Employment Compliance Alerts

Federal

New ``Know Your Rights`` Poster

Recently, the Equal Employment Opportunity Commission (EEOC) published an updated “Know Your Rights” poster.

Covered employers are required to post this “in a conspicuous location in the workplace where notices to applicants and employees are customarily posted.” The Americans with Disabilities Act also requires this posting to be made available in a location that is accessible to applicants and employees with disabilities who have limited mobility.

Covered employers may also post a digital notice on their websites to supplement the physical poster as well as inform remote or hybrid workers of their rights. For a digital copy, visit the EEOC’s website by clicking here.

To help employers comply, please click here to download the printing/posting version of the form.

Covered Employers: employers with “15 or more employees who worked for the employer for at least twenty calendar weeks (in this year or last).”

Covered employers may be subject to fines for noncompliance.

U.S. Citizenship and Immigration Services Publishes New I-9 Form

Effective August 1, 2023, employers should begin using the newly published I-9 Form. You may access it here, or you may find it within your HR Director account. Penalties will be issued to employers who are not using the new form beginning November 1, 2023.

Among the updates, the revised form:

Reduces Sections 1 and 2 to a single-sided sheet;
Is designed to be a fillable form on tablets and mobile devices;
Moves the Section 1 Preparer/Translator Certification area to a separate, standalone supplement that employers can provide to employees when necessary;
Moves Section 3, Reverification and Rehire, to a standalone supplement that employers can print if or when rehire occurs or reverification is required;
Revises the Lists of Acceptable Documents page to include some acceptable receipts as well as guidance and links to information on automatic extensions of employment authorization documentation;
Reduces Form instructions from 15 pages to 8 pages; and
Includes a checkbox allowing employers to indicate they examined Form I-9 documentation remotely under a DHS-authorized alternative procedure* rather than via physical examination.

*The Federal Register document provides an alternative for certain employers to remotely examine I-9 Form documents, instead of the current requirement to examine documents in-person. To participate in the remote examination of I-9 Form documents under the DHS-authorized alternative procedure, employers must:

be enrolled in E-Verify;
examine and retain copies of all documents;
conduct a live video interaction with the employee; and
create an E-Verify case if the employee is a new hire.

California

CA Workplace Violence Prevention Law - Action Required - Deadline July 1, 2024

On January 30, 2024, we issued a Compliance Alert regarding California’s new workplace violence prevention plan law. Today’s Alert is only an update to this previous information, and it’s specifically about a new publication issued by Cal/OSHA to assist with the law.

On March 1st, Cal/OSHA published a model-written Workplace Violence Prevention Plan (WVPP) for employers. In addition, they published a Fact Sheet for Employers. Both are designed to help employers comply with the new law.

This information and more can be found by clicking here. Once on the Cal/OSHA web page, scroll down until you see “Publication Categories” and then click on “Workplace Violence Prevention.”

We recommend accessing and using this information to help you build your business’s WVPP. In addition, you may want to work with your Cal/OSHA representative.

CA Workplace Violence Prevention Law - Action Required

In 2023, CA enacted groundbreaking legislation that will require virtually all employers to create a comprehensive workplace violence prevention plan by July 1, 2024.

This law falls under the California Division of Occupational Safety and Health (Cal-OSHA), which is not Bent Ericksen & Associates’ area of expertise. Generally, questions about Cal-OSHA regulations should be directed towards an OSHA representative and/or expert, and we encourage you to do so as you begin working on this new law’s requirements.

We wanted to provide this Compliance Alert to ensure you are aware of this new law, as well as answer a few basic questions and provide a couple of helpful documents for your use.

Is anyone excluded from this new law?

Yes, the following are exempt:

Health care facilities, service categories and operations subject to Cal-OSHA’s Violence Prevention in Health Care regulation;
Other employers that comply with Cal-OSHA’s Violence Prevention in Health Care regulation;
Employees teleworking from a location of the employee’s choice, which is not under the control of the employer;
Places of employment where there are less than 10 employees working at the place at any given time that are not accessible to the public;
Facilities operated by the Department of Corrections and Rehabilitation; and
Law enforcement agencies.

What does the law require?

The following are the new obligations:

Develop and implement a workplace violence prevention plan specific to your place of business. This may be a standalone document or as part of your required Injury and Illness Prevention Plan. Note: there are roughly 13 total components, and employee participation in its development is required. Click here for a sample checklist.
Train employees on the plan.
Create workplace violence incident logs.
Maintain records for up to 5 years.

What is the definition of workplace violence?

Workplace violence means any act of violence or threat of violence that occurs in a place of employment. Workplace violence includes, but is not limited to, the following:

The threat or use of physical force against an employee that results in, or has a high likelihood of resulting in, injury, psychological trauma, or stress, regardless of whether the employee sustains an injury.
An incident involving a threat or use of a firearm or other dangerous weapon, including the use of common objects as weapons, regardless of whether the employee sustains an injury.

The following four workplace violence types:

Type 1 violence, which means workplace violence committed by a person who has no legitimate business at the worksite, and includes violent acts by anyone who enters the workplace or approaches workers with the intent to commit a crime.
Type 2 violence, which means workplace violence directed at employees by customers, clients, patients, students, inmates, or visitors.
Type 3 violence, which means workplace violence against an employee by a present or former employee, supervisor, or manager.
Type 4 violence, which means workplace violence committed in the workplace by a person who does not work there, but has or is known to have had a personal relationship with an employee.

An employee need not suffer an actual injury for the act or threat to constitute workplace violence.

What is required for training?

Employers must conduct training with employees about the various aspects of the law as well as the employer’s plan. Training must be conducted at the following times:

Upon initial implementation (July 1, 2024).
Annually after implementation.
Periodically when changes to the plan are made and/or when a new threat has been recognized by the employer.

The training must have “[a]n opportunity for interactive questions and answers with a person knowledgeable about the employer’s plan.”

What are workplace violence incident logs?

Employers must investigate all incidents of workplace violence, and the results must be kept as a log. These logs must include information such as date, time, and location, violence type, detailed description of the incident, and much more.

Click here for a sample log from Cal-Chamber.

What types of records must be kept?

Plan training records for 1 year.
Workplace violence hazard identification, evaluation, and correction for 5 years.
Workplace violence incident logs for 5 years.
Workplace violence incident investigations for 5 years.

Records must be made available to Cal-OSHA upon request.

CA Labor Commissioner Updates Sick Leave FAQs

As many of you may have seen, we updated the Sick Leave policy in our HR Director portal in mid-November. The change increased sick leave from 3 days to 5 days each year and from a 6-day cap to a 10-day cap. This goes into effect January 1, 2024.

Last week, CA’s Labor Commissioner revised its sick leave FAQs, which has shed some light on how to handle the transition to the newly increased amounts. We want to share with you two of those questions as they are critical to overall compliance.

1) If an employer utilized the “up-front” method prior to January 1, 2024 and provided an employee with 3 days or 24 hours of leave on the employee’s anniversary date during the year, what must an employer do to comply with the law on January 1, 2024?

The employer has the choice to frontload the two additional days on January 1, 2024 or move the measurement of the yearly period to January 1, 2024 and frontload five days. For example, if an employee started on May 1, 2021 and the employer used that anniversary date to frontload 3 days or 24 hours on May 1, 2023, the employer may either provide 2 days or 16 hours on January 1, 2024 and keep the May 1 date to frontload or can “reset” the frontload date to January 1, 2024 and provide the employee 5 days or 40 hours then.

2) If an employer uses an accrual method and capped an employee’s yearly use of leave at 3 days or 24 hours, what must an employer do to comply with the law on January 1, 2024?

If an employer uses an annual start date other than January 1 and implements a 12‑month use cap, that cap must change to 40 hours or 5 days on January 1, 2024. For example, if an employer uses the 12-month period of May 1 – April 30 and implements a cap and an employee used 24 hours or three days before January 1, 2024, the employer must allow the employee to use an additional 2 days or 16 hours before April 30 if the employee has accrued that additional leave.

If you’d like review these FAQs and more, please visit their website by clicking here.

``CalSavers`` Program Expanded'

In 2019, California launched a program called “CalSavers.” To recap the program, it is designed to give Californians an easy and simple way to save for retirement. CalSavers gives employees an opportunity to defer their wages, through payroll deductions by the employer, to a state-run individual retirement savings account. The program rolled out over three years from large employers to small ones. This summer, June 2022, saw the last roll out of the original program to include all employers with 5+ employees.

California employers are required to facilitate CalSavers if they don’t offer an employer-sponsored retirement plan, such as a 401(k) or pension plan. Every employee must be enrolled in the program unless the employee elects to opt-out.

Under a new bill, SB1126, signed by Governor Newsom, the program has been expanded to include any person or entity engaged in a business, industry, profession, trade, or other enterprise in the state who employs at least one California employee.

Additionally, employers with 5 or more employees that do not offer a retirement savings program must have a payroll deposit saving arrangement to allow employee participation in the program within 36 months after the Board opens the program for enrollment. And by December 31, 2025, all eligible employers with one or more employees would need to have a payroll deposit savings arrangement, if they do not provide a retirement savings program themselves.

Registration for the program is open for all employers. Please visit https://www.calsavers.com for more information.

CA Supplemental Sick Leave for 2022 Update #1

Effective September 30, 2022 – California Supplemental COVID-19 Sick Leave EXTENDED through December 31, 2022.

Applicable Employers:

ALL employers with 26 or more employees

The program remains the same as before and does not provide a new bucket of leave; therefore, employers should continue to implement and follow the leave requirements set forth in the original temporary law. Click here to review our Alert from earlier this year that details some of the specifics of the temporary law.

There are a couple of new changes that are employer-friendly:

Small businesses (26-49 employees) and nonprofits may be eligible for grants to help offset the costs of Supplemental Paid Sick Leave. Grants will be managed within the Governor’s Office of Business and Economic Development, also known as GO-Biz. This provision of the temporary law expires on January 1, 2024.
Employers may require workers to take a second COVID-19 diagnostic test, at no cost to the employee, if an employee continues to test positive after taking any test required on or after the fifth day. This test can be taken no earlier than at least 24 hours after any positive result on a test taken on or after the fifth day.
Employers will not be required to provide additional Supplemental Paid Sick Leave to employees who refuse to take the COVID-19 diagnostic tests permitted by the law. NOTE: Please see previous Alert regarding the two separate leave banks that are available. This provision applies only to the second leave bank available to employees when they or a family member tests positive for COVID-19.

For more information, please visit: https://www.dir.ca.gov/dlse/COVID19Resources/2022-SPSL-FAQs.html

CA Supplemental Sick Leave for 2022 Update #2

Effective September 30, 2022 – California Supplemental COVID-19 Sick Leave EXTENDED through December 31, 2022.

Applicable Employers:

ALL employers with 26 or more employees

Poster Requirement

Applicable employers are required to display a poster regarding this temporary law. Please click here for the poster, which was just updated and released by CA.

COVID-19 Workplace Exposure Reporting

Assembly Bill 685 was signed by Governor Newsom in early September and takes effect January 1, 2021. This bill imposes reporting requirements on employers related to COVID-19 cases in the workplace. Specifically, it says:

If an employer or representative of the employer receives a notice of potential exposure to COVID-19, the employer shall take all of the following actions within one business day of the notice of potential exposure:

1. Provide a written notice to all employees, and the employers of subcontracted employees, who were on the premises at the same worksite as the qualifying individual within the infectious period that they may have been exposed to COVID-19 in a manner the employer normally uses to communicate employment-related information. Written notice may include, but is not limited to, personal service, email, or text message if it can reasonably be anticipated to be received by the employee within one business day of sending and shall be in both English and the language understood by the majority of the employees.
2. Provide a written notice to the exclusive representative, if any, of employees under paragraph (1).
3. Provide all employees who may have been exposed and the exclusive representative, if any, with information regarding COVID-19-related benefits to which the employee may be entitled under applicable federal, state, or local laws, including, but not limited to, workers’ compensation, and options for exposed employees, including COVID-19-related leave, company sick leave, state-mandated leave, supplemental sick leave, or negotiated leave provisions, as well as anti-retaliation and anti-discrimination protections of the employee.
4. Notify all employees, and the employers of subcontracted employees and the exclusive representative, if any, on the disinfection and safety plan that the employer plans to implement and complete per the guidelines of the federal Centers for Disease Control.

If an employer or representative of the employer is notified of the number of cases that meet the definition of a COVID-19 outbreak, as defined by the State Department of Public Health, within 48 hours, the employer shall notify the local public health agency in the jurisdiction of the worksite of the names, number, occupation, and worksite of employees who meet the definition in subdivision (d) of a qualifying individual. An employer shall also report the business address and NAICS code of the worksite where the qualifying individuals work. An employer that has an outbreak subject to this section shall continue to give notice to the local health department of any subsequent laboratory-confirmed cases of COVID-19 at the worksite.

The notice required pursuant to paragraph (2) of subdivision (a) shall contain the same information as would be required in an incident report in a Cal/OSHA Form 300 injury and illness log unless the information is inapplicable or unknown to the employer. This requirement shall apply regardless of whether the employer is required to maintain a Cal/OSHA Form 300 injury and illness log. Notifications required by this section shall not impact any determination of whether or not the illness is work related.

To read the full text of the bill, please click here.

Reporting & Training Mandates Pertaining to Child Abuse & Neglect

Assembly Bill 1963 was signed by Governor Newsom in September, which immediately amends Section 11165.7 of the Penal Code, relating to mandated reporters of child abuse.

Under existing law, the Child Abuse and Neglect Reporting Act requires a mandated reporter, as defined, to report whenever they, in their professional capacity or within the scope of their employment, have knowledge of or observed a child whom the mandated reporter knows or reasonably suspects has been the victim of child abuse or neglect.

This bill adds the following to the list of individuals who are mandated reporters:

a human resource employee of a business with 5 or more employees that employs minors;
for the purposes of reporting sexual abuse, an adult whose duties require direct contact with and supervision of minors in the performance of the minors’ duties in the workplace of a business with 5 or more.

The bill also requires those employers to provide their employees who are mandated reporters with training on identification and reporting of child abuse and neglect.

To read the full text of the bill, please click here.

FAQs Released Regarding the Fair Chance Act (a.k.a. “ban the box” law)

The California Department of Fair Employment and Housing recently released Frequently Asked Questions for California’s Fair Chance Act. The Fair Chance Act, commonly referred to as California’s “ban the box” law, imposes restrictions on when and how employers may inquire about and consider an applicant’s criminal history, including prohibiting employers with five or more employees from asking about an applicant’s criminal history until after a conditional offer of employment has been made. The FAQ provides guidance on the Fair Chance Act and includes questions addressing how the law works, which employers are subject to the law, and the requirements that employers must follow in order to inquire about an applicant’s criminal history and make employment decisions based on that information.

To read the full list of FAQs, please click here.

Pay Data Reporting Obligations

Assembly Bill 973 was signed by Governor Newsom in September.

This bill requires, on or before March 31, 2021, and on or before March 31 each year thereafter, a private employer that has 100 or more employees, and that is required to file an annual Employer Information Report under federal law, to submit a pay data report to the California Department of Fair Employment and Housing (DFEH) that contains specified wage information. Furthermore, the bill authorizes the DFEH, if it does not receive the required report from an employer, to seek an order requiring the employer to comply, as specified.

To read the full text of the bill, please click here.

This Just In...New Anti-Harassment Training Requirements Delayed!

Earlier this year, we sent a Compliance Alert regarding a new harassment prevention law that was in effect for CA. In this Alert, we informed you about new anti-harassment training requirements that were to be completed by January 1, 2020. To view the previous Alert, see below. This requirement has been delayed. Here is the new schedule (information provided by CALChamber):

Some California employers now have until January 1, 2021 to train employees on sexual harassment prevention, which is a one-year extension of the original January 1, 2020 deadline.

The deadline was not extended for employers of seasonal and temporary employees, who are hired to work for less than six months. Starting January 1, 2020, these employees must be trained within 30 calendar days after their hire date or within 100 hours worked, whichever occurs first.

Employer Training Deadlines

Under the new law, SB 778, all employees — supervisory and nonsupervisory — must be trained by January 1, 2021.

Below is a quick breakdown for employers who’ve trained employees this year or in previous years:

Year you last trained:	Next required training year:	Explanation:
2019	2021	SB 778 clarifies that employers who train their employees in 2019 aren’t required to provide refresher training until two years from the time the employee was trained.
2018	2020	SB 778 allows those employers who trained employees in 2018 to maintain their two-year cycle and still comply with the new January 1, 2021, deadline.
2017	2019	Employers who trained supervisors in 2017 under prior law, known as AB 1825, should still train those employees this year in order to maintain their two-year cycle.

Cal Savers Retirement

“CalSavers” was designed to give Californians an easy and simple way to save for retirement. California launched a pilot program back in November 2018 that will begin the process of offering an estimated 7 million workers in CA the opportunity to contribute to an Individual Retirement Account (IRA) and get on track for their future.

California employers are required to facilitate “CalSavers” if they don’t offer an employer-sponsored retirement plan and have five (5) or more employees.

Employers don’t have to wait to begin helping their employees save for their future. Employers of all sizes can register for the program beginning July 2019, but no later than the following deadlines:

An employer employing 100 or more employees: June 2020
An employer employing 50 to 99 employees: June 2021
An employer employing 5 to 49 employees: June 2022

You will be notified by “CalSavers” when it’s time for your business to register. You’ll need three pieces of information before you begin:

Federal Employer Identification or Tax Identification Number (EIN/TIN)
CA Employer Payroll Tax Account Number
“CalSavers” access code from your notification.

For more information on “CalSavers,” please see visit https://www.calsavers.com/

Harassment Prevention Law

In the fall of 2018, the California State Governor signed Senate Bill 1343, which added a new training requirement for small employers.

New Mandatory Training

As of January 1, 2019, all employers with five (5) or more employees must provide training to all employees. All current employees must be trained by January 1, 2020.

The training must be two (2) hours of classroom or other effective interactive training and education regarding sexual harassment to all supervisory employees. For non-supervisory employees, the training must be one (1) hour of classroom or other effective interactive training and education regarding sexual harassment.

The training may be conducted with other employees, as a group, or individually, and broken up into shorter time segments, as long as the two-hour requirement for supervisory employees and one-hour requirement for non-supervisory employees is reached.

Once this initial training is completed for each employee, supervisors and non-supervisory employees must receive training once every two (2) years.

New employees: This training must occur within six (6) months of the employee’s assumption of a position.

Temporary or seasonal employees: must be trained within 30 calendar days after the hire date or within 100 hours worked if the employee will work for less than six months.

Developing the Training

The Department of Fair Employment and Housing (DFEH) is required to develop and make available on its website the one-hour and two-hour training courses for supervisory and non-supervisory employees. Employers may develop their own training platforms, or hire a third-party to provide the training, as long as the training provided complies with the law’s requirements.

Additional Information

Click here for the FAQs on the DFEH website.

Click here to read the text of the bill.

For a “Toolkit” on these new requirements that has been created by the DFEH, please click here and here.

Federal W-4 and State DE 4 Form Required

According to the Employment Development Department (EDD), “when you hire an employee, you must have them complete and sign both withholding certificates: the federal Form W-4 and the state DE 4. The W-4 is used for federal income tax and the DE 4 is used for California Personal Income Tax (PIT).”

“New hires and existing employees making changes to their withholdings must submit both the Form W-4 and the Employee’s Withholding Allowance Certificate (DE 4) (PDF). If an employee does not give you a properly completed state DE 4, you must withhold state income taxes from the employee’s wages as if the employee were single and claiming zero withholding allowances.”

“Employees who submitted a Form W-4 before 2020 are not required to submit a new form if they have no changes to their withholding allowances. Continue to calculate withholding based on previously submitted forms.”

Four Employment Law Changes Affecting CA Employers

Pay Scale Information (Applicants, Current Employees and Job Postings)

SB 1162 states:

Note: this applies to employers of all sizes.

“An employer, upon reasonable request, shall provide the pay scale for a position to an applicant applying for employment.”

“An employer, upon request, shall provide an employee the pay scale for the position in which the employee is currently employed.”

SB 1162 states:

Note: this applies to employers with 15 or more employees.

“An employer with 15 or more employees shall include the pay scale for a position in any job posting.”

“An employer with 15 or more employees that engages a third party to announce, post, publish, or otherwise make known a job posting shall provide the pay scale to the third party. The third party shall include the pay scale in the job posting.”

“Pay Scale” defined: “the salary or hourly wage range that the employer reasonably expects to pay for the position.”

Record Retention: “An employer shall maintain records of a job title and wage rate history for each employee for the duration of the employment plus three years after the end of the employment…These records shall be open to inspection by the Labor Commissioner.”

Enforcement: Upon finding that an employer has violated this section, the Labor Commissioner may order the employer to pay a civil penalty of no less than one hundred dollars ($100) and no more than ten thousand dollars ($10,000) per violation.

Workplace Safety

SB 1044 states:

Note: this applies to employers of all sizes.

“In the event of an emergency condition, an employer shall not do either of the following:

Take or threaten adverse action against any employee for refusing to report to, or leaving, a workplace or worksite within the affected area because the employee has a reasonable belief that the workplace or worksite is unsafe.
Prevent any employee from accessing the employee’s mobile device or other communications device for seeking emergency assistance, assessing the safety of the situation, or communicating with a person to verify their safety.”

“Emergency condition” means the following:

Conditions of disaster or extreme peril to the safety of persons or property at the workplace or worksite caused by natural forces or a criminal act.
An order to evacuate a workplace, a worksite, a worker’s home, or the school of a worker’s child due to natural disaster or a criminal act.

“Emergency condition” does not include a health pandemic.

Some exceptions apply. To read the full text of the law, click here.

COVID-19-Related

Note: this applies to employers of all sizes.

Existing law requires employers to provide notice to their employees when there’s a potential COVID-19 exposure at the worksite and to report cases to local health departments under certain conditions.

Regarding the notice requirement, the new law, AB 2693, now allows an employer to satisfy this by prominently displaying a notice of the potential exposure in the workplace.

Significantly, the new law, AB 2693, removes the requirement that employers report cases to their local health departments.

For complete details on these requirements, including specifics on what to post and when, please click here to read the law.

Note: this will expire on January 1, 2024 unless extended.

CA Privacy Rights Act (CPRA)

In 2020, voters approved Proposition 24, known as the CA Privacy Rights Act (CPRA). The CPRA amended the CA Consumer Privacy Act (CCPA) and many of the changes take effect January 1, 2023.

Applicability: The CPRA will apply to for-profit businesses doing business in the state of CA that meet one of the following criteria:

Have a gross annual revenue in excess of $25 million;
That buy, sell and/or share (alone or in combination) personal information of 100,000 or more California residents or households; or
That derive 50 percent or more of annual revenue from selling or sharing consumers’ personal information.

Employers covered by the CPRA will have to comply with the law’s notice and disclosure requirements with respect to personal information collected from their employees and job applicants. Employers will also have numerous obligations with respect to employees’ rights under the CPRA.

If CPRA is applicable to your business, please work with legal counsel or an expert on CPRA/CCPA to ensure compliance.

``CalSavers`` Program Expanded'

Registration for the program is open for all employers. Please visit https://www.calsavers.com for more information.

CA Supplemental Sick Leave for 2022 Update #1

Effective September 30, 2022 – California Supplemental COVID-19 Sick Leave EXTENDED through December 31, 2022.

Applicable Employers:

ALL employers with 26 or more employees

There are a couple of new changes that are employer-friendly:

Small businesses (26-49 employees) and nonprofits may be eligible for grants to help offset the costs of Supplemental Paid Sick Leave. Grants will be managed within the Governor’s Office of Business and Economic Development, also known as GO-Biz. This provision of the temporary law expires on January 1, 2024.
Employers may require workers to take a second COVID-19 diagnostic test, at no cost to the employee, if an employee continues to test positive after taking any test required on or after the fifth day. This test can be taken no earlier than at least 24 hours after any positive result on a test taken on or after the fifth day.
Employers will not be required to provide additional Supplemental Paid Sick Leave to employees who refuse to take the COVID-19 diagnostic tests permitted by the law. NOTE: Please see previous Alert regarding the two separate leave banks that are available. This provision applies only to the second leave bank available to employees when they or a family member tests positive for COVID-19.

For more information, please visit: https://www.dir.ca.gov/dlse/COVID19Resources/2022-SPSL-FAQs.html

CA Supplemental Sick Leave for 2022 Update #2

Effective September 30, 2022 – California Supplemental COVID-19 Sick Leave EXTENDED through December 31, 2022.

Applicable Employers:

ALL employers with 26 or more employees

Poster Requirement

Applicable employers are required to display a poster regarding this temporary law. Please click here for the poster, which was just updated and released by CA.

COVID-19 Workplace Exposure Reporting

1. Provide a written notice to all employees, and the employers of subcontracted employees, who were on the premises at the same worksite as the qualifying individual within the infectious period that they may have been exposed to COVID-19 in a manner the employer normally uses to communicate employment-related information. Written notice may include, but is not limited to, personal service, email, or text message if it can reasonably be anticipated to be received by the employee within one business day of sending and shall be in both English and the language understood by the majority of the employees.
2. Provide a written notice to the exclusive representative, if any, of employees under paragraph (1).
3. Provide all employees who may have been exposed and the exclusive representative, if any, with information regarding COVID-19-related benefits to which the employee may be entitled under applicable federal, state, or local laws, including, but not limited to, workers’ compensation, and options for exposed employees, including COVID-19-related leave, company sick leave, state-mandated leave, supplemental sick leave, or negotiated leave provisions, as well as anti-retaliation and anti-discrimination protections of the employee.
4. Notify all employees, and the employers of subcontracted employees and the exclusive representative, if any, on the disinfection and safety plan that the employer plans to implement and complete per the guidelines of the federal Centers for Disease Control.

To read the full text of the bill, please click here.

Reporting & Training Mandates Pertaining to Child Abuse & Neglect

Assembly Bill 1963 was signed by Governor Newsom in September, which immediately amends Section 11165.7 of the Penal Code, relating to mandated reporters of child abuse.

This bill adds the following to the list of individuals who are mandated reporters:

a human resource employee of a business with 5 or more employees that employs minors;
for the purposes of reporting sexual abuse, an adult whose duties require direct contact with and supervision of minors in the performance of the minors’ duties in the workplace of a business with 5 or more.

The bill also requires those employers to provide their employees who are mandated reporters with training on identification and reporting of child abuse and neglect.

To read the full text of the bill, please click here.

FAQs Released Regarding the Fair Chance Act (a.k.a. “ban the box” law)

To read the full list of FAQs, please click here.

Pay Data Reporting Obligations

Assembly Bill 973 was signed by Governor Newsom in September.

To read the full text of the bill, please click here.

This Just In...New Anti-Harassment Training Requirements Delayed!

Some California employers now have until January 1, 2021 to train employees on sexual harassment prevention, which is a one-year extension of the original January 1, 2020 deadline.

Employer Training Deadlines

Under the new law, SB 778, all employees — supervisory and nonsupervisory — must be trained by January 1, 2021.

Below is a quick breakdown for employers who’ve trained employees this year or in previous years:

Year you last trained:	Next required training year:	Explanation:
2019	2021	SB 778 clarifies that employers who train their employees in 2019 aren’t required to provide refresher training until two years from the time the employee was trained.
2018	2020	SB 778 allows those employers who trained employees in 2018 to maintain their two-year cycle and still comply with the new January 1, 2021, deadline.
2017	2019	Employers who trained supervisors in 2017 under prior law, known as AB 1825, should still train those employees this year in order to maintain their two-year cycle.

Cal Savers Retirement

California employers are required to facilitate “CalSavers” if they don’t offer an employer-sponsored retirement plan and have five (5) or more employees.

An employer employing 100 or more employees: June 2020
An employer employing 50 to 99 employees: June 2021
An employer employing 5 to 49 employees: June 2022

You will be notified by “CalSavers” when it’s time for your business to register. You’ll need three pieces of information before you begin:

Federal Employer Identification or Tax Identification Number (EIN/TIN)
CA Employer Payroll Tax Account Number
“CalSavers” access code from your notification.

For more information on “CalSavers,” please see visit https://www.calsavers.com/

Harassment Prevention Law

In the fall of 2018, the California State Governor signed Senate Bill 1343, which added a new training requirement for small employers.

New Mandatory Training

As of January 1, 2019, all employers with five (5) or more employees must provide training to all employees. All current employees must be trained by January 1, 2020.

Once this initial training is completed for each employee, supervisors and non-supervisory employees must receive training once every two (2) years.

New employees: This training must occur within six (6) months of the employee’s assumption of a position.

Temporary or seasonal employees: must be trained within 30 calendar days after the hire date or within 100 hours worked if the employee will work for less than six months.

Developing the Training

Additional Information

Click here for the FAQs on the DFEH website.

Click here to read the text of the bill.

For a “Toolkit” on these new requirements that has been created by the DFEH, please click here and here.

Federal W-4 and State DE 4 Form Required

``CalSavers`` Program Expanded'

Registration for the program is open for all employers. Please visit https://www.calsavers.com for more information.

CA Supplemental Sick Leave for 2022 Update #1

Effective September 30, 2022 – California Supplemental COVID-19 Sick Leave EXTENDED through December 31, 2022.

Applicable Employers:

ALL employers with 26 or more employees

There are a couple of new changes that are employer-friendly:

Small businesses (26-49 employees) and nonprofits may be eligible for grants to help offset the costs of Supplemental Paid Sick Leave. Grants will be managed within the Governor’s Office of Business and Economic Development, also known as GO-Biz. This provision of the temporary law expires on January 1, 2024.
Employers may require workers to take a second COVID-19 diagnostic test, at no cost to the employee, if an employee continues to test positive after taking any test required on or after the fifth day. This test can be taken no earlier than at least 24 hours after any positive result on a test taken on or after the fifth day.
Employers will not be required to provide additional Supplemental Paid Sick Leave to employees who refuse to take the COVID-19 diagnostic tests permitted by the law. NOTE: Please see previous Alert regarding the two separate leave banks that are available. This provision applies only to the second leave bank available to employees when they or a family member tests positive for COVID-19.

For more information, please visit: https://www.dir.ca.gov/dlse/COVID19Resources/2022-SPSL-FAQs.html

CA Supplemental Sick Leave for 2022 Update #2

Effective September 30, 2022 – California Supplemental COVID-19 Sick Leave EXTENDED through December 31, 2022.

Applicable Employers:

ALL employers with 26 or more employees

Poster Requirement

Applicable employers are required to display a poster regarding this temporary law. Please click here for the poster, which was just updated and released by CA.

COVID-19 Workplace Exposure Reporting

1. Provide a written notice to all employees, and the employers of subcontracted employees, who were on the premises at the same worksite as the qualifying individual within the infectious period that they may have been exposed to COVID-19 in a manner the employer normally uses to communicate employment-related information. Written notice may include, but is not limited to, personal service, email, or text message if it can reasonably be anticipated to be received by the employee within one business day of sending and shall be in both English and the language understood by the majority of the employees.
2. Provide a written notice to the exclusive representative, if any, of employees under paragraph (1).
3. Provide all employees who may have been exposed and the exclusive representative, if any, with information regarding COVID-19-related benefits to which the employee may be entitled under applicable federal, state, or local laws, including, but not limited to, workers’ compensation, and options for exposed employees, including COVID-19-related leave, company sick leave, state-mandated leave, supplemental sick leave, or negotiated leave provisions, as well as anti-retaliation and anti-discrimination protections of the employee.
4. Notify all employees, and the employers of subcontracted employees and the exclusive representative, if any, on the disinfection and safety plan that the employer plans to implement and complete per the guidelines of the federal Centers for Disease Control.

To read the full text of the bill, please click here.

Reporting & Training Mandates Pertaining to Child Abuse & Neglect

Assembly Bill 1963 was signed by Governor Newsom in September, which immediately amends Section 11165.7 of the Penal Code, relating to mandated reporters of child abuse.

This bill adds the following to the list of individuals who are mandated reporters:

a human resource employee of a business with 5 or more employees that employs minors;
for the purposes of reporting sexual abuse, an adult whose duties require direct contact with and supervision of minors in the performance of the minors’ duties in the workplace of a business with 5 or more.

The bill also requires those employers to provide their employees who are mandated reporters with training on identification and reporting of child abuse and neglect.

To read the full text of the bill, please click here.

FAQs Released Regarding the Fair Chance Act (a.k.a. “ban the box” law)

To read the full list of FAQs, please click here.

Pay Data Reporting Obligations

Assembly Bill 973 was signed by Governor Newsom in September.

To read the full text of the bill, please click here.

This Just In...New Anti-Harassment Training Requirements Delayed!

Some California employers now have until January 1, 2021 to train employees on sexual harassment prevention, which is a one-year extension of the original January 1, 2020 deadline.

Employer Training Deadlines

Under the new law, SB 778, all employees — supervisory and nonsupervisory — must be trained by January 1, 2021.

Below is a quick breakdown for employers who’ve trained employees this year or in previous years:

Year you last trained:	Next required training year:	Explanation:
2019	2021	SB 778 clarifies that employers who train their employees in 2019 aren’t required to provide refresher training until two years from the time the employee was trained.
2018	2020	SB 778 allows those employers who trained employees in 2018 to maintain their two-year cycle and still comply with the new January 1, 2021, deadline.
2017	2019	Employers who trained supervisors in 2017 under prior law, known as AB 1825, should still train those employees this year in order to maintain their two-year cycle.

Cal Savers Retirement

California employers are required to facilitate “CalSavers” if they don’t offer an employer-sponsored retirement plan and have five (5) or more employees.

An employer employing 100 or more employees: June 2020
An employer employing 50 to 99 employees: June 2021
An employer employing 5 to 49 employees: June 2022

You will be notified by “CalSavers” when it’s time for your business to register. You’ll need three pieces of information before you begin:

Federal Employer Identification or Tax Identification Number (EIN/TIN)
CA Employer Payroll Tax Account Number
“CalSavers” access code from your notification.

For more information on “CalSavers,” please see visit https://www.calsavers.com/

Harassment Prevention Law

In the fall of 2018, the California State Governor signed Senate Bill 1343, which added a new training requirement for small employers.

New Mandatory Training

As of January 1, 2019, all employers with five (5) or more employees must provide training to all employees. All current employees must be trained by January 1, 2020.

Once this initial training is completed for each employee, supervisors and non-supervisory employees must receive training once every two (2) years.

New employees: This training must occur within six (6) months of the employee’s assumption of a position.

Temporary or seasonal employees: must be trained within 30 calendar days after the hire date or within 100 hours worked if the employee will work for less than six months.

Developing the Training

Additional Information

Click here for the FAQs on the DFEH website.

Click here to read the text of the bill.

For a “Toolkit” on these new requirements that has been created by the DFEH, please click here and here.

Federal W-4 and State DE 4 Form Required

Colorado

CO Supplemental Paid Sick Leave

On November 11, 2022, Governor Jared Polis issued an emergency declaration that amends CO’s Public Health Emergency Sick Leave (known as Supplemental Paid Sick Leave in the HR Director program).

Up to 80 hours of Supplemental Paid Sick Leave are available to all employees when there is a public health emergency declaration. This leave continues as long as a federal or state public health emergency is declared. Currently, federal and Colorado public health emergency declarations remain in effect.

Up until 11/11/22, Supplemental Paid Sick Leave could only be used for COVID-19 health needs. With the newest declaration, this has expanded to include flu, respiratory syncytial virus (“RSV”) and similar respiratory illnesses.

Colorado’s labor department confirmed the following: “The expansion beyond COVID-19 doesn’t give employees an extra 80 hours for those conditions, it just means they can use their 80 hours for a broader range of conditions.”

Supplemental Paid Sick Leave is not renewed each year; it is available once throughout the entirety of the public health emergency declaration. Therefore, this new expansion only affects employees who have not exhausted all of the Supplemental Paid Sick Leave hours available to them.

Supplemental Paid Sick Leave requirements will continue until four weeks after all applicable public health emergency declarations end or are suspended. Based on the current emergency declarations, Supplemental Paid Sick Leave will continue at least into February 2023, but will continue longer if either the federal or the state public health emergency declaration is renewed.

CO Supplemental Paid Sick Leave (UPDATED)

CO’s Public Health Emergency Sick Leave (A.K.A. Supplemental Sick Leave) Relating to COVID-19 Ends.

Effective June 9, 2023, CO employers will no longer be obligated to provide supplemental sick leave for COVID-19 reasons. Employees who are absent for reasons related to COVID-19 may use their regular sick leave bank, or take the time off without pay.

If there is a future public health emergency declared that triggers supplemental sick leave requirements, we will let you know.

CO Separation Notice Required

Recently, Colorado enacted a law requiring employers to provide notice of potential unemployment benefits available to an employee who leaves their employment for any reason. Now, at the time of separation, the employer must provide, in hard copy and electronic format, the following:

Notice of unemployment benefits
Employer’s name and address
Employee’s name and address
Employee’s ID number or the last four digits of their SSN
Employee’s first and last dates worked, year-to-date earnings, and wages for the last week worked
Reason for separation

This requirement applies to both voluntary and involuntary terminations.

To help employers comply, the Colorado Department of Labor issued a model form. Please click here for the form. This form will also be available on the Bent Ericksen & Associates HR Director platform.

CO Family and Medical Leave Insurance (FAMLI) Program

New Law Begins 2023: Important Deadlines and Information

Back in 2020, Colorado passed a law requiring employers to provide paid family leave benefits to their employees. The Colorado Family and Medical Leave Insurance (FAMLI) program will be run through a state agency and is set to begin January 2023. Please read below for important requirements and deadlines regarding this new law.

FAMLI is funded through payroll taxes and provides paid time off to employees for the following reasons:

Birth of a child
Bonding with a child
To care for a family member with a serious illness or injury
To care for yourself when you have a serious illness or injury
For situations involving domestic violence, stalking, sexual assault or abuse
For situations involving a family member’s military deployment

As a Bent Ericksen & Associates’ client, your HR Director account will be updated in the coming weeks to include a policy specific to this new program. You will need to update your manual accordingly and issue it to your employees prior to the new year.

Payroll Tax Contributions: As mentioned, FAMLI is funded through payroll taxes. Employers and their employees are both responsible for funding the program and may split the cost 50/50. For 2023, the premiums are set to 0.9% of the employee’s wage, with 0.45% paid by the employer and 0.45% paid by the employee.

Businesses with nine or fewer employees do not have to contribute to the program but do need to remit their employees’ share of the premium on behalf of employees each quarter. This can be done through a simple payroll deduction. All employers, regardless of size, will be required to register with the FAMLI Division before the first premium payment is due at the end of the first quarter of 2023.

Payroll deductions must begin on January 1, 2023. If you are using an outside payroll company, please contact them to ensure this will be managed properly. If you manage payroll in-house, please click here for a registration guide on submitting quarterly contributions.

Notify Employees About FAMLI: Colorado has a “FAMLI Toolkit for Employers” to assist with this requirement.

2023 Required Program Notice: The model notice must be physically posted in a prominent, visible location at each Colorado work site and should be provided electronically or by mail to any remote workers in Colorado. Click here for the form in English. For Spanish, click here.

Paycheck Stuffer: Another tool to help educate your employees about the FAMLI program is the paycheck stuffer. Employers can pair this with their regular paystubs, post it to their intranet, distribute it in internal newsletters or any other internal communication channels that reach employees. Please click here for the form in English. For Spanish, click here.

Breakroom Poster: Please click here for the form in English. For Spanish, click here.

Employee Handbook: Please click here for this in English.

This must be done by January 1, 2023.

Access to Paid Leave Benefits: Employees may apply for paid leave through FAMLI beginning January 1, 2024. This leave, with few exceptions, is job-protected. Please review the new policy for more details once it’s issued, or contact us to speak with an HR Specialist.

Additional Resources: For additional “FAMLI Toolkit for Employers” resources, click here.

Please also visit: https://famli.colorado.gov/

Connecticut

Harassment Prevention Law

On June 18, 2019, the Connecticut State Governor signed Public Act 19-16, publicly known as the “Time’s Up Bill.” This new law has the following requirements:

Mandatory Anti-Harassment Training

As of October 1, 2019, all employers with three (3) or more employees must provide two (2) hours of anti-harassment training to all employees. All employees hired before October 1, 2019 must be trained by October 1, 2020. All employees hired on or after October 1, 2019 must be trained within six (6) months of their date of hire.

As of October 1, 2019, all employers with less than three (3) employees must provide two (2) hours of anti-harassment training to all supervisory employees. All supervisory employees hired before October 1, 2019 must be trained by October 1, 2020. All supervisory employees hired on or after October 1, 2019 must be trained within six (6) months of their date of hire and/or assumption of a supervisory position.

Once this initial training is completed for each employee, employers must provide “periodic supplemental training that updates all supervisory and nonsupervisory employees on the content of such training and education not less than every ten years.”

The Connecticut Commission on Human Rights and Opportunities (CHRO) has been tasked with creating resources that employers can use to satisfy the training requirement at no cost. According to the CHRO website, “The CHRO is working on this project and aims to have the video completed and available by October 1, 2019 when the training requirements become effective for employers.” Here is a link to their website to check on the status of the training materials: https://www.ct.gov/chro/cwp/view.asp?a=5019&Q=609536&chroNav=|

Posting / Notice Requirement

Employers are required to post in a prominent and accessible location information concerning the illegality of sexual harassment and remedies available to victims of sexual harassment. In addition, within three (3) months after an employee’s start date, employers must provide a copy of the information concerning the illegality of sexual harassment and remedies available to victims of sexual harassment.

Special requirements exist if this will be done electronically. Please read the bill (link provided below) for more details.

According to the CHRO website, “The CHRO is currently in the process of developing and updating these materials and will make them available as they are completed.” Here is a link to their website to check on the status of the posting materials: https://www.ct.gov/chro/cwp/view.asp?a=5019&Q=609536&chroNav=|

Expanded Protections for Employees

If an employer takes immediate corrective action in response to an employee’s claim of sexual harassment, such corrective action shall not modify the conditions of employment of the employee making the claim of sexual harassment unless such employee agrees, in writing, to any modification in the conditions of employment. “Corrective action” taken by an employer, includes, but is not limited to, employee relocation, assigning an employee to a different work schedule or other substantive changes to an employee’s terms and conditions of employment.

Statute of Limitations and Potential Damages Increased

Employees who wish to file a complaint with the CHRO for any discriminatory practice will now have 300 days to do so (up from 180).

The new law greatly expands the potential damages that can be assessed by the CHRO if it concludes that a discriminatory employment practice has occurred.

Additional Information

Click here to read the text of the bill.

CT Leave Laws-Notices and Forms

At the start of this year, clients in CT received an update to their HR Director program. This update covered two policies: State Family and Medical Leave Act and Paid Family and Medical Leave. If you have not updated your policy manual, we recommend you do so as soon as possible. If you have, we hope you read the new information regarding required leaves that are now applicable to all employers regardless of size.

Recently, a new, additional requirement has been added. Effective immediately, employers must provide a written notice to employees at the time of hiring and annually thereafter. The notice must advise employees of:
the entitlement to family and medical leave and the terms under which such leave may be used.

The opportunity to file a claim for compensation under the paid leave program.
the fact that retaliation against employees for requesting, applying for, or using family and medical leave for which the employee is eligible is prohibited.
that employees have a right to file a complaint with the Labor Commissioner for any violation of the law.

The Connecticut Department of Labor recently released a sample notice, which employers can use to comply with this requirement. Click here for the notice. Going forward, this form will be available on the client account within the HR Director.

In addition, the CT Department of Labor issued several other forms that may be used as part of managing and documenting employee leave under these two policies. You may find the following forms within the HR Director:

CT Leave: Employers Written Notice (Upon Hire & Annually)
CT Leave: Designation Notice
CT Leave: Family Member Verification
CT Leave: Medical Certification – Employee
CT Leave: Medical Certification – Family Member
CT Leave: Medical Certification – Military Caregiver
CT Leave: Qualifying ExigencyFor additional information and resources, including comprehensive FAQs, visit the following websites:
https://ctpaidleave.org
https://portal.ct.gov/DOLUI/newfmlaguidance

Delaware

Sexual Harassment Prevention Law

Effective January 1, 2019, most Delaware employers have new requirements for managing sexual harassment prevention. This new law, as described below, is applicable to all employers who have 4 or more employees.

Part 1: Notice Requirement

Employers with 4 or more employees must give notice to employees of their right to be free from sexual harassment at work. The Delaware Department of Labor has published a notice for this purpose. Employers must distribute the notice, either electronically or physically, to new employees at the commencement of employment. All current employees must be given notice by July 1, 2019. Click here for the notice.

Part 2: Mandatory Training for Non-Supervisors

This part of the law is applicable to all employers with 50 or more employees.

By January 1, 2020, all current employees, excluding applicants and employees who are employed for less than six (6) continuous months, must be provided with interactive training and education on the prevention of sexual harassment. Training topics must cover the following:

The illegality of sexual harassment
The definition of sexual harassment using examples
The legal remedies and complaint process available to the employee
Directions on how to contact the Delaware Department of Labor
The legal prohibition against retaliation

Once all current employees have been trained, all newly hired employees should be trained in the same manner within one (1) year of the commencement of their employment.

Part 3: Mandatory Training for Supervisors

For employers with 50 or more employees who also employ Supervisors, additional training requirements exist.

By January 1, 2020, all current Supervisors must receive training that covers all of the above plus the following:

The specific responsibilities of a supervisor regarding the prevention and correction of sexual harassment

Once all current Supervisors have been trained, all newly hired Supervisors should be trained in the same manner within one (1) year of the commencement of their employment in a supervisory role.

Training for Supervisors must be repeated every two (2) years thereafter.

Additional Information:

According to the bill, the definition of an employee is: “an individual employed by an employer and includes state employees, unpaid interns, applicants, joint employees and apprentices.”

To read the full text of the bill, please click here.

Illinois

Harassment Prevention Law

In August of this year, the Illinois State Governor signed Senate Bill 75. This new law has the following requirements:

Mandatory Anti-Harassment Training

The Illinois Department of Human Rights (IDHR) shall produce a model sexual harassment prevention training program aimed at the prevention of sexual harassment in the workplace. The model program shall be made available to employers and to the public online at no cost.

Beginning January 1, 2020, every employer shall use the model sexual harassment prevention training program created by the IDHR or establish its own sexual harassment prevention training program that equals or exceeds the minimum standards established in the new law.

The training must, at minimum, include: (1) an explanation of sexual harassment; (2) examples of conduct that constitutes unlawful sexual harassment; (3) a summary of relevant state and federal laws prohibiting sexual harassment and the remedies for violations of these laws; and (4) a summary of the employer’s responsibility to prevent, investigate, and correct sexual harassment.

The sexual harassment prevention training shall be provided at least once a year to all employees.

Visit the IDHR website (https://www2.illinois.gov/dhr/Pages/default.aspx) to check on the status of the training program development.

Annual Reporting of Adverse Judgments or Administrative Rulings

Beginning July 1, 2020, and by each July 1 thereafter, each employer that had an adverse judgment or administrative ruling against it in the preceding calendar year shall disclose information about the adverse judgment or administrative ruling annually to the Department of Human Rights. The required information includes, but is not limited to: (1) the total number of adverse judgments or administrative rulings during the preceding year; (2) whether any equitable relief was ordered against the employer.

Additional Information

Here’s a link to the full text of the bill: http://www.ilga.gov/legislation/101/SB/PDF/10100SB0075lv.pdf

Louisiana

New Law for Healthcare Facilities in Louisiana

Governor John Bel Edwards recently signed two new laws; both are effective August 1, 2022. These laws are aimed at preventing and managing violence against healthcare workers. Below are some specifics.

Act No. 461

What facilities are covered by this law?
The following are considered a “regulated entity” under this law:

Adult day health care facility
Substance abuse/addiction treatment facility
Behavioral health services provider
Ambulatory surgery center
Case management facility
Urine drug screening facility
Mobile cholesterol screening facility
End stage renal disease facility
Supplier of portable X-ray services
Home health agency
Hospice
Hospital
Nursing home
Rural health clinic
ICF/DD facility
Outpatient abortion facility
Psychiatric residential treatment facility
Children’s respite care center
Pediatric day health care facility
A federally qualified health center as defined in R.S. 40:1185.3
A pharmacy permitted in accordance with Part IV of Chapter 14 of Title 37 of the Louisiana Revised Statutes of 1950
Any office of a healthcare provider at which five or more healthcare professionals, as defined in R.S. 14:34.8(B), treat patients and such office is not otherwise licensed by the state but provides healthcare services
Any other healthcare provider licensed or certified by the Louisiana Department of Health

What is required under this law?

1) Each regulated entity shall display at its premises at least one sign that indicates that abuse of or workplace violence against healthcare staff will not be tolerated and could result in a felony conviction under applicable laws.
This sign must be posted in a conspicuous location in a publicly accessible area of the regulated entity’s facility.

The sign shall be at least 18 inches tall by 18 inches wide and written in English language letters not less than one square inch in size.

Download a sample sign here.

2) Each regulated entity shall develop and maintain a comprehensive workplace violence prevention plan.

3) Each regulated entity shall report to the proper authority, as required by the entity’s workplace violence prevention plan, any instance of workplace violence that occurs on its property.

If an instance of workplace violence at a regulated entity’s facility results in injury, involves the use of a firearm or other dangerous weapon, or presents an urgent or emergent threat to the welfare, health, or safety of facility personnel, the regulated entity shall report the incident within twenty-four hours.

4) No regulated entity can take any retaliatory action against a person who, in good faith, reports an allegation of or an instance of workplace violence.

Are there other available resources?

Yes. This law requires the Louisiana Department of Health (LDH) to include information on its website regarding healthcare workplace violence.

In accordance with this law, the LDH launched a workplace violence prevention page. Click here to visit their website.
Some of the information you will find here are:

The full text of Act No. 461
a listing of resources on the issue of healthcare workplace violence
actions healthcare facilities can take to prevent, respond to, and mitigate healthcare violence
a checklist of items that healthcare facilities should consider when developing a workplace violence prevention plan

Act No. 129

This new law imposes enhanced penalties for the assault or battery of emergency room personnel, emergency services personnel, or a healthcare professional. Under the new law, battery or assault of any healthcare personnel is a felony.

This law also expands the prior definition of “healthcare professional” to include nearly all staff of a healthcare facility.

Finally, Act No. 129 creates a new criminal offense: the crime of unlawful disruption of the operation of a healthcare facility.

To read the full text of this law, click here.

Massachusetts

Paid Family and Medical Leave (PFML)

The PFML mandate creates an insurance program that will be administered by the MA Department of Family and Medical Leave. This program will be funded through payroll contributions made by employers and covered individuals.

Starting January 1, 2021, the PFML will require employers to provide eligible employees with up to 26 weeks of paid, job-protected family and medical leaves of absence.

Here are the key components to this new law:

Financial Contributions

As of July 1, 2019, all employers will be required to start making financial contributions to support the program. The initial rate is 0.63% of each employee’s wages on the first $132,900 of an individual’s annual gross earnings. The gross earnings threshold may be adjusted annually.

For more information about these contributions, particularly as it relates to contracted workers, please click here to visit a published toolkit for employers.

Private Plan Exemption

Employers already providing paid leave benefits that are as generous as the benefits provided by the PFML law can apply for an annual exemption through the MassTaxConnect portal beginning April 29, 2019.

Mandatory Quarterly Reporting

Starting October 2019, employers are required to begin providing quarterly reports through MassTaxConnect. Employers are expected to provide information that includes the name, social security number, and wages paid or other earnings for each employee and contracted service provider.

Notification to Workers

All employees and contractors must be notified of their PFML benefits. Employers may accomplish this by doing all of the following:

Displaying the mandatory workplace poster at each of their MA locations. Click here for the mandatory poster.
On or before May 31, 2019, provide written notice to their current employees and contractors of PFML benefits, contribution rates, and other provisions.
Provide written notice to new hires within 30-days of their first day of employment.
Provide written notice to contractors upon entering into a contract for services.

Click here for an employee notice provided by the Department of Family and Medical Leave (DFML).

Click here for a contractor notice provided by the Department of Family and Medical Leave (DFML).

Actions to Take Now

1) Set up a MassTaxConnect account.

2) Determine whether or not you can apply for exemption and immediately do so when the portal is available on April 29, 2019.

3) Begin taking appropriate deductions from payroll by July 1, 2019.

4) Provide all appropriate notices as required.

5) Update policy manuals to include leave available under PFML before leave can be taken beginning January 2021.

NOTE: For all current clients in 2020, we will ensure all MA policy manuals are updated appropriately.

COVID-19 Paid Sick Leave Ending

On October 1, 2021, we issued a Compliance Alert for MA clients regarding a Temporary Order requiring COVID-19 Paid Sick Leave. This Temporary Order was scheduled to expire the earlier of April 1, 2022 or the exhaustion of the $100 million in program funds.

On February 28, 2022, the Executive Office for Administration and Finance sent official notice to employers that the COVID-19 Paid Sick Leave program will end on March 15, 2022.

Employers will need to continue to offer leave to eligible employees through March 15 but may discontinue the program after that date.

Employers may continue to seek reimbursement for qualifying leave costs between May 28, 2021 and March 15, 2022. The deadline to submit applications for reimbursement is April 29, 2022.

To access the MA COVID-19 Temporary Emergency Paid Sick Leave Program website, click here.

As always, don’t hesitate to reach out if you have questions regarding your unique situation.

Stay safe and healthy!

Michigan

COVID-19: Employer Requirements & Restrictions

On October 21, 2020, Governor Whitmer signed legislation regarding COVID-19. The new law, codified as 2020 PA 238, has the following requirements:

Employees who test positive for COVID-19 or display “the principle symptoms” of COVID are legally prohibited from reporting to work until all prescribed legal conditions are met. These conditions are as follows:

An employee must be fever free for at least 24 hours without the use of fever-reducing medication if the employee had a fever;
10 days has passed since the latter of: a) The date on which the employee’s symptoms first appeared, or b) The date on which the employee received test results indicating a positive result for COVID-19
The employee’s principle symptoms “have improved.”

With some exceptions, the new law also prohibits employees from reporting to work if they had “close contact” with a person who tests positive for COVID-19 or displays the principle symptoms of COVID-19. “Close contact” is defined as being within 6 feet for at least 15 minutes. These employees are unable to report to work until either:

Fourteen days have passed since the employee has had close contact with the individual, or
The individual with whom the employee had close contact receives medical determination that they did not have COVID-19 at the time of the close contact with the employee.

The new law includes an anti-retaliation provision which prohibits employers from discharging, disciplining, or retaliating against any employee who stays home or otherwise does not report to work in order to comply with the law’s mandate.

This provision does not apply to an employee who, after displaying the principal symptoms of COVID-19, fails to make reasonable efforts to schedule a COVID-19 test within 3 days after receiving a request from their employer to get tested for COVID-19.

To read the full bill, click here.

Minnesota

Minimum Wage Rates

MN law requires employers to display required workplace posters in a location where employees can easily see them. We recommend printing and posting this updated notice as soon a possible.

To help employers comply, please click here to download the poster in English.

For other languages, such as Spanish, please visit their website by clicking here.

MN Frontline Worker Payments

Governor Tim Walz recently signed legislation referred to as the “Frontline Worker Pay Law,” or “Hero Pay law.” This law is intended to provide payments to frontline workers whose work put them at risk of contracting COVID-19 during the peacetime emergency declared by the governor.

Specifically, eligible frontline workers will be offered a chance to receive part of a $500 million bonus pool. While this is a state-funded and operated program, employers still have some compliance obligations to their employees.

Which businesses does this effect?

Employers in the frontline sector, which is defined as:

long-term care and home care
health care
emergency responders
public health, social service, and regulatory service
courts and corrections
child care
schools, including charter schools, state schools, and higher education
food service, including production, processing, preparation, sale, and delivery
retail, including sales, fulfillment, distribution, and delivery
temporary shelters and hotels
building services, including maintenance, janitorial, and security
public transit
ground and air transportation services
manufacturing
vocational rehabilitation

What is required of employers?

No later than 15 days after the application period is opened, employers in a frontline sector must provide notice advising all current workers who may be eligible for payments of the assistance potentially available to them and how to apply for benefits. An employer must provide notice using the same means the employer uses to provide other work-related notices to employees.Notice provided must be at least as conspicuous as:

posting a copy of the notice at each work site where workers work and where the notice may be readily observed and reviewed by all workers working at the site; or
providing a paper or electronic copy of the notice to all workers.

Does the employer decide who is eligible for payments?

No, eligibility is not something employers should try to determine. Instead, if the employer is in one of the applicable industry sectors (as listed above), the employer should proceed with the notice obligations and let employees decide whether they are eligible to apply.

Do employers create the notice form that is required to be provided to employees?

No, the notice form must be approved by the Commissioner of Minnesota’s Department of Labor and Industry (DOLI). The DOLI-provided notice form will be written in English, Hmong, Somali, and Spanish. The notice form will be posted on the following website: www.frontlinepay.mn.gov.

When will employees be able to apply for their share of these funds?

June 8th is the target date, but certainly by mid-June. This is set to remain open through July 22, 2022. These are subject to change.
Where can employers go to get more information?
Employers may visit www.frontlinepay.mn.gov. In addition, employers may sign up for updates here.

Webinars: DOLI has scheduled two informational webinars to help employers better understand their notice requirements and answer questions.

Tuesday, May 31, from 1-2 p.m. Register for the webinar.
Friday, June 3, from 3:30-4:30 p.m. Register for the webinar.

Find out more information about the webinars at dli.mn.gov/fwp-webinar. Outreach Toolkit: Help spread the word about this this program. DOLI’s Outreach Toolkit has sample text for newsletters, social media posts and graphics, and more. Click here for more information.

MN Frontline Worker Payments UPDATE

On May 27, 2022, we issued a Compliance Alert regarding MN’s new Frontline Worker Pay program. To read our original Alert, please click here.

The application period for this program is now open. This will run from June 8 through July 22.

This is not a first come, first served program. The money is set aside and split equally among all approved applicants after the application period is up.

The notice that employers are required to provide employees is also now available. This must be provided by June 23, 2022. To download the form in English, Spanish, Somali, or Hmong, click here.

There are also more than two dozen frequently asked questions that have been answered and made available in English, Spanish, Somali, and Hmong. As well as a general information sheet about this program translated into nearly 20 additional languages. To access these and more, click here.

Minnesota

New Wage Theft Act

Wage theft occurs when employers do not pay their workers what is owed them for the work they have performed. It’s estimated up to 40,000 Minnesota workers pursue complaints of wage theft each year because they have been denied a fair day’s pay for a fair day’s work.

Legislation was passed in May 2019 that will invest $3.1 million in new funding over the next two years for the enforcement of the state’s wage and hour laws by the Department of Labor and Industry (DLI). The new Minnesota Wage Theft law will create additional protections for workers, including adding criminal penalties for employers who commit wage theft.

Click here to read the full text of the bill.

Click here to read a summary of the bill.

Click here to read a document detailing specific employer guidance on complying with the new law.

Here is a link to a DLI FAQ page regarding the new bill: https://www.dli.mn.gov/business/employment-practices/wage-theft-qa

Notice Requirement

All employers must provide each employee with a written notice at the start of their employment and keep a signed copy of the notice on file. The notice must contain required information about an employee’s employment status and terms of employment. The notice must include a statement, in multiple languages, that informs employees they may request the notice be provided to them in another language. DLI has provided some translations of this statement on the employee notice example. Employers may use the example notice or create their own.

Click here for the sample notice [Note: this form is now included on the New HR Director program in the “New Hire” section of forms.]

Please visit the following link for this form in other languages: https://www.dli.mn.gov/business/employment-practices/employee-notice

Earnings Statements (Paystub) Requirement

The new law requires the following additional information be included on the earnings statements provided to employees each pay period:

Name of the employee.
Total hours worked by the employee in the pay period.
Employee’s rate or rates of pay and basis thereof, including whether the employee is paid by the hour, shift, day, week, salary, piece, commission or other method (New).
Allowances claimed for permitted meals and lodging (New).
Total amount of gross pay earned by employee in the pay period.
Net amount of pay after all deductions are made.
List of deductions made from the employee’s pay.
Date pay period ended.
Employer’s legal and operating name.
Employer’s telephone contact (New).
Physical address of employer’s main office or principal place of business and a mailing address, if different (New).

Recordkeeping Requirement

Under existing law, employers are required to keep various records for three years. It is in the employer’s interest to maintain complete and accurate records that can be used to demonstrate an employer’s compliance with state wage and hour laws. The new law requires the following additional records be kept by an employer:

Each employee’s name, address and occupation.
Each employee’s rate of pay and the amount paid each pay period.
Each employee’s hours worked each day and each workweek, including, for all employees paid at piece rate, the number of pieces completed at each piece rate (New).
A list of personnel policies with brief descriptions of each policy that were provided to each employee, including the date the policies were given to the employee (New).
A copy of the new notice that is required to be provided to and signed by each employee at the start of employment and a copy of any written changes to the notice that were provided to each employee (New).
For each employer subject to Minn. Stat. §§ 177.41 to 177.44 (Minnesota Prevailing Wage Act), and while performing work on public works projects funded in whole or in part with state funds, the employer shall furnish under oath signed by an owner or officer of an employer to the contracting authority and the project owner every two weeks, a certified payroll report with respect to the wages and benefits paid each employee during the preceding weeks specifying for each employee: name; identifying number; prevailing wage master job classification; hours worked each day; total hours; rate of pay; gross amount earned; each deduction for taxes; total deductions; net pay for week; dollars contributed per hour for each benefit, including name and address of administrator; benefit account number; and telephone number for health and welfare, vacation or holiday, apprenticeship training, pension and other benefit programs.
Other information the commissioner finds necessary and appropriate to enforce Minn. Stat. §§ 177.21 to 177.435.

These and other records that are required to be kept by an employer must be available for inspection by the commissioner upon demand. The records must be either kept at the place where employees are working or kept in a manner that allows the employer to comply with the commissioner’s demand within 72 hours (New).

If records maintained by the employer do not provide sufficient information to determine the exact amount of back wages due, the commissioner may make a determination of wages due based on available evidence (New).

Wages and Commissions Payment Requirement

Employers must pay all wages, including salary, earnings and gratuities earned by an employee at least once every 31 days and all commissions earned by an employee at least once every three months on a regular payday.

The new Wage Theft Law further clarifies that Minn. Stat. § 181.101 provides a substantive right to the payment of commissions and wages, at the employee’s rate or rates of pay or the rate or rates required by law, whichever is greater, as well as the right to be paid wages and commissions earned on a regular payday.

New Jersey

New Posters and Annual Notice Requirements for NJ

The New Jersey Division on Civil Rights (DCR) has issued new regulations regarding poster and notice requirements, which require action by NJ employers by the end of this year. Here are the details:

Two Newly Revised Required Posters

The first poster applies to all employers, and it’s for the NJ Law Against Discrimination (NJLAD), referred to as “Employment Poster.” There are several versions of the poster depending on the type of business an employer has, and NJ has put together a flowchart to help employers with this requirement. Please click here to view all flowcharts on these posting requirements.

Click here for the Non-Medical Facilities’ NJLAD poster.

Click here for one of the Medical Facilities’ NJLAD poster. NOTE: this is for Licensed Professional Facilities including doctor’s and dentists’ offices, pharmacies, clinics, acupuncturist office, and therapy offices.

For other versions of the NJLAD poster, click here to visit their website.

This poster must be prominently displayed “in places easily visible to all employees and applicants for employment.”

The Second poster applies to all employers with 30 or more employees, and it’s for the NJ Family Leave Act, referred to as NJFLA. Unlike the first poster, there is one poster for all businesses that are covered.

Click here for the NJFLA poster.

This poster must be prominently displayed “in places easily visible to all employees.”

Special requirement for printing: Both posters “shall be printed on no smaller than letter size paper (8½ by 11 inches) and contain text that is fully legible and large enough to be easily read.”

Internet or Intranet Sites: “In the event that an employer has an internet site or intranet site for use by its employees to which all employees have access and the employer customarily posts notices to affected employees or other affected individuals electronically on the site, posting of the official [NJLAD and NJFLA] poster[s] on the employer’s internet site or intranet site shall satisfy the conspicuous posting requirement set forth.”

Annual Notice Distribution

Employers must not only post, but also distribute, copies of the posters to each employee (1) annually, on or before December 31 of each year, and (2) upon the first request of an employee.

An employer can satisfy these distribution requirements (1) by email delivery; (2) through printed material, including, but not limited to, paycheck inserts, a brochure or similar informational packet provided to new hires, an attachment to an employee manual or policy book, or a flyer distributed at an employee meeting; or (3) through an internet or intranet website, if the site is for the use of all employees, can be accessed by all employees, and the employer provides notice to the employees of its posting.

Next Steps/Additional Resources

All NJ employers should post these new posters physically, electronically, or both by the end of 2022 as well as distribute them to employees. Thereafter, distribute these annually.

This may be a good time to ensure all posters are up to date. Click here for the federal poster requirements. Click here for the NJ poster requirements.

For additional information on the new posters, including an FAQ document, visit the following website: https://www.njoag.gov/about/divisions-and-offices/division-on-civil-rights-home/division-on-civil-rights-resources/required-posters/

COVID-19 Employer Requirements

Governor Murphy signed Executive Order 192 making the following effective on November 5, 2020:

Every business that requires or permits its workforce, whether in part or as a whole, to be physically present at a worksite to perform work is required to abide by the following requirements, at minimum, to protect employees, customers, and all others who come into physical contact with its operations:

Maintain at least six feet of distance from one another to the maximum extent possible
Where the nature of an employee’s work or the work area does not allow for six feet of distance to be maintained at all times, employers shall ensure that each such employee wears a mask and shall install physical barriers between workstations wherever possible
Require employees, customers, visitors, and other individuals entering the worksite to wear cloth or disposable face masks while on the premises
Employers may permit employees to remove face masks when the employees are situated at their workstations and are more than six feet from other individuals at the workplace, or when an employee is alone in a walled office
Employers must make available, at their expense, such face masks to their employees
Employers may deny entry to the worksite to any employee who declines to wear a face mask, unless when doing so would violate State or Federal law, or employees need reasonable accommodation
Provide sanitization materials, such as hand sanitizer that contains at least 60% alcohol and sanitizing wipes that are approved by the United States Environmental Protection Agency for SARS-COV-2 virus to employees, customers, and visitors at no cost to those individuals
Ensure that employees practice regular hand hygiene, and provide employees break time for repeated handwashing throughout the workday as well as access to adequate hand washing facilities
Routinely clean and disinfect all high-touch areas in accordance with Department of Health and CDC guidelines, particularly in spaces that are accessible to employees, customers, or other individuals, including, but not limited to, restrooms, hand rails, door knobs, other common surfaces, safety equipment, and other frequently touched surfaces including employee used equipment, and ensure cleaning procedures following a known or potential exposure are in compliance with CDC recommendations
Prior to each shift, conduct daily health checks of employees, such as temperature screenings, visual symptom checking, self-assessment checklists, and/or health questionnaires, consistent with CDC guidance, including latest CDC guidance regarding COVID-19 symptoms, consistent with the confidentiality requirements of the
Americans with Disabilities Act, NJ Law Against Discrimination and any other applicable laws, and consistent with any guidance from the Equal Employment Opportunity Commission (“EEOC”) and the New Jersey
Division on Civil Rights
Immediately separate and send home employees who appear to have symptoms, as defined by the CDC, consistent with COVID-19 illness upon arrival at work or who become sick during the day
Promptly notify all employees of any known exposure to COVID-19 at the worksite, consistent with all confidentiality laws
Clean and disinfect the worksite in accordance with CDC guidelines when an employee at the site has been diagnosed with COVID-19 illness
Continue to follow guidelines and directives issued by the NJ Department of Health, the CDC, and the
Occupational Safety and Health Administration, as applicable, for maintaining a clean, safe and healthy work environment

The above has been edited in order to be more concise for this Alert. Please read all the details of this bill and your requirements by clicking here.

New York

NY Hero Act Now in Effect

We recently alerted you about the New York “Hero Act” and the Airborne Infectious Disease Exposure Plan requirements. This email is simply a reminder that action is required on your part.

Here is additional information:

On September 6th 2021, Gov. Hochul triggered the NY “Hero Act”, after the Commissioner of Health designated COVID-19 as a highly contagious communicable disease. This rule requires you to establish a written policy in your manual, outlining your protocols for handling this airborne infectious disease.

We have created a comprehensive policy for you based on the NY requirements and recommendations: “Airborne Infectious Disease Exposure Plan.” This policy requires action on your part. There are several areas where you need to add specific persons and details relevant to your business.

Instructions:

Go to www.bentericksen.com and log into the HR Director.
When prompted, click the link to view/accept the update.
Click Accept on the policy “Airborne Infectious Disease Exposure Plan”
In the final popup, click “Make Additional Policy Changes”
You will be taken to the Policy Editor. Scroll down to the category “Keeping You Safe On The Job”.
Find the new Airborne Infectious Disease Exposure Plan policy and click Edit.
Review the policy carefully and thoroughly. You will see areas with prompts for you to fill in.
When finished, click Save
If you are finished with all of your edits, please send us a quick email to hrsupport@bentericksen.com that your policy is ready for final review.
One of our team members will review your edits ASAP.
If you have any questions, please contact us at the email above or our main number: (800) 679-2760.

Note: if you choose not to implement the update at this time you can still access other resources, such as Forms and Job Descriptions. However, your current policy manual will not be accessible until you implement the update.

Anti-Discrimination and Harassment Prevention Law

In August of this year, the New York State Governor signed an omnibus bill. This new law has the following requirements:

Expansion of the New York State Human Rights Law (NYSHRL)

All private sector employers are subject to the antidiscrimination provisions of the NYSHRL.

The prohibition against unlawful discrimination based upon each of the protected categories identified in the NYSHRL extends to nonemployees.

The NYSHRL will permit the prevailing claimant to recover both attorneys’ fees and punitive damages from private employers.

The NYSHRL shall be construed “liberally for the accomplishment of the remedial purposes thereof, regardless of whether federal civil rights laws, including those laws with provisions worded comparably to the provisions of this article, have been so construed,” and exceptions and exemptions “shall be construed narrowly in order to maximize deterrence of discriminatory conduct.”

Annual Sexual Harassment Notice

Upon hire and at every annual sexual harassment prevention training program, employers must provide employees a notice containing the “employer’s sexual harassment prevention policy and the information presented at such employer’s sexual harassment prevention training program” (in English and in the primary language of the employee).

Greater Protections for Harassment Complaints

Harassment will be considered “an unlawful discriminatory practice when it subjects an individual to inferior terms, conditions or privileges of employment” because of his or her protected characteristics. Employers will have a seemingly narrow affirmative defense to liability if “the harassing conduct does not rise above the level of what a reasonable victim of discrimination with the same protected characteristic would consider petty slights or trivial inconveniences.” “The fact that such individual did not make a complaint about the harassment to [his or her] employer… shall not be determinative of whether” such employer is liable.

Claims by domestic workers will be subject to the same standard.

Sexual harassment complaints filed directly with the NYSDHR must be filed within three years (previously one year) after the alleged harassment.

Restrictions on Nondisclosure and Arbitration Agreements

Employers will be prohibited from requiring nondisclosure clauses in any settlement, agreement, or other resolution of any claim where the factual foundation for which involves discrimination, including but not limited to under the NYSHRL, unless the condition of confidentiality is the complainant’s or plaintiff’s preference. Any nondisclosure term or condition must be provided in writing to all parties in plain English and, if applicable, the primary language of the complainant, after which he or she will have 21 days to consider such term or condition and 7 days to revoke the acceptance after execution of such agreement.

Any nondisclosure term or condition will “be void to the extent that it prohibits or otherwise restricts the complainant from: (i) initiating, testifying, assisting, complying with a subpoena from or participating in any manner with an investigation conducted by the appropriate local, state, or federal agency; or (ii) filing or disclosing any facts necessary to receive unemployment insurance, Medicaid, or other public benefits to which the complainant is entitled.”

Employers will be prohibited from requiring employees to sign agreements that require mandatory binding arbitration of claims relating to any form of discrimination.

Any agreement entered into on or after January 1, 2020,“that prevents the disclosure of factual information related to any future claim of discrimination is void and unenforceable, unless such provision notifies the employee or potential employee that it does not prohibit him or her from speaking with law enforcement,” the Equal Employment Opportunity Commission, the New York State Division of Human Rights, “a local commission on human rights, or an attorney retained by the employee or potential employee.”

Additional Information

Click here to read the text of the bill.

Sexual Harassment Prevention Law

Earlier this year, the New York State Governor signed the state budget bill which contained a new law regarding harassment prevention. This new law has several parts, as described below, and is applicable to all employers.

While this law passed months ago and went into effect as of October 9th, New York did not issue the required information for implementation until late last week. Since then, we have worked hard to pull the information together and get it to you as quickly as possible. We appreciate your patience.

Part 1: Harassment Prevention Policy

All employers must provide employees with an anti-harassment policy as well as a complaint form that employees can (but are not required to) use to submit concerns. Employees may receive the policy either in writing or electronically. If the policy is provided electronically, your employees must be able to print a copy for their own records. You must issue this policy to all current employees immediately. For any future hires, this policy should be given immediately upon hire.

Part 2: New Mandatory Training

By October 9, 2019, all employees must be provided with anti-harassment training. Once all current employees have been trained, all newly hired employees should be trained in the same manner immediately.

Part 3: New Poster (Optional)

This poster, which is an optional tool, is one way to direct people to your harassment prevention policy and should be displayed in a highly visible place.

Part 4: Restrictions on NonDisclosure Agreements and Arbitration Provisions

No action on your part for this unless you have any nondisclosure agreements or arbitration provisions implemented at your business that must now be reconsidered. Given the nature of these, please contact an attorney for compliance corrections.

Additional Information:

For a “Toolkit” on these new requirements, please click here. For additional information, please visit: https://www.ny.gov/programs/combating-sexual-harassment-workplace

NY Wage Disclosure in Job Advertisements Law

Beginning September 17, 2023, most employers must disclose in any advertisement for a job, promotion, or transfer opportunity the compensation, or range of compensation, as well as provide the job description if one exists.

Following is detailed information about this new law, as outlined in legislative bill S.9427-A/A.10477, as well as the amended law A999/S1326.

Who does this apply to?

All employers with 4 or more employees.

What positions does this apply to?

Any position that will be physically performed in New York, whether fully or partially.

Any position that will be physically performed outside of New York but report to a supervisor, office, or other work site in New York. That means the law applies to remote workers in other states if those workers report to a NY location or a supervisor who resides in NY.

What is the definition of a job advertisement?

The law defines a job advertisement as: “to make available to a pool of potential applicants for internal or public viewing, including electronically, a written description of an employment opportunity.”

Thus, the law applies to both internal and external job listings.

Do NY employers have to create a job description to comply with the law?

No. Providing a job description with a job advertisement is only required if one exists. There are, however, many valid and important reasons for having job descriptions, which is why Bent Ericksen & Associates has always recommended them.

Having up to date job descriptions that accurately reflect the essential functions of the position, as well as physical demands, working conditions and requisite skills/experience, has long been an HR best practice to assist with recruitment, performance management, reasonable accommodation, and leave administration processes. Job descriptions are fundamental to help ensure pay ranges are consistent with the knowledge, skills, ability, and experience needed for the job, and to help employers account for any differentials in pay.

What does compensation, or range of compensation, mean?

This means the minimum and maximum annual salary or hourly range of compensation for a job, promotion, or transfer opportunity that the employer in good faith believes to be accurate at the time of the posting of a job advertisement. If there is no applicable range, the advertisement must state that.

Example #1: $25.00 per hour, non-negotiable.

Example #2: $20.00 to $27.00 per hour, depending on experience.

Example #3: $85,000.00 to $100,000.00 annual salary, depending on experience.

For commission-only positions, a general statement that compensation will be based on commission may satisfy the disclosure requirement.

The spirit of the law is transparency and a “good faith effort.” Although those terms are not specifically defined under NY State law, generally speaking, you should provide the range that, at the time of the posting, you believe you are willing to pay for the position.

Should employers keep copies of the job advertisements?

There is no statutory requirement for keeping these kinds of records, but it would be wise to do so in the event that an employer needs to defend their compensation practices.

Are there penalties for noncompliance?

Yes. Employers who violate the NY Wage Disclosure law are subject to civil penalties of $1,000.00 for a first violation, $2,000.00 for a second violation, and $3,000.00 for a third or any subsequent violations.

In addition, violations under this law may impact other laws such as the Equal Pay Act and Title VII of the Civil Rights Act, which could add liability for pay discrimination. Not to mention any legal fees and other costs associated with fighting a lawsuit.

Oregon

Oregon Paid Leave

Paid Leave Oregon applies to all employers regardless of size. The part that applies only to employers with 25 or more employees is in regards to employer contributions. All employees have to contribute to the program. For employers with 25 or more employees, both the employer and the employee have to contribute to the program.

New Law Begins 2023: Important Deadlines and Information

Back in 2019, Oregon passed a law requiring employers to provide paid family leave benefits to their employees. The program itself will be run through a state agency called Paid Leave Oregon and is set to begin January 2023. Please read below for important requirements and deadlines regarding this new law.

Paid Leave Oregon is funded through payroll taxes and provides paid time off to employees for the following reasons:

Birth of a child
Bonding with a child
To care for a family member with a serious illness or injury
To care for yourself when you have a serious illness or injury
For situations involving sexual assault, domestic violence, harassment, or stalking

Payroll Tax Contributions: As mentioned, Paid Leave Oregon is funded through payroll taxes. Employees pay 60% of the contribution, while employers with 25 or more employees pay 40% of the contribution rate. The contribution rate for 2023 is 1%.

For example, if your business has more than 25 employees and pays $1 million in payroll, your business would pay $10,000 into Paid Leave Oregon each year. Of that amount, $6,000 would come from employees’ earnings and $4,000 from the employer.

This must begin on January 1, 2023. If you are using an outside payroll company, please contact them to ensure this will be managed properly. If you manage payroll in-house, after taking the required deductions, you may make contribution payments through this platform.

Post and Distribute Model Notice: The model notice must be physically posted in a conspicuous location at each Oregon work site (for example, in the employee breakroom with other required postings) and must be provided electronically or by mail to any remote workers in Oregon.

Please click here for the form in English. For other languages, click here.

This must be done by January 1, 2023.

Access to Paid Leave Benefits: Employees may apply for paid leave through Paid Leave Oregon beginning September 3, 2023. This leave, with few exceptions, is job- protected. Please review the new policy for more details once it’s issued, or contact us to speak with an HR Specialist.

Additional Resources: For additional resources, including an “Employer Toolkit” that is a “quick start” to better understanding your responsibilities with lots of information to download as well as important links, click here.

To download a detailed “Employer Guidebook,” click here.

Please also visit: https://paidleave.oregon.gov

Washington D.C.

D.C. Transportation Benefits

Earlier today, we issued an HR Director program update for our D.C. clients. This Compliance Alert is to supplement the update release.

Covered Employers: The new HR Director policy as well as this Alert applies only to D.C. employers with 20 or more employees. If you do not have 20+ employees, you may stop reading and disregard this Alert.

For employers with 20+ employees, D.C. passed the District of Columbia’s Transportation Benefits Equity Amendment Act of 2020, also known as the “Parking Cash Out Law,” earlier this year. The deadline of which is fast approaching – January 15, 2023, or by the end of your parking lease, whichever is later. As a result of this law, we have added a Transportation Benefits policy to your HR Director account.

You may be exempt from adopting the Transportation Benefits policy. Please click here for the exemption criteria. If you are exempt, please send us an email to hrsupport@bentericksen.com and notify us of your exemption status. We will disable this policy from your manual.

If you are not exempt from adopting this policy…

Do you provide a “parking benefit” to your employees?

According to the new law, “parking benefit means personal motor vehicle parking, on or within 0.5 miles of the business premises and located in the District, offered to an employee, in addition to compensation, either directly by the employer or through an employer subsidy, for which the employee pays nothing or less than market value. The term “parking benefit” does not include parking that is offered to an employee who is required to use a personal motor vehicle in the regular performance of their work.”

If no, please skip to the bottom section called Required Reporting.

If yes, you have two choices going forward:

Choice #1: review the Transportation Benefits policy in the HR Director and choose your desired option. Send us an email to hrsupport@bentericksen.com and notify us of the option you have selected. We will modify your policy accordingly.
Choice #2: Discontinue your parking benefit. By discontinuing free or subsidized parking, you remove the criteria that requires you to implement one of the options found in the Transportation Benefits policy, hence qualifying you for an exemption. If this is your chosen path, please send us an email to hrsupport@bentericksen.com and notify us of your decision to discontinue parking benefits and be considered exempt from adopting the policy. We will disable this policy from your manual.

Required Reporting: All DC employers with 20+ employees must report their compliance or exemption status to District Department of Transportation (DDOT) by January 15, 2023, and every two years thereafter. Covered employers electing to implement a “Transportation Demand Management Plan” (TDM) must also submit a commuter survey report starting on January 15, 2023, and every year thereafter.

For more information on this law, including using a reporting portal, templates or toolkits, please visit https://godcgo.com/everything-you-need-to-know-about-the-dc-parking-cashout-law/

Notice to Employee re Paid Family Leave

Starting February 1, 2020, District of Columbia employers must notify employees about their right to paid leave under the DC Paid Family Leave Act (PFLA).

Employers must post an official notice in all locations where covered employees work. If an employer has covered employees working remotely, it must send them copies of the notice so they can post it in their own workspaces.

Employers must also give employees copies of the notice at three other points:

to each new employee when hired (after January 31, 2020);
once a year every year from that point forward; and
whenever an employee asks for potentially covered leave.

Click here for the posting/notice provided by the D.C. Department of Employment Services.

Paid Time Off for Vaccinations

Effective Dates: November 2, 2021 through February 16, 2022. [Future and more permanent legislation likely to come on or before the expiration date.]

Employers must provide up to 4 hours of paid leave (2 hours per dose) for employees to:

Receive the COVID-19 vaccination, or
Accompany their children to receive the COVID-19 vaccination.

Employers must provide up to 8 hours of paid leave per injection during the 24-hour period following the 2-hour vaccination leave period for employees:

Experiencing side effects, or
Whose child is experiencing side effects and requires care.

The maximum amount of leave is 48 hours in a year starting on the effective date of the Emergency Act.

This leave is in addition to other paid leave available by the employer unless the employer already offers paid leave for the COVID-19 vaccination that is the same or similar to the Emergency Act.

Employee Eligibility: an employee must have worked for the employer at least 15 days before the request for leave.

Employers are prohibited from requiring an employee seeking leave under the Emergency Act to:

Provide more than 48 hours’ notice of the need to use paid leave or, in the events of an emergency, require more than reasonable notice of the employee’s need to use such leave; or
Search for or identify another employee to replace them during their time off.

Employers may request reasonable documentation, such as a vaccination record or other document attesting to the date and time of the vaccination, upon return to work.

Temporary Amendment to Family and Medical Leave Law

Under normal circumstances, the D.C. Family and Medical Leave Law applies to employers with 20+ employees. The amendment is applicable to ALL employers.

Amendments are as follows:

An employee shall be entitled to leave if the employee is unable to work because the employee:

Has tested positive for COVID-19 or is caring for a family member or individual with whom the employee shares a household who has tested positive for COVID-19 and must quarantine pursuant to Department of Health guidelines;
Has a recommendation from a health care provider or a directive from an employer that the employee isolate or quarantine due to COVID-19, including because the employee or an individual with whom the employee shares a household is at high risk for serious illness from COVID-19;
Must care for a family member or an individual with whom the employee shares a household, who is isolating or quarantining pursuant to Department of Health guidance, the recommendation of a health care provider, or the order or policy of the family member’s or individual’s school or childcare provider; or
Must care for a child whose school or place of care is closed or whose childcare provider is unavailable to the employee due to COVID-19.

An employee may use no more than 16 weeks of leave in the 2-year period beginning on the effective date of the Emergency Act (i.e., beginning November 2, 2021).

The employer may require reasonable certification of the need for COVID-19 leave.

An employer may require an employee to provide reasonable advance notice of the need for leave except in the event of an emergency or an unforeseen need to use the leave. In that case, reasonable notice after leave is taken at no fewer than 24 hours may be required.
Leave may be unpaid.

An employee may choose to use leave under this Amendment before using leave provided by other laws or the employer.

An employer who willfully violates this law shall be assessed a civil penalty of $1,000 for each offense.

Washington

Wage Scale/Salary Range Requirements in Job Postings

Beginning January 1, 2023, most employers must disclose wage scales or salary ranges, benefit information, and other compensation in any “posting” for a job opening.

Following is detailed information about this new rule, as outlined in the Administrative Policy for the Equal Pay and Opportunities Act.

Who does this apply to?

All employers, with 15 or more employees, engaging in any business, industry, profession, or activity in Washington.

The “15 or more employees” threshold includes employees that do not have a physical presence in Washington, if the employer has one or more Washington-based employees.

“Engaging in any business, industry, profession, or activity in Washington” includes employers that do not have a physical presence in Washington, but engage in business in Washington or recruit for jobs that could be filled by a Washington-based employee.

Employers must disclose a wage scale or salary range and a general description of benefits and other compensation on postings for remote work that could be performed by a Washington-based employee. For factors used to determine whether an employee is Washington-based, see ES.A.13, “Minimum Wage Act- Washington Based Employee.” An employer cannot avoid disclosing wage and salary information requirements by indicating within a posting that the employer will not accept Washington applicants.

Employers do not need to disclose wage and salary information for jobs to be performed entirely outside of Washington even if the job posting reaches applicants who would fill the position as a Washington-based employee. This out-of-state exception must be applied narrowly, on a case-by-case basis. The out-of-state exception applies to jobs tied to worksites physically located entirely outside of Washington, for example, waitstaff at restaurant locations in other states.

Employers do not need to disclose wage and salary information in printed hard copy postings made and distributed entirely outside of Washington.

What is a job posting?

A “posting” means any solicitation intended to recruit job applicants for a specific available position, including recruitment done directly by an employer or indirectly through a third-party, and includes any postings done electronically, or with a printed hard copy, that includes qualifications for desired applicants.

Job postings must include wage and salary information when the posting includes qualifications for desired applicants of a specific position. Qualifications are, but are not limited to, specific knowledge, skills, or abilities requested of the applicant for suitability of the position.

Not a job posting: A window sign that reads “Help Wanted.”

A job posting: A social media post that reads, “Seeking applicants for a Billing Specialist position. Must have 2 years of medical bill processing experience. $30.00-$40.00 per hour, medical, vision, and dental benefits, 401k retirement plan, and stock options available. More information can be found via hyperlink here.”

Internal postings = job postings.

NOTE: Employers must provide an employee who is offered an internal transfer or promotion with the wage scale or salary range of their new position, if they request that information.

Who is considered an applicant?

All applicants, including existing employees, who apply to a posting recruiting Washington-based employees, including employers who may not have a physical presence or employee in Washington State, are protected by the law.

A person is only considered an “applicant” for the specific posting(s) they applied for, not for every available job of the employer.

If a person is offered a position that is different than the position applied for, the employer should disclose wage and salary information by providing a copy of the compliant posting for the position offered.

What information must be disclosed on the job posting?

For detailed information on the job postings rules, click here.

Should I keep copies of the job postings?

Yes, these records should be kept a minimum of 3 years.

Are there penalties for noncompliance?

Yes.

Civil penalty:

For a first violation, up to $500
For a repeat violation, up to $1000 or 10% of the damages, whichever is greater

A violation as to each affected employee constitutes a separate violation.

Private Right of Action:

Actual damages; statutory damages equal to the actual damages or $5000, whichever is greater; interest 1% per month on all compensation owed
Costs and reasonable attorneys’ fees.
The court may also order reinstatement and injunctive relief.
Statute of Limitations: 3 years from the date of the alleged violation
Recovery of any wages and interest must be calculated from the first date wages were owed to the employee.

WA State COVID-19 Proclamations & Orders Ending

In recent weeks, Governor Jay Inslee announced that the state of emergency proclamation and all remaining COVID-19 emergency orders will end effective October 31, 2022. Here’s some excerpts from the announcement:

Vaccination requirements for health care and education workers will end, but employers will continue to be able to require them if they choose. Inslee has already announced that COVID-19 vaccination will remain a condition of employment for most Washington state agencies.

The statewide face covering order issued by the state Department of Health will remain in place for health care and long-term care sittings, as well as correctional facilities under certain circumstances after the state of emergency ends. The governor is also looking at options to ensure there are protections for workers who choose to wear a mask in their workplace.

“We’ve come a long way the past two years in developing the tools that allow us to adapt and live with COVID-19,” Inslee said. “Ending this order does not mean we take it less seriously or will lose focus on how this virus has changed the way we live. We will continue our commitments to the public’s well-being, but simply through different tools that are now more appropriate for the era we’ve entered.”

“Governor Inslee’s rescission of these remaining emergency orders marks an important transition for the state of Washington, but that does not mean that COVID-19 is not in our state anymore,” said Secretary of Health Umair A. Shah, MD, MPH. “We must move forward from a pandemic response to adapting our behaviors to coexist with the COVID-19 virus. Through the continued diligence of Washingtonians, combined with access to resources like the Say Yes! COVID Test program, WA Notify, and Care-A-Van, we will continue our path to recovery.”