NYC Salary Range Posting – Some Clarity
New York City is starting to crack down on employers that do not comply with the state law requiring posting a salary/wage range for positions located in the City. Clearly, no posting the range at all is a violation, but what constitutes posting unreasonable salary estimates? There are companies being scrutinized by NYC right now. Examples of considered violations: listing salaries ranging from $50,000 to $180,000 for an Albany bureau chief; $40,000 to $160,000 for a video journalist; hourly range of $18 to $48 for a vehicle operator; and an annual salary estimate of $72,000 to $210,000 for a construction project manager. The message: these ranges are not narrow enough.
The State Failed, But We Won’t
On February 28, 2024, members of the New York City Council introduced three different bills seeking to eliminate or severely limit the use of non-compete agreements in New York City through an amendment to the New York City Administrative Code. If one of these bills passes (which seems likely), then it will go into effect 120 days after passage.
Windy City Paid Leave Proposed Rules
On January 18, 2024, the City of Chicago Office of Labor Standards (OLS) issued proposed rules, FAQs, and a Flyer for its New Paid Leave and Paid Sick and Safe Leave Ordinance (Ordinance) effective July 1, 2024.
OLS is accepting public comments until February 16, 2024 on the proposed rules for the Ordinance.
WI Earned Wage Access Bill Signed Into Law
Wisconsin on Thursday now regulates earned wage access (EWA) services when Gov. Tony Evers signed a state law regulating the cash-advance products.
Wisconsin Act 131 requires EWA providers to obtain a license from WI's Department of Financial Institutions regardless of whether they're headquartered in the state. The license will require businesses to make clear disclosures, comply with privacy laws and submit an annual report to the state regulator.
EWA products allow users to receive wages they've earned prior to their planned payday. The providers advance consumers the cash and either recoup the funds later from the users' bank account or work with their employers to deduct the funds directly from the following paycheck.
Reminder: CA Pay Data Reports
Employers with 100+ employees must file a report with the CA Civil Rights Department disclosing certain pay data according to race, ethnicity, and gender. They are also required to file a Labor Contractor Employee pay data report if they hired 100+ labor contractors to perform labor within the client employer’s usual course of business.
On February 1, 2024, the Civil Rights Department (CRD) updated its guidance. Of note from the guidance:
Who may certify an employer’s pay data report?
In order to file a Payroll Employee Report or a Labor Contractor Employee Report, an official of the employer filing the report must certify that the employer’s report is accurate and was prepared in accordance with CRD’s instructions. While an employer may designate their own certifying official, the certifying official must have knowledge of the information contained in the report (or have had that information provided to them by individuals with knowledge contained in the report), have reviewed the report and can certify its accuracy, and be authorized to file the report on behalf of the employer.
Professional Employer Organizations (PEOs), Human Resource Outsourcing Organizations (HROs), or labor contractors may assist in preparing and may file pay data reports with CRD on behalf of client employers. However, an official of the client employer, not from the PEO, HRO, or labor contractor, must certify the report. A certifying official may authorize another person to electronically file the certification on their behalf. See Part VI below for more information about PEOs and HROs.
The reports are due May 8, 2024.
CA Releases Model Workplace Violence Plan
Employers in CA are required to meet the workplace violence prevention plan and training obligations by July 1, 2024. To assist, Cal/OSHA has issued model Workplace Violence Prevention Plans for various industries, including for non-healthcare general industry (download here), as well as an employer fact sheet.
CA Sick Leave Update
On January 1, 2024, CA’s Paid Sick Leave (PSL) law went into effect. In short, the law increased an employer’s obligation to provide 24 hours/3 days per year of PSL to at least 40 hours or 5 days of PSL annually.
Earlier this month, California’s Division of Labor Standards Enforcement (DLSE) issued FAQ responses addressing time of accrual:
“If an employer is using the 1 hour of paid sick leave accrued for 30 hours worked[…], then the employer does not have to provide 24 hours or 3 days by the 120th day of the year and 40 hours or 5 days by the 200th day. The requirements to provide the minimum amounts by the 120th day and the 200th day of the year are set up as a measure for employers who use other accrual methods so that the plans meet certain minimums. The measure assumes full-time employment.”
New CA Onboarding Documents
The California Department of Industrial Relations Division of Workers Compensation updated its “Time of Hire” Pamphlet, which employers must provide to newly hired employees.
Then, the CA Employment Development Department (EDD) updated its “For Your Benefit” pamphlet, which must be provided to employees at the time of hire and discharge.
Joint Employer Rule Delayed
A federal judge in Texas pushed back the effective date for the National Labor Relations Board’s rule on joint employer liability to March 11. The rule had been set to take effect February 26.
Non-Compete Reminder
For now, non-competes remain lawful in many states. However, as a reminder, some states do not allow non-competes unless an employee earns a certain amount of income or greater:
DC Min Wage Increasing
Effective July 1, 2024, the DC minimum wage will go from $17.00 per hour to $17.50 per.
Additionally, the base minimum wage for tipped employees will go from $8.00 per hour to $10.00 per hour. However, if an employee's hourly tip earnings—averaged weekly—when added to the base minimum wage does not equal the full minimum wage, employers must pay the difference.
MCAD Finally Issues Guidance
The Massachusetts Commission Against Discrimination (MCAD) has jurisdiction over sexual harassment in the workplace, but surprisingly, it has never issued any formal guidance regarding same.
In January, the MCAD published draft guidance entitled “Guidelines on Harassment in the Workplace” (the “Guidelines”). The Guidelines are subject to public comments until March 25, 2024, so it is not “final”. You can learn how to submit comments here.
CT Clarifies When Discrimination Claim Begins to Run
In Twerdahl v. Wilton Public Schools, a three-judge panel for the Connecticut Appellate Court affirmed a lower court’s decision dismissing claims brought by a former teacher for Wilton Public Schools, alleging that the school district subjected her to intolerable discrimination to force her to resign so it could replace her with a younger teacher. The Court found that the plaintiff’s claims were untimely filed with the Connecticut Commission on Human Rights and Opportunities (CHRO), as it determined that the limitations period runs from the last act of discrimination and not on her resignation date – which differs from federal employee claims under Title VII.
DOL To Crack Down on Arbitration Agreements?
US DOL Solicitor Seema Nanda says the agency will be taking a closer look at how certain employment agreements, such as mandatory arbitration pacts, can amount to illegal retaliation under federal law.
More than 60 million workers are subject to contractual provisions that require them to resolve wage, discrimination, and other employment claims in private arbitration, instead of court, according to the DOL.
Those agreements can be retaliatory if they are offered after a worker attempts to assert their rights, Nanda said during an American Bar Association conference in Puerto Rico last week.
Additionally, Nanda said the agency was open to considering whether certain confidentiality agreements could “frustrate” a worker’s ability to participate in a DOL investigation.
EEOC To Update Conciliation Regs
Yesterday, the EEOC said that it will remove Trump-era changes to its pre-conciliation process.
The final rule is set to be published today in the Federal Register. It will change the Code of Federal Regulations to reflect Congress' rescission of requirements that the EEOC's former Republican majority approved for the conciliation process. Through conciliation, the federal bias watchdog must try to settle discrimination disputes informally before heading to court.
In January 2021, the EECO finalized a rule that included requiring the EEOC to follow a rubric that directed the agency to provide details about any potential class allegations, provide more information behind any agency settlement offer and cough up details on victims and witnesses of potential discrimination.
Before the rule change, the EEOC had wide latitude to choose how to approach conciliation, as its congressional mandate to conciliate generally called for the agency to notify the business of its claim and give it a chance to respond.
NLRB Does Not Like Ban on Taking a Second Job
In a recent memorandum, NLRB’s General Counsel (GC) said she believes preventing employees from holding outside or secondary jobs violates federal labor law.
The GC said any rule or agreement interfering with an employee’s right to moonlight or access other employment is unlawful. Because this rule would prevent employees from being an “employee” of another entity, it could be read as prohibiting secondary employment and would be unlawful. This type of rule can interference with “salting” – that is, the tactic of union agents acquiring jobs in particular workplaces for the sole purpose of unionizing that business – in violation of the NLRA. And, employees could reasonably read such ban to prohibit union organizing or speaking out publicly about terms and conditions of employment because an employer may deem such actions “adverse” to their business.
Will NLRB Delay Joint Employer Rule?
Sen. Mike Braun (R-Ind.) asked the NLRB to delay the implementation of a new joint-employer rule that’s scheduled to go into effect Feb. 26, citing ongoing challenges to the regulation in Congress and the courts.
And, Joint Employer Challenge by US Chamber
The NLRB rule says that an entity is a joint employer if it is a "common-law employer" of the workers directly employed by another entity, and has control of one of several "essential terms of employment." In a TX Federal Court, the US Chamber of Commerce has argued that the second piece "serves no filtering function" for the first – comparing it to a bar admissions rule by which an attorney may practice if they've been a lawyer for 10 years, and have also graduated from law school.
"The board's new second step … in no way limits the step one common-law employers to only those that can engage in meaningful collective bargaining … because every step one common law employer is a joint employer that must collectively bargain". Further, this is illogical and clashes with a 2018 D.C. Circuit ruling that faulted a prior version of the board's policy for failing to set out precisely what degree of control makes a firm a joint employer.
Then, the judge in the TX case said that the rule “seems to create a lot more uncertainty, or at least opportunity for disagreement in practice” than the narrower Trump-era measure that it’s replacing.
“To me, it seems like by removing some bright lines in the 2020 rule, it’s only going to increase uncertainty and litigation over the basic parameters of joint employer status,” said Judge J. Campbell Barker, a Trump appointee.
Another OH City Bans Salary History
Add Columbus to the growing list of cities in Ohio banning employers from inquiring about a job applicant's wage rates or salary history while working for a prior employer. Columbus' salary history ban will go into effect March 1, 2024. The ordinance will apply to employers with 15+ employees.
Columbus now joins Cincinnati and Toledo in the ban.
Court Says PWFA Improperly Passed
In State of Texas v. Department of Justice et al., No. 5:23-cv-00034 (N.D. Tex. Feb. 27, 2024), the court held that Congress improperly passed the Consolidated Appropriations Act of 2023, including the Pregnant Workers Fairness Act (PWFA), a. The court enjoined the EEOC and DOJ from enforcing the PWFA against the State of Texas and its agencies.
The PWFA went into effect on June 27, 2023 and requires employers with at least 15 employees to provide reasonable accommodations to employees and applicants with known limitations related to pregnancy, childbirth, or related medical conditions.
In a lengthy opinion, the court found that Congress violated the Constitution when it relied on the COVID-19-pandemic-era rule, adopted by the House of Representatives in 2020, that permitted non-present members of Congress to be included in the quorum count and vote by proxy.
The court said, “[B]y including members who were indisputably absent in the quorum count, the Act at issue passed in violation of the Constitution’s Quorum Clause.”
The scope of the court’s injunction limits the EEOC and other federal agencies from enforcing the PWFA against the State of Texas - it does not extend to any private employers or other governmental employers. But, other parties are not prevented from arguing the same position.
Dress Code Policies
In a recent NLRB decision, the Board held that employees who deal with customers who want to write “Black Lives Matter” (“BLM”) on their uniforms are permitted do so despite a company dress code policy that prohibited workers from wearing political messages unrelated to the workplace.
The NLRB found that an employee wearing “BLM” on his uniform and his refusal to remove it was protected concerted activity. The Board said the action was a “logical outgrowth” of prior complaints of alleged discriminatory conduct and their efforts to remedy that alleged conduct; accordingly, it was protected activity.
Now what? Review your policies related to dress code. The NLRB held that the employer’s dress code policy was facially neutral because it prohibited political messages “unrelated to the workplace.” You may want to revise policies to prohibit all forms of political messaging that are unrelated to the workplace, but work with counsel, as some states bar preventing such messaging.
Handbook Updates: AI
If your organization is using artificial intelligence for any employment-related purposes, including recruiting, hiring, interviewing, etc., then you should consider updating your employee handbook by adding an AI policy. Some states, including IL, have laws that require certain disclosures, etc. that need to be provided to employees and applicants before AI tools may be used.
TGNCNB Stats
An except from my esteemed colleague (Amy Epstein Gluck). Read the full article here.
The NY DOL looked at TGNCNB (transgender, gender non-conforming, non-binary) employees in the workplace and found:
► Employment discrimination based on gender identity is pervasive throughout the state.
How so? Discrimination against the TGNCNB in New York includes termination, microaggressions, harassment. These employees also experience extensive intersectional discrimination based on race, immigrant status, and other protected classes in addition to gender discrimination.
► TGNCNB people of color experience greater employment disparities.
►There is a lack of cultural competency statewide regarding gender identity and expression. That is, an understanding that New York law protects LGBTQIA and TGNCNB individuals from discrimination, harassment, and retaliation.
► There is a genuine fear for safety in the workplace among TGNCNB individuals.
DOL Overtime Rule Update
The USDOL's proposed rule raising the salary threshold for exempting employees from overtime under federal law is not in the hands of the White House's Office of Management and Budget, signaling that the rule's final version might be forthcoming.
Fed Court Not Allowing FL’s Workplace Bias Training Law To Go Into Effect
The Eleventh Circuit on Monday refused to let Florida start enforcing a law that prevents employers from requiring workers to attend diversity trainings that promote various sex- and race-based concepts, rejecting FL’s argument that it was regulating conduct, not speech.
UT Limits Non-Disclosure Agreements
Following states such as CA, NY and NJ, on February 28, 2024, UT passed a law prohibiting confidentiality clauses regarding sexual misconduct (sexual assault or harassment) as against public policy, void and unenforceable. Further, the law (H.B. 55) prohibits an employer from retaliating against an employee for: (1) making an allegation of sexual harassment or assault, or (2) refusing to enter into an agreement or employment contract that contains such a nondisclosure or non-disparagement clause.
An employee in UT now gets three business days after agreeing to a settlement agreement that contains a nondisclosure or non-disparagement clause related to sexual misconduct to withdraw from the settlement agreement. Employers that attempt to enforce such clauses cannot recover monetary damages for breach of the clause but will be liable for all costs and attorney fees the employee incurs as a result of the legal action.
AL Fed Court Declares Corporate Transparency Act Unconstitutional
In NBSA v Janet Yellen , N.D. Ala., No. 5:22-cv-01448-LCB, Judge Liles Burke of the US District Court for the Northern District of Alabama, ruled that the Corporate Transparency Act (CTA) is unconstitutional because Congress lacks the powers to require companies to disclose personal stakeholder information to the Treasury Dept. As I previously reported, effective January 1, 2024 , companies were required to report their "beneficial ownership" to the Treasury Dept.. including the identities and other information about the people who control the company.
Caveat: Because the court enjoined the government from applying the CTA to the plaintiffs in the case only, parties not involved in the litigation should continue to comply with the CTA. This position was confirmed by the Treasury Department's Financial Crimes Enforcement Network in a March 4, 2024, Notice on the case, wherein the government asserts continuing authority to enforce the CTA against nonparties.
EEO-1 Website Opening Announced
The EEOC has announced that the data collection for the 2023 EEO-1 Component 1 reports will open on April 30, 2024, with a June 4, 2024 deadline for reporting.
The notice also states that the “online Filer Support Message Center (i.e., filer help desk) will also be available on Tuesday, April 30, 2024, to assist filers with any questions they may have regarding the 2023 collection.”
PEOs Liable for Client ERC Claims
On February 16, the IRS Office of Chief Counsel released a legal memorandum concluding that third-party payers, such as professional employer organizations (PEOs), certified professional organizations, and Section 3504 Agents (collectively, "TPPs") are liable for underpayments of payroll taxes resulting from improper claims for the employee retention credit (ERC) that the TPPs filed on behalf of clients.
Then, Legal memorandum AM 2024-001, dated February 5, 2024, concludes that all three types of TPPs are liable for any underpayments of payroll taxes as a result of improper claims, together with clients on whose behalf the TPPs file the claims for the ERC by filing the Form 941 or 941-X amended return.
Then, HR 7024, which the House has passed and the Senate is considering, would extend the statute of limitations for the IRS to assess underpayments of ERC claims by two years, giving the IRS plenty of time to audit ERC refunds. (This bill would also impose preparer penalties on certain firms who helped prepare ERC claims, except certified professional employer organizations would be exempt – but noncertified PEOs and Section 3504 agents would potentially be subject to such penalties).
Government Contractors Face New Hiring Restrictions
The Federal Acquisition Regulatory Council proposed a new rule that would amend the Federal Acquisition Regulation to place new restrictions on federal contractors and subcontractors, including: (1) prohibiting, seeking or considering an applicant's compensation history; (2) requiring compensation disclosures in job advertisements; and (3) affirmatively providing written notice to applicants with specific language on their rights under the rule.
The rule would apply to contractors with federal contracts and subcontracts for commercial products or commercial services valued in excess of $10,000, and to be performed within the US. The proposed rule would apply "to the recruitment and hiring for any position to perform work on or in connection with the contract" or subcontract. The proposed rule defines work on or in connection with the contract as "work called for by the contract or work activities necessary to the performance of the contract but not specifically called for by the contract."
CDC Changes COVID Isolation Rule – Why Do I Care?
On March 1, 2024, the CDC said it would no longer require a 5-day isolation period for individuals testing positive for COVID-19. This guidance is contained in “Preventing Spread of Respiratory Viruses When You’re Sick.”
The new CDC guidance applies to individuals experiencing “respiratory virus symptoms that aren’t better explained by another cause,” including fever, chills, fatigue, cough, runny nose, and headache, among others. In such cases, the guidance provides that individuals can resume normal activities when, for at least 24 hours, both of the following are true:
- the individual’s symptoms are getting better overall, and
- the individual has not had a fever (or had a fever but has been fever-free for at least 24 hours) and is not using fever-reducing medication.
After resuming normal activities, the guidance recommends taking precautions over the next 5 days, including “taking additional steps for cleaner air, hygiene, masks, physical distancing, and/or testing when [the individual] will be around other people indoors.”
Individuals who test positive for a respiratory virus but never had symptoms are not subject to any isolation recommendation under the new guidance, but are advised to take precautions as noted above for the 5 days following the positive test.
So what? It matters because many states, such as NY, have a COVID-19 sick leave law, which requires employers to provide at least 5 or 14 calendar days (depending on employer size) of (in most cases paid) sick leave for isolation or quarantine related to COVID-19, separate and apart from any other sick time or other paid time off the employer may already provide. Under the CDC’s previous isolation guidelines, NY employees testing positive for COVID-19 were entitled to sick time for the 5-day isolation period. Employees whose symptoms continued beyond the initial 5-day period may have been eligible for additional COVID-19 sick leave, depending on their employer’s size.
Now, under the new CDC guidance, the amount of NY COVID-19 sick time an employee may be eligible for will be case-dependent upon: (1) whether the employee is experiencing any symptoms (as an employee experiencing no symptoms is now under no advisement to isolate); and (2) how long the employee’s symptoms (including, any fever) last. You will need to check other state laws to see what other leave obligations you may have to your employees.
House To Consider Removing Damage Caps
Democrats and Republicans within the House Committee on Education and the Workforce have expressed interest in eliminating caps on recovery of damages for federal employment discrimination cases, including under Title VII. The EEOC has also expressed interest in removing such caps.
EEOC Tells Judge It Won't Enforce PWFA Against Texas
The EEOC told a Texas federal judge that it is complying with its order blocking the agency from enforcing the Pregnant Workers Fairness Act against the state, after the court found that lawmakers violated quorum rules when passing the statute.
EEOC Reports Record Recoveries
The EEOC reported on Monday that it recovered $665 million for workers in the 2023 fiscal year, a $152 million increase over the previous year and the largest FY recovery in the agency's history.
In its annual performance report, the EEOC said it secured over $440 million of compensation for private-sector workers and state and local government employees through mediation, conciliation and settlements, and obtained just over $22.6 million through litigation. The EEOC says it won more than $202 million on behalf of federal employees and job applicants who claimed they were discriminated against.
The recovery coincides with over 81,000 new discrimination charges in the FY, a 10% increase over FY2022. However, the EEOC ended the fiscal year with 51,100 pending charges, a slight decrease from approximately 51,400 charges that were pending at the end of FY2022.
So, Then You Ask For More Money…
On the heels of its record FY recovery, the White House proposed raising the EEOC's budget by $33 million in FY2025 to help the agency tackle new issues stemming from artificial intelligence and implement the newly enacted Pregnant Workers Fairness Act.
And While We Are Doling Out Money…
As part of President Biden’s annual budget proposal FY 2025, he would set aside billions of dollars for the U.S. Department of Labor to address worker protections and establish a paid leave program.
The proposal calls for $13.9 billion in discretionary funding for the DOL, up $318 million, or 2.3%, from the 2023 amount. Of that total, $2 billion would go to "empowering and protecting workers," a category that includes addressing workers' wages, unlawful child labor and independent contractor misclassification.
NLRB Joint-Employer Rule Struck Down
The NRLB's joint-employer rule has been struck down by US District Court Judge J. Campbell Barker, who said the rule lacks clarity and is overly broad. The decision came in a legal challenge filed in Texas in which the US Chamber of Commerce and other business groups contended the rule could have led to companies facing excessive liability for employees who aren't on their payrolls.
The rule, which could deem an entity a joint employer even if it has only indirect or reserved control over another firm's workers, is arbitrary because the two-step rule's second step fails to limit the first, Judge Barker said.
To be a joint employer under the rule, an entity must be an "employer" under the common law, and it must control one of seven working conditions, Judge Barker noted.
"Plaintiffs respond that the second test is always met if the first test is met, so the rule's joint-employer inquiry has just one step for all practical purposes," the judge said. "That logical relation appears right. An employer of a worker under the common law of agency must have the power to control 'the material details of how the work is to be performed.'"
IC Takes Effect on Monday
The new rule “Employee or Independent Contractor Classification Under the Fair Labor Standards Act”, is go into effect Monday. The rule contains a six-factor economic reality test for worker classification, which includes look at : a worker's opportunity for profit or loss; investments by the worker and employer; the permanence of the work relationship; an employer's degree of control over the work; how integral the work is to the employer's business; and the use of a worker's skill and initiative.
If you haven’t already done so, you should review and revisit your IC relationships and agreements to ensure the you are in compliance with the new rule.
EEOC Rolls Out New Initiative
The EEOC has a new outreach initiative focused on one of its several “priorities” for 2024.
Key focus areas that the EEOC is emphasizing in 2024:
- Eliminating Barriers in Recruiting and Hiring.
The EEOC is looking at facially neutral practices that are likely to result in a disparate impact on a protected class. For example, using AI in hiring, screening tools facilitated by AI or automated systems, job advertisements that exclude or discourage certain groups from applying, and employers’ reliance on job application processes that may be difficult for those with disabilities to access. - Protecting Vulnerable Workers and Persons from Underserved Communities from Employment Discrimination.
The EEOC defines vulnerable workers as: immigrant and migrant workers and workers on temporary visas; people with developmental or intellectual disabilities; workers with mental health-related disabilities; individuals with arrest or conviction records; LGBTQI+ individuals; temporary workers; older workers; individuals employed in low-wage jobs, including teenage workers employed in such jobs; survivors of gender-based violence; Native Americans/Alaska Natives; and persons with limited literacy or English proficiency. To implement this priority, the EEOC says that district offices and the agency’s federal sector program will identify vulnerable workers and underserved communities in their districts or within the federal sector for focused attention. - Addressing Selected Emerging and Developing Issues.
The EEOC is looking at issues that involve new or developing legal concepts or those that are difficult or complex, such as:
- Qualification standards and inflexible policies or practices that discriminate against individuals with disabilities;
- Policies and practices for workers affected by pregnancy, childbirth, or related medical conditions under the Pregnant Workers Fairness Act and Pregnancy Discrimination Act;
- Discrimination influenced by or arising as backlash to local, national, or global events, including discriminatory bias arising as a result of recurring historical prejudices; and
- Discrimination associated with the long-term effects of the COVID-19 pandemic, including long hauler COVID.
- Advancing Equal Pay for All Workers.
Pay equity remains a persistent issue, including wage discrimination based on race, ethnicity, and other protected characteristics.