California: No Sexual Harassment Liability Where Personal Relationship is External to Employment

/in /by

APPLIES TO

All Employers with CA Employees

EFFECTIVE

February 24, 2023

  

QUESTIONS?

Contact HR On-Call

(888) 378-2456
Quick Look

  • Employers are not strictly liable for sexual harassment committed by a supervisor resulting from a private relationship unconnected with the employment and not occurring at the workplace or during normal working hours.

Discussion

In Atalla v. Rite Aid Corporation, the California Court of Appeal stated that where an employee and supervisor have a personal relationship that predates employment and improper behavior occurs outside of the employment context, there is no supervisor liability under the California Fair Employment and Housing Act (FEHA).

Here, an employee had an offsite and afterhours text exchange with a district manager which resulted in him sending unsolicited lewd photographs to her while apparently inebriated. She made a claim for sexual harassment, among others, against the employer. The day after receiving notice of the incident, the employer initiated an immediate investigation in which the manager admitted to sending the lewd photos. He was promptly placed on suspension and terminated shortly thereafter.

Under FEHA, an employer is strictly liable for harassment by a supervisor, but only “if the supervisor is acting in the capacity of supervisor when the harassment occurs.” “The employer is not strictly liable for a supervisor’s acts of harassment resulting from a completely private relationship unconnected with the employment and not occurring at the workplace or during normal working hours.” The employee here claimed she was only friends with the manager to try to get ahead in the company. However, the employee and manager knew each other, and were friends, from a time before the employee started working for the company. They texted on personal matters and had lunch together. They had also socialized together with their respective spouses outside of work. Because the conduct at issue “occurred outside the workplace and outside of work hours” and was “spawned from a personal exchange that arose from a friendship between [them],” the employer was not liable for the conduct.

 

Action Items

  1. Review harassment policies for compliance.
  2. Ensure all personnel receive required sexual harassment training.
  3. Address all sexual harassment claims immediately.
  4. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

 

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2023 ManagEase

California: Reasonable Accommodations Needed for Religious Beliefs

/in /by

APPLIES TO

Employers in CA with 5+ Employees

EFFECTIVE

April 3, 2023

  

QUESTIONS?

Contact HR On-Call

(888) 378-2456
Quick Look

  • Employers are required to engage in the interactive process in good faith to determine whether a reasonable accommodation could be offered for a sincerely held religious belief, absent an undue hardship.
  • The undue hardship exemption for a claim that an accommodation would violate the law may not stand if there would be no penalty for the violation.

Discussion

In Bolden-Hardge v. Office of the California State Controller, et al., the Ninth Circuit Court of Appeals stated that an employer cannot claim an undue hardship for a religious accommodation based on a conflict with the law if they do not have liability exposure if they make the accommodation.

Here, a California state employee was offered a promotion for which she would have to swear allegiance to the State of California. However, she was a Jehovah’s Witness who believed that she could not swear allegiance to any government over the Kingdom of God. She asked for an accommodation to acknowledge her primary allegiance to God but that she would seek in good faith to uphold the federal and state constitutions. An accommodation was refused and the promotion offer withdrawn. However, when she returned to her original position, she was required to swear allegiance but was offered an addendum with the language she requested. She filed suit claiming religious  discrimination under the Fair Employment Housing Act (FEHA) and Title VII of the Civil Rights Act of 1964.

The Ninth Circuit acknowledged that the state’s oath impliedly requires primary loyalty to the state over religion. Further, employers who could be penalized for making a religious accommodation are not required to offer the accommodation because it would be an “undue hardship.” Here, the state agency failed to show that it would incur liability for accommodating the employee by amending the oath, which was further highlighted by the fact that the office in which the employee held her original position offered her the oath with the requested amendment.

 

Action Items

  1. Review anticipated denials for religious accommodation with legal counsel.
  2. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

 

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2023 ManagEase

District of Columbia: New Human Rights Enhancement Amendment Act Changes Definitions of “Harassment” and “Employee”

/in /by

APPLIES TO

Employers with Employees in the District of Columbia

EFFECTIVE

October 1, 2022

  

QUESTIONS?

Contact HR On-Call

(888) 378-2456
Quick Look

  • The DCHREAA adds “homeless status” as a new protected category.
  • Under the DCHREAA, the definition of “employee” now includes both independent contractors and unpaid interns.
  • Under DCHREAA, D.C. embraces a “totality of the circumstances” test for determining unlawful workplace harassment, as opposed to the traditional “severe and pervasive” standard.

Discussion

The District of Columbia recently passed the Human Rights Enhancement Amendment Act of 2022 (“DCHREAA”), amending the D.C Human Rights Act (“DCHRA”) and adding new protections, broadening who is covered under the act, and codifying protections against workplace harassment. First, the DCHREAA added “homeless status” as a protected classification, which includes, in part, any individual or family who is fleeing or attempting to flee domestic violence, has no other residence, and lacks the resources or support networks needed to obtain other permanent housing. Because it is not clear from the DCHREAA’s test what will place an employer on notice of an employee’s homeless status, employers should monitor case law interpretations of the amendment closely.

The DCHREAA also expanded the DCHRA’s definition of an “employee.” Previously, an employee was defined as an “individual employed by or seeking employment from an employer.” However, the new definition under the DCHREAA broadens this definition, stating “[t]he term ‘employee’ includes an unpaid intern and an individual working or seeking work as an independent contractor.” This represents a significant departure from Title VII jurisprudence, which explicitly excludes independent contractors from coverage and protections afforded to employees.

Lastly, the DCHREAA broadened the definition of “harassment,” defining the term as “conduct whether direct or indirect, verbal or nonverbal, that unreasonably alters an individual’s terms, conditions, or privileges of employment or has the purpose or effect of creating an intimidating, hostile, or offensive work environment.” The DCHREAA specifically incorporated sexual harassment within the amended definition of harassment.

D.C. previously applied the traditional “severe and pervasive” standard when evaluating claims for workplace harassment. D.C. now uses a modified version of the “totality of the circumstances” analysis to determine whether certain conduct constitutes unlawful harassment. Specifically, conduct may constitute unlawful “harassment” regardless of whether the conduct: (1) was an isolated instance, (2) was directed toward a person other than the complainant, the complainant submitted to or participated in the conduct, or the complainant was able to complete employment responsibilities despite the conduct, (3) caused tangible physical or psychological injury; (4) occurred outside the workplace; and (5) did not implicate a protected characteristic. The new definition appears to broaden the protection and lessen the burden imposed on proving harassment.

 

Action Items

  1. Have harassment and discrimination policies updated for compliance.
  2. Assess what employment practices may directly or indirectly call into question or reveal an employee’s homeless status.
  3. Have appropriate personnel trained on what constitutes unlawful harassment under this amended definition.
  4. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

 

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2023 ManagEase

Illinois: Expanded Expense Reimbursement Requirements

/in /by

APPLIES TO

All Employers with IL Employees

EFFECTIVE

 April 14, 2023

  

QUESTIONS?

Contact HR On-Call

(888) 378-2456
Quick Look

  • IDOL expanded the definition of determining when reimbursable expenses are incurred for the primary benefit of the employer.
  • Recordkeeping requirements have been expanded to three years.
  • Any unpaid reimbursable expenses are owed in an employee’s final pay.
  • Employees may bring claims for unpaid reimbursable expenses.

Discussion

The Illinois Department of Labor (IDOL) recently published amended regulations to the Illinois Wage Payment and Collection Act (IWPCA), which expands employer requirements for employee expense reimbursement.

Generally, employees are entitled to reimbursement of “necessary expenditures and losses incurred by the employee within the employee’s scope of employment and directly related to services performed for the employer.” “Necessary expenditures” include any reasonable expenditure required of the employee in the discharge of their employment and expenditures made to the primary benefit of the employer. However, there is a new test for determining the “primary benefit of the employer,” including the following factors: (1) whether the employee has an expectation of reimbursement; (2) whether the expense is required or necessary to perform the employee’s job duties; (3) whether the employer is receiving a value that it would otherwise need to pay for; (4) how long the employer is receiving the benefit; and (5) whether the expense is required of the job.

Additionally, employers must maintain the following expense reimbursement records for three years: all policies regarding reimbursement; all employee requests for reimbursement; documentation showing approval or denial of reimbursement; and documentation showing actual reimbursement and supporting documents.

If an employer denies a claim that should have been reimbursed, the employee may file a claim against the employer with the Department seeking reimbursement for expenses. Any unpaid reimbursable expenses must also be paid in an employee’s final compensation.

Finally, if an employer’s expense reimbursement practices are more generous than what is in their written expense reimbursement policy, whether through direct authorization or practice, the employer is liable for full reimbursement of those expenses.

 

Action Items

  1. Review the regulations here.
  2. Have expense reimbursement policies updated for compliance.
  3. Have appropriate personnel trained on expense reimbursement requirements.
  4. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

 

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2023 ManagEase

Michigan: Repeal of Right-to-Work Statute

/in /by

APPLIES TO

All Employers with MI Employees

EFFECTIVE

March 31, 2024

  

QUESTIONS?

Contact HR On-Call

(888) 378-2456
Quick Look

  • Michigan repealed its right-to-work statute in its entirety which means employees in unionized workplaces will no longer have a right to opt out of union membership or refrain from paying union dues or fees as a condition of their employment.
  • A similar law allows union security clauses to apply to public sector employees; however, it will only apply in the event the Supreme Court’s decision in Janus v. AFSCME is overturned.
  • Private employers with union workforces should anticipate their unions will attempt to bargain back security clauses during the next negotiation cycle.

Discussion

SB 34 repeals Michigan’s ten-year old law that prohibited requiring an employee, as a condition of employment, to join a union or pay any fees to a union. In addition, the prior law prohibited employees from being required to do any of the following: 1) refrain from or resign from membership in, affiliation with, or financial support of a labor organization; 2) become or remain a member of a labor organization; 3) pay any dues, fees, or other charges to a labor organization; and 4) pay a charitable organization or another third party an amount of money equivalent to dues, fees, or other charges that are required to be represented by a labor organization. Section 14(b) of the National Labor Relations Act protects states’ rights to enact such laws (right-to-work statutes) that negate union security clauses.

SB 34 repeals the previous right-to-work law entirely. This means employees with unionized workplaces will no longer have a right to opt out of union membership or refrain from paying union dues or fees as a condition of their employment. Union security clauses in collective bargaining agreements that require dues, fees, assessments, or expenses supporting unions will therefore be lawful. Unions can also force employers to terminate employees who refuse to pay such fees. SB 34 also removed the financial penalty for using force, intimidation, or threats to compel an employee to join or not join a union. Local governments will also be prohibited from enacting any right-to-work ordinance in opposition to the new law. HB 4004 was simultaneously enacted and also allows union security clauses to apply to employees in the public sector. This law is largely symbolic since the Supreme Court in Janus v. AFSCME ruled it unlawful for unions or government employers to compel government employees to pay union dues. Private sector employers with union workforces should anticipate their unions will attempt to bargain back security clauses during the next negotiation cycle.

 

Action Items

  1. Review collective bargaining agreements with security clauses with legal counsel.
  2. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

 

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2023 ManagEase

New York City, NY: AI in Hiring and Promotion Final Regulations Adopted

/in /by

APPLIES TO

All Employers with New York City Employees

EFFECTIVE

July 5, 2023

  

QUESTIONS?

Contact HR On-Call

(888) 378-2456
Quick Look

  • New York City has published its final regulations for the use of AI tools in hiring and promotion decisions.
  • Requirements include an annual bias audit and employee/applicant notices, among other employee rights.
  • Employers have until July 5, 2023 to comply with the requirements, if applicable, before enforcement of the law begins.

Discussion

The long-awaited final regulations for the ordinance regulating the use of AI hiring tools have finally been published. Local Law 144 requires employers and employment agencies that use automated employment decision tools (AI) in hiring and promotion to do the following: 1) such tools must undergo an annual, independent “bias audit,” with a publicly available summary; 2) provide each candidate (internal or external) with 10 business days’ notice prior to being subject to the tool; 3) the notice must list the “job qualifications and characteristics” used by the tool to make its assessment; 4) the sources and types of data used by the tool, as well as the applicable data-retention policy, must be made available publicly (or upon written request from the candidate); and 5) candidates must be able to opt out and request an alternative selection process or accommodation. The law likely applies only to New York City residents who are either job applicants for hire in New York City or employees up for promotion to positions in New York City. However, the law and regulations do not state this clearly. Enforcement of the law was deferred until the publication of the final regulations, which will begin July 5, 2023. Key aspects of the regulations are as follows.

Definition of AEDT. The law defines an automated employment decision tool (AEDT) to be any computational process, derived from machine learning, statistical modeling, data analytics, or artificial intelligence, that issues a simplified output, including a score, classification, or recommendation, that is used to substantially assist or replace discretionary decision making for employment decisions that impact natural persons. The regulations clarify this means a group of mathematical, computer-based techniques that: 1) generate a prediction, meaning an expected outcome for an observation, such as an assessment of a candidate’s fit or likelihood of success, or that generate a classification, meaning an assignment of an observation to a group, such as categorizations based on skill sets or aptitude; and 2) for which a computer at least in part identifies the inputs, the relative importance placed on those inputs, and, if applicable, other parameters for the models in order to improve the accuracy of the prediction or classification.

Next, the regulations further define “to substantially assist or replace discretionary decision making” to mean: 1) to rely solely on a simplified output with no other factors considered; 2) to use a simplified output as one of a set of criteria where the simplified output is weighted more than any other criterion in the set; or 3) to use a simplified output to overrule conclusions derived from other factors including human decision-making. Lastly, the regulations limit applicability to candidates who have actually applied for a specific job. It also does not apply to employment decisions regarding compensation, termination, workforce planning, labor deployment, benefits, workforce monitoring, or performance evaluations. It only covers hiring and promotion. If an AEDT meets all three aspects of the definition, then it is subject to the remaining requirements under the law and regulations.

Bias Audit. A bias audit and a summary of the audit must be clearly and conspicuously posted before use of the AEDT. It must be conducted by individuals who: 1) are objective individuals or groups who are not and have not been involved in the use, development, or distribution of the AEDT; 2) have not at any point during the audit been employed by the employer, vendor, or AEDT developer; and 3) who have no direct financial interest or material indirect financial interest in the use of the AEDT or the vendor that developed or distributed it. The contents of the audit must include calculations of the selection rate for each category (or scoring rate, where the tool issues scores instead of classifications/groupings), including sex categories, race/ethnicity categories, and intersectional categories, as well as the impact ratio of each category.

Notice to Employees. At least 10 business days before use of the AEDT, employers must provide candidates for employment or promotion with a notice which contains: 1) a statement that an AEDT is being used in assessing and evaluating the candidate; 2) the job qualifications and characteristics the AEDT will use in its analysis; 3) if not disclosed elsewhere on its website, the AEDT’s data source, type, and the employer’s data retention policy; and 4) that a candidate may request an alternative selection process or accommodation. The notice may be in a job posting or on the employer’s website or delivered via mail or e-mail to the candidate.

Alternative Selection Process or Accommodation. Employers must also offer either an alternative selection process (ASP) or reasonable accommodation for candidates that request it. Employers must only provide a mechanism for an opt-out but are not required to provide an opt-out.

Penalties. Violations of the law can lead to a civil penalty of $375 for the first violation. Subsequent violations can lead to a civil penalty between $500 and $1,500. Each failure constitutes a separate, daily violation.

 

Action Items

  1. Review the final regulations here.
  2. Evaluate use of AEDT and coverage for compliance.
  3. Have policies updated regarding the use of AEDT.
  4. Implement required employee and applicant notice.
  5. Implement procedure for conducting bias audit.
  6. Have appropriate personnel trained on the requirements.
  7. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

 

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2023 ManagEase

Pennsylvania: Reimbursing Employee Expenses for Medical Marijuana to Treat Work-Related Injuries

/in /by

APPLIES TO

All Employers with Employees in PA

EFFECTIVE

March 17, 2023

  

QUESTIONS?

Contact HR On-Call

(888) 378-2456
Quick Look

  • Pennsylvania employers are required to reimburse employees for medical marijuana treatment for work-related injuries under the Pennsylvania Workers’ Compensation Act.

Discussion

In Fegley v. Firestone Tire & Rubber, the Commonwealth Court of Pennsylvania determined that, when medical marijuana treatment has been found to be reasonable and necessary to treat an employee’s work-related injury, an employer is required to reimburse the employee for the costs of obtaining their medical marijuana treatment.

Here, an employee suffered a work-related injury to his back in September of 1977 and received ongoing medical treatment, including several back surgeries and prescriptions for opiates and narcotics over the course of 30 years. In January of 2019, the employee began taking medical marijuana at the recommendation of his doctor, with the hopes of eliminating the need for prescription opiates and narcotics to treat his ongoing pain in his legs and back. As a result of the medical marijuana, the employee was ultimately able to wean himself off the other prescription drugs, and in September of 2019, a utilization review (UR) determined that the employee’s use of medical marijuana was reasonable and necessary. A month later, the employee filed a penalty petition, alleging that his employer violated the Pennsylvania Workers Compensation Act (WC Act) by failing to pay for his medical marijuana treatment, despite the UR determination declaring that such treatment was reasonable and necessary.

In reviewing the employee’s petition, the Court said that the WC Act requires reimbursement to employees for reasonable and necessary expenses resulting from work-place injuries, including medical marijuana treatment where such treatment had been designated accordingly. The Court observed that the Pennsylvania Medical Marijuana Act (MMA) deems marijuana to be a legitimate treatment of medical issues under proper circumstances, and that medical marijuana patients cannot be “denied any right or privilege, … solely for [their] lawful use of medical marijuana.”

Distinguishing the MMA’s “Conflict” provision, the Court found that the absence of the term “reimbursement” was significant. Specifically, the MMA’s “Conflict” provision states that “[n]othing in [the MMA] shall be construed to require an insurer or a health plan, … to provide coverage for medical marijuana.” The Court reasoned that, while the MMA does not require “coverage” for medical marijuana, there is no express language in the MMA that precludes a WC carrier from reimbursing a claimant for medical expenses that are reasonable and necessary to treat a work-related injury. The Court noted this conclusion is consistent with both the WC Act’s reimbursement requirement, and the MMA’s endorsement of medical marijuana and corresponding prohibition against denying rights or privileges based solely on medical marijuana use.

 

Action Items

  1. Review and update applicable workers’ compensation policies.
  2. Consult with legal counsel when evaluating claims for reimbursement to employees for work-related medical treatment expenses, including claims for reimbursement of medical marijuana treatment and expenses.
  3. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

 

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2023 ManagEase

Virginia: Use of Non-Disclosure Agreements and Employee Social Security Numbers Restricted

/in /by

APPLIES TO

All Employers with Employees in VA

EFFECTIVE

July 1, 2023

  

QUESTIONS?

Contact HR On-Call

(888) 378-2456
Quick Look

  • Virginia prohibits use of non-disclosure and non-disparagement agreements intended to conceal details relating to both claims of sexual assault and sexual harassment.
  • Virginia prohibits use of employee Social Security Numbers on employer-issued identification and/or access cards and badges.

Discussion

Virginia passed a law which further limits an employer’s ability to use non-disclosure and non-disparagement agreements with employees. HB 1895 amends Virginia’s previous Non-Disclosure Law that restricts employers from requiring employees or prospective employees to sign a non-disclosure or confidentiality agreement that has the purpose or effect of concealing the details relating to a claim of sexual assault. Under the prior Non-Disclosure Law, any agreements that include such provisions are void and unenforceable.

Set to take effect on July 1, 2023, HB 1895 will amend the Non-Disclosure Law to not only cover agreements that have the purpose and effect of concealing the details relating to a claim of sexual assault, but will also cover agreements that have the purpose and effect of concealing claims of sexual harassment. HB 1895 also expands the Non-Disclosure Law to agreements with a “provision relating to non-disparagement.” For purposes of the statute, “sexual harassment” is defined as “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when such conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile, or offensive work environment.”

Also set to take effect on July 1, 2023, Virginia passed SB 1040 which prohibits an employer’s use of employees’ social security numbers (SSN), or any derivative thereof, on any employer issued identification card, access card, badge, or other similar card provided to the employee. While the law does not specifically outline what constitutes a “derivative thereof,” employers can likely assume it includes any portion of an employee’s SSN, such as the last four digits. SB 1040 adds a civil penalty of up to $100 per violation for any employer who knowingly violates this statute.

 

Action Items

  1. Review applicable non-disclosure and non-disparagement agreements with legal counsel.
  2. Eliminate use of employees’ social security numbers when issuing identification or access cards and/or badges.
  3. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

 

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2023 ManagEase

Virginia: Eligible Employees Entitled to Unpaid Leave for Organ Donation

/in /by

APPLIES TO

All Employers in VA with  50+ Employees

EFFECTIVE

 July 1, 2023

  

QUESTIONS?

Contact HR On-Call

(888) 378-2456
Quick Look

  • Virginia provides eligible employees with up to 60 business days of unpaid organ donation leave within a 12-month period.
  • Virginia provides eligible employees with up to 30 business days of unpaid bone marrow donation leave within a 12-month period.
  • Virginia organ donation and bone marrow leave is not taken concurrently with federal FMLA leave.

Discussion

Employees in Virginia will soon be eligible for up to 60 business days of unpaid organ donation leave and up to 30 days of unpaid bone marrow donation leave within a 12-month period. SB 1086 requires employers with 50 or more employees to provide organ donation and bone marrow donation leave to any “eligible” employee starting July 1, 2023. “Organ donation leave” means leave of an eligible employee for the purpose of donating one or more of their organs, including bone marrow, to be medically transplanted into the body of another individual. To be considered “eligible” for this leave, an employee is required to have worked for the employer for at least a 12-month period and at least 1,250 hours during the preceding 12 months.

While these eligibility requirements largely mirror the eligibility requirements under the Family and Medical Leave Act (FMLA), Virginia law expressly states that organ donation leave is not taken concurrently with federal FMLA leave. Employers should consult with legal counsel regarding designating FMLA leave with state organ donation leave.

The leave is unpaid and requires employers to restore employees to the position they held prior to taking their leave, or to an equivalent position with equivalent pay, benefits, and other terms and conditions of employment. During an eligible employee’s organ donation and/or bone marrow donation leave period, the employer must maintain coverage of the employee’s health plan benefits. The law also requires the employer to pay out any commissions due to the employee that become due during the employee’s leave period, and which result from the employee’s work prior to commencing their leave. Employers are prohibited from treating organ donation and/or bone marrow donation leave as a break in the employee’s continuous service for purposes of their right to salary adjustments, sick leave, vacation, paid time off, annual leave, seniority, or other applicable employee benefits. Employers are also prohibited from retaliating against employees for requesting or exercising their right to organ donation leave, or employees who have alleged a violation of the organ donation leave law. The law outlines a schedule for violations, including up to $5,000 for repeated offenses. Employers should prepare now for this new leave benefit to go into effect this summer.

 

Action Items

  1. Have applicable employee leave policies updated.
  2. Have appropriate personnel trained on the new leave requirements.
  3. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

 

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2023 ManagEase

May Updates

/in /by

APPLIES TO

Varies

EFFECTIVE

Varies

QUESTIONS?

Contact HR On-Call

(888) 378-2456

Increased Penalty for EEO Poster Violations

Effective March 23, 2023, the Equal Employment Opportunity Commission has increased the penalty for failing to post required EEO notices in the workplace from $612 to $659. The new $659 penalty is assessed for each offense, so employers with multiple worksites and/or locations where notices to applicants and employees are customarily posted may be subject to additional penalties. Federal law requires employers to post details of employees’ statutory rights in a conspicuous, accessible location in the workplace. The EEOC’s Know Your Rights: Workplace Discrimination is Illegal Poster generally satisfies these requirements and is made available in multiple languages. Employers should consult with legal counsel regarding their posting compliance obligations.

 

USCIS Gender Changes on Forms

On March 31, 2023, USCIS announced that it is no longer necessary to provide supporting documentation to change or update a prior gender selection on immigration forms, with limited exception. The website explains how to request a gender change on current documents. Additionally, revised forms will include an “X” marker for gender. This change is consistent with state self-certification policies for gender marker designations on driver’s licenses and identification cards.

 

Ninth Circuit: Federal Contractor Vaccine Mandate Upheld

On April 19, 2023, in Mayes v. Biden, the Ninth Circuit Court of Appeals reversed a permanent injunction on enforcement of the federal contractor vaccine mandate in the state of Arizona. The Arizona State Attorney General sued the U.S. government after Executive Order 14042 required all federal employees and contractors to receive the COVID-19 vaccine and that government agencies can only do business with contractors that follow the COVID-19 guidelines. The government argued the executive order did not violate the Procurement Act because past presidents have issued similar executive decisions. The Court agreed that the Executive Order was well within the powers given to the President by the Procurement Act. The ruling by the Court does not change anything presently for federal contractors doing business in the states covered by the Ninth Circuit since the Biden administration has not implemented the mandate since the Eleventh Circuit Court of Appeals narrowed the scope of the mandate nationwide.

 

REMINDER! California: Pay Data Reporting DUE MAY 10, 2023

Employers with 100 or more employees who are subject to California’s pay data reporting requirements (SB 1162) must submit their pay data reports by May 10, 2023. Employers should note that the reporting is separate and different from federal EEO-1 reporting. Based on recently released FAQs, private colleges and universities must file Payroll Employee Reports and Labor Contractor Employee Reports. Note that employers can now apply for a two-month deferral to comply with pay data reporting for labor contractor employee reports only.  Review the Civil Rights Department website for more information.

 

California: Lawsuit Seeks to Put CPRA on Hold

On March 30, 2023, the California Chamber of Commerce filed a lawsuit to stop the July 1, 2023 enforcement by the Attorney General or the California Privacy Protection Agency (CPPA) of the recent California Privacy Rights Act (CPRA) regulations. The lawsuit stems from voter approved Proposition 24. The Chamber alleges that the Proposition requires final regulations to be in place and a 12-month implementation period thereafter before enforcement can take effect. Continue to look for updates on this case. Keep in mind that this lawsuit does not affect consumers’ ability to enforce the California Consumer Privacy Act (CCPA) as it was prior to Proposition 24.

 

California: Airline Cabin Crew Exempt from Meal and Rest Requirements

Effective March 23, 2023, and retroactive to December 5, 2022, SB 41 exempts airline cabin crew employees covered by a valid collective bargaining agreement (CBA) under the Federal Railway Labor Act and CBAs that cover meal and rest breaks for those employees from having to comply with state meal and rest period requirements. Employers should review CBA’s with legal counsel.

 

San Mateo County, CA: Minimum Wage Increased to $16.50

As of April 1, 2023, minimum wage increased in the unincorporated areas of San Mateo County to $16.50 per hour. The San Mateo County minimum wage ordinance covers all employees who work two hours or more in a particular week within the unincorporated areas of the county. The amount will increase annually beginning on January 1, 2024. There is a posting requirement and employers must retain records of each employee’s name, hours worked, and pay rate for three years. Review the County’s website for more information.

 

Colorado: Annual Notice for Employees Regarding Available Income Tax Credits

Anticipated around August 9, 2023, HB 23-1006 will require employers to notify employees in writing of the availability of income tax credits. The law expands the annual tax withholding notice requirement to include written notice of the availability of federal and state earned income tax credits and child tax credits. The notice may be sent electronically, via email or text message and must be in English or any other language the employer uses to communicate with employees. The Colorado Department of Revenue can also issue rules requiring additional content in the future.

 

Denver, CO: Civil Wage Theft Rules

As of January 10, 2023, Ordinance 22-1614 created new avenues for employees in the City and County of Denver to pursue claims for wage theft. This primarily includes filing a complaint with the Colorado Division of Labor Standards and Statistics in addition to the city auditor as well as a private right of action. Now, Denver Labor, a division of the Auditor’s Office, adopted rules for enforcement of the ordinance as well as clarifications. The ordinance defines working in Denver as 20% or more of work time in Denver in a pay period, or customarily spending at least 50% of work time in Denver. This applies to all hours of work performed within Denver regardless of the employer’s location which means remote work is covered. Denver Labor is also authorized to exceed the scope of the initial complaint and can cover multiple job sites. Failure to maintain records is also a presumed wage violation. The ordinance also covers all time worked, including travel time; paid breaks, vacation time, and sick leave; and other forms of paid leave. Penalties include treble damages for unpaid wages as well as interest and penalties.

 

Connecticut: Deadline Extended for Businesses to Register with State’s Mandatory Retirement Program

In 2016, Connecticut enacted legislation that established the state-run employee retirement savings program (MyCTSavings), which was launched in 2022. Employer registration with the program has been phased-in based on the number of employees a business has, starting with those employers with 100 or more employees. On April 5, 2023, the Office of the State Comptroller announced that the deadline for compliance under the final phase – applicable to employers with 5 to 25 employees – will be extended until August 31, 2023.

 

Indiana: Data Privacy Law Enacted

As of January 1, 2026, SB 5 will make Indiana the seventh state to implement a consumer data privacy law. The bill applies to businesses that control or process personal data of at least 100,000 consumers who are residents of the state, or control or process personal data of at least 25,000 consumers who are residents of the state and derive more than 50% of gross revenue from the sale of personal data. Under the law, consumers have a right to know, a right to access, a right to correct, a right to delete, and a right to opt out of personal data for purposes of targeted advertising, sale of personal data, or certain profiling activities. Covered businesses must: 1) limit the collection of personal data to what is adequate, relevant, and reasonably necessary in relation to the purposes for which such data is processed; 2) establish, implement, and maintain reasonable administrative, technical, and physical security practices to protect the confidentiality, integrity, and accessibility of personal data; 3) not discriminate against a consumer for exercising rights under the law; 4) not process sensitive data without the consumer’s consent; 5) provide consumers with a privacy notice that explains, among other things, the categories of personal data the controller processes and shares with third parties; and 6) provide consumers the opportunity to opt out of the sale of personal data and explain the means to exercise these and other rights under the law. The law does not apply to data processed or maintained in the employment context from or about an employee or job applicant for employment-related purposes.

 

Iowa: Data Privacy Law Enacted

Effective January 1, 2025, Iowa’s Senate File 262 imposes data privacy requirements to businesses that control or process personal data of at least 100,000 Iowa residents or derive over 50% of their annual gross revenue from the sale of personal data and also control or process personal data of 25,000 or more Iowa residents. Covered businesses have to provide its consumers notices of collection and access to its privacy policy. Iowa consumers also have the right to access, delete, know, and opt out of the sale of personal information. Consumers do not have a right to correct or opt-in consent for sensitive personal information. The law does not apply to data collected, created, or received in the employment context from or about an employee or job applicant for employment-related purposes.

 

Maryland: Minimum Wage Increases to $15.00 per Hour in 2024

Effective January 1, 2024, Maryland’s minimum wage will increase to $15.00 per hour for all employees, under SB 555. This increase comes a year earlier for large employers (with 15 or more employees) and almost two and a half years early for small employers (14 or less employees), when compared with the scheduled increases under Maryland’s previous law. Governor Moore estimates that the new law will result in wage increases for approximately 163,000 workers in Maryland.

 

Bloomington, MN: Paid Sick and Safe Leave Ordinance Initial Rules Published

The Earned Sick and Safe Leave Ordinance, effective July 1, 2023, now has additional clarification with newly published initial rules. The rules explain employees are entitled to accrue leave under the ordinance for all hours they perform work for that employer during the remainder of the year in Bloomington after working at least 80 hours in Bloomington. Employers can reasonably estimate how much time an employee works in Bloomington using dispatch logs, employee logs, delivery addresses, and estimated travel times. Employees can begin using accrued leave on the 91st day of employment. For sick leave, an employer must provide health insurance in order to ask an employee to provide a doctor’s note for absences of more than three consecutive days. For safe leave, employers can request a police report, court order, or an employee’s written statement. Employers must also provide a notice of rights and remedies under the law.

 

Nevada: NV OSHA Announces Increased Penalties for Workplace Safety Violations

The Nevada Occupational Safety and Health Administration (NV OSHA) announced a 7.74% increase in penalties for workplace safety violations, effective January 17, 2023. These increased penalties come as a result of the Federal Civil Penalties Inflation Adjustment Act of 2015 and will apply to any penalty assessed on or after January 17, 2023, regardless of when the inspection was opened. In addition to the increased penalties, NV OSHA announced a list of establishments it is targeting for programmed inspections which will be conducted on a routine basis and will be aimed at identifying potential hazards and violations. These include, but are not limited to, asbestos abatement projects, construction industry, food manufacturing, wood manufacturing, plastics and rubber products manufacturing, nonmetallic mineral product manufacturing, warehousing and storage, hotels, nursing in residential care facilities, and automotive repairs and maintenance. Employers should evaluate their respective compliance obligations to avoid potential for sustained violations and the associated penalties.

 

New Jersey: NJWARN Amendments to Notice and Severance Pay Requirements

As of April 10, 2023, changes to New Jersey’s Millville Dallas Airmotive Plant Job Loss Notification Act (NJWARN) significantly amended the law’s notice and severance pay requirements. The amended NJWARN now requires employers to provide 90 days’ advanced written notice to employees, government officials, and, if applicable, unions, prior to a covered triggering event (e.g., a mass layoff, termination of operations, or transfer of operations). Additionally, the amended NJWARN transformed the severance pay requirement from solely a penalty when an employer fails to provide the required notice, to a mandatory severance requirement even where the employer has fully complied with the notice requirement. Specifically, an employer (1) must still pay severance to each employee impacted by the covered triggering event (still calculated as one week of pay for each year of respective service), and (2) if an employer fails to comply with the required 90 days’ advance notice requirement, the employer must pay an additional four weeks of severance pay to each employee who did not receive the required 90 days’ notice. Earlier this year, the revised severance pay requirements were challenged, but a New Jersey federal court recently denied the request to invalidate the amendment. Significantly, the court did not reach the merits of the argument opposing the severance pay requirements, but rather held that the industry group that brought the legal challenge lacked standing to raise the argument. Accordingly, the issue remains unresolved and may be subject to future legal challenges. In the interim, New Jersey employers should review with legal counsel their compliance obligations under the amended NJWARN during covered triggering events.

 

New York: NYSDOL Updates Model Sexual Harassment Prevention Policy

On April 11, 2023, the New York State Department of Labor (NYSDOL) finalized updates to New York’s Sexual Harassment Model Policy (Model Policy). While the changes do not reflect a dramatic shift in the state’s overall policy, they are nonetheless substantive and carry through to the other documents that the NYSDOL has updated, including the Complaint Form for Reporting Sexual Harassment, the Model Sexual Harassment Prevention Training Deck, and the Model Sexual Harassment Training Script. The final Model Policy explicitly states that it reflects the minimum standard for complaint sexual harassment prevention and that “no section in [the Model Policy] should be omitted.” The revisions to the Model Policy largely center around an expanded definition of “sexual harassment,” including a detailed discussion of gender diversity, gender identity, and gender expression, as well as clarification of where, when and by whom sexual harassment may occur. The updates also incorporated additional information on bystander intervention, retaliation, and other forms of harassment, as well as key pieces of state legislation and administrative action for the intervening years. New York employers should update their sexual harassment prevention policies and evaluate their compliance obligations under these recent updates.

 

Oregon: COVID-19 OSHA Rules Temporarily Suspended

As of April 3, 2023, Oregon OSHA suspended its COVID-19 Public Health Emergency and Amended Work Clothing Rules. The suspension is temporary until Oregon OSHA implements a permanent full repeal of the rules. Employees who still feel vulnerable in the workplace are allowed to wear face coverings and employers are still required to supply the face coverings at no cost to the employees if the employer requires the use of face coverings. The suspension is in line with the Oregon Health Authority’s recent guidance that masks are no longer required in healthcare settings.

 

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2023 ManagEase