Supreme Court Overturns Longstanding Chevron Doctrine

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June 28, 2024

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  • The United States Supreme Court overturned the longstanding Chevron doctrine which now calls into question the enforceability of regulations issued by federal agencies.

Discussion

On June 28, 2024, the United States Supreme Court overturned the longstanding Chevron doctrine. Issued over 40 years ago, the Chevron doctrine created a two-step framework to review whether regulations issued by federal agencies are valid and consistent with their interpretation of the laws enacted by Congress. The first step was to look at the underlying statute and determine if it was clear or ambiguous. If the law was clear, the analysis ended. If the law was ambiguous or did not address the issue at hand, then the court would determine whether the federal agency acted reasonably when issuing the regulation that attempted to clarify the law. Even if there may have been a better interpretation, the court had to defer to the agency’s decision. This created a low burden for agencies to defend their regulatory actions which meant courts have been deferring to agency decisions for decades.

 

Now, in Loper Bright Enters. v. Raimondo, the Supreme Court ruled the Chevron doctrine conflicted with the Administrative Procedure Act (APA) which commands courts, and not federal agencies, to decide relevant questions of law and interpret statutes. The Court found that the APA makes it clear that federal agencies are not entitled to deference when they interpret statutes as that is the role of the courts. Courts can still look at the agency’s interpretation and its rationale, especially if the interpretation has remained consistent over time. Also, if a statute expressly authorizes an agency to take action, then courts must also respect that delegation of authority.

 

It remains to be seen how this ruling will impact pending legal challenges to agency authority. For the moment, this ruling does not impact employers since the underlying case involved fishing vessel operators challenging fishery management in federal waters. This ruling did not specifically address regulations and guidance from the Equal Employment Opportunity Commission (EEOC), Department of Labor (DOL), Occupational Safety and Health Administration (OSHA), and National Labor Relations Board (NLRB). However, there are a number of legal challenges pending against recently issued regulations from these agencies, so employers should continue to look for upcoming developments in those cases.

 

Action Items

  1. Follow updates regarding pending legal challenges to labor and employment agency actions.
  2. Consult with legal counsel regarding any immediate impacts.

 

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. © 2024 ManagEase

EEOC Issues Guidance for Preventing Harassment in the Construction Industry

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June 18, 2024

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  • The EEOC has issued new guidance with recommendations and best practices for preventing harassment and discrimination in the construction industry.

Discussion

On June 18, 2024, the Equal Employment Opportunity Commission (EEOC) issued guidance for construction-industry leaders and employers to consider when implementing prevention programs and addressing harassment in the workplace. The guidance comes as part of the EEOC’s Strategic Enforcement Plan for fiscal years 2024-2028, which provides direction on the EEOC’s current objectives, principles, and enforcement efforts.

 

The new guidance emphasizes several core principles intended to help prevent and address harassment in the construction industry. The core principles include recommended practices to help employers remain in compliance with federal EEO laws. The principles and recommendations include:

 

  1. Committed and Engaged Leadership. The EEOC emphasizes the importance of vocal leaders, including project owners, general contractors, crew leaders and union stewards, to demonstrate that harassment is prohibited. This includes providing anti-harassment and anti-discrimination training, actively monitoring the workforce for non-compliance, and seeking feedback from workers about anti-harassment efforts.
  2. Comprehensive Harassment Policies. The EEOC expects employers in the construction industry to implement and maintain clear and comprehensive anti-harassment/anti-discrimination policies. These policies should clearly outline who is covered under the policy, what conduct is prohibited, and how employees can submit complaints or reports of conduct that violates the policy. The EEOC emphasizes the importance of employee accessibility of these policies, stating they should be posted in easy to find places such as near breakrooms or the timeclock.
  3. Accessible Complaint Reporting System. Due to the overlap of multiple employers within the construction industry, the EEOC reiterated the importance of maintaining a well-established and accessible compliant reporting system for employees. The reporting system should be easy to understand and should include both formal and informal methods for reporting employee complaints or concerns of harassment or discrimination. The EEOC highlighted using a “no wrong door” environment for workers.
  4. Regular and Interactive Training. Lastly, the EEOC focused on the importance of providing regular training to all workers. The EEOC recommends tailoring the training to each specific worksite, providing clear and easy to understand explanations of what is and is not acceptable. The training should be interactive, whether through group discussions or through interactive module training.

 

The guidance also follows the EEOC’s 2023 report titled “Building for the Future: Advancing Equal Employment Opportunity in the Construction Industry,” in which EEOC Chairman Charlotte Burrows examined discrimination based on race, national origin, and sex in the construction industry. Given the EEOC’s ongoing focus on the construction industry, employers should be proactive in taking steps to prevent discrimination and harassment in the workplace.

 

Action Items

  1. Review and update equal employment opportunity and anti-discrimination/harassment policies.
  2. Provide training to all employees, including managers, on what conduct is prohibited and how to report complaints of harassment and/or discrimination.
  3. Train managers on how to respond if they become aware of discrimination or harassment in the workplace.

 

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. © 2024 ManagEase

OSHA Heat Illness and Hazard Communication Updates

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  • OSHA issued a proposed rule for “Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings.”
  • OSHA announced a final rule to update the current Hazard Communication Standard.

Discussion

The Occupational Safety and Health Administration (OSHA) made two significant updates. First, OSHA released its proposed rule for “Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings.” Second, it announced a final rule to update the current Hazard Communication Standard. Details on the two updates are below.

 

Heat Injury and Illness Prevention

 

OSHA’s proposed rule for “Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings” is set for publication in the Federal Register. Following publication, there is a public comment period before a final rule will be issued. The rule will apply to all employers, subject to limited exception; of particular note, the rule does not apply to work environments not expected to reach 80 degrees​ (e.g., office environments with air conditioning maintained below 80 degrees), short duration exposures​ (i.e., exposure of 15 minutes or less in any 60-minute period), remote workers, or certain emergency response activities. The main requirements employers should be aware of are summarized below.

 

Heat Injury and Illness Prevention Plan. Employers must develop and implement a work site heat injury and illness prevention plan (HIIPP) with: (1) a list of the types of work activities covered; (2) policies and procedures required to comply with the final rule; (3) identification of the heat metric used to monitor heat conditions; (4) how to evaluate heat stress hazards from clothing that is vapor-impermeable; (5) designation of one or more heat safety coordinators to implement and monitor the HIIPP; (6) input and involvement of non-managerial employees and their representatives; (7) and review of the effectiveness of the HIIPP whenever a heat-related illness or injury occurs. The HIIPP must be in writing if the employer has more than 10 employees. The HIIPP must be available at the work site to all employees and in a language each employee, supervisor, and heat safety coordinator understands.

 

Monitoring Heat Conditions. Employers must monitor heat conditions at outdoor work areas by tracking local heat index forecasts from the National Weather Service or other reputable source using the heat index or ambient temperature and humidity measured separately or through wet bulb globe temperature. For indoor work areas, employers must similarly evaluate local heat index forecasts. The initial heat trigger for safety precautions is 80° Fahrenheit. The high heat trigger of 90° Fahrenheit requires additional precautions.

 

Access to Water. Employers must provide access to potable water for drinking that is placed in locations readily accessible to the employee, suitably cool, and of sufficient quantity to provide access to one quart of drinking water per employee per hour.

 

Rest Breaks and Break Areas. The employer must provide one or more areas for employees to take breaks that can accommodate the number of employees on break and that has artificial or natural shade open to outside air and blockage of direct sunlight or has air-conditioning.

 

Acclimatization Plan. Employers must implement a plan for acclimatizing new and returning employees during their first week on the job. The gradual acclimatization for new employees is: 20% of a normal work shift exposure duration on the first day of work, 40% on the second day of work, 60% of the third day of work, and 80% on the fourth day of work. The process for returning employees is: 50% of a normal work shift exposure duration on the first day of work, 60% on the second day of work, and 80% of the third day of work.

 

Heat Illness Symptom Monitoring and Emergency Response. Employers must implement at least one of the following methods of observing employees for signs and symptoms of heat-related illness: (1) a mandatory buddy system in which co-workers observe each other; (2) observation by a supervisor or heat safety coordinator, with no more than 20 employees observed per supervisor or heat safety coordinator; and (3) for employees who are alone at a work site, the employer must maintain a means of effective, two-way communication with those employees (e.g., handheld transceiver, phone, or radio) and make contact with the employees at least every two hours.

 

An emergency response plan must include: (1) a list of emergency phone numbers (e.g., 911, emergency services); (2) a description of how employees can contact a supervisor and emergency medical services; (3) individual(s) designated to ensure that heat emergency procedures are invoked when appropriate; (4) a description of how to transport employees to a place where they can be reached by an emergency medical provider; (4) clear and precise directions to the work site, including the address of the work site, which can be provided to emergency dispatchers; and (5) procedures for responding to an employee experiencing signs and symptoms of heat-related illness, including heat emergency procedures for responding to an employee with suspected heat stroke.

 

Training. Prior to any work at or above the initial heat trigger, the employer must ensure that each employee receives training on, and understands, the following: (1) heat stress hazards; (2) heat-related injuries and illnesses; (3) risk factors for heat-related injury or illness, including the contributions of physical exertion, clothing, personal protective equipment, a lack of acclimatization, and personal risk factors (e.g., age, health, alcohol consumption, and use of certain medications); (4) signs and symptoms of heat-related illness and which ones require immediate emergency action; (5) the importance of removing personal protective equipment that may impair cooling during rest breaks; (6) importance of taking rest breaks to prevent heat-related illness or injury, and that rest breaks are paid; (7) importance of drinking water to prevent heat-related illness or injury; (8) the location of break areas; and (9) the location of employer-provided water. This is a non-exhaustive list, and there are additional requirements included in the proposed rule. Supervisors must receive additional training on policies and procedures for monitoring heat conditions and procedures the supervisor or heat safety coordinator must follow if an employee exhibits signs and symptoms of heat-related illness. Employees and supervisors must also receive annual refresher training on these topics.

 

Recordkeeping. If the employer conducts on-site measurements at indoor work areas, they must have written or electronic records of those indoor work area measurements and retain those records for six months.

 

Hazard Communication Standard

 

Effective July 19, 2024, an updated Hazard Communication Standard will: (1) require labels on small packaging to be more comprehensive and readable; (2) make changes to help ensure trade secrets no longer prevent workers and first responders from receiving critical hazard information on safety data sheets; (3) a clearer hazard classification process to provide more complete and accurate hazard information on labels and safety data sheets; (4) update physical hazard classes to better inform users on safe handling of explosives, aerosols and chemicals under pressure; and (5) update precautionary statements on how to safely handle, store and dispose of hazardous chemicals. These changes align with the requirements of other federal agencies and Canada.

 

Action Items

  1. Review the OSHA website here for the proposed rule.
  2. Review updated Hazard Communication Standard here.
  3. Update health and safety policies and procedures.
  4. Develop and implement a work site heat injury and illness prevention plan.
  5. Have appropriate personnel trained on the requirements.

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. © 2024 ManagEase

IRS Issues Guidance on Educational Assistance Programs

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June 22, 2024

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  • The Internal Revenue Service (IRS) recently issued fact sheet FS-2024-22 to answer frequently asked questions related to educational assistance programs, or EAPs, under Section 127 of the Internal Revenue Code (IRC).

Discussion

The Internal Revenue Service (IRS) recently issued fact sheet FS-2024-22 to answer frequently asked questions related to educational assistance programs, or EAPs, under Section 127 of the Internal Revenue Code (IRC). EAPs are used by employers as recruitment tools since they are tax exempt to employees and tax deductible to employers. The IRS makes clear that the fact sheet is not binding law and will not be relied upon or used by the IRS to resolve a case. However, it remains helpful to employers and employees who are looking for more general information about EAPs.

 

The fact sheet answers general questions like defining an EAP, defining EAP benefits, and defining qualified education loans. However, the fact sheet also addresses whether student debt can be reimbursed and the impact on the employee’s gross income. If the debt was incurred as a result of expenses that are permissible benefits under Section 127 of the Code (such as tuition, books, equipment, qualified education loans), the employer may reimburse the employee for these expenses as educational assistance benefits, and the employee could then use those funds to help satisfy their debt. To be excluded from the employee’s gross income, the employee must be prepared to substantiate the expenses to the employer.

 

Additional exclusions from gross income for educational assistance include working condition fringe benefits and educator expense deductions. If the benefits qualify as a working condition fringe benefit, regardless of amount, they are excluded from gross income and the employer does not have to include them in wages. A working condition fringe benefit is a benefit which, had the employee paid for it, the employee could deduct it as an employee business expense. In 2023, educators can deduct up to $300 ($600 if married filing jointly and both spouses are eligible educators, but not more than $300 each) of unreimbursed business expenses. The educator expense deduction, claimed on Form 1040 Line 11, is available even if an educator doesn’t itemize their deductions. To do so, the taxpayer must be a kindergarten through grade 12 teacher, instructor, counselor, principal, or aide for at least 900 hours per school year in a school that provides elementary or secondary education as determined under state law. Employers are encouraged to review the fact sheet with their tax professional to understand its impact.

 

Action Items

  1. Review the fact sheet here.
  2. Update education assistance program policies and procedures as needed.
  3. Review fact sheet with tax professional.
  4. Have appropriate personnel trained on the requirements.

 

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. © 2024 ManagEase

PWFA Regulations Partially Enjoined in Louisiana and Mississippi

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June 17, 2024

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  • In State of Louisiana v. Equal Employment Opportunity Commission, the United States District Court for the Western District of Louisiana held that the Equal Employment Opportunity Commission (EEOC) exceeded its authority to implement the Pregnant Workers Fairness Act (PWFA) as it relates to elective abortions and has partially enjoined that portion of the EEOC’s regulations.
  • The preliminary injunction is limited in its scope to the States of Louisiana and Mississippi and its agencies and any covered entity under the final rule whose employees’ “primary duty station” is in Louisiana or Mississippi, as well as the church plaintiffs.

Discussion

In State of Louisiana v. Equal Employment Opportunity Commission, United States District Court for the Western District of Louisiana held that the Equal Employment Opportunity Commission (EEOC) exceeded its authority to implement the Pregnant Workers Fairness Act (PWFA) as it relates to elective abortions and has partially enjoined that portion of the EEOC’s regulations. Here, a consolidated action filed by the States of Louisiana and Mississippi and four entities affiliated with the Roman Catholic Church sought a preliminary injunction to prevent enforcement of the final rule which would have required them to make a reasonable accommodation in the event of an elective abortion.

 

Specifically, the PWFA requires employers to “make reasonable accommodations to the known limitations related to the pregnancy, childbirth, or related medical conditions to a qualified employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity.” The final rule issued by the EEOC states that having an abortion is an “example of pregnancy, childbirth, or related medical condition.” The individual state plaintiffs argued that the final rule would increase regulatory and compliance costs as well as damage sovereignty and free speech rights. The church plaintiffs argued the final rule would make them knowingly violate sincerely held religious beliefs regarding the “moral evil” of abortion.

 

Ultimately, the court found that Congress could not reasonably be understood to grant the EEOC the power to interpret the scope of the PWFA to impose a nationwide mandate on public and private employers to provide workplace accommodations for the elective abortions of employees. By inserting abortion in the final rule, the court found the EEOC implicated the “major questions” doctrine which applies when an agency asserts highly consequential power beyond what Congress could reasonably have granted. The court did not go so far as to limit an employer voluntarily complying with the final rule as it relates to elective abortions.

 

The preliminary injunction is limited in its scope to the States of Louisiana and Mississippi and its agencies and any covered entity under the final rule whose employees’ “primary duty station” is in Louisiana or Mississippi, as well as the church plaintiffs. This ruling is expected to be further appealed so employers should continue to monitor the case for updates.

 

Action Items

  1. Consult with legal counsel on the application of the ruling and continuing developments.

 

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. © 2024 ManagEase

Fourth Circuit Expands Ministerial Exception for Religious Employees

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May 8, 2024

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  • The Fourth Circuit ruled that educators in religious schools who primarily teach secular subjects are subject to the ministerial exception to claims for employment discrimination under Title VII.

Discussion

In Billard v. Charlotte Catholic High School, the Fourth Circuit Court of Appeals determined that lay educators within religious schools may be subject to the ministerial exception to Title VII employment discrimination, even when not working in the capacity as an ordained priest or engaging in religious teachings.

 

In this case, the plaintiff was a drama and English teacher formerly employed by the Charlotte Catholic High School. The parties agreed that the plaintiff was not an ordained priest in the Catholic Church, and instead a “lay” teacher. However, the teacher’s lessons adhered to religious doctrine and the teacher worked closely with the school’s religious instructors to ensure continuity in messaging to students. The teacher openly identified as a gay male and when the school learned of the teacher’s desire to enter into a same-sex marriage, the teacher was not invited to return to his teaching position with the school during the following year. The teacher sued the school under Title VII.

 

In granting judgment in favor of the teacher, the district court stated that, had the school raised the issue, the plaintiff would not have been considered a “minister” subject to the ministerial exception to federal civil rights claims. The United States Supreme Court first recognized the ministerial exception in 2012 in the Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission case, finding that a faith institution’s “ministers” are exempt from federal civil rights laws, such as Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act, due to First Amendment protections for free exercise of religion. The Supreme Court’s subsequent decision in a 2020 case titled Our Lady of Guadalupe School v. Morrissey-Berru further expanded the ministerial exception to include any employee that advances a religious institution’s mission.

 

In deciding the Billard case, the Fourth Circuit reasoned that generally, any employee that is advancing the religious teachings of a religious institution is a “minister” exempt from federal civil rights laws. In reaching this conclusion, the court stated that, “Billard falls in precisely the category of people whose ministerial status Our Lady of Guadalupe seems most likely to affect: educators in religious schools who primarily teach secular subjects.” In reaching this decision, the Fourth Circuit expands the number of employment decisions that may be subject to the ministerial exception.

 

Action Items

  1. Consult with legal counsel on application of ministerial exception to specific positions and/or employees.

 

 

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. © 2024 ManagEase

Eleventh Circuit: Misgendering Employee Can Support Claim of Hostile Work Environment

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March 28, 2024

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  • Misgendering an employee can be “severe and pervasive” enough to support a hostile work environment claim under Title VII of the Civil Rights Act.

Discussion

In Copeland v. Georgia Department of Corrections, the Eleventh Circuit Court of Appeals said that misgendering an employee can be “severe and pervasive” enough to support a hostile work environment claim under Title VII of the Civil Rights Act. Here, a transgender male sergeant at Rogers State Prison in Georgia disclosed his transgender identity and requested the use of he/him pronouns when referring to him. Instead, coworkers purposely called him “baby girl,” “ma’am,” and “her” on prison-wide communications and in front of inmates. The plaintiff also stated he had a non-gendered call sign which could have been used but coworkers instead used the gendered language intentionally. When the plaintiff first informed the Human Resources Department (HR) of the intention to transition, HR requested more documentation than law allowed and instructed him to continue using the women’s restroom. HR also shared confidential information and publicized the transition.

 

To prevail on a hostile work environment claim, the court requires a plaintiff to prove five elements: (1) he “belongs to a protected group”; (2) he was “subject to unwelcome harassment”; (3) the harassment was “based on a protected characteristic”; (4) the harassment was “sufficiently severe or pervasive to alter the conditions of” his employment; and (5) his employer was “responsible for” the hostile work environment. To show that the conduct was “severe and pervasive,” the court found that the plaintiff was able to prove four factors. Specifically, the treatment he received was frequent, severe, physically threatening or humiliating, and negatively impacted job performance.

 

Under the totality of the circumstances, a reasonable jury could conclude that the harassment the plaintiff faced was objectively severe or pervasive enough to alter the terms or conditions of his employment. The plaintiff also claimed retaliation and a failure to promote; however, the court remanded these two claims to the lower court for additional proceedings.

 

Action Items

  1. Have appropriate personnel trained on discrimination and harassment prevention.
  2. Maintain confidentiality of personnel health information.
  3. Review policies to include appropriate protections for transitioning personnel.

 

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. © 2024 ManagEase

Colorado: Expanded Protections for Biometric Information under the Colorado Privacy Act

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July 1, 2025

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  • HB 1130 expands biometric protections under Colorado’s Privacy Act to include circumstances related to the collection and processing of biometric data and identifiers in the employment context.

Discussion

Colorado’s HB 1130 was recently signed by Governor Polis amending Colorado’s Privacy Act (CPA) to broaden protections for biometric data in several significant ways. Key aspects of the amendments are summarized below.

 

Application of CPA Amendments. As originally enacted, a controller is subject to the CPA if it: (i) determines the purposes and means of processing personal data, (ii) conducts business in Colorado or produces or delivers commercial products or services intentionally targeted to residents of the state, and (iii) either:  (a) controls or processes the personal data of more than 100,000 Colorado residents per year or (b) derives revenue from selling the personal data of more than 25,000 Colorado residents. HB 1130 adds that a controller can be subject to the CPA without meeting these requirements if it would otherwise be subject to the CPA solely to the extent that it controls or processes any amount of biometric data or biometric identifiers.

 

New Definitions. The amendments add the following definitions:

  • “Employee” is defined to include not only individuals employed on a full or part-time basis, but also individuals who are “on-call” or hired as a “contractor, subcontractor, intern, or fellow.”
  • “Biometric data” means one or more biometric identifiers that are used or intended to be used, singly or in combination with each other or with other personal data, for identification purposes. “Biometric data” does not include the following unless the biometric data is used for identification purposes: (i) a digital or physical photograph; (ii) an audio or voice recording; or (iii) any data generated from a digital or physical photograph or an audio or video recording.
  • “Biometric identifier” means data generated by the technological processing, measurement, or analysis of a consumer’s biological, physical, or behavioral characteristics, which data can be processed for the purpose of uniquely identifying an individual. “Biometric identifier” includes: (a) a fingerprint; (b) a voiceprint; (c) a scan or record of an eye retina or iris; (d) a facial map, facial geometry, or facial template; or (e) other unique biological, physical, or behavioral patterns or characteristics.

 

New Controller Requirements. HB 1130 establishes several new requirements for controllers who control or process one or more biometric identifiers. These include:

  • Obtaining consent from the consumer (including the employee) before collecting the consumer’s biometric data;
  • Maintaining a written policy that establishes a retention schedule, identifies a process for responding to data security incidents, and establishes guidelines for addresses deletion of biometric identifiers; and
  • Providing a reasonably accessible privacy notice that satisfies specific content requirements including the purposes for processing.

 

Prohibited Activities. Under HB 1130, controllers are prohibited from the following activities that concern biometric identifiers:

  • Selling, leasing or trading such information;
  • Disclosing biometric identifiers, subject to limited exceptions including consent and complying with federal or state law; and
  • Refusing to provide a good or service to a consumer, based on the consumer’s refusal to consent to the controller’s collection, use, disclosure, etc. of a biometric identifier unless it is necessary to provide the good or service.

 

Employment Provisions. HB 1130 includes new provisions that are specific for employers. Specifically, the amendments provide that employers may require current or prospective employees to allow the employer to collect and process their biometric identifiers, but that they may do so only to:

  • Permit access to secure physical locations and secure electronic hardware and software applications;
  • Record the commencement and conclusion of the employee’s full workday, including meal breaks and rest breaks in excess of 30 minutes;
  • Improve or monitor workplace safety or security or ensure the safety or security of employees; and
  • Improve or monitor the safety or security of the public in the event of an emergency or crisis situation.

 

Employers will be able to collect and process biometric identifiers where the anticipated uses are “aligned with the reasonable expectations” of an employee based on the employee’s job description or role, or a prospective employee based on reasonable background check, application, or identification requirements.

 

Action Items

  1. Prepare to implement privacy and data security policies.
  2. Prepare to implement employee notices and consent for biometric data collection.
  3. Have appropriate personnel trained on the collection and processing of biometric data and identifiers.

 

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. © 2024 ManagEase

Colorado: Amendments to Non-Compete Law

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August 7, 2024

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  • Colorado’s new law strengthens protections for employees subject to Training Repayment Agreement Provisions in employment contracts.
  • The new law includes increased monetary liabilities for employers who violate the law and empower the State Attorney General with enforcement authority.

Discussion

Colorado’s HB 24-1324, titled “Attorney General Restrictive Employment Agreements,” puts in place a law to strengthen protections for employees who are subject to contractual provisions that require repayment to employers for education and training expenses upon termination of employment, also known as “Training Repayment Agreement Provisions” (TRAPs).

 

Colorado currently allows TRAPS within certain parameters, including that the training is separate and apart from typical on-the-job training, the costs are reasonable, and the recovery by the employer decreases over the term of employment as the employer recoups the initial investment made. The new Colorado law expands upon previous restrictions for TRAPs and increases penalties for overbroad or abusive agreements that violate the law.

 

Specifically, the new bill considers TRAPs to be a “consumer credit sale” under Colorado Consumer Credit Code (similar to student loans), which imposes specific requirements and enforcement mechanisms. It also provides that an aggrieved worker, or the State Attorney General, can recover three (3) times the amount of the attempted recovery by the employer, in addition to the $5,000 penalty provided by existing law, plus attorneys’ fees, costs, and interest, significantly increasing the potential risks and potential liability for employers. The Attorney General is empowered under the law with enforcement authority and the ability to develop rules to enforce the new bill.

 

This new law comes as part of the continued efforts by state and federal legislators to restrict the use of non-compete and other similar restrictive covenants in employment agreements. Previously, in August of 2022, Colorado passed additional amendments to the state’s non-compete law which introduced income threshold requirements, strict notice provisions, and harsh monetary penalties for employers who use non-compete and non-solicitation provisions in employment contracts.

Action Items

  1. Review employment contracts, including any Training Repayment Agreement Provisions with legal counsel for compliance.
  2. Have appropriate personnel trained on requirements for enforcing Training Repayment Agreement Provisions.

 

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. © 2024 ManagEase

Maine: Proposed Paid Family and Medical Leave Rules

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  • The Maine Department of Labor (MDOL) issued proposed rules for the Paid Family and Medical Leave Program (PFML) which went into effect October 25, 2023.
  • The public comment period for the proposed rules is open through July 8, 2024.

Discussion

The Maine Department of Labor (MDOL) issued proposed rules for the Paid Family and Medical Leave Program (PFML) which went into effect October 25, 2023. MDOL must meet a January 1, 2025 deadline for issuing final rules. This is also the date when employer contributions begin with benefits beginning May 1, 2026. The proposed rules provide clarifications on the following points:

 

Covered Employee. Employees who perform services and earn wages in Maine, including full-time, part-time, seasonal, and temporary employees are covered. Wages must be earned in Maine during the first four of the last five completed calendar quarters immediately preceding the first day of the benefit year. Self-employed individuals can elect into coverage.

 

Family Definition. “Family” includes those with whom an employee has “a significant personal bond…like a family relationship, regardless of biological or legal relationship.” Employees are limited to only one such “affinity relationship” per benefit year. There is also no definition for “child” or an age limit for those considered a child.

 

Notice. Employers cannot require written notice of the need for PFML.

 

Waiting Period. There is no waiting period before taking PFML benefits.

 

Interaction with Other Leaves. PFML runs concurrently with the federal Family and Medical Leave Act (FMLA). However, employers cannot require employees to exhaust paid time off or other company-provided leaves before using PFML. It is unclear if leaves can be stacked if employees use PFML for reasons not covered by other leave laws.

 

Undue Hardship. Employers must provide MDOL with a written explanation of the undue hardship that would be created if an employee received PFML benefits. This includes attempting in good faith to create a leave schedule that meets the employee’s needs. MDOL would then assess the reasonableness of the undue hardship claim based on a non-exhaustive list of factors considered, including the impact on the employee and the “nature and extent of attempts” made by the employee and employer to schedule leave that would not cause an undue hardship.

 

Contributions. Employers with 15 or more covered employees must remit one hundred percent (100%) of the premium but may deduct up to fifty percent (50%) of the premium from the employees’ gross wages.  Employers with fewer than 15 employees must remit fifty percent (50%) of the premium but may deduct up to fifty percent (50%) of the premium from employees’ gross wages. The employer size for the purposes of determining premium liability for calendar year 2025 is determined by the number of covered employees employed by the employer in Maine on October 1, 2024. The number of employees includes full-time, part-time, seasonal employees and temporary employees.  On October 1, 2025, and October 1 of each year thereafter, the employer must calculate its size for the purpose of determining premium liability for calendar year 2026 and each calendar year thereafter.

 

Private Plans. Equivalent private plans need to obtain MDOL’s approval. Applications for approval will be accepted any time after January 1, 2025, but exemptions will not be effective until April 1, 2026. Exemptions are valid for three years with MDOL retaining the ability to cancel or make changes to approved plans.

 

Action Items

  1. Review the proposed rules here.
  2. Review leave policies to prepare for necessary updates.
  3. Review payroll processes for remittance of premium amounts and contributions.
  4. Have appropriate personnel trained on the requirements.

 

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. © 2024 ManagEase