APPLIES TO All Employers with NY Employees

EFFECTIVE June 21, 2023

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

Quick Look Updates to NY WARN Act regulations mirror the Federal WARN Act and create additional requirements before plant closing, mass layoff, relocation, or a reduction in work hours.

Discussion

The New York State Department of Labor (NYSDOL) issued its final updated regulations to the New York State Worker Adjustment and Retraining Notification Act (NY WARN Act). The NY WARN Act is more strict than its federal counterpart and has additional definitions for what constitutes a mass layoff. The updates address how to count remote employees, transferring employees as a condition of a purchase agreement, and additional notice requirements. The key changes are the following:

Covered Employer. Employers must now count full-time remote employers who are based at the employment site and not just the employees who are physically at a single site of employment in order to assess whether the employer meets the 50-employee count for applicability.

Notice Requirements. NY WARN requires notice to both the New York Commissioner of Labor and to affected employees. These notices now have additional required content. The notice to the Commissioner must now include: 1) business addresses and email addresses for the employer’s and employees’ agents; 2) the personal telephone numbers, personal email addresses (if known), work locations, part-time/full-time status, method of payment (i.e., hourly, salary, or commission basis), and union affiliation for each affected employee; 3) the total number of full-time employees in New York State and at each affected site, as well as the number of affected employees at each affected site; and 4) the total number of part-time employees in New York State and at each affected site, as well as the number of affected employees at each affected site.

The notice to affected employees must now include additional information, if known: 1) information on severance packages or financial incentives for employees who work until the effective date of the layoff; 2) available dislocated worker assistance; 3) estimated duration of any temporary layoff; 4) complete legal business name and any business names used in the operation of the business; 5) address of the affected employment site; 6) separation date; and 7) business address and email address of the employer’s agent.

In addition to these changes, employers also now have to provide notice to the following entities that are located near the site of employment: the chief elected official of the unit or units of local government; the school district; and the locality that provides police, firefighting, emergency medical or ambulance services, or other emergency services.

Exceptions to NY WARN. If a transfer of employees is part of a purchase agreement, the seller is relieved of liability if the purchaser does not provide employees with required notice. NY WARN already permits employers to give less than the full 90-days’ notice to affected employees but additional changes now clarify: 1) the faltering company exception is applicable only to plant closing; and 2) the unforeseeable business circumstances exception now includes public health emergencies resulting in a sudden and unexpected closure, like a pandemic, or a terrorist attack that directly affects operations.

Employers must request an exception from the Commissioner. The request must be submitted within 10 days of providing the required notice to the Commissioner. Documentation supporting the exception includes: 1) a statement explaining the reasons for the layoff, closure, or hours reduced; 2) description of why a shorter notice period is required; and 3) and an affidavit signed under penalty of perjury confirming that the documentation and statements are true and correct. The Commissioner has the right to conduct an investigation to determine whether an exception is applicable.

Action Items

1. Review the updated regulations here.
2. Consult with legal counsel prior to implementing a plant closing, mass layoff, relocation, or a reduction in work hours.
3. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

---

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

EEOC: Updated Technical Guidance Released on Visual Disabilities in the Workplace

On July 26, 2023, the Equal Employment Opportunity Commission (EEOC) released updated technical guidance explaining how the Americans with Disabilities Act (ADA) applies to job applicants and employees with visual disabilities, such as blindness, visual impairments, or other vision-related conditions. The guidance outlines when an employer may ask an applicant or employee questions about their vision, how an employer should treat voluntary disclosures about visual disabilities, how an employer should handle safety concerns about applicants and employees with visual disabilities, and how an employer can ensure that no employee is harassed because of a visual disability. The updated guidance also explains what types of reasonable accommodations those with visual disabilities may need in the workplace, and highlights new technologies for reasonable accommodation, including a discussion on how using artificial intelligence (AI) and algorithms to make employment decisions can impact individuals with visual disabilities.

EEOC: New Human Trafficking Guidance for Young Workers

On July 27, 2023, the EEOC added a new section on human trafficking to its Youth At Work webpage. The new section is intended to help young employees, employers, educators, parents, and others be able to identify signs of human trafficking and to understand when human trafficking may violate the laws that the EEOC enforces. The section includes tips for staying safe in the workplace, examples of EEOC lawsuits involving human trafficking, and links to other resources to assist people who believe that they or others may have been trafficked. The EEOC provides this update as part of the U.S. government’s National Action Plan to Combat Human Trafficking.

OSHA: Proposed Rule to Clarify Personal Protective Equipment Standard

On July 19, 2023, the Department of Labor announced a notice of proposed rulemaking to clarify the personal protective equipment (PPE) standard for the construction industry. The current standard does not clearly state that PPE must fit each affected employee properly, while the Occupational Safety and Health Administration’s general industry and maritime standards do. The proposed change would clarify that PPE must fit each employee properly to protect them from occupational hazards – aligning the PPE standard for construction with that of general industry and maritime standards. As part of the rulemaking process, comments and hearing requests have been solicited and must be submitted by September 18, 2023. Employers can likely expect to see a final rule by the end of 2023 or in early 2024.

OSHA: Expansion of Electronic Injury and Illness Reporting

Effective January 1, 2024, employers in high-hazard industries with 100 or more employees must submit Form 300 and Form 301 electronically via OSHA’s Injury Tracking Application (ITA). Employers should review the updated rule prior to the effective date to make sure they are able to comply. Several industries are also identified in the rule as “high-hazard industries” ranging from cattle ranching and farming to warehousing and storage. The new submission method increases OSHA’s ability to target employers through programmed inspections. The rule also significantly increases the exposure of employers to OSHA scrutiny. Additionally, the ITA has been accused of being unreliable and hard to use. This can cause issues for employers who are not familiar with the process since noncompliance can result in citations. Employers should review their recordkeeping and injury reporting procedures now to avoid noncompliance.

California: No Duty to Prevent COVID-19 from Spreading to Employee’s Household

On July 6, 2023, in Kuciemba v. Victory Woodworks, Inc., the California Supreme Court stated that employers have no duty to prevent the spread of COVID-19 to its employees’ household members. There, an employee contracted COVID-19 through his co-workers due to the employer’s poor safety practices, which ultimately spread to his wife who was hospitalized for several weeks. Notably, although the spouse in this instance would not have a claim against the employer, this case does not impact an employee’s own ability to pursue workers’ compensation benefits, if any, for their own COVID-19 illness contracted in the workplace, or other remedies that may be available for employer safety violations.

California: Attorney General is Enforcing the CCPA While the CPRA is Delayed

On July 14, 2023, the California Attorney General announced that it is inquiring into whether and how large companies are complying with the California Consumer Protection Act (CCPA) currently in effect. As of January 1, 2023, covered businesses must comply with the CCPA’s privacy protections of employee data. This announcement comes two weeks after a court ruling that delayed enforcement of any individual regulation related to the California Privacy Rights Act (CPRA) for one year. The CPRA amended the CCPA and the CPRA regulations were just finalized in March. Covered employers should ensure that they are complying with the CCPA until the CPRA is enforced next year.

Colorado: Employer Breach Excuses Employee from Post-Employment Obligations

On June 29, 2023, in Zuni Payments, LLC v. Kosarek, the Colorado Court of Appeals said an employer could not recover damages due to breach of an otherwise enforceable restrictive covenant because the employer materially breached the employment agreement first. Here, an executive for a credit card processing company signed an employment agreement with a non-solicitation provision at the start of employment. Due to a reduction in salary, the employee negotiated to become an independent contractor and start his own business. The negotiations broke down and the employer terminated his employment without paying him severance or compensating him for unused PTO as required under the employment agreement. The employer then sued the employee for violating the non-solicitation provisions of his employment agreement by working with their prospective clients. The Colorado Court of Appeals agreed with the trial court that the employer breached the employment agreement first by not paying severance and accrued PTO at termination as required. Therefore, the employer was not owed damages for the plaintiff’s solicitation of its prospective clients. Employers seeking to enforce restrictive covenants in Colorado should review their own obligations before pursuing litigation.

Illinois: Amendments to the Labor Disputes Act

Illinois Governor J. B. Pritzker recently signed into law HB 2907 and HB 3396, amending the Illinois Labor Disputes Act (LDA) to expand protections for striking workers. Effective January 1, 2024, the amendments restrict measures available to employers affected by picketing activity. Specifically, HB 2907 limits the amount an employer can recover for damages it suffers as a result of a labor dispute. Under the amendment, employers are not entitled to an award of monetary damages in any case involving a labor dispute, except for damage done to an employer’s property as a result of conduct prohibited by law. Additionally, HB 3396 will make it a Class A misdemeanor with a minimum fine of $500 to place any object in the public way with the intent of interfering with, obstructing, or impeding a picket or other demonstration or protest.

Illinois: Temporary Workers Entitled to Equal Pay

Under a new amendment to the Illinois Day and Temporary Labor Services Act, Illinois employers and staffing agencies are required to provide temporary workers with pay and benefits that are equal to certain direct-hired employees after 90 days of employment. The amendment also requires employers and staffing agencies to notify temporary workers of strikes, lockouts, and “labor trouble;” and to provide general and site-specific safety training to temporary workers before they begin working at a job site. These requirements apply to day and temporary laborers in all roles other than those of a “clerical or professional” nature. The amendment has a stated effective date of July 1, 2023, but was only recently signed into law by the governor on August 4, 2023.

Illinois: BIPA Damages Are Discretionary, Not Mandatory

In 2019, a class of truck drivers sued BNSF railway alleging the company collected their biometric information without their informed consent in violation of Illinois’ Biometric Information Privacy Act (BIPA). After a trial in October of 2022, a jury found that BNSF recklessly or intentionally violated BIPA 45,600 times, and a district court judge awarded $228M in statutory damages to the truck drivers. However, in ruling on post-trial motions, the federal court decided to vacate the statutory damages award, reasoning that Illinois case law suggests that damages under BIPA are discretionary, not mandatory. Because of this, the federal judge determined that BIPA damages are a question for the jury and has ordered a new trial limited to the question of damages. Employers should continue to monitor developments in this case, and should review their biometric data collection practices to ensure compliance with requirements under Illinois’ BIPA.

Illinois: Electronic Posting Requirement for Remote and Traveling Employees

Effective January 1, 2024, Illinois employers with employees who do not regularly report to a physical workplace, such as employees who work remotely or travel for work, must provide the Your Rights Under Illinois Employment Laws Poster and Illinois Day and Temporary Labor Services Act Poster by email to its employees. Alternatively, employers may display the required postings on its website or intranet site, as long as that site is (1) regularly used by the employer to communicate work-related information to employees; and (2) able to be regularly accessed by all employees, freely and without interference.

Nevada: Employer Considerations Around Early Wage Access Benefits

SB 290 will require early wage access (EWA) providers to obtain a license from the state Commissioner of Financial Institutions. EWA allows workers to immediately access wages already earned before their regular payday. While some states have categorized this type of transaction as a loan between employer and employee, SB 290 does not recognize EWA providers as lenders. This is an emerging area with forthcoming regulations expected. In the meantime, the U.S. Department of Treasury has indicated that employers who offer EWA programs should be maintaining either a daily or a miscellaneous payroll period. Additionally, employers are responsible for withholding and paying employment taxes on employees’ earned wages on a daily basis.  Most provisions in SB 290 will take effect on July 1, 2024.

New Jersey: Temporary Worker Bill of Rights Applies Outside the State

The New Jersey Department of Labor (NJDOL) recently issued FAQ guidance on the application of the Temporary Workers Bill of Rights (TWBR), stating that temporary service firms inside New Jersey must comply with the requirements under the law even when assigning temporary workers to a third-party client outside of the state. Certain provisions of the TWBR went into effect on May 7, 2023, with the remaining portion becoming effective as of August 5, 2023. Temporary service firms and third-party clients will want to review their staffing agreements to ensure compliance with the TWBR, including in situations when assigning temporary workers outside of the state.

New York, NY: App-Based Restaurant Delivery Workers Protections Paused

Effective July 7, 2023, the New York State Supreme Court issued a preliminary injunction preventing a rule requiring a minimum pay-rate for app-based restaurant delivery workers to go in effect. The rule would have required a phased-in minimum wage rate of $19.96 per hour for such delivery workers. The delivery companies targeted by the rule argued there would be adverse consequences like increased prices and fewer jobs for gig economy workers. The preliminary injunction temporarily vacates the rule. Employers should continue to monitor the status of any new wage rules from New York City since it has made a commitment to create protections for fast food employees and delivery workers.

Rhode Island: Amended Definition of “Employee” for Paid Sick Leave Law

As of June 20, 2023, Rhode Island’s Healthy and Safe Families and Workplaces Act is amended with respect to who qualifies as an “employee” under the law. Under SB 1082, the definition of “employee” will no longer exclude apprentices and interns, but will exclude all individuals not considered to be “employees,” as defined under the federal Fair Labor Standards Act.

Texas: Safety Rules Taken Out of Local Authorities’ Hands

As of September 1, 2023, HB 2127, the Texas Regulatory Consistency Act, will preempt some city and county workplace safety and health laws that are more strict than state or federal requirements. The bill is generally broad but is being criticized for potentially eliminating mandatory enforcement of local rules that may fall under its purview, such as water breaks that would be more strictly required than what is stated under state or federal law. Notably, the bill does not change an employer’s responsibility to provide a safe work environment under the federal Occupational Health and Safety Act. The bill also does not prevent employers from providing greater benefits than what are required under state or federal law. Employers should consult with legal counsel on questions surrounding local ordinance compliance that may be impacted by the new state law.

Washington: Taking Paid Sick Leave Cannot Violate Collective Bargaining Agreement or Policy

On June 29, 2023, in Alaska Airlines v. State of Washington Department of Labor & Industries, the Washington Supreme Court said that an employee is only entitled to use sick leave or other paid time off under the Washington Family Care Act to care for a child, spouse, parent, parent-in-law, or grandparent if permitted by a collective bargaining agreement or employer policy. Here, an employee was disciplined for taking time off to care for a sick child because the collective bargaining agreement addressed the scheduling of vacation time and accruing sick time. The Court found that the language of the law only entitled leave for care of a family member if allowed by a collective bargaining agreement or employer policy. Employers should note that although the law does not entitle employees to take leave when it violates a collective bargaining agreement or policy, they should consult with legal counsel prior to taking adverse action against an employee to exercising their leave 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. © 2023 ManagEase

APPLIES TO All Employers with Employees Subject to the NLRA

EFFECTIVE June 13, 2023

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

Quick Look The NLRB has returned to the 2014 FedEx Home Delivery (FedEx II)common law standard for determining independent contractor status. Independent contractors must be evaluated looking at all aspects of the relationship with no one factor being decisive to determine whether the individuals render services as part of their own independent businesses.

Discussion

in The Atlanta Opera, Inc., the National Labor Relations Board (NLRB) returned to the 2014 FedEx Home Delivery (FedEx II) standard for determining independent contractor status under the National Labor Relations Act (NLRA), and overruled SuperShuttle (2019). SuperShuttle said that entrepreneurial opportunity for gain or loss should be the “animating principle” of the independent-contractor test. Atlanta Opera returned to the view that “all of the incidents of the relationship must be assessed and weighed with no one factor being decisive.” While entrepreneurial opportunity is a consideration, the NLRB asked whether the evidence tends to show that a supposed independent contractor is, in fact, rendering services as part of an independent business.

As part of the independent contractor analysis under FedEx II, the NLRB said it would consider whether the contractor (a) has a significant entrepreneurial opportunity; (b) has a realistic ability to work for other companies; (c) has proprietary or ownership interest in their work; and (d) has control over important business decisions. As part of the analysis, the NLRB considered evidence of whether the employer imposed constraints on the individual’s ability to render services as part of an independent business, such as limitations placed by the employer on the individual’s realistic ability to work for other companies and restrictions on the individual’s control over important business decisions. The NLRB also considered whether the terms or conditions under which the individuals operate are “promulgated and changed unilaterally by the company.”

Here, the NLRB found that the makeup artists, wig artists, and hairstylists who work at the Atlanta Opera are not independent contractors, but instead are covered employees. Specifically, the evidence did not show that the stylists rendered services as part of their own independent businesses. Rather, the majority of the traditional common-law factors pointed toward employee status. The employer exercised substantial control over the essential details of stylists’ day-to-day work by controlling the work done and the stylists’ schedules, including availability of breaks and overtime. Ultimately, the stylists were fully integrated into the employer’s company and productions, did not display any signifiers of engaging in an independent business, and worked in tandem with the employer’s other departments.

Action Items

1. Review the NLRB’s decision here.
2. Have independent contractor relationships reviewed by legal counsel for compliance.
3. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

---

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

APPLIES TO Labor Contractors with CA Employees and Client Employers

EFFECTIVE June 1, 2023

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

Quick Look A “client employer” is responsible for the wages of its labor contractor’s employees if they perform the regular and customary work of a business, within or upon the premises or worksite of the client employer. There must be evidence of control of the premises or worksite to support client employer liability.

Discussion

In Morales-Garcia v. Better Produce, Inc., the Ninth Circuit Court of Appeal clarified that client employer liability is analyzed based on the employee’s location of work. California Labor Code § 2810.3 says that client employers are jointly liable for wages and failure to secure workers’ compensation coverage for labor contractor employees. With limited exception, a “client employer” means a business entity “that obtains or is provided workers to perform labor within its usual course of business from a labor contractor.” “Usual course of business” means the “regular and customary work of a business, performed within or upon the premises or worksite of the client employer.”

Here, farmworkers who were hired to harvest strawberries sued the produce distributor for unpaid wages because their direct employer went bankrupt. The distributor leased the land to the direct employer to grow the strawberries but did not otherwise control the terms and conditions of employment for the farmworkers. The question was whether the work was performed in the “usual course of business” for the distributor, which would make them a client employer.

The court said that the work here was not performed “within or upon the premises or worksite of the client employer.” Specifically, the distributor’s business was “separate in nature as well as location” from the business of growing the produce. Although the farmland was subleased to the labor contractor, the distributor’s sublease did not “constitute evidence of control that would render the farms the premises” of the distributor. The distributor did not have the right to exercise control over the farms, or to direct the harvesting work performed on them. The court noted that their analysis under Section 2810.3 is different from the control analysis used to determine a joint employer relationship, because Section 2810.3 focuses on where the work was performed. Ultimately, the distributor was not the client employer of the farmworkers for purposes of unpaid wages.

Action Items

1. Have joint employer and client employer relationships reviewed by legal counsel.
2. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

---

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

APPLIES TO All Businesses with Individual Independent Contractors in Los Angeles, CA

EFFECTIVE July 1, 2023

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

Quick Look Individual independent contractors in the city of Los Angeles must have written agreements with their hiring entities. Hiring entities also have pay timing, recordkeeping, and anti-discrimination requirements.

Discussion

The Freelance Worker Protection Ordinance requires all businesses with freelance workers in the city of Los Angeles to have a written contract for their services. A freelance worker is an individual who is a bona fide independent contractor. The rules do not apply to freelance workers:

• That are already required to have a written agreement for services in exchange for compensation;
• That are already an employee of the hiring entity;
• That agree to perform work for no pay; and
• Of an entity that has employees other than the one individual person who is the sole legal and beneficial owner.

The rules also do not apply to entities hiring app-based transportation and delivery drivers to provide prearranged services.

Written contracts are required when there is a written or oral contract with a freelance worker that is entered into on or after July 1, 2023, if the freelance worker is entitled to $600 or more in a calendar year, either in one agreement or in the aggregate, for the same hiring entity. The contract must state: (1) the name, mailing address, phone number, and email address of both the hiring entity and the freelance worker; (2) an itemization of all services to be provided by the freelance worker, the value of the services to be provided pursuant to the contract, and the rate and method of compensation; and (3) the date by which the hiring entity must pay the contracted compensation or the manner by which such date will be determined.

There are additional requirements on hiring entities, including timely payment of contracted compensation (no later than 30 days after performed services if timing is not stated in the contract); record retention for four years of all contracts, payment records, and any other written or electronic records demonstrating compliance with the Ordinance; and no discrimination or retaliation against any freelance worker complying with or asserting their rights under the Ordinance. Freelance workers cannot waive their rights under the Ordinance.

Failure to pay required wages results in damages up to twice the amount that remains unpaid under the contract. Failure to provide a contract when requested at the outset by the freelance worker results in an additional $250 in damages. If the hiring entity violates the Ordinance in any other way, the freelance worker may recover damages equal to the value of the contract or the work performed, whichever is greater. A successful claim may also result in recovery of attorneys’ fees and costs from the hiring entity.

Action Items

1. Review the Ordinance here.
2. Have written agreements for freelance workers in Los Angeles prepared by legal counsel for compliance.
3. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

---

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