FEDERAL UPDATES
Federal Contractors – Minimum Wage (eff. 1/1/25). The DOL announced that the minimum wage for federal contract workers subject to Executive Order 14026 will increase from $17.20 to $17.75 per hour starting January 1. Contracts entered into, renewed, or extended before Jan. 30, 2022, remain subject to the minimum wage rate under Executive Order 13658, increasing from $12.90 to $13.30 per hour.
Legal challenges to EO 14026 are in process, but will not likely be resolved before the new rates take effect. Currently, state governments/agencies in Louisiana, Mississippi, and Texas are exempt pending an appeal before the 5th Circuit Court of Appeals.
NLRB General Counsel Memo – “Stay or Pay” Agreements. The NLRB General Counsel has opined that the Board should interpret Stay or Pay Agreements – such as training repayment agreements, educational repayment contracts, and conditional sign-on or retention bonuses – as presumptively unlawful and operate similarly to noncompete agreements by discouraging the exercise of Section 7 rights. Employers are burdened to show that the agreement advances a “legitimate business interest” and is “narrowly tailored to minimize infringement on Section 7 rights”. In addition, they must show that the agreement was entered into voluntarily, includes a specific repayment amount, covers a reasonable stay period, and is not enforceable if termination is without cause. She warned that employers have a 60-day window to amend or eliminate such agreements to avoid potential penalties, back pay, damages, and reimbursement of employee legal fees.
E-Verify Records Disposal (before 12/15/2014). USCIS announced that employers using E-Verify have until January 5, 2025, to download and retain records for cases last updated on or before December 31, 2014. After this date, USCIS will permanently dispose of these records. Employers with a need to retain older E-Verify records may want to download and save their Historic Records report as backup in the event of an audit. Employers are required to either record the E-Verify case verification number on each I-9 form or attach a copy of the E-Verify case details page to the I-9, so now is a good time to audit records to ensure compliance before records are destroyed. USCIS is legally required to follow a records retention and disposal schedule, which says it must dispose of E-Verify records 10 years old or older to “reduce security and privacy risks associated with U.S. government retaining personally identifiable information.”
STATE/LOCAL UPDATES
Ballot Measures to Watch. Some states are increasingly allowing voters to decide employment laws through ballot measures. This year, minimum wage increases are on the ballot in Alaska, Arizona (tip credits), California, Massachusetts (tip credits), Missouri, and Everett WA. Paid Sick Leave mandates are on the ballot in Alaska, Missouri, and Nebraska.
California:
AB 1976 – Opioid Overdose Prevention. The legislature directed Cal/OSHA to develop regulations that would require first aid kits in all workplaces to contain naloxone hydrochloride (or other approved opioid antagonist), together with instructions for use. Draft rules are due by 12/1/27, with standards to be adopted by 12/1/28. The bill also requires Cal/OSHA to consider and provide guidance to employers on, the proper storage of the opioid antagonist per the manufacturer’s instructions.
Unincorporated San Diego County – Fair Chance Ordinance (eff 10/10/24; 5+). Like many other areas in California, Unincorporated San Diego County now imposes greater restrictions on background checks than those already in place under state law. Employers in this area (or others who are hiring employees who will average two or more hours per week in the unincorporated area) are prohibited from including a statement in a job posting that lists any limitation due to a conviction or arrest unless required by law, cannot ask about criminal history until after a conditional job offer, and cannot consider certain items such as sealed or expunged convictions, diversion programs, pardoned offenses, or arrests not followed by a conviction.
In addition, employers must complete individualized assessments in writing to determine whether the criminal history has a direct and adverse relationship to the specific job duties and are prohibited from filling an open position during the five business day response period after revoking a job offer due to a criminal background check. There is no exception for employers required by state or federal law to conduct background checks. The penalties are significant – as much as $20,000 per violation for repeat violations, and records must be retained for at least one year.
Maryland: Indoor/Outdoor Heat Standard (eff 9/30/24). Maryland Occupational Safety and Health (MOSH) finalized its Heat Stress Illness Prevention standard, together with detailed information and guidance. The standard applies to all employers with employees whose work activities (whether indoor or outdoor) expose them to a heat index of at least 80 degrees for more than 15 minutes per hour and requires employers to monitor the heat index wherever employees perform work. If the heat index reaches 80 degrees or more, the employer must develop, implement, and maintain an effective written heat-related illness prevention and management plan. The written plan must be made available and accessible to employees and to MOSH upon request.
The plan requirements are extensive and detailed and must include specific provisions such as:
- Acclimatization. Employers must provide for acclimatization for up to 14 days “[w]hen an employee is newly exposed to heat in the workplace” and “[w]hen an employee returns to work after 7 or more consecutive days of absence from the workplace.” This requirement includes developing and implementing a written acclimatization schedule, which must comply with one of three permissible methods. Employers must also monitor employees during the acclimatization period for signs of heat illness.
- Access to Shade. Employers must provide shaded areas to exposed employees as close to their work area as practicable. Shaded areas must be outside, open on three sides, exposed to air, and large enough for the number of affected employees. If creating outdoor shade is not feasible, employers must implement alternative cooling and control measures that provide equivalent protection to shade.
- Drinking Water. Employers must provide 32 oz. of drinking water per hour to each exposed employee as close to their work area as practicable.
- Cool Down Breaks. If the heat index reaches 90 degrees employers must monitor employees for signs of heat illness and provide a 10-minute shaded rest period for every two hours worked. If the heat index reaches 100 degrees the rest period is 15-minutes per hour worked. Rest periods can coincide with scheduled meals and rest breaks.
- Emergency Response. Employers must implement an emergency response plan, including procedures to ensure effective and accessible communication protocols, respond to signs of heat illness, monitor and care for employees with heat illness, and contact emergency medical services if necessary.
- Training. Employers must provide training to employees and supervisors at hire and annually thereafter, as well as immediately following any heat illness incident. Training must cover the specific workplace, how to recognize and respond to the symptoms of heat-related illnesses, personal risk factors, and the importance of hydration and breaks, among other topics. Records of training must be maintained for one year and made available to MOSH upon request.
Maryland employers should review the new requirements before seasonal heat is expected, evaluate methods for monitoring indoor/outdoor heat, develop a heat illness prevention plan, and develop training and emergency procedures for employees and managers.
New York: Paid Prenatal Leave (eff 1/1/25). A reminder that this law goes into effect January 1 and applies to all employers. It requires an additional 20 hours of paid leave per year for “health care services received by an employee during their pregnancy or related to such pregnancy, including physical examinations, medical procedures, monitoring and testing, and discussions with a health care provider related to the pregnancy”.
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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.