Welcome to our November 2022 Edition of AlphaStaff Monthly Compliance Updates!
We are pleased to highlight National and State Legal Updates and resources provided by some of AlphaStaff’s trusted legal partners to help guide and keep you in compliance.
Congress Voids Sexual Harassment NDAs
On November 16, 2022, Congress passed the Speak Out Act that renders any nondisclosure agreement or non-disparagement agreement void if it does not properly carve out claims of sexual harassment or assault. Under the new law, courts will no longer be able to enforce certain NDAs in “disputes” where a party alleges sexual assault or sexual harassment. It is worth noting that the prohibition only applies to NDAs executed before the dispute. Therefore, employers may freely enter into standard confidentiality agreements with claimants upon settlement of assault or harassment claims or demands. President Biden has voiced his support of this legislation which means this law will become effective soon. Our February 2022 AlphaAdvisor highlighted similar legislation that prevented employers from enforcing any pre-dispute arbitration agreements in cases involving sexual harassment or assault. Therefore, as a practical matter, employers will need to review current NDAs, non-disparagement agreements, and arbitration agreements to establish the appropriate carve-outs, excluding claims of sexual harassment or sexual assault. For more information, please visit this link.
D.C. Voters Pass Initiative 82, Phasing Out Tipped Minimum Wages
On November 8, 2022, Washington D.C. voters approved the “District of Columbia Tip Credit Elimination Act.” Currently, the minimum wage for tipped workers is $5.35 per hour. Employers may take a tip credit of up to $10.75 per hour by using the employee’s tips to cover the difference necessary to satisfy D.C.’s minimum wage, which is currently $16.10. Beginning January 1, 2023, the minimum wage for tipped workers will increase to $6.00 per hour, and the maximum tip credit an employer may apply will decrease to $10.10 per hour. Ultimately, the tip credit will gradually be reduced on July 1 of each year until it is eliminated by July 1, 2027. For more information, please visit this link.
Kentucky Governor Signs Executive Order Protecting Medical Marijuana
The Kentucky state legislature has not passed legislation that legalizes medical or recreational marijuana. However, Governor Andy Beshear recently signed an Executive Order to “provide relief to Kentuckians and allow those suffering from chronic pain and other medical conditions to use medical cannabis.” Under the Executive Order, any individual accused of possessing marijuana under Kentucky law will be pardoned as long as the following conditions are met: (i) medical cannabis was purchased legally in a jurisdiction within the United States, (ii) receipt shows the date, time, and location of purchase, (iii) it is no more than 8 ounces, and (iv) a physician’s written certification showing a covered a medical condition. Kentucky employers may continue to enforce drug-free workplace policies, test employees for marijuana use, and discipline them based on a positive result. However, there are certain aspects of these policies that this Order may impact. Specifically, employers may need to adjust how they address accommodations requests that involve the use of medical cannabis. Please visit this link for more information.
Missouri Legalizes Recreational Marijuana
On November 8, 2022, voters in Missouri approved Amendment 3, which legalizes the recreational use of marijuana by individuals over the age of 21. The new law also allows individuals to petition for release from prison and expunge certain arrests and convictions for non-violent marijuana offenses. Employers in Missouri should have amended their drug testing policies in 2018 when Amendment 2 legalized the use of medical marijuana by qualifying patients. However, Amendment 3 presents a new opportunity for employers to evaluate the current policy and ensure it continues to comply with the expansion. Amendment 3 also clarifies that employers cannot make employment-related decisions and/or discriminate against a person based upon their status as a qualifying patient or primary caregiver who has a valid identification card, the qualified patient’s off-site legal use of marijuana during non-working hours, or for a positive drug test if a person has a valid qualifying patient card. However, the drug testing protection does not apply if the person used, possessed, or was under the influence of medical marijuana on the job site or during the hours of employment. For more information, please visit this link.
New York Amendment Protects Paid Leave from "No Fault" Attendance Policies
Effective February 20, 2023, New York employers that maintain a "no-fault" attendance policy are explicitly prohibited from disciplining employees for any absences protected under federal, state, or local law. No-fault attendance policies function by placing points on an employee's record for each absence, regardless of its reason. As points accrue over time, an employee might be disciplined or fired if they reach a certain threshold of points. Therefore, it is essential that employers review their handbooks and, if necessary, update this policy to make it clear that employees will not incur demerits, points, or deductions when an employee takes legally protected leave. The New York State Department of Labor may assess civil penalties, order rehiring or reinstatement of a discharged employee to their former or an equivalent position, and/or award back pay or front pay, along with liquidated damages. For more information and a sample revised policy, please visit this link.
New York to Require Human Trafficking Recognition Training for Certain Hospitality Employees
Governor Kathy Hochul recently signed legislation aimed at addressing human trafficking. Specifically, the new laws require employers to include a human trafficking curriculum in already mandatory training, and mass transit facilities must post informational signs and cards concerning services for human trafficking victims in public restrooms. Additionally, establishments that serve alcoholic beverages must display posters about the illegality of human trafficking and the assistance hotline. Finally, the law will require lodging facilities to provide human trafficking awareness training to all employees who are likely to come into contact with guests in their facility. All Client-facing employees must receive this training by November 20, 2023. After that, all new client-facing employees must receive the training within 60 days of their start date. For more information, please visit this link.
Compliance Tip of the Month
AlphaStaff remains committed to helping our clients stay on top of legal developments to maintain a workplace that complies with federal and state laws. Each month, we are going to highlight a workplace practice that you may want to audit or review. If you have any questions or concerns, please do not hesitate to contact the HROC.
New Year Compliance Obligations Across the Country
As we enter the New Year, AlphaStaff remains committed to providing our clients with an overview of the legislation that becomes effective January 1, 2023. Littler has compiled this summary that details many of the new or changing state laws Alphastaff has highlighted throughout the year. In many cases, the newly enacted legislation may require policy updates to maintain compliance. As always, AlphaStaff is here to help you understand how these changes can impact you and assist with updating your policies as necessary. Please reach out to your HRAM if you have any questions.
Overview of Jurisdictions
District of Columbia