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 However, they did so after the Department of Finance rescinded its mandatory approval because of insufficient data on the financial impact to public entities.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.

---

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

APPLIES TO All Employers

EFFECTIVE As Indicated

QUESTIONS? Contact HR On-Call (888) 378-2456

Quick Look USCIS increased the filing fees for certain immigration and naturalization benefit requests. Fiscal Year 2025 H-1B cap lottery opens on Wednesday March 6, 2024 at noon ET and ends on Friday March 22, 2024 at noon ET. USCIS will implement a new “beneficiary-centric” system in an effort to ensure that all workers have the same chance of selection during the H-1B cap lottery process.

Discussion

In the last month, we saw some important immigration-related updates come from U.S. Citizenship and Immigration Services (USCIS). These developments are summarized below.

USCIS Increased Filing Fees

On January 30, 2024, the USCIS announced a final rule to adjust certain immigration and naturalization benefit request fees for the first time since 2016. The final rule goes into effect on April 1, 2024.

The rule contains a significant change concerning varying filing fees based on visa type. For example, the H-1B visa base filing fee increased from $460 to $780; whereas L-1 intracompany transferee visas increased from $460 to $1,385. Of note, the new fee structure will provide special fee discounts for qualifying small employers and non-profit entities. Under the rule, a small employer is defined as those having 25 or fewer full-time employees. A full list of the increased fees can be found here.

Fiscal Year 2025 H-1B Lottery Dates

The USCIS announced the dates for the fiscal year 2025 H-1B cap lottery, which opens on Wednesday March 6, 2024 at noon ET and ends on Friday March 22, 2024 at noon ET. This annual lottery is meant to select new H-1B candidates who will be eligible to file an H-1B petition. If approved, these individuals will be eligible to begin H-1B employment on October 1, 2024. Generally, this lottery is completed through a USCIS random computer-generated selection process, selecting enough electronic registrations to meet the annual H-1B quota.  This includes an annual regular quota for the H-1B category of 65,000 workers, and an additional annual “master’s” quota of 20,000 workers who have obtained their master’s degree or higher from an accredited U.S. university.

New Beneficiary Selection Process

On February 2, 2024, the USCIS also announced a new rule intending to make the H-1B process more fair for all applicants by minimizing the effects of multiple registrations unfairly increasing certain applicants’ chances for selection. Effective March 4, 2024, USCIS implemented a new “beneficiary-centric” system in an effort to ensure that all workers have the same chance of selection. The new system implements measures to require a beneficiary’s valid passport or travel document information at the time of registration. It also prohibits a beneficiary from being registered under more than one passport or travel document. This will make the selection process beneficiary-specific, rather than allowing for multiple registrations on behalf of the same worker.

The new rule allows for USCIS to exercise discretion in valid instances of a “legal name change due to marriage, change in gender identity, or a change in passport number or expiration date due to renewal or replacement of a stolen passport in between the time of registration and filing the petitions.” In these situations, the H-1B petition filed on behalf of the beneficiary must contain evidence of the valid change or circumstances.

Action Items

1. Review USCIS’s updated filing fees here.
2. Review USCIS’s new rule governing the H-1B cap lottery process here.
3. Consult with legal counsel on questions related to specific immigration and/or visa related situations.

---

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

APPLIES TO All Publicly Traded Companies

EFFECTIVE February 8, 2024

QUESTIONS? Contact HR On-Call (888) 378-2456

Quick Look The Supreme Court clarifies the framework for whistleblower claims under the Sarbanes-Oxley Act. Plaintiffs do not need to prove “retaliatory intent,” but instead need to prove that their whistleblower activity was a contributing factor in their termination.

Discussion

In Murray v. UBS Securities, LLC, the Supreme Court stated that a whistleblower does not need to prove that an employer acted with retaliatory intent when invoking the protections of the Sarbanes-Oxley Act of 2002 (SOX). Instead, a plaintiff only needs to show that their protected whistleblower activity was a “contributing factor” in their termination. Upon this showing, the burden transfers to the defendant to prove it would have terminated the plaintiff even absent the protected activity.

In this case, the plaintiff worked as a research strategist in a role that required him to certify that his reports to the employer’s customers were independently produced and reflected his own views. The employee informed his supervisor “that two [company leaders] were engaging in what he believed to be unethical and illegal efforts to skew his independent reporting,” and the employer terminated his employment shortly thereafter. The employee filed suit, alleging his termination was in retaliation for expressing his concerns.

In deciding the case, the Supreme Court reasoned that if an employer takes any adverse action because of an employee’s whistleblowing activity, that action constitutes “actionable discrimination,” and the employer’s lack of retaliatory intent is irrelevant.  In other words, the term “discrimination” does not necessarily require retaliatory intent. This decision also aligns with the Court’s interpretation of Title VII’s discrimination framework. Once the plaintiff has made a showing that their whistleblower activity was a contributing factor in their termination, the plaintiff must still demonstrate causation between the whistleblower activity and the adverse action taken by the employer.

Action Items

1. Review anti-discrimination, retaliation and harassment policies for compliance.
2. Update company reporting procedures to confirm employee complaints and/or concerns are properly collected, investigated, and rectified.
3. Have appropriate personnel trained on how to handle and respond to employee complaints and concerns.
4. Engage a third-party investigator when necessary to ensure whistleblower complaints and investigations are handled properly.
5. Consult with legal counsel before taking adverse action against employees who have submitted a work-related complaint, whether formal or informal.

---

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

APPLIES TO All Employers with Employees in ME

EFFECTIVE February 1, 2024

QUESTIONS? Contact HR On-Call (888) 378-2456

Quick Look Maine’s Equal Pay Act does not require a showing of intent to prove pay discrimination. The only allowable reasons for paying someone of the opposite sex a higher wage for the same kind of work are seniority, merit pay, or shift differentials.

Discussion

In Mundell v. Acadia Hospital Corp., the First Circuit Court of Appeals stated that the Maine Equal Pay Act does not require a showing of intent to prove pay discrimination. Instead, an employer will face liability under the Maine Equal Pay Act when employees of one sex are being paid less than employees of the opposite sex for comparable work in comparable jobs, regardless of intent, unless the employer can demonstrate that the disparity stems from seniority, merit, or shift differentials.

In this case, Mundell worked as a licensed clinical psychologist where she earned an hourly rate of $50 per hour. In her lawsuit, Mundell alleged that the hospital violated the state’s equal pay law by paying Mundell’s male counterparts in the department between $90 to $95 per hour. On appeal, the hospital argued that the lower court’s decision in favor of Mundell was incorrect because the hospital’s intent to discriminate was not established. Instead, the hospital claimed a reasonable-factor-other-than-sex defense and cited “market factors” to explain the difference in pay.

The court found it significant that the Maine equal pay law had previously been amended to remove the broad catch-all defense for any “other reasonable differential except difference in sex,” and therefore provides greater protections than those provided under the federal Equal Pay Act, which contains a similar catch-all defense for pay differentials. Looking at the plain language of the law, the court found that the only allowable reasons for paying someone of the opposite sex a higher wage for the same kind of work are seniority, merit pay, and/or shift differentials.

Because of this, the court declined to accept the hospital’s “reasonable factor other than sex” defense and found instead that the hospital had violated the state’s equal pay law by failing to compensate Mundell in line with her male colleagues.  The court also noted that the Maine legislature recently broadened the state’s Equal Pay Act to include pay discrimination based on race.

Action Items

1. Conduct an equal pay audit.
2. Review pay differentials for similar positions 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. © 2024 ManagEase

APPLIES TO Private Employers with 100+ EEs filing EEO-1 reports

EFFECTIVE February 1, 2024

QUESTIONS? Contact HR On-Call (888) 378-2456

Quick Look Employers must use updated report templates when filing pay data reports by May 8, 2024. Reports must now identify whether workers are remote. Employers cannot report “unknown” data for labor contractor employees.

Discussion

Private employers with 100 or more total employees, with at least one employee in California, who are required to file EEO-1 reports must also file separate pay data reports with the state by May 8, 2024. Required pay data is reported according to race, ethnicity, and gender. Private employers with 100 or more employees hired through labor contractors must also submit a separate pay data report for those workers in California. Note that employers must report on their workers assigned to California establishments and/or working within California. Employers may not report on workers who are working outside of California and are assigned to an establishment outside of California.

 

The California Civil Rights Department (CRD) recently updated its guidance to assist employers with their filing obligations. The guidance generally remains consistent with some key updates.

 

Updated Report Templates. Importantly, the CRD updated the User Guide, report templates, training slides, and its reporting portal. Employers must use the newest reporting templates as the portal will reject old versions. The templates have also been enhanced with embedded instructions when hovering the cursor over columns.

 

Remote Worker Data. Employers must now report whether employees worked remotely during the Snapshot Period. A “remote worker” includes a payroll or labor contractor employee who is entirely remote, teleworking, or home-based, and has no expectation to regularly report in person to a physical establishment to perform work duties. Employees in hybrid roles or (partial) teleworking arrangements expected to appear in person to perform work at a particular establishment for any portion of time during the Snapshot Period would not be considered remote workers for pay data reporting purposes. The “Snapshot Period” is a single pay period between October 1 and December 31 of the Reporting Year.

 

Reporting “Unknown” Data. For Labor Contractor Employee Reports, reporting “unknown” race/ethnicity or sex of a labor contractor employee is no longer permitted. If an employee declines to voluntarily provide their race/ethnicity, employers must still report the employee using (in the following order): current employment records, other reliable records or information, or observer perception. If an employee declines to state their sex, employers must still report the employee as male, female, or non-binary, using current employment records or other reliable records or information, such as an employee’s self-identified pronouns.

 

Covered employers should be preparing to file the required reports by May 8, 2024. The CRD is actively pursuing non-filers, including seeking monetary penalties of $100 per employee for the first violation and $200 per employee for subsequent violations.

 

Action Items

1. Review updated guidance here.
2. Download the current User Guide and templates here.
3. Prepare the required reports for timely filing.

---

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