HR regulations and requirements are constantly changing. Here’s a summary of the latest Federal and state updates that may impact businesses in your jurisdiction.
FMLA Intermittent Leave: A Department of Labor opinion letter recently addressed whether an employee may use FMLA intermittent leave indefinitely to avoid required overtime. Its answer was yes, as long as they continue to be eligible for FMLA and are using it for a qualifying reason. In this particular situation, the employee provided a health care certification stating that the employee had a medical reason that prohibited them from working more than 8 hours per day or 40 hours per week. The company’s regular shifts required 10 hours per day. The DOL found that the company was required to designate the additional 2 hours per day as intermittent FMLA and that it could continue indefinitely, effectively allowing the employee to work “part time”. Many attorneys (and some courts) believe that this should have been handled under ADA and rejected as an inability to perform the essential functions of the job on an indefinite basis, but the DOL disagreed.
Federal Contractors: OFCCP just released its 2023 VEVRAA standard hiring benchmark, effective March 31. The new benchmark is slightly lower than last year, coming in at 5.4% rather than 5.5%. The benchmark is based on the percentage of veterans employed or looking for work in a particular area, and has decreased each year for the past 9 years. As a reminder, the OFCCP AAP certification portal opened March 31, and certification is required by June 29.
Benefits: Employers should prepare for special enrollment periods for employees who are losing Medicaid and/or CHIP coverage due to the end of the federal Covid-19 Public Health Emergency (anticipated May 11, 2023). Employees and dependents previously enrolled in Medicaid/CHIP programs based on the emergency declaration started losing coverage as of March 31 due to federal agencies discontinuing policies of not terminating enrollment during the emergency order. In addition, group health plans will no longer be required to cover diagnostic testing. Employers should check with their benefits provider to understand what notices and enrollment periods you may need to provide to these employees, and whether they will continue cost-sharing for Covid testing.
EEOC – ADEA Age Discrimination: The EEOC announced that it recently filed two lawsuits alleging age discrimination, reminding everyone to focus on objective job qualifications and not make assumptions about workers based on their age:
It charged a Louisiana company with discrimination based on allegations that it repeatedly asked a 65 employee when she was going to retire, what reasons she had not to retire, and suggesting that she consider retirement. She did not retire, and they eliminated her position, but then hired a younger employee for the same position within weeks. This is a good reminder that discrimination laws applicable to most employers include age discrimination, especially for those over 40 years of age, and employers should generally avoid discussing retirement plans with employees or implying (or stating outright) that are getting “too old” to perform their job.
It charged a Colorado company with discrimination because the company rejected a candidate based on wanting a “more junior” person for the position at a lower salary. It then hired a younger worker, and paid them more than the initial candidate had requested. The EEOC attorney cited federal precedent recognizing the use of phrases such as “too senior” or “overqualified” as ageist euphemisms in recruiting. Employers should cautious when providing reasons for rejecting a candidate, and should clearly document their business-related, non-discriminatory reasons for selection.
PUMP Act (Providing Urgent Maternal Protections for Nursing Mothers). This act took effect at the end of the December, but remedies are available as of April 28, 2023. Lactation accommodation for non-exempt workers was already in place under the FLSA; this act merely extends the accommodation requirements to all exempt workers, including nurses and teachers.
The accommodation is required for the 1 year after birth.
Employees are entitled to “reasonable” break time each time they need to express milk, with no maximum breaks or definition of what is reasonable.
If taken during a regular work break, the break is paid. Otherwise it is unpaid for non-exempt employees as long as they are completely relieved of duty and other employees are not paid for similar additional breaks. Exempt employees may not have their salary reduced for additional breaks.
Employers with fewer than 50 employees may be exempt if they can show undue hardship.
Employers must provide a “private” area free from intrusion or surveillance, other than a bathroom. Privacy screens, curtains, and signage may be used.
Before filing a lawsuit, employees must provide notice of noncompliance, and employers have 10 days to remedy the situation.
As always, states may have additional or more stringent requirements, so be careful to incorporate those requirements and train managers to plan ahead and respond to requests for accommodation appropriately.
Background Checks/FCRA: Before taking an adverse employment action in response to negative information on a background check, employers must comply with FCRA requirements that include (among other things) providing the applicant with a copy of the report and a standard form “Summary of Your Rights Under the Fair Credit Reporting Act” (also called the Summary of Consumer Rights). The Consumer Financial Protection Bureau publishes that form, and just released an update that mainly includes formatting corrections and updated contact information for federal agencies. The update becomes effective April 19, but mandatory compliance doesn’t take effect until March 20, 2024. Employers should make sure they are transitioning to the new model form.
Pay Data Reporting: CA pay data reporting for employers with 100+ employees (and/or 100+ labor contractors) is due May 10 this year (previously due at the end of March). This year it requires reporting of median and mean hourly rates, hours worked, and demographic data for any employee working in CA or affiliated with a CA establishment.
Privacy: California recently published final California Consumer Privacy Protection Act (CCPA) regulations that protect certain consumer data, including HR data, and generally require significant compliance efforts to identify protected data, provide certain notices to consumers (in many cases including applicants and employees), allow consumers to opt-out of data sharing, and have document retention/destruction policies in place. For now, the law applies to for-profit businesses that have annual gross revenues over $25 million, or have personal information of 50,000+ CA residents, or sell personal information. Employers that fall within these categories should be consulting with their legal counsel to develop a data privacy program that complies with this law.
San Francisco: Some employers with San Francisco employees may need to submit their Employer Annual Report Form to the city OLSE department by May 1, 2023. The report provides OLSE with compliance data related to the Fair Chance Ordinance (5+ employees worldwide) and the Health Care Security Ordinance (20+ employees nationwide).
Los Angeles (retail): The Fair Workweek Ordinance takes effect April 1. It requires retail employers with an NAICS retail code in trade categories 44-45 and 300+ employees globally to provide employees at least 14 days advance notice of their work schedule, and provide “predictability pay” for certain schedule changes. Other CA cities also regulate some scheduling, such as Berkeley, Emeryville, San Francisco, and San Jose.
Colorado: Family and Medical Leave. Although benefits are not available until January 2024, the first quarterly FAMLI premiums were due to the Colorado Department of Labor and Employment on March 31, 2023 (although there is a grace period until April 30). All Colorado employers are required to collect premiums from employees, and those with 10+ employees must also include employer contributions. Colorado employers should have registered with the CDLE’s FAMLI division, should already be making payroll deductions, and must remit contributions to the state before the end of April at the latest unless they have received approval from the state to opt out of the program. In addition, they should plan to include FAMLI updates in their employee handbooks before the end of the year.
New York: New York City and New York State both have lactation accommodation laws that are more stringent than federal law (including the new PUMP Act). Effective June 7, 2023, New York State legislatively “clarified” its Nursing Mothers in the Workplace Act, and the Department of Labor is working on a written policy. The clarifications largely track NYC requirements, with a few differences. Employers should carefully review and update their policies regarding federal, state and local lactation accommodation acts to understand the required duration of the accommodation, the specific amenities required in the lactation facilities, notices to employees, and the definitions of covered employers.
Virginia: The Governor recently signed SB1040, which prohibits the use of an employee’s social security number or any derivative thereof on any identification or access card or badge issued to an employee.
Non-competes: Effective 1/1/23, the minimum earnings to allow enforcement of a non-compete agreement increased to $116,593.18 for employees, and $291,482.95 for independent contractors.
L&I Administrative Draft Policy: Tips, Gratuities, and Service Charges: The Washington State Department of Labor & Industries released a draft administrative policy ES.A.12.2 containing examples showing how to comply with minimum wage requirements when calculating tips, tip pools, service charges, paydays, and deductions. Highlights include:
Employers cannot use tip and service charge credits to meet state and local minimum wages (unless the local ordinance expressly permits service charge credits), or agreed upon hourly rates;
Training periods do not affect the rules – employees are entitled to tips (including their portion of service charges) during training periods;
Owners and managers can receive tips only for services they directly provide; they cannot participate in a tip pool;
Employers can retain service charges only if the percentage they retain is clearly disclosed on the receipt and menu;
Tips and service charges must be paid out at the same time as wages earned in the same period;
Business expense deductions from tips, such as for cash register shortage or customers leaving without payment, are not permitted.
Paid Family and Medical Leave:
ESD has proposed new rules to “provide additional clarity and improve program operations”. Among other things, the proposed rules would add employees’ dates of birth to the quarterly report. This is mainly to assist with WA Cares Act eligibility calculations, as well as and solvency projections for both the PFML and WA Cares.
Also, in this legislative session, a new bill was introduced that would be very welcome to Washington employers. It would allow ESD to provide additional PFML claim information to employers to assist them when managing leaves and benefits, and it has now unanimously passed both chambers. The governor still needs to sign it, but it looks highly likely to become law. It would amend the PFML statute beginning 1/1/24 to allow employers to receive the following information about an employee’s claim:
type of leave being taken;
requested duration of leave including the approved dates of leave;
remaining hours of leave available in the employee’s entitlement;
weekly benefit amount; and
actual benefits paid and hours claimed.
SSB 5286 also passed both chambers and if finalized would address PFML solvency issues by replacing the current solvency surcharge option with a formula that recalculates the premium rate each October to ensure a three month reserve. It also caps premiums at 1.2% (currently 0.8%). It would go into effect 90 days after adjournment.
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Asure Software provides this information for general information purposes only. We are not attorneys, and the information in this update should not be relied upon or regarded as legal advice. This information may not be accurate or complete as it relates to a particular company or situation, and does not reflect all developments or laws in all jurisdictions.