Atlanta, GA: Expanded Anti-Discrimination Protections for Gender Expression and Criminal History

APPLIES TO

All Employers with Atlanta, GA Employees

EFFECTIVE

 October 17, 2022

  

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(888) 378-2456

As of October 17, 2022, Atlanta expanded protections against discrimination to include those based on an individual’s gender expression. “Gender expression” is defined as the physical manifestation of one’s gender identity. “Gender identity” is a person’s internal sense of being male, female, neither of these, both, or other gender(s). Employers should update anti-discrimination policies and have appropriate personnel trained on the current protections.

 

Atlanta also added protections based on an individual’s criminal history. Specifically, employers cannot discriminate based on an individual’s criminal history status, unless the decision was based on how the criminal history related to the position’s responsibilities, including: 1) whether the applicant committed the offense; 2) the nature and gravity of the offense; 3) the time since the offense; and 4) the nature of the job for which the applicant has applied. Notwithstanding, employers are free to make adverse employment decisions based on criminal history status when certain convictions or violations are a bar to employment in that position under state or federal law, including but not limited to positions that involve work with children and positions in law enforcement.

 

Action Items

  1. Review the ordinance here.
  2. Have discrimination policies updated.
  3. Have appropriate personnel trained on the required protections.
  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

New Jersey: Interim Drug Testing Guidance for Cannabis Use

APPLIES TO

All Employers with NJ Employees

EFFECTIVE

September 9, 2022

  

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(888) 378-2456

The New Jersey Cannabis Regulatory Commission released guidance for employers trying to comply with the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA). CREAMMA requires employers to conduct a “physical evaluation” of an employee and to use a Workplace Impairment Recognition Expert (WIRE) prior to conducting a marijuana drug test. Under CREAMMA, such WIRE individuals must be certified. The new interim guidance is in place until standards for WIRE certifications are created and finalized. Until then, employers may use the following steps to show evidence of impairment that can support an adverse employment decision for suspected cannabis use or impairment.

 

Designate an individual to make impairment decisions. An interim staff member or third-party contractor can assist with making determinations of suspected cannabis use so long as they are sufficiently trained; however, the guidance is silent on what that training should be.

 

Reasonable Suspicion Observation Report. An employer is recommended to use documentation to describe the behavior, physical signs, and evidence which lead to the determination of reasonable suspicion. The state released a template Reasonable Suspicion Observed Behavior Report which the individual making the determination should complete. Employers are free to create their own documentation or reports.

 

Cognitive impairment tests. Employers may use cognitive impairment tests that are scientifically valid, objective, consistently repeatable, standardized automated tests of an employee’s impairment, and/or an ocular scan, as physical signs of evidence to establish reasonable suspicion.

 

Evidence of Impairment. The guidance makes clear that a drug test showing the presence of cannabinoid metabolites in the employee’s bodily fluid alone is not enough to support an adverse action. Documentation including evidence of physical signs or other evidence of impairment during work hours must be available to support an adverse employment action.

 

Action Items

  1. Review the guidance here.
  2. Review and revise drug testing and drug use policies.
  3. Review template or create report to document reasonable suspicion and physical signs of impairment.
  4. Have appropriate personnel trained on identifying signs and behaviors of cannabis impairment.
  5. 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. © 2022 ManagEase

Westchester County, NY: Pay Transparency Law Goes into Effect

APPLIES TO

All Employers with 4+ Westchester County, NY Employees

EFFECTIVE

November 6, 2022

  

QUESTIONS?

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(888) 378-2456

An amendment to Westchester County’s Human Rights Law now requires employers with at least four employees to include a minimum and maximum salary for a job, promotion, or transfer opportunity within the job posting or advertisement. The law also applies to employment agencies and labor organizations. The law does not apply to job postings for temporary employment at a temporary help agency.

 

Any type of posting is covered whether it is written, printed, electronic, or in hard copy. The law applies to positions that are required to be performed, in whole or in part, in Westchester County, in person, in the field, or remotely. The compensation range is defined as the lowest to highest salary that the employer in good faith belief at the time of the posting would pay for the position.

 

Note that Governor Hochul is expected to sign New York state’s pay transparency legislation upon receipt; the County law specifically states that the state legislation will preempt this law. However, the state legislation by its terms does not preempt local law. The County will be expected to clarify this nuance should the state version go into effect.

 

Action Items

  1. Review the law here.
  2. Review job descriptions and set salary ranges.
  3. Have an equal pay audit conducted.
  4. Have appropriate personnel trained on pay disclosure requirements.
  5. 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. © 2022 ManagEase

Oregon: New Rules Published for Paid Family and Medical Leave Insurance Program

APPLIES TO

All Employers with OR Employees

EFFECTIVE

January 1, 2023

  

QUESTIONS?

Contact HR On-Call

(888) 378-2456

Oregon published its latest round of rules on the state’s Paid Family and Medical Leave Insurance Program (FMLI). FMLI applies to any employer with at least one Oregon employee. Employers with 25 or more employees are required to contribute to the fund through payroll taxes. Employees can take up to 12 weeks of paid leave. To be eligible for benefits, an employee needs to have earned at least $1,000 in wages, contributed to the FMLI fund, experienced a qualifying event, have current Oregon employment, applied for benefits, have not already exceeded maximum paid leave and benefit amounts, and not be eligible for workers’ compensation or unemployment benefits.

 

The new rules announced that employees can begin applying for FMLI benefits on September 3, 2023. Applications should be submitted up to 30 calendar days before or after the start of leave. Oregon’s Employment Department (OED) will notify the employer when their employee has applied for benefits. Employees will need to submit verification to be eligible for benefits.

 

The rules also clarified the amount of leave an employee can take for child bonding that crosses two benefit years. For a single child, an employee is limited to 12 weeks total across two benefit years. If the employee qualifies for child bonding for more than one child, however, the combined amount of family leave may exceed 12 weeks.

 

The rules also clarified what constitutes care for a family member. The rules define care as either “physical or psychological assistance.” Physical assistance is attending to a family member’s basic needs, including medical, safety, and nutrition. Psychological assistance is providing comfort and reassurance to a family member and arranging for changes in their medical care, such as transfer to a nursing home.

 

Many employers were also confused about the rules surrounding intermittent leave. The new rules state that qualified employees can take intermittent leave in accruals that equal one workday or workweek. For leave of less than one workweek, claimants will take equal to the average number of workdays they typically work.

 

Finally, the rules clarified how employees must provide notice to their employers that they are taking FMLI leave. If leave is foreseeable, employers may require notice of up to 30 days. If unforeseeable, employees must give oral notice within 24 hours of leave and written notice within three days. Safe leave requires reasonable advance notice unless such notice is not feasible. Employers are required to include written notice requirements in their written policies and procedures and must provide these requirements to employees when they are hired and any time the policy changes.

 

If an employer already provides paid leave benefits equal or greater than required by FMLI, they do not have to pay contribution to the FMLI program. OED has released a checklist and guidebook to assist employers. Employers can submit equivalent plan applications to the state. To be exempt from 2023 contributions, employers must submit the application by November 30, 2023. All approved plans must be submitted for reapproval annually for the first three years.

 

Action Items

  1. Determine participation in state or private insurance plans.
  2. Prepare to have leave policies updated.
  3. Have appropriate personnel trained on leave 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. © 2022 ManagEase

Seattle, WA: Independent Contractor Protections Ordinance in Effect

APPLIES TO

All Employers with Seattle, WA Independent Contractors

EFFECTIVE

September 1, 2022

  

QUESTIONS?

Contact HR On-Call

(888) 378-2456

Seattle’s Independent Contractor Protections Ordinance implements pay transparency and timely payments for independent contractors. The law applies to any entities, including non-profits, that regularly engage in business or commercial activity. In addition, a covered contract must: 1) be for an exchange of services for compensation; and 2) involve proposed or actual compensation of $600 or more, either alone or in combination with all services provided by the independent contractor to the same hiring entity in a calendar year.

 

The Ordinance requires hiring entities to provide independent contractors with a notice of rights and a pre-contract disclosure. The notice of rights must include notification of the independent contractor’s right to a pre-contract disclosure, timely payment, payment disclosures, retaliation protection, and notification of the independent contractor’s right to file a complaint with the Seattle Office of Labor Standards or file a private lawsuit. A pre-contract disclosure must include the date, names of parties and contact information, description of the services to be performed, location of the work, compensation structure, and pay schedule. Gross payment, specific deductions, and net payment must also be included. Hiring entities must maintain records for three years showing compliance.

 

Action Items

  1. Review the Ordinance here and review the Fact Sheet here.
  2. Have independent contractor agreements reviewed by legal counsel.
  3. Prepare notice or rights and pre-contract disclosures.
  4. Have appropriate personnel trained on independent contractor requirements.
  5. 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. © 2022 ManagEase

November Updates

APPLIES TO

Varies

EFFECTIVE

Varies

QUESTIONS?

Contact HR On-Call

(888) 378-2456

USERRA Amended to Include FEMA Reservists When Deployed to Disasters and Emergencies

On September 29, 2022, President Biden signed the CREW Act, which amended the Uniformed Services Employment and Reemployment Rights Act (USERRA) to protect the full-time employment of FEMA reservists when they are sent to disasters and emergencies on behalf of FEMA. FEMA reservists are also protected against employment discrimination and loss of benefits.

NLRB Extends Comment Period for Expanding Joint Employment

The National Labor Relations Board (NLRB) extended the comment period for a proposed rule which would significantly expand the standards for joint-employment to December 7, 2022. The proposed rule would revert back to the Obama Administration’s standard of joint employment which allowed indirect, reserved control by a second company to establish joint employment. Under this proposed rule, possessing the authority to control whether directly, indirectly, or both is sufficient to establish control of the essential terms and conditions of employment even if that control is never exercised. The proposed rule also states that the essential terms and conditions of employment include, but are not limited to: wages, benefits, and other compensation, hours of work and scheduling; hiring and discharge; discipline; workplace health and safety; supervision; assignment; and work rules and directions governing the manner, means, or methods of work performance. Employers should continue to monitor developments for the final rule since the proposed rule will have significant impacts for many employers.

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