November Updates

USERRA Amended to Include FEMA Reservists When Deployed to Disasters and Emergencies

On September 29, 2022, President Biden signed the CREW Act, which amended the Uniformed Services Employment and Reemployment Rights Act (USERRA) to protect the full-time employment of FEMA reservists when they are sent to disasters and emergencies on behalf of FEMA. FEMA reservists are also protected against employment discrimination and loss of benefits.

NLRB Extends Comment Period for Expanding Joint Employment

The National Labor Relations Board (NLRB) extended the comment period for a proposed rule which would significantly expand the standards for joint-employment to December 7, 2022. The proposed rule would revert back to the Obama Administration’s standard of joint employment which allowed indirect, reserved control by a second company to establish joint employment. Under this proposed rule, possessing the authority to control whether directly, indirectly, or both is sufficient to establish control of the essential terms and conditions of employment even if that control is never exercised. The proposed rule also states that the essential terms and conditions of employment include, but are not limited to: wages, benefits, and other compensation, hours of work and scheduling; hiring and discharge; discipline; workplace health and safety; supervision; assignment; and work rules and directions governing the manner, means, or methods of work performance. Employers should continue to monitor developments for the final rule since the proposed rule will have significant impacts for many employers.

NLRB Flips on Continued Union Dues Collection After Expiration of CBA

On October 3, 2022, in Valley Hospital Medical Center, Inc. d/b/a Valley Hospital Medical Center and Local Joint Executive Board of Las Vegas, the National Labor Relations Board (NLRB) overruled a prior ruling in that case which gave employers the right to stop collecting union dues after the expiration of the collective bargaining agreement; now, employers are required to deduct union dues from an employee’s wages and remit to the union under a collective bargaining agreement, even after the expiration of that collective bargaining agreement. This ruling applies retroactively for all pending cases involving this issue.

DHS Extends Remote Verification of Form I-9 to July 31, 2023

The COVID-19 temporary policy allowing for remote verification of Form I-9 documents has been extended again by the Department of Homeland Security (DHS) to July 31, 2023. Employers can continue to inspect Section 2 documents via virtual video, fax, or email. Once normal operations resume for the business, remote employees have three business days to report to their employers for in-person physical verification of their documents. This provision only applies to employers and workplaces that are operating fully remotely. DHS has issued a proposed rule to make virtual verification permanent and is currently in the process of requesting comments.

EEOC Updated “Know Your Rights” Poster

The U.S. Equal Employment Opportunity Commission (EEOC) recently updated and released its Know Your Rights poster. This poser replaces the previous “EEO is the Law” poster. The poster summarizes federal laws prohibiting job discrimination and explains how employees or applicants can file a charge if they believe they have experienced discrimination. New additions include information about harassment being a form of discrimination; sex discrimination includes discrimination based on pregnancy and its related conditions, sexual orientation, and gender identity; and information about equal pay discrimination for federal contractors. A QR code has also been included so employees have fast access to the website for filing charges. The new poster should be placed in a conspicuous location.

Third Circuit: Investigation Motive is Relevant to Discrimination Claim

On September 15, 2022, in Canada v. Samuel Grossi & Sons, Inc., the Third Circuit Court of Appeals stated that an employer’s motive for investigating an employee may be relevant when determining pretext for the employee’s discrimination claim. There, the employer claimed that its search of an employee’s cell phone should not be considered a pretext for discrimination. The employer stated that its reason for searching the phone was to determine if it was company property. The court stated that, despite finding potential evidence of workplace misconduct, the employer’s motive for conducting the search could show retaliation because of the employee’s existing discrimination lawsuit.

Eighth Circuit: Sexual Assault Claim is Outside Scope of Mandatory Employment Arbitration Agreement

On August 30, 2022, in Anderson v. Hansen, the Eighth Circuit Court of Appeals stated that claims of sexual assault by an independent contractor against an employee fall outside the scope of the employee’s mandatory employment arbitration agreement. Here, the employee was at an out-of-town conference on behalf of the employer when the alleged sexual assault occurred. The employer argued that because the employee was there on behalf of the employer, the incident arose out of services performed for the company, and therefore should be governed by the arbitration agreement. The court, looking to decisions in other circuits, determined that because the alleged incident could have occurred even in the absence of any contractual or employment relationship it should be outside the scope of the arbitration agreement.

Eleventh Circuit: Injunction Limited on Federal Contractor Vaccine Mandate

On August 26, 2022, the Eleventh Circuit Court of Appeals limited the scope of an injunction against President Biden’s executive order requiring COVID-19 vaccination for federal government contractors. The injunction now only applies to contractors in seven states, as well as members of the Associated Builders and Contractors. Despite the limit, the federal government is expected to continue its non-enforcement policy on a nationwide basis. Note that injunctions are still in place in other circuits and states.

D.C. Circuit: Federal Court Denies Request to Reinstate Healthcare Emergency Temporary Standard

On August 26, 2022, a federal court denied a request from a nurses’ union that would have required OSHA to make OSHA’s temporary Healthcare Emergency Standard permanent. The court stated that it did not have jurisdiction to compel OSHA to reinstate the standard. Despite the decision, OSHA is expected to soon announce a permanent rule. Industry observers expect the permanent standard to closely resemble the temporary standard. Continue to look for updates on this topic.

District of Columbia: Tipped Minimum Phased Out by 2027

On November 8, 2022, Washington D.C. voters passed the “District of Columbia Tip Credit Elimination Act” (Initiative 82). Beginning January 1, 2023, the tip credit for D.C. tipped wage workers will be phased out by 2027 when employers will be required to pay their tipped employees the full applicable minimum wage without the use of tip credits. Employers should prepare to adjust payroll processes to account for the coming change in 2023.

Illinois: Workers’ Right to Organize Enshrined in State Constitution

On November 8, 2022, Illinois voters approved the Illinois Constitution Amendment 1 which guarantees workers a broad right to collective bargaining. The Amendment states that “[e]mployees shall have the fundamental right to organize and to bargain collectively through representatives of their own choosing for the purpose of negotiating wages, hours, and working conditions, and to protect their economic welfare and safety at work.” The language is significantly broad to potentially allow workers to collectively bargain without a certified union. However, the Amendment is expected to be challenged as being preempted by the federal National Labor Relations Act. Look for updates on this emerging issue.

Massachusetts: Paid Family & Medical Leave Rates Updated for 2023

The Department of Family and Medical Leave announced changes to the required contribution rate that funds the program, as well as a change in the maximum weekly benefit. Effective January 1, 2023, for employers with 25 or more covered individuals, the new rate for the public plan will be reduced to a combined rate of 0.63% of applicable wages. For employers with less than 25 covered individuals,
the new rate for the public plan will be reduced to a combined rate of 0.318% of applicable wages. The weekly maximum benefit amount will increase to a rate of $1,129.82 per week.  The state announced that the state average weekly wage has increased from $1,694.50 per week to $1,735.64 per week. For private plans, insurers will soon release a new contribution rate for CY2023, which may be different than the State’s public plan option. In addition, for employers who have exemptions for the current year, they will need to renew their exemption in order to continue to maintain a private plan in the new calendar year.

New Jersey: New Anti-Discrimination and Family Leave Posters

A new poster is available for employers covered by the New Jersey Law Against Discrimination. Additionally, employers with 30 or more employees who are covered by the Family Leave Act must display an updated poster. Posters must be displayed in a conspicuous place. Additionally, employers must distribute the posters to employees annually on or before December 31, 2022 and upon an employee’s first request. Posters may be distributed by e-mail, a physical copy, or through an internet or intranet website.

New Jersey: Proposed Legislation Would Provide Full Pay in Exchange for Non-Compete

New Jersey’s proposed AB 3715 would require employers to provide former employees with full pay and fringe benefits while post-employment restrictive covenants are in place (known as “garden leave”). The proposed legislation would require employers to limit non-competes and non-solicit agreements to 12 months following the last day of employment; provide all new hires with the terms of restrictive covenants in writing at the earlier of the offer of employment or 30 days prior to the start date; provide a written notice of intent to enforce a restrictive covenant within ten days of an employee’s last day or work; and pay 100% of compensation and continue employer contributions towards fringe benefits while post-employment restrictions are in place. Employers should continue to monitor the progress of this legislation and review their existing restrictive covenants with legal counsel.

New York: Department of Health Amends Screening Requirements for Home Care Workers

On August 2, 2022, the New York State Department of Health reduced the number of daily health screenings required for home care staff to occur once per day when the employee arrives at work. The requirement for employers to maintain a policy on COVID-19 symptom monitoring and reporting remains in effect. Policies must require that staff be contacted by the agency/employer at least once per day before the start of the employee’s shift to confirm the employee is symptom free and self-monitoring. Policies must also require staff to contact the agency/employer during their shift if they develop symptoms and immediately stop providing services to the patient.

New York: State Adopts CDC Guidance on COVID-19 Quarantine and Isolation

On September 14, 2022, the New York State Department of Health stated that New York is following the CDC’s August 24, 2022 guidance on COVID-19 quarantine and isolation. CDC guidance no longer calls for precautionary quarantines for people exposed to COVID-19, regardless of vaccination status, if they remain asymptomatic. Since that time, the Department has removed the Affirmation of Quarantine form from its website, but has kept the Affirmation of Isolation form which may be used as if it were an individual Order for Isolation issued by the New York State Health Commissioner.

New York, NY: Private Employers No Longer Must Mandate COVID-19 Vaccines

As of November 1, 2022, private employers in New York are no longer required to mandate COVID-19 vaccination of their employees. Employers still have the option of inquiring about employee and applicant vaccination status, subject to applicable federal and state law. Employers are also still permitted to impose compliant vaccination requirements.

North Carolina: State OSHA’s Maximum Penalties Have More than Doubled

As of October 1, 2022, North Carolina’s OSHA maximum penalties more than doubled. The new maximums increase potential penalties to:

• $14,502 per violation for serious and other-than-serious violations of the OSH Act
• $14,502 per day for failure to timely abate hazards
• $145,027 per violation for a repeated or willful violation of the OSH Act
• $29,000 per violation for serious violations involving a minor

Beginning January 1, 2023, penalties will be adjusted annually for inflation. NC OSHA has also given itself more time to investigate and issue citations. Previously, NC OSHA had six months from the date they knew or should have known of the hazard. The new law gives NC OSHA the option to wait several months to begin an inspection. They will then have six months from the opening of an investigation to issue citations.

Oregon: Paid Leave Goes into Effect January 1, 2023

Oregon’s Paid Family and Medical Leave Insurance program (PFMLI) goes into effect January 1, 2023 with benefits extended to employees as of September 3, 2023. Employers with 25 or more employees without an approved equivalent plan will begin to pay 40% of the contribution rate with payroll deductions making up the remaining 60%. For 2023, the contribution rate is 1% of employee gross wages. Employers with less than 25 employees do not have to pay into the fund but must collect and submit employee contributions. Employers must also post a model notice poster. Employers should prepare to update their payroll processes to collect and submit the required contributions.

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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. © 2022 ManagEase