September Updates

Form I-9 Expiration Date Extended

The U.S. Citizenship and Immigration Services (USCIS) recently issued a new expiration date for the Form I-9 that was issued on August 1, 2023. There were no changes to the form itself or to the Form I-9 process currently in place. Employers must continue to use the version of Form I-9 that was released on August 1, 2023 and that expires on either the original date of July 31, 2026 or the new extended expiration date of May 31, 2027.

 

NLRB Issues Memorandum to Academic Institutions on Complying with Labor & Privacy Laws

On August 6, 2024, the National Labor Relations Board’s (NLRB) General Counsel issued a memorandum clarifying the obligations imposed by the National Labor Relations Act (NLRA) on academic institutions to provide information to a union concerning student workers where the requested information may implicate the Family Educational Rights and Privacy Act (FERPA). Under the NLRA, as currently interpreted by the NLRB, student workers who provide services to their college or university are “employees” subject to the rights and protections of the NLRA, including the right to “form, join, or assist labor organizations” and to “bargain collectively through representatives of their own choosing.” In the exercise of these rights, an institution may have an obligation to furnish a union representing, or seeking to represent, student workers with contact information for these students as well as other information relevant and necessary to carry out its representational duties and responsibilities. The memo outlines the process that academic institutions should follow in responding to a request for FERPA-protected information.

 

Final Rule for Improving Protections for Temporary Agricultural Workers Challenged

The Department of Labor (DOL) issued a final rule titled “Improving Protections for Workers in Temporary Agricultural Employment in the United States.” The final rule went into effect on June 28, 2024, and is intended to strengthen protections for temporary agricultural workers by making several changes to H-2A program regulations to bolster the DOL’s efforts to prevent adverse effects on workers in the U.S. and ensure that H-2A workers are employed only when there are not sufficient able, willing, and qualified U.S. workers available to perform the work. However, on August 26, 2024, the United States District Court for the Southern District of Georgia issued a preliminary injunction order prohibiting the DOL from enforcing the final rule in certain states and with respect to certain entities. Specifically, the preliminary injunction prohibits the DOL from enforcing the Rule in the states of Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Missouri, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, Tennessee, Texas, and Virginia, and against Miles Berry Farm and the members of the Georgia Fruit and Vegetable Growers Association as of August 26, 2024.

 

Alaska: Oral Fluid Drug Testing Permitted

Currently, only samples of an employee’s or prospective employee’s urine or breath are permitted to be collected for drug and alcohol testing. However, testing permissions will soon expand to include oral fluids as of October 28, 2024. SB 196 specifically allows employers to require collection of oral fluids for any job-related purpose consistent with business necessity, including investigation of possible impairment, workplace accidents, maintaining workplace safety, maintaining productivity, quality, or security, or reasonable suspicion of adverse effects from drugs or alcohol. Employers should update drug and alcohol testing policies to expand the methods of testing.

 

Alaska: Workers’ Compensation Updates

Effective January 1, 2025, SB 147 implements reforms to Alaska’s Workers’ Compensation System.  The bill shifts the reemployment system’s focus from retraining for new careers to helping injured workers return to their preferred professions. An employee may be eligible for workers’ compensation re-employment benefits if they are unable to return to work for 25 consecutive days. Previously, employees had to be out of work for 45 consecutive days.

 

California: Employers Must Timely Enforce Arbitration Agreements

On July 25, 2024, in Quach v. California Commerce Club, Inc., the California Supreme Court said that a waiver to enforce an arbitration agreement under the California Arbitration Act (CAA) does not require a showing of prejudice from the party claiming that a waiver has occurred. A similar ruling was made by the U.S. Supreme Court in 2022 regarding the Federal Arbitration Act (FAA). Here, the Court said that the basis for the U.S. Supreme Court ruling was the same as for the California statute, meaning that no showing of prejudice is required to allege a waiver of enforcement. Ultimately, enforcement of arbitration agreements is a contractual dispute without more required. Here, the employer litigated the case and waited 13 months before seeking to enforce arbitration. Because this was deemed a contractual matter, the employee was not required to show they were prejudiced in order to claim that the employer waived their right to arbitration. As a result, employers should not delay in enforcement of valid arbitration agreements; otherwise, they may be found to have waived their agreement.

 

California: New Whistleblower Poster in 2025

Effective January 1, 2025, AB 2299 requires the Labor Commissioner to develop a model list of employees’ rights and responsibilities under California’s whistleblower laws. Posting the model list will be deemed as complying with employer whistleblowing posting obligations.

 

Los Angeles, CA: Freelance Workers Model Contract Now Available

On August 7, 2024, Los Angeles launched a model contract to help employers comply with the Freelance Workers Protections Ordinance (FWPO). While the model contract is not required to be used, it contains the basic requirements to identify the scope of work being contracted for and the terms of payment. Employers should still have legal counsel review independent contractor relationships to ensure they meet the statutory requirements under Labor Code § 2775, et seq. Penalties can be severe for employee misclassification.

 

Connecticut: Narrow Definition of “Supervisor” for Hostile Work Environment Claims

On August 1, 2024, in O’Reggio v. Commission on Human Rights and Opportunities, the Connecticut Supreme Court ruled that for the purpose of hostile work environment claims under federal law, a supervisor is “an employee empowered by the employer ‘to take tangible employment actions against the victim’” (e.g., to effect a significant change in employment status such as hiring, firing, failing to promote, reassigning with significantly different responsibilities, or causing a significant change in benefits). This is the same rule adopted by the U.S. Supreme Court in Vance v. Ball State University. In this case, an adjudicator for the Connecticut Department of Labor claimed her program service coordinator subjected her to a hostile work environment. However, the program service coordinator did not have the power to hire, fire, or discipline the plaintiff or other employees. Employers should note that this narrower interpretation does not protect them from claims if a supervisor has restricted authority. A supervisory employee’s behavior could still trigger a harassment claim if they have limited authority. All supervisors should be trained on what their responsibilities and expectations are when it comes to harassment in the workplace.

 

District of Columbia: Online Sexual Harassment Training for Managers

Effective October 1, 2024, the District of Columbia’s DC B. 875 allows managers the option to take required sexual harassment training online. In-person training is still allowed but no longer required.

 

Florida: Stop WOKE Law is Permanently Enjoined

In 2022, Florida enacted the Individual Freedom Act which was later labeled the “Stop the Wrongs to Our Kids and Employees Act” or “Stop WOKE Act.” Among other things, Stop WOKE sought to prohibit employers from requiring employees to attend a meeting or undergo a training or instruction “that espouses, promotes, advances, inculcates, or compels” employees to believe various concepts based on “race, color, sex, or national origin.” From its passage, the Stop WOKE law has come under various legal challenges that initially resulted in a preliminary injunction against the Act’s workplace training portion. In July of 2024, the Stop WOKE challengers sought to convert the preliminary injunction to a permanent injunction which was granted in early August 2024. Therefore, employers are no longer required to comply with the Act’s workplace training requirements, providing employers more discretion to create IE&D programming in the workplace. The permanent injunction also prohibits the Florida Commission on Human Relations and the Florida Attorney General from enforcing the Stop WOKE’s prior workplace-training prohibitions.

 

Hawaii: New Captive Audience Law

Effective July 2, 2024, SB 2715 expands Hawaii’s Unfair Labor Practices Law by prohibiting employers, who are acting individually or in concert with others, from discharging, disciplining, or otherwise penalizing or threatening any adverse employment action against an employee because the employee declines to: (1) attend or participate in an employer-sponsored meeting, or any portion of a meeting, which communicates the opinion of the employer about political matters; or (2) Receive or listen to a communication from the employer that communicates the opinion of the employer about political matters. The law defines “political matters” as “anything related to an attempt to influence a future vote by persons in an audience,” but the law does not limit the rights of an employer to conduct meetings or to engage in communications involving political matters as long as attendance by the employees is wholly voluntary.

 

Massachusetts: Workers’ Compensation Poster Update

As of September 16, 2024, employers must fill out and display the newly updated workers’ compensation Notice to Employees poster in a visible location utilized and accessible to all employees.  If there is no such location, employers must distribute the revised Notice to Employees by regular mail or electronically. The poster must be updated, reposted, and redistributed whenever any of the information changes.

 

Massachusetts: New Veterans Benefits Notice

Effective November 6, 2024, HB 4976 requires employers with more than 50 full-time employees to display a veterans’ benefits and services poster in a conspicuous location in the workplace accessible to employees. Employers must also distribute the notice to each employee at the start of employment and on an annual basis. Look for the poster to be released from the Executive Office of Labor and Workforce Development.

 

Minnesota: Access and Review of Personnel Records Expanded

Effective July 1, 2024, HB 5247 amended Minnesota’s Personnel Record Review and Access law. Now, the requirement to provide notice and a procedure for employees to dispute information in their file applies to all employers regardless of size. Similarly, all employers are required to permit employees to review their personnel files.

 

Minnesota: Consumer Data Privacy Act

Effective July 31, 2025, HB 4757 provides Minnesota residents with privacy rights to their personal data. Covered businesses who collect and process personal data have certain requirements and limitations. A “consumer” under the Act is a natural person who is a Minnesota resident acting only in an individual or household context. “Personal data” is any information that is linked or reasonably linkable to an identified or identifiable natural person. Personal data does not include deidentified data or publicly available information. Most importantly, the definition of consumer does not include a natural person acting in a commercial or employment context.

 

Minnesota: New Juror Protections

Effective July 1, 2024, Minnesota has amended its juror protection statute to add protections for employees called to jury service. Under the amended law, an employer is required to release an employee from their regular work schedule to permit them to attend court for jury service, without requiring them to work an alternative shift on any day they are required to report.

 

Nebraska: Data Privacy Act

Effective January 1, 2025, LB 1074 provides Nebraska residents with privacy rights with respect to their personal data. Covered businesses who collect and process personal data have certain requirements and limitations. A “consumer” under the Act is a natural person who is a Nebraska resident acting only in an individual or household context. “Personal data” is any information that is linked or reasonably linkable to an identified or identifiable natural person. Personal data does not include deidentified data or publicly available information. Most importantly, the definition of consumer does not include a natural person acting in a commercial or employment context.

 

New Hampshire: Consumer Data Privacy

Effective January 1, 2025, SB 255 provides New Hampshire residents with privacy rights with respect to their personal data. Covered businesses who collect and process personal data have certain requirements and limitations. A “consumer” under the law is a resident of New Hampshire. “Personal data” is any information that is linked or reasonably linkable to an identified or identifiable natural person. Personal data does not include deidentified data or publicly available information. Expressly excluded from the definition of consumer is “an individual acting in a commercial or employment context or as an employee, owner, director, officer or contractor of a company, partnership, sole proprietorship, nonprofit or government agency whose communications or transactions with the controller occur solely within the context of that individual’s role with the company, partnership, sole proprietorship, nonprofit or government agency.”

 

New Hampshire: Protections When Storing Employee Guns in Vehicles

Effective January 1, 2025, HB 1336 prohibits employers from requiring an employee to disclose whether they are storing a firearm or ammunition in their vehicle; or searching an employee’s vehicle for a firearm or ammunition. Any public or private employer that receives public funds from the federal or state government cannot prohibit an employee who may legally possess a firearm from storing a firearm or ammunition in the employee’s vehicle while entering or exiting the employer’s property or while the vehicle is parked on the employer’s property as long as the vehicle is locked, and the firearm or ammunition is not visible; or take any adverse action against any employee who stores a firearm or ammunition in this manner. An employer cannot be held liable for any economic loss, injury, or death resulting from another person’s actions involving a firearm or ammunition stored as permitted under the bill.

 

New York: Workplace Violence Prevention for Retail Employers Effective March 2025

Earlier this year, the State Legislature passed AB A8947C, a bill that creates significant workplace violence prevention requirements for retail employers. The Governor recently signed the legislation on September 5, 2024, which means that it will go into effect on March 4, 2025. Businesses employing at least 10 retail employees should begin now to prepare for the new requirements, including a workplace violence prevention plan, employee training, and employee notices. Additional requirements apply for employers with 500 or more employees.

 

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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. © 2024 ManagEase