Discussion

The Delaware Department of Labor issued an order adopting the previously proposed rules for the Healthy Delaware Families Act and the state’s Family and Medical Leave Insurance Program. The order indicates that only non-substantive changes were made to the previously proposed rules, following a 30-day period held for public comment. Aside from non-substantive revisions, the previously proposed rules were largely adopted as part of the Final Rules (the Rules).  The changes are summarized below.

Under Section 1 of the Rules, the definition of “employee” was revised to clarify that the determination of whether an individual is an employee depends on whether they receive a W-2. Additionally, the definition of “family and medical leave benefits” was revised to clarify the circumstances when an individual is not entitled to family and medical leave benefits. This includes situations where an individual is receiving: (1) temporary disability benefits under the state’s Workers’ Compensation Act due to a workplace accident or injury; (2) personal injury protection benefits due to an injury from an automobile accident; or (3) state unemployment insurance benefits.

Subsections 10.2 and 10.3 were modified to reflect language consistent with the rest of the law. Specifically, references to “normal weekly salary” and/or “wages” were revised to reference “average weekly wage,” for consistency throughout.

Sections 11.6.1 and 11.6.2 were added to clarify that an employee’s notice requirement to an employer applies to intermittent as well as continuous leave. Under the law, if an employee is on intermittent leave for planned medical treatment for themselves or a family member with a serious health condition, the employee should provide the employer with as much advance notice as is reasonably possible prior to taking leave.  In situations where the need for leave is unplanned, the employee should notify the employer as soon as practicable, in the usual and customary manner employees notify the employer if they will be absent from work.

Additional minor revisions were made to correct statutory citations and to ensure consistency with revised definitions.

Action Items

1. Review the final rules here.
2. Update policies for compliance.
3. Have appropriate personnel trained on paid time off procedures.

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

Discussion

In Kurtanidze v. Mizuho Bank, Ltd., a federal district court ruled that allowing employees to speak only Japanese in business meetings in the presence of non-Japanese speakers without the use of an interpreter is not unlawful discrimination based on race or ethnicity. Here, the plaintiff white male of European descent alleged the defendant bank discriminated against non-Japanese employees based on race and national origin. The basis of the allegations was that all important corporate issues and meetings were discussed and held in Japanese even when non-Japanese speaking employees were present. The plaintiff alleged he was harmed because he could not participate or learn about the bank’s priorities from attending the meetings.

In its ruling, the court found that the allegations did not support a finding of unlawful discrimination based on race or ethnicity but on the ability to speak a particular language. The employee could have chosen to learn Japanese. Also, the employer was not “required to allow its employees to speak in their native tongue, it was not required to force employees to use a particular language.” Foreign employers operating in the United States can allow their expatriate employees to continue speaking in their native language without violating antidiscrimination laws.

Although this ruling may alleviate discrimination concerns for some employers, there are additional concerns for workplaces where large populations of employers primarily speak in languages other than English. One is safety. It is critical for employers to make sure their employees understand safety policies and procedures. Second is the ability to understand employer policies. Where necessary or required by law, employers should review what policies may need to be translated into the language employees understand.

Action Items

1. Evaluate workforce and determine if there are employees who do not understand English.
2. Determine whether policies and procedures need to be translated.

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

Discussion

In Skoric v. Marble Valley Regional Transit District, a federal district court dismissed a plaintiff’s Americans with Disabilities Act (ADA) discrimination and failure to accommodate claim, concluding that medical marijuana usage is not protected under the ADA.

In this case, the plaintiff was terminated from his employment with the Transit District after he failed a random drug test. Following his termination, the plaintiff brought a lawsuit against the company alleging claims for ADA discrimination and failure to accommodate and stating the reason he failed his drug test was based on his usage of medical marijuana to treat chronic pain and depression. The plaintiff argued that, because he has a medical marijuana card, he was using marijuana under the supervision of a doctor and was therefore protected under the ADA. The plaintiff cited the ADA’s provision that allows for the use of illegal drugs “taken under supervision by a licensed health care professional.”

The Court disagreed with the plaintiff’s argument, relying on other district court opinions, as well as a Ninth Circuit Court of Appeals decision, which concluded that medical marijuana use does not fall within the supervised-use exception of the ADA, and therefore is outside the protections of the ADA. In light of these other opinions, the court concluded that because marijuana has “no currently accepted medical use” under the Controlled Substances Act, a medical marijuana patient is not a “‘qualified individual with a disability’” under the supervised-use exception of the ADA.

While it was not addressed in this case, employers should keep in mind that Vermont state law generally prohibits random drug testing (with certain exceptions arising from preemption by the Federal Highway Administration’s motor carrier safety regulations). Vermont’s drug testing law also generally requires that employers offer an employee assistance program or comparable rehabilitation program prior to termination of employment due to drug related offenses. Because this case was decided at a federal court level based on marijuana’s status as a federally illegal substance, employers should keep in mind that the outcome may be different when analyzed under different state laws.

Action Items

1. Review state-specific drug testing requirements.
2. Have appropriate personnel trained on drug testing requirements.
3. Consult with legal counsel prior to taking adverse action against employees for drug-related offenses.

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

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

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