California: Local COVID-19 State of Emergency Ending

APPLIES TO

As Indicated

EFFECTIVE

As Indicated

  

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Quick Look

  • Local states of emergency will or have ended in Los Angeles City and County, Long Beach, and San Francisco.
  • Oakland renewed its state of emergency and its supplemental paid sick leave remains in effect.

Discussion

On February 28, 2023, California ended its COVID-19 declaration of emergency, and the federal government anticipates terminating the national emergency on May 11, 2023. Since then, several localities have updated their own emergency statuses.

Los Angeles City’s state of emergency ended on February 1, 2023, which ended the local supplemental paid sick leave on February 15, 2023.

Los Angeles County recently voted to end its state of emergency on March 31, 2023, which will end the local supplemental paid sick leave and vaccine leave as of April 14, 2023.

Long Beach ended the local state of emergency and terminated its supplemental paid sick leave as of February 21, 2023.

Oakland City Council renewed its state of emergency on February 21, 2023, keeping its supplemental paid sick leave rules in effect.

San Francisco’s public health emergency declaration and health orders ended on February 28, 2023, which means that its Public Health Emergency Leave Ordinance (PHELO) is not triggered. Incidentally, the COVID-Related Employment Protections Ordinance prohibiting employment discrimination based on COVID-19 status ended March 6, 2023.

Note that employers across the state must still comply with the state’s COVID-19 non-emergency standard that went into effect February 3, 2023.

Action Items

  1. Have supplemental paid sick leave policies updated, if applicable.
  2. Have COVID-19 policies and procedures updated to be consistent with the state’s COVID-19 non-emergency standard.
  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

Illinois: Final Regulations Issued for Equal Pay Act Certification

APPLIES TO

All Employers with 100+ IL Employees

EFFECTIVE

January 6, 2023

  

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  • The Illinois Equal Pay Act requires employers with 100+ employees in Illinois to obtain an equal pay registration certificate.
  • The certification requirements also include submitting wage and demographic data along with a copy of the EEO-1 report to the Illinois Department of Labor.

Discussion

In 2021, Illinois amended its Equal Pay Act (IEPA) to require businesses with 100 or more employees in the state to obtain an equal pay registration certificate. The amendments required: 1) a $150 filing fee; 2) a wage records list of all employees categorized by gender, race, and ethnicity along with a copy of the most recent EEO-1 report; and 3) a signed statement from an officer affirming compliance. The Illinois Department of Labor (IDOL) has released the final regulations which provide some key clarifications.

Enrollment. Employers authorized to transact business in Illinois on or before March 23, 2021 must enroll online to confirm they are subject to the registration certification requirement and provide contact information. Employers authorized to transact business after that date must enroll by January 1 of the calendar year following the year they were authorized to do business in Illinois.

Employee Defined. Businesses have employees in Illinois if their base of operations or the place from which the service is directed or controlled is located within Illinois. This means remote employees whose work is directed or controlled from Illinois or employees who reside in Illinois are counted as Illinois employees to determine the coverage threshold.

Wage Records. Employees listed are those on the payroll beginning January 1 through December 31 in the year preceding the application due date. Employees should be listed separately by gender, race, and ethnicity in a searchable and sortable format. Employers must submit the mean hourly wage for hourly workers and the mean annual wage for salaried workers.

Average Compensation. Employers must certify the average wages for women and minority employees in their specific occupation in Illinois, as determined by the most recent U.S. Bureau of Labor Statistics State Occupational Employment and Wage Estimates publication, is not consistently below the average wages for male and non-minority employees.

Compliance. An officer must certify in writing that the business does not have any adverse judgments or administrative rulings against it for violations of the Title VII of the Civil Rights Act of 1964, the Illinois Human Rights Act, the Equal Wage Act, or the Equal Pay Act of 2003.

Employee Data Requests. Employees can submit a written request to IDOL for anonymized data about the pay for their own job title or classification. The data requested must be no more than 10 years prior to the date of the request.

IDOL will assign an application due date for each business required to submit a certification. A new certificate must be obtained every two years after the initial due date. Additional clarity is anticipated since these final regulations do not answer all outstanding questions raised by the amendments.

 

Action Items

  1. Review the final regulations here.
  2. Determine employee count for purposes of coverage.
  3. Compile information on employee wages, gender, and race/ethnicity.
  4. Have appropriate personnel trained on the requirements.
  5. Review application and data with legal counsel prior to submission.
  6. 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 Jersey: Temporary Workers’ Bill of Rights

APPLIES TO

All Employers with NJ Temporary Employees

EFFECTIVE

As Indicated

  

QUESTIONS?

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Quick Look

  • Temporary worker service firms and their third-party clients based in New Jersey must comply with several wage, notice, and recordkeeping requirements.
  • Third-party clients who use temporary workers also have requirements under the law with heavy penalties for violations.

Discussion

New Jersey’s Governor finally signed the long-awaited “Temp Worker Bill of Rights.” The law requires New Jersey based staffing agencies and their customers to provide several notifications to temp workers. Under the law, a temporary worker is anyone who contracts for employment with a temporary help service firm. It excludes agricultural crew leaders, secretaries, or administrative assistants but does apply to a wide range of other occupations including workers who perform grounds cleaning and maintenance, personal care and service, and construction. A temporary help service firm is any individual or entity that operates a business employing individuals directly or indirectly for the purpose of assigning the employed individuals to assist the firm’s customers in handling their temporary, excess, or special workloads.

Effective May 7, 2023: Detailed written wage notices must be provided in English or in the primary language of the temporary worker. The notices must include: 1) name of the worker; 2) the contact information of the temporary help service firm, its workers’ compensation carrier, the third-party client, and New Jersey’s Department of Labor and Workforce Development; 3) the name and nature of the work to be performed; 4) wages; 5) name and address of the assigned worksite; 6) transportation offered, if applicable; 7) description of the position and whether it requires special clothing, equipment, training, or licenses as well as whether these costs will be charged to the employee; 8) meals and equipment provided or their costs; 9) schedule of multiday assignments; 10) length of assignment; and 11) amount of sick leave and instructions for use under New Jersey’s Earned Sick Leave Laws.

Also effective May 7, 2023 are the law’s anti-retaliation protections. Neither a temporary help service nor its third-party client can retaliate against a temporary worker for exercising their rights under the law. Any adverse action occurring within 90 days of a temporary worker exercising their rights is presumed to be retaliation. A successful retaliation claim could result in equitable relief, liquidated damages equal to $20,000 per incident, reinstatement, and attorneys’ fees and costs.

Effective August 5, 2023: Temporary workers must be paid the same average rate of pay as a regular employee of the third-party client performing substantially similar work. This includes the average cost of benefits or its cash equivalent. If there is no work available at the assigned worksite, the temporary help service firm must pay a minimum of four hours of pay at the agreed upon rate. Paycheck stubs also must include an itemized statement with: 1) contact information of each third-party client worked for during the pay period; 2) rate of payment for each hour worked; 3) total pay period earnings; and 4) amount of each deduction made including why the deduction was made. Deductions for transportation, background checks including drug testing, and paycheck cashing fees are prohibited. Costs for meals and equipment can be deducted but must not cause the hourly wage to fall below the minimum wage. In addition, there must be a prior written authorization from the temporary worker for reasonable market value deductions of equipment.

Temporary help service firms must keep the contact information and contracts of third-party clients and copies of all employment notices for six years. Third party clients also have the obligation to provide certain information to the temporary help service firm under threat of civil penalty: 1) name and address of the temporary worker; 2) specific location of work; 3) type of work performed; 4) hours worked; 5) hourly rate of pay; and 6) date sent. All aspects of the law include a private right of action for violations that can be pursued against the temporary help service firm and the third-party client. There is also a provision for class action lawsuits. The statute of limitations is six years from the last date of employment.

 

Action Items

  1. Review the law here.
  2. Review contracts with temporary worker service firms with legal counsel for compliance.
  3. Draft wage notice requirements.
  4. Update payroll processes for compliance.
  5. Have appropriate personnel trained on the requirements.
  6. 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

March Updates

APPLIES TO

Varies

EFFECTIVE

Varies

QUESTIONS?

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Third Circuit: Key Employer Defense in Hostile Work Environment Cases Narrowed

In O’Brien v. The Middle East Forum, the Third Circuit Court of Appeals ruled an employer cannot use the Ellerth/Faragher affirmative defense if the harasser is a “proxy” or “alter ego” of the employer and is strictly liable. The Ellerth/Faragher affirmative defense allows employers to avoid liability in hostile work environment claims if they exercised reasonable care to prevent and promptly correct harassing conduct and the employee unreasonably failed to use the employer’s established harassment prevention and correction procedures. Here, a high-ranking male colleague was accused of sexually harassing the female plaintiff. While the Court did not define what a proxy or alter ego is, they did point to several factors, such as: 1) the alleged harasser was Director, CEO, and Secretary of the Board; 2) he was the second-highest employee; 3) he created and implemented office policies; and 4) he was the public face of the organization and “the man in charge.” The Court added only those with exceptional authority and control meet this standard. Employers should be aware that harassers who meet such a high standard will lead to strict liability for the employer.

 

Sixth Circuit: Federal Contractor COVID-19 Vaccine Mandate Invalidated in Three States

On January 12, 2023, in Kentucky v. Biden, the Sixth Circuit Court of Appeals upheld a lower court injunction blocking the federal contractor vaccine mandate specifically in Kentucky, Ohio, and Tennessee and two Ohio sheriffs’ offices. The federal government has continued to stay enforcing the mandate nationwide pending ongoing litigation.

 

Alabama: Employee Handbook Termination Procedures Can Create a Contract

On January 13, 2023, in Davis v. City of Montevallo, the Alabama Supreme Court said that employee handbook language detailing employee termination procedures created a contract between an employer and the at-will employee. There, termination procedures in the handbook included the word “shall” indicating the employer’s intent to make the procedures binding, in contrast to using “may” throughout other handbook policies. Additionally, the handbook’s disclaimer language was not broad enough to counteract the language of the termination policy. Similarly, language reserving the right to change its procedures in the future did not make the promise to follow existing procedures unenforceable.

 

California: Non-Emergency COVID-19 Rule in Effect

On February 3, 2023, Cal/OSHA’s non-emergency COVID-19 rule went into effect when it was approved by the Office of Administrative Law. The non-emergency rule removed the requirement for exclusion pay, aligned certain COVID-19 definitions with the California Department of Public Health (CDPH), and revised rules surrounding outbreaks. The rule will remain in effect through February 3, 2025, with recordkeeping rules in effect through February 3, 2026. Review Cal/OSHA’s website for additional resources.

 

California: Pay Data Reporting FAQs Updated

California’s Civil Rights Department updated its FAQs on pay data reporting to answer questions about the changes brought about by SB 1162. In addition to job posting requirements, SB 1162 requires covered employers to submit a pay data report regardless of whether they are required to submit an EEO-1 report. Those who were required to submit an EEO-1 report can no longer use it to satisfy the pay data reporting requirement. The updated FAQs clarify the obligations for multiple-establishment employers, mean and median hourly rates, labor contractor requirements, and increased penalties.

 

California: Court of Appeal Limits Arbitration Agreement “I Do Not Recall Signing” Defense

On January 19, 2023, in Iyere v. Wise Auto Group, the California Court of Appeal ruled plaintiffs who do not provide evidence that their signatures were forged or otherwise inauthentic fail to show that their arbitration agreements were unenforceable. Here, the plaintiffs claimed they received a large number of documents to sign on their first day of work and signed so quickly that they did not recall ever reading or signing the arbitration agreements. The Court found that the plaintiffs did not deny that the handwritten signatures were not theirs. Employers wishing to take advantage of this limitation should ensure that their handwritten and e-signature procedures are secure and capable of proving so in court.

 

San Francisco, CA: FAQs for Paid Military Leave

The San Francisco Office of Labor Standards Enforcement (OLSE) published FAQs for the new Military Leave Pay Protection Act (MLPPA). The MLPPA went into effect on February 19, 2023 and requires San Francisco employers with 100 or more employees worldwide to provide differential pay for employees on military leave for up to 30 days. The FAQs address calculating and timing the payment of supplemental compensation. There is also a recommendation that employers consider requesting a leave and earnings statement from eligible employees verifying gross military pay. In addition to the actual compensation, the FAQs also address employee and employer notice requirements, recordkeeping, and the fact that there are no job protections in the law, although the federal Uniformed Services Employment and Reemployment Rights Act (USERRA) does prohibit discrimination and retaliation for taking military leave.

 

Denver, CO: New Wage Theft Ordinance Expands Protections

On January 10, 2023, a new ordinance expands wage theft protections for Denver workers. Now, anyone may file a complaint regarding failure to pay workers in Denver with the city auditor, who can hold any entity liable that has directly or indirectly contracted for labor and is the beneficiary of that labor. The city auditor may also initiate investigations without a worker complaint. There are also notice and recordkeeping requirements, as well as a prohibition against retaliation for exercising rights under the ordinance. Employees may also now file a private action in litigation without making a claim to the city auditor.

 

District of Columbia: Tip Credit Elimination Act Delayed to May 1st

The District of Columbia Council postponed the effective date the “Tip Credit Elimination Act” (Initiative 82) from January 1, 2023 to May 1, 2023. Congress has authority to review most D.C. voter initiatives, but the review timing was impacted by the delay in electing a speaker of the House. The current maximum tip credit of $10.75 per hour will be reduced to $10.10 per hour on May 1, with the tip credit ultimately eliminated by 2027.

 

Illinois: 5-Year Statute of Limitations for Biometric Information Privacy Act Claims

On February 2, 2023, in Tims v. Black Horse Carriers, the Illinois Supreme Court ruled a five-year statute of limitations applies to all provisions of the Biometric Information Privacy Act (BIPA). BIPA regulates the collection, possession, storage, disclosure, sale, and retention of biometric data. Employers should continue to watch for additional developments in pending BIPA cases. Other cases before the Illinois Supreme Court seek to address when the statute of limitations starts tolling – the first time an individual’s data is collected or each time such data is collected. This has implications for employers who use biometrics for facility access or for timeclock procedures, for example.

 

Maryland: Expanded Definition of Sexual Harassment

Maryland’s SB 450 reduced the standard for sexual harassment from “severe or pervasive” conduct to the lesser “totality of the circumstances” test. This reduced standard will make it easier for plaintiffs to support claims of sexual harassment. Instead of having to show the conduct was so offensive and threatening that working was nearly impossible, plaintiffs merely have to show that a reasonable person would view the workplace as abusive or hostile. Employers will need to update their harassment policies as well as their training to notify employees that even fleeting remarks may be considered unlawful harassment.

 

Maryland: Expanded Definition of Reasonable Accommodation

Maryland’s HB 278 now requires employers to reasonably accommodate an applicant’s disability. This change brings Maryland’s reasonable accommodation standard in line with the federal standard which also requires accommodations for applicants. The law also removed the requirement that an applicant has to be otherwise qualified in order to receive a reasonable accommodation. Employers do not have to comply if the reasonable accommodation would cause an undue hardship. Employers should update their policies and train appropriate personnel on the requirements.

 

Minnesota: Enactment of CROWN Act Prohibits Hair Discrimination

As of February 1, 2023, HF 37 prohibits discrimination based on hair texture and hairstyles. Minnesota’s Human Rights Act’s definition of race is now “inclusive of traits associated with race, including but not limited to hair texture and hair styles such as braids, locs, and twists.” Minnesota employers should update their dress code and anti-discrimination policies for compliance with the new law.

 

Bloomington, MN: Updates to Paid Sick Leave

Bloomington’s paid sick leave law goes into effect July 1, 2023, but changes are already occurring. Employers may choose to have employees accrue leave on a pro-rata basis. Accrued and used leave amounts will be mandated to appear on employees’ paystubs. Penalties and damages for violations have also been specified. Employers should ensure paid sick leave policies and practices are up to date once the law goes into effect.

 

St. Paul, MN: Updates to Paid Sick Leave

As of February 24, 2023, St. Paul’s paid sick leave law was amended. Employees accrue leave on hours worked in St. Paul – even while working remotely in St. Paul, and employers must allow employees to use leave when they are scheduled to work in St. Paul. However, employers may permit employees to use leave if working outside of St. Paul. The amendment updated the definition of “reporting year,” so employers must notify employees what “year” they use for compliance purposes. There are also updated rules for switching between accrual and frontloading methods, leave carryover, expanded anti-retaliation protections, and enforcement.

 

New Jersey: No ABC Test for Commissioned Real Estate Salespeople Making State Wage Claims

On February 9, 2023, in Kennedy v. Weichert Co., the Superior Court of New Jersey ruled the ABC test for determining independent contractor status does not apply to state wage claims made by fully commissioned real estate salespeople. Here, the plaintiff worked as a fully commissioned salesperson for a licensed real estate broker under an executed independent contractor agreement. The plaintiff brought a class action against the broker alleging unlawful deductions from their wages. The Court determined the ABC test did not apply because New Jersey’s Brokers Act stated real estate salespeople are required to work under the supervision of a licensed real estate broker and can only accept a commission, thereby compelling the conclusion that every commissioned real estate salesperson was an employee under the ABC test. The Court remanded the case for further development of the facts before it was willing to determine the applicable standard for determining employment status under the circumstances.

 

New York: State COVID-19 Vaccination Mandate for Healthcare Professionals Struck Down

On January 13, 2022, in Medical Professionals for Informed Consent v. Bassett, a New York State Supreme Court Judge invalidated the New York State Department of Health regulation mandating certain healthcare professionals be “fully vaccinated” against COVID-19 because there was no authority to do so. Specifically, coronaviruses are not covered under the Public Health Law which is what gives the Health Commissioner authority to implement a mandatory immunization program.

 

New York, NY: New Criminal Prosecutions for Wage Theft

On February 16, 2023, the New York City District Attorney announced the creation of the “Worker Protection Unit” and “Stolen Wages Fund” to seek criminal charges against companies and individual executives and managers who fail to properly pay employee wages. It is currently unclear what standards will be applied to determine when criminal charges will be brought. Continue to look for updates on this topic.

 


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