FEDERAL UPDATES
OFCCP Workforce Reduction – Reports of a memorandum from OFCCP’s acting director suggest that the agency will lay off 90% of its workforce and reduce its offices from 55 to 4. It intends to retain a limited number of staff to review contractors for compliance with VEVRAA and Rehabilitation Act (disabilities) affirmative action plans.
FTC – Protecting Competition in Labor Markets. The Chairman of the Federal Trade Commission announced a new “Joint Labor Task Force” that indicates a shift toward protecting competition in labor markets in addition to its usual focus on consumer protection. He specifically called out no-poach, non-solicitation, no-hire, and wage-fixing agreements, non-competes that impose “unnecessary, onerous, and often lengthy restrictions”, unjustified fees for terminating a contract, deceptive job advertising or job scams, “collusion or unlawful coordination on DEI metrics” that exclude certain individuals from job markets or training schools, and other similar practices. The Task Force is charged with coordinating activities across several bureaus and prioritizing the “investigation and prosecution” of these types of unfair labor practices.
OSHA – Moving from COVID-19 to Infectious Disease Standard for Health Care. OSHA has terminated its rulemaking for a COVID-19 standard and instead will focus on rulemaking and a broader infectious disease standard for health care. It issued a memorandum stating that it will no longer enforce COVID-19 recordkeeping and reporting requirements, and will instead prioritize a new, more comprehensive standard.
ACA Forms 1095-B and 1095-C – The IRS issued guidance for employers taking advantage of the new “alternative manner” rule allowing them to distribute these forms by request rather than automatically. If requested employers must provide the form within 30 days of the request or by January 31 of the following tax year, whichever is later. In addition, employers are required to provide employees with a notice that:
- Is clear and conspicuous on the main page of their website, or a link titled “Tax Information” that leads to a secondary location that meets all the requirements.
- Is titled in all caps, “IMPORTANT HEALTH COVERAGE TAX DOCUMENTS”
- Is reasonably accessible to employees who would otherwise receive the forms
- States that individuals can request a copy, and provide contact information (email address, phone number, mailing address)
- Is posted by March 1st of each year and remains posted until at least October 15.
This is for federal purposes only; some states may require employers to deliver the forms to all employees each year. In addition, it does not affect the requirement to file them with the IRS.
STATE/LOCAL UPDATES
Florida – Medical Marijuana Accommodation. A Florida state court ruled in favor of a county fire department employee placed on administrative leave after testing positive for marijuana after a routine random drug test. The employee possessed a valid medical marijuana card and claimed to use it for disabilities related to PTSD and anxiety. He claimed that the county failed to accommodate his disabilities; the county claimed that a medical marijuana card did not exempt him from federal law even though there was no evidence that he used, possessed, or was impaired by marijuana at work. The court ruled that Florida employers must accommodate off-duty and off-site medical marijuana use.
Iowa – Gender Identity. The Governor of Iowa signed a bill that removes gender identity as a protected class under state law. The new law also defines gender as binary male/female, requires birth certificates in the state to indicate sex as observed or clinically verified at birth, and restricts curriculum about “gender theory” or sexual orientation through the 6th grade. The legislation took less than a week to be approved and signed by the Governor. Iowa employers should be mindful that this affects state laws but the Supreme Court ruling in Bostock still technically includes gender identity in the “sex” protected class under federal law.
New York –
Retail Worker Safety Act. The effective date of the Act has been delayed until June 2, 2025. Employers with 10+ retail workers must adopt a written workplace violence prevention policy and provide interactive training, and those with 500+ employees in New York must provide silent response buttons by January 1, 2027. The State is expected to provide a model policy and training before the effective date.
Criminal History Protections. Effective March 22, 2025 employers are prohibited from circumventing the restrictions on considering criminal histories by requiring applicants or employees to obtain their records and provide them to the company.
Reproductive Health Bias. Due to the resolution of related litigation, effective immediately all New York employers are required to include a notice in their handbooks (if they have one) regarding prohibited discrimination and retaliation based on their or their dependent’s reproductive health care choices. These include the choice to use particular drugs, devices or medical services (including abortion). Employers are also prohibited from accessing personal information regarding these choices without written consent.
Massachusetts – Job applications. Due to a recent increase in class action lawsuits, Massachusetts employers may want to review their job applications to ensure they have the required notice regarding lie detector tests (even if they don’t use those tests, which are illegal). M.G.L. c.149, Section 19B(2)(b) very clearly states that “All applications for employment within the commonwealth shall contain the following notice which shall be in clearly legible print:
It is unlawful in Massachusetts to require or administer a lie detector test as a condition of employment or continued employment. An employer who violates this law shall be subject to criminal penalties and civil liability.”
The statute contains a private right of action, fines, and other costs and fees. After some successful litigation last year, certain attorneys are filing lawsuits based on the lack of notice alone, even when the accused company never actually used a lie detector test. Simply adding this statement to applications may prevent becoming a target.
Virginia – Workplace Violence Prevention. The Virginia legislature passed HB 1919, which is awaiting the Governor’s signature. The bill would require Virginia employers with 100+ employees to develop and implement a workplace violence prevention program by January 1, 2027. Similar to California, the program must identify and address “tailored and specific” workplace violence hazards, identify individuals responsible for implementation and monitoring, provide a process for employees to report violence and hazards without fear of retaliation, and create documentation and retention protocols.
Washington – Pay Transparency. The Washington Supreme Court recently heard oral arguments to decide on whether the definition of a “job applicant” includes anyone who applies or only those individuals who intend to seek employment. That decision will have a major impact on pending and future pay transparency lawsuits, as well as other Washington laws that apply to “applicants”. One side is arguing for the plain and ordinary meaning: a person who applies in response to a job posting. The other side argues that the pay transparency statute intends to protect bona fide applicants with a good faith intent to pursue the job, and allowing people to apply merely to facilitate a lawsuit for monetary gain was not the legislature’s intent. A decision in favor of requiring applicants to be “bona fide” would provide a strong defense in many of the pending pay transparency lawsuits, decrease or eliminate the class, and dissuade future lawsuits.
In the meantime, the legislature is currently considering a bill that would give employers a 14-day cure period after receiving a notice of noncompliance with the pay transparency statute, which could prevent many lawsuits as long as the employer corrects the error within the cure period. If the employer corrects the error (i.e. adds the pay range and benefits), the individual providing the notice would be prevented from pursuing any remedies. If the employer does not correct the error, it opens the door for any “applicant” to seek remedies based on noncompliance with the statute. The bill has passed the Senate and is currently in the House Labor & Workforce Standards Committee. There are still 51 days left in the session, so the bill may not be finalized until the end of April, and then would still need to be signed by the Governor.
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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.