Welcome to our October 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.
DHS/ICE Extends I-9 Remote Verification Until July 31, 2023
AlphaStaff has frequently highlighted developments related to I-9 virtual verification flexibility, and in our September 2022 AlphaAdvisor we announced that these flexibilities were set to expire on October 31, 2022. However, in a last-minute effort to provide continued reprieve to employers, on October 11, 2022, the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) jointly announced another extension to the I-9 compliance rules. Accordingly, employers and workplaces operating exclusively in a remote setting due to COVID-19 may inspect Form I-9 documents virtually through July 31, 2023. In addition, the DHS has requested public comment through October 17, 2022, on a proposed final rule that could permanently allow for remote, virtual I-9 verification. For more information, please visit this link.
Employers May Continue to Use Current I-9 Form
Many employers may have noticed that the current I-9 form is due to expire on October 31, 2022. Recently, the Department of Homeland Security (DHS) issued guidance that employers should continue to use the current form until further notice. AlphaStaff will continue to track this issue closely and update our clients once the new Form I-9 and the associated instructions have been released. For more information, please visit this link.
EEO Updates Workplace Poster
On October 20, 2022, the EEOC released a revised “Know Your Rights” poster to replace the previous “EEO is the Law” poster. The new poster summarizes the laws prohibiting employment discrimination and the steps an applicant or employee can take to file a charge with the EEOC.
Employers with 15 or more employees must display the poster in a conspicuous place in the workplace that is also accessible to applicants and employees that may have disabilities. The EEOC encourages employers to make an electronic version of this poster available to supplement the physical posting requirement. Although the EEOC has yet to establish a concrete compliance deadline, employers must update their posters as soon as possible. For more information, please visit this link or contact your HRAM.
The Latest Employment Laws in the Golden State
California has recently passed a bevy of legislation that will impact employers in the state in several ways. Some of the most notable new laws are detailed below. Many of the new laws become effective on January 1, 2023, making it imperative to review full detail here.
- Wage Transparency – Effective 1/1/2023, employers of 15 or more employees must include the pay scale for a position in any job posting. If the employer uses a third party to announce, post, publish, or otherwise make known a job posting, the employer must provide the pay scale to the third party, and the third party must include the pay scale in the job posting.
- Extension of Worker’s Compensation COVID-19 Provision – The rebuttable presumption that an employee contracted COVID-19 during the course of employment has been extended to 1/1/2024.
- Employees Excused from Work During “Emergency Conditions” – Employers are prohibited from taking adverse action against an employee if they refuse to report to work or leave early during an emergency such as nature forces, evacuation order due to a natural disaster, or crime at the workplace, employee’s home, or child’s school. Certain public servants are not covered under this law.
- Employee Protection for Off-Duty Marijuana Use – Effective 1/1/2024, employers are prohibited from taking adverse action against an employee for off-duty use of marijuana. This protection extends to pre-employment drug screenings that reveal the use of the drug.
- Bereavement Leave Established – Effective 1/1/2023, employers with five or more employees must provide up to five days of unpaid leave to employees within three months of certain family member’s death.
- CalSavers Expansion – The definition of covered employers has been expanded to require employers with one or more eligible employees, and no retirement savings plan, to participate in the CalSavers plan. Employers that fall into the scope of the law have until December 31, 2025, to comply with this requirement.
Colorado Issues First Round of Regulations and Guidance on Paid Family and Medical Leave Insurance (FAMLI) Program
Effective January 1, 2024, Colorado employees covered by the FAMLI program will be entitled to take up to twelve weeks of paid sick leave for several reasons including, but not limited to, their own serious health condition or the serious health condition of a family member. If an employee experiences pregnancy or childbirth-related complications, they are entitled to an additional four weeks of paid leave.
Starting January 1, 2023, private employers with 10 or more employees (and at least one Colorado employee) will need to pay a .9% payroll tax to fund the program. Employers and employees are required to equally contribute (0.45% each), or an employer may elect to pay the full amount. The Colorado Department of Labor and Employment will continue to issue further guidance as the 2024 go-live date draws closer. AlphaStaff will be sure to update you on any new developments. Please visit this link for more information.
Illinois Amends Law on Day of Rest and Meal Breaks
As highlighted in the summer edition of the AlphaAdvisor, Illinois’ One Day Rest in Seven Act (ODRISA) has passed several amendments that will impact the day of rest and meal break requirements for employees. Effective January 1, 2023, employers will be required to give employees a day of rest for “every consecutive seven-day period” worked. Prior to the amendment, employers were only required to grant the employee a day of rest during a calendar week. The amendment also changes the meal break entitlements based on the number of hours worked. Currently, employees are entitled to a 20-minute meal break for every 7.5 hours worked. Under the new law, an employee is entitled to an additional 20-minute meal break for every additional 4.5 hours worked. Therefore, during a 12-hour work period, an employee may take meal breaks totaling 40 minutes.
Employers will be subject to increased civil penalties for failure to comply with the amended law. An employee can also file a claim and recover damages for employer violations. The amendment also establishes a notice requirement where employers detail the rights available under ODRISA to all employees, including remote workers. In the near future, the Illinois Department of Labor will publish a model notice for employers. AlphaStaff will share the resource as soon as it is released. For more information, please visit this link.
Illinois Expands Child Loss Bereavement
Under Illinois’ Family Bereavement Leave Act, employers with at least 50 employees must provide up to ten days of unpaid leave to an employee for the death of a family member. Effective January 1, 2023, this law has been expanded to employees that are absent due to pregnancy and adoption loss. This leave extends to instances of unsuccessful intra-uterine insemination, assisted reproductive technology procedure, or a diagnosis that negatively impacts pregnancy or fertility. Prior to this amendment, leave was only permitted for the death of an employee’s child. The amendment also expands the right to leave for the death of an employee’s spouse, domestic partner, sibling, parent, mother-in-law, grandchild, grandparent, or stepparent. Employers should review their current bereavement policy to ensure compliance with the law. For more information and a sample revised policy, please visit this link.
Puerto Rico Disability Discrimination Law Covers Registered and Authorized Cannabis Patients
Puerto Rico has become the most recent state to enact legislation to clarify how the legalization of marijuana will impact an employee’s rights in the workplace. Effective October 14, 2022, Puerto Rico’s disability discrimination statute was amended to extend coverage to “registered and authorized medical cannabis patients.” Employers in Puerto Rico are prohibited from discriminating against qualified individuals with a disability in the recruitment, hiring, designation, or termination process. Recreational use of marijuana remains illegal and would not require any policy revisions. As the New Year approaches, employers in Puerto Rico should revise their practices and policies to comply with the new amendment. For more information, please visit this link.
Rhode Island Enacts Significant Amendments to Pay Equity
In 2021, Rhode Island passed several amendments to the wage discrimination statute that will become effective on January 1, 2023. Most notably, upon request, Rhode Island employers must provide an applicant with the wage range for the position the applicant is seeking. The amendment also suggests that the wage range be provided before discussing compensation with the applicant, but this provision is not mandatory. Employers must provide an employee with the wage range for the employee’s position at the time of hire and when the employee moves into a new position. Additionally, current employees may request and must be provided the wage range for the employee’s current position.
Other key aspects of the amendment include a prohibition against salary history inquiries and any action by an employer that prohibits employees from inquiring about, discussing, or disclosing the employee’s wages. An employer that self-evaluates their pay practices will be granted a safe harbor under this law as long as it was done in good faith within the prior two years. It must have also been completed prior to the commencement of any action against the employer and show that any discovered unlawful wage differentials were eliminated. This new law impacts multiple aspects of the hiring and retention practices of an employer. Rhode Island employers should prioritize reviewing and revising their current policies to comply with the new law. For more information, please visit this link.
Washington Expands Wage and Salary Disclosure Requirements
Effective January 1, 2023, the wage disclosure requirements under Washington’s Equal Pay and Opportunities Act will expand drastically for employers. Currently, Washington employers with 15 or more employees are only required to disclose minimum wage or salary information when requested by an applicant and only after an initial offer has been extended to the applicant. In the New Year, Washington employers must disclose the wage or salary range and a general description of benefits in every job posting for a vacant position. Additionally, when an employee transfers to a new position or is promoted, the employer must provide the wage or salary range upon request.
As of the date of this posting, Washington’s Department of Labor (DOL) has not finalized the administrative policy for this amendment. However, a draft policy has made it clear that the 15-employee threshold includes “employers that do not have a physical presence in Washington, if the employer has one or more Washington-based employees.” Consequently, a job posting for a remote position would be required to include the wage or salary disclosure even if the employer has no intention of hiring an applicant that resides in Washington. AlphaStaff will continue to monitor the update for any further clarification by the state DOL. However, employers must prioritize reviewing and revising their current policies to comply with the new law. 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.
Employee Eligibility Verification
The federal Immigration Reform and Control Act of 1986 (IRCA) prohibits the knowing employment of workers who are not authorized to work in the United States. Under IRCA, an employer must verify every new hire’s identity and employment eligibility. To implement this requirement, employers and employees must complete the Department of Homeland Security’s Employment Eligibility Verification form (Form I-9). The employer is responsible for ensuring that the I-9 is complete, the required documentation is provided, and the documentation “appears on its face to be genuine.” If an employee is unable to present the required documents within three business days of hire, they cannot continue in employment.
Under federal law, an employer’s use of E-Verify as part of the employment verification process is generally voluntary. However, several states mandate that employers enroll and participate in the E-Verify process. This month the HROC has compiled an overview of the states that have enacted additional E-Verify requirements and related resources. It is important to review your current I-9 review process and ensure the timely completion of this process. Please visit this link for the state detail that have specific E-Verify requirements.