FEDERAL UPDATES

EEO-1 Reporting. After delaying it twice earlier this year, the EEOC announced that the EEO-1 data collection portal will open October 31, with a final deadline for reporting set for December 5.  All private employers with at least 100 employees during a “snapshot period” in Q4, and all federal contractors and first tier subcontractors with at least 50 employees that meet certain financial criteria, are required to submit annual EEO-1 reports.  The EEOC just released an updated instruction booklet and announced that it anticipates releasing updated data file specifications by September 13.  Both can be found on the EEOC website.

2024 ACA Affordability Standard for ALEs. Under the Affordable Care Act, ALE’s (50+ FTE) are required to offer “affordable” health care options or pay ACA penalties.  Affordability is based on a percentage of household income, but because that is difficult to determine for each employee there are “safe harbors” that employers can use.  The IRS just announced that the rate for the safe harbor based on the federal poverty rate will be 8.39% (a significant reduction from the current 9.12%).  As a result, ALEs may need to lower employee contributions towards medical care to meet the affordability requirement and avoid ACA shared responsibility penalties for their 2024 plan year.

FMLA Retaliation. A recent CA case is a great example of the importance of documenting and communicating performance issues in real time, refraining from disparaging employees who take family/medical leave, and being cautious about termination soon after an employee returns from leave. In this case, a City of Los Angeles agency paid out $230,000 in damages for retaliation when it terminated an arguably terrible employee 9 days after she returned from FMLA leave.  The employee worked for the agency as a project coordinator for about a year, and during the last 12 weeks took FMLA/CFRA due to ongoing “stress” (and coincidentally, studied for and took the bar exam while out on leave).  During her short tenure, she repeatedly violated policies by ignoring parking requirements, incorrectly and publicly referring to herself as the “executive director”, improperly entering her hours into the timekeeping system, failing to seek advance approval for overtime, and generally having a “snotty, saccharin attitude”.  Management discussed termination 15-20 times during the year but never documented the discussions and did not issue any written warnings; the only written documentation was an “outstanding” rating from her immediate supervisor (who was also later terminated) on an unapproved and unreviewed performance evaluation.  The trial court found in the employee’s favor on the retaliation claim, based on the fact that there was either conflicting or no documentation of policy violations, there were no written warnings issued, one of people who recommended termination reportedly commented “Well, she’ll file for FMLA now”, and the presumption that it was retaliatory because she was terminated almost immediately after returning from leave.  In addition to FMLA retaliation, the employee filed seven other related claims, and prevailed on four of them, increasing her award/attorney’s fees to nearly $900,000.

STATE/LOCAL UPDATES

California: California is in the final stretch of its legislative session, with a deadline of September 14 to finalize potential new laws and send them to the Governor for final action by October 14.  We expect to see several new employment laws that would take effect at the beginning of 2024, including additional paid sick leave, an increase in the minimum wage for health care workers, additional leave to cover “designated persons”, adding caste discrimination to EEO categories, and creating a presumption of retaliation if an adverse employment action occurs within 90 days of a protected activity.  We will continue to monitor this legislation.

One bill related to noncompete has already passed and signed into law.  While noncompete agreements were already prohibited in CA, this law strengthens and clarifies that prohibition, and in addition voids non-compete agreements signed in other states to the extent they may apply to CA employees.  For example, if a CA employer hires an employee who is subject to a non-compete agreement from their previous employer in TX, this law would allows the CA employer and employee to ignore the TX non-compete even though it was a legal contract when signed.  This will certainly result in litigation, but if it is upheld it could set the stage for additional state laws that negate valid agreements signed outside that jurisdiction.

Florida: Minimum wage increases from $11.00 to $12.00 as of September 30, 2023.

New York: The New York State pay transparency law goes into effect September 17.  It is substantially similar to the NYC law that has been in effect since November, but slightly broader with respect to remote employees and also requires posting a job description, if available.  Highlights include:

• Covers all employers with 4+ employees

• Applies to advertisements for a job, promotion, or transfer opportunity

• Applies if the role will be physically performed, at least in part, in the State of NY or if the employee will report to a supervisor, office or other worksite in NYS

• Must disclose a “good faith” estimate of the compensation range

• Unlike some states, it does not require a general description of benefits

• Must disclose the job description, if one exists

We expect the NY Department of Labor to publish additional rules and regulations shortly.

Texas:

State vs. Local Employment Laws.  The “Death Star Bill” scheduled to take effect September 1 has been delayed.  The bill reserved employment law regulation exclusively for the State, and prohibited localities from enacting any laws that would conflict with or exceed state law.  A district court recently found that law violates the state constitution, and enjoined enforcement.  The State immediately appealed, and that is pending.  The appeals process may be expedited but will likely then also be appealed to the Texas Supreme Court for a final decision.

Public Safety Notices.  Effective September 1, 2023, Texas requires all employers to post a notice providing the contact information for the Texas Department of Public Safety workplace violence hotline for reporting instances of workplace violence or suspicious activity.  However, the Department isn’t required to provide the official notice until March. Therefore, enforcement actions are unlikely until then, but employers may want to post emergency numbers in the meantime.

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.