April Updates

USCIS Redesigned Green Cards and EADs

Personnel who inspect work authorization documents should note that the U.S. Citizenship and Immigration Services (USCIS) have announced new designs to Permanent Resident Cards (Green Cards) and Employment Authorization Documents (EADs). The changes are meant to improve the security of the documents and are part of the routine update process. USCIS started issuing the new cards on January 30, 2023. Appropriate personnel should review samples of the redesigns to familiarize themselves with the new design of the documents.

Updated FCRA Summary of Consumer Rights

The Consumer Financial Protection Bureau (CFPB) released a new version of the Summary of Your Rights Under the Fair Credit Reporting Act on March 17, 2023. Employers must use the updated document by March 20, 2024. Employers must include the Summary with pre-adverse action notices in addition to providing it to applicants and employees to comply with the Fair Credit Reporting Act. The updates to the Summary are largely non-substantive and are technical corrections.

Arizona: Updated Recordkeeping Requirements for Paid Sick Leave

Arizona amended its general recordkeeping requirements under the Earned Paid Sick Time Act. Employers no longer have to maintain records of the employee’s earned paid sick time balance that is carried over to the current year, accrued to date in the current year, or provided to date in the current year. Employers also no longer have to record total premium pay for overtime hours and an explanation of how the premium pay was calculated exclusive of straight-time wages for overtime hours recorded. Employers still must record the amount of earned paid sick time available, the amount of earned paid sick time taken to date in the year, and the amount of pay received as earned paid sick time.

California: Proposition 22 Work Classification Law Mostly Upheld

On March 13, 2023, in Castellanos v. State of California, the California Court of Appeal mostly upheld a voter approved worker classification law. Proposition 22 classified certain app-based rideshare and delivery drivers as independent contractors but mandated companies using their services to provide at least 120% minimum wage during engaged time, payment per mile, healthcare coverage for certain number of hours worked, and anti-harassment policies. After a legal challenge, the court ruled Proposition 22 was valid but struck down the portion that defined what constituted an amendment of the Proposition since it intruded on legislative and judiciary authority.

California: CDPH Follows CDC Guidance on COVID-19 Isolation and Quarantine

Effective March 13, 2023, the California Department of Public Health’s guidance on COVID-19 isolation and quarantine mostly follows the Centers for Disease Control’s revised guidance. Of note, there is no longer a testing obligation in order to leave isolation before Day 10 if symptoms are absent or mild and improving and the individual is fever-free for 24 hours without using fever-reducing medication. This is a change to the definition of “infectious period.” Individuals returning from isolation can also remove their masks before Day 10 if they have two sequential negative tests at least one day apart. Close contacts must still mask for 10 days.

California: Outdoor Workers Must Have Access to Drinking Water

On February 6, 2023, California’s Occupational Safety and Health Appeals Board (OSHAB) held that employers must provide drinking water “as close as practicable” to outdoor workers. Under the Heat Illness Prevention Standard, employees must have access to potable drinking water “located as close as practicable to the areas where employees are working.” In the Rios Farming Company, LLC, an OSHAB administrative law judge found “as close as practicable” to mean employers are required to locate water as close to the areas where employees are working as can be reasonably accomplished in order to encourage frequent water consumption, while taking into consideration the specific jobsite conditions. In this case, the employer’s location of water jugs forced employees to move through trellises, sometimes at great distances, creating tripping hazards as well as the need for repetitive bending and balancing. This created a deterrent effect to frequent water consumption. Employers should evaluate their current locations for drinking water and make changes if the location deters frequent consumption.

California: CPRA Final Regulations Approved and in Effect

California’s Office of Administrative Law (OAL) approved the California Privacy Rights Act’s (CPRA) long-awaited final regulations. Although the CPRA went into effect on January 1, 2023, the final regulations are effective as of March 29, 2023 and provide additional guidance on the implementation of the CPRA. Employers should take specific note that the consumer rights protections of the CPRA now apply to workforce personal information. The workforce includes employees, applicants, and independent contractors. Employers should consult with legal counsel to evaluate their compliance obligations.

Berkeley, CA: Fair Work Week Ordinance Adopted

As of January 1, 2024, businesses in Berkeley with at least 10 employees within the city will need to comply with the Fair Work Week Ordinance. Employers will have to provide a written, good-faith estimate of employees’ work schedules to all current employees and before hiring new employees. A new employee may ask to modify the estimated work schedule and the employer has sole discretion to accept or reject the request. The estimate of the work schedule must be provided with at least two weeks’ notice either through posting in a conspicuous place or through electronic means. Additional work hours and shifts must be offered to current employees first before hiring new employees. Any changes to a schedule must be provided within 24 hours of a change, and the employee has the right to decline any previously unscheduled hours added to the employee’s schedule if the notice was provided less than 14 days before the first day of the schedule. Changes to schedules require an hour of predictability pay at the employee’s regular rate of pay whenever changes in an employee’s schedule occur with certain limitations.

Connecticut: Continued At-Will Employment is Consideration for Restrictive Covenants

In Schimenti Construction Company, LLC v. Schimenti, the Connecticut Appellate Court ruled continued at-will employment is sufficient consideration for restrictive covenant agreements like non-disclosure, non-compete, or non-solicit agreements. Here, an employee entered into a non-disclosure agreement in 2014 with a two-year non-compete and resigned in 2018. The employer filed a claim that the employee breached the duties owed under the non-disclosure agreement. In its ruling, the court relied on precedent that the underlying purpose of the employee entering into such agreements was to continue employment at a mutually agreeable salary. The benefit offered to the employee was continued employment in exchange for services provided to the employer. The court remanded the case to the trial court for additional proceedings including the opportunity for the employee to present evidence that there was no connection between the non-disclosure and continued employment. Continue to look for updates on this case.

Kentucky: Economic Realities Test for Independent Contractor Classification

In Oufafa v. Taxi, LLC, the Kentucky Supreme Court ruled it would adopt the economic realities test to determine whether a worker is an employee or an independent contractor to determine eligibility for workers’ compensation. Here, a taxicab company allegedly sought to avoid workers’ compensation benefits for a driver who was shot in the shoulder by claiming he was an independent contractor and not an employee. The economic realities test consists of six factors: 1) the permanency of the relationship between the parties; 2) the degree of skill required for the rendering of the services; 3) the worker’s investment in equipment or materials for the task; 4) the worker’s opportunity for profit or loss, depending upon their skill; 5) the degree of the alleged employer’s right to control the manner in which the work is performed; and 6) whether the service rendered is an integral part of the alleged employer’s business. Employers should note that there are multiple different independent contractor tests depending on the applicable law and governmental agency involved.

Maryland: Montgomery County Minimum Wage Increase

On July 1, 2023, the minimum wage in Montgomery County will increase to $16.70 per hour for employers with 51 or more employees. Employers with 50 or fewer employees will see an increase to $15.00 per hour. Employers with 10 or fewer employees must pay $14.50 per hour. Bill 28-17 requires the minimum wage to be raised incrementally each July 1. Employees aged 18 and under, working under 20 hours per week, are exempt from this rate but must earn at least 85% of the state minimum wage rate.

Michigan: Amendment to Protect LGBTQ Rights

SB 4 expands the Elliott-Larsen Civil Rights Act (ELCRA) to protect against discrimination based on gender identity or sexual orientation. The amendment defines gender identity or expression as “having or being perceived as having a gender-related self-identity or expression, whether or not associated with an individual’s assigned sex at birth.” Sexual orientation means “having an orientation for heterosexuality, homosexuality, or bisexuality or having a history of such an orientation or being identified with such an orientation.” The amendment codifies existing case law but expands it by adding protections for gender identity and expression. Employers should update existing policies and trainings.

New York: Warehouse Worker Protection Act Delayed

The Warehouse Worker Protection Act has been amended to delay its enactment to June 19, 2023 and change several provisions. It no longer applies to drivers or couriers to or from a warehouse distribution center. The threshold for coverage has been increased from 500 to 1,000 employees in the aggregate for multiple warehouses. The deadline for notices of quotas also reflects the new enactment date of June 19, 2023. The recordkeeping requirement has been changed to a three-year requirement. Employers now have 14 calendar days to respond to employee requests for records. Former employees are limited to one request for records. There is also a rebuttable presumption of unlawful retaliation for adverse actions taken against employees within 90 days of initiating a request for quota data or making a complaint. Employers should review the changes and make updates as necessary prior to June.

New York: Criminal Charges for Wage Theft

The Manhattan District Attorney’s office is partnering with the New York State Department of Labor and local law enforcement to create the “Worker Protection Unit and “Stolen Wages Fund.” The Worker Protection Unit will focus on criminal charges against companies and their executives and managers who commit wage theft. The Stolen Wage Fund will compensate victims of wage theft. Employers who engage in wage theft can face charges of property theft and be prohibited from receiving future New York City contracts. SB S2832 is also pending approval to add wage theft to the list of activities included in the crime of larceny.

Utah: Restrictions on Use of Vaccination or Immunity Status for Employment Decisions

Effective May 3, 2023, HB 131 prohibits employers, government entities, and places of public accommodation from using proof of immunity or vaccination status as a restriction including when making employment decisions. Prohibited acts include: 1) refusing employment to an individual; 2) barring an individual from employment; or 3) discriminating against an individual in compensation or in any term, condition, or privilege of employment. The restrictions on discrimination do not apply to: 1) federal contractors; 2) regulated entities whose compliance with the law would affect funding from federal agencies; 3) employees who have direct exposure to infectious materials that may expose them to hepatitis or tuberculosis; 4) employers who have a nexus or external requirement for vaccination related to the employee’s duties and responsibilities; and 5) contracts for goods and services entered into before May 3, 2023 where compliance with the law would substantially impair the contract (excludes contracts between employers and employees). There is no prohibition on recommending that employees receive vaccinations. Employers should update their health and safety policies and train appropriate personnel prior to the effective date.

Seattle, WA: Caste Discrimination Prohibited

Effective March 22, 2023, the Seattle City Council passed a first-in-the-nation ordinance prohibiting discrimination in employment, education, and housing based on a person’s caste. Caste is defined as a system of rigid social stratification characterized by hereditary status, endogamy, and social barriers sanctioned by custom, law, or religion. It is a system that is primarily associated with the South Asian region where its existence is linked to the social structure of Hinduism. The majority of affected communities live in or originate from India, Nepal, Sri Lanka, Bangladesh, and Pakistan. The ordinance cites that the South Asian population is the fastest growing major ethnic group in Seattle and have brough the concept of caste and associated discrimination with them to Seattle communities. The ordinance also cited a recent high-profile case in which the former California Department of Fair Employment and Housing (now Civil Rights Department) sued a tech company for discrimination under ancestry and race where the employee alleged discrimination based on caste by his managers. The case demonstrated that caste discrimination needed to be specifically addressed by law. Employers should update their policies and trainings to reflect that caste discrimination is prohibited.

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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. © 2023 ManagEase