FEDERAL UPDATES
Political Opinions in the Workplace: With the election year heating up, employers should expect increased conflicts about political opinions and affiliations. Although the Constitutional right to free speech doesn’t generally apply to private employers, the National Labor Relations Act (NLRA) does apply to both union and non-union employers. Before restricting political speech or activities, consider whether it in any way relates to the terms and conditions of employment and be careful about NLRA violations. The current governing NLRA board is extremely employee friendly, and although not currently a rule the General Counsel has indicated a desire to protect “political statements” as part of NLRA rights. It also pays to be careful about any actions that could be construed as being directed at a protected class, or that regulate off-duty conduct or social media posts. Some states have specific laws protecting political speech so make sure you review them before creating or enforcing a policy that might violate state law.
Rather than ignoring it or trying to monitor and restrict political speech in the office, it may be less risky to implement rules around all workplace displays in offices or cubicles, have a dress code that neutrally governs appropriate attire, review the distribution of literature section of your handbook to restrict handing out flyers or paraphernalia in work areas during work time, and remind employees about your standards for professionalism and workplace interactions. Managers should also be trained in how to recognize and intervene when arguments heat up or clashing views are negatively affecting the business.
Coercing (or even encouraging) employees to vote for a particular candidate, or inhibiting their ability to vote, are strongly discouraged and often prohibited by state law. Many states also have very particular laws about giving employees time off to vote, so it’s a good idea to review the state law now and be prepared for requests for time off.
Federal Contractors: EEO-1 Data Disclosures – Over a year ago the OFCCP received a request to release federal contractor EEO-1 data under the Freedom of Information Act. Thousands of federal contractors objected, a lawsuit was filed, and a California court recently ruled that the data is not protected commercial and confidential information, so must be released. The FOIA request covered about 75,000 EEO-1 reports from about 24,000 federal contractors, with about 20% of them objecting to the release. For contractors that didn’t object, the data has already been released. For those who did object, the deadline for release is currently February 20, 2024, pending a possible appeal by the Department of Labor.
STATE/LOCAL UPDATES
California:
COVID-19 Isolation Guidelines – As one of the few remaining states still strongly regulating COVID-19 safety, as of 1/9/24 the California Department of Public Health (CDPH) at least eased its isolation guidelines during the “infectious period”. The CDPH will now only recommend that individuals who test positive isolate until they have not had a fever for 24 hours (without fever-reducing medications) and their other COVID symptoms are mild and improving. If there is a positive test with no symptoms, isolation is no longer recommended but the individual should still follow masking protocols. CDPH still acknowledges that the “potential infectious period” is 2 days before symptoms (or positive test date in the absence of symptoms) through 10 days after symptom onset or testing positive, and accordingly still recommends wearing a mask through day 10. However for purposes of isolation and work exclusion, using the redefined, shorter, infectious period is now recommended.
Noncompete Notices – the February 14, 2024 deadline is coming up for employers to notify current or former employees in California that any noncompete agreement they signed is no longer valid. Only those individuals employed after January 1, 2022, and with an existing outstanding agreement are included. Employers should review and identify any noncompliant agreements, and notify those employees at their last known mail and email address. The failure to do so is a violation of California Unfair Competition Law, which can carry civil penalties. The notice itself can be a short and simple statement that as required by California Business and Professions Code section 16600.1(b)(1), we are hereby notifying you that the noncomplete provisions contained in the [identify Agreement] are void and unenforceable under California Business and Professions Code section 16600.
Maine (Portland): Hazard Pay – In 2020, voters in Portland, Maine passed a referendum requiring annual increases in the minimum wage through 2024. Buried in that referendum was a “hazard pay” section that was intended to increase the minimum wage during times when there is a higher risk of coming to work, such as during COVID-19. However, it technically applies to any declared state of emergency. This means that events such as potential hurricanes (September 2023 Hurricane Lee), or the current state of civil emergency for coastal cities due to flooding (eff. 1/11/24) also technically trigger the increase. Employers in Portland must now monitor every state of emergency, and pay any employee reporting to a worksite during a declared emergency “hazard minimum wage”, which is currently $22.50 per hour, and overtime at the rate of $33.75 per hour. Violations can trigger civil liability for treble damages and attorneys’ fees, and the city manager can order the payment of back wages plus a minimum fine of $100 per day if an employer is out of compliance.
Massachusetts: PFML – The Department of Family and Medical Leave just released an updated PFML poster for 2024, reflecting the new contribution rates effective 1/1/24. It must be posted in a location where it can be easily read, and must be in English and any other language spoken by at least 5 employees. This year employers with private plans also have to include contact information/website for their plan provider on their poster and indicate whether that plan covers family benefits, medical benefits, or both. Massachusetts now allows employees to choose to top off their benefits with other available accrued leave (such as sick leave, vacation, or PTO) if it is for a reason specified in those policies. A new employee notice including these changes is also available on the Department’s website.
New York: Pay Frequency for Manual Workers – Section 191 of the New York Labor Law requires that “manual workers” must be paid weekly, and not later than seven calendar days after the end of the week in which wages are earned. A manual worker is generally a “mechanic, workingman or laborer” who spends more than 25% of their time engaged in broadly defined “physical labor”. For the past five years, employers have been hit with a flood of class action litigation related to this statute, based on a court decision that allowed employees to sue employers directly rather than filing a wage and hour claim with the state. A First Department court previously held that employees could be entitled to liquidated damages equal to 100% of the late wages, even if the wages had been paid in full. When combined with a fairly long statute of limitations, damages have added up quickly and translated into a strong incentive to sue employers. Two emerging developments may offer some welcome relief: First, Governor Hochul proposed an amendment to the NY Labor Law that would eliminate liquidated damages under this statute. Second, a Second Department court recently declined to follow the First Department and held that liquidated damages are only available for nonpayment or underpayment of wages, not frequency of payment. It’s likely that either the state Court of Appeals will weigh in and settle the issue, or the Governor and legislature will agree on a statutory amendment this year. In the meantime, the Bronx and New York counties in the First Department jurisdiction will continue to see litigation and potentially large damage awards, while litigation will likely decline in the Second Department jurisdiction of Dutchess, Kings, Nassau, Orange, Putnam, Queens, Richmond, Rockland, Suffolk, and Westchester counties.
Oregon:
Paid Leave Oregon – The Oregon Employment Department has been busy with public meetings and finalizing administrative rules and just filed another permanent set of final rules with the Secretary of State – Batch 9. Among other things, they clarify two helpful definitions for terms that are often a struggle for employers:
“Affinity” (as part of the definition of a family member). Batch 9 adds some “totality of the circumstances” factors to consider, which are intended to prevent some of the most egregious fraud but also require quite of bit of flexibility:
(A) Shared personal financial responsibility, including shared leases, common ownership of real or personal property, joint liability for bills, or beneficiary designations;
(B) Emergency contact designation of the claimant by the other individual in the relationship, or vice versa;
(C) The expectation to provide care because of the relationship or the prior provision of care;
(D) Cohabitation and its duration and purpose;
(E) Geographical proximity; and
(F) Other factors that demonstrate the existence of a family-like relationship
“Health care provider” must be someone who provides care through spiritual means (such as a Christian Scientist), or someone who is licensed or certified and one of the following:
(A) A chiropractic physician, but only to the extent the chiropractic physician provides treatment consisting of manual manipulation of the spine to correct a subluxation demonstrated to exist by X-rays;
(B) A dentist;
(C) A direct entry midwife;
(D) A naturopath;
(E) A nurse practitioner;
(F) A nurse practitioner specializing in nurse-midwifery;
(G) An optometrist;
(H) A physician;
(I) A physician assistant;
(J) A psychologist;
(K) A registered nurse; or
(L) A regulated social worker.
Washington: Wildfire Smoke – in preparation for another season of wildfires, the state enacted new permanent safety regulations that are now effective and apply to any workplace other than enclosed buildings or vehicles. Employers with employees who work outdoors, or in an unenclosed workspace, are required to add a Wildfire Smoke Response Plan (WSRP) to their Accident Prevention Plan, provide annual training to employees, and monitor the air quality at job sites. The WSRP must be in place before an employee begins work when they will be exposed to a PM2.5 of 20.5 µg/m3 (AQI 69) or more.
The WSRP must be tailored to the specific workplace and include (1) the health effects and symptoms of wildfire smoke exposure; (2) the importance of informing the employer when the employee is experiencing symptoms of wildfire smoke exposure; (3) the right to obtain medical attention without fear of reprisal; (4) the requirements of the Wildfire Smoke Regulations; (5) the employer’s methods of determining and communicating the particulate level (PM2.5 or AQI); (6) the employer’s response plan; (7) language describing the benefits of respirator use when exposed to wildfire smoke; (8) the risks of wearing a respirator without medical evaluation; and (9) instructions for how to put on, use, and maintain the respirators provided by the employer.
L&I has a new page explaining the new rules: Wildfire Smoke (wa.gov)
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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.