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
2023 EEO-1 Data Collection Opening on April 30,2024
The Equal Employment Opportunity Commission (EEOC) has announced that the collection for the 2023 EEO-1 Component 1 reports will begin on April 30, 2024, with a deadline set for June 4, 2024. This update is crucial for employers meeting certain criteria, specifically those with 100 or more employees and federal contractors with 50 or more employees, as they are required to file the annual EEO-1 Component 1 report. To ensure timely submission by the required filers, the EEOC will make its online Filer Support Message Center available starting April 30, 2024, to help with any questions related to the 2023 collection. As of this publication, details on the data specifics and additional filing instructions have yet to be released. AlphaStaff will continue to monitor EEOC developments and provide necessary updates.
Click here for more details from our partner, Jackson Lewis.
National Labor Relations Board's "BLM" Ruling Requires Review of Dress Code and Other Workplace Policies
The National Labor Relations Board (NLRB) recently ruled that a national retailer must allow employees to display "Black Lives Matter" (BLM) on their uniforms, signaling a significant shift in the enforcement of political and social messaging in the workplace. This decision, issued on February 21, 2024, affects unionized and non-unionized companies, creating a need for all employers to reassess their stance on employee expression. The case centered around Antonio Morales, a Minneapolis area retailer employee, who was instructed to remove BLM from his uniform. This led to his resignation and subsequent unfair labor practice charge against the company.
The NLRB's ruling highlights the protection of political and social messaging related to the workplace under federal labor law, marking an expansion in interpreting what constitutes a sufficient nexus between such messages and employment conditions. This decision stems from Morales's efforts to address alleged racial discrimination within the company, categorizing his actions as protected concerted activity.
Employers are now faced with navigating this new landscape. This ruling underscores the evolving nature of employee rights and employer responsibilities and sets a precedent for how political and social advocacy is perceived and handled in the workplace. Employers should take proactive steps to ensure their policies are compliant while fostering an environment that respects diverse viewpoints and minimizes workplace disruptions.
Click here to read more from our partner, Fisher Phillips.
State Updates
Cal/OSHA Publishes Model Plan and Guidance for Complying with Workplace Violence Prevention Law
Effective July 1, 2024, California begins enforcing a significant new requirement for employers subject to Senate Bill (SB) 553. Specifically, California employers must establish a comprehensive Workplace Violence Prevention Plan (WVPP). Cal/OSHA will be the agency tasked with overseeing the implementation of SB 553 (now part of California Labor Code Section 6401.9) and recently published a Model WVPP to guide employers in crafting their plans. This template is a voluntary resource, offering a structured format that includes probing questions and practical examples to help identify and mitigate workplace violence risks.
Employers can utilize the Model WVPP to evaluate potential hazards within their environments and tailor the plan to address specific needs. Additionally, a Fact Sheet for Employers has been released, summarizing key aspects of the new requirements, such as maintaining a violent incident log and ensuring diligent recordkeeping related to workplace violence. Moreover, it emphasizes the importance of training employees to recognize, prevent, and respond to potentially violent situations.
Action Items for Employers:
- Review and possibly utilize Cal/OSHA’s Model WVPP and Fact Sheet as a template for their own workplace violence prevention plans.
- Implement a thorough employee training program on workplace violence prevention and response strategies.
Please follow this link to learn more from Jackson Lewis.
Continuing Privacy Headache for Ordering Criminal Background Checks in California
California employers, particularly those engaging with employees and independent contractors, are facing an imminent challenge as Los Angeles County announces significant slowdowns in background checks, specifically criminal record searches. This situation stems from the 2021 court ruling in All of Us or None v. Hamrick, which restricted the use of personal identifiers like dates of birth or driver's license numbers in electronic criminal case indexes. Consequently, effective February 23, 2024, Los Angeles County has removed even partial dates of birth from criminal name search criteria, leading to potential delays and unperformable searches, especially for individuals with common names.
The issue originates from privacy concerns and the legal interpretations of Rule 2.507, which dictates the accessibility of court information. The California Supreme Court's decision not to review the appeals court's opinion has left businesses and background check companies in a precarious position, as they rely heavily on these indexes for criminal background checks. The absence of specific identifiers like full dates of birth complicates the ability of companies to conduct thorough background checks, a requirement for many businesses by law or contractual agreements.
Businesses should prepare for these challenges by notifying key personnel, reassessing background check procedures, exploring legal alternatives for acquiring criminal record information, and updating pre-hire documentation to include necessary contingencies. Additionally, companies should consider the broader implications of these changes on their operations and contractual obligations with vendors, who may also face difficulties conducting criminal background checks.
Our vendor partner, Verified First, has advised that there will be an increase in turnaround time for all possible records coming out of Los Angeles County. They are actively evaluating the implications of this new rule and how they can compliantly expedite record requests. Please do not hesitate to contact your HR Account Manager with any questions.
Please follow this link to learn more from our partner, Littler.
Colorado Department of Labor Amends Rules on Equal Pay, Paid Sick Leave and Wage Act
Recently, the Colorado Department of Labor and Employment passed amendments changing several administrative rules of the Colorado Wage Act and the Wage Protection Act. These updates were implemented in an effort to streamline dispute resolutions and better define fair compensation practices. Below is an overview of the key aspects of the rule changes:
- Mediation: The new rules permit mediation when resolving administrative complaints and protect the information shared during these sessions. This approach encourages resolution outside court, maintaining confidentiality unless agreed otherwise.
- Health Family and Workplaces Act (HFWA) Benefits Calculation: Employers can now calculate paid sick leave using any full pay period or consecutive weeks totaling 28 to 31 days before leave. This ensures employees are paid their usual rates and benefits during sick leave, with special provisions for new hires based on their working days.
- Wage Theft Enforcement Fund: A new fund ensures employees are compensated for wage law violations if employers fail to pay within six months after a final ruling.
Colorado employers should familiarize themselves with these updates, especially the mediation options and HFWA leave calculations. These changes aim to protect employees while providing clear guidelines for employers, enhancing Colorado's working environment.
To read more on this topic, click here.
Colorado Expands Agency's Authority to Investigate Potential Violations of Labor Laws, Including Equal Pay for Equal Work
Colorado has recently updated its rules regarding labor standards investigations, significantly increasing the authority of the Division of Labor Standards and Statistics. These amendments impact how potential violations, including pay disparities under the Colorado Equal Pay for Equal Work Act, are investigated.
Key changes include an expanded definition of "employee" to encompass those under the Agricultural Labor Rights and Responsibilities Act, broadening the term from its previous limitations. Similarly, the definition of "employer" now includes entities under the Equal Pay for Equal Work Act and the Agricultural Labor Rights and Responsibilities Act, extending the Division's investigative reach.
Notably, employers must now respond to a written demand for unpaid wages within 14 days or face penalties. The Division can initiate investigations without prior credible allegations, covering all potentially affected workers, and is not confined to the specifics outlined in the initial Notice of Investigation. The Division's powers to gather information, issue fines for noncompliance, and prescribe investigative protocols have also been enhanced, with noncompliance leading to fines.
Additionally, the rules now more broadly cover retaliation, interference, and discrimination against those participating in investigations, defining "unlawful interference" with investigations comprehensively, including acts that mislead, intimidate, or discourage witnesses, conceal evidence, or provide false information.
Employers in Colorado should review these amendments carefully and consider updating their compliance strategies to align with the expanded definitions and investigatory powers of the Division. It's crucial to ensure readiness to promptly respond to written demands and cooperate fully with investigations to avoid penalties and fines.
Click here to read more.
Columbus, Ohio, Bans Inquiries into Applicants’ Salary History
The City of Columbus has recently enacted a new ordinance, effective March 1, 2024, joining Toledo and Cincinnati in prohibiting employers from inquiring about prospective employees' past compensation. This measure is aimed at combating wage discrimination and promoting pay equity. Under the ordinance, it is deemed an "unlawful discriminatory practice" for employers to ask about an applicant's salary history, including wages, benefits, or other compensation. Additionally, employers are prohibited from using past salary history as a basis for screening job applicants or determining their compensation.
However, discussions about salary expectations with applicants remain permissible. Notably, unlike its counterparts in Toledo and Cincinnati, Columbus does not mandate employers to disclose the pay scale for a position after a conditional offer of employment has been made.
The ordinance applies to employers in Columbus with at least 15 employees, including job placement and referral agencies. This ordinance does not apply for internal transfers, unprompted voluntary disclosures by applicants, certain verifications during background checks, re-hires within three years if salary history is already known, positions with compensation set by collective bargaining, and certain government employers. Violations could result in civil fines of up to $5,000, enforceable through complaints filed with the Columbus Community Relations Commission.
Employers should review their hiring practices to ensure compliance with Columbus's ordinance and consider proactive adjustments in jurisdictions with similar regulations.
To read more on this topic, click here.
Kansas City, Missouri Creates Pregnancy Accommodation Requirement
Kansas City, Missouri, has made significant updates to its antidiscrimination ordinance, focusing on providing better support for employees during pregnancy, childbirth, and related conditions. This amendment applies to employers with six or more employees and mandates several crucial accommodations and protections. Covered employers must now offer reasonable accommodations for known limitations related to these conditions unless such accommodations would result in undue hardship for the business. It emphasizes an interactive process to decide on these accommodations, ensuring they are mutually agreed upon rather than imposed.
The ordinance specifically prohibits employers from denying job opportunities to employees who need reasonable accommodations or forcing employees to take leave when other accommodations are feasible. Additionally, it protects employees from adverse actions if they request or utilize the granted accommodations. Notably, "known limitations" are defined as any physical or mental conditions tied to pregnancy, childbirth, or related conditions communicated by the employee or their representative without necessarily being classified as disabilities under the law.
Employers should review their current accommodation policies and practices to ensure compliance with this updated ordinance. Engaging in an open, interactive process with employees is essential to identify and implement reasonable accommodations, considering the broad definition of known limitations. This proactive approach aligns with the legal requirements and supports a more inclusive and supportive workplace environment.
Click here to read more.
New York City Requires Distribution of Informational Materials on Temporary Schedule Change Act
New York City has recently updated its Temporary Schedule Change Act, enhancing the rights of employees to modify their work schedules for specific personal events. This amendment mandates that the city's Department of Consumer and Worker Protection (DCWP) produce and distribute written and electronic informational materials outlining the Act's details. Effective March 3, 2024, employers must share these materials with their workforce in both electronic and print formats, ensuring widespread access and understanding. To accommodate the city's diverse population, these resources will be available in English and the top six languages spoken by individuals with limited English proficiency.
For more information on this topic, please click here.
New York City Council Passes Bill Creating a Private Right of Action under the Earned Safe and Sick Time Act
On January 20, 2024, New York City Council Mayor Eric Adams signed a significant bill enhancing the Earned Safe and Sick Time Act (ESSTA) and altering the legal landscape for employers and employees regarding sick and safe leave rights. Effective March 20, 2024, employees can sue directly for ESSTA violations. Previously, complaints were handled through the New York City Department of Consumer and Worker Protection (DCWP), with limited penalties for employers found in violation.
Under the new bill, employees alleging ESSTA violations can seek legal recourse in court, demanding compensatory damages, legal fees, and other appropriate relief, marking a substantial shift from the existing enforcement mechanisms. This amendment broadens the scope of remedies available to aggrieved employees, including imposing penalties per instance of violation. Moreover, the amendment allows for civil actions independent of DCWP complaint filings, specifying that a DCWP investigation will be paused if a corresponding civil action is filed, emphasizing the autonomy of the civil litigation process.
Employers should promptly review their leave policies to ensure compliance with ESSTA requirements. The availability of a private right of action is likely to significantly increase employers' exposure to damages and legal claims.
Click here to read more from our partner, Littler.
South Dakota Amends Law on Medical Cannabis
In 2020, South Dakota voters embraced a significant change by approving a ballot measure that allows medical cannabis use for individuals with debilitating medical conditions. This law provides qualified medical cannabis users with comparable rights in their workplace as those prescribed pharmaceutical medications, respecting both drug testing and employer interactions.
Employers are not mandated to permit cannabis consumption at work or overlook employees operating under its influence, maintaining the right to discipline accordingly. The legislation has been further refined to bolster employer protections, specifically concerning safety-sensitive roles. Employers now can lawfully take adverse actions against employees or candidates testing positive for cannabis, provided the positions are deemed safety-sensitive. This designation covers jobs that, if performed under impairment, could significantly endanger health, safety, or property.
Moreover, the updates clarify that actions taken by employers to enforce drug-free workplace policies aligned with state laws do not provide grounds for employment discrimination or wrongful termination claims.
Action Items for Employers:
- Review and Update Policies: Ensure workplace policies are updated to reflect these provisions, especially regarding drug testing and safety-sensitive positions.
- Educate Employees: Clearly communicate the updated policies and implications for medical cannabis use within safety-sensitive roles.
- Compliance Check: Regularly verify that your drug-free workplace policies comply with state and federal laws, avoiding conflicts that could jeopardize federal benefits.
Click here to read more.
Utah Enacts New #MeToo-Inspired Law Related to Confidentiality Clauses
On February 28, 2024, Utah joined a growing list of states enacting laws to combat sexual misconduct in the workplace, inspired by the #MeToo movement. These laws aim to restrict confidentiality clauses that could prevent the spread of information about serial sexual harassers to potential victims.
Under Utah's H.B. 55, added to the Utah Antidiscrimination Act, nondisclosure or non-disparagement clauses regarding sexual misconduct—defined as sexual assault or harassment—required as a condition of employment are deemed void and unenforceable. Additionally, the legislation prohibits retaliation against employees for alleging sexual misconduct or refusing contracts containing such clauses. It also allows employees a three-day period to reconsider after agreeing to a settlement that includes nondisclosure related to sexual misconduct. Employers attempting to enforce these clauses cannot recover monetary damages for alleged breaches of these clauses and instead are liable for costs and attorney fees incurred by the employee.
However, the law permits nondisclosure agreements concerning monetary settlement amounts or, at the employee's request, details that could lead to their identification. It also allows for post-employment confidentiality agreements unrelated to illegal acts. Importantly, it does not restrict employees from discussing sexual misconduct in legal proceedings if subpoenaed. Still, it prohibits disclosure of information protected by other laws and the making of knowingly false statements.
H.B. 55 provides a retroactive effective date of January 1, 2023, so employers in Utah should promptly review and adjust their employment and settlement agreements, confidentiality policies, and harassment policies to ensure they align with H.B. 55's requirements.
Click here to read more from our partner, Littler.
