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
Artificial Intelligence Executive Order WHD and OFCCP Guidance Issued
On April 29, 2024, the Biden-Harris Administration announced significant actions regarding AI, aligning with President Biden’s AI Executive Order issued in October 2023. The U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD) and Office of Federal Contract Compliance Programs (OFCCP) released guidance documents aimed at ensuring the safe, secure, and equitable use of AI in the workplace.
WHD Guidance: The WHD issued a Field Assistance Bulletin (FAB) emphasizing that employers using AI for monitoring or augmenting work must comply with the Fair Labor Standards Act (FLSA). Key points include:
- Ensuring proper human oversight to guarantee accurate compensation if AI tools are used for scheduling, timekeeping, employee tracking purposes, or calculating wages owed.
- Addressing risks related to the Family and Medical Leave Act (FMLA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) if employers use AI for processing leave requests.
- Highlighting the illegality of AI tools that penalize employees for taking breaks.
- Cautioning against using AI for workforce surveillance that could violate anti-retaliation laws.
OFCCP Guidance: The OFCCP’s guidance focuses on federal contractors’ use of AI, emphasizing nondiscrimination and EEO obligations. Federal contractors must:
- Maintain confidentiality and ensure AI systems comply with regulatory requirements.
- Provide reasonable accommodations for disabilities.
- Validate AI systems to prevent adverse impacts on protected groups.
- Ensure third-party AI tools comply with nondiscrimination obligations.
EEOC Guidance: The White House claimed the administration released resources to address AI and employment discrimination, although the EEOC's latest guidance was released on May 18, 2023.
These measures underscore the administration's effort to regulate AI use without new legislation. Employers and federal contractors must stay vigilant and ensure compliance with evolving laws and regulations. Implementing comprehensive AI usage policies and internal practices is crucial to mitigate legal and business risks.
Click here for more details from our partner, Littler.
OSHA Updates its Worker Walkaround Representative Regulation
On April 1, 2024, the U.S. Occupational Safety and Health Administration (OSHA) published final rules announcing that employees may designate a third-party non-employee as their representative during inspections. This rule eliminates the limitation of third-party representatives to only formally credentialed individuals, such as safety engineers. Effective May 31, 2024, any third party demonstrating necessary skills or knowledge relevant to the workplace’s safety concerns may be permitted to join the inspection if deemed appropriate by the OSHA Compliance Safety and Health Office (CSHO).
The updated regulations have faced significant industry opposition, highlighting concerns over the lack of a formal objection process for employers and unclear guidelines for determining when third-party accompaniment is necessary.
Employers should review and update their procedures for handling OSHA inspections to include potential third-party representation. 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 Littler.
EEOC Updates Workplace Harassment Guidance
On April 29, 2024, the U.S. Equal Employment Opportunity Commission (EEOC) released a comprehensive update to its enforcement guidance on workplace harassment, the first in nearly 25 years. This guidance addresses harassment based on race, color, religion, sex (including pregnancy, sexual orientation, and gender identity), national origin, disability, age (40 or older), and genetic information. It emphasizes the employer's responsibility to prevent harassment by anyone interacting with their employees, including supervisors, coworkers, clients, and vendors.
The update integrates significant legal developments, such as the Bostock v. Clayton County decision, which extended Title VII protections to cover sexual orientation and gender identity and also tackles new challenges like online harassment. Replacing five older documents, this updated guidance incorporates feedback from approximately 38,000 public comments on its draft.
Key components of the guidance include the bases for harassment claims, discrimination regarding employment terms, and criteria for employer liability. The EEOC outlines several examples of conduct that could constitute harassment if severe and pervasive, such as ethnic slurs, offensive jokes, displaying hate symbols, and intrusive questions about personal matters.
Employers must note that harassment claims require evidence of conduct based on protected characteristics. The guidance also delineates the standards for employer liability, depending on the harasser's role. The EEOC update advises employers on responding to harassment complaints and suggests preventive measures.
Employers should review this updated guidance thoroughly and implement robust anti-harassment policies to ensure compliance. Understanding the nuances of these updates is crucial for creating a safe and inclusive workplace.
Click here to read more from Littler.
Several States Amend Child Labor Laws
Several states have passed amendments to child labor laws. Please review the attached resources for further details on the revised state law:
Updated child labor posters will automatically be distributed to any client subscribed to our poster services through Poster Guard. If you do not receive posters through Poster Guard, please contact your HR Account Manager for more information.
State Updates
Colorado Lawmakers Pass Landmark AI Discrimination Bill
Effective February 1, 2026, Colorado’s Senate Bill 24-205 prohibits artificial intelligence (AI) from discriminating against workers by imposing stringent requirements on companies to avoid such biases. The AI bill, signed into law by Governor Polis on May 17, 2024, aims to regulate developers and users of "high-risk artificial intelligence systems" that make critical decisions impacting areas like employment, education, financial services, and healthcare.
Key Points of the Proposed Bill:
- Scope of the Bill: The bill targets AI systems used for significant decisions, potentially affecting employment, education, financial services, government services, healthcare, housing, insurance, and legal services.
- Preventing Algorithmic Discrimination: The bill's primary goal is to prevent AI-driven unlawful differential treatment based on protected classifications such as age, race, gender, and disability.
- Developer and Deployer Obligations:
- Developers must provide detailed information about AI systems, disclose risks, and publish public statements about their AI systems and risk management.
- Deployers (businesses using AI systems) must implement a comprehensive risk management policy, conduct regular impact assessments, notify consumers about AI usage, and disclose details on their websites.
- Exceptions: Small businesses with fewer than 50 employees who do not use their own data for AI training and also adhere to certain conditions are exempt from some requirements.
Although this new law does not go into effect until 2026, Colorado employers should prepare to comply with these new regulations by evaluating or establishing the necessary AI risk management policies and programs.
Please follow this link to learn more from our partner, Jackson Lewis.
Connecticut's Paid Sick Leave Act
Connecticut employers should brace for significant changes to their paid sick leave obligations following a comprehensive overhaul by the state legislature, pending the governor’s signature. The new legislation, HB 5005, expands sick leave benefits and introduces new compliance requirements.
Effective January 1, 2025, the new law will gradually cover more employers until it includes all employers with at least one employee by 2027. Additionally, the law will apply uniformly to all employees except for specified seasonal employees and certain union workers. Employees will be permitted to use paid sick leave after 120 days of employment, replacing the previous requirement of 680 work hours.
The legislation also broadens acceptable uses for sick leave, allowing employees to take time off for personal or family illnesses, preventative care, mental health wellness days, public health emergencies, and instances of family violence or sexual assault, provided the employee is not the perpetrator. Employees will accrue at least one hour of sick leave for every 30 hours worked, with a maximum carry-over of 40 hours. Employers have the option to frontload a paid-sick-leave bank annually.
Connecticut employers should begin reviewing their current policy to ensure alignment with the new law and updating any retention policy to ensure compliance with the three-year retention period for records. This will ensure compliance and effectively manage the upcoming changes to paid sick leave laws.
Please follow this link to learn more from our partner, Fisher Phillips.
Updates to DC Tipped Wage Workers Amendment Act
The District of Columbia’s Tipped Wage Workers Fairness Amendment Act (TWWFAA) continues to impact the hospitality industry significantly. This legislation mandates that D.C. employers using a tip credit must adhere to several compliance requirements:
- Sexual Harassment Policy Submission: Employers must submit their sexual harassment policy to the D.C. Office of Human Rights (DCOHR), including details on how it is communicated and displayed within the business.
- Harassment Complaints Reporting: Employers must report the number of sexual harassment complaints received, specifying the role of the alleged harasser.
- Training Requirements: All employees, managers, owners, and operators must undergo sexual harassment and wage and hour training.
The policy must outline the process for filing harassment complaints both within the organization and with the DCOHR. The deadline for submitting this information is May 31, 2024, via DCOHR’s Business Self-Service Form.
Businesses that no longer use the tip credit and pay the D.C. minimum wage ($17.00/hour) are exempt from these requirements but are encouraged to continue compliance as a best practice. The DCOHR has provided additional guidance to clarify the requirements and ensure businesses meet the compliance deadline.
Employers must ensure that their harassment policy is prominently displayed and that all employees receive it. They must also provide data on the total number of employees who received the training in 2023, including those who have since left the company.
After submission, businesses will receive an automated acknowledgment and a system access code. Approval or request for corrections will follow within two weeks. If there is no response after 30 days, businesses should contact DCOHR at tipsdc@dc.gov.
Maintaining compliance with the TWWFAA is crucial for the smooth operation and legal standing of businesses in the hospitality industry.
To read more on this topic, click here.
Chicago Finalizes Interpretive Rules in Advance of July 1, 2024, Effective Date of New Paid Leave and Paid Sick Leave Ordinance
On April 30, 2024, the Chicago Department of Business Affairs and Consumer Protection (BACP) published the final rules for the Chicago Paid Leave and Paid Sick and Safe Leave Ordinance, set to replace the existing Paid Sick Leave Ordinance on July 1, 2024.
Chicago employers should pay attention to the following provisions of the final rule:
- Accrual of Leave:
- Employees can earn up to 40 hours of Paid Sick Leave and 40 hours of Paid Leave (for any reason) per 12-month period.
- The 12-month period can be based on various annual cycles, such as the calendar year or fiscal year.
- Carryover Rules:
- Up to 80 hours of Paid Sick Leave and 16 hours of Paid Leave can be carried over to the next 12-month period.
- Frontloading 40 hours of leave at the start of the period eliminates carryover obligations for Paid Leave, but not for Paid Sick Leave.
- Request Denials:
- Employers can require reasonable pre-approval for Paid Leave to maintain business operations.
- Denials must be in writing, citing pre-established policy reasons, and issued immediately.
- Using Leave:
- Leave can be restricted to regular workweeks, excluding mandatory overtime and weekends.
- PTO Policies:
- Existing PTO policies must comply with the Ordinance, including shorter waiting periods for using leave.
- Rate of Pay:
- Leave is paid at the employee’s regular rate, calculated over the last 90 days, excluding overtime and bonuses.
- Notification Requirements:
- Employers must post notices, inform new hires, and provide annual and frontloading notices about leave policies.
- Written policies must include procedures for advance notice and denial of leave requests.
With the Ordinance taking effect on July 1, 2024, employers should act promptly to align their policies and practices with these new regulations to ensure compliance and avoid potential penalties.
Click here to read more from Littler.
Illinois Finalizes Regulations Interpreting Paid Leave for All Workers Act
The Illinois Department of Labor (IDOL) has issued final regulations for the Illinois Paid Leave for All Workers Act, effective April 30, 2024. This Act, which became effective on January 1, 2024, requires employers to reassess their compliance strategies in light of these new regulations.
Key Point of the Final Regulations:
- Qualifying Pre-Existing Paid Leave Policies:
- Employers with policies offering at least 40 hours of paid leave that can be used for any reason do not need modifications if these policies were effective by January 1, 2024.
- Policies may qualify even if part-time or temporary employees receive prorated leave.
- Employers can maintain different leave policies for various employee categories.
- Accrual and Carryover:
- Leave must accrue at one hour per 40 hours worked.
- Accrual should be calculated minute-by-minute or rounded up to the next 15 minutes.
- Employers may impose a 40-hour carryover cap through a written policy.
- Frontloading Paid Leave:
- Employers can prorate frontloaded leave for part-time employees or mid-year hires.
- The Act does not clarify if frontloading negates the need for carryover; thus, carryover policies should be explicitly stated.
- Using Paid Leave:
- Employees decide the amount of leave used, with employers able to set a minimum of two hours per day.
- Employers cannot force employees to use paid leave for specific absences.
- Denial of Leave Requests:
- Employers can deny leave only under stringent conditions, ensuring consistency and non-discrimination.
- Records of denied leave requests must be maintained.
- Rate of Pay and Notice Requirements:
- Paid leave is compensated at the employee’s hourly rate.
- Employers must post notices in conspicuous places, define the 12-month leave period, and communicate policy changes promptly.
- Records: Keep detailed records of all leave requests and denials.
By promptly addressing these updates, Illinois employers can ensure compliance and provide clarity to their workforce regarding paid leave policies.
To read more on this topic, click here.
New Employment Legislation in Maryland: Essential Updates
Senate Bill 485 and House Bill 571, effective October 1, 2024, update Maryland’s FAMLI program. Key changes include:
- Delayed Implementation: Required contributions now start on July 1, 2025, and benefit payments begin on July 1, 2026.
- Coverage and Eligibility: Employees must have worked at least 680 hours in the past four calendar quarters.
- Contribution Rate: The rate will be set by February 1, 2025, based on wages up to the Social Security wage base.
- Private Employer Plans: Employers opting out of the state program must use a state-approved plan or insurance, subject to MDOL approval and potential fees.
- Appeal Costs: The MDOL will establish an appeals system, and costs may be assessed against employers or insurers if the appeal favors the employee.
Pay Transparency
Effective October 1, 2024, Maryland’s Pay Transparency Law mandates employers disclose wage ranges and compensation details in job postings and retain compliance records for three years. Violations can result in orders for compliance and civil penalties.
Pay Stub Requirements
New pay stub requirements mandate detailed earnings information, including employer details, pay period dates, hours worked, pay rate, gross and net pay, deductions, and additional bases of pay. Non-compliance may result in penalties of up to $500 per affected employee.
Non-Compete Provisions
Effective January 1, 2024, Maryland bans non-compete agreements for veterinary and healthcare employees earning less than 150% of the minimum wage. This law further expands protections that become effective on June 1, 2024.
By proactively addressing these changes, Maryland employers can ensure compliance and mitigate potential risks associated with the new laws.
Click here to read more from Littler.
New York City Bans Contractual Provisions Shortening Period of Time to File Complaints or Civil Actions Relating to Discrimination, Harassment or Violence
Effective May 11, 2024, New York City introduced a critical update to its employment laws, prohibiting any agreements that shorten the statutory period for employees to file claims related to unlawful discriminatory practices, harassment, or violence under the New York City Human Rights Law (NYCHRL).
Key Provisions:
- Statutory Filing Periods: Employees have one year to file a complaint with the NYC Commission on Human Rights for discriminatory practices or harassment and three years for gender-based harassment claims. Additionally, employees can file a civil action under the NYCHRL within three years.
- Prohibited Contract Terms: The new ordinance, amending NY Administrative Code §§ 8-109 and 8-502, invalidates any employment agreement provisions that aim to shorten these statutory periods. Such provisions are now deemed unenforceable and void as a matter of public policy.
- Ordinance Effect: Effective immediately, this law potentially applies retroactively, indicating that existing employment agreements with such provisions are no longer enforceable.
Employers in New York City should take steps to align their employment practices with this new legal requirement to avoid potential disputes and ensure the fair treatment of their employees under the NYCHRL.
For more information on this topic, please click here.
New Guidance Permits Oregon Employers to Rescind Previously Protected Unpaid Family and Medical Leave
Oregon’s Paid Family and Medical Leave Insurance Program (“Paid Leave Oregon”) offers eligible employees up to 12 weeks of paid leave for family, medical, or safe leave. Since its implementation on September 3, 2023, employers have faced challenges due to employees combining Paid Leave Oregon and Oregon Family Leave Act (OFLA) benefits, causing staffing shortages. The recently enacted Oregon SB 1515 provides relief by making Paid Leave Oregon the primary leave source starting July 1, 2024.
Effective July 1, 2024, OFLA will no longer cover family leave or serious health condition leave, which will be solely managed by Paid Leave Oregon. OFLA will still provide leave for sick child care, school or childcare closures due to public health emergencies, bereavement, pregnancy-related disabilities, and child placement for adoption or foster care until December 31, 2024. This means that employees can potentially stack 24 weeks of leave for pregnancy-related disability or serious health conditions of a child needing home care.
Employers must navigate several new requirements:
- Rescinding OFLA Leave: Employers can rescind OFLA leave scheduled after July 1, 2024, with written notice to employees by June 1, 2024.
- Provide Written Notices: Inform employees about the transition to Paid Leave Oregon and how to apply for benefits, including contact details for the program.
These transitions are guided by temporary rules from BOLI, effective May 8 through July 1, 2024. BOLI also proposes further amendments to align OFLA and Sick Leave rules with SB 1515 and is accepting comments until June 21, 2024.
Oregon employers take steps to align their paid leave policies with this new legal requirement to ensure compliance with the law as amended. AlphaStaff with continue to monitor any further updates from BOLI on the proposed rules and Paid Leave Oregon guidelines.
Click here to read more from our partner, Littler.
Lehigh County, Pennsylvania Expands Anti-Discrimination Ordinance
Lehigh County has enacted a new Human Relations Ordinance effective June 1, 2024, introducing comprehensive non-discrimination requirements across employment, housing, education, healthcare, and public accommodations. The ordinance also establishes a Human Relations Commission to investigate and enforce claims of discrimination.
Additionally, employers are prohibited from inquiring about criminal convictions on job applications, requiring disclosure of criminal history before an initial interview, considering irrelevant conviction records, and asking about salary history from current or previous employment. Employers must avoid any application content that could reveal protected class information, akin to recent laws prohibiting age disclosure on applications.
Employees can file complaints with the Lehigh County Human Relations Commission within 180 days of discrimination, with a private right of action if the complaint is dismissed or unresolved after a year.
Employers in Lehigh County should review and update application materials and hiring procedures to align with the new ordinance. Adapting to these changes will help employers avoid legal pitfalls and foster a more inclusive workplace environment.
Click here to read more from our partner, Littler.
