FEDERAL UPDATES

OSHA – A reminder that the OSHA reporting deadline is quickly approaching!  The last day to file reports in the OSHA portal is March 2, 2024.

Covid Isolation Periods – Although not official, rumor has it that the CDC is planning to announce this spring that it will drop the 5-day isolation period for people testing positive for Covid, and will instead recommend that isolation can end once they have been fever-free for 24 hours and their symptoms are mild or improving.  This would align with guidelines recently amended by several states, including California and Oregon.  Regardless of the requirements, most industry experts suggest that employers remain flexible and actively discourage employees from coming to work when sick to avoid outbreaks and additional absences, and to enhance a culture of empathy and engagement.

NLRA (Moonlighting) – The National Labor Relations Board recently issued some limited guidance to address the Stericycle decision (addressing employee handbook provisions that may discourage employees’ right to discuss terms and conditions of employment).  Of particular note, the guidance stated that a “moonlighting” handbook provision that restricted activity “adverse to the Corporation’s interest” could reasonably be interpreted to prohibit engagement in union organizing or other Section 7 activity, and could prevent any outside employment in violation of the NLRA.  It also included a reminder that the NLRB General Counsel has asserted that “no moonlighting” rules are generally unlawful.  Employers should carefully scrutinize their moonlighting restrictions in light of this new guidance, avoid blanket statements that employees cannot act adversely to the company’s interest, and limit any restrictions on moonlighting to true and significant conflicts of interest.

Independent Contractors – DOL’s new independent contractor rule is scheduled to take effect on March 11, 2024.  Litigation is pending, but until something happens at that level employers should be prepared to assess their independent contractor relationships in light of the new rule.  This is also a good time to review any more stringent state standards to ensure compliance – states such as California, Massachusetts, Illinois, Maryland, New Jersey, and Pennsylvania generally have higher standards.  DOL’s rule is complex but generally makes it more difficult to classify individuals as independent contractors by changing the analysis from weighted factors to “totality of the circumstances” based primarily on:

• The degree to which the employer controls how the work is done.
• The worker’s opportunity for profit or loss.
• The amount of skill and initiative required for the work.
• The degree of permanence of the working relationship.
• The worker’s investment in equipment or materials required for the task.
• The extent to which the service rendered is an integral part of the employer’s business.

Compliance experts suggest performing an audit and focusing on whether (i) there is a project-specific contract with a specific end date, (ii) the work performed is separate from the main purpose of the business, and (iii) the contractor’s skills are unique and aren’t otherwise available from a regular employee.

E-verify Glitch (February 14) – Employers using E-Verify on February 14 should be aware that there was a glitch in the system that used incorrect photos from government databases for matching purposes. Verifications on this date should be closely scrutinized to re-evaluate any Tentative Nonconfirmation Notices based on an erroneous photo match.  If an error is discovered, employers should close the case, create a new E-Verify submission, and document the reason for resubmitting the case.

STATE/LOCAL UPDATES

Hawaii:  Pay Discrimination/Pay Transparency – As part of the trend toward addressing pay equity, Hawaii has expanded the classes protected from pay discrimination to include (in addition to sex) age, race, disability, gender identity or expression, sexual orientation, religion, color, ancestry, marital status, arrest and court record, and domestic or sexual violence victim status.  Employers must ensure that they are providing employees with the same pay for “substantially similar work”, defined as jobs that require “equal skill, effort, and responsibility, and that is performed under similar working conditions, and does not include minor or irrelevant differences in jobs.”  To further that goal, Hawaii now requires employers with 50 or more employees (nationwide) to include pay information in job postings and advertisements for employment.  They must disclose the hourly rate or salary range that “reasonably reflects” the actual expected compensation in all job postings or employment advertisements.  Unlike some other states, it does not apply to internal transfers and promotions.

Illinois: EPRC reports – Employers that file an EEO-1 report and have 100+ employees who are either based in Illinois or report to a location in Illinois are required to submit their annual application for an Equal Pay Registration Certificate by March 23, 2024 (unless they have been notified of a different due date when they created their Illinois Public ID Account).

Massachusetts:

Pay Transparency – Massachusetts now requires employers with at least 25 employees in Massachusetts to disclose pay ranges in job postings and requires employers with at least 100 employees in Massachusetts to annually report aggregate EEO to the state.  The “pay range” is defined as the salary or hourly range that the employer “reasonably and in good faith expects to pay” for the position.  It does not require employers to include other forms of pay such as bonuses or commissions, but does require disclosure for internal transfers or promotions.

St. Paul Earned Sick and Safe Time – The St. Paul Department of Human Rights and Equal Economic Opportunity released new guidance on the St. Paul ESST ordinance to address revisions intended to align it more closely with the state ESST law.  Employers in St. Paul should carefully review the guidance to understand some technical but important differences, such as those related to fractional accruals, travel/on-call time, and interactions with PTO.

New York City

Pay Transparency:  The Commission on Human Rights has been proactively targeting pay transparency violations, bringing complaints against at least 32 employers since October.  The law requires employers with 4+ employees to include a good faith pay range in any advertisement for a job, promotion, or transfer opportunity.  The complaints cover a range of businesses, including law firms, hotels, a clothing company, a substance abuse treatment facility, a food distribution company, and multiple well-known job search platforms.  Some charges related to failing to include a range at all, while others targeted overly broad ranges.  Employers should review their practices and ensure compliance to avoid drawing the attention of the Commission.

Earned Sick and Safe Time – New Private Right of Action:  Beginning March 20, 2024, NYC employees will be able to sue employers directly for ESSTA violations for up to two years from the date the employee knew or should have known of the alleged violation.  This is in addition to their right to file a DCWP complaint for the same violation, and will undoubtedly encourage the plaintiff’s attorneys to proactively seek opportunities to file lawsuits on behalf of NYC employees.

Washington

Sick Leave Payout (Construction) – As of 1/1/24, certain construction workers and other employees in the construction industry must be paid the entire balance of accrued and unused paid sick leave if they separate from employment before they reach their 90th day of employment when the use of sick leave would normally become available.  The requirement is intended to provide sick leave benefits to workers who fall under NAICS 23, other than residential building construction (NAICS Code 236100).  The intent is to help construction workers who move from job to job and may never satisfy the 90-day waiting period for sick leave use.

PFML/ESD Access – ESD announced that due to data protection concerns, it will no longer include the last four digits of an employee’s social security number on mailed notifications.  In addition, it has updated its portal to include information it will share about the use of Paid Leave benefits.  To view the information, employers must have completed the PIN process and have full access to their employer account, be marked as the “current employer” on the employee’s application/weekly claim, and the person logging in must have a “Benefit Claims” or “Account Administrator” user role.  If all these conditions are met, employers should be able to select the “Benefit Claims” tab to view information about an employee’s application date/requested leave dates, leave type, approved leave dates, and employee identifiers.  While this is a definite improvement, unfortunately, ESD still cannot share weekly benefit amounts, payment amounts, hours used, or whether there is a pending redetermination or appeal.

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.