April Updates

 

California: Paid Sick Leave Clarified

In March 2024, the California Department of Labor Standards Enforcement (DLSE) updated the paid sick leave FAQs to clarify that the standard accrual rate is 1 hour for every 30 hours worked. Employers only need to comply with the requirement that employees earn 24 hours/3 days by the 120^th calendar day of work and 40 hours/5 days by the 200^th calendar day of work if they are using an accrual method other than the standard 1:30 method. The 120^th and 200^th day measurement is not required if the employers provide the 1 hour for every 30 hours worked or a more generous benefit accrual rate. The 120^th and 200^th day measurement also assumes full-time employment. Employers should evaluate paid sick leave policies for compliance.

 

California: Proposed Heat Illness Standard in Limbo

On March 21, 2024, the Occupational Safety and Health Standards Board (OSHSB) voted to adopt the proposed heat illness standard. However, they did so after the Department of Finance rescinded its mandatory approval because of insufficient data on the financial impact to public entities. Following OSHSB’s vote, the California Office of Administrative Law (OAL) has 30 working days to review the rulemaking record before it either approves and finalizes the rule or rejects and returns it to OSHSB. This irregularity puts the heat illness standard at risk of rejection or legal challenge depending on what OAL does with it. Either way, a standard is likely to be passed at some point in the future and employers should still prepare for compliance.

 

California: AB 5 is Not Preempted by Federal Law

On March 15, 2024, in California Trucking Association v. Rob Bonta, a federal district court stated that AB 5 (independent contractor statute) is not preempted by the Federal Aviation Administration Authorization Act (FAAAA), the Dormant Commerce Clause, or the Equal Protection Clause, meaning that AB 5 continues to apply to freight hauling drivers. Freight hauling drivers are considered employees unless they meet the ABC test stated in AB 5.

California: More Exemptions to Fast-Food Minimum Wage

As of March 25, 2024, AB 610 adds exceptions to the fast-food minimum wage requirements which are effective as of April 1, 2024, including restaurants that are: (1) located in an airport (excluding any military base or federally operated facility); (2) connected to or operated in conjunction with hotels, events centers, theme parks, public or private museums, and gambling establishments; (3) located on a corporate campus, primarily serving employees, and subject to a concession or food service contract; or (4) located on certain public lands owned by the state, city, or county and subject to a concession or food service contract.

 

Los Angeles, CA: New Background Check Requirements Coming!

On September 3, 2024, a new Los Angeles fair chance hiring ordinance will expand requirements and protections surrounding background checks for employers located or doing business in the unincorporated areas of Los Angeles County and employing five or more employees regardless of location. All job solicitations, bulletins, postings, announcements, and advertisements must include language stating that qualified applicants with arrest or conviction records will be considered for employment in accordance with the ordinance and state law. There is also a workplace notice posting requirement. Employers must provide notice to applicants when extending a conditional job offer that the offer is contingent on a successful criminal history screen and include a specific description of the “good cause” justifying review of the background information, as well as a review of employment and education history, if applicable. Employers will not be able to inquire about applicants’ criminal history until after they receive the results of the criminal background check. Record retention is required for four years. Employers should prepare to update background screening and hiring processes consistent with the new requirements.

 

Florida: Stop-WOKE Law Injunction Upheld

On March 4, 2024, a unanimous three-judge panel from the Eleventh Circuit Court of Appeals issued a decision upholding and continuing the preliminary injunction against Florida’s Individual Freedom Act (IFA). The IFA, also known as the “Stop-WOKE Law” was passed in 2021 and, in part, sought to prohibit employers from mandating that employees attend meetings or trainings that support messages that members of one ethnic group are inherently racist and/or should feel guilty for past actions committed by others. A preliminary injunction was initially issued by the Florida’s Northern District Court in August of 2022. In issuing the most current decision to uphold the preliminary injunction, the Eleventh Circuit stated that “the government cannot decide to ban speech that it dislikes because this would effectively empower a majority to silence dissidents simply as a matter of personal predilections.” As a result of the ruling and absent any further legal challenges, Florida employers are not required to comply with the IFA.

 

 

Illinois: Benefits for Temporary Workers Stayed

In 2023, Illinois passed amendments to the Illinois Day and Temporary Labor Services Act which included, among other things, an obligation for employers to provide temporary employees with benefits equivalent to those provided to certain directly hired employees. Since passage, the amendments have faced legal challenges by several staffing agencies claiming that certain sections of the law are preempted by the National Labor Relations Act (NLRA), the Employee Retirement Income Security Act (ERISA) and the due process clause of the U.S. and Illinois state Constitutions. On March 11, 2024, the U.S. District Court for the Northern District of Illinois issued an order agreeing that ERISA does in fact preempt the law’s equivalent benefits requirement, stating that the obligation interfered with the uniformity ERISA seeks to achieve by creating alternate, discretionary administration mechanisms for temporary workers in Illinois, but not for workers outside the state. As a result, companies are temporarily relieved of the obligation to comply with the law’s equivalent benefits requirement. That said, the court declined to enjoin other aspects of the law, including the labor dispute notification requirement and the expanded private right of action provision. Employers therefore are still required to comply with these provisions at this time and should continue to monitor any further developments.

 

New Jersey: Domestic Worker Bill of Rights

Effective July 4, 2024, domestic workers are protected under the New Jersey Law Against Discrimination and the New Jersey Wage and Hour Law. Under S723/A822, also known as the Domestic Workers’ Bill of Rights, a domestic worker is an individual who works in a residence for the purpose of: (1) caring for a child; (2) serving as a companion or caretaker for a sick, convalescing, or elderly person, or a person with a disability; (3) housekeeping or house cleaning; (4) cooking; (5) providing food or butler service; (6) parking cars; (7) cleaning laundry; (8) gardening; (9) personal organizing; or (10) for any other domestic service purpose. Individuals who care for family members are excluded from coverage under the law. Among the requirements in the law are notice to domestic workers of their rights, 30-minute meal breaks after five consecutive hours worked, and a 10-minute break period for every four consecutive hours worked. Domestic workers who live at the residence must also receive an unpaid day off after working six consecutive days for the same employer. Employers are also required to provide two-weeks’ notice prior to termination and four weeks’ notice for “live-in” domestic workers. Affected employers should review their current policies for compliance with the law.

 

New York: Temporary Stay of Enforcement of State Employment Relations Act

On February 21, 2024, in New York State Vegetable Growers Association, Inc. v. Letitia James, the New York District Court granted a temporary restraining order against enforcement of a 2020 amendment to the State Employment Relations Act (SERA) on the grounds that it violated the First Amendment by chilling employers’ speech through impermissible viewpoint discrimination. Here, a trade group and five New York farms argued SERA § 704-b(2)(c) constituted unlawful viewpoint-based discrimination by making it unlawful for employers to discourage employees from union organization or engaging in protected concerted activity. The plaintiffs stated the law targeted employers’ ideas or opinions and not their conduct. Although the court ruled in the plaintiffs’ favor and granted the temporary injunction, the ruling did not address whether the SERA amendment was preempted by the National Labor Relations Act which does provide employers the right to express views, arguments, or opinions that do not contain threats of reprisals or force or promise of benefit. While the temporary injunction is in place, a hearing is pending on the merits of the First Amendment challenge. New York employers should continue to monitor this case for additional updates.

 

Washington: Pandemic-Era Changes to Voluntary Contributions Program Now Permanent

Effective June 5, 2024, HB 1901 makes pandemic-era changes to the Employment Security Department’s (ESD) Voluntary Contributions Program (Program). The Program allows employers to reimburse the ESD for benefits paid up front in exchange for subtracting the benefits charges from the employer’s account to reduce the employer’s experience tax. Several changes that were implemented in 2021 were set to expire on May 31, 2026. However, HB 1901 now makes those changes permanent. The permanent changes are: (1) removal of the 10% surcharge requirement; (2) opening the program up to employers that have moved eight rate classes; (3) allowing employers to buy down enough benefit charges to move down at least two rate classes; and (4) extending the deadline to apply for voluntary contributions from February 15 to March 31 each year. Employers should review the examples provided by the ESD to see how the changes may affect their specific circumstances.

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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. © 2024 ManagEase