e-Alert: HRK Monthly Roundup – August 2021

HR, Benefits, and Payroll Compliance Monthly Roundup

Federal

DOL Proposes Rule to Increase Wages for Federal Contractors
The U.S. Department of Labor (DOL) proposed a rule that responds to President Biden’s executive order from April 2021. The rule will increase the minimum wage for federally contracted employees to $15 per hour starting January 30, 2022. Additionally, tipped federally contracted employees will have their wages increased to $10.50 per hour.

President Biden Issues Executive Order
On July 9, 2021, President Biden issued the Executive Order on Promoting Competition in the American Economy. It is important to note that under this executive order, noncompete agreements are currently not illegal.

Biden is challenging the Federal Trade Commission (FTC) to explore their options to either heavily limit the use of or ban the use of noncompete agreements.

President Biden’s order established the White House Competition Council to coordinator the White House response to anticompetitive behavior. Unlike other challenges the FTC has faced on this topic in prior years, the birth of the White House Competition Council gives them a new level of accountability to live up to. The Council will be promoting a set of initiatives that will align with Biden’s campaign promises. Details on these initiatives are still to come.

The following are additional issues that will be addressed by the order:

• Prescription drug prices
• Internet billing and termination practices
• Airline refunds and cost comparison practices
• Facilitating the mobility of banking transaction data
• Increasing opportunities for small businesses by directing all federal agencies to promote greater competition through their procurement and spending decisions

There are two large issues that come with this order. One is substantial constitutional issue. Some are stating that the order is an overstatement of executive authority and believe that it breaches the basis of the legislature. The second is the amount of federalism and state rights that will need to be revised if the FTC comes back with the resolution to heavily limit or ban the use of noncompete agreements. President Biden is adamant that he will continue to work with the FTC and other applicable agencies to find a common ground resolution that will make a positive impact on our economy.

EEOC Extends Deadline for Filing 2019 & 2020 EEO-1 Data Collection
On August 19, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) announced employers will now have extra time to submit their 2019 and 2020 EEo-1 workforce data.

Under Title VII of the Civil Rights Act, the EEO-1 is usually due by March 31 of each year. Because of the coronavirus pandemic, however, EEO-1 reporting was delayed numerous times, with the EEOC portal officially opening on April 26, 2021. Recognizing the continued impact the pandemic has had on business operations. The EEOC has extended the submission deadline a third time. The new filing deadline is now Monday, October 23, 2021.

If you are interested in outsourcing the preparation and submission of your company’s EEO-1 data, please email us.

DOL Updates Model Employer CHIP Notice
Children’s Health Insurance Program (CHIP) offers health coverage to families who do not qualify for Medicaid. The Department of Labor has released a notice that provides all relevant information around CHIP. Affected employers are those who operate in a state that offers the CHIP benefit. These employers are mandated to provide this notice to their employees annually.

Arizona

Arizona Amends Anti-Discrimination Law to Prohibit Pregnancy Discrimination
Effective August 27, 2021, Arizona’s discrimination law will be amended to include pregnancy as a protected class. This includes women who are pregnant, have given birth, or are suffering from a pregnancy-related medical condition.

California

California Issues Vaccine Mandate
California has mandated that state and healthcare workers must be vaccinated against the COVID-19 virus. Individuals must prove they are vaccinated, or they will be required to undergo COVID-19 testing on a regular basis. The mandate covers both paid employees as well as volunteer workers. All employers must comply by September 30, 2021.

Individuals seeking a medical diagnosis or religious exemption must provide a formal refusal in writing with supporting evidence to their claim. Those looking for a medical exemption must have their formal refusal signed by a licensed physician.

Connecticut

Connecticut Law Prohibits Employers from Inquiring About Applicant’s Age or Graduation Date

Connecticut has expanded its fair employment law to encompass additional segment of discrimination. This new law, which applies to employers with three or more employees, takes effect on October 1, 2021. To read our full summary, see our e-Alert: New Connecticut Law bans Inquiries about Applicants’ Age or Graduation Date.

Connecticut Legalizes Recreational Marijuana, Including Employment Related Protections

The Responsible and Equitable Regulation of Adult-Use Cannabis Act will take effect on October 1, 2021. The Act legalizes recreational marijuana and outlines the impact on employers. To read our full summary, see our e-Alert: Connecticut Legalizes Recreational Marijuana, Including Employment-Related Protections.

Connecticut Amends Lactation Accommodation Law

Effective October 1, 2021, employers will have additional responsibilities to support lactating and nursing mothers in their workforce. To read our full summary, see our e-Alert: Connecticut Amends Location Accommodation Law.

Connecticut Places New Recall and Retention Obligations on Certain Businesses in the Hospitality Industry

Connecticut signed a new law that went into effect immediately, called An Act Requiring Employers to Recall Certain Laid-Off Workers in Order of Seniority. The Act provides specific mandates for businesses in the hospitality industry to recall their laid-off employees by seniority so long as the employee is qualified for the available position.

Hotels, lodging houses, food service contractors, and building services enterprises are covered under the Act. A laid-off employee must meet both of the following criteria:

1. Employee for six out of 12 months prior to March 10, 2020.
2. Layoff was activated between March 10, 2020, and May 1, 2022, and the reason for their layoff was due to lack of business, reduction in force, or furlough because of the COVID-19 pandemic.

Businesses must provide written notice to qualified employees within five days of posting the open position. Written notice is deemed sufficient when sent via mail, email, or text message. If the laid-off employee is not qualified for the open position, the employer must provide written documentation to the employee with their reasoning.

The Act comes with robust employee protections. Employers are prohibited from retaliating against employees who exercise their rights under this act.

Connecticut Creates New Cybersecurity Framework Affirmative Defense to Data Security Breach Claims
Effective October 1, 2021, businesses that maintain, access, or communicate data will no longer be held liable for data breaches if they comply with a combination of one or more of the following safeguards:

• The Framework for Improving Critical Infrastructure Substitute House Bill No. 6607 Public Act No. 21-119 4 of 6 Cybersecurity, published by the National Institute of Standards and Technology;
• The National Institute of Standards and Technology’s special publication 800-171;
• The National Institute of Standards and Technology’s special publications 800-53 and 800-53a;
• The Federal Risk and Management Program’s “FedRAMP Security Assessment Framework“;
• The Center for Internet Security’s “Center for Internet Security Critical Security Controls for Effective Cyber Defense“; or
• The “ISO/IEC 27000-series” information security standards published by the International Organization for Standardization and the International Electrotechnical Commission.

If any of the above safeguards are amended, businesses have six months to adjust their practices to comply with the updates.

Connecticut Creates Exception for Harassment Training Requirement
Effective October 1, 2021, Connecticut’s sexual harassment training requirements will be amended. Employers must provide mandatory sexual harassment to their employees within six months of their hire date. The amendment states that if an employee received compliance training from another employer within the past two years, they are not required to go through the training again.

The amendment also extends that statute of limitations from 180 to 300 days to file a complaint of sexual harassment against the offender. This only takes effect for alleged offenses that occur on or after the effective date of October 1, 2021.

Delaware

• $9.25 per hour until January 1, 2022
• $10.50 per hour on January 1, 2022
• $11.75 per hour on January 1, 2023
• $13.25 per hour on January 1, 2024
• $15.00 per hour on January 1, 2025

Washington, D.C.

District of Columbia Extends Emergency COVID-19 Measure
Washington, D.C. extends all provisions of the Coronavirus Support Congressional Review Emergency Amendment Act of 2020. The Act was originally implemented to help both employees and businesses through the economic impact of COVID-19. The Act is being extended 90 days past the original expiration date of June 15, 2021.

1. The employee has a good-faith objection that the vaccination would violate their sincerely held religious beliefs.
2. The employee has obtained and submitted a certification from a licensed health professional that the vaccination is medically inadvisable due to their medical condition.
3. The employee agrees to be tested weekly for COVID-19.

Illinois

• A copy of the EEO-1 filed with the EEOC
• A list of all employees working over the past calendar year, separated by gender, race, and ethnicity
• The county in which the employee works
• The date the employee started with the business
• Any additional information deemed necessary to determine if pay equity exists
• An equal pay compliance statement signed by an authorized agent of the business

Iowa

• “Safety-sensitive positions” are defined as those where an accident could cause loss of life, critical bodily injury, substantial property damage, or substantial environmental damage. Supervisory roles for such positions are also included within the definition of “safety-sensitive positions.”

Kentucky

Louisville, Kentucky, Amends Antidiscrimination Ordinance
The antidiscrimination ordinance in Louisville, Kentucky, has been amended to clarify the following:

• Unwanted touching, including the touching of someone’s hair, is considered discrimination.
• The term “National Origin” is defined as the individual’s birth country, or where the individual’s ancestors are from.
• The term “protective hairstyles” includes natural texture; color of hair; and hairstyles including, but not limited to, braids, locs, twists, and coverings.

Louisiana

Louisiana Amends Law on Pregnancy Leave and Adopts New Pregnancy Accommodation Requirement
Prior to December 1, 2021, employers must provide a written notice informing their workforce of the revised pregnancy leave law. The following provisions have been added to the law:

• Pregnancy-related medical conditions do not need further explanation to qualify as a disability.
• Reasonable amount of time off due to pregnancy is set at a minimum of six weeks unless otherwise stated by a doctor. This time can be supplemented by any accrued leave but cannot surpass four months.
• Employers are prohibited from refusing to make reasonable accommodations for pregnant employees. The only exception to this is when the accommodation presents undue hardship on the employer. The law references and aligns with the Americans with Disabilities Act for a list of reasonable accommodations and exceptions of undue hardship.
• Employers are prohibited from denying employment opportunities to employees or applicants who are pregnant or have a pregnancy-related medical condition.
• Employers cannot force an employee or applicant to accept an accommodation if it does not pertain to the employee or applicant’s essential job functions and/or the employee or applicant does not request the accommodation.
• Employers cannot mandate leave for an employee in place of a reasonable accommodation.
• Employers are prohibited from taking adverse action against employees who are pregnant or have a pregnancy-related medical condition.
• The law has removed the provision that prohibited employers from moving pregnant employees into a less strenuous or less hazardous position should the employee request such an accommodation.

Louisiana Law Addresses Income Taxation of Mobile Workers
Louisiana revised its income tax laws to account for the growing number of remote workers in the state. The law allows a nonresident individual to do business within the State of Louisiana for 25 days before they are subject to state income tax.

Employers do not need to withhold income tax until the individual has surpassed this time frame. If the individual works past 25 days, the employer is required to withhold state income tax in retro to the first day the individual performed work within the state.

Employers will not be held accountable for failure to withhold income tax if one of the following scenarios applies:

• When the employer relies on data retained from a time and attendance system designed to allocate employee wages for income tax purposes across all taxing jurisdictions.
• When the employer does not maintain a time and attendance system but relies on either regularly maintained records of the employee’s location or the employee’s control of the time they are expected to spend performing duties in the state. This provision is operating under the assumption that the employer did not conspire with the employee to commit income tax fraud.

Positions that are exempt from this law include professional athletes, staff members of professional athletic teams, professional entertainers, public figures, or qualified production employees.

Maine

• Asking or attempting to ask for information directly or indirectly pertaining to gender identity or familial status,
• Making or keeping record of gender identity or familial status,
• Using any form of application with questions directly or indirectly pertaining to gender identity or familial status,
• Printing or publishing any notice or advertisement relating to employment indicating employer preference based on gender identity or familial status, or
• Establishing a policy that prevents employment opportunities of any group because of gender identity or familial status.

Minnesota

• Use leave due to lost work hours when workplace closes due to public health reasons
• Use leave for pre-existing medical condition or health conditions as well as preventative care and reasons related to domestic abuse, sexual assault, or stalking.

• Law applies to employers with 15 or more employees
• Eligibility requirements such as tenure and hours worked within one year no longer apply

Missouri

• Seeking legal assistance
• Safety Planning
• Mental Health services including counseling
• Obtaining service from victim services organization
• Seeking medical and/or psychological attention

Nevada

Nevada Amends Provisions on Child Support Withholding from Lump Sum Payments
This state has amended its provisions on, withholding income for child support payments. If an employer receives a notice from an obligor-employee with a request for withholding of a lump sum payment over $150, the enforcing authority must be notified via a form supplied by the Division of Welfare and Supportive Services. Lump Sum payments cover the following:

• One-time or irregular payments
• Certain types of bonuses, profit sharing, termination pay, severance pay, awards, and relocation payments

The enforcing authority will then provide the employer with written notice from the division office with the exact amount to be withheld and delivered to the enforcing authority by mail or electronically.

The employer cannot release the lump sum payment prior to the date listed on the form. Courts are permitted to impose penalties on employers that fail to withhold payments.

New Jersey

New Jersey Temporarily Expands Summer Work Hours for Minors
New Jersey minors between 16 and 18 years of age may now, until September 6, 2021, work up to 50 hours per week if they have written permission from a parent or legal guardian and possess an employment certificate. This temporary amendment expires on September 6, 2021.

Generally, minors may not work more than 40 hours per week, 8 hours per day, more than 6 days in a row, or before 6am or after 11pm. The rate of pay is at the employer’s discretion, except in food service where the minimum wage applies. some work, such as operating machinery, is prohibited.

New Jersey Passes Package of Bills Aimed at Employee Misclassification
Governor Phil Murphy signed a package of bills that expands the power of the Department of Labor and Workforce Development (DOLWD) to enforce state wage, benefit, and tax laws, and enhances penalties for employers that misclassify their workers as independent contractors.

Bill A-5890/S3920 – effective immediately:

• This law empowers the labor commissioners to seek a superior court injunction to prevent ongoing violations of state wage, benefit, and tax laws.
• If the court injunction is successful, the commissioner would be entitled to collect attorney’s fees and litigation costs as a prevailing party.
• This new law gives all the power to the commissioner, giving that individual the discretion to choose to bypass the Office of Administrative Law (AOL) by going straight to court.
• From an employer standpoint, an injunction in court provides limited time to prepare. The hearing could result in immediate or temporary suspension of Company operations until the Company has transitioned its business operations from an independent contractor to an employment-based model.
• The commissioner is also allowed to issue a stop-work order for one or more worksites, or across all employers’ worksites, when an employer commits a violation of a state wage, benefit, or tax law.
• The stop-work orders can remain in effect until the commissioner finds the employer has come into compliance and paid any penalties that may have arisen.
• Employees that are impacted by a stop-work order are entitled to be paid for the first 10 days of work lost because of the stop-work order. If an employer does not pay the worker the requested wages, the commissioner can take the legal action necessary to collect the wages.

Bill A-5891/S3921

• This bill creates the “Office of Strategic Enforcement and Compliance” within the DOLWD. This group will oversee and coordinate across the divisions of the department and enforce state wage, benefit, and tax laws.

Bill A-5892/S3922

• This bill makes misclassifying employees a violation against the New Jersey Insurance Fraud Prevention Act (NJIFPA) if the employer is trying to avoid paying insurance premiums.
• Under the NJIFPA, the commissioner of the Department of Banking and Insurance may either:
  • Bring a civil action or
  • Levy a civil administrative penalty and order restitution if the commissioner determines that a person has committed insurance fraud.
• This bill allows the Bureau of Fraud Deterrence and the insurance fraud prosecutor to consult with the DOLWD to assist with their investigation for failure to properly classify employees.
• Penalties for fraud involving misclassification are:
  • $5,000 for the first violation
  • $10,000 for the second violation
  • $15,000 for each subsequent violation

New York

NY DOL Publishes its Airborne Infectious Disease Exposure Prevention Plan in Accordance with the NY HERO Act
The State of New York has created amendments to the recently passed Health and Essential Rights Act (HERO) requiring employers to publish a model airborne infectious disease exposure plan in the workplace. To read our full summary, see our e-Alert: New York Amends Hero Act – Adds Timeline for Infectious Disease Prevention Plans.

New Hampshire

New Hampshire Adopts Voluntary Granite State Paid Family Leave Plan
New Hampshire announced the Granite State Paid Family Leave Plan, the state’s new paid family medical leave program, anticipated to take effect on January 1, 2023. To read our full summary, see our e-Alert: New Hampshire Passes Paid Family and Medical Leave.

New Hampshire Passes Law on Government Vaccine Mandates

The law prohibits state and local government entities from mandating immunizations. However, this law does not supersede vaccination requirements for admission to places such as schools, hospitals, and nursing homes or wherever a direct threat of transmission exists.

New Hampshire Adopts New Tipped Employee Wage Rate

The base rate for tipped employees has been increased to $3.26 per hour. State law allows employers to pay less than the minimum wage, as it is assumed that tipped employees will make up for the remaining wages in tips. If the combination of the two wage types are not equal to the minimum wage, employers must subsidize the gap. Any regular duties performed, defined as nontipped work must be paid out at minimum wage.

Tipped employees are individuals working hospitality or restaurant settings who traditionally receive more than $30 in tips per month directly from patrons.

North Carolina

North Carolina Amends Wage Payment Requirements
The wage payment provisions have been updated to include employee final separation pay and wage notification requirements.

Terminated employees must receive final pay on the date of separation or prior to the next payday. The amendment clarifies that employers may give terminated employees the option to deliver final pay through traditional pay channels or by mail if a written request is received.

Employers must notify new hires of promised wages in addition to the day and place of payment at the time of hire. Employers are prohibited from providing verbal notice and need to notify employees of any promised wage changes at least one pay period in advance of the change.

Raleigh, North Carolina, Passes Ordinance Prohibiting Discrimination Based on Certain Hair Texture or Hairstyles

Employment discrimination in Raleigh, North Carolina, has been amended to expand their protected classes to include age, disability, sex, religion, race, color, sexual origination, gender identity or expression, familial or marital status, economic status, veteran status, or national origin. Discrimination against any of these protected classes is strictly prohibited.

The amendment clarifies that discrimination based on race or origin includes hair texture or hairstyle associated with a protected class, including, but not limited to , braids, twists, locs, cornrows, tight coils or curls, Bantu knots, and afros.

North Dakota

North Dakota Preempts Local Paid Family Leave Laws
Political subdivisions are now prohibited under state law from enacting or enforcing employer mandates if they exceed federal and state law requirements. This law does not include public employers, only an employee that does business in the state. Paid family leave refers to benefits that allow employees to take time off due to pregnancy or caring for a family member.

Oregon

Oregon Amends Predictive Scheduling Law
Employees are now able to identify any limitations or changes in scheduling availability and can request not to be scheduled for certain work shifts or work locations. The amendment allows employees to identify childcare as a reason for scheduling adjustments.

This applies to employers in the retail, hospitality, and food services industries with over 500 employees.

Oregon Amends “Addressing COVID-19 Workplace Risks” Final Rule
The Oregon Occupational Safety and Health Administration (OR-OSHA) has amended a final rule regarding safety mandates such as physical distancing and mask wearing in the workplace. Employers no longer need to require employees to physically distance or wear masks except in a public transit or healthcare environment. In addition, employers no longer need to supply masks, but must allow employees to wear a mask if they choose to do so.

The “It’s the Law” poster must be posted in a central area visible to employees and signs must be posted in areas where employers may require masks or facial coverings.

Veterinary clinics, transit agencies, and emergency medical service providers must abide by industry-specific requirements, all others are exempt.

Oregon Delays Implementation of Paid Family and Medical Leave
The Paid Family and Medical Leave (PFML) program launch date has been delayed due to the impact of the pandemic on the agency administering unemployment benefits. Employer and employee contributions will start on January 1, 2023; benefit payments on September 3, 2023; and employer grants on June 30, 2023.

Employees who take a family, medical, or safety-related leave will be provided cash benefits through the PFML. Employers with over 25 employees will contribute 40% while employees contribute 60%.

Pennsylvania

• It does not contain one-week grace period to use leave once the emergency ends
• It includes employee and/or family member’s need to obtain vaccine or vaccine booster
• The designation “COVID-19” references the virus and any of its variants

• Have been employed more than 90 days
• Worked in Pittsburgh after July 29, 2021
• Normally work in Pittsburgh, but now work remotely due to the pandemic
• Work in multiple locations if 51% or more of the employee’s time is spent in Pittsburgh

This leave is in addition to other leaves and can be used immediately upon hire. Discrimination or retaliation for using leave is prohibited.

Pennsylvania Repeals Salary Threshold Increase for Overtime Exemptions

The General Assembly repealed an overtime rule that increased the minimum salary threshold for exempt executive, administrative, and professional (EAP) employees to $780 per week in 2021 and $875 per week in 2022. For employers to qualify for exemptions to paying out overtime, EAP employees must also meet minimum job duty requirements as well as any other term or condition stated in the exemption.

Employers are no longer required to review or adjust salary levels of qualified EAP employees who meet the exception thresholds. The minimum salary requirement of $684 per week will remain in place.

Pennsylvania Repeals Rule Increasing Salary Threshold for White Collar Exemption and Restores State Law Exemptions to 1968 FLSA Standards

During recent budget negotiations, the state repealed the minimum salary threshold rule for executive, administrative, and professional (EAP) employees to qualify as exempt under the minimum wage act.

Threshold increases were originally approved and started at $684 on October 3, 2020, were set to increase to $875 by 2022, and would increase 10% every three years thereafter.

The repeal restores regulations for qualifying an EAP employee to pre-2020 iterations in alignment with FLSA statutes. Exemptions are again subject to the following standards:

• Executive salaried employees earning more than $150 weekly whose primary duty consists of enterprise management and who oversee the work of at least two employees
• Administrative salaried employees earning more than $150 weekly if their primary duties consist of nonmanual work related to business policies or operations and they supervise at least two employees
• Professional salaried employees earning more than $150 weekly if their primary duties require specific advanced knowledge in a field of science or learning – and their duties also require consistent exercise in judgment, invention, imagination, or recognized artistic endeavor

Rhode Island

Rhode Island Expands Temporary Caregiver Benefits

Effective January 1, 2022, Rhode Island will extend its temporary Caregiver Insurance from four weeks to five weeks. The benefit will be further extended to cover six weeks the following year, January 1, 2023. To read our full summary, see our e-Alert: Rhode Island Expands Temporary Caregiver Benefits.

Rhode Island Passes Gender Inclusive Restroom Act

This Act requires places of public accommodation to designate single-toilet restrooms for use by any gender by January 1, 2023. The restroom must be available for use by no more than one occupant unless it is a family or assisted use facility.

Rhode Island Expands Protections Under Whistleblowers Protection Act
The amended law prohibits employers from reporting or threatening to report an employee’s or prospective employee’s immigration status because they engaged in whistleblowing or any protected conduct.

Covered individuals include, but not limited to, job applicants and at-will, contract, and independent contractor employees.

Employers are required to post a notice of rights that all employees can easily access in all languages known throughout the workplace.

Washington

Washington Issues Vaccine Mandate

Washington issued Proclamation 21-14, which mandates COVID-19 vaccines for state workers and healthcare employees. Employers have until October 18, 2021, to have all applicable employees vaccinated. If individuals do not get vaccinated by this date, they will be dismissed from their position.

Individuals seeking a medical exemption must provide written request for an accommodation with supporting documentation from their healthcare practitioner. Individuals seeking a religious accommodation must provide a written statement on how the requirement conflicts with their religious practices and beliefs.

Washington Adopts Emergency Rule on COVID-19 and Compliance with Conditions for Operations

This new rule expiring November 3, 2021, prohibits employees from performing duties when business activity is suspended due to an emergency proclamation. Employers must comply with the proclamation amendments and conditions including reopening and industry-specific requirements to legally operate.

New Seattle Ordinance Establishes Labor Standards Requirements for Independent Contractors
This ordinance establishes guidelines for Hiring Entities that contract with Independent Contractors including workers who use online-enabled applications to connect with customers.

Covered independent contractors include:

• Individuals who work solely or partially in the city where the hiring entity knows the work is performed
• Individuals who perform services for the hiring entity’s business or commercial activity
• Total compensation for these services is over $600 per calendar year.

Employers are required to post a notice or provide independent contractors access to a notice that includes pre-contract, timing and, payment, notice of rights, recordkeeping, and retaliation and enforcement disclosures.

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