A New Form I-9 is Here with Important Updates!

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August 1, 2023

  

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  • Begin using the new Form I-9 by November 1, 2023.
  • Form I-9 is reduced to a single page with updated instructions.
  • A remote verification process for work authorization documents is permitted for E-Verify users’ new hires on a going forward basis (i.e., as of August 1, 2023).
  • Only employers who used E-Verify during the COVID-19 flexibility period may be allowed to use the new remote verification process to meet the document verification deadline of August 30, 2023.
  • The E-Verify process has also been updated to align with the new Form I-9.

Discussion

The long-awaited new Form I-9 is now available for employers to use. There are significant changes to the form and process that employers should be aware of. Key points are summarized as follows.

Form Updates

The new Form I-9 is available for use as of August 1, 2023. Employers may still use the previous Form I-9 version (edition date 10/21/19) through October 31, 2023. Starting November 1, 2023, all employers must use the new Form I-9.

Section 1 (employee information) and Section 2 (employer review and verification) have been condensed into one page. For Section 1, employees are not required to enter their Social Security number unless the employer participates in E-Verify. Before completing Section 2, employers must review section 1 and have the employee correct any errors, and initial and date the correction. In Section 2, employers must select the box in the Additional Information area if using an alternate procedure for document examination authorized by the Department of Homeland Security (DHS) (e.g., remote verification authorized when using E-Verify). Refer to M-274 for guidance on implementing alternative examination procedures. Rather than write “N/A” in boxes that do not apply, employers and employees may now leave fields blank if they do not apply. The new form is also designed to be a fillable form on tablets and mobile devices. Although still not required to make photocopies of documents provided, employers must retain any photocopies they do make. Form I-9 may be generated, signed, and retained electronically, in compliance with 8 C.F.R. § 274a.2.

The Lists of Acceptable Documents page has been revised to include identification of acceptable receipts used for a temporary period as well as guidance on automatic extensions of employment authorization documentation. Document 5 on List A (i.e., foreign passport or qualifying Form I-94) is clarified as being for individuals temporarily authorized to work because of their status or parole; the previous form identified these documents for non-immigrant aliens. Document 7 on List C (i.e., employment authorization document) has links to examples of accepted documents.

Supplement A is a Preparer/Translator Certification for Section 1, which was previously at the bottom of page 1 on the old version of the form. The Supplement contains multiple spaces for a preparer/translator attestation as there is no limit to the number of preparers/translators an employee may use. If the employee does not use a preparer/translator, employers are not required to provide or retain Supplement A.

Supplement B is for Reverification and Rehire, formerly Section 3 on the old version of the form. There are multiple spaces for each instance of a reverification or rehire. Employers need only complete and retain the supplement page when employment authorization reverification is required; in that event, Supplement B should be attached to the employee’s completed Form I-9. For rehires, if the employee remains employment-authorized, as indicated on the previously completed Form I-9, employers must record the date of rehire and any name changes. However, if the employee’s employment authorization or List A or C documents have expired, employers must reverify their work authorization.

It is important to note that several key aspects of Form I-9 remain unchanged. Employers must still allow employees to choose which approved identity and work authorization documents they present. Employees must complete and sign Section 1 no later than the first day of employment, but not before accepting an offer of employment. Employers must complete Section 2 within three business days after the employee’s first day of employment. Employers may not ask for documentation to verify information entered in Section 1. Employees must present documents from List A or Lists B and C to confirm identity and authorization to work. If the documentation reasonably appears to be genuine and relates to the employee, employers must accept the documentation. Employers have the option to retain copies of the documents presented.

New Remote Verification Process

In connection with the release of the new Form I-9, DHS announced a reprieve from physical reverification for some employers. An optional, alternative procedure is now available only to employers participating in E-Verify with good standing. A participant in good standing in E-Verify is an employer that has enrolled in E-Verify with respect to all hiring sites in the United States that use the alternative procedure, is in compliance with all requirements of the E-Verify program, and continues to be a participant in good standing in E-Verify at any time during which the employer uses the alternative procedure. If employers are not current participants in E-Verify, they may join E-Verify to be able to use the alternative process for new hires on a going-forward basis (i.e., as of August 1, 2023).

There are five key steps in the alternative procedure: (1) examine physical copies of documents presented for Form I-9 completion; (2) conduct a live video inspection of the original documents, and compared with the copies provided, to determine that the documentation received from the individual reasonably appears to be genuine and related to the individual; (3) check the alternative procedure box on Form I-9 to document its use; (4) retain a copy of the documentation; and (5) make the copies available in the event of an audit or investigation.

The alternative procedure must be used consistently either for all employees at a particular site, or as a hybrid process for remote employees only, with onsite workers still having their documents physically examined. The hybrid process cannot be used to discriminate or differentiate between employees based on a protected characteristic. Note that nothing in the alternative procedure prevents an employer from physically examining documents when requested to do so by an employee.

Document Inspection Following COVID-19 Special Rules

Employers who used the COVID-19 flexibilities to remotely examine Form I-9 documents have until August 30, 2023 to physically inspect all the documents that were remotely verified between March 20, 2020 and July 31, 2023. Employers who have moved to a fully remote workforce or have remote employees far from a physical office face severe challenges in completing a physical examination. The authorized representative option, in which an employer can designate any individual to be an authorized representative to physically verify Form I-9 documents, is one of the few available choices but it has significant risks. Specifically, employers are still liable for mistakes or errors made by the authorized representative. Under this scenario, an employer’s decision to appoint a friend or family member of the employee should be strictly scrutinized.

Alternatively, DHS announced that employers who use E-Verify can remotely reverify the documents for employees who used the COVID-19 remote flexibilities. To qualify, employers must have: 1) performed remote examination of an employee’s documents between March 20, 2020 and July 31, 2023; 2) been enrolled in E-Verify for the time they completed the Form I-9 for that employee; 3) created a case in E-Verify for that employee (except for reverification); and 4) be currently enrolled in and continue to be a participant in good standing with E-Verify. Employers who do not meet all of these requirements must still perform a physical examination of documents by August 30, 2023.

The E-Verify-enrolled employers who do meet these requirements, may choose to use the new alternative remote verification procedure to satisfy the physical document examination requirement. To do so, the employer must remotely examine the Form I-9 documents through a live video interaction for each employee whose documents were examined remotely under the temporary flexibilities. USCIS further clarifies that previously using fax, email, or a live video interaction during the COVID-19 flexibilities to examine documents means employers must conduct a live video interaction by August 30, 2023. After conducting the live video interaction, the Form I-9 must be annotated with “alternative procedure,” the date of the second remote document examination, and the initials of the individual who conducted the live video interaction in Section 2 in the Additional Information box. Details on how to annotate the Form I-9 can be found here.

E-Verify Process

The new Form I-9 Instructions detail the process for work authorization using E-Verify. Of note, if employees present a List B document, it must contain a photograph. Employees must also enter their Social Security number in Section 1.

The E-Verify verification process begins once an E-Verify-enrolled employer has received a completed Form I-9. Next, the employer is required to create a case in E-Verify for each new employee, inputting the information from the employees’ Form I-9 no later than the third business day after the employee starts work for pay. E-Verify takes the information inputted by an employer and checks the information against records available to the DHS and Social Security Administration (SSA).

If the employee presents a Form I-551 Permanent Resident Card (i.e., a Green Card), a Form I-766 Employment Authorization Document, a U.S. passport, or a passport card, the E-Verify Photo Matching system will then prompt the employer to compare the photo on the employee’s Form I-9 photo document with a photo displayed during creation of the E-Verify case. A photo will display automatically in E-Verify during the verification process, and the employer should only compare the employee’s Form I-9 photo document to the photo displayed in the E-Verify system. The employer must also remember to make a photocopy of any Form I-9 photo document that is presented by the employee and retain the copy with the employee’s Form I-9.

After the employer enters the employee’s information into E-Verify, the system will display an initial case result within a few seconds (although some cases may require additional action). The following is an overview of the potential results that E-Verify may return as part of the verification process.

  • Employment Authorized – Most E-Verifycases will receive a case result of “Employment Authorized.” Employment Authorized means that the information entered into E-Verify matched records available to SSA and/or DHS confirming employment eligibility of the employee whose information was entered. E-Verify automatically closes cases resulting in an Employment Authorized result.
  • E-VerifyNeeds More Time – Indicates that DHS cannot verify the data and needs more time. The case is automatically referred to DHS for further verification. DHS will respond to most of these cases within 24 hours, although some responses may take up to three (3) federal government working days. No action is required by either the employer or the employee at this time, but the employer should continue to check E-Verify regularly for case updates and follow the next steps required, based on any case results provided.
  • Tentative Non-confirmation (Mismatch) – Indicates that the information entered did not match records available to DHS and/or SSA and that additional action is required. If the case returns a Tentative Non-Confirmation (mismatch) result, the employer must notify the employee using the Further Action Notice within ten (10) federal government working days, so the employee can decide whether to take action to resolve the mismatch. An employee has eight (8) federal government working days to take action to begin resolving the mismatch.
  • Case in Continuance– Indicates the employee has contacted DHS or visited an SSA field office, but more time is needed to determine a final case result. Employers should check E-Verify periodically for case result updates.
  • Close Case and Resubmit– An employee’s case may receive a Close Case and Resubmit case result if SSA and/or DHS are unable to process the case and confirm employment eligibility. In this case, the employers should close the case and create a new case for this employee.
  • Final Non-confirmation– Will result if (1) E-Verify cannot confirm the employee’s employment eligibility after the employee contacted DHS or SSA, (2) the time for resolving the case expired, or (3) DHS closed the case without confirming the employee’s employment eligibility for some other reason. After a Final Non-confirmation result, the employee or employer can request a further review by calling E-Verify. Upon further review, E-Verify may revisit a case result and issue a Status Update Letter to the employer and/or the employer’s agent, as well as notify the employee.

To complete the E-Verify process, the employer must receive a final case result and close the case. Final case results include Employment Authorized, Close Case and Resubmit, and Final Non-confirmation. Once the employer has received the final result from E-Verify, the employer can close the case.

Action Items

  1. Begin using the new Form I-9 by November 1, 2023.
  2. Review the revised Form I-9 instructions here.
  3. Review the updated USCIS Handbook for Employers (M-274) here.
  4. Review the USCIS E-Verify Quick Reference Guide and User Manual.
  5. Have appropriate personnel trained on the new form and procedures.
  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

Hold Your Handbooks! There is a New NLRB Standard for Finding Employer Policies Unlawful

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All Employers subject to the NLRA

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August 2, 2023

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  • The NLRB adopted a new version of the Lutheran Heritage rule for determining when employer policies are unlawful under the NLRA.
  • The rule focuses on whether an employee could reasonably interpret the employer’s policy to have a coercive meaning in violation of their Section 7 rights. The employer’s intent behind the rule is irrelevant.
  • An employer can rebut the presumption that the policy is unlawful if it can show that the policy “advances a legitimate and substantial business interest and that the employer is unable to advance that interest with a more narrowly tailored rule.”

Discussion

In Stericycle, Inc. and Teamsters Local 628, the National Labor Relations Board (NLRB) created a new standard for determining whether an employer’s work rule or policy that does not expressly restrict employees’ protected concerted activity is facially unlawful under the National Labor Relations Act (NLRA). In recent years, the standard was defined by the tiered analysis originally put forth in Boeing Co. (and modified by LA Specialty Produce), which itself had replaced the analysis in Lutheran Heritage Village-Livonia.

The NLRB said the “problem with the standard from Boeing and LA Specialty Produce is that it permits employers to adopt overbroad work rules that chill employees’ exercise of their rights under Section 7.” Their line of reasoning was that the current standard fails to account for the economic dependency of employees on their employers. Boeing gives too little weight to the burden a work rule could impose on employees’ Section 7 rights. At the same time, Boeing’s balancing test gives too much weight to employer interests. Boeing also “condones overbroad work rules by not requiring the party drafting the work rules—the employer—to narrowly tailor its rules to only promote its legitimate and substantial business interests while avoiding burdening employee rights.” Ultimately, the Board rejected and overruled Boeing’s tiered analysis (and the cases relying on it), “returning to a particularized analysis of specific rules, their language, and the employer interests actually invoked to justify them.”

In Stericycle, the NLRB created a new standard that builds on and revises the Lutheran Heritage standard. Specifically, Lutheran Heritage recognized that overbroad workplace rules and polices may chill employees in the exercise of their Section 7 rights and focused on the employees’ NLRA-protected rights. The NLRB reasoned that although Lutheran Heritage implicitly allowed the Board to evaluate employer interests when considering whether a particular rule was unlawfully overbroad, the standard itself did not clearly address how employer interests factored into the Board’s analysis.

So, what is the new rule? The new standard maintains that the NLRB’s General Counsel must prove that a challenged employer rule has a reasonable tendency to chill employees from exercising their Section 7 rights. However, the Board clarified that it will “interpret the [employer’s] rule from the perspective of an employee who is subject to the rule and economically dependent on the employer, and who also contemplates engaging in protected concerted activity.” The employer’s intent in maintaining a rule is “immaterial.” Rather, if an employee could reasonably interpret the employer’s rule to have a coercive meaning, the General Counsel will have met the required burden, “even if a contrary, noncoercive interpretation of the rule is also reasonable.” As a result, the rule would be presumptively unlawful. However, the employer may rebut that presumption by proving that the rule “advances a legitimate and substantial business interest and that the employer is unable to advance that interest with a more narrowly tailored rule.” If the employer proves its defense, then the work rule would be found lawful.

What does this mean for employers? The primary criticism of the new Stericycle standard is that it creates significant uncertainty for employer policies whose legality turns on whether an employee could reasonably interpret the policy to have a coercive meaning against their Section 7 rights. Similarly, an employer’s defense turns on whether the policy is the most narrowly tailored that it could be to advance the employer’s legitimate business interests. While this change may be concerning, don’t panic!

Most employer policies will likely not be significantly impacted by the new standard. Employers can still require that employees show up on time and do their job without harassing or discriminating against others. Employers must still follow wage and hour and leave laws, and have their policies reflect their compliance. The gray area will come in policies that have the potential to be construed to interfere with employee rights to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, such as social media, employee conduct, solicitation, use of company equipment (e.g., computers, phones, etc.), and cell phone policies.

For those gray areas, employers will need to (1) identify the legitimate business interest that the policy supports, and (2) evaluate whether the policy language is as narrowly tailored as possible to advance those interests. The biggest hiccup with this process is that the new standard applies retroactively. Employers should work with their legal counsel and HR partners to review current policies for potential revision. For those now questionable policies that employers might otherwise enforce, employers should review the circumstances with legal counsel before taking adverse action.

Action Items

  1. Review and update employee handbooks and policies consistent with the new standard.
  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

Ninth Circuit: Sexually Graphic and Violent Music May Constitute Harassment in the Workplace

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All Employers with 15+ Employees in AK, AZ, CA, HI, ID, MT, NV, OR, WA, Guam, and the Northern Mariana Islands

EFFECTIVE

June 7, 2023

  

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  • “Sexually graphic, violently misogynistic” music played constantly and publicly throughout the workplace may constitute harassment under Title VII.
  • The offensiveness of conduct to multiple genders is not a bar to bringing a Title VII claim.

Discussion

In Sharp v. S&S Activewear LLC, the Ninth Circuit Court of Appeals looked at whether music with sexually  derogatory and violent content, played constantly and publicly throughout the workplace, can foster a hostile or abusive environment and thus constitute discrimination because of sex under Title VII of the Civil Rights Act of 1964. The court stated that harassment does not have to be directly targeted at a particular person to give rise to a Title VII claim, and the conduct’s offensiveness to multiple genders is not a bar to bringing a Title VII claim.

There, an employer allegedly permitted its managers and employees to routinely play “sexually graphic, violently misogynistic” music throughout its large warehouse in Reno, Nevada. Employees claimed the music led to abusive conduct by male employees, who frequently pantomimed sexually graphic gestures, yelled obscenities, made sexually explicit remarks, and openly shared pornographic videos. It is important to note that the Equal Employment Opportunity Commission (EEOC) filed a “friend of the court” brief on behalf of the employees supporting the notion that music may be the foundation for a harassment claim.

The court acknowledged that objectionable conduct is not “automatically discrimination because of sex merely because the words used have sexual content or connotations.” However, lyrics loaded with sexually degrading, gender-specific slurs expose female employees to uniquely “disadvantageous terms or conditions of employment.” Moreover, even sexually charged lyrics that are directed at a particular gender may simultaneously offend different genders in unique and meaningful ways. An employer cannot evade liability by cultivating a workplace that is broadly hostile and offensive.

Notably, the court expressly stated that it was not passing judgment on the appropriateness of music in the workplace generally, and it was not categorizing any particular musical genre as misogynistic. Ultimately, it did not make any specific determinations of the facts of the case itself as the ruling only addressed a procedural point on whether or not the case should be able to proceed.

Action Items

  1. Review both audio and visual content shared within the workplace, as well as associated behavior, to ensure employer policies against discrimination and harassment in the workplace are being followed.
  2. Have all personnel trained on appropriate behavior in the workplace.
  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

Eleventh Circuit: Employers Cannot Artificially Reduce Employee Wages to Avoid Paying Overtime

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All Employers with Employees in AL, GA, and FL

EFFECTIVE

May 18, 2023

  

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  • An employer may not artificially manipulate an employee’s regular rate of pay in an effort to reduce or eliminate overtime time.

Discussion

In Thompson v. Regions Sec. Servs., Inc., the Eleventh Circuit said that an employer will violate the federal Fair Labor Standards Act (FLSA), if the employer artificially lowers an employee’s regular rate of pay in an effort to reduce or avoid the employer’s overtime pay obligations.

Here, a security guard was initially hired to work 40 hours a week at a rate of pay of $13.00 per hour. In early 2019, the company began scheduling the security guard for an additional 20 hours per week and for several months of his new schedule, the security guard properly received overtime pay at 1.5 times his regular rate for the additional hours beyond 40 per week. However, in mid-July of 2019, the company reduced the security guard’s regular hourly rate from $13.00 to $11.15 without explanation, which correspondingly reduced the security guard’s overtime rate from $19.00 to $16.73 for each hour beyond 40 hours. After approximately a year of working between 55 and 75 hours at this reduced hourly rate, the security guard was returned to a 40-hour per week schedule and his hourly rate was increased back to $13.00. The security guard filed suit against the company alleging a violation of the FLSA.

In pursuing his claim to the Eleventh Circuit, the security guard argued that his “regular rate” was $13.00 per hour, and that the reduction to $11.15 per hour was just an attempt to avoid paying him the full amount of overtime he was due. Looking to the U.S. Department of Labor’s (DOL) regulations and case law from other circuit courts, the Eleventh Circuit noted that an “‘agreement, practice, or device that lowers the hourly rate during statutory overtime hours or weeks when statutory overtime is worked is expressly prohibited under’ the Department’s interpretive regulations.” The Eleventh Circuit added that this prohibition prevents an employer from indiscriminately manipulating an employee’s hours and pay rate to effectively avoid paying time-and-a-half for overtime.

Because the rationale could vary as to why the security guard’s regular rate was reduced for an eleven-month period, during a period when the security guard was working the majority of his scheduled overtime hours, the Eleventh Circuit overturned the district court’s prior decision in favor of the company, and sent the case back for further consideration.

Action Items

  1. Review reductions in pay to ensure any reduction is related to legitimate business reasons and not to avoid paying overtime.
  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

California: Non-Individual PAGA Claims May be Independently Prosecuted

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All Employers with Employees in CA

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July 17, 2023

  

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  • Non-individual PAGA claims may still be litigated in court, even if the individual portion of the claim has been ordered to arbitration.
  • An unsuccessful individual PAGA claim may lead to dismissal of a non-individual PAGA claim for lack of standing as an aggrieved employee.

Discussion

In 2022, in Viking River Cruises, Inc. v. Moriana, the U.S. Supreme Court said that an arbitration agreement subject to the Federal Arbitration Act (FAA) may separate Private Attorneys General Act (PAGA) actions into (1) individual PAGA claims resolved via arbitration and (2) nonindividual PAGA claims resolved in court. According to the Court, PAGA itself does not allow a representative claim to survive in court without the individual portion of the claim, thereby causing the representative claim to be dismissed. However, in Adolph v. Uber Technologies, the California Supreme Court recently changed this understanding, stating that employees’ non-individual PAGA claims can still be litigated, even when their individual claims are ordered to arbitration.

In disagreeing with Viking River Cruises, the California Supreme Court said an employee compelled to arbitrate their individual PAGA claims still retains standing to litigate the non-individual PAGA claims in court. However, a court may stay the non-individual PAGA claims while the individual PAGA claims are arbitrated. The Court even indicated that a determination by the arbitrator that the individual is not an “aggrieved employee” could cause a court to dismiss the non-individual claims because the individual would not be a qualified representative of the alleged employer violations. Although somewhat of a silver lining, this case highlights the importance of employer vigilance over wage and hour compliance. If individual claims are successful in arbitration, employers will still have to face non-individual claims in court.

While this ruling is another jolt in the ongoing PAGA battle, this is not the end of PAGA’s story. In November 2024, voters will determine whether to enact the “California Fair Pay and Employer Accountability Act of 2024,” which would eliminate PAGA in favor of increased state enforcement of wage and hour laws by the Department of Labor Standards Enforcement (DLSE). In the meantime, employers should have their arbitration agreements reviewed by legal counsel for compliance.

Action Items

  1. Have arbitration agreements reviewed by legal counsel.
  2. Review wage and hour practices for compliance.
  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

California: Employers Are Responsible for Work from Home Expenses

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All Employers with Employees in CA

EFFECTIVE

July 11, 2023

  

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  • Employer responsibility for employee expenses turns on whether they were incurred in direct relation to the employee’s job duties.

Discussion

In Thai v. International Business Machines Corp., the California Court of Appeal stated that employers are liable for employee expenses that are a direct result of fulfilling their job duties, regardless of whether the reason for incurring the expenses comes from the employer directly.

Here, as a result of the Governor’s March 2020 Executive Order mandating that residents stay home because of the COVID-19 pandemic, employees began working from home. This shift in work location caused employees to incur various expenses, such as internet access, telephone headsets and service, and computers and computer accessories. An employee claimed he was not properly reimbursed for these work expenses. Labor Code § 2802(a) requires an employer to reimburse necessary expenses incurred in “direct consequence” of employees’ duties, or when following employer directions. The employer claimed that because the order to work remotely came from the state, the employer did not cause the employee to incur the expenses.

The court ultimately said that Section 2802 does not require the employer to be the direct cause of the expenses, but that reimbursable expenses must be directly related to the employee’s duties. Notably, the work the employees performed was for the employer’s benefit; had the employees been working at the employer’s premises, the costs at issue would have been covered by the employer.

Action Items

  1. Review expense reimbursement practices to ensure compliance.
  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

California: Another Nail in the Coffin for Rounding Practices

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All Employers with Employees in CA

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July 24, 2023

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  • Where employers can and do track employees’ exact time worked, employers cannot use rounding policies, even if neutral, to determine employee pay.

Discussion

In Woodworth v. Loma Linda Univ. Med. Ctr., the California Court of Appeal stated that where an employer can and does track an employee’s exact time, the employee must be paid for their actual time and not based on a rounding policy. Notably, California requires employees to be paid for all actual time worked. Here, an employee claimed she was not properly paid for time worked because the employer rounded employees’ time to the nearest tenth of an hour. The employer claimed that the policy was neutral and there was no systemic advantage to the practice.

This case comes on the heels of the 2022 ruling in Camp v. Home Depot U.S.A. Inc. where the California Court of Appeal stated that if 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. In fact, the Woodworth employer’s computer-based timekeeping system captured the employees’ time to the minute and took the extra step of rounding the time punches. The employee’s evidence showed that she was not paid for 6.3 weighted hours under the rounding policy. Under the circumstances, the court said the employee had to be paid for all time worked.

With the ongoing list of cases disfavoring rounding time, employers must take great care to review their timekeeping practices and rounding policies. A stated consideration in favor of rounding from recent rulings is when employers are unable to track employees’ exact time worked. With today’s technology, that argument seems to be less likely it will be accepted as time goes on. In fact, the issue of rounding time is currently awaiting review by the California Supreme Court. It remains to be seen if rounding will survive at all.

Action Items

  1. Have timekeeping practices and rounding policies reviewed for compliance.
  2. Consult with legal counsel for historical wage and hour corrections.
  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

Connecticut: Mandatory Staffing Plans, Committees, and Reporting Requirements for Hospitals

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Hospital Employers with Employees in CT

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October 1, 2023

  

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  • New Connecticut legislation mandates specific requirements for nurse staffing committees and staffing plans.
  • The Connecticut Department of Public Health will oversee hospital compliance and assess fines for violations.

Discussion

Governor Ned Lamont recently signed HB 6941 which creates new requirements for Connecticut hospitals with respect to nurse staffing plans, staffing committees, reporting requirements, civil penalties for non-conforming hospitals and the right of nurses to object to participating in certain hospital activities.  Effective October 1, 2023, the changes brought by the new law are summarized below. The legislation affects both unionized and non-unionized hospitals.

Creation of Hospital Staffing Committees for Nurse Staffing Plans

Under the new law, Connecticut hospitals are required to dedicate a staffing committee to develop annual nurse staffing plans. The committee must be comprised of at least 50% direct care registered nurses (RNs) employed by the hospital as well as non-direct care RNs and a “broad base” of representatives “across hospital services.” The committee’s membership selection will depend on whether the hospital is unionized or not; however, in both unionized and non-unionized hospitals, the staffing committee is required to have two co-chairpersons with direct patient care experience. One chair will be elected by the committee’s direct care RNs and the other chair will be elected by committee members who are not direct care RNs.

Employees who are selected to serve on the staffing committee must be compensated at their regular pay rate, including differentials, for their time spent serving on the committee. Under the legislation, hospitals are asked to treat time spent serving on the committee as part of an employee’s regularly scheduled work week to the extent possible, although this is not a direct mandate.

Responsibilities of the Hospital Staffing Committee

Each staffing committee will be tasked with evaluating research about patient outcomes, sharing procedures for communicating concerns about the staffing plan and staffing assignments, and reviewing all reports communicated to the committee about these concerns or any RN objection or refusal to participate in a particular staffing assignment.

The new law also sets forth procedures required for conducting committee business. Specifically, a majority of the committee must be present, and the committee must take minutes of each meeting. Additionally, upon request, the committee must make the minutes available to any hospital staff member or to the Connecticut State Department of Public Health (DPH).

Hospital Notice and Recordkeeping Requirements Pertaining to Staffing Committees

At the time of hire, and annually each year after, the hospital must inform nurses about the staffing committee. This notice should include the staffing committee’s purpose, the criteria and process for becoming a member, the hospital’s internal review process for the nurse staffing plan, and how input is obtained from direct care RNs and other members of patient care teams in developing the plan.

Additionally, hospitals must maintain accurate records of the ratios of patients to direct care RNs and patients to assistive personnel providing patient care in each direct care unit for each shift. These records must be maintained for at least the three preceding years, and must include the number of: (1) patients in each unit on each shift, (2) direct care RNs assigned to each patient in each unit on each shift, and (3) assistive personnel providing patient care assigned to each patient in each unit on each shift. Upon request, these records must be made available to the DPH, hospital staff, patients, collective bargaining representatives, and/or the public.

Submission of Staffing Plans and Reporting Requirements to DPH

Hospitals must submit their proposed nurse staffing plans to DPH on a semi-annual basis, by January 1 and July 1. The proposed plan must include written certification that the plan is sufficient to provide adequate and appropriate patient health care services. Hospitals are also required to post the plans on each patient care unit in a location that is accessible and visible to staff, patients, and the public.

Beginning January 1, 2024, each proposed plan must include: (1) information about any objections to or refusals to comply with the nurse staffing plan by hospital staff that were communicated to the hospital staffing committee; (2) measurements of and evidence to support successful implementation of the nurse staffing plan; (3) retention, turnover and recruitment metrics for direct care RN staff; (4) each time since the last plan was submitted that the hospital was non-compliant with the plan, including nurse staffing ratios, a description of how and why the hospital was non-compliant, and the hospital’s plans to avoid future noncompliance; and (5) certification that the hospital and its hospital staffing committee are meeting the law’s requirements, with a description of how each requirement is being met.

Hospitals must report twice a year to DPH regarding their compliance with nurse staffing assignments as outlined in the nurse staffing plans. This reporting obligation begins October 1, 2024. If the DPH receives complaints of noncompliance, it will investigate and, if necessary, issue orders that require the hospital to implement corrective action plans and pay civil fines.

RN Objections to Participation

Under the new law, hospitals cannot require RNs to perform patient tasks that are beyond the scope of their license, training, or experience. If required to do so, RNs can object to such assignments, unless their objection/refusal occurs: (1) during an ongoing surgical procedure (RNs must wait until it is completed); (2) in critical care units, labor and delivery, or emergency departments (RNs must wait until they are relieved by another nurse); (3) public health or institutional emergencies; and (4) where the RN’s inaction or abandonment would jeopardize patient safety.

RNs who plan to object to refuse an assignment must immediately notify a supervisor to coordinate a suitable replacement. Within 12 hours of objecting, the objecting/refusing RN must submit a written report on a form developed by the hospital and approved by DPH.

Hospitals are prohibited from taking adverse action against an RN for objecting or refusing to perform patient tasks outside of their expertise/experience. However, a hospital, DHP, or the State Board of Examiners for Nursing may require a nurse to complete additional training or education consistent with the nurse’s job description.

Action Items

  1. Review the full committee selection and staffing plan requirements here.
  2. Develop the required RN objection and/or refusal of assignment form, with approval from DPH.
  3. Review and revise policies and procedures to be consistent with new staffing committee requirements, notice obligations, and recordkeeping requirements.
  4. Consult with legal counsel regarding existing labor-management procedures to ensure compliance with any applicable staffing plans developed under the new law.
  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. © 2023 ManagEase

Connecticut: Roundup of 2023 Legislative Session

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All Employers with CT Employees

EFFECTIVE

As Indicated

  

QUESTIONS?

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Quick Look

  • Connecticut employees have expanded reasons to use the State’s Paid Sick and Safe Leave Law.
  • Non-compete agreements for physicians, APRNs, and PAs have additional restrictions.
  • All employees, in addition to first responders, can receive workers’ compensation benefits for post-traumatic stress injuries.
  • The nondiscrimination statute adds age as a protected class and there is a refined definition of sexual orientation.

Discussion

The 2023 Connecticut Legislative Session included important expansions for employee. The most significant updates are:

Expansion of Paid Sick and Safe Leave. Effective October 1, 2023, Connecticut employees have additional reasons to use the State’s Paid Sick and Safe Leave Law. SB 2 expanded protections for service workers. Service workers can use sick leave for a mental health wellness day or a day where the individual addresses their emotional and psychological well-being rather than working a regularly scheduled shift. Also, service workers can take leave if they are a victim of family violence or sexual assault or if they are the parent or guardian of a child who is a victim to: 1) obtain medical care or psychological or other counseling for physical or psychological injury or disability; 2) obtain services from a victim services organization; 3) relocate due to family violence or sexual assault; or 4) participate in any civil or criminal proceedings related to or resulting from family violence or sexual assault. Employers should update their leave policies and train appropriate personnel as necessary.

Healthcare Professional Non-Compete Agreements Restricted Further. Effective October 1, 2023, physicians’, advanced practice registered nurses’ (APRNs), and physician assistants’ (PAs) non-compete agreements have restrictions. SB 9 further restricted physician non-compete agreements and extended those protections to APRNs and PAs. Now, physician non-competes that are entered into, amended, extended or renewed after the law’s effective date will not be enforceable if: 1) the physician does not agree to proposed material changes to compensation terms prior to or at the time of extension or renewal; and 2) the agreement expires and is not renewed by the employer or the relationship is terminated by the employer without cause. The new requirements do not apply to group practices that are majority owned by physicians and have less than 35 physicians. Now APRNs and PAs have the same statutory protections for non-competes as of the effective date. Employers should consult with their legal counsel to make sure their restrictive covenants comply with the new requirements.

State Health Insurance Offered to Striking Employees. Effective October 1, 2023, Public Act. No. 23-172 will create a special enrollment period for employees whose health care coverage is terminated by an employer because of a strike, lockout, or other labor dispute. It will allow employees engaged in labor disputes to enroll in health insurance through Access Health CT, the state’s health insurance exchange. Previously, employees who lost employer-sponsored health insurance for participating in labor disputes could not enroll in state health insurance programs.  The amendment now permits the exchange to offer such employees an enrollment period not otherwise provided by federal regulations under the Affordable Care Act (ACA).

PTSD Workers’ Compensation Benefits. Effective January 1, 2024, Substitute Bill 913 will expand workers’ compensation coverage to employees with post-traumatic stress injuries. The definition of “employee” will include all employees and not just first responders. The qualifying events for such benefits includes: 1) viewing a deceased minor; 2) witnessing the death of a person or an incident involving the death of a person; 3) witnessing an injury to a person who subsequently dies before or upon admission at a hospital as a result of the injury; 4) having physical contact with and treating an injured person who subsequently dies before or upon admission at a hospital as a result of the injury; 5) carrying an injured person who subsequently dies before or upon admission at a hospital as a result of the injury; and 6) witnessing a traumatic physical injury that results in the loss of a vital body part or a vital body function that results in permanent disfigurement of the victim.

Update of Non-Discrimination Statute. Effective July 1, 2023, HB 6638 adds age as a protected characteristic under the non-discrimination statute rather than prohibiting age discrimination in a separate section. Sexual orientation also has a revised definition as “a person’s identity in relation to the gender or genders to which they are romantically, emotionally, or sexually attracted, inclusive of any identity that a persona may have previously expressed or is perceived by another person to hold.”

Action Items

  1. Update leave policies for expanded requirements under PSL.
  2. Review and revise restrictive covenants for physicians, APRNs, and PAs with legal counsel.
  3. Review and update health and safety procedures to reduce the risk of a PTSD qualifying event.
  4. Review and update discrimination and harassment policies, if needed.
  5. Train appropriate personnel 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

Delaware: Guidance Issued for State PFML Program

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APPLIES TO

Employers with 10+ Employees in DE

EFFECTIVE

As indicated

  

QUESTIONS?

Contact HR On-Call

(888) 378-2456
Quick Look

  • Delaware Department of Labor Division of Paid Leave has published the first set of interpretive rules in anticipation of the state’s upcoming family and medical leave program.
  • The rules provide guidance on determining employer and employee coverage, the duration and amount of benefits available, and employee notice obligations.
  • The rules also provide a detailed explanation of how employers can apply for: (1) a private plan in lieu of the state program; or (2) an exemption from coverage based on a pre-existing comparable private paid time off benefit plan.

Discussion

In 2022, Delaware enacted the Healthy Delaware Families Act (HDFA), creating a paid family and medical leave requirement for Delaware employers. As enacted, the obligation to provide paid benefits under the program does not begin until January 1, 2026, with employer and employee contributions beginning on January 1, 2025.

On July 11, 2023, and in anticipation of the HDFA’s effective date, the Delaware Department of Labor Division of Paid Leave (Division) published the first set of rules regarding the PFML program, which are summarized below.

Covered Employers and Employees

The HDFA applies to employers with 10 or more employees in Delaware. Employers with 10 to 24 employees in Delaware, however, are only required to comply with law’s Parental Leave requirements. Employers with 25 or more employees in Delaware are subject to all PFML requirements. As outlined in the rules, employers should determine whether they meet either the 10-employee or 25-employee coverage threshold by counting the number of employees over the preceding 12-month period

“Covered employees” include individuals who (1) work primarily at a worksite in Delaware (i.e., spend at least 60% of their working hours physically in Delaware) and (2) meet or are reasonably expected to meet the employee eligibility requirement of 12-months of service and 1,250 hours of service within the previous 12-month period. “Reclassified” employees must be counted but employees who are covered by a waiver of coverage are not. The rules define under what circumstances an employer may “reclassify” employees, as well as what is required to establish a waiver of coverage.

Once an employer meets either the 10-employee or 25-employee coverage threshold, the employer will remain subject to the program for at least 12 consecutive months. After the 12-month period, and with a covered employee count below either the 10 or 25-employee coverage threshold, the employer will no longer be obligated to comply with the applicable provisions of the HDFA. However, employers with 10 to 24 employees may voluntarily “opt in” to allow its employees to access PFML benefits for family caregiver leave, medical leave, or qualified exigency leave through the program. Employers must provide notice to employees who gain or lose coverage under the HDFA due to the change in their employer’s headcount.

Reasons for Use and Duration of Benefits

The rules categorize the PMFL benefits into four different areas of coverage:

  • Parental Leave – leave authorized for time off within the first year after birth, adoption, or placement through foster care of a child.
  • Family Caregiving Leave – Leave authorized for time off in the event of a serious health condition (illness or accident) of a child, spouse, or parent.
  • Medical Leave – Leave authorized for time off in the event of the employee’s serious health condition.
  • Qualified Exigencies – Leave authorized for time off for qualified issues that arise in connection with a military deployment.

Employees are eligible to receive up to 6 weeks of PFML in a 24-month period to be used for Family Caregiving Leave, Medical Leave, or Qualified Exigencies. The 24-month period is the 24-month period that begins on the first day of the requested leave.

Employees are eligible for up to 12 weeks of PFML in an application year to be used for Parental Leave. The “application year” is the employer’s designated 12-month period for leave under the federal Family Medical Leave Act (FMLA). If employees are combining Parental Leave with another line of coverage, employees are eligible for a maximum of 12 weeks of PFML in an application year.

The rules provide that employers with 10 to 24 employees may temporarily reduce the Parental Leave maximum benefit duration from 12 weeks to a minimum of 6 weeks for claims submitted prior to January 1, 2031. To qualify for this option, employers must notify the Division of their intention to do so by January 1, 2024, and they must notify their employees of this decision in writing no later than December 1, 2024.

Additionally, employees who are on Family Caregiving Leave for a family member who dies must notify the Division of the date of the family member’s death within 72 hours of the person’s passing. The Division may then continue to pay PFML benefits until seven days after the death of the family member or the previously approved end date for the leave.

The rules indicate that the Division will approve PFML benefits for leave taken on an intermittent or reduced schedule basis, but only when it is medically necessary and supported by documentation. PFML benefits are payable in increments as small as one workday, so if an employee is approved for and takes intermittent FMLA in smaller increments (i.e., 2 hours), the employee will not be eligible for PFML benefits during that absence. The rules do not address the possibility of taking Parental Leave intermittently.

Payroll Contributions and Amount of Benefits

Payroll contributions will begin on the later of either January 1, 2025, or the first day of the payroll period after the employer meets or exceeds the 10 or 25-employee coverage threshold. Payroll contributions will be submitted to the Division on a quarterly basis.

Employers must contribute 50% of the total contribution, but they may elect to contribute more. If an employer decides to contribute more than 50%, the employer must file a change with the Delaware DOL and provide notice to all affected employees by December 15 of the year prior to the January 1 effective date the following year.

Employee Notice Obligations

Under the rules, employees generally should provide employers with at least 30 days’ advance notice of a need for leave under the HDFA. If 30 days’ notice is not practicable, because of a lack of knowledge, a change in circumstances, or a medical emergency, notice must be given as soon as practicable, considering all the facts and circumstances of each individual case.

If the need for leave was clearly foreseeable to the employee at least 30 days in advance of the leave but the employee fails to give timely advance notice with no reasonable excuse, the employer may delay coverage until 30 days after the employee provides notice.

Private Plans

As with most other PFML programs across the country, employers may opt to use a private PFML plan rather than the state’s PFML program. The private plan must provide the same or greater rights, protections, and benefits to employees as they would receive under the state program. Employers may require employees to contribute to the private plan, but not more than what employees would have contributed under the state plan. Employers may also opt for a hybrid approach which may include combining a private plan for certain lines of coverage with the state PFML program for the remaining lines of coverage.

The application for submitting a proposed private plan for substitution will be opened on September 1, 2024. Applications to substitute a private plan for calendar year 2025 must be submitted by December 1, 2024.

Exemptions from Coverage for Pre-Existing Policies

Under the rules, employers that offered private paid time off benefit plans that were in place before May 10, 2022, may be exempt from compliance with the HDFA until December 31, 2029 if their plan is deemed “comparable” to the state’s public plan and they were made available to all employees. To qualify for this exemption, employees may not be required to contribute more to the employer’s “grandfathered” plan than what they would be required to continue under the state PFML program. Additionally, the grandfathered plan’s benefit percentages, maximum benefits, and benefit duration must be within 10% of the state PFML components.

Any grandfathered plan cannot be altered unless the change improves the benefit offered to employees and is approved by the Division. The deadline for submitting grandfathering applications is January 1, 2024. The application will be made available on October 1, 2023.

Action Items

  1. Review the Delaware Department of Labor website for more information on the PFML program.
  2. Revise policies and train appropriate personnel on paid time off procedures.
  3. Consult with counsel regarding any potential “grandfathered” exemptions or substitution of private plans.
  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