FEDERAL UPDATES

NLRB – Rescission of General Counsel Guidance.  As expected, the new Acting General Counsel for the NLRB rescinded dozens of the former Counsel’s memos interpreting the NLRA.  Rescissions include Memorandum 23-08 suggesting that certain Non-Compete Agreements violate Section 7 and Memorandum 25-01 declaring that certain Stay-or-Pay provisions are presumptively unlawful. While the memos were not binding, their rescission makes it much less likely that the NLRB will pursue complaints against employers for violations. Employers should still ensure that restrictive covenants (including noncompetes) are narrowly tailored to protect legitimate business interests and comply with other state and federal laws.

The NLRB currently lacks a quorum, and it is uncertain when it will resume full operation.  When it does, many employers are hopeful that some of the less employer-friendly decisions will be revisited – including the Stericycle decision that made it much more difficult to establish certain rules of behavior in the workplace.

DEI Update – A federal court in Maryland preliminarily blocked the Trump administration from enforcing three key mandates: (1) requiring federal agencies to terminate “equity-related grants or contracts, (2) requiring federal contractors and subcontractors to certify that they do not operate unlawful DEI programs for purposes of the False Claims Act, and (3) enforcement of civil rights laws against DEI programs in the private sector. The injunction is only preliminary and may be quickly overturned by an appeals court.  In addition, the injunction does not prevent individual plaintiffs from bringing claims based on DEI initiatives or prevent the EEOC (or other agencies) from investigating what they perceive to be illegal DEI programs, so employers are still advised to proceed with caution.

FMLA – Siblings.  The 6^th Circuit (Kentucky, Michigan, Ohio, Tennessee) recently held that although the FMLA excludes siblings in its list of family members, siblings may nevertheless be eligible for FMLA if they assume a parental role (“in loco parentis”) for a sibling.  In this case, an employee was caring for her terminally ill sister in another state, providing financial support, paying bills, buying groceries, providing daily caregiving and housekeeping, administering medications, and driving to medical appointments.  Once she exhausted all other leaves, she requested FMLA, was denied, and was fired when she didn’t show up for work. The employee sued for FMLA interference and retaliation.  After the district court held that siblings were not eligible for FMLA protection based on the plain language of the statute, the 6^th Circuit reversed and sent the case back to the trial court for a finding on whether she was acting “in loco parentis”.  The court provided a list of non-exhaustive factors to consider:

• • Is in close physical proximity to the adult in question;
  • Assumes responsibility for supporting them;
  • Exercises control or have rights over them; and
  • Shares a close emotional or familial bond with them, akin to that of an adult child.

While limited to the 6^th Circuit, other courts often rely on decisions from other circuits when confronted with similar facts.  Rather than automatically denying FMLA for employees to care for a sibling, employers may want to carefully evaluate the request to determine whether a relationship similar to that of a parent exists.

STATE/LOCAL UPDATES

Maryland – FAMLI Delay.  Contributions to the FAMLI program are currently scheduled to begin on 7/1/25, with benefits starting on 7/1/26.  Due to concerns about cost and readiness, the Maryland DOL is requesting another delay until 1/1/27 for contributions and 1/1/28 for benefits. The delay will require legislative action, which is currently underway but not yet final.

Michigan –

Paid Sick Leave.  After years of litigation, the legislature and Governor agreed on a last-minute compromise effective two minutes after these laws took effect.  Highlights of HB 4002 include:

• Employers with 10 or fewer employees will have until October 1, 2025, to comply, and new startups will have three years to comply.
• Frontloading will now be permitted without tracking accruals or carryover, but additional written notices are required for part-time employees.
• The accrual rate remains at 1 hour per 30 worked.
• The definition of a family member will include “individuals in close relationships that are equivalent to a family relationship” rather than “affinity”.
• Most employers will be required to provide 72 hours of paid sick leave per year; employers with 10 or fewer must provide 40.
• Carryover for employees who accrue leave will be capped at 72 hours (40 for employers with 10 or fewer employees).
• Employers can provide combined PTO that meets or exceeds the requirements.
• Documentation can only be requested if an employee is absent for 3 consecutive days, must be provided within 15 days, and the employer must still pay any out-of-pocket costs.
• The rebuttable presumption of retaliation and private right of action have been removed.
• The waiting period for use has been changed from 90 to 120 days.
• Written notice of the policy must be provided at the time of hire and within 30 days of the amendment and must include: the amount of earned sick time to be provided, the employer’s choice of how to calculate the benefit year, the terms under which sick time may be used, prohibited retaliation, and the employee’s right to file an administrative complaint.

Michigan employers (10+) will want to review the amendment, adjust their policies and handbooks, post an updated poster, and provide notice to employees by March 23, 2025.  Small employers will want to do the same by October 1.

Minimum Wage: As part of the same amendments affecting Paid Sick Leave, under SB 8 the minimum wage rate will now increase from $10.56/hour to $12.48 effective immediately.  Future increases are now $13.73 on Jan. 1, 2026, and $ 15 on Jan. 1, 2027, and are based on inflation thereafter.  Instead of being eliminated, the tipped minimum wage will remain at 38% in 2025 and jump 2% per year beginning in 2026 until it hits 50% in 2031. The legislation also added a $2,500 fine to be assessed to employers who fail to ensure tipped workers get paid at least minimum wage.

New York City – Lactation Policy Postings.  Effective 5/11/25, New York City employers will be required to physically post a copy of their written lactation room accommodation policy, as well as electronically post it on their intranet if one exists.  This requirement is in addition to the obligation to distribute the written policy to employees “at the commencement of employment”.  To align with state law, the policy must specifically state that the employer will provide 30 minutes of paid break time and will allow employees to use existing paid break time or meal time if additional time is needed more than 30 minutes.  A model policy is available on the New York City Commission on Human Rights website.

To learn more about the best HR and compliance services for your company, reach out to our team of small business HR and payroll experts today.

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.