Welcome to the latest edition of AlphaStaff's Monthly Compliance Updates!
We are pleased to provide you with a recap of 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.
USCIS Increases Validity Period of Employment Authorization Documents
In the September 2023 edition of the AlphaAdvisor, employers were reminded that the temporary final rule increasing the automatic extension of employment authorization documents (EAD) for certain foreign nationals was set to expire on October 26, 2023. Fortunately for many employers and employees, the USCIS recently announced an extension to the maximum validity period for EADs to five years for specific applicant categories, including noncitizens with pending adjustment of status applications. This new policy comes into effect for Form I-765 Applications filed or pending on or after September 27, 2023. Other categories benefiting from extended EAD validity include refugees, individuals granted asylum, and those with withholding of removal.
The decision aims to align the EAD validity with the underlying immigration status, streamline USCIS processes, and decrease application backlogs. However, it is crucial to note that maintaining the underlying eligibility is required; if that changes, the EAD will be invalidated.
Click here to learn more from our partners at Jackson Lewis.
EEOC Updates Proposed Guidance on Workplace Harassment
On September 29, 2023, the Equal Employment Opportunity Commission (EEOC) introduced its updated “Proposed Enforcement Guidance on Harassment in the Workplace,” marking the first significant change since 1999. The proposal aligns with the EEOC’s enforcement priorities, such as preventing systemic harassment and protecting vulnerable workers. It integrates key legal updates, including the Supreme Court’s decision in Bostock v. Clayton County, which expanded Title VII to include gender orientation and sexual identity. The guidance also addresses modern issues like virtual and online harassment.
Key Provisions for Employers:
- Clarification on Sex-Based Harassment: Includes harassment based on sexual orientation and gender identity.
- Context Matters: Harassment needs to be evaluated in the specific context in which it arises.
- Broad Liability Scope: Employers could be liable for harassment even if it’s not directed at a specific individual or if it occurs outside the physical workplace, including online environments.
- Religious Expression: Employers are not required to accommodate religious expressions that contribute to a hostile environment.
- Temporary Employment Agencies: These are also responsible for addressing harassment complaints.
- Internal Investigations: This should be impartial and comprehensive, with clear communication on outcomes to the involved parties.
Given the pending updates to the enforcement guidance, employers are encouraged to review their current policies and training programs to ensure they align with the new guidance. The proposed guidance is open for public comment until November 1, 2023.
Visit this link to learn more about this guidance from Jackson Lewis.
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. Many of the new laws become effective on January 1, 2024. A summary of the most notable new laws is included below:
- Increase to the amount of paid sick leave employers are required to provide to employees
- Increase to minimum wage for healthcare workers employed by certain healthcare facilities
- Expansion of prohibitions on employee restrictive covenants
- Establishment of employer notice obligation for unlawful noncompete covenants in their employment agreements
- New unpaid leave for reproductive loss
- Required development of workplace prevention program
Please follow this link to access articles that provide a more in-depth discussion of these new laws.
California Bans Inquiries About Applicant Cannabis Use
On October 7, 2023, California Governor Newsom signed Senate Bill (SB) 700 into law, prohibiting employers from discriminating against job applicants based on their prior use of cannabis, as revealed through a criminal history check. This change comes under the Fair Employment and Housing Act (FEHA) and takes effect on January 1, 2024.
This new law complements Assembly Bill (AB) 2188, passed in 2022, which also takes effect on January 1, 2024. AB 2188 makes it illegal for employers to discriminate against an individual for using cannabis off-duty or for testing positive for non-psychoactive cannabis metabolites in employer-required drug screenings. Notably, there is an exemption for the building and construction trades. Employers should consider reviewing their hiring practices to ensure compliance with SB 700 and AB 2188.
To read more on this topic, click here for an article from Jackson Lewis.
Updates to the Massachusetts Paid Leave and Medical Leave Law
The latest changes to Massachusetts' Paid Family and Medical Leave law (PFML) offer more flexibility and financial support for employees taking qualified leaves. Starting November 1, 2023, employees can supplement their PFML benefits using accrued paid leave such as vacation, sick time, or PTO, allowing for up to 100% wage replacement. Prior to this amendment, using accrued paid leave in conjunction with PFML benefits was not a guaranteed entitlement. Employers that offered PMFL through a private plan were given the discretion to allow employees to supplement wages with accrued paid leave. Conversely, employees receiving PMFL through the Commonwealth program were prohibited from supplementing their wages with accrued paid leave. This amendment aligns Massachusetts with other states that provide employees the option to maximize income replacement during critical periods of leave.
Further guidance is expected to be published by the Department of Paid Family and Medical Leave. Employers are encouraged to update internal policies to include the option for employees to supplement PFML benefits with accrued paid leave.
Click here to read more from our trusted partners at Littler.
Montana Creates Protections for Employee Expression on Personal Social Media Account
Montana has recently enhanced its laws protecting the social media accounts of employees and job applicants.
Employers in the state were already limited in their ability to access an individual's social media accounts, but the new amendments have expanded these employee protections. Effective October 1, 2023, employers cannot discharge, discipline, or retaliate against employees or applicants for legal expressions of free speech made on personal social media. The amendment carves out an exemption that allows for any social media statements that breach an employer's written policy or the terms of an employment contract.
Montana's wrongful discharge law has also been amended to include a new cause for claiming wrongful termination. Specifically, an employer could face legal repercussions if they terminate an employee solely based on the individual's legal expressions of free speech, including comments made on social media. Covered employers are encouraged to review their internal policies to ensure compliance with the new law.
Please follow this link for more details.
New York Proposes Pay Transparency Regulations
As highlighted in the September 2023 edition of the AlphaAdvisor, New York's pay transparency law went into effect on September 17, 2023. The state labor department has published proposed regulations to clarify employer obligations under the new law. Here are some key takeaways:
- Who is Covered: Private employers with four or more employees, excluding temporary help firms and governmental agencies.
- Scope: Jobs physically performed in New York or reporting to a New York worksite are covered. Occasional presence in NY doesn't count.
- Third-Party Ads: Employers are responsible for salary range disclosure in third-party postings unless posted without their knowledge.
- No Ad Requirement: Employers don't have to advertise vacant positions, but if they do, salary and job description (if it exists) must be disclosed.
- Job Descriptions: While not mandatory, they are highly encouraged if the job title doesn't make duties clear.
- Compensation Range: Should reflect the base pay, be specific, and not open-ended (e.g., "$20 per hour and up" is not allowed).
- Additional Info: Extended compensation details can be provided separately if they don't fit in the main ad.
- Geographic and Seniority Variance: Multiple salary ranges must be disclosed for varied geographic or seniority levels.
- Good Faith Range: Salary ranges should reflect what the employer genuinely expects to pay but are not binding.
- Lack of Good Faith: Penalties may apply if the disclosed range is misleading or too broad without explanation.
Although the regulations are still pending, employers can utilize these proposed regulations to guide the development of their policies. The comment period for the proposed regulations is open until November 12, 2023.
Click here for more information from our legal partner, Fisher Phillips.
New York Enacts New Law Prohibiting Employers Access to Employee's Social Media Accounts
New York has passed a law restricting covered employers from accessing employees' or job applicants' personal online accounts. A "covered employer" is broadly defined as any business entity in New York, including agents or representatives. The law specifically prohibits employers from:
- Requesting usernames and passwords for personal accounts.
- Asking employees to open personal accounts in their presence.
- Reproducing any content from such accounts.
However, the law does not impede employers from accessing company-owned accounts or devices. Employers are also not restricted from viewing publicly available information or complying with court orders and federal laws. Importantly, the law protects employees from retaliation for not complying with unlawful requests.
Effectively, the new law aims to protect the privacy of employees and applicants while still allowing employers the access they need to company-related accounts and devices. Employers should consider reviewing current practices to ensure they comply with the new regulations.
To read more on this topic, click here.
New York City Amends Safe and Sick Time Regulations
Effective October 15, 2023, New York City updated its Earned Safe and Sick Time Act (ESSTA) regulations, impacting compliance in several key areas.
Who is Covered: The amendments clarify that remote workers physically outside NYC are not covered, even if their employer is based in the city. However, “hybrid” workers may be covered if they regularly perform tasks in NYC. The regulations no longer exclude domestic workers.
Employer Size & Coverage: Employers with 100+ employees must offer up to 56 hours of paid sick and safe time annually, while smaller employers offer up to 40 hours. The headcount includes all employees nationwide and those on temporary absences. Employers must adjust benefits if they cross these thresholds during a calendar year.
Notice & Documentation: Employers can require advance notice for leave, which must be outlined in a written policy. For "unforeseeable" leave, notice should be given “as soon as practicable,” while for "foreseeable" leave, up to seven days' notice is permitted. Employers must reimburse fees for obtaining required medical documentation.
Reporting Leave Balances: Employers are now required to specify both the total leave balance and the amount available for use on pay statements or other documentation.
Employers should act swiftly to ensure their policies are in line with these revisions.
Please click here for more details from Littler.
New York Law Requires Written Notice of Unemployment Benefits
Effective November 13, 2023, New York employers will be required to notify employees in writing about their right to claim unemployment benefits. This is applicable whenever there is a change in employment status—be it a termination, reduction in work hours, or any other scenario leading to full or partial unemployment. Employers are obligated to provide this notice at the time these changes take place.
The written notice should adhere to a form either published or approved by the New York State Department of Labor (DOL). It must include key details like the employer’s name and registration number, the address for remuneration requests and employee information, and any additional requirements as specified by the Labor Commissioner.
Please follow this link to obtain the form approved by the DOL.
Rhode Island Amends Payment of Wages Act
Rhode Island's Payment of Wages Act (the "Act") has undergone some significant amendments. Starting January 1, 2024, certain wage and hour violations become punishable as criminal felonies. Employers or their agents could face up to three years in prison and/or a $5,000 fine for knowingly and willfully failing to pay wages exceeding $1,500 or for misclassifying workers as independent contractors, specifically in the construction industry.
The Act also stipulates that employers must settle owed wages and benefits within 24 hours of an employee's separation if the company is liquidating, merging, or relocating out-of-state. Additionally, employers may face punishment for failure to pay wages to a deceased employee's family within 30 days and failure to pay lawfully owed amounts on the next regular payday.
Notably, employers in the construction industry face even harsher penalties. A second violation for misclassifying employees could lead to a felony, a fine of $5,000, and a three-year prison sentence. However, the Act leaves the terms "knowingly" and "willfully" undefined, offering no clear guidance on what constitutes a violation. This ambiguity raises concerns for employers, given the often complex nature of wage and hour laws. Pending further guidance from Rhode Island, employers are encouraged to review and amend their current practices to comply with the wage and hour laws in Rhode Island.
To read more, follow this link to an article from Littler.
Amendments to Puerto Rico's Act 54 on Domestic Violence Will Impact Employer Policies
The Governor of Puerto Rico recently signed amendments to Act No. 54, the "Act for the Prevention and Intervention with Domestic Violence," broadening the definition of domestic violence to include "economic violence." Economic violence aims to undermine a victim's financial stability and may involve tactics like fraud, threats, or restricting access to financial accounts.
For employers, this is an essential development. Puerto Rican law already mandates that employers have a workplace policy addressing domestic violence (Act No. 217-2006). Given the new amendments, companies should consider reviewing and potentially revising their existing policies to ensure they encompass the extended definition of domestic violence, including economic violence. Employers should also watch for further guidance from the Women's Solicitor's Office, which could offer additional clarifications on how to effectively adapt workplace policies.
Please follow this link to the Littler article discussing the new amendments.