Georgia: Non-Solicitation Agreements Must Include Geographic Limitation

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June 12, 2023

  

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  • Non-solicitation provisions must contain a geographic limitation to be enforceable in Georgia.

Discussion

In North American Senior Benefits, LLC v. Wimmer, the Georgia Court of Appeals clarified that an employee non-solicitation agreement must contain an express geographic limitation to be enforceable. Here, an insurance marketing company sued two former independent agents for violating their agent contracts. The contracts prohibited the agents from soliciting any employee, agent, or independent contractors of the company for two years after the termination of their contract. The plaintiff company alleged the former agents were poaching its employees and sued for breach of the agent contracts.

The Georgia Restrictive Covenants Act (Act) requires restrictive covenants to be reasonable in time, geographic area, and scope of prohibited activities. Although trial courts in Georgia interpret this language to apply to non-solicitation agreements, this is the first time the issue has been addressed at the appellate level. The court agreed with the trial court that the agent contracts did not contain a geographic limitation to the non-solicitation provision and therefore was not enforceable. The court also refused to “blue pencil” the provision since doing so would materially alter the restriction rather than narrowing it or removing impermissible language. The ruling is being appealed but, for now, employers should consider including a geographic limitation to help enforcement  of non-solicitation provisions in the interim.

Action Items

  1. Review and revise non-solicitation provisions with legal counsel.
  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

Hawaii: New Pay Transparency Requirements for Hawaii Employers

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January 1, 2024

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  • Effective January 1, 2024, employers in Hawaii are required to disclose an hourly rate or salary range that reasonably reflects the actual expected compensation for the job for each job listing.
  • Hawaii’s equal pay law is expanded to prohibit pay discrimination on the basis of any protected characteristic under Hawaii law.
  • Under Hawaii’s revised equal pay law, employees must receive equal pay if they are performing “substantially similar” work.

Discussion

On July 3, 2023, Hawaii Governor Josh Green signed SB 1057, requiring pay transparency in Hawaii job postings. Under the law, and effective January 1, 2024, Hawaii employers with 50 or more employees will be required to disclose an hourly rate or salary range that reasonably reflects the actual expected compensation for the role in each job listing.  Notably, the law does not define “hourly rate” or “salary range,” and it does not require employers to disclose pay information in job listings for positions that are internal transfers or promotions within the company.

The law explicitly excludes job listings for positions with employers that have fewer than fifty employees and public employee positions for which salary, benefits or other compensation are determined pursuant to collective bargaining.  Additionally, the law does not specify whether the 50-employee threshold refers to employees within Hawaii or to a company’s total employee count. Employers will want to monitor interpretations in this regard, prior to and following the law’s effective date.

Aside from pay transparency, SB 1057 also amends Hawaii’s equal pay law in two significant ways. First, the equal pay law will now prohibit pay discrimination based on any protected category under Hawaii law, not just sex. This includes pay discrimination based on race, sex (including gender identity or expression), sexual orientation, age, religion, color, ancestry, disability, marital status, arrest and court record, reproductive health decision, or domestic or sexual violence victim status.

Second, SB 1057 adopts a different standard for comparing employees for purposes of analyzing differentials in employee pay. Hawaii’s previous equal pay law tracked the federal Equal Pay Act, applying the “equal work” standard, which requires employee to establish that they were paid less than another employee for “equal work on jobs the performance of which requires equal skill, effort, and responsibility, and that are performed under similar working conditions.” The amendment broadens the protections to allow comparison of employees who are performing “substantially similar work” rather than “equal work.” Both amendments to the equal pay law are effective January 1, 2024.

Action Items

  1. Have an audit conducted of employee job descriptions and compensation rates to confirm compliance with the new requirements.
  2. Update job postings to comply with pay transparency requirements.
  3. Train appropriate personnel on job posting and equal pay requirements.
  4. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2023 ManagEase

Louisiana: New Employee Leave for Genetic Testing and Cancer Screening

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Employers with 20+ Employees in LA

EFFECTIVE

August 1, 2023

  

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  • Effective August 1, 2023, employers with 20 or more employees are required to provide a day’s leave of absence from work to employees who require medically necessary genetic testing and cancer screenings.

Discussion

Effective August 1, 2023, employers with 20 or more employees are required to provide a day’s leave of absence from work to employees who require medically necessary genetic testing and cancer screenings. Enacted under SB 200, the new law also prohibits employers from discriminating or retaliating against employees who take such leave.

To be eligible for leave under the new law, the employee’s testing must be “reasonably necessary to diagnose, correct, cure, alleviate, or prevent the worsening of a condition or conditions that endanger life, cause suffering or pain, or have resulted or will result in a handicap, physical deformity, or malfunction, and those for which no equally effective and less costly course of treatment is available or suitable for the recipient.” Services that are investigational, cosmetic, or experimental and not approved by the Federal Drug Administration are not considered medically necessary.

Employees requesting leave under the law should give at least 15 days’ notice to their employer prior to taking leave, and should make reasonable efforts to schedule the leave in a manner that does not cause an undue disruption to the employer’s operations. Employees may be required by their employer to provide documentation confirming the performance of the genetic testing and/or cancer screening. However, employees are not required to disclose the results of the test or screening and employers should not ask for such results. Leave under the new law is unpaid, however, employees may elect to substitute any accrued paid time off that the employer provides.

Action Items

  1. Review and revise leave and discrimination policies.
  2. Train appropriate personnel on new leave requirements.
  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

Maine: New Paid Family and Medical Leave Requirement for Maine Employers

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May 1, 2026

  

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  • Beginning May 1, 2026, Maine’s new paid family and medical leave law will provide employees with up to 12 weeks of paid family and medical leave benefits over a one-year period.
  • PFML benefits are financed through premium contributions from both employers and employees, which will begin on January 1, 2025.
  • Maine’s PFML law will cover virtually all Maine employees, including public employees (except federal government employees), as well as self-employed Mainers and tribal government employees.
  • Employers can expect more detailed guidance and regulations to be published by the Maine Department of Labor prior to the Act coming into effect.

Discussion

Beginning May 1, 2026, Maine’s new paid family and medical leave law will provide employees with up to 12 weeks of paid family and medical leave benefits over a one-year period. Employers can likely expect additional guidance to be issued by Maine’s Department of Labor prior to the effective date of the PFML program, however, employers should begin preparations for implementing the program now. Highlights of the new law are summarized below.

PFML Program Financing. The program’s benefits will be financed through a mandatory “premium” based on employee wages of up to 1%, which will be split evenly between employee and employer. Maine employers with fewer than 15 employees will not be subject to the payment of the employer’s portion of the premium, however, they will still be required to collect and pay the employee portion. Although the overall PFML program will not start until May 1, 2026, Maine employers and employees will begin paying the benefit premiums on January 1, 2025.

Employee Eligibility. Defined broadly, a “covered individual” under the new law includes all Maine employees who earn at least six times the state average weekly wage subject to premiums during the prior year. Exceptions exist for tribal employees, the self-employed, and employees subject to collective bargaining agreements.

Employee Notice Requirement and Reinstatement. In order to take leave under the Maine PFML law, employees must provide reasonable notice to the employer of their intention to take leave and the leave must be scheduled in such a way to avoid imposing an undue hardship on the employer (with certain exceptions for unforeseen emergencies). Employees taking PFML that have been employed for longer than 120 days must be returned to the same or equivalent position upon their return from leave.

Employee Benefit Entitlement. The program will pay covered employees “the portion of the covered individual’s average weekly wage that is equal to or less than 50% of the state average weekly wage” at a rate of 90%. Additionally, the program will pay covered employees “[t]he portion of the covered individual’s average weekly wage that is more than 50% of the state average weekly wage” at a rate of 66% up to the maximum weekly benefit of 100% of the average weekly wage. Leave under the program will run concurrently with leave under the federal Family and Medical Leave Act.

Covered Reasons for Leave. Paid leave is provided for the same list of reasons outlined under Maine’s unpaid Family and Medical Leave law. This includes: (1) to bond with the covered individual’s child during the first 12 months after the child’s birth or the placement of the child for adoption or foster care; (2) to care for a family member with a serious health condition, including persons of significant personal bond regardless of biological or legal relationship; (3) to attend to a qualifying exigency; (4) to care for a family member who is a covered service member; (5) to take safe leave; (6) for a serious health condition of the covered employee; (7) for donation of an organ by the employee; or (8) for the death of a close family member if the family member dies or incurs a serious health condition while on active service duty.

Employer Notice Requirements. The Maine DOL is in the process of developing a required poster outlining employee rights under the PFML law. Once the poster is issued and the PFML law goes into effect, Maine employers will be required to display the poster in a conspicuous place in the workplace. Maine employers are similarly required to notify new employees in writing of their rights under the PFML law within the first 30 days of employment.

Effect on Employer Private Plans. Like the separate Maine Earned Paid Leave program, Maine employers will be permitted to substitute their own private plans in place of participation in the state PFML program. Such private plans must provide the same or greater rights, protections, and benefits to employees as they would receive under the state program. If electing to do so, Maine employers are required to seek approval from the Maine DOL in order to substitute their own private plans.

Action Items

  1. Review the full Maine PFML program requirements here.
  2. Monitor Maine’s DOL website for additional information and guidance on the PFML program.
  3. Review current paid leave policies and procedures, and consult with legal counsel regarding implementation of PFML program and compliance with updated obligations.
  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

Maine: Recent Legislative Updates

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October 25, 2023

  

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  • Maine enacts law to raise the damages cap for violations of the state’s anti-discrimination law.
  • Maine expands the state’s Equal Pay Law to include race as a protected category.
  • Maine Workers’ Compensation Act is amended to permit certain individual
  • Non-tipped restaurant employees in Maine are permitted to participate in tip-pooling.
  • Maine bans noncompete agreements for veterinarians.
  • Maine employers cannot take adverse action against an employee who declines to attend or to participate in an employer-sponsored meeting if the purpose of the meeting is to communicate the opinion of the employer about religious or political matters.

Discussion

In addition to the passage of its PFML law, and as part of its 131st legislative session, Maine has passed several other laws that either create new rights for employees or substantially amend existing laws that affect employee rights. As part of the First Special Session, the following laws are set to take effect on October 25, 2023, unless otherwise indicated, so employers should work to revise their policies and practices as soon as practicable.

Increases to the Maine Human Rights Act Damage Caps. L.D. 1423 will increase the limits on potential compensatory and punitive damages awards for violations of Maine’s Human Rights Act (MHRA). The new legislation follows recent case law in Maine and the First Circuit that allows “stacking” of state and federal statutory damages, meaning plaintiffs may be able to recover damages under both federal and state law for the same offense. The increases to the maximum limits on compensatory and punitive damages under the MHRA are as follows:

  • 15-100 Employees: $100,000, raised from $50,000 (potentially $150,000 if combined with the federal cap)
  • 101-200 Employees: $300,000, raised from $100,000 (potentially $400,000 if combined with the federal cap)
  • 201-500 Employees: $500,000, raised from $300,000 (potentially $700,000 if combined with the federal cap)
  • More than 501 Employees: $1 million, raised from $500,000 (potentially $1.3 million if combined with the federal cap)

Right to Sue Letters Under the Maine Human Rights Act. L.D. 1001 will allow the Maine Human Rights Commission (MHRC) to issue a right-to-sue letter without request from the complainant. The MHRC may now issue a right-to-sue letter on or after the 181st day following the filing of a complaint with the Commission. The amended law further provides that plaintiffs may not be awarded attorneys’ fees, civil penal damages, or compensatory and punitive damages under the MHRA, unless they establish that they received a right-to-sue letter from the MHRC before filing the civil action.

Maine Equal Pay Law. L.D. 1703 expands the Maine Equal Pay Law to prohibit discrimination in pay on the basis of race, in addition to the law’s previous prohibition of sex-based pay discrimination. The amended legislation prohibits employers from discriminating “between employees in the same establishment on the basis of race” by paying an employee less than what the employer pays to any other employee in the state “of another race for comparable work on jobs that have comparable requirements relating to skill, effort[,] and responsibility.”

Maine Workers’ Compensation Act. L.D. 53, enacted without the Governor’s signature, amends Maine’s workers’ compensation law to provide that an employee, supervisor, or officer or director of an employer may be individually liable for sexual harassment, sexual assault or an intentional tort related to sexual harassment or sexual assault.  The law also provides that workers’ compensation remains the exclusive remedy for intentional torts with respect to an employer itself, including intentional torts related to sexual harassment or assault like intentional infliction of emotional distress or invasion of privacy. However, now individuals may also be liable for such torts.

Tip Pooling for Restaurant Workers. L.D. 903 will allow non-tipped restaurant employees, including non-service employees such as dishwashers and cooks, to participate in tip-pooling, as long as all participating employees are being paid the minimum hourly wage and employers are not using the Federal Insurance Contributions Act tip credit.

Noncompete Ban for Maine Veterinarians. L.D. 688 will prohibit employers from requiring or permitting licensed veterinarian employees from entering into noncompete agreements, unless the veterinarian employee has an ownership interest in the business. The law will apply retroactively, prohibiting courts from enforcing such noncompete agreements entered into prior to the effective date of the legislation.

Limits on Mandatory Employer-Sponsored Meetings. L.D. 1756 prohibits an employer from taking any adverse employment action against an employee because the employee declines to attend or to participate in an employer-sponsored meeting or declines to receive or listen to a communication from the employer if the employer’s purpose is to communicate the opinion of the employer about religious or political matters. The law defines “political matters” as “matters relating to elections for political office, political parties, proposals to change legislation, proposals to change rules or regulations, proposals to change public policy and the decision to join or support any political party or political, civic, community, fraternal or labor organization.” Additionally, the law defines “religious matters” as “matters relating to religious belief, affiliation and practice and the decision to join or support any religious organization or association.” The law contains limited exemptions for religious employers.

Action Items

  1. Update policies and train appropriate personnel on equal pay requirements.
  2. Review and revise wage and hour policies pertaining to tipped and non-tipped workers, if applicable.
  3. Review noncompete agreements with legal counsel to ensure compliance.
  4. Review policies and procedures pertaining to employer-sponsored events to ensure compliance with updated restrictions.
  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

New York, NY: New Guidance for AI Regulations

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June 29, 2023

  

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  • New York City employers using automated employment decision tools (AEDTs) in hiring and promotion decisions must adhere to specific requirements and limitations.
  • The New York City Department of Consumer and Worker Protection released a set of FAQs explaining how the law applies.

Discussion

The New York City Department of Consumer and Worker Protection (DCWP) released a set of FAQs clarifying NYC Local Law 144. The law regulates the use of automated employment decision tools (AEDTs) in hiring and promotion decisions. The law went into effect on January 1, 2023 with enforcement beginning on July 5, 2023. During the draft, review, and revision process of the regulations implementing the law, the DCWP held a series of roundtables to address the concerns and questions about the law. The FAQs are a direct result of the roundtables. The FAQs’ key clarifications are:

Definition of “In the City.” The law applies to those who use AEDTs “in the city.” Employers are covered if: 1) the job location is an office in NYC, even if part-time; 2) the job is fully remote, but the location associated with the job is an office in NYC; or 3) the location of the employment agency using the AEDT is NYC or, if outside NYC, the first or second points on this list are true. For employers, this means the job must be tied to an NYC location. However, for employment agencies, it appears that the law would apply to all jobs if the employment agency is located in NYC.

Resume Banks or Inviting Applications. Using an AEDT to scan a resume bank, conduct outreach to potential candidates, or inviting applications does not trigger applicability of the law. The requirements only apply when assessing particular candidates for a specific position for hire or promotion.

Bias Audits. Bias audit results do not require any specific actions be taken by the employer subsequent to the results. Further, a bias audit does not need to be specific to a job or class but can span multiple types of positions.

Selective Improvement of Bias Audit Result. There was some concern that employers might exclude data from certain time periods or geographies to improve the results of a bias audit. The FAQs make clear that if a data set is limited in any way, then the audit must provide an explanation as to why it was limited.

Action Items

  1. Review the FAQs.
  2. Determine whether AEDTs are used in the hiring or promotion process.
  3. Train appropriate personnel on the requirements.
  4. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2023 ManagEase

New York: State WARN Act Regulations Updated

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All Employers with NY Employees

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June 21, 2023

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  • Updates to NY WARN Act regulations mirror the Federal WARN Act and create additional requirements before plant closing, mass layoff, relocation, or a reduction in work hours.

Discussion

The New York State Department of Labor (NYSDOL) issued its final updated regulations to the New York State Worker Adjustment and Retraining Notification Act (NY WARN Act). The NY WARN Act is more strict than its federal counterpart and has additional definitions for what constitutes a mass layoff. The updates address how to count remote employees, transferring employees as a condition of a purchase agreement, and additional notice requirements. The key changes are the following:

Covered Employer. Employers must now count full-time remote employers who are based at the employment site and not just the employees who are physically at a single site of employment in order to assess whether the employer meets the 50-employee count for applicability.

Notice Requirements. NY WARN requires notice to both the New York Commissioner of Labor and to affected employees. These notices now have additional required content. The notice to the Commissioner must now include: 1) business addresses and email addresses for the employer’s and employees’ agents; 2) the personal telephone numbers, personal email addresses (if known), work locations, part-time/full-time status, method of payment (i.e., hourly, salary, or commission basis), and union affiliation for each affected employee; 3) the total number of full-time employees in New York State and at each affected site, as well as the number of affected employees at each affected site; and 4) the total number of part-time employees in New York State and at each affected site, as well as the number of affected employees at each affected site.

The notice to affected employees must now include additional information, if known: 1) information on severance packages or financial incentives for employees who work until the effective date of the layoff; 2) available dislocated worker assistance; 3) estimated duration of any temporary layoff; 4) complete legal business name and any business names used in the operation of the business; 5) address of the affected employment site; 6) separation date; and 7) business address and email address of the employer’s agent.

In addition to these changes, employers also now have to provide notice to the following entities that are located near the site of employment: the chief elected official of the unit or units of local government; the school district; and the locality that provides police, firefighting, emergency medical or ambulance services, or other emergency services.

Exceptions to NY WARN. If a transfer of employees is part of a purchase agreement, the seller is relieved of liability if the purchaser does not provide employees with required notice. NY WARN already permits employers to give less than the full 90-days’ notice to affected employees but additional changes now clarify: 1) the faltering company exception is applicable only to plant closing; and 2) the unforeseeable business circumstances exception now includes public health emergencies resulting in a sudden and unexpected closure, like a pandemic, or a terrorist attack that directly affects operations.

Employers must request an exception from the Commissioner. The request must be submitted within 10 days of providing the required notice to the Commissioner. Documentation supporting the exception includes: 1) a statement explaining the reasons for the layoff, closure, or hours reduced; 2) description of why a shorter notice period is required; and 3) and an affidavit signed under penalty of perjury confirming that the documentation and statements are true and correct. The Commissioner has the right to conduct an investigation to determine whether an exception is applicable.

Action Items

  1. Review the updated regulations here.
  2. Consult with legal counsel prior to implementing a plant closing, mass layoff, relocation, or a reduction in work hours.
  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

Oregon: Amendments to Paid Leave Oregon

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  • Amendments to OFLA regarding the definition of a covered family member and the calculation of leave now align with the requirements under Paid Leave Oregon.

Discussion

SB 999 amended the Oregon Family Leave Act (OFLA) to align it with the benefits under Paid Leave Oregon. Effective September 3, 2023, the definition of a covered family member under OFLA is expanded to cover: 1) spouse; 2) a child of the covered individual or the child’s spouse or domestic partner; 3) the parent of a covered individual or the parent’s spouse or domestic partner; 4) a sibling or stepsibling of a covered individual or stepsibling’s spouse or domestic partner; 5) a grandparent of a covered individual or the grandparent’s spouse or domestic partner; 6) a grandchild of a covered individual or the grandchild’s spouse or domestic partner; and 7) the domestic partner of a covered individual. In addition, “any individual related by blood or affinity whose close association with a covered individual is the equivalent of a family relationship” is also covered. Additional rules will be provided by the Bureau of Labor and Industries (BOLI) to provide factors that would establish a “significant personal bond.”

The amendment also requires employers to move to a rolling-forward leave year no later than July 1, 2024. OFLA defines a leave year as any consecutive 12-month period. However, Paid Leave Oregon defines a benefit year as a rolling-forward calculation beginning on the Sunday immediately preceding the date on which benefits start. The amendment will align the benefit periods under OFLA and Paid Leave Oregon to run concurrently. Employers can choose to use a consecutive 12-month period to define the OFLA leave year for now but will need to migrate to a rolling-forward calculation by July 1, 2024. It may be necessary to review leave calculations under the Family Medical Leave Act (FMLA) to make sure all leave year calculations are aligned.

Action Items

  1. Review and revise leave policies for alignment.
  2. Train appropriate personnel on the requirements.
  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

August Updates

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Varies

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Varies

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EEOC: Updated Technical Guidance Released on Visual Disabilities in the Workplace

On July 26, 2023, the Equal Employment Opportunity Commission (EEOC) released updated technical guidance explaining how the Americans with Disabilities Act (ADA) applies to job applicants and employees with visual disabilities, such as blindness, visual impairments, or other vision-related conditions. The guidance outlines when an employer may ask an applicant or employee questions about their vision, how an employer should treat voluntary disclosures about visual disabilities, how an employer should handle safety concerns about applicants and employees with visual disabilities, and how an employer can ensure that no employee is harassed because of a visual disability. The updated guidance also explains what types of reasonable accommodations those with visual disabilities may need in the workplace, and highlights new technologies for reasonable accommodation, including a discussion on how using artificial intelligence (AI) and algorithms to make employment decisions can impact individuals with visual disabilities.

EEOC: New Human Trafficking Guidance for Young Workers

On July 27, 2023, the EEOC added a new section on human trafficking to its Youth At Work webpage. The new section is intended to help young employees, employers, educators, parents, and others be able to identify signs of human trafficking and to understand when human trafficking may violate the laws that the EEOC enforces. The section includes tips for staying safe in the workplace, examples of EEOC lawsuits involving human trafficking, and links to other resources to assist people who believe that they or others may have been trafficked. The EEOC provides this update as part of the U.S. government’s National Action Plan to Combat Human Trafficking.

OSHA: Proposed Rule to Clarify Personal Protective Equipment Standard

On July 19, 2023, the Department of Labor announced a notice of proposed rulemaking to clarify the personal protective equipment (PPE) standard for the construction industry. The current standard does not clearly state that PPE must fit each affected employee properly, while the Occupational Safety and Health Administration’s general industry and maritime standards do. The proposed change would clarify that PPE must fit each employee properly to protect them from occupational hazards – aligning the PPE standard for construction with that of general industry and maritime standards. As part of the rulemaking process, comments and hearing requests have been solicited and must be submitted by September 18, 2023. Employers can likely expect to see a final rule by the end of 2023 or in early 2024.

OSHA: Expansion of Electronic Injury and Illness Reporting

Effective January 1, 2024, employers in high-hazard industries with 100 or more employees must submit Form 300 and Form 301 electronically via OSHA’s Injury Tracking Application (ITA). Employers should review the updated rule prior to the effective date to make sure they are able to comply. Several industries are also identified in the rule as “high-hazard industries” ranging from cattle ranching and farming to warehousing and storage. The new submission method increases OSHA’s ability to target employers through programmed inspections. The rule also significantly increases the exposure of employers to OSHA scrutiny. Additionally, the ITA has been accused of being unreliable and hard to use. This can cause issues for employers who are not familiar with the process since noncompliance can result in citations. Employers should review their recordkeeping and injury reporting procedures now to avoid noncompliance.

California: No Duty to Prevent COVID-19 from Spreading to Employee’s Household

On July 6, 2023, in Kuciemba v. Victory Woodworks, Inc., the California Supreme Court stated that employers have no duty to prevent the spread of COVID-19 to its employees’ household members. There, an employee contracted COVID-19 through his co-workers due to the employer’s poor safety practices, which ultimately spread to his wife who was hospitalized for several weeks. Notably, although the spouse in this instance would not have a claim against the employer, this case does not impact an employee’s own ability to pursue workers’ compensation benefits, if any, for their own COVID-19 illness contracted in the workplace, or other remedies that may be available for employer safety violations.

California: Attorney General is Enforcing the CCPA While the CPRA is Delayed

On July 14, 2023, the California Attorney General announced that it is inquiring into whether and how large companies are complying with the California Consumer Protection Act (CCPA) currently in effect. As of January 1, 2023, covered businesses must comply with the CCPA’s privacy protections of employee data. This announcement comes two weeks after a court ruling that delayed enforcement of any individual regulation related to the California Privacy Rights Act (CPRA) for one year. The CPRA amended the CCPA and the CPRA regulations were just finalized in March. Covered employers should ensure that they are complying with the CCPA until the CPRA is enforced next year.

Colorado: Employer Breach Excuses Employee from Post-Employment Obligations

On June 29, 2023, in Zuni Payments, LLC v. Kosarek, the Colorado Court of Appeals said an employer could not recover damages due to breach of an otherwise enforceable restrictive covenant because the employer materially breached the employment agreement first. Here, an executive for a credit card processing company signed an employment agreement with a non-solicitation provision at the start of employment. Due to a reduction in salary, the employee negotiated to become an independent contractor and start his own business. The negotiations broke down and the employer terminated his employment without paying him severance or compensating him for unused PTO as required under the employment agreement. The employer then sued the employee for violating the non-solicitation provisions of his employment agreement by working with their prospective clients. The Colorado Court of Appeals agreed with the trial court that the employer breached the employment agreement first by not paying severance and accrued PTO at termination as required. Therefore, the employer was not owed damages for the plaintiff’s solicitation of its prospective clients. Employers seeking to enforce restrictive covenants in Colorado should review their own obligations before pursuing litigation.

Illinois: Amendments to the Labor Disputes Act

Illinois Governor J. B. Pritzker recently signed into law HB 2907 and HB 3396, amending the Illinois Labor Disputes Act (LDA) to expand protections for striking workers. Effective January 1, 2024, the amendments restrict measures available to employers affected by picketing activity. Specifically, HB 2907 limits the amount an employer can recover for damages it suffers as a result of a labor dispute. Under the amendment, employers are not entitled to an award of monetary damages in any case involving a labor dispute, except for damage done to an employer’s property as a result of conduct prohibited by law. Additionally, HB 3396 will make it a Class A misdemeanor with a minimum fine of $500 to place any object in the public way with the intent of interfering with, obstructing, or impeding a picket or other demonstration or protest.

Illinois: Temporary Workers Entitled to Equal Pay

Under a new amendment to the Illinois Day and Temporary Labor Services Act, Illinois employers and staffing agencies are required to provide temporary workers with pay and benefits that are equal to certain direct-hired employees after 90 days of employment. The amendment also requires employers and staffing agencies to notify temporary workers of strikes, lockouts, and “labor trouble;” and to provide general and site-specific safety training to temporary workers before they begin working at a job site. These requirements apply to day and temporary laborers in all roles other than those of a “clerical or professional” nature. The amendment has a stated effective date of July 1, 2023, but was only recently signed into law by the governor on August 4, 2023.

Illinois: BIPA Damages Are Discretionary, Not Mandatory

In 2019, a class of truck drivers sued BNSF railway alleging the company collected their biometric information without their informed consent in violation of Illinois’ Biometric Information Privacy Act (BIPA). After a trial in October of 2022, a jury found that BNSF recklessly or intentionally violated BIPA 45,600 times, and a district court judge awarded $228M in statutory damages to the truck drivers. However, in ruling on post-trial motions, the federal court decided to vacate the statutory damages award, reasoning that Illinois case law suggests that damages under BIPA are discretionary, not mandatory. Because of this, the federal judge determined that BIPA damages are a question for the jury and has ordered a new trial limited to the question of damages. Employers should continue to monitor developments in this case, and should review their biometric data collection practices to ensure compliance with requirements under Illinois’ BIPA.

Illinois: Electronic Posting Requirement for Remote and Traveling Employees

Effective January 1, 2024, Illinois employers with employees who do not regularly report to a physical workplace, such as employees who work remotely or travel for work, must provide the Your Rights Under Illinois Employment Laws Poster and Illinois Day and Temporary Labor Services Act Poster by email to its employees. Alternatively, employers may display the required postings on its website or intranet site, as long as that site is (1) regularly used by the employer to communicate work-related information to employees; and (2) able to be regularly accessed by all employees, freely and without interference.

Nevada: Employer Considerations Around Early Wage Access Benefits

SB 290 will require early wage access (EWA) providers to obtain a license from the state Commissioner of Financial Institutions. EWA allows workers to immediately access wages already earned before their regular payday. While some states have categorized this type of transaction as a loan between employer and employee, SB 290 does not recognize EWA providers as lenders. This is an emerging area with forthcoming regulations expected. In the meantime, the U.S. Department of Treasury has indicated that employers who offer EWA programs should be maintaining either a daily or a miscellaneous payroll period. Additionally, employers are responsible for withholding and paying employment taxes on employees’ earned wages on a daily basis.  Most provisions in SB 290 will take effect on July 1, 2024.

New Jersey: Temporary Worker Bill of Rights Applies Outside the State

The New Jersey Department of Labor (NJDOL) recently issued FAQ guidance on the application of the Temporary Workers Bill of Rights (TWBR), stating that temporary service firms inside New Jersey must comply with the requirements under the law even when assigning temporary workers to a third-party client outside of the state. Certain provisions of the TWBR went into effect on May 7, 2023, with the remaining portion becoming effective as of August 5, 2023. Temporary service firms and third-party clients will want to review their staffing agreements to ensure compliance with the TWBR, including in situations when assigning temporary workers outside of the state.

New York, NY: App-Based Restaurant Delivery Workers Protections Paused

Effective July 7, 2023, the New York State Supreme Court issued a preliminary injunction preventing a rule requiring a minimum pay-rate for app-based restaurant delivery workers to go in effect. The rule would have required a phased-in minimum wage rate of $19.96 per hour for such delivery workers. The delivery companies targeted by the rule argued there would be adverse consequences like increased prices and fewer jobs for gig economy workers. The preliminary injunction temporarily vacates the rule. Employers should continue to monitor the status of any new wage rules from New York City since it has made a commitment to create protections for fast food employees and delivery workers.

Rhode Island: Amended Definition of “Employee” for Paid Sick Leave Law

As of June 20, 2023, Rhode Island’s Healthy and Safe Families and Workplaces Act is amended with respect to who qualifies as an “employee” under the law. Under SB 1082, the definition of “employee” will no longer exclude apprentices and interns, but will exclude all individuals not considered to be “employees,” as defined under the federal Fair Labor Standards Act.

Texas: Safety Rules Taken Out of Local Authorities’ Hands

As of September 1, 2023, HB 2127, the Texas Regulatory Consistency Act, will preempt some city and county workplace safety and health laws that are more strict than state or federal requirements. The bill is generally broad but is being criticized for potentially eliminating mandatory enforcement of local rules that may fall under its purview, such as water breaks that would be more strictly required than what is stated under state or federal law. Notably, the bill does not change an employer’s responsibility to provide a safe work environment under the federal Occupational Health and Safety Act. The bill also does not prevent employers from providing greater benefits than what are required under state or federal law. Employers should consult with legal counsel on questions surrounding local ordinance compliance that may be impacted by the new state law.

Washington: Taking Paid Sick Leave Cannot Violate Collective Bargaining Agreement or Policy

On June 29, 2023, in Alaska Airlines v. State of Washington Department of Labor & Industries, the Washington Supreme Court said that an employee is only entitled to use sick leave or other paid time off under the Washington Family Care Act to care for a child, spouse, parent, parent-in-law, or grandparent if permitted by a collective bargaining agreement or employer policy. Here, an employee was disciplined for taking time off to care for a sick child because the collective bargaining agreement addressed the scheduling of vacation time and accruing sick time. The Court found that the language of the law only entitled leave for care of a family member if allowed by a collective bargaining agreement or employer policy. Employers should note that although the law does not entitle employees to take leave when it violates a collective bargaining agreement or policy, they should consult with legal counsel prior to taking adverse action against an employee to exercising their leave rights.

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