May Updates

Increased Penalty for EEO Poster Violations

Effective March 23, 2023, the Equal Employment Opportunity Commission has increased the penalty for failing to post required EEO notices in the workplace from $612 to $659. The new $659 penalty is assessed for each offense, so employers with multiple worksites and/or locations where notices to applicants and employees are customarily posted may be subject to additional penalties. Federal law requires employers to post details of employees’ statutory rights in a conspicuous, accessible location in the workplace. The EEOC’s Know Your Rights: Workplace Discrimination is Illegal Poster generally satisfies these requirements and is made available in multiple languages. Employers should consult with legal counsel regarding their posting compliance obligations.

 

USCIS Gender Changes on Forms

On March 31, 2023, USCIS announced that it is no longer necessary to provide supporting documentation to change or update a prior gender selection on immigration forms, with limited exception. The website explains how to request a gender change on current documents. Additionally, revised forms will include an “X” marker for gender. This change is consistent with state self-certification policies for gender marker designations on driver’s licenses and identification cards.

 

Ninth Circuit: Federal Contractor Vaccine Mandate Upheld

On April 19, 2023, in Mayes v. Biden, the Ninth Circuit Court of Appeals reversed a permanent injunction on enforcement of the federal contractor vaccine mandate in the state of Arizona. The Arizona State Attorney General sued the U.S. government after Executive Order 14042 required all federal employees and contractors to receive the COVID-19 vaccine and that government agencies can only do business with contractors that follow the COVID-19 guidelines. The government argued the executive order did not violate the Procurement Act because past presidents have issued similar executive decisions. The Court agreed that the Executive Order was well within the powers given to the President by the Procurement Act. The ruling by the Court does not change anything presently for federal contractors doing business in the states covered by the Ninth Circuit since the Biden administration has not implemented the mandate since the Eleventh Circuit Court of Appeals narrowed the scope of the mandate nationwide.

 

REMINDER! California: Pay Data Reporting DUE MAY 10, 2023

Employers with 100 or more employees who are subject to California’s pay data reporting requirements (SB 1162) must submit their pay data reports by May 10, 2023. Employers should note that the reporting is separate and different from federal EEO-1 reporting. Based on recently released FAQs, private colleges and universities must file Payroll Employee Reports and Labor Contractor Employee Reports. Note that employers can now apply for a two-month deferral to comply with pay data reporting for labor contractor employee reports only.  Review the Civil Rights Department website for more information.

 

California: Lawsuit Seeks to Put CPRA on Hold

On March 30, 2023, the California Chamber of Commerce filed a lawsuit to stop the July 1, 2023 enforcement by the Attorney General or the California Privacy Protection Agency (CPPA) of the recent California Privacy Rights Act (CPRA) regulations. The lawsuit stems from voter approved Proposition 24. The Chamber alleges that the Proposition requires final regulations to be in place and a 12-month implementation period thereafter before enforcement can take effect. Continue to look for updates on this case. Keep in mind that this lawsuit does not affect consumers’ ability to enforce the California Consumer Privacy Act (CCPA) as it was prior to Proposition 24.

 

California: Airline Cabin Crew Exempt from Meal and Rest Requirements

Effective March 23, 2023, and retroactive to December 5, 2022, SB 41 exempts airline cabin crew employees covered by a valid collective bargaining agreement (CBA) under the Federal Railway Labor Act and CBAs that cover meal and rest breaks for those employees from having to comply with state meal and rest period requirements. Employers should review CBA’s with legal counsel.

 

San Mateo County, CA: Minimum Wage Increased to $16.50

As of April 1, 2023, minimum wage increased in the unincorporated areas of San Mateo County to $16.50 per hour. The San Mateo County minimum wage ordinance covers all employees who work two hours or more in a particular week within the unincorporated areas of the county. The amount will increase annually beginning on January 1, 2024. There is a posting requirement and employers must retain records of each employee’s name, hours worked, and pay rate for three years. Review the County’s website for more information.

 

Colorado: Annual Notice for Employees Regarding Available Income Tax Credits

Anticipated around August 9, 2023, HB 23-1006 will require employers to notify employees in writing of the availability of income tax credits. The law expands the annual tax withholding notice requirement to include written notice of the availability of federal and state earned income tax credits and child tax credits. The notice may be sent electronically, via email or text message and must be in English or any other language the employer uses to communicate with employees. The Colorado Department of Revenue can also issue rules requiring additional content in the future.

 

Denver, CO: Civil Wage Theft Rules

As of January 10, 2023, Ordinance 22-1614 created new avenues for employees in the City and County of Denver to pursue claims for wage theft. This primarily includes filing a complaint with the Colorado Division of Labor Standards and Statistics in addition to the city auditor as well as a private right of action. Now, Denver Labor, a division of the Auditor’s Office, adopted rules for enforcement of the ordinance as well as clarifications. The ordinance defines working in Denver as 20% or more of work time in Denver in a pay period, or customarily spending at least 50% of work time in Denver. This applies to all hours of work performed within Denver regardless of the employer’s location which means remote work is covered. Denver Labor is also authorized to exceed the scope of the initial complaint and can cover multiple job sites. Failure to maintain records is also a presumed wage violation. The ordinance also covers all time worked, including travel time; paid breaks, vacation time, and sick leave; and other forms of paid leave. Penalties include treble damages for unpaid wages as well as interest and penalties.

 

Connecticut: Deadline Extended for Businesses to Register with State’s Mandatory Retirement Program

In 2016, Connecticut enacted legislation that established the state-run employee retirement savings program (MyCTSavings), which was launched in 2022. Employer registration with the program has been phased-in based on the number of employees a business has, starting with those employers with 100 or more employees. On April 5, 2023, the Office of the State Comptroller announced that the deadline for compliance under the final phase – applicable to employers with 5 to 25 employees – will be extended until August 31, 2023.

 

Indiana: Data Privacy Law Enacted

As of January 1, 2026, SB 5 will make Indiana the seventh state to implement a consumer data privacy law. The bill applies to businesses that control or process personal data of at least 100,000 consumers who are residents of the state, or control or process personal data of at least 25,000 consumers who are residents of the state and derive more than 50% of gross revenue from the sale of personal data. Under the law, consumers have a right to know, a right to access, a right to correct, a right to delete, and a right to opt out of personal data for purposes of targeted advertising, sale of personal data, or certain profiling activities. Covered businesses must: 1) limit the collection of personal data to what is adequate, relevant, and reasonably necessary in relation to the purposes for which such data is processed; 2) establish, implement, and maintain reasonable administrative, technical, and physical security practices to protect the confidentiality, integrity, and accessibility of personal data; 3) not discriminate against a consumer for exercising rights under the law; 4) not process sensitive data without the consumer’s consent; 5) provide consumers with a privacy notice that explains, among other things, the categories of personal data the controller processes and shares with third parties; and 6) provide consumers the opportunity to opt out of the sale of personal data and explain the means to exercise these and other rights under the law. The law does not apply to data processed or maintained in the employment context from or about an employee or job applicant for employment-related purposes.

 

Iowa: Data Privacy Law Enacted

Effective January 1, 2025, Iowa’s Senate File 262 imposes data privacy requirements to businesses that control or process personal data of at least 100,000 Iowa residents or derive over 50% of their annual gross revenue from the sale of personal data and also control or process personal data of 25,000 or more Iowa residents. Covered businesses have to provide its consumers notices of collection and access to its privacy policy. Iowa consumers also have the right to access, delete, know, and opt out of the sale of personal information. Consumers do not have a right to correct or opt-in consent for sensitive personal information. The law does not apply to data collected, created, or received in the employment context from or about an employee or job applicant for employment-related purposes.

 

Maryland: Minimum Wage Increases to $15.00 per Hour in 2024

Effective January 1, 2024, Maryland’s minimum wage will increase to $15.00 per hour for all employees, under SB 555. This increase comes a year earlier for large employers (with 15 or more employees) and almost two and a half years early for small employers (14 or less employees), when compared with the scheduled increases under Maryland’s previous law. Governor Moore estimates that the new law will result in wage increases for approximately 163,000 workers in Maryland.

 

Bloomington, MN: Paid Sick and Safe Leave Ordinance Initial Rules Published

The Earned Sick and Safe Leave Ordinance, effective July 1, 2023, now has additional clarification with newly published initial rules. The rules explain employees are entitled to accrue leave under the ordinance for all hours they perform work for that employer during the remainder of the year in Bloomington after working at least 80 hours in Bloomington. Employers can reasonably estimate how much time an employee works in Bloomington using dispatch logs, employee logs, delivery addresses, and estimated travel times. Employees can begin using accrued leave on the 91^st day of employment. For sick leave, an employer must provide health insurance in order to ask an employee to provide a doctor’s note for absences of more than three consecutive days. For safe leave, employers can request a police report, court order, or an employee’s written statement. Employers must also provide a notice of rights and remedies under the law.

 

Nevada: NV OSHA Announces Increased Penalties for Workplace Safety Violations

The Nevada Occupational Safety and Health Administration (NV OSHA) announced a 7.74% increase in penalties for workplace safety violations, effective January 17, 2023. These increased penalties come as a result of the Federal Civil Penalties Inflation Adjustment Act of 2015 and will apply to any penalty assessed on or after January 17, 2023, regardless of when the inspection was opened. In addition to the increased penalties, NV OSHA announced a list of establishments it is targeting for programmed inspections which will be conducted on a routine basis and will be aimed at identifying potential hazards and violations. These include, but are not limited to, asbestos abatement projects, construction industry, food manufacturing, wood manufacturing, plastics and rubber products manufacturing, nonmetallic mineral product manufacturing, warehousing and storage, hotels, nursing in residential care facilities, and automotive repairs and maintenance. Employers should evaluate their respective compliance obligations to avoid potential for sustained violations and the associated penalties.

 

New Jersey: NJWARN Amendments to Notice and Severance Pay Requirements

As of April 10, 2023, changes to New Jersey’s Millville Dallas Airmotive Plant Job Loss Notification Act (NJWARN) significantly amended the law’s notice and severance pay requirements. The amended NJWARN now requires employers to provide 90 days’ advanced written notice to employees, government officials, and, if applicable, unions, prior to a covered triggering event (e.g., a mass layoff, termination of operations, or transfer of operations). Additionally, the amended NJWARN transformed the severance pay requirement from solely a penalty when an employer fails to provide the required notice, to a mandatory severance requirement even where the employer has fully complied with the notice requirement. Specifically, an employer (1) must still pay severance to each employee impacted by the covered triggering event (still calculated as one week of pay for each year of respective service), and (2) if an employer fails to comply with the required 90 days’ advance notice requirement, the employer must pay an additional four weeks of severance pay to each employee who did not receive the required 90 days’ notice. Earlier this year, the revised severance pay requirements were challenged, but a New Jersey federal court recently denied the request to invalidate the amendment. Significantly, the court did not reach the merits of the argument opposing the severance pay requirements, but rather held that the industry group that brought the legal challenge lacked standing to raise the argument. Accordingly, the issue remains unresolved and may be subject to future legal challenges. In the interim, New Jersey employers should review with legal counsel their compliance obligations under the amended NJWARN during covered triggering events.

 

New York: NYSDOL Updates Model Sexual Harassment Prevention Policy

On April 11, 2023, the New York State Department of Labor (NYSDOL) finalized updates to New York’s Sexual Harassment Model Policy (Model Policy). While the changes do not reflect a dramatic shift in the state’s overall policy, they are nonetheless substantive and carry through to the other documents that the NYSDOL has updated, including the Complaint Form for Reporting Sexual Harassment, the Model Sexual Harassment Prevention Training Deck, and the Model Sexual Harassment Training Script. The final Model Policy explicitly states that it reflects the minimum standard for complaint sexual harassment prevention and that “no section in [the Model Policy] should be omitted.” The revisions to the Model Policy largely center around an expanded definition of “sexual harassment,” including a detailed discussion of gender diversity, gender identity, and gender expression, as well as clarification of where, when and by whom sexual harassment may occur. The updates also incorporated additional information on bystander intervention, retaliation, and other forms of harassment, as well as key pieces of state legislation and administrative action for the intervening years. New York employers should update their sexual harassment prevention policies and evaluate their compliance obligations under these recent updates.

 

Oregon: COVID-19 OSHA Rules Temporarily Suspended

As of April 3, 2023, Oregon OSHA suspended its COVID-19 Public Health Emergency and Amended Work Clothing Rules. The suspension is temporary until Oregon OSHA implements a permanent full repeal of the rules. Employees who still feel vulnerable in the workplace are allowed to wear face coverings and employers are still required to supply the face coverings at no cost to the employees if the employer requires the use of face coverings. The suspension is in line with the Oregon Health Authority’s recent guidance that masks are no longer required in healthcare settings.

 

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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. © 2023 ManagEase