APPLIES TO All Employers with CA, CT, DC, FL, IL, MD, MN, NV, OR and WA Employees

EFFECTIVE As Indicated

QUESTIONS? Contact HR On-Call (888) 378-2456

Quick Look Prepare for minimum wage updates in your areas of operation as of July 1, 2023.

Discussion

On July 1, 2023, minimum wage will increase in states and localities across the country. Although not a comprehensive list, the following are key areas to review. All changes go into effect on July 1, 2023 unless otherwise noted.

California

• Alameda: $16.52/hour
• Berkeley: $18.07/hour
• Emeryville: $18.67/hour
• Fremont: $16.80/hour
• Los Angeles City: $16.78/hour
• Los Angeles County: $16.90/hour
• Malibu: $16.90/hour
• Milpitas: $17.20/hour
• Pasadena: $16.93/hour
• San Francisco City: $18.07/hour
• Santa Monica: $16.90/hour
• West Hollywood: $19.08/hour (all employers)

Connecticut: $15.00/hour, effective June 1, 2023

District of Columbia: $17.00/hour

Florida: $12.00/hour, effective September 30, 2023

Illinois:

• Chicago: $15.80/hour (21+ employees); $15.00/hour (4-20 employees)
• Cook County: $13.70/hour

Maryland

• Montgomery County: $16.70/hour (51+ employees); $15.00/hour (11-50 employees); $14.50/hour (1-10 employees)

Minnesota

• Minneapolis: $14.50/hour (1-100 employees)
• St. Paul: $15.00/hour (101-10,000 employees); $13.00/hour (6-100 employees); $11.50/hour (1-5 employees)

Nevada: $10.25/hour (employers offering qualified health benefits); $11.25/hour (all other employers)

Oregon

• Standard: $14.20/hour
• Portland Metro: $15.45/hour
• Nonurban Counties: $13.20/hour

Washington

• Tukwila: $18.99/hour (501+ employees); $16.99 (1-500 employees)

Employers should also review tipped employee minimum wage changes, and any impact to overtime and exempt employee pay.

 

Action Items

1. Prepare to update minimum wage rates in payroll systems.
2. Notify employees of wage increases, if required.
3. Display updated minimum wage posters in the workplace and provide posters to remote workers.
4. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

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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

APPLIES TO All Employers

EFFECTIVE As Indicated

QUESTIONS? Contact HR On-Call (888) 378-2456

Quick Look All employers covered by the FLSA are required to provide reasonable break times and a space to express breast milk at work for a year after a child’s birth.

Discussion

The Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) amended the Fair Labor Standards Act (FLSA) to expand existing requirements to provide employees with reasonable break times and a private location to express breast milk for one year after a child’s birth. The PUMP Act was included in the Consolidated Appropriations Act, 2023 and went into effect December 29, 2022. Additional remedies created by the PUMP Act for plaintiffs went into effect April 28, 2023. As part of its enforcement responsibilities, the Department of Labor’s Wage and Hour Division (WHD) recently published Field Assistance Bulletin No. 2023-02. Although the guidance is for field staff enforcing the PUMP Act, it provides helpful information for employers including examples of the most important requirements.

Break Time. The frequency, duration, and timing of breaks will vary based on the requirements of the nursing employee and child. An employer cannot require an employee to adhere to a fixed schedule that does not meet the employee’s need for break time each time the employee needs to pump. Any agreed-upon schedule between the employer and employee may need to change based on the employee’s needs. Remote employees are to be treated as if they were working on-site.

Compensation. Pump breaks are unpaid unless otherwise required by federal, state, or local law. If an employee is not completely relieved from duty for the entirety of the break, then they must be compensated since the break will be considered hours worked. FLSA salaried exempt employees also may not have their salaries reduced to reflect pump breaks.

Lactation Space Requirements. Spaces to pump breast milk at work must be: 1) shielded from view; 2) free from intrusion from coworkers and the public; 3) available each time it is needed by the employee; and 4) not a bathroom. Ensuring privacy can be accomplished by displaying a sign or providing a lock for the door when the space is in use. Remote employees must be free from observation by computer cameras or web conferencing platforms. The space must contain a place for the nursing employee to sit, a flat surface other than the floor to place a breast pump, an insulated food container, personal cooler, or refrigerator to store milk safely, and have access to electricity and a sink to ensure a sterile environment. To accomplish these requirements, employers can utilize vacant offices, storage rooms, partitions, or privacy screens so long as all the other conditions are met.

Exemptions. Employers with less than 50 employees can claim an exemption from the requirements if it would cause an undue hardship. The burden is on the employer to demonstrate the difficulty or expense of compliance in light of the size, financial resources, nature, and structure of the employer’s business.

Retaliation Prohibited. Employees cannot be discharged or in any other manner discriminated against for filing a complaint regarding the pump at work protections. Violations can result in reinstatement, promotion, payment of wages lost and an equal amount as liquidated damages, compensatory damages, make-whole relief, and punitive damages.

Poster. The WHD has published an updated poster with the current pump at work requirements. It must be posted in a conspicuous location in every establishment where employees are employed. Electronic posting is sufficient if all of the employer’s employees exclusively work remotely, all employees customarily receive information from the employer by electronic means, and all employees have readily available access to electronic postings at all times.

 

Action Items

1. Review and update meal and rest break policies.
2. Review space requirements for pump breaks and provide accommodations.
3. Display required posting.
4. Have appropriate personnel trained on the requirements.
5. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

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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

APPLIES TO All Employers with Employees subject to NLRA

EFFECTIVE As Indicated

QUESTIONS? Contact HR On-Call (888) 378-2456

Quick Look NLRB General Counsel stated that overbroad non-compete provisions violate the NLRA because they chill the exercise of employee rights under Section 7 of the NLRA. Limited circumstances may exist where non-compete agreements do not violate the NLRA. FTC reportedly delayed its vote on a non-compete ban to April 2024.

Discussion

On May 30, 2023, NLRB General Counsel Jennifer Abruzzo issued a memorandum (Memo) stating that the proffer, maintenance, and enforcement of non-compete provisions in employment contracts and severance agreements violate the National Labor Relations Act (NLRA). This Memo parallels her earlier Memorandum (GC 23-05) addressing confidentiality in the context of severance agreements.

In the Memo, Abruzzo explains that overbroad non-compete agreements are unlawful because they chill the exercise of employee rights under Section 7 of the NLRA, which protects their right to take collective action to improve their working conditions. Abruzzo specifically notes that non-compete provisions “could reasonably be construed by employees to deny them the ability to quit or change jobs by cutting off their access to other employment opportunities that they are qualified for based on their experience, aptitudes, and preferences as to type and location of work.”

The Memo outlines some limited exceptions where non-compete agreements could be lawful, including situations where the provisions clearly restrict only individuals’ managerial or ownership interests in a competing business or true independent contractor relationships. In such limited situations, Abruzzo explains that non-compete agreements should be narrowly tailored to the special circumstances, to justify the infringement on employee rights. She emphasizes that neither an employer’s desire to avoid competition from a former employee, nor an employer’s interest in retaining special investments made in training employees constitute a legitimate business interest that could support such special circumstances.

Memorandums issued by the NLRB’s General Counsel are intended to provide policy guidance and agency interpretation of certain legal principles. While these memorandums do not constitute legally binding authority on employers, such guidance reflects the NLRB’s aggressive posture towards certain employment agreements that could be interpreted as interfering with Section 7 rights.

The NLRB Memo comes on the heels of a report that the Federal Trade Commission (FTC) is not expected to vote on its non-compete ban until April 2024. We previously reported that in January 2023 the FTC proposed a ban on non-competes, stating that they are an unfair method of competition and are in violation of Section 5 of the Federal Trade Commission Act. Because of the large response to the proposed rule, the agency needs sufficient time to review the 27,000 comments and make any proposed adjustments to the rule.

With the convergence of these two timelines, what should employers do now? Employers are advised to review noncompete agreements with legal counsel. Employers should take stock of their non-compete agreements and determine whether adjustments need to be made for existing agreements and to onboarding procedures going forward.

 

Action Items

1. Review and revise non-compete agreements with legal counsel to ensure language does not interfere with employee rights under the NLRA.
2. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

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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

APPLIES TO All Employers with 15 or more Employees

EFFECTIVE May 18, 2023

QUESTIONS? Contact HR On-Call (888) 378-2456

Quick Look The use of algorithmic decision-making software constitutes a “selection procedure,” when used to make or inform decisions about whether to hire, promote, terminate, or take similar employment-related actions toward applicants or current employees. Employers may face liability under Title VII when using AI or other algorithmic decision-making software that creates a disproportionate effect of excluding people based on a protected classification.

Discussion

On May 18, 2023, the Equal Employment Opportunity Commission (EEOC) released new guidance through a Questions and Answers Resource (Guidance), intended to assist employers in determining whether and how to monitor algorithmic decision-making tools when using such technology in employment-related decisions. The Guidance begins with a broad overview and definition of key terms regarding what constitutes automated systems and artificial intelligence, as well as a review of the different theories of discrimination that are prohibited under Title VII.

Specifically, Title VII prohibits disparate treatment and disparate impact discrimination. Disparate treatment discrimination is defined as intentional discrimination against an individual based on their membership in a protected class (i.e., race, sex, religion, national origin, etc.), whereas disparate impact or “adverse impact” discrimination arises when an employer uses a neutral policy, test or selection procedure that has a disproportionate effect of excluding people based on a protected classification. The EEOC notes that this current guidance on the use of AI technology under Title VII focuses primarily on the issue of disparate impact discrimination.

In 1978, the EEOC adopted the Uniform Guidelines on Employee Selection Procedures (the Guidelines), which has provided guidance to employers on how to determine if their neutral tests and selection procedures are lawful for purposes of Title VII disparate impact analysis. The EEOC’s current Q&A Guidance serves to expand upon the 1978 Guidelines, providing updated analysis on selection procedures performed by artificial intelligence or other algorithmic decision-making software when used for certain employment decisions.

The new Guidance explains that a “selection procedure” is any, “measure, combination of measures, or procedure” that employers use as a basis for an employment decision, and therefore, AI or other algorithmic decision-making tools would be subject to the 1978 Guidelines “when they are used to make or inform decisions about whether to hire, promote, terminate, or take similar actions towards applicants or current employees.” The Guidance further explains that employers can assess whether a selection procedure has a disparate impact on a particular group by determining whether the procedure selects individuals in a protected group “substantially” less than individuals of another group. Under this new Guidance, if the AI system adversely affects applicants or employees of a particular protected category, then the system likely violates Title VII.

The Q&A Guidance also reviews the 1978 Guideline’s “four-fifths rule,” explaining that the rule is simply a rule of thumb, and “may be inappropriate under certain circumstances,” such as where AI makes a larger number of selections and thus smaller differences may reflect an adverse impact on certain groups, or where an employer’s actions disproportionately effect individuals in protected groups. Therefore, employers cannot blindly rely on the four-fifths rule to ensure compliance under Title VII.

Additionally, the new Guidance confirms that employers may be held responsible for AI decision-making that creates a disparate impact, “even if the tools are designed or administered by another entity.” This means, employers using an AI or other algorithmic decision-making software can still be found liable for discrimination under Title VII even if the software was developed by someone outside the company.

Developing a selection procedure using AI technology provides employers the opportunity to explore different algorithmic options, so if an employer finds that a certain algorithm creates a disproportionate exclusion of a certain protected classification, the employer can and should take steps to select a comparably alternative algorithm. Notably, the EEOC directs that an employer’s failure to adopt a less discriminatory algorithm during the development process may give rise to liability under Title VII.

 

Action Items

1. Review the EEOC’s full Q&A Guidance on the use of AI under Title VII here.
2. Conduct periodic audits of employment decision-making processes on an ongoing basis to ensure compliance with state and federal anti-discrimination laws and regulations.
3. Implement policies and procedures addressing AI use in the workplace.
4. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

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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

APPLIES TO All Employers with CMS-Covered Healthcare Facilities

EFFECTIVE August 4, 2023

QUESTIONS? Contact HR On-Call (888) 378-2456

Quick Look CMS-covered health facilities no longer have to require health care staff to obtain COVID-19 vaccinations. Continuing policies that require COVID-19 vaccinations may assist facilities which participate in value-based purchasing programs.

Discussion

On the heels of the Biden-Harris administration ending the COVID-19 Public Health Emergency effective May 11, 2023, Centers for Medicare and Medicaid Services (CMS) stated it would also end its mandatory vaccination requirement for CMS-covered healthcare facilities. On May 31, 2023, CMS issued a final rule which formally rescinds the mandatory health care staff vaccination requirement. The final rule will be published on June 5, 2023 in the Federal Register and will become effective 60 days after the date of publication.

Under the final rule, CMS-covered healthcare facilities are no longer required to enforce COVID-19 vaccinations among staff and contractors. CMS will instead use value-based measures and incentives to encourage facilities to keep workers up-to-date on their COVID-19 vaccinations. This means the Department of Health and Human Services (HHS) will continue to consider COVID-19 vaccinations as a quality measure in “value-based purchasing” programs which could affect ratings and payments. Performance on these measures can be publicly posted according to the final rule. Withdrawal of the COVID-19 vaccination requirements does not prohibit facilities from creating policies that require such vaccinations. Healthcare employers are encouraged to maintain “evidence-based policies regarding staff vaccination for COVID-19 and other communicable diseases for which vaccination is available and recommended.” Long-term care facilities must continue to provide information on COVID-19 vaccines and provide the vaccine. Employers should review their policies and prepare to implement necessary changes prior to the effective date.

 

Action Items

1. Read the final rule here.
2. Revise COVID-19 vaccination policies, if appropriate.
3. Train appropriate personnel on updated requirements.
4. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

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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