June 2023 Legal 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.

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:

NEW JERSEY

Temporary Worker’s Bill of Rights law – Effective May 7 and August 5, 2023.

The New Jersey Temporary Workers Bill of Rights Law applies to temporary employees who contract for employment with a temporary service firm. A “temporary help service firm” is defined as any person or entity who employs temporary employees for the purpose of assigning those employees to a client to assist with temporary, excess, or special workloads.

The following went into effect on May 7, 2023:

• Retaliation: Temporary help firms are prohibited from retaliating against a temporary employee for exercising their rights under the Temporary Workers’ Bill of Rights law.
• Assignment Notification: All temporary help service firms must provide temporary employees with a written Temporary Worker Assignment Notification, in English and their primary language, that includes the specific information regarding the work they are being assigned to. If there is no work available at the third-party client’s worksite where the temporary worker was assigned to work that day, the temporary employee must be paid by the temporary help service firm for a minimum of four hours of pay at the agreed upon rate. If the temporary employee is able to work at another location during the same shift, the temporary employee must still be paid for a minimum of two hours of pay at the agreed upon rate of pay.

In there is a change in the temporary worker’s schedule, shift or location, the temporary help service firm must provide notice to the temporary worker at least 48 hours in advance of the change when providing whenever possible.

If the temporary worker is not assigned work with a client for a day, the temporary help service firm must provide the temporary worker, upon request, confirmation they were available for work.

Temporary help service firms may not send temporary workers to an assignment where a strike, lockout, or other labor dispute exists without at the time of assignment.

The following goes into effect on August 5, 2023:

• Wages: Temporary workers may not be paid less than the average rate of pay and average cost of benefits, of employees of the client who perform the same or substantially similar work where the work performance requires equal skill, effort, and responsibility.
• Wage Payment: Temporary workers may request biweekly wage payments via check, cash, or direct deposit. Workers may not be charged check cashing fees, consumer reports, criminal background screenings and/or drug testing.
• Wage Statement: Temporary help service firms must provide wage statements to all temporary workers.
• Transportation to the Worksite: Temporary help service firms may not charge temporary workers for transportation they provide to and from worksites. If the firm offers transportation, the vehicle must be safe, and the driver must have a valid driver’s license. Failure to comply may result in a penalty up to $5,000 per violation.
• Permanent Work Authorization: Temporary help service firms may not prohibit a client from offering permanent work to a temporary worker. The firm may charge the client a placement fee.
• Record Keeping: Temporary help service firms must keep records of all work transactions and provided transportation for up to six years. Failure to maintain records may result in a fine of $500 per violation.
• Registration Requirements: Temporary help service firms are required to register with the state commissioner and provide proof of payment for unemployment insurance and workers’ compensation insurance. The registration also requires an annual $2,000 fee and an additional $750 fee for each office or other location where the firm regularly contracts with temporary employees. Firms that fail to register will be assessed a $5,000 fine for each violation. Each day during which the firm operates without properly registering is considered a separate violation.

For more information visit, Department of Labor and Workforce Development | Temporary Workers in NJ: Rights and Protections.

NEW YORK

NY Working Hours for Nurses Law Update – Effective March 3, 2023

New York recently amended Labor Law 167, which prohibits health care employers from requiring a registered nurse or a licensed practical nurse who provides direct patient care to work beyond their “regularly scheduled hours of work.” The new law sets an hourly limit for nurses’ regularly scheduled work hours, which is now defined as those hours a nurse has agreed to work and is normally scheduled to work, including prescheduled on-call time and time spent for the purposes of communicating shifts reports regarding patient status. Nurses may choose to work beyond their regularly scheduled hours.

Health care employers are defined as hospitals, nursing homes, outpatient clinics, comprehensive rehabilitation hospitals, residential health care facilities, drug and alcohol treatment facilities, adult day health care programs, diagnostic centers and maternal health care consortia.

A health care employer cannot require a nurse/LPN to work more than their regularly scheduled hours, except under the following circumstances:

• A Health Care Disaster, such as a natural disaster or other type of disaster that unexpectedly increases the need for health care personnel in the county in which the nurse is employed or in a contiguous county;
• Declaration of Emergency, by federal, state or county officials in the county in which the nurse is employed or in a contiguous county;
• An “Emergency Requiring Overtime to Provide Safe Patient Care,” provided that the employer has implemented and utilized a Nurse Coverage Plan, and use of that Plan has failed to produce staffing to meet the emergency; and
• An Ongoing Medical or Surgical Procedure, in which the nurse is actively engaged and whose continued presence is needed to ensure the health and safety of the patient. The regulations add the requirement that the determination of whether the nurse’s continued presence is required must be made by the nursing supervisor or nurse manager supervising the nurse, and thus not by the administrator or surgeon.

Amendments to this law also require the healthcare employer to self-report to the New York State Department of Labor (NYSDOL) and the Department of Health (DOH) when they require nurses to work additional hours for at least 15 days in a month under one of the above exceptional circumstances. In the event the exceptional circumstances last for 45 days or more in any consecutive three-month period, the healthcare employer must submit an explanation for the need and provide an estimate of when the extra works hours will end.

Healthcare employers must display a poster in a location accessible to all employees. In addition, the NYSDOL created a Nurse Coverage Checklist to assist healthcare employers with complying with the new law.

New York Sexual Harassment Policy and Training Updates – Effective April 11, 2023

All NY employers are required to adopt a Sexual Harassment Prevention policy and provide employees with mandatory training.

The NYSDOL recently updated the Sexual Harassment Prevention model policy, training videos and model training presentation slides, which include changes to the law. The changes include additional examples of sexual harassment, discrimination, and retaliation and illustrate how situations can occur even with employees working remotely and on virtual platforms. The revisions also include gender-based harassment and discrimination may occur beyond sexual contact or sexually suggestive conduct, including stereotyping or treating employees differently because they identify as cisgender, transgender, or nonbinary.

In addition to the above changes, the process and information for reporting complaints to the state and federal EEOC were revised.

UTAH

UT Vaccine Passport Prohibition – Effective May 3, 2023

Under H.B. 131, employers in Utah are no longer allowed to consider vaccination or immunity passport status when making hiring decisions or determining any benefits or conditions of employment.  Government entities and places of public accommodation are also covered.

For private employers, some examples of entities that the law does not apply to include:

• Childcare programs with vaccine requirements
• Federal contractors
• Employees who come into direct contact or exposure to human blood or other potentially infectious materials that may expose the employee to hepatitis or tuberculosis.
• Regulated entities where compliance would result in a violation of mandatory regulations or requirements that affect the entity’s federal funding issued by the Centers for Medicare and Medicaid Services or the CDC.
• An employer that establishes a connection between a vaccination requirement and the employee’s assigned duties and responsibilities, or identifies an externally imposed requirement for vaccination and is related to the employee’s duties and responsibilities.
• A contract for goods or services entered into before May 3, 2023 (with some exceptions)

Employers operating in Utah that require proof of vaccination and/or immunity should review and update their policies accordingly.

FEDERAL

Flexible I-9 Remote Employee Document Inspections – Ends July 31, 2023

During COVID, the US Immigration and Customs Enforcement agency (ICE) temporarily allowed employers to virtually inspect a remote new hire’s eligibility documents for the Employer section of Form I-9. ICE has announced that effective July 31, 2023, virtual inspections will end.

What the change means:

1. For new hires after July 31, 2023, employers may no longer inspect documents remotely, and must follow the pre-COVID rule of having another employee or an Authorized Representative* inspect the documents in person, with the employee present, and complete and sign Section 2 of Form I-9 on behalf of the Company.
2. Employers who virtually inspected eligibility documents for employees hired during COVID must now go back and have an assigned employee or an Authorized Representative* review the original documents in person. They will also be required to update the Form I-9 with specific notes. Employers have until August 30, 2023, to inspect the documents and update I-9 forms.

The ICE has provided visual examples on how to notate updates to Form I-9 on the following site:  https://www.uscis.gov/i-9-central/form-i-9-examples-related-to-temporary-covid-19-policies

We recommend:

If you hired remote employees during COVID 19 and have not yet inspected their documents in person, complete an I-9 audit to identify which employees’ documents must be reverified and act soon to update.

*Under California law, the only individuals who can assist clients with completing immigration forms (such as the Form I-9) are appointed Company employees, licensed attorneys, individuals authorized under federal law to provide immigration services, and individuals qualified and bonded as an immigration consultant under California law.

Interested in other current employment trends? Click the link to view the recent blog: Five Best Practices for Writing and Sharing Company Values or check back for more on human resources, payroll, insurance, and benefits.

This article does not constitute legal advice, and there are subtle variations in employment law as it pertains to this topic, depending on where your business operates. It is strongly suggested that you seek consultation or legal counsel before making policy decisions.