November Updates

OFCCP Updates Complaint Filing Process

On November 1, 2023, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) updated its intake process by introducing a new Pre-Complaint Injury Form (CC-390) and an updated Complaint Form (Form CC-4). A pre-complaint inquiry is not the same as filing a complaint; it allows employees and applicants to share their concerns about employment discrimination and can assist in determining if filing a complaint with OFCCP is the right choice. Employees and applicants who believe an employer doing business with the Federal government has discriminated against them in employment, or in applying for employment, may submit a pre-complaint inquiry or file a discrimination complaint with OFCCP. The employee may also submit a pre-compliant inquiry or complaint if they believe their employer discharged or otherwise discriminated against them for inquiring about, discussing, or disclosing information regarding their pay or the pay of their co-workers, subject to certain limitations. The OFCCP’s website also includes additional information and frequently asked questions about the pre-complaint inquiry and complaint filing process.

OSHA Issues New Fact Sheets on Heat Illness Prevention

OSHA has released new resources for employers and employees as part of their ongoing heat illness prevention efforts. The new fact sheets provide information on personal risk factors, the importance of employee hydration status, and pregnant worker safety in the heat. These new fact sheets have been added to OSHA’s library of other resources designed to educate employers and employees on how to reduce the threat of heat stroke and other heat-related illnesses, as well as what responsibilities employers have to prevent heat-related illness and ensure a safe working environment for employees.

Proposed Rule to Update H1-B Program

On October 23, 2023, the Department of Homeland Security issued a proposed rule to update the H1-B program. Of note, the proposed rule provides clarification on specialty occupations, including a required direct relationship between the required degree field and the duties of the position; the test for determining specialty occupation status has also been condensed; it codifies the deference policy to ensure consistent adjudications; the definition of employers who are exempt from the annual statutory limit on H-1B visas has been modernized; the proposed rule provides further benefits and flexibilities in the regulations; and it implements protections against fraud and gaming the system. The comment period will close December 22, 2023. Employers should continue to look for updates on the final rule.

Federal Contractor Minimum Wage Increases in 2024

Starting January 1, 2024, federal contractors must pay employees a minimum wage of $12.90 per hour, and tipped employees performing work on or in connection with covered contracts must be paid $9.05 per hour.

Second Circuit: Clarification on Pleading Standard for FLSA Overtime Claims 

On October 16, 2023, in Herrera v. Commes Des Garcons, et al., the Second Circuit Court of Appeals stated that, when brining a claim for unpaid overtime wages, plaintiffs only need to allege that they worked unpaid hours over 40 each week that they were employed as part of their regularly scheduled workweek. No week-by-week recounting of the hours worked is necessary as part of the initial pleading. Notably, this decision may also affect the pleading standard for overtime claims under New York Labor Law (NYLL), as New York courts analyze pleading standards for the NYLL in accordance with the FLSA.

Alabama: Overtime Wages Excluded from Tax Withholding

Effective December 3, 2023, overtime wages paid to full-time hourly employees will be excluded from Alabama withholding tax from January 1, 2024 through June 30 2025. This rule does not apply to salaried or other alternative payment methods made to employees. Additional reporting related to overtime wages when filing withholding tax returns are also required. Employers are required to report the total amount of exempt overtime wages for the filing period and the total number of employees paid such wages. Lastly, employers are permitted to comply with the new reporting requirements electronically. There are several aspects to these changes so employers should review the new rules carefully to update their payroll processes.

California: Computer Software Exemption Salary Increase

In accordance with annual increase requirements, the Department of Industrial Relations adjusted the computer software employee’s minimum hourly rate of pay exemption from $53.80 to $55.58, the minimum monthly salary exemption from $9,338.78 to $9,646.96, and the minimum annual salary exemption from $112,065.20 to $115,763.35, effective January 1, 2024.

California: Reimbursed Food Handler Training Costs

Food handlers must obtain food handler cards only from American National Standards Institute (ANSI) accredited training providers following successful completion of required training courses. As of January 1, 2024, SB 476 requires employers to pay for the time employees take to complete the mandated training and examination. Employers must also pay the employee for any necessary expenditures or losses associated with obtaining a food handler card. The employee must be relieved of all other work duties while they are taking the training course and examination. Employers cannot condition employment on an applicant or employee having an existing food handler card.

Chicago, IL: Subminimum Wage Eliminated for Tipped Employees

On October 6, 2023, the Chicago City Council voted to eliminate the subminimum wage for tipped employees working within Chicago by July 1, 2028. Previously established under the One Fair Wage ordinance, the subminimum wage will be gradually phased out beginning on July 1, 2024. As of July 1, 2028, employers of covered employees in Chicago will not be able to take a tip credit of any amount. The standard minimum wage rate in effect at that time will apply to all employees, including those in occupations that customarily receive tips. Employees within those occupations will still be entitled to earn and retain their tips.

Ohio: Legalized Recreational Marijuana

Ohio voters approved Issue 2 legalizing recreational marijuana. Effective December 7, 2023, the cultivation, sale, purchase, possession, use, and home growth of recreational marijuana is legal. The law applies to residents aged 21 and older. The existing medical marijuana program remains unchanged. Employers are not required to permit or accommodate an employee’s use, possession, or distribution of marijuana. Employers can also refuse to hire, discharge, discipline, or take any other adverse action against an individual for their use, possession, or distribution of marijuana. Drug testing policies, drug-free workplace policies, and zero-tolerance drug policies can continue to be enforced. Ohio’s Department of Commerce is authorized to issue rules on implementation and enforcement.

Washington: Exempt Pay Increases in 2024

Effective January 1, 2024, the salary threshold for overtime exempt workers is at least $1,302.40 per week or $67,724.80 per year. Exempt computer professionals must be paid at least $56.98 per hour. Note that these increases exceed the minimum requirements under the current proposed FLSA rule.

---

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