November 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:

CALIFORNIA

Fair Chance Act Amendments – Effective October 1, 2023

The 2018 Fair Chance Act (aka “Ban the Box”), allows applicants with criminal histories a chance at employment if otherwise qualified by prohibiting most employers from inquiring about criminal background or running background checks prior to extending a conditional job offer.

As of October 1, 2023, the Act will include the following amendments:

• Prohibits wording in job ads that may discourage applicants from applying based on criminal history, such as “Clean criminal record required” or “No felons.”
• Expands considerations to make when conducting individualized assessments of a conviction history.
• Provides examples of types of documentation applicants may submit that speak to mitigation or rehabilitation efforts as well as other factors for the employer to consider. (However, employers may not require specific documents to be submitted.)
• Expands on the term “applicant” to include current employees who may be subject to a background check requirement due to a change of position, ownership, or policy.

Industry Specific Minimum Wage Rates Coming

• Fast food workers: Certain fast-food workers will have a minimum wage increase of $20.00 per hour effective on April 1, 2024.
• Healthcare workers: Covered healthcare workers will see a minimum wage increase to rates between $18.00 and $23.00 per hour in June 2024 depending on the size and type of employer, with scheduled increases over time. Covered exempt salaried healthcare workers will need to be paid at 150% the healthcare worker minimum or 200% the state minimum, whichever is higher.

Paid Sick Leave – Effective January 1, 2024

The California Paid Sick Leave annual accrual and usage allowances will increase in 2024.

The total annual accrual limit will increase from 48 hours or six days in each 12-month period to 80 hours or 10 days.  Rollover of unused time may be limited to, and balances may be capped at, 80 hours or 10 days. Employers may also satisfy the requirements if they choose to front-load 40 hours or five days once in each 12-month period.

Usage may be limited to 40 hours or five days in each 12-month period.

Employers with local sick leave ordinances should follow the sick leave rules that are most generous for the employee and employers with combined sick and vacation plans (PTO) will need to ensure compliance with applicable sick leave plans based on where their employees are working.

Reproductive Loss Leave – Effective January 1, 2024

Reproductive Loss Leave will provide up to five days (consecutive or non-consecutive) to employees who experience reproductive loss, defined as a miscarriage, stillbirth, failed adoption, failed surrogacy or an unsuccessful assisted reproduction, such as embryo transfer.

Employees are eligible for leave if they work for an employer of five or more employees and have completed 30 days of service.  Leave may be unpaid, but available sick, vacation or PTO may be used upon employee request.  Medical certification cannot be required for leave.

Noncompete Agreement Law Update – Effective January 1, 2024

Noncompete agreements aim to restrict former employees from working in the same industry and/or competitors within certain geographic areas for a specified period post-employment. The prohibition of the use of these agreements in California is not new but new laws expand these restrictions, with limited exceptions.

Generally:

• A noncompete agreement signed in a different state will likely not be enforceable for candidates who seek employment in California.
• Employers must provide individual written notification to any current California employees (and former California employees hired on or after January 1, 2022) who are under noncompete restrictions that those clauses have been voided by February 14, 2024

Protections for Off-the-Job Marijuana Use – Effective January 1, 2024

New protections will make it unlawful for employers to discriminate or take adverse action against employees or candidates for:

• Lawful use of marijuana and marijuana products on their own time and away from work and/or
• A positive test for marijuana based on “non-psychoactive cannabis metabolites” present in hair, blood, urine, or other fluids.

 Employers may still prohibit employees from working under the influence of marijuana or possessing it while on the job.

The new protections do not apply to:

• Jobs that require federal clearance or background screening.
• Jobs that have federal drug testing requirements.
• Jobs that are required to test for controlled substances by federal or state regulations as a condition of receiving federal funding, licensing benefits or a federal contract.
• Safety-sensitive jobs in the building or construction industries.

Required Workplace Violence Prevention Play – Implemented by July 1, 2024

California employers will be required to implement and adopt and implement a Workplace Violence Prevention Plan by July 1, 2024.  Initial and employee annual training and recordkeeping will also be required.

Exceptions include employers already subject to an industry workplace violence safety standard, employees who work from a remote location, and worksite locations not open to the public with fewer than ten employees.

A model program will be available in the coming months on the state OSHA website to assist employers in drafting a compliant plan.

COLORADO

Colorado FAMLI (Paid Family Leave) Benefits will begin January 1, 2024

Employees will soon be able to submit claims to the state for the Colorado Family and Medical Leave Insurance program, with paid benefits beginning on January 1, 2024.

FAMLI is administered by the State of Colorado and is funded by both employee and employer payroll contributions. Employees should be directed to apply for FAMLI at the state website. FAMLI administrators will notify employers when an employee has been approved for benefits and requires time off from work.

If offered, employers must maintain health care benefits for employees while they are on FAMLI leave, and both the employer and the employee remain responsible for paying for those benefits in the same amounts as before the leave began.

In addition, employers must display the required FAMLI notice in a common area in the workplace and distribute the notice to remote employees working in Colorado.

NEW YORK

New York Bans “Captive Audience” Meetings – Effective 9/6/2023

New York employers are now prohibited from disciplining or otherwise retaliating against employees for refusing to attend employer sponsored meetings or communications related to religious and/or political matters. Political matters are defined as matters relating to elections for political office, political parties, legislation, regulation and/or the decision to support a political, civic, community, fraternal or labor organization. Religious matters are defined as those relating to religious affiliation and practice and the decision to join or support any religious organization.

In addition, employers will be required to post a notice in the workplace for employees to see.

New York Wage Theft Amendment – Effective 9/6/2023

Effective September 6, 2023, NY employers can be charged with larceny if they do not pay earned wages to employees at the rate promised, at the overtime rate, at the NY minimum wage rate, and/or at the NY minimum exempt salary threshold.

New York Notice of Eligibility for Unemployment – Effective 11/13/2023

NY employers are already required to provide a written notice of eligibility and the right to file for unemployment benefits to any employee who has been terminated. On November 13, 2023, employers will also be required to provide these notices to employees whose working hours have been reduced.

Employers are still required to provide written notice to terminated employees of their exact date of termination, as well as the termination of all benefits. Both notices must be provided to employees within five days from the date of termination or reduction of hours.

New York Social Media Account Inquiries – Effective 3/12/2024

On March 12, 2024, NY employers will be prohibited from requesting, requiring or coercing employees or applicants to disclose their username, passwords, or login information for their personal accounts as a condition of hiring, a condition of employment, or for use in a disciplinary action. The law also prohibits employers from requiring employees or applicants to reproduce photos, videos, or other information contained in their personal accounts.

Employers may request or require employees to disclose log in information for company accounts or accounts that were provided/created by the employer to be used for business purposes as long as the employee was notified of the employer’s right to request this information.

New York City Earned Safe and Sick Time (ESST) Amendments – Effective 10/15/2023

The NYC Earned Safe and Sick Time law has been amended – changes are outlined below.

Total Employee Headcount

Employers must count the highest total number of employees employed nationwide at any point during the calendar year, including full-time, part-time, employees jointly employed, and employees on a leave of absence, suspension, or temporary absence. As a result, employers who shift to a higher ESST threshold must make an immediate adjustment to the ESST leave provided to their employees.

To be eligible for ESST, and employee must:

• Regularly perform work in NYC during a calendar year;
• Cover “one to three, six-to-eight-hour shifts in NYC when needed due to staffing shortages although their normal base of operations is located outside of NYC; or
• Work for a fixed-term in NYC, even if their normal base of operations is outside of NYC.

Notice and Documentation Requirements

Employers may require employees to provide advance notice for “foreseeable” absences covered under ESST; however, foreseeable absences are now defined as knowing of the absence up to seven days prior to the absence. Otherwise, the absence is unforeseeable, and the employee will need to provide notice as soon as practicable.

In addition, employers who require written documentation for ESST must now include in their policy the requirement for documentation, the types of documentation accepted (email, text, phone, etc.), and instructions on how to submit the documentation.

Available Leave and Used Leave Notification

Going forward, employers must specify both the total balance and the amount of time available for use if the values differ. If the employer uses an electronic system to provide this information, they must electronically alert employees each pay period of the availability of the required information.

New York City Human Rights Law Discrimination Protection Amendment – Effective 11/22/2023

Beginning November 11, 2023, the NYC Human Rights Law will prohibit discrimination and harassment in the workplace on the basis of an individual’s height and/or weight. As result, NYC employers are prohibited from denying employment opportunities and/or from making an adverse employment action against an employee because of their perceived or actual height and/or weight.

OHIO

Ohio Permits Recreational Use of Marijuana – Effective December 7, 2023

Ohio has passed the use of recreational marijuana, which goes into effect on December 7, 2023. The law will permit adults 21 and older to use and possess legal limits of recreational marijuana. Ohio employers are not required to permit an employee’s use, possession and/or distribution of marijuana in the workplace.

Employers are permitted to continue to enforce drug testing policies and/or drug free workplace and zero tolerance drug policies in the workplace. As a result, employees can be disciplined and/or terminated if they are in violation of these policies. Additionally, employers may refuse to hire an individual because of their use, possession and/or distribution of marijuana.

Interested in other current employment trends? Click the link to view the recent blog: Employee Workplace Safety and Security Considerations 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 these topics, depending on where your business operates. It is strongly suggested that you seek consultation or legal counsel before