FEDERAL UPDATES
Federal Contractors: Reminder that covered federal contractors must certify AAP compliance through the OFCCP portal by June 29, 2023.
Noncompete Agreements: The NLRB joined the FTC and many states in the effort to curb the use of non-compete agreements. Its general counsel just released new guidance directing field investigators to watch for noncompete and refer them for possible prosecution as a violation of the National Labor Relations Act, unless narrowly tailored to special circumstances justifying the need for a noncompete. It’s not clear at this time what those circumstances might be. The NLRA applies to both union and nonunion employers, so even if your organization isn’t unionized, we recommend caution and legal advice before asking employees to sign noncompete agreements or attempting to enforce those already in effect.
Health Care/CMS Vaccination Requirements. CMS recently announced that it has begun the process of withdrawing its mandatory Covid-19 vaccination requirement. Because it was intended to be in effect through next November, the withdrawal requires rulemaking and publication in the Federal Register, so the final withdrawal is not expected until about August 4, 2023. Nonetheless, CMS has announced that it will not enforce the requirement in the interim.
FLSA Overtime: The DOL recently released a report suggesting that it would publish a new overtime rule in August. It is expected to raise the minimum salary threshold for exempt employees and may revise the duties test as well. However, the new rule was previously expected in the spring of 2022, and for various political and litigation reasons has been delayed several times. In addition, it is widely expected to be challenged in court once it is published as final in the Federal Register.
STATE/LOCAL UPDATES
Colorado: Effective July 1, 2024, Colorado will join several other states by prohibiting age-related questions on job applications. The Job Application Fairness Act prohibits employers from requesting information related to age, date of birth, or dates of attendance at or graduation from an educational institution on employment applications. Employers are still permitted to ask applicants to confirm whether they meet bona fide age restrictions.
Illinois:
Pay Transparency. The legislature passed a pay transparency bill this year and sent it to the Governor for signature this week. The bill amends the Equal Pay Act of 2003 to require employers with 15+ employees to include a pay scale and a general description of benefits and other compensation in each job posting for a position that will be physically performed in Illinois or that will report to an Illinois worksite. It also includes a requirement that employers must “announce, post or make known” opportunities for promotion to all current employees no later than 14 calendar days after an external posting. Unlike most other states, the bill specifies that a publicly available hyperlink to the information satisfies the requirements. Once the Governor signs the bill, we expect additional guidance from the Illinois Department of Labor.
Paid Leave. The Illinois DOL recently published FAQs for the Paid Leave for All Workers Act (eff 1/1/24) that requires most employers in Illinois to provide at least 40 hours of paid leave that is available for any reason. Employers may require up to seven days’ notice if the leave is foreseeable but may not require employees to submit any documentation or certification regarding the need to take leave. We expect additional information to be published prior to the effective date. For now, the Illinois DOL has confirmed that the Act applies to both part-time and full-time employees and that employers can prorate leave for part-time employees at the rate of 1 hour per 40 hours worked. Employers can frontload 40 hours of time if they choose to do so, but it is not yet entirely clear whether leave for part-time employees can be prorated if the leave is frontloaded. The FAQs also highlight that employers who have opted out of a local paid sick leave ordinance must comply with the state requirements.
Montana: Effective October 1, 2023, employees in Montana cannot be fired for engaging in legal expressions of free speech, including on social media, unless the expressions violate the employers’ policy or a contract. Employers should review their social media and related policies and practices to ensure they specifically include any desired restrictions and be cautious when disciplining or terminating an employee due to their opinions.
Oregon:
OSHA (Oregon Safe Employment laws): Effective May 24, 2023, Oregon severely increased penalties for safety violations. Previously, Oregon had some of the lowest penalties in the nation, but that is no longer the case. For example, the minimum penalty for a single serious violation has been raised from $300 to $1,116, and the minimum for repeated violations has gone from $200 to $11,162. Repeated or willful violations are much higher. In addition, the law reduces the ability of Oregon OSHA to adjust penalties for small employers if there are willful or serious citations. Further, the law broadens the state’s investigatory powers and responsibilities, so employers should expect much more scrutiny. Oregon employers may want to review their health and safety policies and procedures, identify areas of concern, work to eliminate risks, and ensure that there is a clear and swift response to any violation.
Oregon Family Leave Act (OFLA): To better align with the new Paid Leave Oregon program, the Oregon legislature recently passed a bill amending OFLA in two significant ways. First, effective September 3, 2023, it expands the definition of a covered family member to align with Paid Leave Oregon by including siblings and stepsiblings, as well as their respective spouse or domestic partner, and any individual with whom an employee has a “close association” that is “equivalent to a family relationship.” It also allows employers to define the “leave year” as “beginning on the Sunday immediately preceding the date on which family leave commences”, which is also intended to align with Paid Leave Oregon and is seen as an effort to maximize the time periods during which OFLA and Paid Leave Oregon will run concurrently. While employers may temporarily continue to define the OFLA leave year as any consecutive 12-month period, employers are required to migrate to a rolling-forward leave year no later than July 1, 2024. The Oregon Employment Department has been holding rulemaking hearings in June and expects to issue additional information once that process is complete. Oregon employers should prepare to review and update their handbooks and policies, ensure that any FMLA or paid leave benefits are accurately integrated, and be ready to begin implementing both programs at the beginning of September.
Washington: Reminder that as of July 1, CARES Act premiums must be deducted for all Washington-based employees who have not provided an exemption letter. Employers are prohibited from retroactive deductions, so if they fail to collect them will be liable for any uncollected contributions at the end of the quarter. Employers should also be preparing to add the CARES Act contribution to their next ESD quarterly reporting.
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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.