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This Short List addresses the following topics:
  1. EEO-1 Reporting Deadline Extended Again!
  2. New Federal Sexual Orientation Protection Resources
  3. CFAA Violations Only Extend to Unauthorized Access, Not Improper Intent
  4. Sixth Circuit: HR Employees May Engage in Protected Activity in Their Regular Duties
  5. California: Owner’s Individual Wage and Hour Liability Clarified
  6. California: No Required Access to Agricultural Employer Property
  7. California: Right of Recall Rules Explained
  8. Los Angeles County, CA: Mandatory Masking Reinstated Regardless of Vaccination Status
  9. Marin County, CA: Mandatory Supplemental Paid Sick Leave for Small Employers
  10. Connecticut: Recreational Marijuana Legalized
  11. Portland, ME: Emergency Minimum Wage Delayed
  12. Michigan: COVID-19 Emergency Workplace Rules Ended
  13. New York: HERO Act Prevention Plans Available
  14. Oregon: Most Employer COVID-19 Restrictions Lifted
  15. Oregon: New Temporary Heat Standard
  16. Oregon: Noncompete Agreements Further Restricted
  17. Washington: New Emergency Heat Standard

EEO-1 Reporting Deadline Extended Again!

Employers with 100 or more employees, and federal contractors with 50 or more employees, must annually file EEO-1 reports on demographic workforce data with the U.S. Equal Employment Opportunity Commission (EEOC). Because of COVID-19 disruptions, deadlines for 2019 and 2020 filings have been extended on multiple occasions. The deadline has now been extended to August 23, 2021.

New Federal Sexual Orientation Protection Resources

The U.S. Equal Employment Opportunity Commission (EEOC) recently published resources for employers on employee protections based on sexual orientation. In 2020, the U.S. Supreme Court stated that sexual orientation, gender identity, and transgender status are protected under Title VII of the Civil Rights Act of 1964.  The EEOC has now dedicated a webpage with fact sheets to further understand these protections.

CFAA Violations Only Extend to Unauthorized Access, Not Improper Intent

On June 3, 2021, in Van Buren v. United States, the U.S. Supreme Court resolved a Circuit Court split on when individuals may be prosecuted under the Computer Fraud and Abuse Act (CFAA). Specifically, employees who access a computer with authorization in order to obtain or alter information to which they are not entitled do not violate the CFAA if they access areas of the computer to which they are authorized, despite improper intent. They must access the computer with authorization, but then obtain information located in areas to which their authorized access does not extend.

Sixth Circuit: HR Employees May Engage in Protected Activity in Their Regular Duties

On May 27, 2021, in Jackson v. Genesee Cty. Rd. Comm’n, the Sixth Circuit Court of Appeal stated that a Title VII retaliation claim under the Civil Rights Act of 1964 may occur where an employee is terminated for allegedly investigating employee discrimination claims and ensuring that the employer’s vendor contracts complied with equal employment opportunity requirements, even where the employee’s actions were part of their regular job duties.

California: Owner’s Individual Wage and Hour Liability Clarified

On May 28, 2021, in Usher v. White, the California Court of Appeal stated that in order for a business owner or officer to be personally liable for wage and hour violations under Labor Code § 558.1, they must have either been personally involved in the alleged violations or had sufficient participation in the employer’s activities (e.g., over those responsible for alleged wage and hour violations) to be considered to have contributed to or caused a violation.

California: No Required Access to Agricultural Employer Property

On June 23, 2021, in Cedar Point Nursery v. Hassid, the U.S. Supreme Court stated that a California regulation allowing labor organizations the “right to take access” an agricultural employer’s property, by entering and remaining on the property for a certain period of time for the purpose of organizing workers, violated the Fifth and Fourteenth Amendments of the U.S. Constitution as an impermissible taking and seizure of property.

California: Right of Recall Rules Explained

The California Department of Industrial Relations recently issued Frequently Asked Questions on Recall Rights to further explain employer obligations and employee rights under Labor Code § 2810.8. Specifically, employees in the hospitality industry, airport hospitality and service providers, and building services who were separated from employment as a result of the COVID-19 pandemic have a right to be offered reemployment under specific circumstances. Employers should review the FAQ for guidance.

Los Angeles County, CA: Mandatory Masking Reinstated Regardless of Vaccination Status

As of July 17, 2021, Los Angeles County reinstated its mask mandate regardless of an individual’s vaccination status. Generally, this includes wearing masks while indoors, except children under 2 years old, situations where a mask would create a risk to workplace health, safety, or job duty, people who cannot safely wear a mask, and those instructed not to wear a mask by their medical provider. Review the County’s mask webpage for more information. Note that other localities, like Long Beach, are following suit.

Marin County, CA: Mandatory Supplemental Paid Sick Leave for Small Employers

An urgency ordinance effective June 8, 2021 requires employers of 25 or fewer, who are located in an unincorporated area of Marin County, to provide supplemental paid sick leave (SPSL) through September 30, 2021. Employees who work for more than two hours in the applicable geographic region are eligible for SPSL. SPSL may be used for COVID-19 related personal reasons or to care for another individual.  Full-time employees are entitled to up to 80 hours of SPSL, and part-time employees receive SPSL equal to the average number of work hours in a two-week period, calculated by reviewing averages over the past six months. Employers must also provide notice to employees in English and Spanish of their rights under the ordinance, and to maintain employee wage and hour records for at least three years.

Connecticut: Recreational Marijuana Legalized

Effective July 1, 2021, individuals 21 years or older may possess and consume recreational marijuana. Additional provisions affecting employers go into effect next year, July 1, 2022, and include the following:

  • Employers may implement and maintain drug-free workplace policies and must have such policies available in writing to employees and applicants.
  • Employers may not take adverse employment actions against employees who use cannabis outside of the workplace, unless the employer has a disseminated policy.
  • Employers may not take adverse employment actions against employees based on their cannabis usage outside of the workplace prior to becoming employed, unless doing so violates federal contract.
  • Employers may take adverse employment action based on reasonable suspicion of an employee’s use of cannabis while at work or performing work duties.
  • Employers may take adverse employment action based based on positive marijuana drug test results if an establishing drug testing policy indicates that a positive test may result in such actions.

Exemptions to the above apply for specified industries and/or positions where drug testing is required.

Portland, ME: Emergency Minimum Wage Delayed

On July 6, 2021, the Maine Supreme Judicial Court stated that Portland, Maine’s emergency minimum wage legislation is valid, but cannot take effect until January 1, 2022. At that time, employers must pay hazard pay of 1.5 times the regular minimum wage for “work performed during a declared emergency.”

Michigan: COVID-19 Emergency Workplace Rules Ended

As of June 22, 2021, the Michigan Occupational Safety and Health Administration (MIOSHA) ended its COVID-19 Emergency Workplace Rules. MIOSHA also updated the COVID-19 emergency rules for healthcare employers, mirroring the recent federal OSHA emergency temporary standard for healthcare workers. Although employer rules have been relaxed, employers must still provide a safe work environment for employees and should be diligent in minimizing COVID-19 in the workplace. Employers may continue to look to federal OSHA Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.

New York: HERO Act Prevention Plans Available

New York recently enacted the HERO Act to prevent occupational exposure to airborne infectious disease. On July 6, 2021, the New York Department of Labor (NYDOL) recently published a Model Airborne Infections Disease Exposure Prevention Plan as well as templates for 11 specific industries. The NYDOL also issued an Airborne Infectious Disease Exposure Prevention Standard. Employers must draft their own written plan that meets the Standard or use the model plan by August 5, 2021, and post and distribute the plan to employees within 30 days after issuance or by September 4, 2021. The plans must actually be implemented once the New York State Commissioner of Health designates an airborne infectious disease as a “highly contagious communicable disease that presents a serious risk of harm to the public.”

Oregon: Most Employer COVID-19 Restrictions Lifted

On June 25, 2021, Executive Order No. 21-15 lifted most of Oregon’s COVID-19 restrictions as of June 30th. It eliminated the mask and physical distancing mandates, except to the extent required by current federal guidance, such as healthcare facilities, public transportation, and correctional facilities. Also on June 30th, Oregon OSHA updated its employer requirements to be consistent with the Executive Order, but still requires some safety precautions, such as ventilation, employee notice, and quarantine requirements. Nothing in the Executive Order prohibits employers from maintaining stricter COVID-19 requirements.

Oregon: New Temporary Heat Standard

As of July 8, 2021, employers must follow Oregon’s temporary heat standard implementing safety requirements when work area temperatures (either indoor or outdoor environments) reach 80 degrees Fahrenheit; additional rules apply when temperatures reach 90 degrees. Employers must provide training to exposed employees by August 1st on employee rights, employer obligations, heat illness, and mitigating heat stress. The state is still working on a permanent heat safety standard; the emergency standard will remain in effect until that time.

Oregon: Noncompete Agreements Further Restricted

Beginning January 1, 2022, SB 169 only allows noncompete agreements to last for one year, reduced from 18 months. Additionally, the employee must earn an annual gross salary of at least $100,533 at the time of termination in order to enforce the noncompete agreement; the amount will be adjusted annually for inflation. Failure to comply with the requirements renders the entire agreement “void and unenforceable.” Employers should have noncompete agreements reviewed by legal counsel for compliance.

Washington: New Emergency Heat Standard

As of July 13, 2021, employers must follow Washington’s emergency heat standard, which expands the state’s existing heat standard to include additional requirements for more extreme heat. Employers must allow for paid cool-down rest periods, ensure that employer-provided water is “suitably cool”, include cool-down procedures in employee training, and implement extra precautions when temperatures are 100 degrees Fahrenheit or higher. The Washington Department of Labor and Industries’ news release provides a summary of the recent changes.

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.

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