FEDERAL UPDATES

Federal Contractors.  The minimum wage for certain federal contractors with contracts entered into, renewed or extended on or after 1/30/22 will increase to $17.20 effective January 1, 2024.  Affected contractors include those with:

•  Procurement contracts for construction are covered by the Davis-Bacon Act.
• Service contracts are covered by the Service Contract Act.
• Concessions contracts, including any concessions contracts excluded from the Service Contract Act by regulations at 29 CFR 4.133(b).
• Contracts in connection with federal property or lands and related to offering services for federal employees, their dependents, or the general public.

The permissible lower wage for tipped workers is also expiring, so tipped employees will now be entitled to the new minimum wage.

American Rescue Plan Child Care Subsidies Expiring.  On September 30, $24 billion in pandemic-related childcare subsidies expired, which is expected to cause up to 70,000 childcare providers who benefited from the subsidy to raise their prices or close over the next few months.  This means that employers may be faced with some hurdles related to employees with young children who may soon be facing more costs or the loss of their child care, and who may have to cobble together a less reliable arrangement.  Some potential consequences include employees requesting raises to pay for additional child care costs, looking for other jobs with better family benefits, quitting or asking to reduce their hours to care for their children, increased absenteeism and last-minute callouts due to unstable childcare, and a loss of productivity and burnout resulting from an increased difficulty trying to juggle work and home.  Employers may want to consider reviewing their benefit options (especially offering tax-advantaged dependent care FSA accounts), parental leave policies, remote/flexible work policies, and attendance policies to retain these employees and ensure that they are able to focus on their work effectively, as well as to attract applicants with the same issues.

EEOC priorities for 2024:  The EEOC just released its Strategic Enforcement Plan for 2024- 28.  These plans provide a preview of the issues most likely to garner the EEOC’s attention and create serious liability and litigation for employers.  The most prevalent priorities will be:

• Eliminating Barriers in Recruitment and Hiring, especially in relation to the “continued underrepresentation of women and workers of color in certain industries and sectors”. AI and machine learning systems will be under special scrutiny to determine whether are illegally screening out certain applicants or groups, target a certain demographic, or are inaccessible to individuals with disabilities.
• Protecting “vulnerable” and “underserved” workers. This includes several categories of workers such as “people with intellectual and developmental disabilities; workers facing mental health-related disabilities; individuals with arrest or conviction records; LGBTQI+ individuals; pregnant workers, temporary workers; older workers; individuals employed in low-wage jobs, minors; and persons with limited literacy or English proficiency.”
• Addressing Emerging and Developing Issues. This includes a focus on ADA discrimination, pregnancy/pregnancy-related discrimination (including the Pregnant Workers Fairness Act), discrimination based on a backlash in response to “local, national or global events”, and discrimination related to Covid-19 (harassment against people of Asian descent, unlawful denials of accommodations for “long Covid”, unlawful medical inquiries).
• Continued Protections for Workers’ Access to the Legal System by addressing overly broad waivers, releases, nondisclosure agreements, and nondisparagement agreements; improper mandatory arbitration provisions; failure to keep records; and retaliation.

New EEOC Harassment Guidance.  This week the EEOC released a 144-page draft of enforcement guidance that (once finalized) would be the first update to its approach to workplace harassment in nearly 25 years.  It is expected to be open for public comment until November 1, 2023.  The new guidance includes updates prompted by the #MeToo movement, the pandemic, the increase in remote work, and recent case law.  It is technically not legally binding but lays out the analysis the EEOC will follow when investigating a harassment claim and will most likely be followed by courts. As always, states may have a different approach.  Highlights include:

• Confirmation that harassment can take place through email, instant messaging, virtual meetings, and social media as well as at an actual in-person worksite. Even personal communications outside of work can still be workplace harassment – the example EEOC provided is if an employee posts race-based insults and epithets about a coworker on a personal social media account, and the coworker sees or learns about the post or it becomes part of a workplace discussion, it may be considered as contributing to a hostile work environment.
• Based on a recent Supreme Court decision, the EEOC officially extended “sex-based” discrimination to sexual orientation and gender identity. Specific examples include:
• Epithets regarding sexual orientation or gender identity;

• • Physical assault;
  • Harassment because a person does not present in a manner stereotypically associated with their gender;
  • Harassment based on a perception that an individual is a member of a protected class, even if the perception is incorrect or the alleged harassment is a member of the same protected class;
  • Intentional and repeated use of a name or pronoun inconsistent with the person’s gender identity; and
  • Denial of access to a bathroom or other sex-segregated facility consistent with the person’s gender identity.

• Clarification that sex-based harassment includes harassment based on decisions related to contraception, lactation, abortion, and other reproductive decisions;
• Proof of causation may include facially discriminatory conduct as well as stereotyping, factors such as “context, inflection, tone of voice, local custom, and historical usage”, timing, and comparative evidence of conduct.
• Virtual harassment may occur through comments, imagery visible in the employee’s workspace, or sexual “jokes” (such as a comment about a bed being nearby in an online meeting).

Employers must exercise “reasonable care” to prevent and promptly correct harassment.  This begins with a strong, widely disseminated policy against discrimination and harassment that includes multiple avenues for reporting, a clear complaint process, and anti-retaliation and confidentiality protections.  Regular training, immediate and well-documented investigations, complete and accurate recordkeeping, and continuous monitoring are also required and will go a long way toward defending a discrimination or harassment claim.

STATE/LOCAL UPDATES

Colorado:  The CDLE just issued new proposed pay transparency rules related to the Ensure Equal Pay for Equal Work Act effective 1/1/24.  Highlights include:

• Posting requirements do not apply to “career developments” (a change in their compensation, benefits, full-time or part-time status, duties, or access to further advancement) that merely update an employee’s job title or compensation to reflect work performed or contributions already made by the employee. The existing work or contributions must be part of the employee’s existing job and are not within a position with a current or anticipated vacancy (i.e., not a promotion).
• Posting requirements do not include “career progressions” (automatic movement after a certain time or other objective metrics, such as Accountant I to Accountant II). However, employers still must disclose the requirements for a career progression, along with each position’s terms of compensation, benefits, full-time or part-time status, duties, and access to further advancement to employees it applies to.
• Job postings must include the date the application is expected to close. For ongoing openings, the posting should state that in lieu of a closing date.  The deadline can be extended as long as the original date was included in good faith and the posting is promptly updated.
• No immediate posting is required to fill a position on an acting, interim, or temporary basis for up to nine months as long as the need to hire is immediate, the position is not expected to be permanent, and the position was not held any time in the preceding 12 months by another acting/interim/temporary hire for which there was no job opportunity posting. If the position may become permanent an “opportunity” posting must be made in time for employees to apply for the permanent position.
• Currently, after a candidate is selected employers are required to distribute a post-selection notice to “employees with whom the employer intends the selected candidate to regularly work.” This created some confusion, and the proposed rules clarify that “work with regularly” means those employees who collaborate or communicate with the person in that position about their work at least monthly, or who have a reporting relationship (i.e., supervisor or supervisee).
• Employers can comply with the rules by providing combined notices for all selection notices as long as it is within 30 days after each selection.

Massachusetts:  Paid Family and Medical Leave Benefit and Contribution Rates:  On October 1 each year, the MA Department of Family and Medical Leave updates employer contribution rates and benefit amounts based on average weekly wages in the state and solvency calculations.  Beginning January 1, 2024, the total contribution rate will increase from 0.63% of eligible wages to 0.88%.  All employers can withhold 0.18% of eligible wages for family leave and 0.28% for medical leave contributions, and if they have 25+ eligible employees must pay 0.42% of eligible wages directly.  Employers with fewer than 25 employees are exempted from the employer portion of the contribution.

The maximum weekly benefit amount will be increased from $1,129.82 per week to $1,144.90.

New York:

Ban on Requiring Disclosure of Personal Social Media Login Credentials –  The Governor signed A836 (eff March 12, 2024) prohibiting employers from requesting or requiring employees or job applicants to disclose the login credentials for their personal social media accounts, or from retaliating against employees’ or job applicants who refuse to do so.  Specifically, it is unlawful for an employer to request, require, or coerce any employee or job applicant to (1) disclose any username and password, password alone, or other authentication information for accessing a personal account through an electronic communication device; (2) access the employee or applicant’s personal account in the presence of the employer; and/or (3) reproduce in any manner photographs, videos, or other information contained within a personal account obtained by prohibited means.

2024 Paid Family Leave Benefit and Contribution Rates:  NYS just issued updates announcing an increase in the maximum weekly benefit and a reduction in contribution rates.  Employees taking leave under the NYPFL receive 67% of their average weekly wage, up to a cap of 67% of the current New York State Average Weekly Wage.  Due to an increase in the average weekly wage, in 2024 employees will be entitled to a maximum weekly benefit of $1,151.16, which is $20.08 more than the maximum weekly benefit for 2023 (For leaves that straddle 2023 and 2024, the 2023 rate will still apply.)  Although the average weekly benefit is increasing, the contribution rate is actually decreasing.  In 2024, the maximum annual contribution will be $333.25, which is $66.18 less than in 2023.

New York City:  Earned Sick and Safe Time Act (ESSTA).  The Department of Consumer and Worker Protection just published a new set of final rules related to sick and safe time for New York City employees.  Employers have until October 15 to comply with the rules and update their policies.  Some of the major changes/clarifications include:

• Employer size is based on a nationwide headcount, including any employees who are jointly employed. Employees on paid and unpaid leaves of absence are counted if there is a “reasonable expectation” that they will return to active status.
• When the number of employees increases to a new threshold level, any change in required hours is prospective from the date the new threshold is reached. When the number of employees decreases and therefore the required time off hours decreases, the change is not effective until the following calendar year.
• An employee who only performs work while physically outside of New York City is not entitled to ESSTA leave.  Similarly, an employee who regularly performs work performs work in New York City is entitled to ESSTA leave even if the employer is located outside New York City.
• Certifications from licensed clinical social workers, licensed mental health counselors, or other types of licensed health care providers satisfy certification requirements.
• Employers cannot require disclosure of details regarding domestic or other violence in connection with an employee’s use of safe time (other than the dates of leave needed)
• Employers must allow at least seven days to submit documents and must reimburse the employee for any reasonable expenses incurred to obtain the requested documentation.  If an employee is unable to obtain required documentation due to associated costs, the employer may not withhold payment of that employee’s safe and sick time in response.  In addition, the employer cannot require such documentation be provided prior to the employee’s return to work, nor where the use of safe and sick time lasts three or fewer consecutive work days.
• Employers must have a written policy that includes, among other things, the types of reasonable written documentation the employer will accept and instructions on how employees can submit their documentation.
• The written policy must include a specific statement that the employer will not “ask the employee to provide details about the medical condition that led the employee to use sick time or the personal situation that led the employee to use safe time” and that any information the employer receives about the employee’s use of safe or sick time will be kept strictly confidential absent the employee’s permission or in accordance with applicable law.
• The state will infer that an employer violates ESSTA if it fails to distribute a compliant policy or fails to maintain adequate records.

Rhode Island:  Rhode Island passed a “Wage Theft” amendment (eff. 1/1/24) to its Payment of Wages Act, allowing the state to criminally charge employers who “knowingly and willfully” fail to pay wages of more than $1,500 on a regular pay date, at termination, or if the employee dies.  Penalties for a guilty plea or conviction can be as high as 3 years in prison and/or fines of up to $5,000.  In addition, the law imposes the same penalties for employers who “knowingly and willfully” misclassify construction workers as independent contractors under the FLSA.

Washington:  Minimum Wage – By September 30 each year, L&I is required to adjust the minimum wage (and therefore the exempt salary threshold) annually based on the CPI-W.  It just announced that the minimum wage in WA will increase to $16.28/hour on January 1, 2024.  That is the highest state minimum wage in the nation, although several cities are even higher.

The exempt salary threshold in Washington is 2x the state minimum wage for all employers this year, so will increase to $1,302.40 per week or $67,724.80 annually on January 1 (except that for Computer Professionals it will be $56.98/hour).  Next year (2025), the increase will be even steeper for large employers (51+ employees) when the multiplier moves to 2.25x the state minimum wage and is estimated to be about $78,250.

SeaTac announced an increase to $19.71 per hour for hospitality and transportation workers.  Seattle and Tacoma have not yet announced hourly rates for 2024.

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.