August Labor Law Updates

INFINITI HR is happy to provide Monthly State Labor Law Updates as a service to our subscribers. These briefs provide a general description and are not meant to be all inclusive of compliance requirements. This list is not inclusive of all legislative changes for employers across the U.S. Changes may have been addressed in previous updates, which can be accessed from our blog.

This list is not inclusive of all legislative changes for employers across the U.S. Other changes may have been addressed in previous updates, which can be accessed online on our website https://inspiringhr.com/blog/

Employers are encouraged to work with their Inspiring HR Consultant before making policy changes to capture the full requirements of these laws.

Some of the notable recent and upcoming state changes in this issue are as follows:

COLORADO

Colorado Unemployment Notice Requirements – Effective May 25, 2022

As part of the 2022 legislative session, Colorado’s unemployment insurance division updated the notice requirements that employers must provide to employees upon separation.

Preexisting notice requirements are listed below in items 1 – 4.  New requirements are reflected in items 5 – 13: 

1. A statement that unemployment insurance benefits are available to unemployed workers who meet the eligibility requirements under Colorado law;
2. Contact information to file a claim;
3. Information the worker will need to file a claim;
4. Contact information to inquire about the status of their claim after it is filed.
5. Employer’s name
6. Employer’s address;
7. Employee’s name;
8. Employee’s address;
9. Employee’s ID number or the last four digits of the employee’s SSN;
10. Employee’s first and last dates worked;
11. Employee’s year-to-date earnings;
12. Employee’s wages for the last week worked; and
13. The reason the employee separated from the employer.

The legislation also tasked the Division to develop a form for employer use to satisfy the requirements, however, as of this writing, the division has not yet released a form to the public.

Our Recommendation

We recommend developing a temporary separation notice based on the criteria above to use until the official form is available from the state.

FLORIDA

Florida Stop W.O.K.E Act – Effective July 1, 2022

The state of Florida has passed the Individual Freedom Act also known as the “Stop W.O.K.E Act”, aka Stop the Wrongs to Our Kids and Employees. The Act applies to Florida employers with 15 or more employees.

Highlights

The new law makes it unlawful for employers to host mandatory employee trainings that promote certain concepts related to discrimination, diversity, equity, and inclusion. The law targets diversity trainings that promote ideas such as unconscious bias, racial colorblindness, and white privilege.

Voluntary diversity trainings are not affected by the Act. It appears employers can still pursue their diversity initiatives, move forward with their strategic plans, and require employee attendance at diversity trainings, as long as the training is provided in an objective manner without endorsement of prohibited concepts. Employers should carefully review the content of their presentations and current policies to ensure compliance with the law.

MAINE

Maine CROWN Act – Effective August 7, 2022

Maine has amended the Human Rights Act and enacted the CROWN Act into law, “An Act to Prohibit Discrimination in Employment and School Based on Hair Texture and Hairstyle.” The law becomes effective on August 7, 2022.

The Act also includes discrimination protections for traits associated with race, such as hair texture, Afro hairstyles and protective hairstyles. Hair texture and hairstyle, includes braids, dreads, locks, twists and knots.

Maine employers are encouraged to review their dress code and hygiene policies to ensure they do not prohibit or discriminate against employees based on their hair type, texture and/or style. All policies should be updated accordingly, and Managers and Supervisors should be trained on the policy.

NEW YORK CITY

New York City Restrictions on AI use in hiring practices – Effective January 1, 2023

New York City will enact a new law restricting the use of artificial intelligence and algorithm-based practices for hiring new employees and when promoting employees in the workplace unless these tools have been audited and determined not to be bias in selection.

As of January 1, 2023, all NYC employers who use any kind of AI or algorithm-based tests, tools or software programs, to identify, select, evaluate or recruit candidates or employees for a position, must hire a third-party to audit these tools to determine if they create disparate impact based on race, ethnicity or sex.

In addition, employers are required to notify all candidates and employees being assessed at least 10 business days prior to using the tool and what job qualifications and characteristics are used in the assessment. Candidates and employees may choose to opt out of the assessment and/or request an alternative assessment method. The tools used must be audited annually and the results of the audit must be available publicly on the employer’s website.

Artificial Intelligence and algorithm-based tools are defined as “any computational process, derived from machine learning, statistical modeling, data analytics, or artificial intelligence.” These tools are used to provide evaluate, score and recommend candidates.

If your Company is currently using artificial intelligence and/or algorithm-based tests, tools and/or software, you must ensure your process is audited by a third party prior to the effective date of the law or within 12 months of using the tools.

RHODE ISLAND

Pay Equity Act – Effective January 1, 2023

The Pay Equity Act prohibits employers from paying any employee a wage rate less than the wage rate paid to employees of another race, color, religion, sex, sexual orientation, gender identity, gender expression, disability, age or country of ancestral origin.

An employer may pay employees at different wage rates/salaries only if the differential is based on at least one following factors:

• Seniority;
• A merit system;
• A system that measures earnings by quantity or quality;
• Geographic locations with different costs of living;
• Shift Differentials;
• Job related education, training or experience;
• Regular or work-related travel; and/or
• A bona fide and job-related factor consistent with business necessity.

Employers are also prohibited from inquiring about an applicant’s current or prior wage/salary history or attempting to obtain this information. If an employer becomes aware of an applicant’s current or prior wage/salary information, they cannot use this information when making a hiring determination or to set wages for the applicant to be paid upon hire.

At the request of an applicant and/or employee, employers must disclose the pay range for the position being applied for. The pay range must include the minimum and maximum wage for the position. It is recommended that employers provide a pay range for the position prior to discussions about pay. In addition, employers may not prohibit employees from inquiring about, discussing, or disclosing their pay or pay of another employee.

Employers are prohibited from taking adverse action, including but not limited to termination, refusal to hire, demotion, or reduction or withholding of pay, against any employee or job applicant solely on the basis of the employee’s or applicant’s exercise of any right under the Act.

What should I do?

Employers are encouraged to review wage information for all employees prior to the 1/1/2023 to ensure employees are compensated equally for comparable work. If a wage discrepancy is determined, employers may not reduce an employee’s wage/salary to comply with the law; however, employers may increase an employee’s wage/salary.

Employers must post a Pay Equity Act notice in the workplace. The notice must be located in an area that is accessible by all employees. The required notice will be made available by the state prior to the effective date of the Act. Once it becomes available, I will notify you.

Tip Protection Law – Effective June 28, 2022

The Tip Protection law prohibits employers from withholding or retaining tips earned by a tipped employee. The law has also created new requirements for tip pools and tip sharing, as well as deductions from tips for credit card processing fees.

Tip Credit

The current RI minimum wage is $12.25 per hour the minimum wage for tipped employees is $3.89 per hour. Employers are permitted to take a tip credit against the applicable minimum wage of a tipped employee as long as the employee’s tips for the workweek make up the difference, which is which is $8.36 per hour. Employers are required to retain documentation of the weekly tips received for each employee.

If an employer charges customers a service fee and distributes the service fee to tipped employees, the service fees cannot be used towards the tip credit.

All tips must be paid no later than the next regularly scheduled pay day. Tips may not be withheld from a tipped employee because the employer is waiting for disbursement from a credit card company.

Tip Pool

A tip pool may be established for employees who customarily and regularly receive tips as long as those employees are being paid the applicable minimum wage. Employers must notify employees of the tip pool contribution amounts and may only take a tip credit for the amount of tips each employee earns. A tip pool may include employees who are not considered “tipped employee;” however, non-tipped employees must be paid the applicable minimum wage and the employer may not take a tip credit. Exempt employees may not participate in a tip pool.

Credit Card Processing Fees

Tips are the sole property of the tipped employee. Employers may not retain any part of a tip unless it is used to cover credit card processing fees, which the employee must be notified of.  The reduction in tips for credit card fees may not reduce the employee’s wages below the applicable minimum wage.

It is recommended that all employers with tipped employees review their policies and procedures to ensure they are not retaining any portion of employee’s tips and they are following the requirements for tip pooling.

VIRGINIA

VA Overtime Wage Act (VOWA) – Effective July 1, 2022

In July of 2021, VOWA established states guidelines that deviated from federal FLSA overtime rules, such as how regular rates of pay were calculated and an extension on the statutes of limitations for claims and damages.

• As of July 1, 2022, most components of last year’s VOWA regulations have been retracted. The Virginia-specific rules have been rolled back, and employers will now apply the overtime standard and exemption rules from the Fair Labor Standards Act (“FLSA”).
• Employers must still pay overtime to non-exempt employees, and there is a process in place for employees to file a state claim for overtime violations.
• The retraction is not retroactive, therefore employee complaints prior to July 1, 2022, must be evaluated against the prior VOWA statute.

Protected leave for eviction proceedings – Effective July 1, 2022

Employers are prohibited from firing or taking “adverse personnel action” against employees who miss work to attend eviction proceedings.  The court summons now includes a notice to the tenant-employee of this new protection.  Employees must provide reasonable notice to the employer of the summons and need for the leave.  Employers are not allowed to require employees to use paid time off

Seizure first aid [poster] – Effective July 1, 2022

Employers with 25 or more employees in Virginia must physically post a “seizure first aid” poster in the workplace in a location visible to employees. Seizure first aid means procedures to “respond, attend, and provide comfort and safety to an individual suffering from a seizure”, which does not include training to medically treat such individuals.

WASHINGTON

Paid Family and Medical Leave (PFML) Act Amendments – Effective June 9, 2022

Here are the most significant changes:

• First six weeks of leave following childbirth is designated as medical leave. During the six-week postnatal period, any PFML used by an employee who is eligible for benefits based on incapacity due to pregnancy or for prenatal care will count as paid medical leave by default, unless the employee requests to use paid family leave during that period.  The employee does not need to obtain certification of a serious health condition.  This new presumption is still subject to the maximum and minimum weekly benefits, duration, and other conditions and limitations under the law. The waiting period for birth parents to receive benefits is also eliminated.
• Bereavement Leave. This amendment permits use of paid family leave for bereavement purposes during the seven calendar days after the death of a qualifying family member.  A qualifying family member is a person for whom the employee (1) would have qualified for medical leave for the birth of their child, or (2) would have qualified for family leave to bond with their child following their birth or placement.
• Waiting Period. When applicable to the situation, the waiting period for benefits will no longer count against the employees’ benefit entitlement.
• Publication of Employers with Voluntary Plans. The Washington Employment Security Department (ESD), which administers this state leave program, must now publish on ESD’s website a current list of all employers that run their own “voluntary plan,” approved by ESD.
• Ending CBA Exception. Previously, this law did not apply to an employee who was subject to a collective bargaining agreement (CBA) that was in existence on October 19, 2017, until the CBA was reopened, was renegotiated, or expired.  This exception now expires December 31, 2023.

Non-Disclosure Agreements – Effective June 9, 2022

Non-Disclosure Agreements are prohibited from including any clause between an employer and employee not to disclose or discuss conduct, or the existence of a settlement involving conduct, that the employee reasonably believed to be illegal discrimination, illegal harassment, illegal retaliation, a wage and hour violation, or sexual assault, or that is recognized as against a clear mandate of public policy.

This prohibition applies to all “employment agreements, independent contractor agreements, agreements to pay compensation in exchange for the release of a legal claim, or any other agreement between an employer and an employee.” An “employee” broadly covers a current, former, or prospective employee or independent contractor.

Noncompete Agreement Earnings Threshold – Effective June 9, 2022

Under Washington’s non-competition law, only employees or independent contractors who earn more than the established threshold can be held to non-compete provisions. For 2022, an employee’s annual earnings must exceed $107,301.04 and an independent contractor’s earnings must exceed $268,252.59 for a non-compete agreement to be enforceable.

Paycheck Fees Reimbursement- Effective June 9, 2022

An employer must reimburse an employee for fees charged when a paycheck is dishonored by non-acceptance or non-payment.

Interested in other current employment trends? Click the link to view the recent blog: Five Wage and Hour Violations That May Surprise You or check back for more on human resources, payroll, insurance, and benefits.