immediately.  Failure to comply with the new rules or respond to requests for information from the NJDOL allows the NJDOL to rely to the employee-provided information, benefits may be provided immediately, and the employer may be prevented from contesting inaccurate information.

Up until now, the penalty for failure to provide information is $25 for every 10 days. Once the system is up and running, an employer that willfully fails or refuses to timely furnish any reports or information required will be liable for a fine of $500 or 25% of any amount of unemployment benefits fraudulently withheld, whichever is greater. Under some circumstances, each day of a failure to disclose a material fact or refusal to provide reports or information can constitute a separate offense.

Texas:

Crown Act – The Texas Crown Act goes into effect September 1.  It prohibits discrimination on the basis of hair texture or protective hairstyles traditionally associated with race. Employers should review their dress code/grooming polices for any restrictions that could be considered discriminatory.

Voluntary Paid Family Leave Insurance – Beginning January 1, 2023, employers will have the option to enroll in voluntary coverage for leave related to the care of a family member, baby bonding, or other FMLA-related reasons.

Security Breaches – As of September 1, the time frame to report security breaches affecting at least 250 employees will be reduced from 60 days to 30 days.

Workplace Violence.  The TX Department of Licensing and Regulation is establishing a hotline to report workplace violations.  Employers will be required to post a notice in a conspicuous and convenient place, in English and Spanish.  Rules and a sample notice will be provided by March 1, 2024.

 

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.