Welcome to the latest edition of AlphaStaff's Monthly Compliance Updates!
We are pleased to provide you with national and state legal updates and highlight resources provided by some of AlphaStaff’s trusted legal partners to guide and help keep you in compliance.
National Updates
Narrow Court Ruling Pausing the Federal Trade Commission Non-Compete Ban
A Texas federal judge has temporarily blocked the Federal Trade Commission (FTC) from enforcing its rule banning nearly all non-compete agreements. This ruling, however, only applies to the five entities involved in the lawsuit and does not impact other employers. The non-compete ban is still set to take effect in early September 2024, but this could change due to another pending lawsuit that might result in a nationwide injunction in the coming weeks.
In the Texas case, the U.S. Chamber of Commerce and several business organizations argued that the FTC lacked authority to issue the ban, which they deemed arbitrary and capricious. The court agreed but limited its injunction to the plaintiffs, declining to issue a broader nationwide block.
Another lawsuit challenging the non-compete ban is underway in Pennsylvania federal court. The court hearing occurred on July 10, 2024, and the Court is expected to issue a ruling by July 23, 2024. This case could result in a nationwide injunction affecting all employers.
In the meantime, employers should continue preparing for the potential implementation of the non-compete ban on September 4, 2024. Despite the legal challenges, the ban could still be enacted, so preparation remains crucial.
Click here for more details from Fisher Phillips.
Occupational Safety and Health Administration (OSHA) Provides New Guidance on Reporting Musculoskeletal Injuries
OSHA released a new memorandum on May 2, 2024, clarifying the recordkeeping requirements for work-related musculoskeletal injuries and illnesses. Employers must record such incidents if they result in death, days away from work, restricted work, job transfer, or medical treatment beyond first aid, including significant injuries diagnosed by healthcare professionals.
OSHA's memo highlights that even minimal treatments like first aid, Active Release Techniques (ART), and exercise or stretching can impact recordability. First aid alone does not necessitate recording unless it results in job restriction or days away from work. ART, a movement-based massage, is considered first aid unless it involves skeletal manipulation. Also, any recommendations for exercise or stretching related to a work injury make an incident recordable.
OSHA compliance officers will review first-aid records for repeated treatments of the same injury, indicating potential underreporting. Employers should consistently document all treatments and ensure proper medical care is available, as accurate recordkeeping is crucial for compliance.
Click here to read more from Fisher Phillips.
Judge Issues Last Minute Order Halting Overtime Rule for Texas State Workers
A recent court order exempts the state of Texas as an employer from the new federal overtime salary threshold for white-collar exemptions, effective July 1, 2024. Judge Sean Jordan of the U.S. District Court for the Eastern District of Texas issued this temporary order that applies solely to Texas state employees. The court found that the Department of Labor (DOL) likely overstepped its authority by significantly raising the salary threshold and mandating automatic updates every three years. However, private employers in Texas and across the U.S. must comply with the new rules, which increased the salary threshold for exempt employees from $35,568 to $43,888 annually effective July 1, 2024, and further increased the threshold to $58,656 in January 2025. The threshold for highly compensated employees also rises significantly.
Additional litigation is anticipated, which could affect the rule's future enforcement. AlphaStaff will continue to monitor ongoing legal developments and keep you informed.
Click here to read more from Fisher Phillips.
Landmark SCOTUS Ruling Reverses Chevron Doctrine
In a landmark decision, the Supreme Court has significantly curtailed the power of federal regulators, fundamentally altering how workplace regulations will be enforced moving forward. By overturning the Chevron doctrine, which required courts to defer to federal agencies' interpretations of ambiguous statutes, the Court has shifted the authority to judges, allowing them to independently assess whether agencies have acted within their statutory bounds.
This ruling emerged from cases in which commercial fishing groups contended that a federal agency overstepped its authority by mandating payment for onboard observers. The Supreme Court's 6-3 decision declared that courts must now use their independent judgment to decide on statutory authority rather than deferring to agencies.
For employers, this means a potential increase in challenges to agency regulations. Key areas likely to be impacted include wage and hour rules, labor laws, discrimination and harassment regulations, workplace safety protocols, non-competition agreements, pay equity measures, immigration policies, and affirmative action requirements.
This ruling opens the door for employers to contest regulatory actions more robustly, potentially reshaping the landscape of workplace law for years to come.
Click here to read more from Fisher Phillips.
OSHA Releases First-Ever National Heat Safety Rule
OSHA has proposed its first-ever national heat stress rule to protect workers from heat-related illnesses and fatalities. This regulation, applicable across all industries under OSHA's jurisdiction, mandates robust measures to mitigate heat risks. While still pending formal approval, employers should prepare by understanding the key components of the proposal.
Under the new rule, employers will be required to implement the following:
- Conduct regular heat risk assessments and continuously monitor workplace temperatures.
- Mitigate heat-related risks by using several preventive measures such as providing accessible drinking water, scheduled rest breaks in cool areas, and shaded or air-conditioned rest areas.
- Offer comprehensive heat safety training and education to employees.
- Emergency planning, including developing a Heat Injury and Illness Prevention Plan and a Heat Emergency Response Plan.
- Maintain detailed records of heat-related incidents and regularly audit their heat safety measures.
The rulemaking process began in October 2021 and is expected to take several months. The proposed rule will be formally published in the Federal Register, allowing for a 120-day public comment period, followed by at least one public hearing. OSHA will review the feedback and publish the final rule, possibly with revisions, by early 2025. The rule's future could be influenced by changes in executive leadership in January 2025 or potential legal challenges, especially following recent Supreme Court rulings limiting federal agency powers.
We will continue to follow the rulemaking process and inform you of any developments. AlphaStaff may be able to assist with your loss and safety concerns; please contact your HR Account Manager for further information.
Click here to read more from Fisher Phillips.
State Updates
California New Indoor Heat Illness Rule
California employers should prepare for the upcoming heat illness standard for indoor work areas, set to take effect as soon as August 1, 2024. This regulation, adopted by the California Occupational Safety and Health Standards Board on June 20, 2024, mandates significant compliance measures for indoor workplaces where temperatures reach 82 degrees. This primarily affects environments like warehouses, distribution centers, restaurants, and manufacturing plants.
Employers must develop a detailed Indoor Heat Illness Prevention Plan, provide cool drinking water, establish cool-down rest periods, and closely monitor employees for signs of heat stress, especially during the first 14 days of exposure to high temperatures. Employers must also train supervisors and non-supervisory employees on heat illness risk and prevention.
When temperatures or the heat index hit 87 degrees (or 82 degrees in specific conditions), additional measures must be implemented, including regular temperature and heat index monitoring, and maintaining records for 12 months. To reduce heat levels, employers must prioritize engineering controls, such as air conditioning and ventilation. If these are insufficient, administrative controls like adjusting work schedules and providing personal protective equipment must be used.
Notable exceptions include brief exposures below 95 degrees for less than 15 minutes per hour, teleworking situations, and emergency operations. Employers should begin preparations to ensure compliance and safeguard their employees’ health.
Please follow this link to learn more from Fisher Phillips.
Key Points California Employers Need to Know About New Federal Pregnancy Accommodation Requirements
With last month’s enactment of the federal Pregnancy Workers Fairness Act (PWFA), California employers must navigate both federal and state laws concerning pregnancy accommodations. The PWFA applies to employers with 15 or more employees and mandates reasonable accommodations for pregnancy-related limitations unless it causes undue hardship. California’s existing Pregnancy Disability Leave (PDL) law, which covers employers with 5 or more employees, also includes similar accommodation and leave requirements.
Key Considerations:
- Essential Functions Suspension: Under the PWFA, employees may be considered "qualified" even if they cannot perform essential job functions temporarily. Employers must suspend these functions if the inability is temporary, expected to be resolved within 40 weeks, and can be accommodated without undue hardship.
- Expanded Reasonable Accommodations: The PWFA lists accommodations that are presumed reasonable, such as allowing water breaks, additional restroom breaks, and the ability to sit or stand as needed. These accommodations remove uncertainty around what should be deemed reasonable under California law.
- Documentation Requests: The PWFA limits employers' ability to request documentation for accommodations. Employers cannot request supporting documentation when the limitation and need are obvious or when an employee requests predictable assessments like lactation accommodations.
By integrating these federal requirements with California’s PDL, employers can better support pregnant employees and avoid potential legal pitfalls.
Please follow this link to learn more from Fisher Phillips.
Louisiana Enacts New Law Prohibiting Nondisclosure Clauses for Hostile Work Environment and Sexual Harassment Disputes
Effective August 1, 2024, Louisiana law will render unenforceable any employer-required non-disclosure clauses agreed to prior to a hostile work environment or sexual harassment dispute. This aligns Louisiana with federal and several other state laws inspired by the #MeToo movement, which aim to prevent the suppression of information about workplace misconduct.
House Bill No. 161 amends Louisiana Revised Statute §9:2717, defining a "hostile work environment" broadly to include any condition that significantly affects an employee’s ability to perform their duties and "sexual harassment" as unwelcome sexual advances or conduct affecting employment or creating an offensive work environment. Notably, the law does not limit hostile work environment claims to those based on sex.
The law applies to non-disclosure clauses signed during employment but not those signed post-termination, such as in severance agreements. It allows employees to enter into confidential settlement agreements after reporting or experiencing harassment, mirroring other #MeToo statutes.
Employers should review any employment and separation agreements to ensure compliance with the amended law.
To read more on this topic, click here.
Massachusetts Court Expands Joint Employer Liability
On June 13, 2024, the Massachusetts Appeals Court ruled on the case of Tran v. Jennings Road Management Corp., significantly broadening the circumstances under which a business can be considered a "joint employer" under state wage laws. This ruling, along with guidance from a 2021 Massachusetts Supreme Judicial Court decision, sets a comprehensive framework for determining joint employment status, focusing on the totality of circumstances test.
Key factors considered in this analysis include:
- The authority to hire and fire employees
- The level of supervision and control over work schedules and conditions of employment
- The level of involvement in setting the rate and method of payment
- Maintenance of employment records
Businesses should consider adopting best practices to reduce the risk of being classified as a joint employer.
Please click here for more information on the best practices suggested by our legal partner, Fisher Phillips.
New Jersey Employer Faces Scrutiny for Failing to Hire Medical Marijuana Patient
A telecommunications company in New Jersey is under scrutiny for allegedly violating state anti-discrimination laws by rescinding a job offer to an applicant who tested positive for THC due to medical marijuana use. The applicant, who disclosed his medical marijuana patient status, was allegedly ignored after his positive test result. The New Jersey Attorney General is taking legal action under the New Jersey Law Against Discrimination (NJLAD), which mandates employers to consider reasonable accommodations for disabilities, including those involving medical marijuana. It is important to note that under the law, employers are not obligated to hire a medical marijuana patient. However, they must engage in the interactive process to determine if reasonable accommodations exist for the job applicant.
To read more on this topic from our legal partner, Fisher Phillips, click here.
New York Employers Must Provide Paid Lactation Breaks
As highlighted in the April 2024 edition of the AlphaAdvisor, New York State has implemented a new law granting nursing employees the right to paid break time to express breast milk during the workday. Effective June 19, 2024, this legislation necessitates several key compliance actions for employers:
- Enhanced Rights for Nursing Employees: The New York Labor Law amendment now requires employers to provide 30 minutes of paid break time for employees to express breast milk whenever they have a reasonable need. Employees are entitled to these breaks for up to three years following childbirth.
- Policy and Notice Requirements: Employers must maintain a written policy outlining the new rights of nursing employees and provide the updated New York State Department of Labor Policy on Breast Milk Expression in the Workplace. This information must be communicated at hiring, annually, and upon an employee's return to work post-childbirth.
- Review Updated Guidance: The New York State Department of Labor has updated its guidance to reflect these changes, detailing the law's purpose, break time usage, lactation space requirements, and other support resources.
- Policy and Practice Updates: The law applies to all private employers in New York, regardless of size or business nature.
Employers must ensure their policies and practices comply with the new requirements, integrating changes as needed.
Click here to read more from Fisher Phillips.
Nevada Proposes New Heat Safety Rule for Employers
Nevada’s Occupational Safety and Health Administration (Nevada OSHA) has sent draft heat safety regulations to the state legislator in an effort to protect employees from heat-related illnesses. This follows a surge in heat-related complaints and aligns with federal OSHA's recent initiatives on heat stress. If approved, the rule would apply to employers whose workers face conditions that could cause heat illness, excluding household domestic service workers, those in motor vehicles on public highways and those covered by specific federal safety acts.
The proposed rule includes several measures to protect workers, such as conducting job hazard analyses, identifying a "Designated Individual" for monitoring heat conditions, ensuring access to potable drinking water, providing rest periods, and implementing training programs. Employers with fewer than 11 employees or those with climate-controlled environments are exempt from some requirements.
For more information on this topic from our legal partner, Fisher Phillips, please click here.
Rhode Island to Increase Length of Temporary Caregiver Insurance Benefits
The Governor of Rhode Island has enacted amendments to the Temporary Caregiver Insurance (TCI) law, which will enhance employee leave benefits starting January 1, 2025. Currently, eligible employees can take up to six weeks of leave under TCI to care for a newborn, newly adopted child, or a family member with a serious health condition. The new amendments will increase this leave to seven weeks in 2025 and eight weeks in 2026.
Established in 2014, TCI offers partial wage replacement and job protection, funded by employee payroll deductions. The amendments build on previous expansions, gradually extending the leave from four weeks to the current six weeks. Additionally, the minimum dependent allowance will increase from $10 to $20 per week starting January 1, 2025. Employees with dependents are entitled to the greater of this minimum or 7% of their weekly benefit amount per dependent.
It's important to note that employees on TCI leave cannot work intermittently and must take the leave continuously. They are required to notify their employers in writing at least 30 days before the start of the leave, except in cases of unforeseen circumstances. The Rhode Island Department of Labor and Training may ask employers for information, but other details about the leave remain confidential.
Upon returning from TCI leave, employees are entitled to reinstatement to a comparable position with equivalent seniority, status, employment benefits, pay, and other terms and conditions, including fringe benefits. Employers should prepare for potential increases in leave requests and ensure compliance with the updated notification and reinstatement requirements.
Click here to read more on this topic.
Rhode Island Prohibits Use of Non-Competition Agreements With Nurses; Governor Vetoes Broader Ban
Rhode Island Governor Dan McKee recently enacted R.I. Gen. Laws § 5-34-50, which prohibits non-competition agreements with advanced practice registered nurses (APRNs) in the state. This law, effective immediately, renders any restriction on an APRN's practice void, including geographic restrictions, prohibitions on treating current patients, and solicitation of patients. However, three days after this law's enactment, Governor McKee vetoed a broader bill (SB 2436) that banned non-competition agreements for all employees, citing its excessive scope compared to recent Federal Trade Commission regulations. As a result, Rhode Island's broader non-competition agreement rules remain unchanged, with existing prohibitions limited to non-exempt employees, students, minors, and low-wage earners. Employers should review existing agreements with APRNs to ensure compliance with the new law and may need to revise non-competition clauses accordingly. For further guidance, contact legal counsel familiar with Rhode Island employment law.
Click here to read more from Jackson Lewis.