April Updates

IMPORTANT! EEO-1 Reporting for 2021 is Now Open Through May 17, 2022

On April 12, 2022, the EEOC announced that the 2021 EEO-1 Component 1 data collection portal is now open. The EEO-1 Component 1 report is a mandatory annual data collection that requires all private sector employers with 100 or more employees and federal contractors with 50 or more employees meeting certain criteria, to submit workforce demographics including data by race/ethnicity, sex, and job categories. The deadline for submitting and certifying 2021 EEO-1 Component 1 Reports is May 17, 2022.

 

Tuscon, AZ: Updates to Employer Permissions Under Local Minimum Wage Act

Effective April 1, 2022, under Tuscon Ordinance No. 11868, an employer may not require an employee to receive minimum wage payments on a paycard, reloadable debit card or similar method that requires the employee to possess a valid Social Security number. In addition, unless required by law or a court order, an employer may not make deductions that would bring the employee’s pay to less than minimum wage, including but not limited to amounts deducted for employer-provided meals, and damaged, lost, or spoiled property.

California: Diversity Requirements for Corporate Boards Unconstitutional

On April 1, 2022, in Crest v. Padilla, a California Superior Court stated that AB 979 was unconstitutional in violation of the state’s equal protection clause. The bill from 2020 requires certain corporates to have a minimum number of directors from underrepresented communities. Notably, SB 826 from 2018, which requires a certain number of female directors to be on corporate boards depending on size, is still in litigation.

 

San Francisco, CA: Family Friendly Workplace Ordinance Expanded

Effective July 12, 2022, San Francisco’s Family Friendly Workplace Ordinance (FFWO) will be amended to require employers to provide predictable or flexible working arrangements upon request for employees with qualifying caregiving needs, now also including for elderly family members other than parents, except where it would create an undue hardship for the employer. This applies to employees who work on-site in San Francisco, or who work remotely but are permitted to work from an employer office or worksite in San Francisco. Employers are also required to engage in a good-faith interactive process to accommodate employee requests.

 

New Jersey: FAA Preempts NJLAD on Issue of Mandatory Arbitration

On February 15, 2022, in Antonucci v. Curvature Newco, Inc., the New Jersey Appellate Division confirmed that the Federal Arbitration Act (FAA) preempted the New Jersey Law Against Discrimination’s (NJLAD) prohibition of mandatory arbitration of discrimination claims. The ruling only applies to arbitration agreements subject to the FAA. Although a previous federal district court made the same determination last year, this is the first published ruling by a state court cementing the rule as precedent.

 

Oregon: Emergency Paid Leave Expanded

Effective April 1, 2022, Oregon expanded the reasons employees can take paid sick and safe leave during a public health emergency, including (1) an emergency evacuation order of level 2 (SET) or level 3 (GO) issued by a public official with the authority to do so, if the affected area subject to the order includes either the location of the employer’s place of business or the employee’s home address; or (2) a determination by a public official with the authority to do so that the air quality index or heat index are at a level where continued exposure to such levels would jeopardize the health of the employee.

 

Utah: COVID-19 Vaccine Exemptions Expanded

On May 3, 2022, HB 63 will expand the exemptions employers must offer when requiring employees to be vaccinated for COVID-19. Specifically, employees or prospective employees may submit “a letter from the employee or prospective employee’s primary care provider stating that the employee or prospective employee was previously infected by COVID-19.” While employers cannot take adverse action against an employee for acting in accordance with the law, adverse action does not include reassignment if the employee’s vaccination status is not the only reason for reassignment. Additionally, the bill expands exceptions to when employers must allow exemptions and revises employer recordkeeping obligations.

 

Virginia: Rescinds COVID-19 Safety Standard

Effective March 23, 2022, Governor Youngkin approved the revocation of the state’s permanent COVID-19 safety standard on the grounds that COVID-19 no longer poses a “grave danger” to workers. However, the Virginia Occupational Safety & Health Administration (VOSH) can still cite employers for COVID-19-related safety concerns under existing regulations, such as respiratory protection, sanitation, and personal protective equipment. Employers should continue to ensure they are providing employees with a safe workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” To that end, VOSH issued draft guidance on how employers can continue to protect employees from COVID-19.

 

Washington: New EAP Confidentiality Requirements for Employers

As of June 9, 2022, SB 5564 prohibits employers from obtaining individually identifiable information regarding an employee’s participation in an employee assistance program, subject to limited exception. Regardless, individually identifiable information gathered in the process of conducting an employee assistance program (EAP) must be kept confidential. Moreover, an employee’s participation or nonparticipation in an EAP must not be a factor in a decision affecting an employee’s job security, promotional opportunities, corrective or disciplinary action, or other employment rights. Employers should review requirements with EAP administrators and appropriate personnel for compliance.

 

Washington: Employers Responsible for Returned Check Fees

As of June 9, 2022, HB 1794 requires employers to reimburse employees for any bank fees resulting from paychecks returned for nonsufficient funds, except where such is the result of bank error as confirmed in writing by the bank, provided that the employee presents the returned check within 30 days of receipt.

 

Wyoming: “Blue Penciling” Employee Noncompete Agreements is Now Prohibited

On February 25, 2022, in Hassler v. Circle C Resources, the Wyoming Supreme Court overruled its own precedent stating that courts are prohibited from revising, or “blue penciling,” noncompete agreements to make them enforceable. It noted that blue penciling places an unfair burden on employees. Because the agreement there was unreasonable on its face, the whole agreement was void and unenforceable. Employers should review noncompete agreements with legal counsel to ensure they are narrowly tailored to the applicable situation in order to survive judicial scrutiny.

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

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