FEDERAL UPDATES

Form I-9:  All employers must now be using the new Form I-9 available on the USCIS website (Edition 08/01/23/Expires 7/31/2026), required as of November 1.

EEO-1:  The data collection portal for 2022 data is officially open, and will remain open until December 5.  Employers required to report should be collecting their data and consulting the new Instruction Booklet and updated FAQs to ensure that they meet the deadline.

Retirement Plans – IRS Cost of Living Adjustments:  The IRS announced increases for 2024 in Notice 2023-75.  Most notably, the limitation on annual salary deferrals into a 401(k) or 403(b) plan will increase to $23,000, and the dollar threshold for highly compensated employees will increase to $155,000.

NLRB Joint Employer Rule:  The NLRB just issued a final rule setting a new and much broader standard for imposing joint-employer status under the National Labor Relations Act.  According to an NLRB press release, as of 12/26/23 separate entities may be considered joint employers if they “share or codetermine one or more of the employee’s essential terms and conditions of employment”, which are defined as:

1. wages, benefits, and other compensation;
2. hours of work and scheduling;
3. the assignment of duties to be performed;
4. the supervision of the performance of duties;
5. work rules and directions governing the manner means, and methods of the performance of duties and the grounds for discipline;
6. the tenure of employment, including hiring and discharge; and
7. working conditions related to the safety and health of employees.

The release further states that under this new standard, it will be much easier for the NLRB to combine entities by allowing it to consider these factors “whether or not such control is exercised, and without regard to whether any such exercise of control is direct or indirect.” Previously, the standard required direct and immediate control.  The new standard only requires potential control.

If deemed a joint employer, both entities share responsibility for complying with the NLRA and engaging in collective bargaining and share the risk of liability for unfair labor practices. Franchisors, and employers that use staffing agencies should be especially cautious about NLRA compliance under this new standard, regardless of whether they are unionized, and may want to revisit their franchise/staffing agreements to ensure that they cannot exercise control over those workers.  Legal challenges to the new rule are expected.

Israel-Hamas Conflict:  This can be a delicate and divisive topic at work, and employers should keep in mind that harassment and discrimination laws are applicable – employers are required to be vigilant and proactive in preventing harassment and discrimination targeting Jewish employees, Muslim employees, and employees of Israeli or Palestinian origin or ancestry.  In addition, although federal law doesn’t address discrimination based on political beliefs, some states do include it as a protected category for all employees regardless of their background.  This is an excellent time to remind employees about company policies against discrimination and harassment, which they also apply to electronic messaging and virtual meetings, and how to raise a concern.  Managers should also know how to address any comments or conflicts in the moment, and how to escalate concerns to HR.  This can be a tricky area, especially when dealing with off-duty, personal social media activity due to laws protecting political speech in some states (such as California and New York), laws protecting off-duty conduct, and privacy rights.  Employers should be cautious when imposing consequences, and all concerns should be fully investigated, documented, and impartially resolved as soon as possible.

STATE/LOCAL UPDATES

Illinois:  The Paid Leave for All Workers Act (aka paid time off for any reason) goes into effect January 1, 2024.  It requires IL employers to provide at least 40 hours of paid leave each year that can be used for any reason.  Accruals should start January 1, but leave can be used beginning March 31, 2024 (or 90 days after commencement of employment for new hires).  IDOL is in the process of finalizing proposed rules, FAQs, and required notices.  Based on the current FAQs, it appears that employers who already have an existing PTO or vacation policy that meets all the requirements do not have to provide additional PLAWA leave.  However, employers should be aware that while PTO/vacation must be paid out at termination PLAWA currently does not, so it may be advisable to keep them separate in some cases.

Massachusetts:  Following several other states, the Massachusetts legislature easily passed a new pay transparency law that is expected to be signed by the Governor shortly.  It would be effective one year after signature and would require employers with 25+ employees to disclose the salary range in job postings to employees offered a promotion or transfer, and to current employees upon request.   It does not require disclosure of benefits or bonuses, or that employers notify current employees of “promotional opportunities”.  In addition, employers with 100+ employees would be required to add their EEO-1 data as a supplement to their corporate filings each year.  There is currently no private right of action, so enforcement will be limited to injunctive relief and fines.  First violations draw a warning, second violations result in a fine of up to $500, and additional violations will result in increasingly substantial fines.

Minnesota:  Minnesota’s new Earned Sick and Safe Leave law goes into effect on January 1, 2024.  It covers all employers regardless of size, and all employees who work at least 80 hours in a year.  Accruals are one hour per 30 hours worked, up to 48 hours per year.  Carryover can be capped at 80 hours.  In addition to the usual sick and safe leave provisions, the new law covers certain business and school closures for weather or public emergencies, and certain health concerns related to potential transmission of communicable illnesses in a public emergency.  The definition of a family member is very broad, including both the “family equivalent” and “designated person” categories.  The state law does not preempt local laws, so must be coordinated with sick and safe ordinances in Minneapolis, St. Paul, Duluth, and Bloomington.  Notices must be included on paystubs, in a separate notice in each employee’s primary language, on a required poster, and in employee handbooks.  The Department of Labor is preparing a notice and poster that employers can use and will make it available in the five most common languages spoken in Minnesota.

New York:  The NYSDOL is reminding employers that state law grants certain employees paid time off to vote if they do not have four consecutive hours off either between the opening of the polls and the beginning of their working shift, or between the end of their working shift and the closing of the polls.  Employees must notify their employer at least two working days (but not more than 10 working days) before they intend to take paid time off to vote.  At least 10 working days before every election day, all businesses must post the requirements for compliance with New York’s voting leave law.

Oregon:  The Oregon Employment Department continues to be active with rulemaking for Paid Leave in Oregon.  It recently proposed some new rules that clarify the act and that are now entering the public comment period.  Some of the proposed rules include:

Adding potential factors for determining whether an individual qualifies as a “Family Member” due to “affinity”, which is a relationship where a close association with the employee is “the equivalent of a family relationship”. Proposed factors include:

• Shared personal financial responsibility, including shared leases, common ownership of real or personal property, joint liability for bills, or beneficiary designations;
• Emergency contact designation of the claimant by the other individual in the relationship, or vice versa;
• The expectation to provide care because of the relationship or the prior provision of care;
• Cohabitation and its duration and purpose;
• Geographical proximity; and
• Other factors that demonstrate the existence of a family-like relationship.

Based on a new Oregon law passed this year (HB 3443), victims of “bias” or hate crimes are eligible for PLO to deal with physical or psychological distress or relocation, and the rules are being amended to reflect this. Bias crimes are defined in ORS 147.380, and refer to crimes that are based on a person’s race, color, religion, gender identity, sexual orientation, disability, or national origin.

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.