Compliance Stuff

Minnesota Governor Tim Walz signed a bill significantly amending the Minnesota Human Rights Act (MHRA) on May 15, 2024. The MHRA, otherwise known as Minnesota’s anti-discrimination statute, already prohibited discrimination in employment on the basis of race, color, creed, religion, national origin, sex, gender identity, marital status, disability, status with regard to public assistance, sexual orientation, familial status, and age. The definitions of the protected classes covered by the MHRA were expanded , as were the remedies and enforcement capabilities of the Minnesota Department of Human Rights (MDHR), the state agency responsible for enforcing the statute. Definition and Breadth of Protected Classes Expanded Protected Classes Under MHRA – “One or More”: The amendments specifically prohibit an employer from discriminating against an individual because of one or more of the identified protected classes. Definition of “Disability” Expanded: The definition of disability was expand...

Does it seem like you are dealing with more mental health issues in your workforce? If so, you are not alone. Recent mental health claim statistics show an alarming increase in chronic illnesses since the pandemic. For adults between the ages of 35 and 44, mental illness diagnoses have increased from 48% in 2019 to 58% in 2023 , according to the American Psychological Association . In its most recent Strategic Enforcement Plan , the EEOC listed “workers with mental health related disabilities” as one of the categories of vulnerable workers on which they will focus their efforts to prevent harassment, retaliation and discrimination. With these types of issues on a dramatic rise, it is worth a reminder about an employer’s obligations under the ADA for mental health issues. What Does the ADA Require? As we know, the ADA requires employers to provide “reasonable accommodations” to a qualified employee with a disability. For a condition to meet the definition of a disability under the statu...

Washington is one of the latest states to implement legislation prohibiting employers from requiring employee attendance at meetings promoting the employer’s view on religious or political matters. Washington’s SB 5778 will become effective June 6, 2024 as the state joins several others who have passed similar legislation, including:   Connecticut Maine Minnesota New York Oregon New Jersey What is Bill SB 5778?  SB 5778 addresses a sensitive topic employees and employers may face in the workplace. According to the law, Freedom of Speech is a “foundational ideal that is core to the nation’s identity,” but when it encompasses topics such as politics and religion in the office, it is understandable that questions and concerns may be raised, by both employers and employees. To mitigate potentially hostile situations, SB 5778 asserts that employers may not do the following:  Force an employee to attend an employer-sponsored event with the employer, their representative, ...

  The Maine Department of Labro issued proposed rules for the state's Paid Family and Medical Leave Program, providing employers with initial clarification regarding covered employees, contribution amounts, substitution of private plans, and other facets of the law. Public comment period for the proposed rule closes on July 8, 2024. While the department’s proposed rules answer several critical questions, revisions to the proposal are expected following the public comment period. According to the PFML Benefits Authority (the fifteen-member committee tasked with advising the department on its rulemaking process), the department will issue revised rules this fall, after reviewing and addressing public comments submitted by the July 8 deadline. Further, the department likely will provide a second comment period after issuing revised rules. The PFML Benefits Authority next meets with the department for a public hearing on June 10, 2024. The department has not addressed concerns related ...

Chicago finalized the new Chicago Paid Leave and Paid Sick Leave Rules on May 1, 2024. Both the ordinance and the rules go into effect on July 1, 2024, and will require employers to annually provide up to 40 hours of Paid Leave and up to 40 hours of Paid Sick Leave to covered Chicago employees. Below, we highlight key provisions in the final rules that employers should keep in mind while updating their paid leave policies in anticipation of the July 1 compliance date. Definition of a benefit year The final rules define “benefit year” as the 12 consecutive-month period that an employer sets for an employee to receive Paid Leave and Paid Sick Leave benefits. Employers are permitted to set different dates for each employee (e.g., based on the anniversary date of employment) or synchronize all covered employees to have benefits granted at the same time (e.g., based on a calendar year or fiscal year). Employers who elect to synchronize the benefit year for all employees must ensure that ea...

While a traditional non-compete clause falls squarely in the “prohibits” category, the FTC also expressed concern regarding other agreements that may “function to prevent workers from seeking or accepting other work or starting a business after their employment ends.” As a result, employers should consider reviewing other employee agreements and prepare for the possibility that the FTC may attempt to bar those “functional non-compete” agreements in the future. For example, many employers reimburse employees’ tuition fees or training costs to encourage employees to seek further work-related education or training. In such cases, the employees are often required to remain employed for a certain period of time after they receive reimbursement. If they leave before that time period ends, employers reserve the right to deduct the cost or a percentage of the cost from the employee’s final paycheck.  In its commentary on the non-compete rule, the FTC found that some “training repayment agr...

California’s right-to-disconnect bill, which SHRM opposed, has been shelved. The legislation has been “held under suspense” by the California State Assembly Committee on Appropriations, meaning that the bill has effectively been defeated for the remainder of the 2023-2024 California legislative session. California Assembly Bill 2751 would have required employers to establish workplace policies that provide employees with the right to disconnect from communications from the employer during nonworking hours, said Chris Micheli, a founding partner of Snodgrass & Micheli in Sacramento, Calif. The bill would have granted a right for employees to ignore communications outside of work hours except for in an emergency or for scheduling.  “There is little doubt that there are situations in which a limited number of employers abuse their ability to contact employees during nonworking time, but this legislation attempts to address the issue in a manner that would unnecessarily tie employe...

Effective January 1, 2025, Minnesota mandates all employers with 30 or more employees in Minnesota to include a pay range or fixed pay rate on all job postings. The hope is that job seekers have a better understanding of their potential earnings prior to submitting an application. This new pay equity and pay transparency law builds on the state's recent legislation which prohibits asking applicants about their pay history. A few key points include: It applies not only to job postings but to job postings by third party recruiters, such as "staffing agencies". If the listing includes a pay range, it must be a "good faith estimate" reflecting realistic expectation of what will be offered for the position.  It should not be an open-ended range. The job posting must also include a general description of benefits and "other compensation" offered.  This includes health insurance, retirement plans, bonuses, and any other financial perks associated with the pos...

Now more than ever, businesses need to take a proactive, predictive, and preventive approach to enterprise risk management. Here JD Supra shares an article from Mayer Brown--Mayer Brown shares the key takeaways from a recent high-level discussion they had with their senior executives from leading multinational corporations on smart strategies for managing risk across an entire organization. PLAN BY DESIGN SO RESPONSES AREN’T “BY DEFAULT” Businesses must put more effort toward crises management before they happen. Effective planning requires clear thinking, prioritization, and discipline—specifically, a real understanding of risk exposure, buy-in from senior management, eliminating information silos, having a mechanism in place for elevating critical information, and cultivating a speak-up culture. Most importantly, companies must generate reliable and actionable intelligence before a crisis that will enhance the quality of their decision-making during and after a crisis. MAKE “REHEARSE...

 A new legal challenge by more than a dozen business groups seeks to overturn the enforcement of the Department of Labor's new rule raising the earning thresholds for the FLSA's white-collar overtime exemptions---same as 2016. The new lawsuit alleges that the DOL acted arbitrarily and capriciously (meaning, it was made on unreasonable grounds or without any proper consideration of circumstances) in setting the new thresholds, ignoring concerns from the business community. This lawsuit intends to stop the first threshold increase, which is set to take effect on July 1, 2024. Source: Ogletree Deakins , received on May 28, 2024

 Maryland's Wage Transparency Law (SB 525/HB 649) will take effect October 1, 2024. Under the Wage Transparency Law, a job posting is defined as any "solicitation intended to recruit applicants for a specific available position," and includes job recruitment directly by the employer as well as through third parties, such as job posting websites. Employers will be required to disclose the "wage range," meaning the positions minimum and maximum hourly rate or salary, set by the employer in good faith by reference to:  Any applicable pay scale; Any previously determined minimum and maximum hourly rate or salary;  The minimum and maximum hourly rate or salary of an individual holding comparable position at the time the job is posted, or The budgeted amount for the position. In each public or internal posting for a position, employers will be required to disclose: (1) the wage range; (2) a “general description of benefits”; and (3) “any other compensation offered fo...

Under the new rule, total annual compensation requirement for HCEs will increase from $107,432 per year to $132,964 per year on July 1, 2024 and will rise to $151,164 per year on January 1, 2025.  Earning thresholds will be updated every three years starting on July 1, 2027. This increase is expected to affect nearly 300,000 currently highly compensated dependent on the relaxed job duties test.   Criteria for Classification as an HCE An employee must meet several criteria before being classified as an HCE. First, the employee must be paid a total annual compensation of at least $132,964 as of July 1, which includes at least $844 per week on a salary basis. Effective Jan. 1, 2025, the total compensation threshold will increase to $151,164, which includes at least $1,128 per week paid on a salary basis. The weekly salary amount of $844, or $1,128 as of Jan. 1, 2025, must be paid in its entirety. Employers may not use nondiscretionary bonuses and incentive payments— incl...

 Effective July 1, 2024, Vermont is the most recent state to pass its own version of the CROWN Act. CROWN Acts expand the definition of race to include hair protections.   Under Vermont's Fair Employment Practice Act (FEPA), it is unlawful for "any employer" employment agency, or labor organization to harass or discriminate against any individual because of race, color, religion, ancestry, national origin, sex, sexual orientation, gender identity, place of birth, crime victim status, or age or against a qualified individual with a disability." House Bill 363 (HB363) was approved by Vermont Governor Phil Scott on April 24, 2024.  HB363 adds a clarifying definition of race to FEPA, which includes the following: “Race” includes traits associated with or perceived to be associated with race, including hair type, hair texture, hairstyles, and protective hairstyles. As used in this subdivision, the term “protective hairstyles” includes hairstyles such as individual braids,...

 Pension plans are increasingly rare these days.  If a business is considering acquiring a company that sponsors a pension plan, there are new diligence and deal considerations that come into play for the transaction(s).  This can be daunting. especially if the business does not already sponsor a pension plan. Pension plans are fundamentally different than defined contribution plans, such as 401(k) plans, in may respects. JD Supra shares some issues that businesses should consider if the target entity sponsors a pension plan: 1. Do You Understand the Funding Status of the Pension Plan? Pension plans are not required to be fully funded, i.e., it is not a legal requirement that the plan’s assets equal the plan’s liabilities. The “funded status” of a defined benefit pension plan can be viewed in different ways depending on the purpose for which the funding status is determined. For example, a pension plan that is considered “fully funded” (at 100% or more) for the plan’s mos...

Below, we list five actionable steps New York employers should take to tackle the ever-growing challenge of meeting their obligations under applicable law. 1. Review leave and accommodations policies and watch for further guidance. At the end of April 2024, the New York Legislature enacted its fiscal year 2025 budget. The $237 billion budget created significant new leave obligations for New York employers, which are described below. Employers should, therefore, review their leave and accommodations policies and watch for further guidance from the state regarding how to implement the prenatal personal leave and paid lactation breaks described below. Paid prenatal personal leave (reported on  May 10, 2024) New York became the first state in the US to create a paid leave program for prenatal care, as part of the governor’s broader effort to improve statewide infant and maternal mortality. Effective January 1, 2025, every employer will be required to provide employees with 20 hours of ...

 The US Department of Labor (DOL) released a document that outlines several principles with regards to Artificial Intelligence (AI) to provide employers that create and deploy AI with guidance for designing and implementing these emerging technologies in ways that enhance the job quality and protect workers' rights.   The AI Principles apply during the entire lifecycle of AI: from development to testing to deployment of AI in the workplace to oversight, use and auditing.  The AI Principles (thought not an exhaustive list, but should be used as a guiding framework) can be applied to all sectors and are intended to be mutually reinforcing, thought not all principles will apply to the same extent in every industry or workplace. The Department's AI Principles for Developers and Employers include: [North Star] Centering Worker Empowerment: Workers and their representatives, especially those from underserved communities, should be informed of and have genuine input in th...

 GovDocs published a piece on May 17, 2024 with regards to Election Season and Politics in the Workplace.  The Compliance Department felt it worthwhile to share the perspective: The Challenges of Election Season for Employers Election season is upon us, and so are the many political minefields that employers are expected to navigate during the months leading up to voting day. Polarizing opinions (expressed loudly and often), heated arguments between employees, and complicated voting leave requirements are just a few areas that could dampen employee morale and challenge your company’s compliance.  Multi-State Policies for Politics: Untangling the Web To further complicate matters, companies with locations in multiple states must track and manage a complex web of election-related legislation to inform their policies and procedures related to voting rights and workplace politics.  This all might seem a bit overwhelming – and for good reason. This is complicated stuff. R...

 On May 10, 2024, CISA, along with the FBI, HHS, and MS-ISAC, issued a joint  Cybersecurity Advisory relating to Black Basta ransomware affiliates "that have targeted over 500 private industry and critical infrastructure entities, including healthcare organizations, in North America, Europe, and Australia. Black Basta is a ransomware-as-a-service (RaaS) variant, first identified in April 2022. Black Basta uses double extortion tactics, encrypts data and threatens to leak it and has links to Conti and FIN7 threat actors. The  Black Basta Advisory  provides information on how the threat actors gain initial access to victim's systems, which primarily use spear phishing tactics. The Advisory lists indicators of compromise, file indicators, and suspected domains used by Black Basta.  This can be helpful for IT professionals to compare against company systems.  Mitigations listed by the Advisory include current patching, MFA, training, securing remote access sof...

 On May 20, 2024, the Department of Labor announced a final rule from its Occupational Safety and Health Administration that will update the current Hazard Communication Standard to protect workers by improving the amount and quality of information on labels and safety data sheets.  This will allow first responders and workers to react quickly in the event of an emergency.  The updates will take effect on July 19, 2024, Aligned primarily with the  seventh revision  of the UN's Globally Harmonized System of Classification and Labelling of Chemicals the  updated standard will require labels on small packaging to be more comprehensive and readable and makes changes to ensure trade secrets no longer prevent workers and first responders from receiving critical hazard information on safety data sheets. Workers will also receive a clearer hazard classification process to provide more complete and accurate hazard information on labels and safety data sheets; there...

Field Assistance Bulletins (FAB) are utilized to provide guidance to filed staff on enforcing the federal statutes administered by the Department of Labor's Wage and Hour Division (WHD). On May 20, 2024, JacksonLewis reported that the WHD has published a FAB on the application of federal labor standards to employers' use of artificial intelligence (AI) and other automated systems in the workplace. FAB No. 2024-1 emphasizes that statutory protections apply as usual, disregarding the new tools and systems employers are using.  However, the use of Artificial Intelligence (AI) may provide challenges in compliance. "Regardless of the exact AI or other technologies used, the principles described here provide guidance for evaluating how to comply with the law," the FAB states. The bulletin also addresses the potential impact of AI on compliance with the protections FLSA provides for nursing employees.    The FAB also provides guidance on the challenges that may arise with t...

It's not new news that the number of employers with remote employees has increased, following the pandemic.  We are reminded as employers to monitor employment laws and ensure compliance in all jurisdictions in which we have employees performing work.  Employment laws such as discrimination, anti-harassment, wage and hour, and leaves of absence may indeed cover employees performing work in remote locations---even if their employer does not have a physical presence there. There are several jurisdictions that require employers to provide sexual harassment and/or bystander intervention training to their employees.  To evaluate whether state and local training requirements apply, employers should engage two types of analysis to determine the following: if they are a "covered employer" under a state or local law, and, if yes whether the remote employee is a "covered employee" under those laws. JD Supra (Proskauer) provides a summary of only some states (not all) of t...

 Colorado Senate Bill 24-205 ("SB205") introduces statutory tort liability ( laws that govern the rights of victims to pursue legal claims against tortfeasors. When a victim is harmed or suffers damages, the victim can pursue a claim in civil court under tort laws.) If enacted, the bill would require employers using "high-risk" AI tools to implement risk management policies, conduct impact assessments, and provide detailed notices by February 1, 2026.   The bill defines "high-risk" (if the AI either "makes," or is a "substantial factor" in making, "a decision that has a material legal or similarly significant effect on the provision, denial, cost or terms" of any of the following: education, finance, health-care, housing, insurance, legal services, essential government services, and critically, hiring and employment in general. Compliance with this bill will place burden on any employer doing business in Colorado to identify ...