October Updates

EEO-1 Reporting for 2022 Opens October 31^st!

From October 31 to December 5, 2023, the Equal Employment Opportunity Commission’s (EEOC) reporting portal will be open for employers to submit their EEO-1 reports for 2022. The 2022 EEO-1 Component 1 Instruction Booklet is available on the EEOC’s dedicated EEO-1 Component 1 website. The 2022 EEO-1 Component 1 Data File Upload Specifications are also available. The EEO-1 Component 1 report is a mandatory annual data collection that requires all private sector employers with 100 or more employees, and federal contractors with 50 or more employees meeting certain criteria, to submit workforce demographic data, including data by job category and sex and race or ethnicity, to the EEOC. Covered employers should prepare to submit the required data.

CMS Proposes Rule for Minimum Staffing Requirements in Long-Term Care Facilities

On September 1, 2023, the Centers for Medicare & Medicaid Services (CMS) issued a proposed rule titled “Minimum Staffing Standards for Long-Term Care (LTC) Facilities and Medicaid Institutional Payment Transparency Reporting.” If finalized, the proposed rule would require nursing homes across the United States to provide, at a minimum: (1) one onsite Registered Nurse (RN) 24 hours per day, seven days a week; (2) 0.55 RN hours per resident per day; and (3) 2.45 Nurse Aide hours per resident per day. As part of the proposed rule, CMS also aims to strengthen the existing facility assessment process by requiring nursing homes to: (1) assess the specific needs of each of its residents and make adjustments as necessary, including on a shift-by-shift basis; (2) formulate staffing plans designed to maximize staff recruitment and retention; and (3) incorporate the input of staff, including not only management, but also nursing staff and their representatives, as part of the assessment process. As part of the proposed rule, CMS also outlines a phased implementation and a temporary hardship exemption for facilities that can meet certain criteria. The 60-day comment period for the proposed rule runs until November 6, 2023. Affected employers can likely expect a finalized rule to be published later this year.

DOL: Notice of Proposed Rulemaking to Protect H-2A Agricultural Workers

On September 12, 2023, the U.S. Department of Labor (DOL) announced proposed rules to amend regulations governing the certification of temporary employment of nonimmigrant workers engaged in temporary or seasonal agricultural work, commonly known as the H-2A nonimmigrant visa program. The Notice of Proposed Rulemaking focuses on strengthening protections for agricultural workers and providing the DOL with enhanced ability to monitor compliance and take necessary enforcement actions against program violators. Among the changes included in the proposed rule are: 1) required payment of updated Adverse Effects Wage Rates upon publication in the Federal Register rather than 14 days after publication; 2) new notice and compensation obligations in the event an employer must briefly delay the start of work due to unforeseen circumstances; 3) requiring employers who use agents or recruiters to provide copies of all agreements and disclosing the identity and geographic location of persons and entities hired by or working for the foreign labor recruiter; 4) requiring seat belts to reduce the hazards associated with the transportation of agricultural workers; and 5) anti-retaliation provisions to ensure employers do not interfere with workers’ efforts to advocate for better working conditions. There are several other important worker protections in the proposed rule. Employers with H-2A agricultural workers have until November 14, 2023 to provide public comment.

DOL and EEOC: Disability Resource Guide

To mark the 50^th anniversary of the Rehabilitation Act, the Department of Labor (DOL) and the Equal Employment Opportunity Commission (EEOC) released the Commemorative Resource Guide: Recruitment, Hiring, and Employment of Individuals with Disabilities. This resource guide compiles guidance and technical assistance from the federal sector, links to relevant laws and regulations, as well as information on best practices for recruitment, hiring, retention and advancement. Employers covered by the Americans with Disabilities Act should review the guide and update their policies and procedures for compliance.

EEOC Proposes Updated Workplace Harassment Guidance

On October 2, 2023, the Equal Employment Opportunity Commission published updated proposed guidance on workplace harassment, that was initially released in 2017. The updated guidance reflects significant changes in the law during recent years, and explains the legal standards and employer liability applicable to harassment claims under the federal employment discrimination laws enforced by the EEOC. Specifically, the updated guidance provides numerous updated examples to reflect a wide range of scenarios, incorporates updates throughout on current case law on workplace harassment, and addresses the proliferation of digital technology and how social media postings and other online content can contribute to a hostile work environment. The proposed guidance is subject to a 30-day comment period, ending on November 1, 2023.

OSHA: Updated Heat Protection Fact Sheet

The Occupational Safety and Health Administration (OSHA) has updated its fact sheet Protecting Workers from the Effects of Heat. The fact sheet provides information on how to recognize and respond to symptoms of heat illness, the risk factors for heat illness, and methods to mitigate heat hazards in both indoor and outdoor workplaces. The fact sheet emphasizes, like all other workplace hazards, that it is the employer’s responsibility to ensure workers are safe from hazardous heat at work. In addition to learning about the risk factors, employers should review the fact sheet for creating a plan and providing training to employees on recognizing the signs of heat illness.

California: Employer Agent Liability for Discrimination

On August 21, 2023, in Raines v. U.S. Healthworks Medical Group, the California Supreme Court stated that a business acting as an employer’s agent can be held directly liable under the Fair Employment and Housing Act (FEHA) for employment discrimination. There, during post-offer medical screening, an employer’s third-party screening provider required the applicants to complete a health history questionnaire with questions unrelated to their job. Because FEHA defines “employer” to include “any person acting as an agent of an employer, directly or indirectly,” the Court said that the third-party vendor could be directly liable for unlawful discrimination.

Lawrence, KS: New Protections Against Discrimination

As of August 22, 2023, Ordinance 10003 expanded the definition of “race,” prohibiting employers with four or more employees from engaging in employment discrimination on the basis of skin color, facial features, hair texture and protective hairstyles. Lawrence is the first city in Kansas to pass an ordinance affirming the CROWN Act. Employers should have appropriate personnel trained on the requirements and have applicable policies updated.

Minnesota: School Activities Leave Broadened

As of July 1, 2023, SF 3035 broadened the definition of eligible employee under Minnesota’s school activities leave law by removing the length of service requirement, making leave available to employees upon hire. It also clarifies that the leave applies to all employers with one or more employees. The prohibition against employer retribution was expanded to state that employers shall not discharge, discipline, penalize, interfere with, threaten, restrain, coerce, or otherwise retaliate or discriminate against an employee for requesting or obtaining a leave of absence. Employers should update leave policies for compliance.

New Jersey: Employment Tax for Non-Residents

On July 21, 2023, New Jersey Governor Phil Murphy signed Assembly Bill No. S3128/A4694, which establishes an aggressive tax treatment for non-residents who work for New Jersey employers. Specifically, the law follows the Convenience of the Employer rule which subjects employees residing in a different state from their employer’s location to double taxation, unless their state of residence has no income tax. Additionally, the law adopts a tax credit for NJ resident taxpayers who owe income or wage taxes to outside states and establishes a pilot program to incentivize businesses to assign New Jersey resident employees to work within the state. The law provides that, for the taxable years beginning on January 1, 2020, but before January 1, 2024, for any resident taxpayer who: (1) pays income or wage tax for the taxable year by another state; (2) applies for and is denied a tax refund from that state for taxes paid to that state while the resident was within New Jersey; (3) files an appeal with a tax court or tribunal disputing the denial of the requested refund; and (4) obtains a final judgment from the tax court or tribunal resulting in the taxpayer being refunded on taxes paid to the other state, then such resident shall be allowed a credit against the tax otherwise due for the taxable year in an amount equal to 50 percent of the refunded amount.

New York: Updated PFL Contribution Rates

New York state released its updated Paid Family Leave (PFL) contribution rates. Effective January 1, 2024, the employee contribution rate is 0.373% (down from 0.455% in 2023) of gross weekly wages up to an annual maximum of $333.25 (down from $399.43 in 2023). The average weekly wage is $1,718.15 (up from $1,688.19 in 2023). The maximum weekly benefit is increased from $1,131.08 to $1,151.16. Employers should update their payroll calculations accordingly.

Seattle, WA: Paid Sick Leave Expanded to App-Based Workers

Effective January 13, 2024, Seattle’s App-Based Worker Paid Sick and Safe Time Ordinance requires  network companies that facilitate work performed by 250 or more app-based workers worldwide, regardless of where the workers perform work, to provide paid sick leave to eligible app-based workers. Paid sick leave accrues at one hour for every 30 hours worked, and carryover of accrued paid sick leave may be capped at nine days. A network company must implement an accessible system for workers to understand, request, and use their paid sick leave, and must provide each worker with written notice of its policy and procedures consistent with the Ordinance’s requirements.

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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