FEDERAL UPDATES

Federal Contractors: Disclosure of 2021 Data. OFCCP published a notice in the Federal Register notifying federal contractors of two new Freedom of Information Act (FOIA) requests to disclose contractors’ EEO-1 Type 2 Reports for 2021. The requests also ask for the 2022 Reports, but OFCCP currently only has access to the 2021 reports. Contractors subject to the FOIA requests are posted on the OFCCP website, with access to a portal to object to the release of the requested data. Objections are due by December 10.

EEOC Litigation: The EEOC released its report on litigation in the 2024 fiscal year. Of 110 lawsuits filed by EEOC, 48 were related to the ADA. Many of these were based on “qualification standards or other inflexible policies”, such as failing to consider reasonable accommodations or penalizing employees for absences related to a known disability. Another 40 lawsuits were related to retaliation under various statutes. Five cases were filed based on violations of the Pregnant Worker Fairness Act, and the EEOC specifically identified these types of cases as an “emerging issue” that would garner additional scrutiny in 2025. Finally, 18 lawsuits were filed for failing to comply with EEO-1 reporting requirements.

Retirement Plans: The IRS announced the new cost-of-living adjustments for contributions to retirement plans. All updates are posted in IRS Notice 2024-80. In general, deferrals for 401(k) and 403(b) plans will increase from $23,000 to $23,500. Catch-up contributions for employees aged 50+ will remain at $7,500, and a new regulation will increase the catch-up contribution for those aged 60-63 to $11,250 (the 50+ $7,500 plus an additional $3,750).

STATE/LOCAL UPDATES

Illinois: E-Verify. Due to possible conflicts in a new state E-Verify law, Illinois employers were unsure whether the use of E-Verify was prohibited in Illinois unless required by federal law. IDOL just released guidance confirming that the statute does not prohibit it, but does require employers to follow certain additional steps if there is a discrepancy in the employee’s employment verification information.

Massachusetts: Sick Leave/Reproductive Loss. Effective November 21, Massachusetts employees will be permitted to use their sick time to address their own or their spouse’s physical and mental health needs as needed in the event of a “pregnancy loss or a failed assisted reproduction, adoption or surrogacy.”

New York:

NYC Pet Care Leave (proposed): The NYC city council is considering an unprecedented ordinance that would allow employees to use existing sick leave for pet care, such as caring for a sick pet, grieving a deceased animal, vet visits, or participating in pet adoption. The ordinance is being promoted as a way to “enhance the mental health” of New Yorkers by encouraging pet ownership and supporting employees who have pets to enhance their health and happiness.

NYS “Extreme Weather” Protection. Following on the heels of guidelines to protect workers from extreme heat, the NYDOL also announced the release of new guidance to help employers better protect outdoor workers during heavy precipitation events (such as hurricanes) and wildfire smoke.

During heavy precipitation, the guidance advises employers to:

• Monitor weather alerts from the National Weather Service.
• Provide waterproof PPE and adjust work schedules as needed.
• Ensure rest breaks in warm, dry areas and maintain safety during and after precipitation events.

During periods of high wildfire smoke hazards, the guidance advises employers to:

• Monitor the Air Quality Index (AQI) and take action when levels exceed safe thresholds.
• Provide respirators and adjust work plans based on air quality.
• Train workers on recognizing smoke-related health risks and proper safety protocols.

The guidelines emphasize the importance of training and emergency planning to ensure that employers and workers are prepared to respond quickly to changing weather conditions.

Washington:

PFML Premiums: ESD announced that PFML premiums will increase from 0.74% to 0.92% in 2025. The allocation will be similar to 2024, with employers paying 28.48% of the total premium, and employees paying 71.52%. ESD attributes the increase to higher program usage in 2023 and 2024 due to “organic growth”, sunsetting the collective bargaining agreement provision, and more employees becoming eligible due to rising post-pandemic employment.

Meal Break Violations: A Washington State Court of Appeals recently held that merely paying non-exempt employees for time worked during a missed or interrupted meal break is not sufficient. Instead, meal break violations may require payment for time worked during the meal period plus 30 minutes of additional pay as a penalty. Otherwise, in the court’s opinion, the meal break law would be meaningless. L&I agreed with this interpretation in its brief to the court, stating that “L&I’s longstanding position is that workers must receive payment for the time that they spent working and receive the lunch break…If the break is not provided then an employer must provide additional compensation.”

The decision may still be appealed to the Washington Supreme Court, but in the meantime, Washington employers should strongly consider adding 30 minutes of pay for missed meal breaks, or meal breaks that are interrupted and not completed within the 5 hours. Because rest breaks are already paid, a missed rest break should always be compensated with an additional 10 minutes of pay. It is also advisable to have employees acknowledge that they were provided with their meal and rest breaks on a daily or weekly basis to avoid later claims covering an extended period.

As a reminder, Washington meal period requirements apply to non-exempt employees and are triggered by five consecutive hours of work. The first meal period must be taken between the second and fifth hour of work. Subsequent meal periods must be taken within five hours of the first meal period. Meal periods may be unpaid as long as the employee has an uninterrupted 30 minutes to eat a meal, and is free to leave the premises or otherwise do as they please. If the meal period is interrupted the entire meal period must be paid, and if they are not permitted to finish the entire meal period within the 5-hour time limit a penalty is due.

Employees can voluntarily waive their meal period, but L&I strongly suggests that it must be at the request of the employee, ideally should be in writing, and must be revocable at any time. Waivers signed after a missed meal period, or that are signed under pressure from the employer are unlikely to be considered “voluntary”.

The case is seen as a warning that employer obligations to provide breaks from work for meal and rest periods are serious, and not just technical requirements. Courts can and will enforce additional penalties for each missed meal period, with interest and double damages for violations unless the error is genuinely isolated or inadvertent.

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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.