Compliance Stuff

 The Minnesota Legislature passed another substantial omnibus labor and industry policy bill, SF 3852 , which was signed by Governor Tim Walz on May 17, 2024. The omnibus bill brings a variety of significant labor law changes to employers in the North Star State, including updates to pay transparency, pregnancy accommodations, and noncompete agreements.   In addition to the above updates, there are also several changes to its wage and hour laws under the Minnesota Fair Labor Standards Act, which go into effect on August 1, 2024 .   Updated Indexing Requirements for Minnesota Employers Minnesota is eliminating its two tiers of minimum wage rates, which are dependent on an employer’s revenue. Under the current minimum wage requirements, large employers, or businesses with an annual gross volume of sales of $500,000 or more, must pay covered employees at least $10.85 per hour. Small employers, or businesses with revenue of less than $500,000, are currently requi...

  On July 26, 2024, the Office of Federal Contract Compliance Programs (OFCCP) published Directive (DIR) 2024-01, containing a mechanism for conciliating issues found by OFCCP during compliance evaluations through expedited conciliation. Quick Hits OFCCP published directive providing new procedures for “expedited” conciliation during compliance evaluations. OFCCP anticipates that negotiations under these procedures will last no longer than sixty days. Such expedited conciliation agreements require reporting to OFCCP and may allow the agency to scrutinize and possibly renew investigation of future contractor data and processes.   The  new procedures  allow contractors facing a compliance review to waive formal  pre-enforcement notice procedures in favor of an “expedited” conciliation process, details of which depend on whether OFCCP’s investigation seeks remedies for discrimination or “technical” violations.  Any Early Resolution Conciliation Agree...

 401(k) plans must operate according to the terms of a written plan document. Amendments are sometimes necessary to reflect new legal requirements or discretionary changes. According to the IRS, failing to adopt an amendment timely is one of the most common 401(k) mistakes made by employers today. This oversight can lead to significant consequences, including IRS penalties and missed opportunities for plan enhancement. A basic understanding of the 401(k) amendment rules can help employers avoid this trouble with help from their 401(k) provider. This guide will cover some of the basics. 401(k) Plan Amendment Deadlines A 401(k) plan amendment can be either “interim” or “discretionary.” Interim amendments are required to update a plan for law changes, while discretionary amendments are voluntary. Below are the general adoption deadlines for these amendments: Interim amendments – must be adopted (signed and dated) no later than the end of the second calendar year following the calendar...

 The latest iteration of the often- controversial fiduciary rule has been blocked by a federal judge . In a ruling July 25, Judge Jeremy Kernodle in Tyler, Texas, granted an insurance group’s request for a nationwide preliminary injunction blocking the rule—due to take effect this fall—until further order. The Federation of Americans for Consumer Choice, an advocacy group for independent insurance agents, filed a lawsuit May 2 challenging the U.S. Department of Labor’s (DOL’s) new fiduciary rule, alleging it is “contrary to law and arbitrary and capricious.” The group, along with other independent insurance agents and firms, collectively filed the lawsuit against the fiduciary rule—which aims to modernize and increase investment advice standards for retirement accounts—in U.S. district court in Tyler, claiming that it exceeds the DOL’s authority and is in violation of the Administrative Procedure Act. They claimed the new rule is similar to a 2016 rule that was struck down in 20...

 Pay transparency is the p ractice of openly sharing information about employee compensation within an organization or during the hiring process . Effective one-year after Governor Maura Healy signs the legislation , employers with more than 25 employees in the Commonwealth will be required to disclose salary range information on job postings and to provide pay range information to current employees in certain circumstances. Given Governor Healy’s past efforts to achieve pay equality in the Commonwealth, we expect her to sign the bill. Employers with 100 or more Massachusetts employees w ill have the additional requirement of submitting equal employment opportunity (EEO) and pay data annually to the Commonwealth. The first round of EEO reporting for covered employers will be due by February 1, 2025 .  Massachusetts follows other states that have recently passed similar laws, including Hawaii, Illinois, Minnesota, Vermont, and Washington, DC, in addition to states such as Cal...

In recent years, there have been several state-specific pay reporting requirements taking effect after the recission of the nationwide EEO-1 Component 2 pay data collection. One such reporting requirement has been the bi-annual Illinois Equal Pay Reporting Certificate (EPRC). This reporting began for some employers in 2022. It is meant to ensure compliance with the Illinois Equal Pay Act of 2003.  Employers covered by the law must submit their applications for the EPRC on a portal housed within the Illinois Department of Labor (IDOL)’s website.  Organizations were required to file their initial EPRC applications by March 23 of 2024 if they had not done so already.   As it has now been t wo years since the first EPRC filings occurred, some employers are beginning to submit their second round of applications for an EPRC. Unfortunately, these returning filers have been experiencing hiccups in IDOL’s system.  One notable issue involves the job classification cate...

On July 24, 2024, the Third Circuit Court of Appeals affirmed the denial of a preliminary injunction seeking to bar enforcement of New Jersey’s Temporary Workers’ Bill of Rights Law (the “Law”) . The Circuit Court found that the Law does not violate the dormant Commerce Clause of the U.S. Constitution, which prohibits states from enacting measures that discriminate against or unduly burden interstate commerce. The Law, which took full effect on August 5, 2023, provides comprehensive protections for certain temporary workers in New Jersey. Temporary Workers’ Bill of Rights The Law applies to each temporary laborer who is employed by a covered temporary help firm who either: (1) has been assigned by the firm to work in a designated classification placement within New Jersey; or (2) has been assigned by the firm to work in a designated classification outside of New Jersey, but who has his or her primary residence in New Jersey. Among its provisions, the Law includes requirements for reco...

Cybercriminals continue to outpace the best efforts of regulators, law enforcement, and cybersecurity professionals. Recent reporting from the Federal Bureau of Investigation demonstrates that cybercriminals are increasingly utilizing remote work and artificial intelligence to exploit vulnerable networks, bypass security protocols, and defraud unsuspecting victims .[1] In particular, the FBI reported on a wide-scale scheme involving remote IT professionals, the use of AI to scale already-known schemes, and the continued prevalence of ransomware attacks. Remote Work Fraud Schemes One of the most pressing concerns involves the Democratic People’s Republic of Korea’s (“North Korea”) ongoing effort to sponsor a cyber fraud involving remote IT professionals. In short, North Korean nationals are impersonating U.S. citizens and then applying for remote positions as IT professionals at various U.S. companies. These fake IT professionals are currently targeting Fortune 500 companies, U.S. banks...

On July 23, 2024, Pennsylvania Governor Josh Shapiro signed the Fair Contracting for Health Care Practitioners Act (the “Act”), which bans certain noncompete covenants, including patient nonsolicitation provisions, between an employer and health care practitioner if the covenant is more than one year or the health care practitioner was “dismissed by the employer.”  The effective date of the Act is January 1, 2025. The Act’s Key Provisions The Act renders void and unenforceable any covenant between an employer and health care practitioner “which has the effect of impeding the ability of the health care practitioner to continue treating patients or accepting new patients.”   The Act, however, includes a key exception: it permits covenants that are no more than one year and where the health care practitioner was “not dismissed by the employer.”   Therefore, covenants will remain enforceable if (1) the covenant lasts no more than one year and (2) the health care practitioner...

Following the national trend toward prohibiting or limiting non-compete agreements, Louisiana Senate Bill 165 limits the length and geographical scope of non-compete agreements for both specialty and primary care physicians. The law goes into effect on Jan. 1, 2025. Under Senate Bill 165, non-compete agreements for physicians must expire three years or five years from the effective date of the initial contract or agreement. Non-compete agreements for primary care physicians must expire within three years from the effective date of the initial contract or agreement. A “primary care physician” is defined as any physician who predominately practices in the areas of family medicine, internal medicine, pediatrics, obstetrics, or gynecology. Non-compete agreements for physicians who do not meet the definition of primary care physician must expire within five years from the effective date of the original contract or agreement. Senate Bill 165 also limits the geographic scope of these non-com...

  On July 17, 2024, the U.S. District for the Northern District of Texas rejected the State of Texas’s request that it vacate recent guidance from the U.S. Equal Employment Opportunity Commission (EEOC) on harassment and discrimination in the workplace as it concerns protections for LGBTQ+ individuals. The court’s ruling, however, is unlikely to end the dispute. Quick Hits A federal district court recently struck down a legal challenge to the EEOC’s 2024 Enforcement Guidance on Harassment in the Workplace, which provided guidance as to how federal law prohibiting sex discrimination also encompasses discrimination based on sexual orientation and gender identity. Texas sought to invalidate the EEOC’s 2024 guidance regarding how Title VII protects bathroom/locker room usage, dress codes, and pronouns for LGBTQ+ individuals in the workplace. The court did not clarify whether the EEOC’s latest guidance is lawful. On October 1, 2022, the U.S. District for the Northern District of Texas v...

The Rhode Island Data Transparency and Privacy Protection Act (RIDTPPA) outlines how businesses must protect customer data. What’s the impact? While similar in many respects to other recently enacted comprehensive privacy acts, RIDTPPA privacy notice applicability and disclosure requirements exceed those seen in other states. Businesses serving Rhode Island residents will need to evaluate their privacy practices to make necessary adjustments to comply with RIDTPPA’s opt-out and applicability requirements. On June 28, 2024, Rhode Island became the nineteenth state to enact a data privacy law, joining California, Colorado, Connecticut, Delaware, Indiana, Iowa, Kentucky, Maryland, Minnesota, Montana, Nebraska, New Hampshire, New Jersey, Oregon, Tennessee, Texas, Utah, and Virginia. The law focuses on providing customers with transparency with regard to how their personally identifiable information (PII), particularly that of children, is used and shared by data controllers and processo...

Today, OFCCP issued   Directive 2024-01 , Expedited Conciliation Procedures, outlining updated procedures for an expedited conciliation option, giving contractors and the agency flexibility in the resolution of violations. This directive aligns the process with OFCCP’s final rule,   Pre-Enforcement Notice and Conciliation Procedures , published on August 4, 2023. The final rule retained the expedited conciliation option and made general edits to improve procedural efficacy and clarify OFCCP’s role in the expedited conciliation process. To improve efficiency, OFCCP continues to use innovative approaches to increase contractor compliance, reach more establishments, and remedy violations more quickly for the benefit of employees, applicants, and contractors. For additional information about this directive and others, please visit  OFCCP’s webpage on Directives . Source(s) : OFCCP , received on July 26, 2024.

 A U.S. House of Representatives Workforce Protections Subcommittee oversight hearing of the Occupational Safety and Health Administration (OSHA) on July 24 raised concerns about the agency’s proposed heat illness rule. Those concerns included that the rule was being rushed and that it places undue burdens on employers. However, some said the rule is needed to protect workers and defended the agency’s rulemaking. A worker, Gabriel Infante, started showing signs of heatstroke on the job in San Antonio last year, but his employer allegedly thought he was on drugs, said Jordan Barab, a witness and former deputy assistant secretary of OSHA from Takoma Park, Md., in written testimony. By the time the employer realized Infante needed help, it was too late, according to Barab. “Gabriel Infante would be alive today if the heat standard was in place,” Barab testified. “OSHA standards save lives.” Proposed Heat Standard OSHA on July 2 issued a proposed rule to shield indoor and outdoor worke...

 Dismissal of Challenge Sought The NLRB on July 19 filed a motion with the 5th U.S. Circuit Court of Appeals, seeking dismissal of its challenge of the district court ruling. The NLRB said the board believes the rule is lawful but wants “to consider options for addressing the outstanding joint employer matters before it.” The board may try to return to case adjudication as the method for setting the test for joint employment. That’s how the board handled the joint employment test until 2020, when the board issued a regulation. That rule said that one company can be considered the employer of another firm’s employees only if it exercises direct and immediate control over the most important aspects of a worker’s job. District Court Decision A federal district court in Texas blocked the 2023 rule on March 8, deciding it was too broad and violates federal labor law. The rule was found to be invalid because it would treat some companies as the employers of contract or franchise workers,...

Jackson Lewis Principal and Board Member Tanya Bovée interviewed U.S. Equal Employment Opportunity Commission (EEOC) Commissioner Andrea Lucas at Jackson Lewis’ Workplace Horizons conference in Las Vegas on April 17, 2024. Andrea Lucas has served as a Commissioner on the EEOC since 2020. As part of her work educating employers, employees, and other stakeholders about the laws the EEOC enforces, Commissioner Lucas writes and speaks frequently about hot topics and emerging issues in employment law, including on corporate diversity programs; religious discrimination, accommodation, and inclusion; accommodations for pregnancy, childbirth, and related medical conditions; and disability accommodations . Before her appointment to the EEOC, Commissioner Lucas was a member of the labor and employment and litigation practice groups of Gibson Dunn and was based in the firm’s Washington, D.C. office. Stressing that she spoke on her own behalf and was not communicating official EEOC policy, Commiss...

  A Summary Plan Description, often referred to as an “SPD”, is a document intended to clearly describe and explain the important provisions of an employee benefit plan. The SPD must be written in such a way that the average employee will understand the benefits, rights and rules of the plan. The SPD must include items such as the name of the plan, the address of the plan sponsor, the type of plan, the type of plan administration, a description of the participation and eligibility requirements, and a description of the benefits provided under the plan. This list is not exhaustive, but is included to provide guidance as to the type of information that is required content for an SPD. T he Employee Retirement Income Security Act of 1974 (“ERISA”) imposes strict deadlines with regard to when an SPD must be provided to participants and beneficiaries. ERISA also imposes a timeline for regular updates and required restatements of an SPD. We have included a brief overview of those rules b...