FEDERAL UPDATES
DOL Exempt Employees/Salary Basis: In September, DOL’s Wage and Hour Division published a Notice of Proposed Rulemaking that would significantly raise the salary basis requirement for executive, administrative, or professional exempt employees to $1,059 per week/ $55,068 annually, and for highly compensated employees to $143,988 annually, with additional automatic increases every three years. The job duties requirement would remain unchanged. The proposal is working its way through the approval process and is currently under review by the OMB Office of Information and Regulatory Affairs. Once approved (likely in the next few weeks), the DOL would be authorized to officially publish it in the Federal Register and it would be effective within 60-90 days after publication. If all goes according to plan it could take effect sometime in June 2024, although expected legal challenges could cause delays. Employers may want to review their exempt employee pay scales now and consider how these proposed increases could affect their budget either by requiring overtime for currently exempt employees or raising exempt salaries to meet the new minimums.
Covid/CDC Guidelines: The CDC officially announced that it is eliminating the recommendation that people quarantine for five days after a positive Covid diagnosis. Instead, the CDC now essentially recommends that COVID-19 be treated similarly to other flu or respiratory illnesses: individuals can return to work 24 hours after symptoms have improved, or if they had a fever, 24 hours after the fever is gone (without fever-reducing medication). However, the CDC does still recommend taking precautions for an additional five days, such as wearing a mask and/or keeping distance from others. These are only CDC recommendations, so employers should continue to also monitor state guidelines (especially in California and New York).
EEO-1 Reporting: Although the EEO-1 portal for 2022 reports just closed a few months ago, it’s almost time to start preparing for 2023 reports. The EEOC announced that its portal will open on April 30, 2024, for 2023 data, and the filing deadline is June 4, 2024. An updated instruction booklet and data file upload specifications are expected to be released by March 19. The EEOC wants to prevent employers from manipulating headcounts or snapshot dates to avoid the filing requirement, so it added a new requirement this year that mandates filing if an employer had 100+ employees at any point in the fourth quarter of the prior year.
STATE/LOCAL UPDATES
California
Pamphlet Updates – California employers should ensure that they are using the current version of two required pamphlets that have been updated for 2024:
- The “Time of Hire” pamphlet provides information about what workers’ compensation is, benefits provided, how to report an injury, medical care information, and other information about the state worker’s compensation system. As the name implies, it must be provided at the time of hire. The updated pamphlet in both English and Spanish is posted on the government’s worker’s compensation website under “General information” (DWC employer information (ca.gov))
- The Employment Development Department’s “For Your Benefit” pamphlet (DE 2320) explains employee rights concerning unemployment insurance, disability insurance, paid family leave, and workforce services. It must be provided when an employee is discharged, laid off, or placed on a leave of absence. The updated pamphlet is posted on the EDD website under Employee Benefit Rights (Required Notices and Pamphlets (ca.gov)), and there is also an option to download the pamphlet in various languages through EDD’s online forms and publications.
Cal/OSHA Violence Prevention Plans – Last year California passed a law requiring nearly all CA employers to establish, implement, and maintain an effective Workplace Violence Prevention Plan by July 1, 2024. There are very limited exceptions for employers that are already required to address workplace violence by other regulations (such as health care), for certain locations where employees are voluntarily working remotely, and for locations where fewer than 10 employees are working at any given time and that are not accessible to the public.
Cal/OSHA is tasked with enforcement and just published fact sheets and a model plan, which can be found on the state website: DOSH – Publications, Research and Education (scroll down to Workplace Violence Prevention). The model plan is similar to Cal/OSHA’s model Injury and Illness Prevention Plan(s), and can be a standalone document or incorporated into an existing IIPP. Employers are not required to use the model plan, but it is a helpful template and includes relevant questions and examples to help employers assess risks and create a comprehensive plan that meets Cal/OSHA’s requirements. The employer Fact Sheet is also very helpful and includes an overview of requirements such as:
- Creating a workplace violence prevention plan
- Violent incident log requirements
- Recordkeeping
- Training and communication
- Links to relevant laws and regulations
The requirements are extensive and will take some planning and training, so employers are encouraged to review the materials, assess risks, request input from employees, implement safety solutions, and plan training as early as possible.
Florida: The 11th Circuit recently decided that Florida’s “Stop W.O.K.E. Act,” is unconstitutional. The act banned Florida employers from requiring employees to attend any training or meeting that “espouses, promotes, advances, inculcates, or compels” beliefs about the treatment of individuals based on race, color, sex, or national origin, or that endorses the concepts that any race or sex is morally superior to others, is inherently racist or sexist, carries certain privileges, or should feel guilty about the past actions of their ancestors. Two companies that wanted to implement DEI training filed a lawsuit, and the court agreed that the state could not restrict their speech in this manner. The state may still appeal the verdict, but for now, companies in Florida have more leeway to structure DEI training according to their own beliefs rather than trying to avoid certain topics that might violate state law.
New York City: The newly expanded Workers’ Bill of Rights notice form was just released and can be found on the City’s website or here: Know Your Rights at Work Poster (nyc.gov). The Bill of Rights is a lengthy reference tool outlining federal, state, and local protections for employees, job applicants, and independent contractors in the City, regardless of immigration status. It also provides information about the right to form a union. By July 1, 2024, all employers in New York City must post it where employees can easily see it, and give a copy to each current employee and all new employees on their first day of work. It must also be posted on the employer’s intranet or mobile app if applicable. Enforcement will be complaint-based, and first-time violators will receive a warning with a 30-day window to cure. Otherwise, fines of $500 may be imposed.
Oregon: Oregon is working hard to coordinate OFLA and PLO and address the issues employers have struggled with since PLO started, especially concerning coordinating the state leaves and avoiding stacking. The most recent changes are included in SB 1515 (eff. July 1, 2024, if signed by the Governor as expected) and in BOLI’s recent amendments to its regulations (eff. March 2, 2024) BOLI is expected to release additional amendments to incorporate SB 1515 changes in the coming months. For now, some of the important updates include:
- Eliminating leave stacking by limiting OFLA leave to 12 weeks of protected, unpaid leave only for events not covered by PLO:
- care of a child who requires home care due to an illness, injury, or condition (whether or not it is a serious health condition), or due to the closure of the child’s school or child care provider because of a public health emergency; and
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- bereavement leave related to the death of a family member, up to 2 weeks per death and a maximum of 4 weeks per year (which counts toward the 12-week entitlement).
- It is providing temporary (July 1 – December 31, 2024) OFLA coverage of up to 2 additional weeks per benefit year to cover time off to navigate the legal process for placement of a foster child or the adoption of a child (after December it would be covered by PLO).
- Allowing an additional 12 weeks of OFLA leave in a benefit year to cover leave for the employee’s illness, injury, or condition related to pregnancy or childbirth that disables the employee from performing any available job duties.
- Allowing employees to choose whether to use any accrued time off to supplement PLO wage replacement.
Once the new law takes effect and BOLI updates its regulations, employers should update their Oregon handbooks and leave processes to reflect the new and changed requirements. They should also be reviewing their benefit years to comply with the definition required by the state, and possibly align them with their FMLA leave year (if they are required to offer FMLA leave).
South Carolina: The Statewide Education and Workforce Development Act will require employers to include additional information on their quarterly SCDEW reports starting in the first quarter 2024. Employers will be required to include the Standard Occupational Code for each position, as well as employee names, social security numbers, number of hours worked, and wages for all employees working in the state. Those with 1-9 employees can submit this information electronically or by hard copy, but 10+ employers must submit it electronically through SCDEW’s SUITS platform unless they request and receive a waiver.
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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.