EEOC Guidance on Use of Wearable Technology

/in

APPLIES TO

All Employers

EFFECTIVE

December 19, 2024

QUESTIONS?

Contact HR On-Call

(888) 378-2456
Quick Look

  • The EEOC issued guidance on the use of wearable technologies in the workplace, particularly how the use of this technology may violate federal employment laws.

Discussion:

On December 19, 2024, the U.S. Equal Employment Opportunity Commission (EEOC) issued guidance on the use of wearable technologies in the workplace, urging employers to carefully consider how these technologies may violate federal employment discrimination laws.

 

The guidance highlights the potential risks of collecting medical data through wearables, such as blood pressure monitors, under the Americans with Disabilities Act (ADA). Employers who require employees to wear devices that collect health data without a business necessity may face legal consequences, as this could be deemed an improper medical examination or disability-related inquiry. Additionally, the guidance reminds employers that medical data must be stored separately from personnel files to ensure compliance with the ADA.

 

The EEOC also warns employers about using information from wearables in ways that could result in discrimination, particularly under Title VII of the Civil Rights Act and the Genetic Information Nondiscrimination Act (GINA). If wearable technology collects inaccurate data that disproportionately impacts certain groups, such as individuals with darker skin, employers may be liable for taking adverse employment actions based on such data. Employers must also ensure that they are providing reasonable accommodations for employees who may need them due to disability, religion, or pregnancy, as required by applicable laws.

 

Employers should also be aware of increasing state regulations on wearable technologies and employee monitoring, including laws around employee biometric data collection, location tracking, and surveillance. Several states have enacted laws to regulate the collection and use of biometric data, while others have implemented mandates for employee consent and notice for employee tracking and surveillance. Employers must always ensure compliance with both federal and state regulations to avoid potential legal risks related to privacy and surveillance in the workplace.

 

Action Items

  1. Review the use of wearable technology devices by employees for compliance with applicable laws.
  2. Review and revise policies, as necessary, to account for the use of wearable technology devices.
  3. Consult with legal counsel on employee challenges to the use of wearable technology devices.

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. © 2025 ManagEase

California: Arbitration Updates

/in

APPLIES TO

All Employers with Employees in CA

EFFECTIVE

As Indicated

QUESTIONS?

Contact HR On-Call

(888) 378-2456
Quick Look

  • Employees cannot circumvent arbitration agreements by bringing a purely representative PAGA claim without the individual portion of the PAGA claim.
  • Arbitration agreements in handbook acknowledgements may be enforceable if they are written in a way that distinguishes the two purposes.

Discussion:

Two recent rulings review the enforceability of arbitration agreements. While they involve different scenarios, they highlight the need to regularly review arbitration agreements for compliance with applicable law.

 

Headless PAGA Claims

 

On December 30, 2024, in Leeper v. Shipt, Inc., the California Court of Appeal said that an individual could not bring a PAGA claim as a representative without also having their own individual PAGA claim. There, an employee attempted to circumvent their arbitration agreement by filing a PAGA lawsuit purely as a representative, and without making their own individual claim. Ultimately, the Court of Appeal said that the trial court must order the employee’s “individual PAGA claim to arbitration” and must stay the litigation in accordance with state civil procedure law.

 

Arbitration Agreements in Handbooks

 

On January 7, 2025, in Nelson v. Golden Queen Mining Co., LLC, a California Court of Appeal said that an arbitration agreement contained in an employee handbook acknowledgment was enforceable. There, the employee handbook acknowledgment said: (1) “I understand that the guidelines contained in the Handbook are not intended to create any contractual rights or obligations, express or implied” and (2) “My signature also acknowledges and certifies that I understand and voluntarily agree to terms of the Company Arbitration Agreement.” The plaintiff argued that these two statements conflicted, which meant that the acknowledgment was too vague to create an arbitration agreement.

 

Ultimately, the court said there was no conflict between the two statements because the disclaimer relates to “guidelines contained in the Handbook” and the arbitration agreement is not a guideline. However, this determination was made following scrutinization of the acknowledgment terms seemingly justifying a distinction between guidelines, which indicate the handbook policies, and the arbitration agreement which was separately stated with its own heading. Even though this ended in a favorable result for the employer, it highlights the tenuous position for employers who combine an employee handbook acknowledgment with their arbitration agreement. Best practice remains to separate arbitration agreements from employee handbooks.

 

Action Items

  1. Review arbitration agreements with legal counsel for compliance.

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. © 2025 ManagEase

California: Cal/OSHA Guidance on Fire Cleanup

/in

APPLIES TO

All Employers with Employees in CA

EFFECTIVE

January 17, 2025

QUESTIONS?

Contact HR On-Call

(888) 378-2456
Quick Look

  • Employers, including those with household domestic service workers, must follow health and safety requirements for employees engaging in fire cleanup activities.

Discussion:

In response to the Los Angeles wildfire tragedies last month, Cal/OSHA issued guidelines for “Worker Safety and Health During Fire Cleanup.” The guidelines are applicable across the state in response to any fire, whether it involves a single structure or a large-scale wildfire. The guidelines are based on existing laws and regulations for worker safety and highlight a number of requirements for employers to:

 

  • Identify and evaluate potential safety, health, and confinement hazards.
  • Correct any unsafe or unhealthful conditions.
  • Provide training and instruction to employees on the hazards and safety measures needed before they begin fire remediation work.
  • Provide personal protective equipment (PPE) appropriate for the circumstances (e.g., masks, gloves, eye protection, etc.).
  • Provide appropriate safety equipment, like providing fire extinguishers at every cleanup site.
  • Follow heat illness prevention regulations.

 

Significantly, Cal/OSHA said that its regulations apply to household domestic service workers when performing other types of work, such as fire clean up and reconstruction work. Further, the guidance reminded employers that it is unlawful to direct an employee to enter or remain in an area subject to a mandatory evacuation. Employees also have the right to leave or refuse to report to work in a disaster area if they believe it is unsafe to remain. This does not apply to first responders or certain other emergency services workers.

 

Cal/OSHA offers extensive information about worker health and safety during fire cleanup including a wildfire cleanup training tool. Cal/OSHA also offers extensive information on worker safety and health in wildfire regions. Employers should review the guidelines to ensure compliance with applicable safety standards.

 

Action Items

  1. Review the guidelines here.
  2. Identify, evaluate, and correct worksite hazards.
  3. Provide appropriate PPE and safety equipment.
  4. Train employees on the hazards and safety procedures needed to perform work in fire cleanup areas.
  5. Have appropriate personnel trained on all safety 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. © 2025 ManagEase

Illinois: Nondiscretionary Bonuses Must be Included in the Regular Rate

/in

APPLIES TO

All Employers with Employees in IL

EFFECTIVE

January 24, 2025

QUESTIONS?

Contact HR On-Call

(888) 378-2456
Quick Look

  • Employers must factor nondiscretionary bonuses into the regular rate calculation for overtime hourly rates.

Discussion:

In Mercado v. S&C Electric Co., the Illinois Supreme Court said that employers must factor nondiscretionary bonuses into the calculation for overtime hourly rates. An employee’s regular rate is used to calculate their overtime pay rate. Illinois state law defines “regular rate” as all remuneration for employment paid to, or on behalf of, the employee, with certain exceptions for gifts, vacation, holiday, sick pay, discretionary bonuses, benefits payments, and premium pay.

 

Here, performance bonuses were not included in the regular rate calculation. The employer claimed the bonus amounts were exempt from the definition of regular rate for “[s]ums paid as gifts such as those made at holidays or other amounts that are not measured by or dependent on hours worked.” The argument focused on whether “gifts” are to be read as being separate from “other amounts,” or in combination together as like kind payments.

 

The Illinois Supreme Court determined that, in reading the full context of the statutory language, “other amounts” is amplified by the term “such as” to indicate that it is a like kind payment to “gifts,” rather than being separately identified exclusions. This means that the regular rate exclusion is only meant to be for gifts or payments that operate like gifts. The regular rate does not identify an entirely separate exclusion for “amounts not measured by or dependent on hours worked.” Employers should review regular rate calculations for compliance.

 

Action Items

  1. Audit regular rate calculations for compliance.
  2. Review with legal counsel for historical corrections.
  3. Update payroll processes to reflect required overtime calculations.
  4. Have appropriate personnel trained on 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. © 2025 ManagEase

Massachusetts: Updated Pay Transparency FAQs

/in

APPLIES TO

All Employers with MA Employees

EFFECTIVE

February 1, 2025

QUESTIONS?

Contact HR On-Call

(888) 378-2456
Quick Look

  • The Massachusetts Executive Office of Labor and Workforce Development (LWD) published FAQs providing guidance on the new pay transparency law and the key components of the pay data reporting obligations.

Discussion:

The Massachusetts Executive Office of Labor and Workforce Development (LWD) published FAQs providing guidance on the new pay transparency law and the key components of the pay data reporting obligations. Employers with 100 or more employees in Massachusetts must submit EEO-1 reports to the state. Key clarifications are summarized below.

 

Filing Deadline. The most recently filed federal EEO-1 Report was required to be submitted to the state by February 1, 2025 through the state’s online portal. However, because this year February 1 is on a Saturday, employers had until February 3, 2025.

 

EEO-1 Reporting Period. The FAQs state the federal EEO-1 Report submitted must be the most recent report filed with the EEOC. Employers do not have to generate their 2024 EEO-1, but can submit their data for 2023.

 

Wage Data Excluded. Employers are not required to submit W-2 income earnings data by race/ethnicity, sex, and job category. Massachusetts will update this exclusion in the event the EEOC begins collecting this data again.

 

Pay Transparency. The disclosure of salary ranges in job postings is effective October 29, 2025. Additional guidance is expected prior to the effective date.

 

Action Items

  1. Review EEO-1 data and submit through the online portal if a covered employer.
  2. Continue monitoring LWD website for pay transparency guidance for job postings.

  

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. © 2025 ManagEase

New Jersey: Guidance on Algorithmic Discrimination

/in

APPLIES TO

Employers with Employees in NJ

EFFECTIVE

January 9, 2025

QUESTIONS?

Contact HR On-Call

(888) 378-2456
Quick Look

  • The New Jersey Division on Civil Rights issued guidance clarifying that state discrimination law prohibits algorithmic discrimination resulting from the use of AI and other automated technology.

Discussion:

On January 9, 2025, the New Jersey attorney general and the Division of Civil Rights announced the launch of a new Civil Rights and Technology Initiative to address the risks of discrimination stemming from the use of artificial intelligence (AI) and other advanced technologies.

 

As part of this initiative, the agency issued guidance clarifying that New Jersey law prohibits algorithmic discrimination, which can occur when automated decision-making tools—such as AI, machine learning, or predictive analytics—result in discriminatory outcomes. Employers using these tools must ensure that their design, training, and deployment do not unintentionally result in discrimination based on protected characteristics such as race, gender, or disability.

 

The guidance emphasizes that employers are responsible for ensuring that AI and automated tools do not violate the New Jersey Law Against Discrimination (NJLAD) by engaging in disparate treatment, disparate impact, or failing to accommodate individuals with disabilities. For instance, an AI tool designed to screen resumes could violate the law if it treats certain groups differently or if it disproportionately impacts protected groups. Employers must also ensure that the use of these tools does not impede reasonable accommodations for employees on the basis of disability, religion, or pregnancy, and they must be proactive in testing these tools for bias and considering alternatives that minimize discriminatory outcomes.

 

Action Items

  1. Review use of artificial intelligence in the workplace for compliance with anti-discrimination laws.
  2. Consult with legal counsel when implementing new technology that impacts worker 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. © 2025 ManagEase

Madison, WI: Restrictions on Use of Arrest and Conviction Records in Employment

/in

APPLIES TO

All Employers with Employees in Madison, WI

EFFECTIVE

December 5, 2024

QUESTIONS?

Contact HR On-Call

(888) 378-2456
Quick Look

  • Effective December 5, 2024, the Madison Common Council amended its EO ordinance to remove the three year lookback period for arrest and conviction records.

Discussion:

The City of Madison, Wisconsin amended its Equal Opportunities Ordinance to align with the Wisconsin Fair Employment Act (WFEA). The WFEA prohibits employers from discriminating against applicants and employees on the basis of arrest and conviction records. An employer must find that the crimes “substantially related” to the circumstances of the job in order to make decisions based on arrest and conviction records. Madison’s Equal Opportunities Ordinance had a similar restriction; however, it was limited to a three-year lookback period.

 

Effective December 5, 2024, the Madison Common Council amended the ordinance to remove the three-year lookback period. However, it also added the following to the ordinance which differs from WFEA:

 

Whether the circumstances of any such offense substantially relate to the circumstances of the particular job or licensed activity shall be based on the facts of the particular offense, including but not limited to the seriousness of the offense, the passage of time since the employee or applicant was placed on probation, paroled, released from incarceration, or paid a fine, for a felony, misdemeanor, or other offense, the age of the employee or applicant at the time the offense occurred, and the character of the employee or applicant.

 

How an employer is to consider the “character of the employee or applicant” is not clarified in the amendment. Madison employers should consult with legal counsel to make sure they are compliant with federal, state, and local requirements when it comes to reliance on criminal records in the hiring process.

 

Action Items

  1. Review use of arrest and conviction records in hiring with legal counsel.

  

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. © 2025 ManagEase

February Updates

/in

APPLIES TO

Varies

EFFECTIVE

Varies

QUESTIONS?

Contact HR On-Call

(888) 378-2456

 

Dual Jobs Standard Reinstated for Tipped Positions

On August 23, 2024, in Restaurant Law Center v. U.S. Department of Labor, the Fifth Circuit overturned the DOL’s 2021 regulation regarding how employers pay wages for dual-job workers who receive tips. In 2021, the DOL issued a Final Rule allowing an employer to use the tip credit and pay a lower hourly rate only if the employee did non-tipped work for 20% or less of the work time, and said that the tip credit could not apply to any continuous amount of non-tipped work performed over 30 minutes in a daily shift. On December 16, 2024, to be consistent with the Fifth Circuit ruling, the DOL announced a technical rule to restore the original dual jobs regulation, which says that related duties in a tipped occupation do not need to be directed toward producing tips.

 

California Pay Data Portal is Now Open

California Gov’t Code § 12999 requires employers with 100 or more payroll or labor contractor employees, with at least one employee in California, to annually submit data on the pay, hours worked, and demographics of their employees to the California Civil Rights Department (CRD). Reports must be submitted to the CRD portal by May 14, 2025. There are updated Excel templates, instructions, user guide, employer handbook, and FAQs.

 

Illinois: Eliminates Subminimum Wages for Disabled Employees

Illinois’ Dignity in Pay Act, signed into law on January 21, 2025, mandates the phased elimination of subminimum wages for individuals with disabilities in Illinois by December 31, 2029. Employers currently using Section 14(c) of the Fair Labor Standards Act (FLSA) should begin planning for this transition to paying employees with disabilities at least the applicable state minimum wage, which is $15 per hour as of January 1, 2025. The Act establishes a transition grant program to assist employers in integrating individuals with disabilities into competitive employment. Employers must also stay informed about the five-year transition plan being developed by the state, which will provide support and benchmarks for eliminating subminimum wages.

 

Illinois: Update to Illinois Service Member Employment and Reemployment Rights Act

Effective January 1, 2025, HB 5640 adds the United States Space Force as an official branch of the Armed Forces covered under the Illinois Service Member Employment and Reemployment Rights Act (ISERRA). Employers should review and update their military leave policies accordingly.

 

Indiana: New Veterans Benefits and Services Poster

As part of SB 15 which was passed in 2024, the Indiana Department of Labor recently released the new Veteran Benefits & Services poster, which must be posted by employers with 50 or more full-time employees. This new poster contains information about substance abuse and mental health treatment, Indiana Bureau of Motor Vehicles information, minority veteran resources, legal assistance and more. The poster can be found here, and should be displayed in a conspicuous place where employees are sure to see it.

 

New Jersey: No Cause of Action for Applicants Under CREAMMA

On December 9, 2024, the Third Circuit Court of Appeals issued a decision in Erick Zanetich v. Walmart Stores providing some important guidance regarding New Jersey’s Cannabis Regulatory Enforcement Assistance and Marketplace Modernization Act (CREAMMA). The court ruled that the Act does not allow job applicants to bring a private cause of action if their job offer is rescinded due to a positive cannabis test, as the Act only protects current employees from such actions. Employers should be aware that while this ruling limits potential lawsuits from applicants, the issue may still be challenged in New Jersey state courts. Employers should continue to stay informed about how this evolving case law could impact their hiring policies related to cannabis use.

 

New York: Warehouse Worker Injury Reduction Act

Effective June 1, 2025, the New York Warehouse Worker Injury Reduction Act requires warehouse employers that directly or indirectly employ at least 100 employees at a single warehouse distribution center, or at least 1,000 employees at warehouse distribution centers statewide, to create an injury reduction program, train employees on ways to reduce injuries, and identify and minimize the risks of musculoskeletal injuries in the workplace. The injury reduction program must identify and minimize the risks of musculoskeletal injuries and disorders and contains five components: (1) worksite evaluation after engaging a qualified ergonomist to evaluate each job, process, or operation; (2) control of exposures that have caused or have the potential to cause musculoskeletal injuries and disorders; (3) employee training that includes injury reduction training covering musculoskeletal injuries and disorders; (4) on-site medical and first aid practices staffed according to New York State supervision requirements and with medical professionals operating within their legal scope of practice; and (5) employee involvement with employees and their designated representatives consulted before and during the development and implementation of the program. The requirement to enlist a qualified ergonomist is effective June 19, 2025.

 

New York: Expanded Worker’s Compensation Coverage to Include Stress Claims

Effective January 1, 2025, S.6635/A.5745 allows any employee to file for workers’ compensation for specific types of mental health injuries that are based on extraordinary work-related stress. The purpose is to expand to all workers the ability to receive PTSD coverage under workers’ compensation. Prior law only extended this coverage to first responders. Employees can seek a stress claim based on the usual workplace stress, but the stress has to be shown to be extraordinary. There is no guidance yet as to what constitutes “extraordinary” stress. This law is predicted to cause a significant increase in workers’ compensation claims. Employers should review their workers’ compensation policies to make sure coverage includes the new protections.

 

New York: Fashion Workers Act Enacted

Effective June 19, 2025, A05631/S09832, also known as the Fashion Workers Act, requires model management companies to register their businesses and be subject to several duties and responsibilities. A model management company is defined as any person or entity that: (1) is in the business of managing models participating in entertainments, exhibitions or performances; (2) procures or attempts to procure, for a fee, employment or engagements for models; or (3) renders vocational guidance or counseling services to models for a fee in New York. A model is “an individual, regardless of the individual’s status as an independent contractor or employee, who performs modeling services for a client and/or model management company or who provides showroom, parts, or fit modeling services.” Registration with the New York Department of Labor includes: (a) submitting business information, including addresses, tax identification numbers, and ownership details; (b) posting a $50,000 surety bond for companies with more than five employees; and (c) paying a registration fee based on company size. Duties owed to models include, but are not limited to, ensuring that the engagement opportunities pose no unreasonable risk of danger, using best efforts to procure opportunities, and providing models with final agreements that were negotiated with clients at least 24 hours prior to the start of a model’s services. Clients of model management companies also have specific duties and obligations to models. The Act contains a private right of action as well as joint employer liability.

 

Oregon: Increased Minimum Salary for Noncompete Agreements

In January, the Oregon Bureau of Labor and Industries (BOLI) announced its annual increase for the minimum salary required for a noncompete agreement to be enforceable. State law requires that the minimum amount increase annually based on the Consumer Price Index. The minimum salary must now exceed $116,427. Employers should review noncompete agreements and processes with legal counsel for compliance.

 

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. © 2025 ManagEase