Compliance Stuff

When a company’s board of directors is faced with the decision to respond publicly to or support a political situation or issue, in most cases the answer should be easy: “No comment.” The bottom line is that a board should avoid controversy that could adversely affect its business. However, there has been increasing pressure on boards to respond to political issues, especially coming from employees and customers. If faced with such circumstances, a board must first consider how important or marginal the pressure to speak is, and who is it coming from. In addition, there are several guidelines a board should follow if they feel like they “must” respond to a controversial political issue: You cannot “wing it.” Ad hoc decisions lead the board, and therefore the company, to look confused. You must carefully plan what you will say. Advance planning what you will say, and also to whom and how, is absolutely necessary. Some considerations are: Who will be the company spokesperson? What is the...

In April, the Commonwealth of Virginia enacted several bills amending the Virginia Human Rights Act, all effective on July 1, 2024 . Among these amendments are several employment-related updates regarding discrimination in the Commonwealth.   Discrimination Based on Ethnic Origin Prohibited On April 2, 2024, Governor Youngkin signed House Bill 18, which amends the Virginia Human Rights Act to prohibit discrimination based on “ethnic origin” in employment. Ethnic origin is added to the following list of protected categories: Race  Color   Religion   Sex  Sexual Orientation   Gender Identity  Marital Status   Pregnancy   Childbirth (or related medical conditions including lactation)  Age   Military Status   Disability Ethnic or National Origin Updates to the discrimination provisions to include ethnic origin, labor organizations, employment agencies, and joint apprenticeship committees.  Of note, Virginia also...

Within weeks of the Supreme Court’s decision striking down affirmative action in college admissions last year, Republican attorneys general for 13 states sent a letter to Fortune 100 CEOs condemning their DEI initiatives in the workplace. They threatened to hold companies accountable for “illegal preferences” in employment and contracting practices. Missouri Attorney General Andrew Bailey has made good on that threat by filing the first lawsuit by a state Attorney General against a company for allegedly violating the Missouri Human Rights Act. Bailey asserts that IBM subjects job applicants to unlawful racial and gender quotas and bases employees’ pay and employment statuses on whether they participate in DEI practices that he alleges are discriminatory. “It has come to my attention that IBM has adopted an unlawful policy that blatantly favors applicants of a certain skin color over others, and that managers within the company who refuse to comply with said policy face adverse action,...

Beginning July 1, 2024, Colorado will officially begin enforcing a restriction prohibiting employers from asking job applicants to disclose their age on an employment application . Colorado joins California, Connecticut, Delaware, Minnesota, and Pennsylvania which have similar laws targeted to reduce the risks of age discrimination in the employment application process. The Colorado Job Application Fairness Act ( JAFA or the “Act” ), the law prohibiting age-related inquiries on job applications, was originally passed by C olorado’s legislature in June 2023 and took effect in August 2023 , but it included in its text that e mployers would only be prohibited from asking such questions beginning on or after July 1, 2024 . Now, with the enforcement date quickly approaching, employers in Colorado and other states should take some time to review their job application queries to ensure they comply with applicable laws. We have written recently about states policing the use of artificial inte...

As we reach the midyear point, we’re rounding up the new workplace laws that will take effect on July 1. With so many laws about to kick in, it can be hard to keep track of it all. Here’s a guide to some of the federal, state, and local laws you’ll need to comply with starting in July. Federal Department of Labor The first phase of the new federal overtime rule will make millions of workers newly eligible for overtime pay. Starting July 1, the DOL’s salary threshold for the so-called “white-collar” exemptions from federal OT requirements will rise to $43,888 (and will jump to nearly $59k at the start of 2025). Read these Insights to catch up on: 10 steps employers can take now to prepare; how the new rule impacts highly compensated employees; and business groups suing to block the new overtime rule. Office of Federal Contract Compliance Programs Federal contractors and subcontractors have until July 1 to certify that their affirmative action plans are compliant with federal requiremen...

These reforms aim to address long-standing employer concerns about frivolous lawsuits and inefficiencies. WHAT’S THE IMPACT? The deal is a significant win for employers— it aims to decrease litigation costs for businesses and simplify the PAGA legislation while still offering employees important protection. The effectiveness of the reforms, particularly the cure provisions, will depend heavily on the specific implementation details and timelines. Download PAGA Reform Agreement Governor Gavin Newsom (California), along with legislative leaders and key stakeholders, has announced significant changes to the Private Attorneys General Act (PAGA). This alert provides an overview of PAGA, outlines the proposed changes, and details what to expect and how to track these changes. What is PAGA? PAGA, enacted in 2004, allows employees to sue their employers for Labor Code violations on behalf of themselves and other employees. This legislation was introduced to enhance the enforcement of labor l...

 Employers with employees, including remote workers, who live or work in more than one state have likely already faced the challenge of determining what employment laws apply, the work they apply to, and when. In recent years, the Colorado legislature has pushed to be on the cutting edge in this area, giving states that have traditionally been seen at the forefront of this topic, like California, a run for the title. As part of these efforts, we've seen the state take an aggressive approach when defining who these employment laws apply to. In many instances, according to the state of Colorado, these laws may apply even if your company has no traditional work site in Colorado . Do you let an employee work remotely from Colorado? Do any of your workers come into the state, even occasionally, for work? If so, you may have legal obligations under Colorado law you weren't even aware of. Here is a sampling of some, but certainly not all, of Colorado's most far-reaching employment...

During the Obama administration, the National Labor Relations Board (NLRB or the Board) stringently reviewed employee handbooks of nonunionized employers to determine whether particular policies infringed on employees’ rights to engage in concerted activity protected by Section 7 of the National Labor Relations Act (NLRA or the Act). While the Trump Board relaxed such scrutiny, the Biden Board has returned to the approach taken Obama era with a vengeance. A recent decision from an administrative law judge (ALJ) for the Board highlights the NLRB’s aggressive stance of invalidating employers’ workplace rules if they result in any potential infringement on an employee’s concerted activity. Starbucks Corp. v. Workers United, Case 28-CA-289622, slip op. (ALJ June 7, 2024) , arises out of a union’s attempt to organize Starbucks employees and the company’s termination of several employees and other alleged unfair labor practices occurring at several Phoenix-area stores in order to curb union ...

 Republicans in the U.S. Senate and House have introduced the Dismantle DEI Act of 2024. According to an accompanying press release, the bill would “eliminate all federal diversity, equity, and inclusion (DEI) programs and funding for federal agencies, contractors, organizations, and educational accreditation agencies that receive federal funding and maintain DEI programs.” Federal contractors should be aware that the bill would prohibit the federal government from entering into contracts with entities that operate DEI programs . Additionally, the bill would rescind a series of DEI-related executive orders and require the Office of Personnel Management and the Office of Management and Budget to rescind regulations, policies, procedures, guidance, etc., developed to implement those executive orders. The bill would also shutter federal agency DEI offices and adjust federal performance appraisal protocols and training programs. Though the bill is unlikely to gain much ground in the De...

  Did You Know? OSHA has an  online Media Center  that provides easy access to inspection data and citations, popular initiatives, news releases and more! Source(s): OSHA (via GovDocs email subscription), received on June 21, 2024.

Employers reclassifying employees as nonexempt due to this year’s overtime rule should clearly explain the basis for the change to minimize morale problems resulting from the change. Employers should communicate that reclassification is not a reflection of the quality of the employees’ work or their contributions to the organization, said Keith Kopplin, an attorney with Ogletree Deakins in Milwaukee. “This is simply something required by virtue of a change in the law,” he said. Organizations also could reference the fairness of being paid by the hour and being entitled to overtime, he added. If possible, employers should find ways to minimize the impact of other changes required by reclassification, Kopplin said. For example, employers could use exception timekeeping for employees who work fixed schedules so they are only required to indicate when they deviate from their schedule, instead of recording the start and end of every workday and every unpaid break. Employers should also be ...

 The Occupational Safety and Health Administration (OSHA) has moved a step closer to a final rule for “Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings.” OSHA sent the yet-to-be-unveiled rule to the Office of Management and Budget for an interagency review of up to 90 days, after which OSHA will publish the rule in the Federal Register to give it effect. While the final rule has not been published, the potential regulatory framework OSHA proposed in 2023 on the topic offers clues to how to prepare. Under the proposal, employers would be required to create and maintain a written Heat Injury and Illness Prevention Program (HIPP) . Small employers with up to 10 employees would be exempted from the HIPP requirement. Further, outdoor and indoor work in any or all General Industry, Construction, Maritime, and Agriculture sectors where OSHA has jurisdiction would be covered. Other potential requirements under the proposed standard call for employers to identify heat ...

 The Massachusetts Appeals Court just rendered a decision that significantly broadens when one entity may be found to be a “joint employer” of another entity’s employees under state wage laws. The June 13 decision, coupled with guidance from an earlier decision by the Massachusetts Supreme Judicial Court, establishes a comprehensive framework you can follow to determine whether you might face joint employment trouble. What does your business need to know about the increasing likelihood you could be considered a joint employer – and what are six best practices you can follow to minimize your risk? How Did We Get Here? In Tran v. Jennings Road Management Corp., the Massachusetts Appeals Court agreed that Jennings Road Management Corp. (JRM) was a joint employer of the plaintiff, Sakiroh Tran, a parts advisor at a Boston-area car dealership. The court’s June 13 opinion applied the totality of the circumstances test from a 2021 Supreme Judicial Court opinion that we covered here, which...

When an employee is on an extended leave of absence, there is often confusion regarding whether and to what extent the employer must continue to provide coverage to the employee under the employer-provided health plan.  To determine whether coverage is required, the employer should consider the terms of the plan, COBRA requirements, and whether the leave is covered by FMLA.  The Plan Terms.    Employer-provided health plans include continuing service requirements for continuing eligibility.  For example, it is common for a health plan to require employees to perform an average of at least 30 hours of service per week to be eligible for coverage under the plan.  When an employee goes out on a leave of absence, and the employee’s average hours of service typically fall below the minimum coverage requirement, the employee may no longer be eligible for coverage under the plan.     FMLA Leave.   Suppose an employer is subject to the Family and Med...

 Rates Up, Dude – Surfing the Wave of U.S. Minimum Wage, Tipped, and Exempt Employee Pay Increases that Will Occur on July 1, 2024 While some across the United States are working on their tans, many employers are working on managing their labor budgets so they don’t get burned by increases in minimum pay standards for non-exempt, tipped, and certain overtime-exempt employees that will take effect on July 1, 2024. Before lathering up for summer rates, however, we briefly highlight some notable rate-related developments that occurred in the preceding seasons. Of course, employers should watch out for sneaker waves – pending or future legislation – that could wipe out (change) other rates in 2024, and consider checking in with the lifeguard on duty (knowledgeable employment counsel) before diving headfirst into the compensation waters to confirm your pay practices are, like the sun’s rays, golden. Selected Rate-Related Highlights Occurring After January 1, 2024 Federal Increased Minim...

What is now considered as the “abusive use of partnerships,” and why would this matter to the IRS? The agency recently released IR-2024-166 , which is intended to provide “new guidance to stop partnerships from using sophisticated tax-free transactions that lack economic substance” to avoid paying taxes.  The IRS continues to focus on and analyze the actions, behaviors, and strategies of high-income U.S. taxpayers to avoid paying the taxes they should owe each year. The IRS was the beneficiary of $80 billion in new funding from the Inflation Reduction Act (2022). Some of those new funds have been used to establish a new internal IRS team that will focus specifically on closing apparent “tax loopholes” while establishing new guidelines for high-income U.S. taxpayers. IRS audit teams have been focused on a multi-billion dollar scheme and the use of deductions generated through sophisticated partnership transactions. The agency’s publication referred to a new focus on “Basis shifting”...

  Cutting ties with business partners is a delicate and often complex process. Whether driven by irreconcilable differences, strategic shifts, or personal reasons, disengaging from business partners requires careful consideration of legal obligations and procedural requirements. In this article, we explore some of the key steps involved in terminating a relationship with business partners who are co-members of a limited liability company (LLC). 1. Review the Operating Agreement The Operating Agreement of an LLC serves as the blueprint for the LLC's operations, outlining the rights, responsibilities, and procedures governing the company and its members. Before initiating any steps towards dissolution, review the Operating Agreement and seek legal counsel to ensure you understand the provisions related to member withdrawal, sales of member interest, and dispute resolution.  If there are multiple members of an LLC, you definitely should spend the time up front to negotiate the te...