Compliance Stuff

 The US Department of Labor (DOL) filed an  amicus brief (friend-of-the-court) brief  urging the Seventh Circuit to affirm the district court's ruling that employers must pay for such travel time and to extend the district court's ruling to include travel time outside of regular work hours.  If the court adopts this position, it will significantly expand the scope of compensable travel time for non-exempt employees in the Seventh Circuit who travel to remote jobsites. Source(s): Olgetree Deakins, received on May 10, 2024; YouTube , accessed on May 21, 2024.

 Under the Health Insurance Portability and Accountability Act of 1996 (HIPAA), final privacy rules set basic limitations on the use or disclosure by covered entities (such as employer health benefit plans) and their business associates of reproductive health care information.  The final rules state that reproductive care is presumed to be legal unless the employer health benefit plan or its business associate has "actual knowledge" that the care was not lawful under the circumstances. The final rules generally require compliance on December 23, 2024.  Effective February 16, 2026, covered entities (such as employer health benefit plans) will be required to update their notices of privacy practices.  Additionally, the 2024 rules modify the HIPAA rules on disclosure of PHI to report abuse or neglect and for public health purposes to limit access to reproductive care information. For example, under current rules, a health benefit plan can refuse to treat an individual a...

 The Department of Justice (DOJ) launched a new pilot program on April 15, 2024.  This program will allow individuals who report certain criminal conduct (such as money laundering, fraud, or fraudulent noncompliance) to federal authorities to avoid prosecution under certain circumstances. The program incentivizes individual actors to disclose to federal authorities "actionable, original information about criminal conduct that might otherwise go undetected or be impossible to prove."  Those that do report must  provide full cooperation, including payment of applicable victim compensation, restitution, forfeiture, or disgorgement (legal requirement to return gains from illegal or unethical activities). The pilot program has certain criteria for a "whistleblower" to be considered: Original Information —The reporting individual’s disclosure must pertain to new, nonpublic information not already known by the DOJ or federal law enforcement. Voluntary —The disclosure must ...

 A federal court in Colorado refuses to join the US Department of Labor implementing EO 14026. The Tenth Circuit Court finds that the EO had a sufficient connection to promoting economy and efficiency in the federal government contracting, thus making it permissible under the Procurement Act .   The Tenth Circuit has jurisdiction over federal courts in Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming. Source(s): JacksonLewis , received on May 17, 2024; Office of Federal Procurement Policy , accessed on May 17, 2024.

Two cases show that courts consider alleged harassment or discrimination based on transgender or cisgender status to be true and valid under Title VII of the Civil Rights Act. Vacating summary judgment for the employer, a federal appeals court has ruled that while an occasional mistake using the incorrect name or pronouns will not create liability, misgendering an employee can be “severe and pervasive” enough to support a claim of hostile work environment under Title VII.  Copeland v. Ga. Dep’t of Corr. ,  97 F.4th 766 (11th Cir. 2024). Misgendering is using pronouns and gendered terms, such as man, woman, guy, and girl, other than the pronouns and the gender identity the employee has specified for them. In a “reverse” gender identity case, a federal district court has ruled that a cisgender man’s complaint that his transgender coworkers were treated more favorably than he has stated a legal claim sufficient to survive a motion to dismiss.   McCreary v. Adult World, Inc. ...

 The Supreme Court of New Jersey stopped the use of an other wise valid settlement agreement because the agreement contained language that  prevented parties from making derogatory comments that "would bar individuals from describing an employer's discriminatory conduct" in violation of the New Jersey Law Against Discrimination (NJLAD)  ( I had no clue there was such a thing---but I'm new....so yeah.) The court did state that theoretically, parties can agree not to disparage one another by disclosing information that has nothing to do with "details relating to... claim[s] of discrimination, retaliation, or harassment".  The court did make it clear that such provisions would need to be "narrowly drawn" to ensure that they do not "encompass speech that the [NJLAD] protects". Source(s): Ogletree Deakins , received on May 17, 2024. www.njoag.gov , accessed on May 17, 2024.

 Back in April, our Compliance Department reported on the redundancy of the  Oregon Family Leave Act --the Governor signed into law a Senate Bill which eliminated some qualifying leave reasons for leave under the Oregon Family Leave Act as it overlapped with qualifying reasons for leave under Paid Leave Oregon--effective July 1, 2024. On May 8, 2024, the Oregon Bureau of Labor and Industries issued a  temporary administrative order  to address the fact that some employers will have approved employees take OFLA leave for reasons that, as of July 1, 2024,  will no longer qualify for OFLA leave but that will qualify for Paid Leave Oregon . Under the temporary administrative order, Oregon employers may rescind a designation or approval of protected leave under OFLA that is scheduled to occur on or after July 1, 2024. H owever, as soon as practicable, but no later than  June 1, 2024 , employers must notify such employees, in writing and in the language the emplo...

  The Utah Antidiscrimination Act has been amended to expand religious accommodation requirements for employers under Utah law. The Utah Legislature passed  House Bill 396  (H.B. 396), and Governor Spencer Cox signed the bill on March 19, 2024. The new law will go into effect on May 1, 2024. Currently, Section 112 of the Utah Antidiscrimination Act requires employers to allow employees to express “religious or moral beliefs and commitments in the workplace” as long as they do so in a “reasonable, non-disruptive, and non-harassing way.” Section 112 also prohibits retaliation against employees who express religious beliefs outside the workplace “unless the expression is in direct conflict with the essential business-related interests of the employer.” H.B. 396 expands Section 112’s workplace protections by prohibiting employers from making employees engage in “religiously objectionable expression” that the employee reasonably believes would burden or offend the “employee’s ...

  The annual limit on health savings account (HSA) contributions for self-only coverage in 2025 will be $4,300, a 3.6 percent increase from the $4,150 limit in 2024, the IRS announced today. For family coverage, the HSA contribution limit will jump to $8,550, up 3 percent from $8,300 in 2024. The jump in the contribution limits is significantly less than the roughly 7 percent increase seen from 2023 to 2024. SHRM’s 2023 Employee Benefits Survey found that 64 percent of employer respondents offer a high-deductible health plan that is linked with a savings or spending account, like an HSA, and 63 percent of those employers offer contributions to their employees’ accounts. The average individual-only annual contribution is $1,012, according to SHRM, while the average family annual contribution is $1,585. Source(s): SHRM , received May 9, 2024. IRS , accessed on May 16, 2024.

 A court in Indianapolis found that the plaintiff, who was on approved FMLA leave at the time she was discharged from employment for prior acts of theft of food pantry donations--which violated the city's code of ethics--failed to prove that she had not violated city policies and that she would have retained her job had she not taken FMLA leave.   The court granted summary judgement in favor of the city of Indianapolis on the plaintiff's FMLA retaliation claim despite the timing of her dismissal that occurred just a few weeks after her request of leave because the city's investigation into the theft allegations against her predated her request for FMLA leave. The summary judgement was also appropriate on the Title VII claim alleging race discrimination because the plaintiff failed to establish that her dismissal was motivated by race or that similarly situated White employees were treated more favorably under the city's policies. The court’s decision affirms that the F...

 For decades, employers have applied the usual FMLA rules for an employee who cannot work because of limitations due to pregnancy. When these limitations render a pregnant employee unable to work, the employer has always had the right to obtain medical certification to confirm the limitation and the employee’s need for leave from work. When the FMLA became law in 1993, there was no such thing as the Pregnant Workers Fairness Act (PWFA), which as of last year requires employers to provide accommodations to individuals limited by pregnancy-related conditions (unless undue hardship exists). In its final rules implementing the PWFA, the EEOC went to unusual lengths to rein in an employer’s ability to obtain medical documentation when an employee requests a pregnancy accommodation. The agency rejected the ADA’s more expansive approach to supporting documentation, instead allowing medical documentation only if it is reasonable under the circumstances to determine if the employee has a qu...

  There are countless examples in recent news highlighting the potential for far-reaching consequences when wrongdoing goes unchecked, and when whistleblowers face unbridled public scrutiny. Safety hazards could result in serious injuries or even further loss of life and financial penalties and reputational damage could be significant. By protecting whistleblowers, taking their concerns seriously, and even providing them with monetary incentive, corporate boards can utilize whistleblowers as an effective mechanism to promote their companies’ success from within and protect the communities that they serve. As Jackson Lewis attorneys Lindsay Dennis Swiger and Christian Clark highlighted recently in an article titled “’ Knock on our door before we knock on yours:’ Recent DOJ Trends | Corporate Governance & Internal Investigations Advisor (corporatecomplianceadvisor.com) ,” the United States Department of Justice is implementing a pilot program to monetarily reward employees who “b...

  There are a number of mistakes—some simple and some not-so-simple—that employers should avoid to prevent receiving a panic-inducing assessment letter from the IRS. Mistake #1: Failure to Indicate that Minimum Essential Coverage Was Offered to Full-Time Employees One of the most common issues that I see is failure to indicate to the IRS that an offer of MEC was actually made to at least 95% of the employer’s full-time employees and their dependents. This will lead to an assessment of financial penalties under Internal Revenue Code (“Code)” Section 4980H. On Form  1094-C , Part III, Column (a) should be completed to indicate whether such an offer of coverage was made for all 12 months or for certain months during the year. Frequently, I have found that payroll companies will automatically default to checking the “no” box on the 1094-C, or leaving this box blank when preparing the 1094-C for their clients. Many organizations submit this Form 1094-C without carefully reviewing i...

 To find out if your organization is a covered entity under the Cybersecurity and Infrastructure Security Agency, I found a Fact Sheet  that may help with that decision. On April 4, the Cybersecurity and Infrastructure Security Agency published a notice of proposed rulemaking setting out mandatory reporting requirements for covered entities that experience cybersecurity incidents or make ransom payments in relation to a cybersecurity incident.  While the rule will inevitably change following the notice and comment period, the proposed rule represents the overall approach that CISA will take when it promulgates a final rule. JD Supra includes the original full publication that was published by Law360 on May 8, 2024. Source(s): JD Supra , received on May 14, 2024; CISA Covered Entity Fact Shee t, accessed on May 14, 2024.

With the April 23, 2024 FTC approval and issuance of the final rule banning employers' use of non-compete agreements (with very few exceptions), despite the unfavorable reception from some employers, it may be important to understand that all is not lost.  The FTC's new rule will force US employers to adopt practices that California companies have used for generations (remember the Gold Rush?  California became the 5th largest economy in the world. Employers need to lean into confidentiality, intellectual property, and trade secret provisions in employment agreements.  This is one of the best ways to safeguard their businesses. The focus of this article is to provide practical guidance that can help employers make the necessary pivot toward protecting their trade secrets. In this article, JD Supra provides this guidance:   Draft separate, stand-alone agreements to address confidentiality, intellectual property, and trade secret provisions.  Provisions addressing...

  How does a company use AI responsibly in order to protect themselves as new regulations regarding the use of AI becomes available?   Policymakers want to regulate the use of AI to assist HR departments with their recruitment process and hiring decisions.  Specifically, they are wanting to focus on where the use of AI might lead to potential bias, discrimination or other unintentional risks.   There are many advantages to using AI-Powered Hiring Tools.  It enables the ability to assess the qualifications of large applicant pools quickly and accurately.  It is reported (by the American Civil Liberties Union) that 70% of employers were using AI in some fashion during their hiring processes.   According to a  Fact Sheet  released by the White House, part of Biden's Executive Order to ensure responsible use of AI across the country, is to protect workers including a pledge to "develop principles and best practices to mitigate (limit) the harms a...

  On April 15, 2024, the Employee Benefits Security Administration is proposing to collect information from plan administrators on a voluntary basis.  This information will be used to create an online search tool that will help workers locate lost retirement savings they have earned. This proposed notice can be found on the Federal Register---written comments on the proposal should be submitted on or before June 17, 2024.   Source(s):  The Department of Labor , received on April 15, 2024; The  Federal Register , accessed on April 19, 2024

  Connecticut’s paid sick leave law currently applies to employers who employ at least 50 individuals in the State of Connecticut . That threshold will be lowered beginning on the effective date of the new law (expected to be Jan. 1, 2025) and will reduce annually until Jan. 1, 2027, at which time it will apply to employers with one or more employees in the State of Connecticut. Under the new law, the definition of covered employer will be adjusted as follows: As of Jan. 1, 2025 – Employers employing 25 or more individuals in the state As of Jan. 1, 2026 – Employers employing 11 or more individual s in the state As of Jan. 1, 2027 – Employers employing one or more individuals in the state Self-employed individuals and employers that participate in multiemployer health plans maintained pursuant to one or more collective bargaining agreements between a construction-related union and employer are not covered employers under the new law. Of equal importance is the expansion of the in...