May Legal Updates

FTC To Reveal Non-Compete Rule

On April 23^rd, the FTC intends to unveiling and vote on the final version of a rule that would ban essentially all noncompete agreements employers impose on their workers.

SCOTUS, Job Transfers and Title VII

In a unanimous decision in Muldrow v. St. Louis , the justices rejected the legal standards some appellate courts have imposed that screen out Title VII claims centered on job transfers that didn't come with a "'significant' employment disadvantage," finding these restrictions don't align with the language of the law.

However, the court backed away from eliminating the harm requirement altogether, stating that workers must show some level of injury to bring employment bias lawsuits.

"To make out a Title VII discrimination claim, a transferee must show some harm respecting an identifiable term or condition of employment," Justice Elena Kagan wrote. "What the transferee does not have to show, according to the relevant text, is that the harm incurred was 'significant' or serious, or substantial, or any similar adjective suggesting that the disadvantage to the employee must exceed a heightened bar."

Title VII expressly prohibits bias with respect to someone's "terms, conditions, or privileges of employment," and Justice Kagan said a raised injury threshold does not square with the statutory text.

"Although an employee must show some harm from a forced transfer to prevail in a Title VII suit, she need not show that the injury satisfies a significance test," the justice said. "Title VII's text nowhere establishes that high bar."

EEOC Issues Pregnant Workers Fairness Act Final Regs

Highlights from the final regulation include:

• Numerous examples of reasonable accommodations such as additional breaks to drink water, eat, or use the restroom; a stool to sit on while working; time off for health care appointments; temporary reassignment; temporary suspension of certain job duties; telework; or time off to recover from childbirth or a miscarriage, among others.
• Guidance regarding limitations and medical conditions for which employees or applicants may seek reasonable accommodation, including miscarriage or still birth; migraines; lactation; and pregnancy-related conditions that are episodic, such as morning sickness. This guidance is based on Congress’s PWFA statutory language, the EEOC’s longstanding definition of “pregnancy, childbirth, and related medical conditions” from Title VII of the Civil Rights Act of 1964, and court decisions interpreting the term “pregnancy, childbirth, or related medical conditions from Title VII.
• Guidance encouraging early and frequent communication between employers and workers to raise and resolve requests for reasonable accommodation in a timely manner.
• Clarification that an employer is not required to seek supporting documentation when an employee asks for a reasonable accommodation and should only do so when it is reasonable under the circumstances.
• Explanation of when an accommodation would impose an undue hardship on an employer and its business.
• Information on how employers may assert defenses or exemptions, including those based on religion, as early as possible in charge processing.

Note that the EEOC is bracing for legal challenges after this final rule includes abortion as a “related medical condition” employers may have to accommodate.

Nice Try!

The Second Circuit rejected a US DOL request that it publish a nonprecedential opinion concluding that a nurse staffing company's so-called loser-pays arbitration clause was invalid under federal labor law.

Details: the Second Circuit's order found that Advanced Care's arbitration clause could not stand under the FLSA because it required the plaintiff to pay the arbitration fees if he lost, which would impede his rights. The three-judge panel remanded the case back to New York federal court for further discovery.

The panel said in its order that "whether the 'loser pays' provision undermines [plaintiff]'s ability to vindicate his rights … presents a serious question of law and fact that requires more detailed findings about Vidal's finances, the potential costs of arbitration, and the possibility that [plaintiff]will incur such costs."

VA and Cannabis

Effective July 1^st, S.B. 391 amends the state law prohibiting an employer from discriminating against employees for using medical cannabis oil to specify that such use must be lawful in Virginia. The provisions include all employees except for law enforcement.

KY Disability Insurance

Effective April 5^th, H.B. 179 authorizes Kentucky insurers to provide paid family leave insurance and disability income insurance but does not require employers offer it to employees. Employers may purchase either insurance as part of a group policy, a standalone policy, or as a rider or amendment to an existing policy.

VA Child Labor Law Penalties Increase

Effective July 1^st, H.B. 100 raises the limit on civil penalties for employing a child in violation of the state's child labor law, from $10,000 to $25,000 for a violation resulting in serious injury or death and from $1,000 to $2,500 for any other violation, with certain exceptions.

DC Voting Leave Poster Updated

The District of Columbia revised its employee voting leave poster to reflect relevant dates for the June 4, 2024 primary election. You can obtain the poster here.

WA Captive Audience Law

Effective June 6^th, S.B. 5778 prohibits an employer from retaliating or threatening retaliation against employees for refusing to attend or participate in meetings about the employer's religious or political opinions or for refusing to listen to or view communications about those opinions. It also prohibits employers from coercing employees into attending those meetings or participating in those communications.

WA IRA Savings Requirement

Effective June 6^th, S.B. 6069 creates the Washington Saves program, an automatic enrollment IRA savings program requiring employers to facilitate payroll deductions. Starting when the program launches - no later than July 1, 2027 - covered employees will be automatically enrolled in the program unless they opt out. The law also creates a governing board, which will be responsible for determining the default contribution and escalation rates as well as the investment options that will be available to participants. The law also amends the requirements of the state's Small Business Retirement Marketplace, a voluntary program created to connect eligible employers and their employees with approved plans to increase retirement savings.

TN on Compensable Time

Effective July 1^st, H.B. 2110 enacts state compensable time laws to align with the FLSA. For state-wage hour purposes, compensable time for employees does not include the time spent traveling to and from work, nor does it include performing pre- or postliminary activities that require insubstantial amounts of time beyond their work schedule. However, time spent on pre- or postliminary activities and work-related travel is compensable under certain circumstances such as an express agreement between employer and employee.

AI Employer Guidance Coming

As you know, President Biden signed an executive order on October 30, 2023 directing the federal government to develop artificial intelligence guidance for employers. At a recent American Bar Association meeting in Boston, USDOL and OFCCP officials confirming that such regulations are coming soon. The USDOL expects to publish AI regulations by the end of this month in what was described at "principles and best practices for employers that could be used to mitigate AI's potential harms to employees' well-being and maximize its potential benefits."

Unions and OSHA Participation

On Monday, the OSHA issued its final “walkaround” rule. The rule allows an employee or union representative to accompany OSHA inspectors during safety inspections or facility walkarounds, regardless of whether the representative is an employee of the employer.

The new rule is scheduled to take effect on May 31, 2024.

OR Paid Leave Law Changes

Paid Leave Oregon (PLO) has been on the books since 2019 as a family and medical leave insurance program to provide employees compensated time off from work to care for and bond with a new child, provide care for a family member who has a serious health condition, or recover from the employee’s own serious health condition.; however, changes are coming on July 1^st.

After July 1, 2024, neither leave for baby bonding nor, with two exceptions, leave for a serious health condition is an Oregon’s Family Leave Act (OFLA)-qualifying absence. Then, employees on PLO leave may use any employer-offered paid leave accruals to supplement PLO benefits up to the employees’ full wage. Employers will retain discretion over whether to allow employees to use additional paid leave exceeding their full wage replacement.

The new law also confirms that OFLA and PLO will not run concurrently.

EEOC Pregnant Worker Rule Challenged

A group of 17 Republican state attorneys general filed suit against the EEOC yesterday over the agency's recently-finalized Pregnant Workers Fairness Act regulations, saying the EEOC's stance that the PWFA encompasses abortion-related workplace accommodations is unconstitutional. 

DOL Releases Overtime, Fiduciary Rules

The US DOL announced two final rules — one that is expected to make millions more workers eligible for overtime pay, and another that tightens controls over retirement plan advisers.

The new OT rule raises the salary threshold — now $35,568 — to make roughly 4 million more workers eligible for time-and-a-half wages when they work more than 40 hours in a week. Under the change, workers who earn less than $43,888 as of July 1, and $58,656 on Jan. 1, 2025, will automatically qualify. The FLSA exempts workers from overtime requirements if they are salaried, earn less than a certain amount annually, and work in a “bona fide executive, administrative, or professional capacity.”

The second rule, released by the Employee Benefits Security Administration after months of pushback from the finance sector, will expand strict fiduciary standards of conduct to cover more retirement plan advisers. The standards require financial advisers to put their clients’ interests above all else, threatening the hefty commissions many earn for selling specific investments to clients. The new rule could equip regulators with more power to oversee advisers. It’s set to take effect 150 days after its April 25 publication in the Federal Register.

FTC Bans Noncompetes – But Hold On

The FTC voted 3-2 to adopt a near-total ban on noncompete provisions that bar workers from switching jobs within an industry. New noncompetes for senior executives would be prohibited, existing noncompetes for executives who earn more than $151,164 a year in a “policy-making position” can remain in place, and existing agreements for lower-level workers would become unenforceable after the rule takes effect in six months. The rule wouldn’t cover employees of not-for-profit entities or franchises.

Business groups say the ban is overly broad and limits companies’ ability to protect confidential data. The rule is supposed to go into effect 120 days after publication in the Federal Register. But, there are already lawsuits filed to bock the Rule. Ryan LLC, a tax services firm, filed a lawsuit in Texas federal court seeking to invalidate the rule. Business groups led by the US Chamber of Commerce also sued to block the proposed final rule from taking effect.

There undoubtedly will be other legal challenges to implementation of the rule, but they won’t automatically stop the rule from taking effect. Rather, the 120-day compliance clock will keep ticking unless and until a court issues an injunction staying the rule’s effectiveness pending judicial review. Such an injunction is virtually certain, and it’s unlikely that the proposed final rule will go into effect anytime soon, if ever.

New NYC Bill of Rights Poster

By July 1^st, New York City employers must post and distribute a new “Know Your Rights at Work” notice created by the New York City Department of Consumer and Worker Protection (DCWP). In actuality, it is a QR code that links to the City’s Workers’ Bill of Rights webpage. The DCWP can assess steep penalties for failing to comply.

Highlights:

• post the notice in a conspicuous area in the workplace;
• give each current employee a copy of the notice either electronically or by hard copy;
• provide all new employees with a copy of the notice on or before their first day of work; and
• make the notice available to employees “online or on its mobile application … if such means are regularly used to communicate with [ ] employees.”

NY Prenatal Leave

NY now allows for paid leave for pregnant employees to attend doctor's appointments. Such employees now receive 20 hours in addition to existing sick leave.

Earned Wage Access in KS

Effective Juy 1^st, Kansas will join Missouri, Nevada, and Wisconsin in regulating earned wage access (which allows consumers (defined as KS residents) to access proceeds, or their earned but unpaid income, before their regularly scheduled payday).

From the IRS on ERC Issues:

7 suspicious signs an ERC claim could be incorrect

Here are some of the common red flags being seen on ERC claims that the IRS is focusing on:

• Too many quarters being claimed. Some promoters have urged employers to claim the ERC for all quarters that the credit was available. Qualifying for all quarters is uncommon, and this could be a sign of an incorrect claim. Employers should carefully review their eligibility for each quarter.
• Government orders that don’t qualify. Some promoters have told employers they can claim the ERC if any government order was in place in their area, even if their operations weren’t affected or if they chose to suspend their business operations voluntarily. This is false. To claim the ERC under government order rules:
  • Government orders must have been in effect and the employer’s operations must have been fully or partially suspended by the government order during the period for which they’re claiming the credit.
  • The government order must be due to the COVID-19 pandemic.
  • The order must be a government order, not guidance, a recommendation or a statement.

Some promoters suggest that an employer qualifies based on communications from the Occupational Safety and Health Administration (OSHA). This is generally not true. See the ERC FAQ about OSHA communications and the 2023 legal memo on OSHA communications for details and examples.

The frequently asked questions about ERC – Qualifying Government Orders section of IRS.gov has helpful examples. Employers should make sure they have documentation of the government order related to COVID-19 and how and when it suspended their operations. Employers should avoid a promoter that supplies a generic narrative about a government order.
 

• Too many employees and wrong calculations. Employers should be cautious about claiming the ERC for all wages paid to every employee on their payroll. The law changed throughout 2020 and 2021. There are dollar limits and varying credit amounts, and employers need to meet certain rules for wages to be considered qualified wages, depending on the tax period. The IRS urges employers to carefully review all calculations and to avoid overclaiming the credit, which can happen if an employer erroneously uses the same credit amount across multiple tax periods for each employee. For details about credit amounts, see the Employee Retention Credit - 2020 vs 2021 Comparison Chart.
   
• Business citing supply chain issues. Qualifying for ERC based on a supply chain disruption is very uncommon. A supply chain disruption by itself doesn’t qualify an employer for ERC. An employer needs to ensure that their supplier’s government order meets the requirements. Employers should carefully review the rules on supply chain issues and examples in the 2023 legal memo on supply chain disruptions.
   
• Business claiming ERC for too much of a tax period. It's possible, but uncommon, for an employer to qualify for ERC for the entire calendar quarter if their business operations were fully or partially suspended due to a government order during a portion of a calendar quarter. A business in this situation can claim ERC only for wages paid during the suspension period, not the whole quarter. Businesses should check their claim for overstated qualifying wages and should keep payroll records that support their claim.
   
• Business didn’t pay wages or didn’t exist during eligibility period. Employers can only claim ERC for tax periods when they paid wages to employees. Some taxpayers claimed the ERC but records available to the IRS show they didn’t have any employees. Others have claimed ERC for tax periods before they even had an employer identification number with the IRS, meaning the business didn’t exist during the eligibility period. The IRS has started disallowing these claims, and more work continues in this area as well as other aspects of ERC.
   
• Promoter says there’s nothing to lose. Businesses should be on high alert with any ERC promoter who urged them to claim ERC because they “have nothing to lose.” Businesses that incorrectly claim the ERC risk repayment requirements, penalties, interest, audit and potential expenses of hiring someone to help resolve the incorrect claim, amend previous returns or represent them in an audit.

Resolving incorrect ERC claims

Businesses that are not eligible for ERC but have received it – as a check that’s been cashed ordeposited, or in the form of a credit applied to a tax period – may be able to participate in the IRS’s ERC Voluntary Disclosure Program. The special program runs through March 22, 2024, and allows eligible participants to repay their incorrect ERC, minus 20%.

If a taxpayer’s ERC is incorrect and is paid after Dec. 21, 2023, they aren’t eligible for the ERC VDP. They should not cash or deposit their check. They can withdraw the claim, return the check and avoid penalties and interest.

The withdrawal option lets certain employers withdraw their ERC submission and avoid future repayment, interest and penalties. Businesses can use this option if they haven’t received the payment, or they've received a check but haven’t deposited or cashed it. If a taxpayer’s withdrawal request is accepted, the IRS will treat the claim as though it was never filed.