Speak Out Act Restricts Employer Nondisclosure Agreements

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APPLIES TO

 All Employers

EFFECTIVE

TBD

  

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On November 16, 2022, Congress passed the Speak Out Act prohibiting employers from forcing victims of sexual harassment and assault to maintain confidentiality in response to alleged abuse. Effective against any claim filed once the President signs the bill, which is expected any day, employers will no longer be able to enforce any nondisclosure agreement or non-disparagement agreement entered into prior to any sexual harassment and assault dispute. The Act’s preamble indicates Congress’s intent for the bill to apply to current and former employees, applicants, and independent contractors.

 

Employers may still enter into confidentiality agreements with claimants upon settlement of assault or harassment claims. However, the bill specifically allows states to implement more restrictive requirements on post-dispute agreements, like those already existing in California and other states. Employers may also still protect trade secrets and proprietary information through nondisclosure agreements. In light of these imminent changes, employers should immediately review their nondisclosure and nondisparagement agreements with legal counsel.

 

Action Items

  1. Review the bill here.
  2. Review nondisclosure and nondisparagement agreements with legal counsel.
  3. Review sexual harassment prevention programs to ensure ongoing compliance.
  4. Subscribers can call our HR Hotline at (833) 268-5531 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. © 2022 ManagEase

OSHA Severe Violator Enforcement Program Expanded

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APPLIES TO

All Employers Subject to OSHA

EFFECTIVE

September 15, 2022

  

QUESTIONS?

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(888) 378-2456

The Occupational Safety and Health Administration’s (OSHA) “Severe Violator Enforcement Program” (SVEP) addresses managing employers who are considered to be “severe violators” of safety rules, in part, by including them on a public list and subjecting them to increased inspection and scrutiny. OSHA has expanded the criteria that can land an employer in the SVEP to include receiving at least two repeat, willful, or failure-to-abate violations for any “high-gravity” serious violations. Violations issued under any standard can now cause an employer to be included on the SVEP list.

 

Employers on the SVEP list are inspected within one to two years to confirm resolution of violations and so OSHA can look for any similar violations. Depending on the extent of the compliance issues and the employer’s company structure, inspections may extend to other workplaces throughout the country.

 

Employers remain on the SVEP list for a minimum of three years, but may be removed after two years provided that employers agree to an enhanced settlement that includes use of a safety and health management system with seven elements from OSHA’s Recommended Practices for Safety and Health Programs.

 

Action Items

  1. Review OSHA’s announcement here.
  2. Review safety programs and procedures for compliance.
  3. Implement protocols in the event of an OSHA inspection.
  4. Subscribers can call our HR Hotline at (833) 268-5531 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. © 2022 ManagEase

OFCCP Announces Changes to Functional Affirmative Action Plans

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APPLIES TO

Federal Contractors

EFFECTIVE

September 21, 2022

  

QUESTIONS?

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The Office of Federal Contract Compliance Programs (OFCCP) recently announced changes to functional Affirmative Action Plans (FAAP). The FAAP program allows federal contractors to create an affirmative action program based on business units, instead of having the program apply to the entire business. Key changes to Directive 2013-1 (Revision 3) are as follows:

  • Federal contractors with approved FAAPs must notify OFCCP within 60 calendar days of any changes to their primary corporate contact listed in the FAAP agreement.
  • Federal contractors with approved FAAPs must notify OFCCP when changes result in the creation or elimination of one or more functional business units.
  • OFCCP loosened its 60-day deadline to approve FAAP requests, now stating the agency will generally make decisions within 60 days but may require additional time to gather more information.
  • OFCCP also eliminated the requirement that it only use information the contractor provides to evaluate its FAAP request. OFCCP did not state the other ways they may use information provided.

Regulations specifically addressing modifications to functional business units involving remote work employees were not included in the new announcement, but may be forthcoming in future iterations of the directive.

 

Action Items

  1. Review the updated directive here.
  2. Have FAAP procedures updated as applicable.
  3. Subscribers can call our HR Hotline at (833) 268-5531 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. © 2022 ManagEase

Clean Energy Employers Must Comply with Federal Prevailing Wage for New Tax Credits

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APPLIES TO

All Employers in Clean Energy Industry

EFFECTIVE

Pending

  

QUESTIONS?

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On August 16, 2022, President Biden signed the Inflation Reduction Act (IRA) of 2022. The IRA includes a 30% federal tax credit for those in private construction, alteration or repair of certain clan energy projects like solar, wind, geothermal, carbon sequestration, and electric vehicle charging stations. The tax credit can be taken by an owner/developer and their contractors and subcontractors. In order to take advantage of the tax credit, employers must comply with the federal prevailing wage provisions of the Davis-Bacon Act (Act).

 

The Act applies to contractors and subcontractors performing work on federally funded or assisted contracts and requires payment of wages set by the U.S. Department of Labor (DOL), depending on the worker’s classification. In addition to the prevailing wage, the IRA also requires employment of pre-set work hour percentages of apprentices participating in the DOL’s Registered Apprenticeship program or a state equivalent. Prior to the IRA, private sector construction had not been subject to the Act.

 

The U.S. Department of Treasury is in the process of issuing guidance, 60 days after which the IRA’s prevailing wage and apprenticeship requirements go into effect. Claiming tax credits without full compliance may lead to significant penalties. There is the ability to cure unintentional violations but only for a 60-day window of time after the Department of Treasury and IRS issue additional guidance. Employers unfamiliar with the Act’s requirements should review them carefully now before relying on qualifying for the tax credit.

 

Action Items

  1. Review the IRA and the Davis-Bacon Act
  2. Monitor U.S. Department of Treasury website for additional guidance.
  3. Train appropriate personnel on prevailing wage and apprenticeship requirements.
  4. Subscribers can call our HR Hotline at (833) 268-5531 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. © 2022 ManagEase

Third Circuit: Filing Consent to Join a Collective Action Qualifies as Protected Activity Under FLSA

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APPLIES TO

All Employers with Employees in DE, NJ, and PA

EFFECTIVE

 September 14, 2022

  

QUESTIONS?

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In Uronis v. Cabot Oil & Gas Corp., the Third Circuit Court of Appeals stated that an employee filing consent to join a collective action qualifies as “testimony,” an activity protected under the under the Fair Labor Standards Act (FLSA). Specifically, the FLSA prohibits discrimination and retaliation against employees for engaging in protected activity. Moreover, this case broadened the definitions of “testify” and “about to testify” under the FLSA.

 

Here, the plaintiff applied for a job with his alleged former employer’s subsidiary. The former employer and subsidiary were aware the employee was a putative member of, and anticipated witness in, the collective action, and that he was about to file his consent to join. The plaintiff claimed that his job application was denied because he was “about to testify.” In fact, the subsidiary sent the employee a text saying that stating that they weren’t hiring any putative members of the collective action “because of” that lawsuit.

 

The court stated that an employee is “about to testify” where an employer anticipates the employee will soon testify, such as in a pending action. Further, filing a consent to join a collective action qualifies as  “testimony.” The court noted that a narrow interpretation of “testimony” or “about to testify” would discourage the use of informal workplace grievance procedures designed to protect employees.

 

Employers should first review with legal counsel whether to take adverse employment actions against employees who may participate in protected claims.

 

Action Items

  1. Have appropriate personnel trained on discipline involving employees engaged in protected activity.
  2. Review adverse employment actions with legal counsel during ongoing claims and lawsuits.
  3. Subscribers can call our HR Hotline at (833) 268-5531 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. © 2022 ManagEase

Ninth Circuit: FLSA Work Time May Include Time to Boot Up and Turn Off Computer

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APPLIES TO

AK, AZ, CA, HI, ID, MT, NV, OR, WA, Guam, and the Northern Mariana Islands

EFFECTIVE

October 24, 2022

  

QUESTIONS?

Contact HR On-Call

(888) 378-2456

In Cadena v. Customer Connexx LLC, the Ninth Circuit Court of Appeals stated that the time an employee spends booting up a computer is compensable work time for call center employees because the activity is integral and indispensable to their work. The call center employees’ primary responsibilities are to provide customer service and scheduling tasks using the employer-provided computers. Before they can perform these services, they must turn on the computer and log in; they are unable to perform their jobs without the computers.

 

Under the Fair Labor Standards Act (FLSA), activities performed before or after an employee’s regular work shift are compensable if they are an integral and indispensable part of the principal activities for which the employee is employed. The Ninth Circuit stated that employees’ duties could not be performed without turning on and booting up their work computers, and having a functioning computer was necessary before they could perform their job duties. Conversely, logging out of all programs at the end of their shift and shutting down the computer may not be integral to the employees performing their duties; this issue was sent back down to the lower court for further review.

 

Notably, the court distinguished the need to access the company’s timekeeping system as having no impact on the “integral and indispensable” analysis, rather focusing on the employees’ principal activities. That being said, the Ninth Circuit remanded the case back to the district court to determine whether the time spent booting up and shutting down computers was de minimis under the FLSA and not required to be compensated. The court also specifically limited its analysis to the facts of this case.

 

While this case continues to expand employers’ need to evaluate employee compensable time, keep in mind that that not all states, like California, acknowledge use of de minimis time as a valid reason to fail to pay employees for all hours worked.

 

Action Items

  1. Evaluate employee job duties for integral and indispensable time spent consistent with this ruling.
  2. Implement pay processes to account for payment of compensable time.
  3. Have appropriate personnel trained on pay requirements.
  4. Subscribers can call our HR Hotline at (833) 268-5531 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. © 2022 ManagEase

California: COVID-19 Emergency is Ending but Lasting Changes Remain

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APPLIES TO

All Employers with Employees in CA

EFFECTIVE

As Indicated

  

QUESTIONS?

Contact HR On-Call

(888) 378-2456

Governor Newsome recently announced California’s state of emergency will end February 28, 2023. This timeline was meant to take into account any surge that may occur after the holidays in January and February. Despite the end of the state of emergency, California has implemented lasting measures to continue to combat the virus, such as  vaccines and boosters, testing, treatments, and other mitigation measures like masking and indoor ventilation requirements.

 

California continues to adjust its regulations to address the ongoing presence of COVID-19. With the Cal/OSHA COVID-19 emergency temporary standard expiring on December 31, 2022, Cal/OSHA is expected to vote at its December 15, 2022 meeting to approve a final version of a proposed non-emergency COVID-19 regulation that will continue and modify some existing rules.

 

In the meantime, on October 13, 2022, the California Department of Public Health updated the definition of “close contact” for purposes of COVID-19 to account for potential exposure in different environments. Specifically, Close Contact” means the following:

 

  • In indoor spaces 400,000 or fewer cubic feet per floor (such as home, clinic waiting room, airplane etc.), a close contact is defined as sharing the same indoor airspace  for a cumulative total of 15 minutes or more over a 24-hour period (for example, three separate 5-minute exposures for a total of 15 minutes) during an infected person’s infectious period.
  • In large indoor spaces greater than 400,000 cubic feet per floor (such as open-floor-plan offices, warehouses, large retail stores, manufacturing, or food processing facilities), a close contact is defined as being within 6 feet of the infected person for a cumulative total of 15 minutes or more over a 24-hour period during the infected person’s infectious period.

 

Spaces that are separated by floor-to-ceiling walls (e.g., offices, suites, rooms, waiting areas, bathrooms, or break or eating areas that are separated by floor-to-ceiling walls) must be considered distinct indoor airspaces.

 

Action Items

  1. Review COVID-19 prevention protocols for updates and compliance.
  2. Have appropriate personnel trained on close contact requirements.
  3. Look for final approval on COVID-19 regulations.
  4. Subscribers can call our HR Hotline at (833) 268-5531 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. © 2022 ManagEase

California: Rounding Time is Not a Defense to Wage and Hour Claims Where Exact Time is Tracked

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APPLIES TO

All Employers with Employees in CA

EFFECTIVE

 October 24, 2022

  

QUESTIONS?

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(888) 378-2456

In Camp v. Home Depot U.S.A. Inc., the California Court of Appeal recently stated that where an employer can and does track employees’ time worked in minutes, neutral time rounding is not a defense for failing to pay employees for all time worked. There, Home Depot had an electronic timekeeping system that employees used to clock in and out, recording their time to the minute. However, the employer also had a rounding policy that rounded employees’ shift time to the quarter hour.

 

Following the California Supreme Court rulings in Troester v. Starbucks Corp. and Donohue v. AMN Services, LLC, the court essentially eliminated employers’ ability to rely on neutral rounding policies to avoid paying for all time worked. However, this case creates a conflict with standing precedent permitting neutral rounding, but gives courts the ability to determine which rule they may follow. The appellate court invited the state Supreme Court to weigh in on this topic, which is likely to happen.

 

The court noted that rounding may still be valid where a neutral rounding policy is used due to an employer’s inability to capture the actual minutes worked by an employee. The court also did not address whether an employer who has the actual ability to capture an employee’s minutes worked is required to do so. We are likely to see further discussion on this topic, and employers with rounding policies should consider consulting with legal counsel to determine whether to continue their use.

 

Action Items

  1. Remove rounding policies used with electronic time tracking methods.
  2. Have appropriate personnel trained on timekeeping requirements.
  3. Subscribers can call our HR Hotline at (833) 268-5531 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. © 2022 ManagEase

Colorado: Additional Guidance for FAMLI Program and Private Plan Option

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APPLIES TO

All Employers with CO Employees

EFFECTIVE

January 1, 2024

  

QUESTIONS?

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(888) 378-2456

Colorado’s state-run Paid Family and Medical Leave Insurance (FAMLI) program, which allows employees to take at least 12 weeks of paid leave for qualifying events and is funded through premiums, received additional clarity and guidance. The most significant points addressed are summarized below.

 

Eligibility. Employees are entitled to benefits once they earn at least $2,500 in wages within Colorado from any or multiple employers at any point during the preceding year.

 

12-Month Period. To evaluate the amount of leave available in a 12-month period, employers must use the 12-month period rolling backwards, beginning on the first day an employee begins taking benefits.

 

Application. Employees apply for benefits directly to the FAMLI Division when the employer does not have an approved private plan. Applications must be submitted at least 30 days prior to the anticipated start date for benefits unless it is impracticable in which case the FAMLI Division may still consider applications submitted after leave begins. A health certification form must also be provided.

 

Notice. Employers can require employees to notify them directly of a need for FAMLI leave and should follow the employer’s customary notice requirements for leave. In addition, the FAMLI Division will notify the claimant’s employer of an application for benefits within five business days of the submission.

 

Approval. The FAMLI Division will make a decision on the claim for benefits within two weeks. If approved, the notification will include the start date, leave duration, and a description of approved reduced leave or intermittent leave. Employers can request information regarding the benefit amount and reason for leave so the employer can coordinate other benefits, such as PTO, sick leave, or other paid leave. Employers also have a right to dispute the approval of benefits, and employees can also appeal a denial of benefits.

 

Return to Work. Employers can require an employee returning from FAMLI leave to submit a fitness-for-duty certification. This process is similar to the Family and Medical Leave Act (FMLA).

 

Private Plans. Final rules addressing private plans through which employers can meet the requirements of FAMLI were published November 7, 2022. In order to comply, a private plan must, in addition to other requirements, provide the required number of weeks of benefits, provide the same level of wage replacement,  include no additional requirements or conditions, deduct no more than the permitted amount from employee paychecks to fund the plan, cover all employees through the duration of their employment, remain compliant with all other FAMLI requirements, and be approved by the state as compliant.

 

Although the FAMLI does not go into effect until January 1, 2024, all employers must begin collecting and remitting premiums to the state as of January 1, 2023. Additional guidance is also anticipated regarding administration of FAMLI benefits with other paid and unpaid leave benefits.

 

Action Items

  1. Register with My FAMLI+ prior to January 1, 2023.
  2. Review the guidance here.
  3. Review the private plan rules here.
  4. Have appropriate personnel trained on FAMLI and private plan requirements.
  5. Subscribers can call our HR Hotline at (833) 268-5531 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. © 2022 ManagEase

Colorado: Mandatory Retirement Savings Program Coming in 2023

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APPLIES TO

All CO Employers with 5+ Employees

EFFECTIVE

 TBD

  

QUESTIONS?

Contact HR On-Call

(888) 378-2456

In 2023, all Colorado businesses with five or more employees (who have worked for at least 180 days), and who have been in business for two or more years, must register for SecureSavings.  If employers already offer a tax-qualified retirement savings plan to any employees, they can file an exemption once they are registered.

 

The program uses automatic enrollment and savings through payroll deductions to allow employees to contribute to a Roth Individual Retirement Account (IRA) directly from their paychecks. The program defaults to a 5% contribution rate, but employees may change their contributions upon enrollment. If they change jobs, their account goes with them. However, employees can choose to opt-out within 30 days of being added to the program.

 

There are no employer fees to participate in the program. Also, employers do not match employee contributions to the program. Colorado SecureSavings will be fully available across the state in early 2023. Employers should expect to receive instructions on how to register.

 

Action Items

  1. Review the SecureSavings program here.
  2. Prepare to register and review the FAQs here.
  3. Subscribers can call our HR Hotline at (833) 268-5531 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. © 2022 ManagEase