February Updates

Federal Civil Penalties Increased for 2024 The U.S. Department of Labor (DOL) published its final rule to adjust for inflation the civil monetary penalties assessed or enforced by the DOL in 2024. The civil penalties apply to violations under OSHA, Family and Medical Leave Act, Fair Labor Standards Act, and ERISA. The list also includes new immigration-related fines/penalties that went into effect on January 15, 2024. Typically, these violations involve H-1B, H-2A and H-2B visas, and cover a range of employer activity including, but not limited to, employer discrimination, retaliation, misrepresentation of fact, or non-compliance with established terms and conditions of employment. The increased monetary penalties apply to violations occurring after November 2, 2015, for which penalties were assessed after January 15, 2024. The full schedule of the increased penalties can be found here.

 

Arkansas: Updates to Uniform Attendance and Leave Policy Act Effective July 31, 2023, HB 1775 amends Arkansas’s Uniform Attendance and Leave Policy Act to allow sick leave to care for a child who is in the employee’s home through the foster care system. The amendments provide that eligible employees are entitled to up to 40 hours of foster care leave, with pay, for the following purposes: (1) bonding with the child and for adjustment purposes; (2) attending school placement meetings related to changes due to foster care placement; (3) attending individualized educations program meetings related to changes due to foster care placement; (4) attending required court hearings; and (5) attending required case-planning activities.

 

California: Trial Courts Cannot Dismiss PAGA Claims for Unmanageability

On January 18, 2024, in Estrada v. Royalty Carpet Mills, Inc., the California Supreme Court said that trial courts do not have authority to strike/dismiss claims under the Private Attorneys General Act (PAGA) on the grounds that the claims are unmanageable. PAGA claims operate differently from class actions, which can be denied on manageability grounds, and they have a different purpose. Rather, courts can limit the types of evidence and use other tools to manage large PAGA cases. It remains to be seen whether an employer may strike/dismiss an unmanageable PAGA claim as a violation of the employer’s due process rights, but that would only have limited applicability to protect constitutional rights.

 

California: New Emergency Silica Safety Standard Effective December 29, 2023, Cal-OSHA approved an emergency temporary standard (ETS) to provide greater protections to workers exposed to respirable crystalline silica (RCS), primarily targeted to the engineered stone industry, but the ETS is applicable to all employers. It requires exposure protections, respiratory protections, training, reporting, and a written exposure control plan. The ETS will be in effect for one year.

 

REMINDER! Connecticut: Unemployment Benefits Reforms Passed in 2021, and effective January 1, 2024, HB 6633 states that receipt of severance pay results in disqualification for receipt of unemployment benefits for the period of time covered by the severance payment. It is not clear how lump sum severance payments affect this restriction. Employers should consult with legal counsel to review their severance agreements and its impact on unemployment eligibility.

 

Illinois: Amendments to Personnel Records Review Act The Illinois Personnel Records Review Act (IPRRA) was recently amended to make it easier for employees to obtain copies of their personnel records. As of January 1, 2024, employers must email or mail a copy

of the employee’s records to the employee upon their written request, regardless of whether the employee can show that they are unable to inspect the records in person prior to receiving a copy. However, employers can still charge for any actual cost of copying the requested materials.

 

Portland, ME: State of Emergency Triggers Hazard Pay On January 11, 2024, Maine Governor Janet Mills declared a state of civil emergency for coastal counties in Maine impacted by flooding caused by a storm earlier that week. The declaration triggers a hazard pay measure for nearly every employer in the city of Portland, pursuant to the city’s broad minimum wage ordinance. Therefore, effective 12:15 p.m. EST on January 11, 2024, to 12:15 p.m. EST on January 18, 2024 when Maine’s governor lifted the state of emergency, employees in Portland were entitled to the increased minimum wage of $22.50 per hour.

 

Massachusetts: Updated PFML Guidance

Effective November 1, 2023, employees with additional paid leave benefits provided by company policy could use those benefits to “top off” Massachusetts Paid Family and Medical Leave benefits up to 100% of their wages. This was solely the employee’s choice. To resolve conflict which arose between paid leave policies that prohibited “top off,” the Department of Family and Medical Leave (DFML) released guidance that employees could top off PFML benefits subject to the accrual and use restrictions of their employer’s policies. Employers should review and update their policies to determine how employees can use existing paid leave policies to top off PFML.

 

Missouri: New Voluntary Retirement Plan Coming! SB 75 created the Missouri Show-Me MyRetirement Plan, a voluntary, state-run retirement plan for private employers with 50 or fewer employees. If an employer later employs more than 50 employees is allowed to remain in the program for five years. Employees who are 18 or older with taxable wages in Missouri are eligible to participate through payroll deductions to the plan. Employees may terminate their participation in the plan at any time. Employers may voluntarily provide contributions. Contributions may begin by September 1, 2025. Employers should continue to look for forthcoming regulations to implement the plan.

 

New Jersey: Unions to File Prevailing Wage Claims Effective January 8, 2024, S1438/A5794 amends New Jersey’s State Prevailing Wage Act to permit unions to file prevailing wage claim suits on behalf of workers on covered projects regardless of whether the workers belong to the union. The Prevailing Wage Act requires employers to pay certain minimum rates, as determined by the New Jersey Department of Labor and Workforce Development (NJDOLWD), to workers working on public works projects. While the law previously permitted a union to represent unionized workers on a project in an action brought on their behalf, the amended law goes one step further, allowing the union to also represent non-union worker(s) employed on the project in a claim for any unpaid wages owed to such individuals. The only caveat is that a worker who is not a member of the union organization must consent in writing to such representation.

 

New York: Governor Vetoes Noncompete Ban On December 22, 2023, Governor Kathy Hochul vetoed a bill which proposed to ban nearly all types of noncompete agreements. The Governor explained the veto was due to the fact the ban was overly broad. Employers should note this is not the end of the road for this type of legislation in New York. The Governor requested modified legislation which would prohibit noncompetes for middle-class and low-wage workers but would allow employers to continue using noncompete agreement with highly compensated employees.

 

New York: Relief for “Frequency of Pay” Claims

Under New York Labor Law Section 191, manual workers must be paid on a weekly basis. Manual workers are those who spend 25% or more of their time engaged in physical labor. Section 191 claims could only be brought by the NY Department of Labor. In 2019, the New York Appellate Division, First Department ruled in Vega v. CM & Associates Construction Management, LLC that there was a private cause of action for employees. This led to class action litigation for late paid wages. This included for wages that were paid in full but were paid on a bi-weekly or semi-monthly basis. On January 17, 2024, the New York Appellate Division, Second Department broke with this decision and ruled in Grant v. Global Aircraft Dispatch Inc. that payment of full wages on the regular biweekly payday does not constitute nonpayment or underpayment. This comes on the heels of Governor Kathy Hochul’s 2025 Executive Budget Proposal which includes language to provide relief to employers faced with such “frequency of pay” litigation. The proposed budget includes language that Section 198 of the Labor Law would be amended to state “… liquidated damages shall not be applicable to violations of . . . section 191 of this article where the employee was paid in accordance with the agreed terms of employment, but not less frequently than semi-monthly.” It remains to be seen whether the legislature will agree and approve the State Budget language.

 

New York: Updated Model Lactation Policy

Since June 7, 2023, the Nursing Mothers in the Workplace Act requires employer accommodations for nursing employees. Employers must also provide a lactation policy upon hire, annually thereafter, and to employees returning to work following the birth of a child. The Act required the New York State Department of Labor (NYSDOL) to develop a model policy regarding workplace lactation rights. The NYSDOL recently updated the model policy for use. Review the NYSDOL’s website for more information.

 

New York: Increased Statute of Limitations

Effective February 15, 2024, the statute of limitations for unlawful discriminatory practice claims filed with the New York State Division of Human Rights expands from one year to three years. Previously, only sexual harassment claims had a three-year statute of limitations.

 

New York, NY: Private Right of Action for Earned Safe and Sick Time Act Claims Effective March 20, 2024, Proposed Int. No. 563-A creates a private right of action for damages and other relief for violations of the Earned Safe and Sick Time Act (ESSTA). Employees who allege a violation of their rights under the ESSTA can take their employer to court under a civil action for compensatory damages, injunctive and declaratory relief, attorneys’ fees and costs, and other relief the court finds appropriate. The amendment also allows the Department of Consumer and Worker Protection (DCWP) to impose penalties per instance of violation and not just per violation. The DCWP also retains the right to conduct an investigation on its own initiative. Employers should update their leave policies and train appropriate personnel on the requirements of the law.

 

New York, NY: Expanded Domestic Violence Victim Protections

As of July 4, 2023, the New York City Human Rights Law definition of “victim of domestic violence” was expanded to include a victim subject to acts or threats of economic abuse.

 

Pennsylvania: Changes to Employer Criminal Background Screening Effective February 12, 2024, Pennsylvania’s HB 689 amends Pennsylvania law relating to the expungement of certain criminal record information and employer immunity when hiring individuals with expunged records. The amended law immunizes employers from liability for claims related to the effects of

expunged records or the lawful use of criminal record history information when an applicant voluntarily discloses an expunged conviction. The law also extends the availability of automatic expungements to pardons and expands eligibility for Pennsylvania’s pre-existing limited access statute for criminal records. Now, certain individuals who are free from conviction for seven years and otherwise meet requirements can petition for limited access; previously, the minimum threshold was 10 years. The law also clarifies categories of offenses that are and are not eligible for limited access petitions.

 

Philadelphia, PA: Amendments to Local Fair Criminal Records Screening Standards Ordinance Philadelphia amended its Fair Criminal Record Screening Standards Ordinance to specifically address an employer’s use of convictions subject to “exoneration.” Effective January 19, 2024, the Ordinance defines “exoneration” as reversing or vacating a conviction by pardon, acquittal, dismissal or other post-conviction re-examination of the case by the court or other government official, and generally prohibits employers from denying employment based on convictions subject to “exoneration” as so defined.

 

Pittsburgh, PA: Strict Enforcement of Paid Sick Days Act in Food Service Industry

On January 3, 2024, Pittsburgh’s Office of Equal Protection announced strict enforcement and compliance checks for local businesses, particularly the food services industry, for the Pittsburgh Paid Sick Days Act. Compliance investigations will begin early in 2024 starting with the 15201 and 15203 zip codes. The Act requires employers with at least 15 employees to provide employees up to 40 hours of paid sick leave per year. Employees accrue paid sick time at a rate of one hour of leave for every 35 hours worked in Pittsburgh. Employers with fewer than 15 employees must also provide paid sick leave at the same accrual rate, up to 24 hours per year. The Act applies to employees who work in the City even if the employer is not physically present there. Thirty-five hours of work performed in the City for the employer in a calendar year provides eligibility. Employers should review their policies and procedures to make sure they are ready for a compliance check.

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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