California:
CA Will Not Allow Employer Vacation Mandate for PFL
Effective January 1, 2025, AB 2123 will end an employers’ ability to require employees to use up to two weeks of company-provided vacation before they start receiving paid family leave (PFL) insurance benefits paid by the state (or their employer, if the company has an approved voluntary plan that applies in lieu of the state program).
CA Restricts Employer Requests for DL
Effective January 2025, California’s Fair Employment & Housing Act (FEHA) will prohibit employers from stating in a job advertisement, posting, application, or other material that an applicant must have a driver’s license unless the employer “reasonably” anticipates driving to be an essential job function that cannot be comparably performed by alternative means. The stated purpose of the new FEHA amendment is to help facilitate employment for non-drivers who rely on ride hails, public transportation, biking, and walking as their primary means of transportation.
CA Adds Freelance Law
Gov. Newsome recently signed into law Senate Bill (SB) 988, (the Freelance Worker Protection Act) which imposes minimum requirements relating to contracts between a hiring party and a freelance worker.
Under the new law, “freelance worker” is defined as a person or organization composed of no more than one person, whether or not incorporated or employing a trade name, that is hired or retained as a bona fide independent contractor by the hiring party to provide professional services in exchange for an amount equal to or greater than $250. The Act only applies to freelance-style services listed in California Labor Code Section 2778(b)(2).
Like NY and IL, the CA law requires a written agreement between a hiring party and a freelance worker.
CA Civil Rights Agency To Collaborate
As of January 1, 2025, newly signed into law Senate Bill (SB) 1340 mandates the Civil Rights Department collaborate with local agencies to prevent and eliminate unlawful practices. This law also gives local agencies more authority to handle discrimination complaints. It provides that any political subdivision of the state may enact and enforce anti-discrimination laws that are at least as protective as state law. But, local enforcement may take place only after the Civil Rights Department issues a right-to-sue notice; however, the statute of limitations provided in the right-to-sue notice is extended during any local enforcement, without prohibiting the potential plaintiff from filing during local enforcement.
CA Also Updates “Race” Definition
On September 26, 2024, Gov. Newsom signed Assembly Bill (AB) 1815 (a version of a CROWN Act), which amends the definition of “race” and the definition of “protective hairstyles.”
Under the amendments, race is “inclusive of traits associated with race, including but not limited to hair texture and protective hairstyles.” “Protective hairstyles” “include but are not limited to such hairstyles as braids, locs, and twists.”
CA Intersectionality
On September 27, 2024, CA Gov Newsom signed Senate Bill (SB) 1137 into law, clarifying that discrimination can occur based on an intersection or combination of protected characteristics. Specifically, SB 1137 amended the Unruh Civil Rights Act, the Education Code, and the Fair Employment and Housing Act (FEHA) to extend protection against discrimination by including the concept of "intersectionality".
CA Puts Limits on Fed Arbitration Law
The federal Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 ("EFAA") renders arbitration agreements unenforceable where a claimant claims sexual assault and/or sexual harassment. The California Court of Appeal recently held that the plain language of the EFAA exempts a plaintiff's entire case from arbitration where the plaintiff asserts at least one claim subject to the EFAA. See: Yongtong Liu v. Miniso Depot CA, Inc.
California Senate Bill 525
This week, Senate Bill 525 went into effect, requiring “covered health care facility” to meet certain minimum wage requirements.
Summary:
Connecticut:
CT Min Wage to Increase Again
CT Governor Lamont issued a press release on Friday indicating that the state minimum wage will increase from $15.69 per hour to $16.35 per hour effective January 1, 2025. CT’s minimum wage is tied to changes in the federal employment cost index, which increased by 4.2% over the 12 month period ending June 30, 2024.
Colorado:
CO Employers Beware
Workers who are injured in auto accidents while on the job can sue their employers' auto insurance carriers for underinsured motorist coverage, even if they have received workers' compensation benefits, Colorado's supreme court concluded, finding no state law precluded it.
CO POWR
In August, CO’s Protecting Opportunities and Workers' Rights Act ("POWR") went into effect. The law has several pieces, including changing the standards for harassment, limits non-disclosure agreement and record keeping requirements.
Highlights:
- Eliminates the “severe or pervasive” standard for harassment claims, lowering the standard for such claims in CO (conduct that is “subjectively offensive to the individual alleging harassment and is objectively offensive to a reasonable individual who is a member of the same protected class” will be considered harassment.)
- It is not a discriminatory practice for an employer to take an adverse employment action “if there is no reasonable accommodation that the employer can make with regard to the disability that would allow the individual to satisfy the essential functions of the job and the disability actually disqualifies the individual from the job.”
- Adds “marital status” as a protected class (employers cannot take any adverse action against an employee based on marital status)
- Adds multiple conditions an employer must meet to enter into a nondisclosure agreement with employees (voids nondisclosure agreements entered into after its effective date that “limit[] the ability of the employee or prospective employee to disclose . . . any alleged discriminatory or unfair employment practice” unless certain conditions are met)
- Record-keeping requirements for personnel and employment-related records maintain “any personnel or employment record” the employer made or received for at least five years and, with regard to complaints of discriminatory or unfair employment practices, to maintain those records in a designated repository.
Maryland:
MD Posts Q&A for Wage Transparency Act
The MD DOL issued FAQs for the new Wage Range Transparency Act, which took effect on October 1, 2024.
The law applies to remote jobs for companies headquartered elsewhere if the employer seeks workers based in Maryland. The FAQs can be found here: https://labor.maryland.gov/labor/wages/esswagerangefaq.shtml.
One clarification is that the Act applies to remote jobs within MD for companies located outside of MD, but does not apply to jobs that only occasionally require work in MD, such as attending a meeting or a conference in the State.
Then, pay ranges must be disclosed on a job-based basis and location. MD uses the example: with multiple locations or opportunities at different levels of seniority, employers must have a separate range of pay for each location or opportunity. If a job does on have a pay range, the employer must list the hourly or fixed rate and cannot post something like “$30+ an hour”.
Note that employers that do not handle their own job postings are still required to comply with the law.
Massachusetts:
MA PFMLA Does Not Require Benefits Accrual
In Bodge, et al. v. Commonwealth, et al., SJC-13567, slip op. (Sept. 13, 2024), the MA Supreme Judicial Court held that the Massachusetts Paid Family and Medical Leave Act (PFMLA) does not require an employer to allow employees to accrue benefits, such as vacation time and sick time, during PFMLA leave.
The court pointed to a section of the PFMLA which states, “An employee who has taken family or medical leave shall be restored to the employee’s previous position or to an equivalent position, with the same status, pay, employment benefits, length-of-service credit and seniority as of the date of leave.” The court interpreted this part of the statute to only require that an employee’s benefits remain unchanged, not increased or decreased, from when they begin leave to when they return from leave. Thus, an employee returning from PFMLA leave can continue to accrue benefits as if the employee never took the leave, but the employee does not have the right to continue accruing benefits during the leave.
MA Expands Sick Leave Use
Effective November 21st, MA employees will be permitted to use their sick time to "address the employee's own physical and mental health needs, and those of their spouse, if the employee or the employee's spouse experiences pregnancy loss or a failed assisted reproduction, adoption or surrogacy."
New Jersey:
NJ Again Raises Min Wage
On January 1, 2025, based on CPI data, the NJ minimum wage will increase by $0.36 to $15.49 per hour for most employees.
Summary of the increases:
- Most employers: increase from $15.13 to $15.49 per hour
- Tipped employees: increase from $5.26 with a $9.87 tip credit to $5.62 per hour with a $9.87 tip credit
- Seasonal and small employers (fewer than six employees): increase from $13.73 to $14.53 per hour
- Agricultural employees: increase from $12.81 to $12.81 per hour
- Long-term facility staff: increase from $18.13 to $18.49 per hour
New York:
NYC Going to the Dogs?
Two NYC Council members introduced a bill Wednesday that would let workers use sick leave to care for pets and service animals in effort to promote the health benefits of animal ownership.
Pennsylvania:
Then There Were 2
On October 4th, the plaintiff in the PA federal court case challenging the FTC’s noncompete rule has dismissed its lawsuit in light of the court’s refusal to issue an injunction blocking the rule. This leaves two lawsuits still pending in FL and TX federal courts. Note that the rule is currently enjoined nationwide based on the TX court’s order.
PA Bans Non-Competes for Certain Health Care Providers
The Fair Contracting for Health Care Practitioners Act applies to medical doctors, doctors of osteopathy, certified registered nurse practitioners and certified registered nurse anesthetists and physician assistants. The ban will apply to non-competes entered into on or after January 1, 2025.
Exceptions to law:
- Non-compete agreements that are no more than one year in length as long as the health care practitioner was not dismissed by the employer. The Act is silent on whether “for cause” dismissals by the employer will prevent the enforcement of an otherwise enforceable non-compete agreement.
- Non-compete agreements entered into by health care practitioners with an interest in a business entity shall not be rendered unenforceable as a result of the purchase, sale or transfer of control of the business entity, unless the health care practitioner is not a party to the sale, transfer or other disposition of the business entity.
Other requirements:
- Employers can recover reasonable expenses from a health care practitioner who leaves employment if (a) directly attributable to the health care practitioner and accrued within the three years prior to the separation, unless the employer dismissed the employee, (b) related to relocation, training and establishment of a patient base, and (c) amortized over a period of up to five years from the date of separation.
- Patients that have been with a practice for 2+ years must be notified of a practitioner’s departure within 90 if seen by such practitioner within the prior year.
Washington:
WA Min Wage to Increase in ‘25
WA’s state minimum wage is increasing to $16.66/hr on January 1, 2025. And, some WA cities will higher minimum wages:
All States:
ACA Affordability Amount Changed
On September 6, 2024, in the IRS’s Revenue Procedure 2024-35, it reported that the Affordable Care Act (ACA) affordability threshold is increased from 8.39% for 2024 to 9.02% for 2025. This may increase the cost at which a self-only coverage option must be available under a group health plan to avoid the possibility of a penalty on the employer.
SCOTUS To Take Up Straight Worker's Demotion Bias Suit
The new U.S. Supreme Court (SCOTUS ) term has begun and last Friday (after I sent out the Legal Alert), it announced that it will review a discrimination lawsuit by a former Ohio Department of Youth Services worker claiming she was denied a promotion and then demoted for being heterosexual while LGBTQ candidates were advanced.
Ames is challenging a legal standard used by five US appeals courts that “majority” Americans raising discrimination claims must demonstrate “background circumstances” in order to pursue their lawsuit. A plaintiff might meet that requirement, for instance, by providing statistical evidence documenting a pattern of discrimination against members of a majority group.
E-Verify+
No, it’s not a new streaming service!
USCIS, E-Verify+ is a service of E-Verify that streamlines employment eligibility verification by combining the Form I-9 and E-Verify into one seamless digital process.”
Highlights:
- After an employer makes a job offer and the employee accepts that offer, the employer will initiate a E-Verify+ case in E-Verify. This prompts the employee to share their personal information and documentation electronically with their employer using their secure E-Verify+ account. The employer will review the information provided, examine the employee’s Form I-9 documents, sign and retain the Form I-9.
- After an employee accepts a job offer, they will receive a unique link to the E-Verify+ case created by their employer. The employee will then log in or create an E-Verify+ account and enter their biographic information, citizenship or immigration status, and acceptable document(s). Once the employee submits that information, E-Verify will confirm the employee’s identity and employment eligibility and notify the employer. The employer will finish the verification by examining the documents and retaining the Form I-9.
- E-Verify+ allows employees to save their information in their E-Verify+ account to be used for future E-Verify+ participating employers. Once they receive their unique reference code from a new employer, the employee can simply update their information if necessary and complete the E-Verify+ process with their new employer.
Note that right now, E-Verify+ is currently not available for E-Verify Employer Agents, Web Services or Federal Contractors with the Federal Acquisitions Regulation E-Verify Clause. And, Everify+ does not replace the Form I-9.
SCOTUS To Take Up FLSA Exemption Standard
On November 5, 2024, the Supreme Court has agreed to hear the case of E.M.D. Sales, Inc. v. Carrera.
The court will consider which standard of proof employers must satisfy to demonstrate that a FLSA exemption to its overtime and minimum wage requirements applies. Specifically, the court will resolve whether the standard is a
“preponderance of the evidence” or “clear and convincing evidence.”
E-Verify Records To Be Deposed Of
USCIS announced that employers using E-Verify have until January 5, 2025 to download and retain records for cases last updated on or before December 31, 2014. After this date, USCIS will permanently dispose of these records. For employers who enrolled in E-Verify in 2015 or later, this announcement has no effect until next year. However, for effected employers, this could be problematic if they do not download for such items as an audit or for switching from paper I-9s to an electronic system.
USCIS is required to do an annual disposal under the National Archives and Records Administration (NARA) records retention and disposal schedule (N1-566-08-7): records 10 years old or older must be disposed of to “reduce security and privacy risks associated with U.S. government retaining personally identifiable information.”
Voting Time Off Reminder
Early voting has begun in some states, so a friendly reminder that employees have the right to take time off to vote. While state laws vary, generally, laws allow employees a certain amount of time off to vote and may require employers to post a notice setting forth voting rights. However, employers may have the right set times when employees may take leave to vote (such as at the beginning or end of the workday) or deny voting leave if employees have sufficient time to vote outside of work hours.
OSHA Releases Top 10
While it may not be as fun as a Letterman list, OSHA released its top ten cited violations for 2024:
- Fall Protection (General Requirements)
- Hazard Communication
- Ladders
- Respiratory Protection
- Lockout/Tagout
- Powered Industrial Trucks
- Fall Protection (Training Requirements)
- Scaffolding
- Personal Protective and Lifesaving Equipment (Eye and Face Protection)
- Machine Guarding
This list should serve as a guideline to address certain areas in a safety policy.
NLRB GC Reiterates Position on Non-Competes
On October 7, Jennifer Abruzzo, General Counsel for the National Labor Relations Board (NLRB), issued a memorandum confirming her position that most post-employment noncompete agreements violate Section 7 of the National Labor Relations Act (NLRA). In the memorandum, Abruzzo urges the NLRB to take action to remedy the "harmful effects" of the use and application of non-competes and scrutinizes certain "stay-or-pay" provisions.
FTC Rule Fight Continues
The FTC filed a notice of appeal last Friday that it would seek Fifth Circuit intervention against a Texas federal judge's decision to block its ban on employment noncompete agreements.
EEOC Again Files Flury of FY-End Lawsuits
Although the EEOC has filed fewer lawsuits in FY 2024 vs. from FY 2023 (93 vs. 144), the agency again filed a large number of lawsuits just before the end of the FY (September 30th). This year, 50 lawsuits were filed in September, fewer than 67 filed in September of FY 2023, but still a large number.