HR regulations and requirements are constantly changing. Here’s a summary of the latest Federal and state updates that may impact businesses in your jurisdiction.
FEDERAL UPDATES
Severance Agreements. In a move that affects both union and non-union employers, the NLRB General Counsel issued memos to all field offices on March 22, doubling down on the stance that most confidentiality and non-disparagement provisions in severance agreements are unlawful, and that simply offering the agreement to an employee is an NLRA violation even if the employee refuses to sign it. She further clarified that these standards should be applied retroactively, and as a compliance measure suggested that employers should reach out to current and former employees and inform them that their agreements are null and void.
She called also called out several other common clauses in severance agreements that she believes are “problematic”, including overly broad clauses related to non-completes, no solicitation, no poaching, “broad liability releases”, covenants not to sue, and required cooperation in future investigations or proceedings involving the employer. Severance agreements that waive the right to pursue employment claims “arising as of the date of the agreement” are likely still lawful.
Due to the highly technical and legal nature of these interpretations, we strongly suggest that employers who use severance agreements now or in the past reach out to their legal counsel for further guidance.
Federal Contractors/AAP:
The contractor/subcontractor portal to certify annual AAP compliance will open on March 31, with a certification deadline of June 29, 2023. One change this year is that OFCCP will require contractors to provide their “AAP coverage period” to allow OFCCP to move to a rolling deadline based on the actual plan year (rather than everyone certifying by the end of June). OFCCP also reiterated that it will continue to focus audits on those who fail to certify by the deadline, as it did in 2022.
OFCCP also announced a new focus on compliance for construction contractors (and subcontractors) with federally funded projects of $35+ million that is scheduled to last a year or more. While the intent is to “assist” federal contractors with these “Mega Construction Projects” with compliance, it is also part of a general campaign to provide more OFCCP oversight with respect to construction and will likely trickle down to smaller contractors and subcontractors on large projects.
Arbitration: The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act that passed last year allows employees to sue for sexual assault/harassment without going through arbitration even if they signed an arbitration agreement as part of their employment. The question people are asking is what happens to any other claims they may have against the employer as part of the same lawsuit – does the employee have to litigate sexual harassment in court while simultaneously participating in arbitration for wage and hour, wrongful termination, race discrimination, etc.? Two cases just decided in the Southern District of NY recently became the first to address this, holding that when a plausible sexual harassment claim is involved, it invalidates the entire arbitration agreement for all related claims in the same case. This came as a surprise to many and suggests that plaintiffs may now be incentivized to include a sexual harassment claim in their lawsuit for just for the purpose of avoiding arbitration.
STATE/LOCAL UPDATES
California:
Covid-19. The California Covid-19 State of Emergency officially ended on February 28, 2023. This prompted CDPH to announce that it will end its vaccination and masking requirements in high-risk and healthcare settings as of April 3, and remove its recommendation that individuals test for Covid in order to leave isolation before day 10. A Covid-19 positive person can now end isolation and return to work after 5 days without testing if they “feel well”, their symptoms have improved, and they have been fever-free for 24 hours. Although CDPH also announced that it would not require masking if there are 2 negative tests at least 1 day apart, the Cal/OSHA regulation applicable to employers technically still requires that those employees wear masks for the full 10 days.
Pay Data Reporting. This a reminder that California employers of 100 or more employees and/or 100 or more workers hired through labor contractors must report paying data to the CA Civil Rights Department by May 10, 2023. The California legislature made several changes to the report this year, so be sure to review the new requirements on the Civil Rights Department website well in advance of the due date.
Illinois:
The Governor just signed the “Paid Leave for All Workers Act” (PLAWA), making it the 3rd state (after Maine and Nevada), to offer this type of leave. It will be effective January 1, 2024, applies to all employers regardless of size, and provides 1 hour of paid leave for every 40 hours worked, up to a maximum of 40 hours per year. Unlike sick, bereavement or other leave laws that only apply in certain circumstances, this bucket of leave is essentially state-mandated PTO that it can be used for any reason. Unless it is frontloaded it must be carried over from year to year, although users can be capped at 40 hours per year.
Although employers can’t ask for any documentation or make employees find coverage during their absence, they are permitted to require at least 7 days’ notice for foreseeable leave as long as they include this requirement in a written policy (such as the employee handbook). They can also choose minimum increments of leave, but not more than 2 hours.
Because Illinois requires payment for accrued vacation time at termination, but not for accrued “leave”, employers will have to be particularly careful when drafting their handbooks. If they integrate this type of leave into their PTO or vacation policy, it will become payable at termination. Otherwise, under the statute, it is considered accrued leave (similar to sick leave) and is not payable at separation.
Cook County and Chicago already have separately paid sick leave ordinances. These remain in effect and employers do not have to provide the Illinois state PLAWA leave if they are separately providing at least one hour of paid sick leave per 40 worked under these ordinances. However, if there is any amendment to the ordinance(s) after the state leave goes into effect, the amendments must comply with the PLAWA by converting the local sick leave allocation to PLAWA leave for any reason at th
at time.
The Illinois Department of Labor will issue further guidance, presumably before the act takes effect next January.
Chicago: Reminder that in April 2022 the Chicago City Council imposed new requirements on Chicago employers with respect to sexual harassment. All employees working in Chicago must participate in sexual harassment prevention training annually (one hour for all employees and two hours for managers and supervisors). The first round must be completed by June 30, 2023. Details can be found on the Chicago Commission on Human Relations website here: City of Chicago: Sexual Harassment
New York:
Pay Transparency. New York State amended its pay transparency law (eff. 9/17) that generally requires employers (4+ employees) to provide good faith estimates of the minimum and maximum salary or hourly pay range in any postings for jobs, transfers, or promotions. The law covers jobs that will be physically performed in New York, and now will also cover any job that may be physically performed outside of New York if the applicant would report to a supervisor, office, or another worksite in New York State. New York City, Albany County, Ithaca, and Westchester County have separate pay transparency ordinances that are in addition to the state requirements and are currently in effect.
NY Electronic Postings: New York Labor Law Section 201 has always required that all federal, state, and local posters be displayed conspicuously on each floor of the workplace. With the shift to more remote work, that law has been amended to also immediately require employers to furnish all employees with electronic copies by posting them on the employer’s intranet or via email, and to notify employees that all physically posted notices are available electronically. The amendment makes it clear that the electronic posting requirement is in addition to the physical posting requirement, not a substitute for it.
To comply with the amended law, we recommend that employers:
· Ensure that all mandatory workplace posters are displayed in a conspicuous place on each floor of their New York workplace, if any.
· Obtain or create digital versions of the posters, and upload them to the employer’s intranet site, or if there is not an internal website disseminate them via email to all New York employees (including those working remotely in New York).
· If uploaded to an intranet site, notify employees that the posters are available on that site by sending an email with a link to the employer’s intranet page.
· Update employee handbooks to add information regarding the online location of the posters. If the electronic posters are made available by email, update onboarding materials to include the digital posters.
· Although not legally required, employers may want to include a “read receipt” or other similar acknowledgment as evidence that employees received the notice.
· Repeat this process each time posters are updated or added.
Failure to comply with the electronic posting requirement could result in monetary fines and may be used as evidence in connection with other workplace violations.
Utah:
Covid (Anti)Vaccinations: The Utah legislature passed H.B. 131 (eff. May 3), prohibiting employers from requiring proof of immunity or vaccination when making employment decisions (except in cases where they are subject to separate vaccination regulations, such as federal contractors or health care). Under prior law, employers may request proof of vaccination, but must exempt anyone who provides a statement that receiving the vaccine would be “injurious to their health and wellbeing” or that it conflicts with sincerely held “personal belief”.
Workplace Violence: HB 324 becomes effective July 1, 2023, and allows employers to obtain workplace violence protective orders against anyone who has engaged in or threatened potential workplace violence. A protective order may not always prevent workplace violence but is persuasive evidence that an employer is meeting its OSHA obligation to provide a safe workplace. Under the statute, “workplace violence” is defined as “knowingly causing or threatening to cause bodily injury to, or significant damage to the property”.
Washington:
WA Cares (Long-Term Care Act). After an 18-month delay, the WA Cares Act will take effect on July 1, 2023. All employers must deduct a mandatory, 100% employee-paid payroll assessment of 0.58% from gross wages and must submit those funds quarterly to ESD to fund a state long-term care insurance program. Employers should notify employees and develop a process to manage some very limited options to apply for an exemption if an employee lives out of state or meets certain requirements for someone only temporarily residing in Washington state. The process for submitting reports to ESD is very similar to PFML and will be part of the same system as ESD.
The City of Tukwila just added new chapter 5.63 to the city code, applicable to employers with 15+ non-exempt employees worldwide OR annual gross revenue of more than $2 million. The ordinance phases in an increase in the minimum wage based on the size of the employer and the “living wage” adopted by the City of SeaTac (adjusted annually for inflation), reiterates that tips cannot be used to meet minimum wage requirements, and requires employers to offer additional hours to qualified part-time employees before hiring new non-exempt employees/temps unless it would result in additional overtime payments.
The new minimum wage would be phased in as follows:
o Large employers (501+): effective July 1, 2023, the minimum wage will increase to $18.99, and be adjusted for inflation each January.
o Mid-Size employers (15-500): Effective July 1, 2023, the minimum wage will increase at a rate that is $2.00 less than large employers, which will be $16.99. In July 2024 it will increase to $1.00 less than large employers, and in July 2025 it will be equal to large employers.
The City recentl
y published draft rules that are subject to a comment period and will likely change before they are finalized (final rules are expected on 5/28/23). According to the current draft, headcount is based on the average number of employees during all weeks in the previous calendar year, and includes all employees (full-time, part-time, temporary, jointly employed through a temp agency, etc.), regardless of where they are located. Because it uses the “employee” definition from the minimum wage statute, headcount does not include exempt employees. In addition, the $2 million gross revenue qualification is currently based on revenue in the City of Tukwila.
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Asure Software provides this information for general information purposes only. We are not attorneys, and the information in this post should not be relied upon or regarded as legal advice. This information does not reflect all developments or laws in all jurisdictions.