FEDERAL UPDATES

Federal Contractors:   The Office of Federal Contract Compliance Programs (OFCCP) announced on April 25 that the Voluntary Self-Identification of Disability Form has been revised. Federal contractors must comply by using the revised form no later than July 25, 2023.  The new form includes significant revisions, including some updates to the categories of disabilities and simplifying the response section.  The changes generally broaden the definition of disability, which may make it easier for federal contractors to meet their current 7% disability goal.

Form I-9:  We are still waiting for the updated I-9 form and the possibility of new rules allowing remote I-9 verification.  We don’t have any further information about when those might be available, but DHS/ICE has confirmed that the physical inspection “flexibilities” related to Covid-19 will not be extended again and will expire on July 31 as scheduled.  At that point, employers will have 30 days (until August 30) to complete in-person inspections of any documents that were virtually verified under the Covid-19 policies implemented in March 2020.  Employers who took advantage of this flexibility should begin preparing to either have those employees present themselves in person to verify their documents or start putting together a plan to arrange for authorized representatives to update the forms for each employee not yet verified in person.  

NLRB:  The National Labor Relations Board overturned several prior cases and provided employees with much more leeway to misbehave when their behavior is tied to Section 7-protected concerted activity.  In Lion Elastomers and United Steelworkers, the Board found that employees have an extra layer of protection when engaging in this type of activity, even when it comes to offensive language (including racist or profane comments or outbursts), misconduct, or inappropriate social media posts.

 

STATE/LOCAL UPDATES

Arkansas:  Effective July 6, 2023, Arkansas amended its Civil Rights Act to specify that natural, protective, or cultural hairstyles are included as part of discrimination based on race, national origin or ethnicity.  Examples include afros, dreadlocks, twists, locs, braids, cornrow braids, bantu knots, curls, and hair styled to protect hair texture or for cultural significance.  Employers should update their EEO handbook statements, and be aware of any indications that they are discriminating based on certain hairstyles.

California:  A pending bill in the Senate would increase the number of mandatory sick leave days for California employees from 3 days to 7 days.  The bill would also increase the cap on accruals from 6 days to 14 days.  If passed, it would not be effective until January 1, 2024, but employers may want to take it into consideration when setting sick leave, vacation, or PTO policies for 2024.

Illinois: 

Pay Transparency.  Illinois is on the verge of being the next state to require pay transparency in job postings.  If HB 3129 passes, it would require employers with 15+ employees to include a pay scale and a general description of benefits and other compensation in job postings and would also require employers to notify existing employees of job openings on the same day the job is posted.  In a departure from many other states with pay transparency requirements, the bill as currently drafted would also make employers liable for a third party’s failure to include the required information in a job posting.  Employers may want to begin reviewing their compensation structure and strategies to prepare.

Employee Expenses.  The Illinois Department of Labor just published new regulations that it hoped would clarify existing state law requiring employers to reimburse employees for all “necessary” expenses directly related to their job.  They list five factors the state will consider when determining whether the expense primarily benefits the employer and therefore must be reimbursed:

1.   Whether the employee has an expectation of reimbursement.

2.   Whether the expense is required or necessary to perform the employee’s job duties.

3.   Whether the employer is receiving a value that it would otherwise need to pay for.

4.   How long the employer has been receiving the benefit.

5.   Whether the expense is required for the job.

The response to the new regulations has generally been that they create more questions than they answer.  For example, they do not address how to determine whether an expense is “required” or “necessary”, or what amounts might be reasonable. They also state that a lack of response is considered denial of the request, but don’t define a time period for a response, and don’t address whether and how much employers are required to reimburse for common expenses such as phone service, data usage, or internet access.

The guidelines do impose clear recordkeeping requirements, such as mandatory retention of company policies, requests for reimbursement, approvals/denials, and reimbursement amounts for at least three years.  The statute of limitations is 10 years, so employers may want to extend their retention schedules to preserve documentation in the event of litigation.

Maryland:  The Maryland General Assembly recently finished this year’s legislative session, and passed several significant employment-related laws that the Governor is expected to sign shortly, including:

• SB 555 (the Fair Wage Act of 2023) would expedite scheduled minimum wage increases, raising wages to $15.00 per hour for all employers on January 1, 2024, instead of waiting until 2025.  (Montgomery County has its own separate minimum wage requirements).

• SB 828 amends the pending state-paid family and medical leave program to (i) delay it for a year such that contributions will begin October 1, 2024, and benefits will begin January 1, 2026; (ii) require that contributions be shared equally between employees and employers rather than fluctuating, and (iii) cap employer contributions at 1.2% of employee wages.

• SB 591 raises the minimum earnings for enforceable noncompete agreements to 150% of the state minimum wage rate.

New York:  The Governor and the state legislature just adopted the FY2024 budget, which includes an increase in the state minimum wage for the next three years and indexes it to inflation thereafter.  Beginning January 1, 2024, rates for Upstate NY would increase to $15.00, and Downstate NY would increase to $16.00, and then increase by each year through January 1, 2026.  After that, the minimum wage will increase based on the Consumer Price Index (CPI-W) for the Northeast Region.  The budget agreement does not address an increase in the salary threshold for exempt employees, and unlike other states, it is not tied to the minimum wage rate, so those numbers will remain the same (for now).

There are some exceptions that would pause increases due to worsening economic conditions in the future, such as rising unemployment.  And although the minimum wage has been tied to employer size in the past, that distinction has been removed.  The NY Department of Labor will post updated minimum wage rates each year no later than October 1.  Keep in mind that local jurisdictions may set higher rates.

Oregon: 

Paid Leave Oregon:  Employer quarterly tax reports were due May 1.  Family and medical leave (Paid Leave Oregon) contributions should be submitted as part of quarterly payroll reports due to the Oregon Department of Revenue.

Covid:  Effective April 3, Oregon OSHA suspended all Covid-19 related rules and expects to fully repeal them shortly.  This means that employers are no longer responsible for providing face coverings for their employees unless they require that employees use them.  Employees are still permitted to use face coverings if they choose to do so.

Virginia:  Effective July 1, 2023, Virginia employers with 50+ employees will join nearly 20 other states mandating that employers provide organ and bone marrow donation leave.  The leave will be unpaid and will be available under the same conditions and requirements as FMLA leave (such as eligibility, benefits continuation, job protection, and anti-retaliation), but does not run concurrently with or affect FMLA rights.  Covered employers must offer 30 days in any 12-month period for bone marrow donors, and 60 days in any 12-month period for organ donors. 

Washington:  The legislature has adjourned but will be returning on May 16 for a special session focusing on drug possession laws.  Employment-related bills that are on the Governor’s desk for signature (among hundreds passed by the legislature) include a ban on pre-employment cannabis screening, authorization for L&I to regulate ergonomic risks in the workplace, a prohibition on unjustified employers’ searches of employee personal vehicles, authorization for ESD to release certain additional information to employers regarding PFML claims, and a change in the calculations for PFML contributions.

If you’d like to speak to an 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.