Welcome to the latest edition of AlphaStaff's Monthly Compliance Updates!
We are pleased to provide you with a recap of 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
DOL Issues Guidance on the PUMP Act and Updates the Minimum Wage Posters
The U.S. Department of Labor (DOL) issued a Field Assistance Bulletin (FAB) on May 17, 2023, providing enforcement guidance on the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act).
As highlighted in the February 2023 edition of the AlphaAdvisor, beginning December 29, 2023, the PUMP Act requires employers to provide reasonable break time and a location to express milk for both exempt and non-exempt nursing employees. In the FAB, the DOL establishes that the amount of time necessary for a break is reliant on several factors, including the location of the private space (which cannot be a bathroom).The DOL also provides further guidance on the requirements of the private room and what makes the space functional. Finally, the DOL updated the Minimum Wage poster that details employees’ rights under the FLSA to include the rights granted under the PUMP Act. Employers will need to ensure the updated poster is placed in a conspicuous location or distributed electronically when allowed.
For more information, visit this link from our trusted legal partner, Littler Mendelson.
National Labor Relations Board Narrows Definition of Independent Contractor
On June 13, 2023, the National Labor Relations Board (NLRB) has once again redefined the test for “independent contractor” in the decision issued for The Atlanta Opera case. This decision overturns prior law established by SuperShuttle DFW, Inc. in 2019 and reinstated the common-law agency test for determining worker status. When applying the test, the following 10 factors are assessed:
- The extent of control, which by agreement, the employer may exercise over the details of the work.
- Whether or not the one employed is engaged in a distinct occupation or business.
- The kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision.
- The skill required in the particular occupation.
- Whether the employer or the workman supplies the instrumentalities, tools and the place of work for the person doing the work.
- The length of time for which the person is employed.
- The method of payment, whether by the time or by the job.
- Whether or not the work is part of the regular business of the employer.
- Whether or not the parties believe they are creating the relation of master and servant.
- Whether the principal is or is not in business.
Under this narrower test, it is likely that more workers will be classified as employees. There is high probability that this decision will be appealed. However, employers must remain cautious in their approach to engagements with service providers and should utilize the ten-factor common law Restatement test to evaluate the potential risk.
For more information, visit this link from our trusted legal partner, Littler Mendelson.
State Updates
Colorado Expands Reasons Employees Can Use Paid Sick Leave
On June 2, 2023, Senate Bill 23-017 was signed into law, expanding reasons an employee is entitled to take sick leave under Colorado’s Health Families and Workplaces Act (HWFA). Effective August 7, 2023, employees can also use accrued sick leave for the following reasons:
- To grieve, attend funeral services or a memorial, or deal with financial and legal matters that arise after the death of a family member.
- To care for a family member whose school or place of care has been closed due to inclement weather, loss of power, heating, water, or other unexpected events.
- To evacuate the employee’s residence due to inclement weather, loss of power, heating, water, or other unexpected events.
Colorado employers must notify employees of their right to take paid leave under the HFWA. The state will be releasing an updated poster soon. AlphaStaff’s poster vendor will distribute the necessary poster when it becomes available.
Follow this link from Littler Mendelson to find out more.
Minnesota to Ban Non-Compete Agreements
Effective July 1, 2023, Minnesota employers are prohibited from requiring employees to sign agreements that contain non-compete provisions. Under SF 3035, any agreement restricting an employee from performing work for another employer for a certain period, within a geographic region, or in a capacity similar to the scope of work currently performed for the employer is prohibited. This near-total ban on non-competes has been extended to independent contractors and has no income thresholds. The ban does not include the following:
- Non-disclosure agreements.
- Agreements to protect trade secrets or confidential information.
- Agreements to restrict the use of client lists or solicitation of customers upon leaving employment.
Fortunately, a restrictive covenant that includes a non-compete provision will only be rendered partially unenforceable. The unenforceable provision will be severed, and the remainder of the agreement will remain enforceable. Finally, this law only applies to non-compete agreements entered into on or after the law's effective date.
Follow this link from Fisher Phillips to read about ten key takeaways from this new legislation.
Minnesota Legalizes Recreational Marijuana and Employers Should Review Their Testing Policies
On May 30, 2023, Minnesota became the 23rd state to legalize recreational marijuana. Under the new state law, Minnesotans that are 21 or older will be able to legally consume and grow cannabis for personal use as of August 1, 2023. The cannabis law also incorporated provisions that drastically modify the state's drug testing law, limit employers' right to prohibit off-duty marijuana use, and restrict employers’ ability to impose discipline for marijuana-related offenses.
In Minnesota, employers are allowed to test for substances defined as "drugs" under the Drug and Alcohol Testing in the Workplace Act (DATWA). There is a state schedule that defines controlled substances. Effective July 1, 2023, "cannabis" is no longer deemed a drug under the DATWA which means employers may be prohibited from testing for cannabis during a drug test. The law allows continued testing under DATWA for "safety-sensitive positions" or positions that require cannabis testing due to state or federal law. Employers are prohibited from performing pre-employment testing or random testing for cannabis unless they have a reasonable suspicion the employee is intoxicated during work, violated the employer's policy prohibiting the use, possession, or sale of drugs, alcohol, or cannabis during work, sustained/caused personal injury during work, or caused a work-related accident during work. Employers should review their current drug testing policies to ensure compliance with this new legislation.
For more information on this new regulation, follow this link from Littler Mendelson.
New York State Expands Lactation Accommodation Requirements
Effective June 7, 2023, New York amended the Nursing Mothers in the Workplace Act to expand the obligations of employers to provide a lactation space and written lactation policy.
Employers in New York have been required to provide reasonable unpaid breaks or meal breaks for employees to express milk and a room or alternative location since 2007. Additionally, employers in New York City have been required to comply with the lactation accommodation law enacted in 2018 by establishing a written policy. The amendments to the state law closely resemble the New York City law. Under this new amendment, specific criteria must be present in a compliant lactation room. Employers must also adopt a lactation accommodation policy that must be distributed to each employee upon hire and to employees recommencing work after childbirth. Employers must also distribute the policy to employees on an annual basis. The NYSDOL recently published the long-awaited model policy, which can be found here.
To find out more, including how to satisfy these requirements and to review additional obligations, follow this link from Littler Mendelson.
New York Seeks to Limit the Scope of Permissible Invention Assignment Agreements
On June 6, 2023, the New York State Legislature passed an amendment to the Labor Law and added a new section, Section 203(f), that would regulate the use and enforceability of invention assignment agreements. Generally, it is common for newly hired employees to enter into agreements assigning any work created by the employees during their employment to the employer. This bill would create a carve-out prohibiting the assignment of any invention created entirely on the employee’s time without utilizing the employer’s resources. If signed by Governor Hochul, this bill would also render any assignment provisions that extend outside what is permitted by the bill unenforceable. Employers are encouraged to review their current assignment agreements to avoid overreaching.
Visit this link for additional information from Littler Mendelson.
Washington State Restricts Pre-Employment Cannabis Testing
The sale and possession of recreational marijuana has been legal in Washington since November 2012. However, employees were not guaranteed any job protection from employer drug testing. Washington’s legislature has taken steps to align drug testing laws with the recreational marijuana law.
Effective January 1, 2024, employers are prohibited from discriminating against job applicants based on legal off-duty use of cannabis or presence of non-psychoactive cannabis metabolites found in a drug test. There are several exemptions to this new law. Specifically, employers are not restricted from testing for cannabis for current employees and have the right to maintain a drug and alcohol-free workplace. Also, employers can test applicants for certain “safety-sensitive positions.” Employers will need to review their current pre-applicant drug testing policy and identify “safety-sensitive” positions before the applicant applies for a vacant position.
Visit this link for additional information from Fisher Phillips.
