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.
NLRB Final Joint Employer Rule Dramatically Expands Definition of Joint Employment Under the NLRA
The National Labor Relations Board (NLRB) recently finalized a rule redefining joint-employer status under the National Labor Relations Act, effective December 26, 2023. This new rule repeals the 2020 regulation and reinstates the broader Obama-era standard for joint employment.
Under this rule, two or more employers can be considered joint employers if they share or codetermine the essential terms and conditions of employment, even if the control is indirect or merely reserved and not exercised. Now, even indirect or reserved control alone can establish joint-employer status, expanding the scope beyond the 2015 Browning-Ferris Industries (BFI) decision.
This rule reflects the NLRB's current pro-labor stance and overturns years of precedent. The BFI decision in 2015 expanded the definition of joint employers, leading to significant debate and legal challenges. Although the D.C. Circuit Court upheld aspects of BFI in 2018, it criticized the overly broad application of "indirect control."
Employers should anticipate potential legal challenges to this rule due to its significant impact on employer-employee relationships and the broader economy.
Click here to learn more from our partners at Littler.
Annual Paid Leave Notice Requirement for Employers - REMINDER
Employers operating in Washington D.C., Connecticut, and Massachusetts must distribute notices to their employees regarding Paid Leave annually. This communication is required to ensure compliance with state-specific regulations and to keep your workforce informed about their rights and benefits.
Washington D.C.: Employers must provide information about the District's Paid Family Leave program, which includes details on benefits, eligibility criteria, and the process to claim these benefits. Click here for the state-approved notice.
Connecticut: The notice should encompass information about the Connecticut Paid Leave Act, highlighting the rights of employees to paid family and medical leave, including the scope of benefits and claim procedures. Click here for the state-approved notice.
Massachusetts: In Massachusetts, employers must inform employees about the Massachusetts Paid Family and Medical Leave (PFML) law, focusing on coverage, benefit entitlements, and the application process. Click the appropriate link based on your workforce size: Notice for Employers with Less than 25 Covered Individuals or Notice for Employers with 25 or More Covered Individuals.
California Laws Regarding Off-Duty Marijuana Use Come into Effect
Effective January 1, 2024, two laws in California will change the landscape for employers regarding their handling of employee cannabis use. The first law, AB 2188, prohibits employers from taking adverse action against employees based on off-duty cannabis use. It also restricts employers from making decisions based on the presence of non-psychoactive cannabis metabolites in tests. This law marks a significant shift in employment practices, emphasizing the distinction between off-duty behavior and workplace conduct.
The second law, SB 700, amends the Fair Employment and Housing Act (FEHA) to prevent employers from inquiring about a job applicant's past cannabis use, including criminal history, unless an exception applies. This law extends the same protections to cannabis that currently apply to alcohol and other legal drugs, reflecting the legal status of cannabis in California since 2016. Notably, SB 700's impact on criminal background checks remains unclear. It seems to prohibit employers from considering past convictions for simple cannabis possession but does not protect those with convictions involving cannabis manufacture, distribution, or sale.
As with similar legislation in other jurisdictions, there are exemptions to the new legislation. The laws do not apply to the building and construction industry and positions requiring federal background checks or clearances. They also do not override state or federal laws for companies with federal funding or contracts.
Employers must adapt to these changes by revising their anti-discrimination and drug use policies. These laws represent a significant shift in employment law, requiring employers to carefully navigate the new legal landscape regarding cannabis use and job applicants' histories.
Please follow this link to learn more from our partner, Littler.
Illinois Extends Bereavement Rights for Employees
Illinois has recently expanded its bereavement leave rights, providing significant support for employees who have lost a child to suicide or homicide and for family members of those killed in crimes of violence. These changes, effective January 1, 2024, are detailed in two separate acts.
The first act, the Child Extended Bereavement Leave Act, allows employees grieving the loss of a child by suicide or homicide to take unpaid leave. This applies to biological, adopted, foster, stepchildren, legal wards, or children under someone's care in loco parentis. Eligibility extends to full-time employees of employers with at least 50 full-time employees in Illinois who have worked for at least two weeks. Large employers (250 or more employees) must offer up to 12 weeks of leave, while small employers (50 to 249 employees) must offer up to 6 weeks. Leave can be taken continuously or intermittently within a year of notifying the employer, with provisions for reasonable notice and documentation.
The second act, an amendment to the Victims' Economic Security and Safety Act (VESSA), enables employees to take up to two weeks of unpaid leave if a family or household member is killed in a crime of violence. This leave can be used for attending funerals, making arrangements, or grieving and must be taken within 60 days of notifying the employer of the death.
Employers in Illinois should review and update their bereavement policies to comply with these new requirements.
To read more on this topic, click here for an article from Littler.
Massachusetts Poised to Be Next State to Require Pay Transparency and Pay Data Reporting
The Massachusetts Legislature is on the verge of passing new legislation focused on pay transparency and pay data reporting, a development that requires immediate attention from employers in the state. Given the overwhelming support from legislators, the combined bill is expected to be finalized and sent to Governor Maura Healey’s desk soon.
If signed into law, Massachusetts employers must comply with the following requirements:
Pay Transparency: Businesses with 25 or more employees in Massachusetts will need to disclose pay ranges for positions in job postings, to employees offered promotions or transfers, and upon request from employees or applicants. The bill also prohibits discrimination or retaliation against those exercising rights under this law. However, it doesn’t grant employees a private right of action to sue for violations; enforcement is directed to the Attorney General’s office.
Pay Data Reporting: Employers with at least 100 employees will be required to file a wage data report. This report is required annually for those subject to EEO-1 reporting and biennially for others subject to EEO-3, EEO-4, or EEO-5 reporting. The report will be required to disclose workplace demographics and pay data, categorized by race, ethnicity, sex, and job category. The Massachusetts Executive Office of Labor and Workforce Development will publish these reports on its website.
Employers should start preparing for these new obligations by reviewing and adjusting their pay data reporting and transparency practices.
Click here to read more from our legal partner, Fisher Phillips.
Minnesota Passes State-Wide Earned Sick and Safe Leave Law
Effective January 1, 2024, Minnesota employers must implement a policy to comply with state-wide Earned Sick and Safe Leave (ESSL) requirements. This new law, part of the Omnibus Jobs Act, mandates paid sick and safe leave for employees in Minnesota, including part-time and temporary workers, but excludes independent contractors and certain air carrier employees. It complements similar ordinances in Minneapolis, St. Paul, Bloomington, and Duluth, though with some differences.
Key Points for Employers:
- Coverage: ESSL applies to all businesses with one or more employees in Minnesota. Temporary employees are generally considered employees of the staffing agency, unless stated otherwise in a contract.
- Accrual and Frontloading: Employees can accrue up to 48 hours of ESSL per year at a minimum rate of one hour per 30 hours worked. Unused ESSL can be carried over, subject to a cap of 80 hours, or employers can opt for frontloading.
- Usage: ESSL can be used for various reasons, including personal or family illness, medical care, preventive care, and situations involving domestic abuse, sexual assault, or stalking. Additionally, it covers emergencies like business closures due to weather or public health concerns.
- Notice and Documentation Requirements: Employers can request advance notice or documentation under certain conditions, but they must have a written policy in place and cannot demand excessive details.
- Pay and Benefits: Employers must maintain employees' benefits during ESSL usage and ensure the return to their previous pay and benefits after leave.
- Termination and Rehire Policies: Unused ESSL need not be paid out upon termination. However, certain conditions allow for ESSL retention or reinstatement.
- Legal Compliance: Employers must inform employees about their ESSL rights, prohibit retaliation, and keep certain records confidential. The law also mandates updates to earnings statements to reflect ESSL accrual and usage.
- Interaction with Other Laws: State law does not override city ordinances offering more generous benefits. Employers must comply with the more generous provisions where applicable.
Minnesota employers should review existing sick time or PTO policies to ensure compliance with the new law.
Click here for more information from our partner, Littler.
New York Legislature to Increase Executive, Administrative, and Professional Compensation Threshold, Expanding Certain Wage Payment Protections
Effective March 13, 2024, New York has increased the threshold for white-collar worker exemptions under Article 6 of the New York Labor Law, which focuses on the payment of wages. This change is distinct from the salary threshold for white-collar exemptions under the New York Wage Orders.
Article 6 sets forth various wage-related protections for employees. Notably, it currently excludes certain employees in executive, administrative, or professional roles earning over $900 per week from some of these protections. The new legislation, Senate Bill 5572/Assembly Bill 6796, increases this threshold to $1,300 per week.
The purpose of the bill is to expand the number of employees eligible for assistance from the State Department of Labor in wage-related issues. The Department currently does not address wage claims from employees in the specified roles earning more than $900.
The amended law affects the applicability of several provisions within Article 6 of the Labor Law and its regulations. Specifically, employees earning below the new threshold would be entitled to the following protections:
- Labor Law § 191: Mandating the frequency of pay (weekly for manual workers, bi-weekly for clerical/other workers, monthly for commission salespersons).
- Labor Law § 192: Requiring employee consent for direct deposit.
- Labor Law § 198-c: Ensuring employer adherence to policies on expense reimbursement, employee benefits, vacation, severance, and holiday pay.
- 12 NYCRR Part 192: Setting permissible payment methods under the New York Labor Law (Cash, Check, Direct Deposit, Payroll Card) and associated requirements.
Employers should review their current payroll practices and policies to ensure compliance with the updated legal requirements.
Please follow this link for more details.
Ohio Passes Recreational Marijuana Law
On November 7, 2023, Ohio joined the ranks of twenty-three states that have legalized recreational marijuana. The new legislation authorizes the regulated cultivation, sale, purchase, possession, use, and home growth of marijuana for adults aged 21 and over. This law goes into effect on December 7, 2023, and does not impact the already established medical marijuana program.
Employers retain the right to refuse employment, discharge, discipline, or take other adverse actions against individuals due to their involvement with marijuana, even if such use is lawful and occurs off-duty. This stance extends to the employer's right to enforce drug testing, drug-free workplace, and zero-tolerance drug policies. Additionally, employers can justifiably terminate employees for marijuana use that violates the company's drug policy, with implications for unemployment compensation.
Ohio employers should assess their current drug policies in light of this new legislation. It's essential to review and potentially update these policies to ensure they comply with both Ohio and federal laws. It is important to clearly communicate these policies to employees, given the passage of this legislation.
To read more on this topic, click here.
Washington Enacts New Law Prohibiting Discrimination Based on Cannabis Use (With Several Exceptions)
Effective January 1, 2024, Washington employers are prohibited from employment discrimination based on cannabis use. Specifically, employers cannot discriminate against individuals for using cannabis outside of work hours and away from the workplace. Discrimination based on drug tests that detect non-psychoactive cannabis metabolites (found in hair, urine, blood, etc.) is prohibited. However, employers can still conduct drug screenings for multiple substances, including cannabis, as long as the results for cannabis are not used in employment decisions.
There are several exceptions to the new law. For example, the law does not apply to pre-employment drug tests that don't screen for non-psychoactive cannabis metabolites. Additionally, employers retain the right and obligation to maintain a drug- and alcohol-free workplace and comply with federal law.
Please click here for more details.