September 2020 Rhode Island HR Legal Updates

Rhode Island Minimum Wage Rises

Rhode Island’s minimum wage will be raising to $11.50 on October 1, 2020 in accordance with a minimum wage order signed by Governor Raimondo back in March 2020. Employers should be in contact with their payroll personnel to ensure that employees are being paid the minimum wage. Otherwise they risk being out of compliance.

You can read more about the minimum wage here.

September 2020 Oregon HR Legal Updates

New Oregon Act Restrict Signed Agreements and Strengthens Anti-Discrimination Requirements

What happened?
Oregon has passed new legislation, the Workplace Fairness Act (WFA), that creates new restrictions on signed agreements employees can be required to sign and creates new requirements for employer non-discrimination and non-harassment policies.

What are the details?
The WFA creates two sets of rules that will be applicable to employers in the state of Oregon. The first is a rule prohibiting the use of specific signed agreements.  The second is a new set of expectations regarding employer’s anti-discrimination and anti-harassment policies.  

Signed Agreements

The WFA will remove the ability of employers to require an employee to enter into any agreement with a nondisclosure or nondisparagement provision if it has the purpose or effect of preventing the employee from disclosing or discussing conduct constituting discrimination, harassment, or sexual assault.

However, should an employee who claims to be aggrieved by discrimination, harassment, or sexual assault request to enter into a settlement, separation, or severance agreement that contains a nondisclosure, nondisparagement, or no-rehire provision, it is permissible under the WFA. The employer is required to provide at least seven days to the employee to revoke the agreement, with the agreement not being effective until after this revocation period.

Additionally, employers may void severance agreements for managers who have violated the company’s discrimination and/or harassment policies if the violation were a significant contributing factor to the manager’s separation from employment.

Anti-Harassment and Anti-Discrimination

The WFA will require employers to include a written anti-discrimination and anti-harassment policy. This policy must contain procedures and practices intended to reduce and prevent discrimination under Oregon’s protected categories. The policy must include the following:

  • A description of the process to complain about prohibited conduct, including suspected discrimination, harassment, or sexual assault;
  • Identify who in the organization the violations may be reports to, including a primary and secondary individual;
  • Notify employees that they have five years from the date of the prohibited conduct to pursue legal action;
  • State that an employer may not coerce or require an employee into a nondisclosure or nondisparagement agreement, as well as defining those terms;
  • Explain that an employee does retain their right to request those agreements with a seven-day grace period, if an employee should want to enter into them; and
  • Include a statement that advises employers and employees to document any incidents involving unlawful discrimination and sexual assault.

Note: Employers must give a copy of their anti-harassment and anti-discrimination policies to new employees, and to individuals who make a complaint about a prohibited discrimination or harassment.

Finally, the WFA increases (as mentioned above) the statute of limitations to up to five years for any prohibited behaviors listed above. Law firms operating in Oregon are recommending employers begin holding onto employment records to match this duration in order to provide any evidence they may have on hand, should cases come up years down the road.

The WFA legislation can be found online here.

The Oregon Bureau of Labor and Industries has provided a template policy for employers, which can be found here.

What do employers need to do?
Oregon employers should update their policies regarding signed agreements, anti-discrimination, and anti-harassment. Employers should also look into policies expanding how long they hold on to employment records, in order to protect against the five-year statute of limitations.

September 2020 New York HR Legal Updates

New York Paid Family Leave Benefits Increasing January 1, 2021

What happened?
On January 1, 2021, New York’s Paid Family Leave (NYPFL) benefits will be increasing, as well as the employee payroll contribution.

What are the details?
Currently the NYPFL provided to employees is capped at 10 weeks. Come January 1, 2021, this will increase to 12 weeks, the maximum amount granted by this law. The maximum amount of benefits an employee is entitled to while on leave is also increasing. The maximum amount of benefits an employee is entitled to receive while on leave is based on the employee’s average weekly wage (AWW) and the state’s average weekly wage (SAWW). Effective January 1, 2021, the maximum amount of benefits will be calculated based on 67% of an employee’s AWW, up to a cap set at 67% of the SAWW. The SAWW for 2021 is $1,450.17. The maximum weekly benefit in 2021 will be $971.61 per week.

To ensure sufficient funds to cover the increased benefits, the employee payroll contribution toward NYPFL also will be adjusted on January 1, 2021 to 0.511% of an employee’s gross wages each pay period, capped at a maximum annual contribution of $385.34.

New York has provided an outline of everything changing going into the new year, as well as an FAQ about the paid family leave, found here.

What do employers need to do?
New York employers should be aware of the increases to the family leave and adjust their workplace practices to accommodate the possibility of extended employee absences.

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New York City Passes Paid Sick Leave Amendments Effective September 30, 2020

What happened?
On September 23, 2020, the city council of New York City signed a new set of amendments for the city’s paid sick leave program. This reached Mayor de Blasio on September 28, 2020, which was promptly signed.

What are the details?
The amendments bring the existing requirements for employers in the city to match the upcoming paid sick leave that will be statewide in New York. The amendments, however, will not share the same effective date as the statewide sick leave program. Instead, these amendments will be fully effective September 30, 2020. The New York State sick leave program will only begin accruing on September 30, 2020 effectively using the sick leave on January 1, 2021. Whereas in New York City, the employees will enjoy the full benefits of the change as soon as the changes are effective.

The following are significant changes from the existing paid sick leave program that the city was running:

  • Employers will now be required to provide the employee’s amount of leave accrued and used during a pay period and their total balance of accrued leave via a pay statement or other form of written documentation provided to employees each pay period.
  • The Department of Consumer and Worker Protection (formerly the Department of Consumer Affairs) will provide a notice for employers to provide employees upon their date of hire and again on the effective date of these amendments. Additionally, the department will provide a workplace poster that employers will be required to be posted in a conspicuous location in the workplace.
  • The definition of employee no longer requires a minimum of 80 hours of working inside the city to be eligible for the leave. Instead, if the employee performs any work for any amount of time in the city, they will be eligible for the paid sick leave.
  • Large employers (100 or more employees) will now have to allow employees to accrue up to 56 hours a year, as opposed to the previous upper limit of 40 hours for all employers.
  • Employers who require reasonable documentation (for the use of paid sick leave) as permitted by the city law will be required to reimburse employees for all reasonable costs or expenses incurred for the purpose of obtaining such documentation.
  • Employees will now be able to use their paid sick leave as it accrues. Previously, employers could withhold the use of accrued sick time for the duration of a 120-day probationary period.
    • Employers will not be required to provide any additional time to employees past the yearly maximum previously enforced. For example, a large employer will now need to provide 56 hours of paid sick leave to employees, but if an employee has already used 40 hours from before the passing of the increase, the employee will only receive the additional 16 hours, and not a complete refresh on their annual use limit. Employers with 100 or fewer employees will enjoy the same protection (i.e., if an employee has already used their 40 hours allotted to them, they may not use more once the amendments are effective).
    • Employees of large employers who will now be accruing up to 56 hours of paid sick leave, may not, unless noted otherwise by the employer, use their additional 16 hours of paid sick leave until January 1, 2021.
    • Employees of an employer with less than five employees who made more than $1 million in the previous year may not use their paid sick leave until January 1, 2021, unless otherwise noted by their employer.
  • Small employers (with less than five employees) who had a net income of $1 million or more in the previous tax year will now need to provide paid sick leave. Previously, all small employers regardless of income could provide unpaid sick leave.
  • Instances of domestic violence are now covered by the safe time provisions of the leave.
  • The amendments are set up in a way that the New York City sick leave will always defer to the more restrictive standard created between the state’s New York paid sick leave, and the city’s sick leave.

Note: While these changes are effective September 30, 2020, they will not be enforced until the Department of Consumer and Worker Protection provides the required documents for employers (workplace poster and employee notices). There is no current ETA on when they will be done.

The press release of the mayor signing this legislation can be found here.

The legislation can be found here.

An article summarizing the changes can be found here.

What do employers need to do?
Clients with employees in New York City should reach out to their Client Relations Representative and HR contacts to start getting their sick leave plans in compliance.

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New York Paid Sick Leave to Begin Accruing

New York’s Paid Sick leave program will begin accruing sick leave for all eligible employees on September 30, 2020. Employees will not be able to use this sick leave until January 1, 2021. Employers should be sure that they are tracking hours worked by employees and accruing the correct amount of paid sick time for their employees.

Articles going over this law can be found here and here.

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Upcoming Voting Leave Requirements

New York State requires that employers place a posting educating employees about their voting leave rights 10 days before an election occurs. The upcoming election will be held on November 2, 2020, meaning employers should look to have the required posting placed by October 22, 2020. 

The required posting, provided by the state of New York, can be found here.

September 2020 Maryland HR Legal Updates

Maryland Ban on Salary History Questions Upcoming

What happened?
As of October 1, 2020, employers will no longer be allowed to ask potential employees their salary history during the interviewing process under HB 123.   

What are the details?
In effort to combat historical wage discrimination against women, Maryland will be prohibiting employers from asking interviewees what their previous salary history was. Additionally, interviewees may ask employers to provide the salary range for the relevant position. Applicants may still voluntary provide this information if they wish. It will be considered unlawful to refuse to interview, hire, or employ an applicant because the applicant did not provide their wage history. Finally, the law will prohibit employers from retaliating against an application for employment because the applicant makes a complaint, brings an action against you, or testifies against you under the equal pay law. Conversely, employees may not make groundless or malicious complaints against employers or otherwise proceedings in bad faith. 

An article discussing HB 123 can be found here.

HB 123’s full text can be found here.

What do employers need to do?
Employers should begin updating their hiring policies in order to stay in compliance with HB 123. Managers and other employees with the ability to hire should be trained on the new restrictions in order to reduce possible liability.

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Maryland Upcoming “Mini”-WARN Act and CROWN Act

What happened?
On October 1, 2020, Maryland’s mini-WARN (Worker Adjustment and Retraining Notification) Act and Create a Respectful and Open World for Natural Hair (CROWN) Act will become effective.

What are the details?
“Mini”-WARN Act

The Mini-WARN Act, SB 780, when compared to the federal WARN Act is more encompassing, requires notices be given to more people once triggered, and imposes much harsher penalties. Maryland’s WARN act will cover employers operating industrial, commercial, or business enterprises employing 50 or more employees for at least 12 months. Employees working 20 hours or less on average per week or have worked for the employer for less than six of the preceding 12 months are not included in the count for the purpose of determining an employer’s coverage under law. Under SB 780, employers must provide a 60 days’ notice of a reduction in operations, defined as:

  1. A relocation of a part of an employer’s operation from one workplace to another existing or proposed site; or
  2. The shutdown of either a workplace; or a portion of the operations of a workplace that reduces the number of employees by the greater of at least 25%, or at least 15 employees, over any three-month period.

Under the law, covered employers must provide 60 days’ notice to:

  • All employees at the workplace subject to reduction;
  • Any union or bargaining agency of the affected employees;
  • The Maryland Workforce Development’s Dislocated Worker Unit; and
  • All elected local officials in the area of the affected workplace.

This law will not be enforced by the Maryland DOL until they have posted their requirements, expected around April 2021. They will likely be posting the regulations for public comment in November 2020.  Upon enforcement, employers who violate the law could face a civil penalty of up to $10,000 per day for failure to provide notice to all required parties.

Finally, the law does not apply to reductions in operation that are the result of:

  • labor disputes;
  • that occur in state or politically run commercial, industrial, or agricultural businesses;
  • occur at construction sites or other temporary workplaces;
  • that are the result of seasonal factors, as determined by the Department of Labor; or
  • occur when an employer files for bankruptcy.

SB 780 can be read here.

CROWN Act

Like many other states now, Maryland has implemented a CROWN Act into its law. The CROWN Act expands the definition of race to include “certain traits associated with race, including hair texture and certain hairstyles.” “Braids, twists, and locks” along with “hair texture, afro hairstyles, and protective hairstyles” are specifically named and included in this protection.

The CROWN Act can be read fully here.

What do employers need to do?
Employers should update their standards of procedure when reducing their workforce, should it trigger Maryland’s WARN Act. Employers should also look at their hiring procedures and may need to provide training to hiring personnel regarding the CROWN Act’s new additions to the definition of race.

September 2020 Maine HR Legal Updates

Maine DOL Issues Final Mandatory Paid Leave Rules

What happened?
The Maine DOL has issued the final rules for the mandatory paid leave created when Governor Mills signed the Act Authorizing Earned Employee Leave in May 2019.  

What are the details?
Maine’s paid leave program will be the first statewide in the country that allows the use of paid leave for any reason at all.

Private employers with more than 10 employees working in Maine in the usual and regular course of business for more than 120 days in the calendar year. A covered employee can include full-time, part-time, and per-diem employees. Domestic workers making over $1,000 a year will also qualify for this paid leave.

The law will not cover seasonal employees, independent contractors, and employees working fewer than 120 days in any calendar year.  Employees covered by a collective bargaining agreement during the period between January 1, 2021 and the expiration date of the agreement are excluded.

Employees will begin accruing paid leave upon hire. They will not be able to use the paid leave until 120 days after their employment date. Employers may frontload the 40 hours required at the beginning of the plan year or on the employee’s anniversary date as long as the employee receives no less earned paid leave than he or she would have earned under an accrual method. If an employer frontloads hours to an employee’s balance and the employee quits, the employer may deduct the number of hours they would not have earned on an accrual plan from the employee’s balance. Otherwise the employees will accrue at a rate of one hour of paid leave for every 40 hours worked, up to a maximum of 40 hours a year. Employees may carryover their balance from one year to the next, but employers may cap this amount to 40 hours. Employers only need to pay out existing balances of paid leave if the company has a policy setting a precedent of doing that for other accrued leaves. If not, the company can choose not to. If an employee is no longer employed with an employer who does not cash out their balance and returns to work for that employer within one year, the employer must reinstate their previous balance.

Paid leave will be paid at the employee’s base pay rate. Calculating the base rate of pay requires dividing total earnings for the week prior to the leave by the number of hours worked. Note that this has the potential for employees to take leave at an increased rate should they receive a bonus or commission in the week prior to their leave. Employees working in the service industry that typically receives tips will have the state’s minimum wage be considered their base pay rate.

Employers may require employees to provide up to four weeks’ notice of their intent to utilize their earned paid leave. In emergency situations, employees must give notice in a “reasonable” amount of time. Employees may use paid leave in increments as small as one hour. Employers may allow smaller units of time if they wish. In instances of leave being used for more than three days for sick time, employers may require a doctor’s note or other documentation.

The required workplace poster can be found here.

The Act’s full text can be found here.

An FAQ provided by Maine’s DOL can be found here.

What do employers need to do?
Maine employers should begin adjusting their workplace policies to accommodate the new leave requirement. Training should be prepared for administrative staff and management to know how to handle and administer this paid leave.

September 2020 District of Columbia HR Legal Updates

Upcoming Voter Rights Notice Requirement

The Leave to Vote Amendment Act of 2020, passed June 24, 2020, has a requirement of employers to post a notice educating employees about their voter leave rights. This notice is to be supplied by the District of Columbia Board of Elections, sometime before the November elections. The Board has yet to supply the notice. They have also not provided an ETA on when employers should be expecting to see it, other than before the November elections.

The DC Board of Elections’ forms and resources can be found here.

September 2020 Delaware HR Legal Updates

Delaware Issues New Industry-Specific Guidelines for COVID-19

What happened?
Governor Carney issues the twenty-seventh modification: State of Emergency Declaration. This has created new regulations for all industries in Delaware to follow during the COVID-19 pandemic.

What are the details?
Effective September 4, 2020, the new regulations will impact the following industries:

  • Arts and Culture, Museums, Galleries, and Historical Attractions
  • Casinos
  • Child Care
  • Commercial Lodging and Campgrounds
  • Commercial Offices and Residential Buildings with at least 50 units
  • Convention Centers and Meeting Facilities
  • Exercise Facilities
  • Food and Drink Establishments – Large amount of restrictions
  • Golf Courses
  • Houses of Worship
  • Malls
  • Parks and Recreations
  • Personal Care Services
  • Personal Driving School
  • Private Instruction
  • Racetracks
  • Realty
  • Retail Establishments
  • Senior Centers, Adult Day Centers, and Senior Congregate Nutrition Programs
  • Summer camps
  • Youth and Adult Amateur Sports

Sporting facilities and venues, indoor children’s play areas, and water parks are still not permitted to open unless they provide a specific plan to the state for approval.

To read more about your specific industry and how it may be impacted, you may find all available information provided by Delaware here.

What do employers need to do?
Delaware employers should review the restrictions placed upon their industry, if any, and adjust their workplace policy to accommodate these new restrictions.

Note: The state of Delaware encourages employers, who are able to, to move employees onto a remote work platform to reduce in-person interactions.

September 2020 California HR Legal Updates

Newsom Passes AB 2257 Creating More AB 5 Exemptions

What happened?
On September 4, 2020, Governor Gavin Newsom signed AB 2257, making it effective immediately.

What are the details?  
On September 18, 2019, AB 5 was passed, which codified Dynamex Operations West, Inc. v. Superior Court of Los Angeles. The ruling would create a new way to determine if a person hired by an employer was an employee or a contractor. It quickly became apparent to many employers that their businesses would be severely impacted by this decision. Companies like Uber and Lyft, to this day, do not abide by AB 5, risking severe litigation. Since the passing of AB 5 many industries have tried to obtain exemptions carved out for their businesses.

AB 2257 will create a number of exemptions in AB 5. These exemptions are not a “get out of jail free card” for employers. Instead, the exemptions will simply bring the select few workers back to the Borello test, which had been used before the adoption of the ABC test.  The Borello test is a series of questions based around the question of does the hiring entity have the right to “control the manner and means” of completing that service?

The following workers are brought back to the Borello test with the passing of AB 2257:

  1. Certain workers in the music industry;
  2. Musicians performing for single live performances;
  3. Individual performance artists presenting original, creative work;
  4. Insurance industry workers who provide underwriting, inspections, and other services; and
  5. Consulting service providers.

The bill also removes a provision from AB 5 that automatically turns freelance writers and photographers into employees if they contract for more than 35 submissions in a year to a single employer, provided that:

  1. The writer or photographer provide services under a contract that specifies the intellectual property rights, the rate of pay for which the services would be provided and that the contractor does not replace an employee;
  2. The services would not be primarily performed at the employer’s location; and
  3. The worker is not restricted from working for other employers.

As it stands after the signing of this bill, any workers not included in AB 2257 will still need to adhere to the AB 5 provisions.

The full legislation can be read here.

An article summarizing the legislation can be found here. (Note: The article was written before the legislation passed, but the content of the legislation did not change between the time of writing the article and the passing.)

What do employers need to do?  
Employers utilizing workers in the listed industries should seek legal counsel to see how these exemptions may impact their worker’s classifications.

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Worker Recall and Retention Ordinances Passes in San Diego

What happened?
On September 8, 2020, the City of San Diego passed two ordinances that are effective immediately. The two ordinances are the “City of San Diego COVID-19 Building Service and Hotel Worker Recall Ordinance” (Recall Ordinance) and the “City of San Diego COVID-19 Worker Retention Ordinance” (Retention Ordinance).

What are the details?  
The two ordinances are meant to target three types of businesses and employer who have been especially impacted by the pandemic.

  1. Commercial Property Employer: Defined by the recall ordinance as owner-operator, manager, or lessee, including contractor, subcontractor, or sublessee of a non-residential property located within the geographical boundaries of the City of San Diego that employs 25 or more janitorial, maintenance, or security service employees. Only the janitorial, maintenance, and security service employees who perform work for a commercial property business or employer are covered by the recall Ordinance.
  2. Event Center Employer: Defined by the recall ordinance as an owner, operator, or manager or a privately-owned structure of more than 50,000 square feet or 5,000 seats that is used for the purpose of public performances, sporting events, business meetings, or similar events, and includes concert halls, stadiums, sports arenas, racetracks, coliseums, and convention centers. The term “event center” also includes any contracted, leased, or sublet premises connected to or operated in conjunction with the “event center’s” purpose, including food preparation facilities, ushering services, ticket taking services, concessions, retail stores, restaurants, bars, and structured parking facilities, but excludes governmental entities.
  3. Hotel Employer: Defined by the recall ordinance as an owner, operator, or manager of a residential building located within the geographical boundaries of the City of San Diego with at least 200 guest rooms that provide temporary lodging in the form of overnight accommodations to transient patrons, and may provide additional services, such as conferences and meeting rooms, restaurants, bars, or recreation facilities available to guests or the general public. A “hotel employer” also includes the owner, operator, manager, or lessee of any contracted, leased, or sublet premises connected to or operated in conjunction with the building’s purpose, or providing services to the building.

Covered employers under the Recall Ordinance will need to offer positions of jobs available on or after September 8, 2020 to qualified employees who were laid off on or after March 4, 2020. Laid off employees will be eligible, in order of priority, according to the following:

  1. Held the same or similar position at the same location when the employee was laid off; or
  2. Is or can be qualified for the position with the same training that would be provided to a new worker hired into the position.

Companies that experience a change in control/ownership must still provide 90 days’ notice to previous employees. At the end of the end of the 90 days the employer must perform a written performance evaluation for each eligible employee retained pursuant of the Retention Ordinance.

The Recall Ordinance can be found here

The Retention Ordinance can be found here.

What do employers need to do?  
San Diego employers should be aware of these provisions as they are effective immediately. These only apply to the three listed types of business so businesses that fall within these three types especially should be aware of the new requirements placed upon them.

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California Family Rights Act Expands Dramatically

What happened?
On September 17, 2020, Governor Newsom signed Senate Bill (SB) 1383, greatly expanding the coverage of the California Family Rights Act (CFRA).

What are the details?  
SB 1383 has greatly expanded the coverage provided to employees by the CFRA. Effective January 1, 2021, this bill will repeal the previous provisions of the CFRA and the New Parent Leave Act (NPLA) and combine them into one larger leave system.

The current CFRA only applies to employers with 50 or more employees within 75 miles of the worksite. The new CFRA will apply to employers with as few as five employees and removes the distance provision. Most notably the new CFRA will expand what “family members” the employee may take leave to take care of. Previously, the CFRA would only cover employees to take care of their minor child (unless the child is an adult and a dependent child), their spouse, and their parents. Now, the new CFRA will allow the employee to take leave to take care of their siblings, grandparents, grandchildren, and domestic partners.

The leave will also impact employers who have employees that are having a child together. In addition, the new CFRA will not include a provision in the old one that allowed employers to deny re-instatement for salaried employees who were paid among the highest 10% of the employees and where the refusal is necessary to prevent substantial and grievous economic injury.

Finally, the old CFRA would only require employers to provide the 12 weeks of leave total in connection to the birth of the child. So, the father and mother would need to decide how they wanted to split the time, or if either will use the leave entirely. Now, the 12 weeks will be given to both parents.

SB 1383 can be found here.

What do employers need to do?  
Employers should immediately start updating their leaves policy in order to prepare for the January 1, 2021 effective date.

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California Passes Two Related COVID-19 Acts

What happened?
On September 17, 2020, Governor Newsom signed into law AB 685 and SB 1159. Both of these acts create new responsibilities for employers when dealing with COVID-19.

What are the details?  
SB 1159 and AB 685 have created new responsibilities for employers as COVID-19 continues. AB 685 creates new reporting obligations for employers when they are notified of employees testing COVID-19 positive. SB 1159 creates a presumption that if an employee is working (at the workplace) and tests positive for COVID-19, they contracted the virus at work.

AB 685

AB 685 will be effective on January 1, 2021 and requires employers to report new cases of COVID-19 in the workplace. Employers will now be required to give a notice when they are made aware of a COVID-19 infection in the workplace. The notice should be distributed to all employees in the workplace, people who represent the employees (unions and attorneys), and it is recommended that the notice be given to third parties who were in proximity to the infection. The notice will include information about the COVID-19–related benefits that employee or employees may receive. These benefits may include worker’s compensation, COVID-related leave, and paid sick leave. Additionally, the notice should include the company’s anti-discrimination, anti-harassment, and anti-retaliation policies.

Employers will be required to report any COVID-19 outbreaks happening in the workplace to their local public health agency. Outbreaks are defined by the state health department. Employers will be required to have this report sent to the local health department within 48 hours of learning of the outbreak. Employers will also need to report any COVID-19–related fatalities.

Finally, AB 685 will fast track the Cal/OSHA major violations process. Normally employers would be given a 15-day notice by Cal/OSHA to allow the employer to build a defense for themselves. AB 685 will be removing this 15-day notice period. Employers will no longer have a period of time to gather evidence; instead, they will be expected to not have any violations. In instances where there is a violation, it is recommended to employers that they closely inspect the citations they receive, and exercise extreme caution when providing documents to Cal/OSHA.

The classification of an COVID-19 outbreak is available on the State Health Department’s website here.

An article going in more depth on the changes coming from AB 685 can be found here.

SB 1159

An executive order, N-62-20, signed by Governor Newsom back in May 2020 had already created the idea of a rebuttable presumption for the purposes of workers’ compensation. The executive order had expired back in July 2020 without being renewed. SB 1159 acts as a spiritual successor as it re-instates the rebuttable presumption for many employers as well as building more reporting requirements for employers. Beforehand, employers had 30 days to rebut any claim that the employee contracted COVID-19 from the workplace. Fortunately, this had been extended instead to 45 days, if the date of injury is on or after July 6, 2020. Employers must keep in mind that only evidence discovered subsequent to the claim may be used to rebut the claim. The 45 days, however, is not provided in cases for “essential employees.” They instead have the 30 days’ rebuttal period. Some examples of essential employees are fire fighters, police officers, an employee who provides direct patient care, and custodial employees in contact with COVID-19 patients.

The presumption created by SB 1159 applies to all employees who:

  1.  Test positive during an outbreak (defined below) at the employee’s specific place of employment, and
  2. Whose employer has five or more employees. The only injury for which the presumption applies is illness or death resulting from COVID-19.

However, the following conditions must exist for the presumption to apply:

  • The employee tests positive for COVID-19 within 14 days after a day that the employee performed labor or services at the employee’s place of employment at the employer’s direction.
  • The day on which the employee performed labor or services at the employee’s place of employment at the employer’s direction was on or after July 6, 2020. This must be the last date the employee performed labor or services at the employee’s place of employment at the employer’s direction before the positive test.
  • The employee’s positive test occurred during a period of an outbreak at the employee’s specific place of employment.

There are separate reporting requirements for positive tests between July 6, 2020 and up to the date that SB 1159 takes effect. If an employer is aware of an employee who has tested positive during this period, the employer must report the information in the first three bullet points above, via e-mail or fax, to its claims administrator within 30 business days of the date this legislation took effect. However, instead of the last bullet point, the employer must report the highest number of employees who reported to work at each of the employee’s specific places of employment on any work date between July 6, 2020 and the date SB 1159 takes effect. The claims administrator will use the above information to determine whether an outbreak has occurred.

Unlike AB 685, SB 1159 does not defer to the State Health Department’s guidelines on determining an outbreak. Instead, it uses a 14-day window where if any of the following conditions are met, an outbreak is considered to have happened:

  • If the employer has 100 employees or fewer at a specific place of employment, four employees test positive for COVID-19.
  • If the employer has more than 100 employees at a specific place of employment, 4% of the number of employees who reported to the specific place of employment test positive for COVID-19.
  • A specific place of employment is ordered to close by a local public health department, the State Department of Public Health, the Division of Occupational Safety and Health, or a school superintendent due to a risk of infection with COVID-19.

The presumption that the employee contracted COVID-19 from their workplace is only applicable to employees whose workplaces have had outbreaks. If none of the above situations have occurred, the presumption does not exist. Additionally, the employee must test positive during the outbreak.

SB 1159 will expire on January 1, 2023.

Articles summarizing SB 1159 can be found here and here.

The test of SB 1159 can be found here.

What do employers need to do?  
Employers should look to update their reporting procedures in in preparation of AB 685’s effective date. Legal counsel might be necessary for employers if a COVID-19 outbreak occurs in the workplace.

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Cal/OSHA Starts New Campaign Helping Agricultural Workers During Pandemic

What happened?
On September 28, 2020, Governor Newsom signed AB 2043 creating new responsibilities for Cal/OSHA.

What are the details?  
AB 2043 is an emergency bill which tasks the Division of Occupational Safety and Health within the Department of Industrial Relations (Cal/OSHA) with conducting a statewide outreach campaign to inform agricultural employees of their right to receive COVID-19–related employment benefits, including access to paid sick leave and workers’ compensation.

The bill also requires Cal/OSHA to initiate a statewide campaign to educate agricultural workers on best practices related to COVID-19 infection prevention and safety measures, including where to report workplace safety complaints.

As part of the campaign, Cal/OSHA, in partnership with community organizations and employee representatives, will make public service announcements on local Spanish radio stations and distribute workplace signs for employers to post in both English and Spanish.

The full legislation can be read here.

An article summarizing AB 2043 can be found here.

What do employers need to do?  
Employers in the agriculture business should comply with all Cal/OSHA-issued COVID-19–related guidance, as well as provide the resources to ensure their employees are able to understand the guidance as well.

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New Requirements for Minors Working in Entertainment Within California

What happened?
AB 3369 has been signed by Governor Newsom, effective immediately.

What are the details?  
AB 3369 imposes new training requirements for minors working in the entertainment industry. The bill will require minors working with a permit issued by the Labor Commissioner’s office to obtain training on sexual harassment every two years, based on the issuance date of the permit. Employers will then be liable to ensure the previous training received by the minor was compliant upon hire and will then need to schedule the employee’s next training to keep the employee within their two-year window.

The full legislation can be read here.

An article summarizing the legislation can be found here.

What do employers need to do?  
Employers with minor employees in the entertainment industry should create new policies to ensure new minor employees receive the appropriate training or are scheduled to receive it within the compliant time frame.

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Expanded Protections for Employees Who Are Victims of a Crime or Abuse

What happened?
On September 28, 2020, Governor Newsom signed AB 2992, making it effective immediately.

What are the details?  
AB 2992 imposes further limitations on employers from discharging, discriminating, or retaliating against an employee who is a victim of crime or abuse. Before the passage of this legislation, under Labor Code section 230, employers were prohibited from discharging an employee for taking time off to serve on a jury or appear in court pursuant to a subpoena or court order. Labor Code section 230.1 required employers of 25 or more employees to allow an employee who was a victim of domestic violence, sexual assault, and/or stalking to take time off to seek medical attention or related services. AB 2992 expands the protections under Labor Code 230 and 230.1 to a victim of a crime, or public offenses as outlined in section 13951 of the Government Code, which caused a physical or mental injury, or a threat of physical injury, regardless of whether any person is arrested for, prosecuted for, or convicted of committing the crime.

The bill also revises the categories of time off work under these circumstances, to include taking time off work to seek medical attention for injuries caused by crime or abuse, to obtain services from prescribed entities as a result of crime or abuse, to obtain psychological counseling or mental health services related to an experience of crime or abuse, or to participate in safety planning and take other actions to increase safety from future crimes or abuse.

Under the amended legislation, an employee shall give advance notice unless it is not feasible. If an unscheduled absence is taken, the employee within a reasonable time must provide one of the following as certification for the absence:

  • A police report,
  • A court order protecting or separating the employee from the perpetrator,
  • Documentation from a licensed medical professional or similar, or
  • Any other form of documentation that reasonably verifies the crime or abuse occurred.

The full legislation can be read here.

An article summarizing the legislation can be found here.

What do employers need to do?  
Employers should update their leave policies to accommodate the increased protection being given to employees. Managers and administrative staff should be trained to recognize the required documents that employees may provide as certification for their absences and what situations employees may utilize their leave.

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AB 1867 Resources

What’s happening?
Vensure has already sent out a stand-alone communication regarding the widely impactful AB 1867. We’d like to provide additional resources below.

The communication Vensure had previously provided regarding AB 1867 can be found here.

Articles going over AB 1867 can be found here and here.

The Department of Industrial Relations (DIR) has provided an FAQ discussing supplemental paid sick leave provided by AB 1867, found here.

AB 1867 (for eligible employers – see communication and articles for more details) requires postings for each employer with eligible employees. The DIR has provided model notices for employers to use.

  • This notice can be used by employers that have 500 or more employees nationwide or public or private employers of healthcare providers and emergency responders that have fewer than 500 employees nationwide if the employer excluded those employees from coverage under the federal Families First Coronavirus Response Act (FFCRA).
  • This notice can be used by employers with 500 or more employees with food-sector workers. Note that the new law (Labor Code section 248) no longer requires that a food-sector worker be a critical infrastructure worker, and the food-sector notice has been revised to reflect that change in the law. This means that if the employer is not a critical infrastructure business but has food-sector workers, they are now required to post this food-sector notice.

What do employers need to do?
Clients with 500 or more employees nationwide, who have any employees performing work in California, will need to reach out to their Client Relations Representative and HR contact to arrange to have their employee(s) supplemental paid sick leave plan set up in the system. Clients who have less than 500 employees and employ healthcare workers or emergency responders performing work in California, who were previously excluded from the FFCRA emergency paid sick leave benefit, will need to also reach out to their Client Relations Representative and HR contact to have their plan set up for those select employees.

Upcoming Voting Notice Requirement

California state law requires employers post a notice about the employee’s rights to voting leave in a conspicuous place where workers will see it. This notice must be posted 10 days before the day of voting. The upcoming election will be held on November 2, 2020. Employers must have the required notice displayed by October 22, 2020.

The required posting can be found here.

September 2020 Federal HR Updates

Department of Labor (DOL) Joint Employer Rule Struck Down by New York Court

What happened?
On September 8, 2020, Judge Woods of the U.S. District County for the Southern District of New York vacated the DOL’s new test for joint employment. 

What are the details?  
The new rules created and implemented by the DOL identified four factors that indicate a joint employer situation. The four factors determine a joint employer situation when an employer:

  1. Hires or fires the employee
  2. Supervises and controls the employee’s work schedule or conditions of employment to a substantial degree
  3. Determines the employee’s rate of pay and method of payment
  4. Maintains the employee’s employment records.

Subsequently, the DOL was challenged by 17 states and the District of Columbia, under the Administrative Procedure Act (APA). Judge Woods agreed with the complainants, striking down the new rules under Americans with Disabilities Act (ADA), holding that the rules violated the APA in two ways.

First, Judge Woods found the rules to be contradictory to law because they based the joint employer liability only on the Fair Labor Standards Act (FLSA) definition of “employer,” ignoring the FLSA’s text and Supreme Court and lower court precedent that defined joint employer liability under three interrelated definitions: employer, employee, and most significantly, “employ.” With that in mind, Judge Woods held that the FLSA definitions are an expansive definition that defines the employment relationship based on the economic dependence of the worker.

Second, Judge Woods found the rule to be arbitrary and capricious. He held that the DOL did not explain why it departed from prior guidance or why the rules conflicted with the regulations of a sister statute and did not adequately consider the costs to workers.

With the DOL’s new rule being struck down, the standard way of determining a joint employer situation will fall back to rules created in 1958.

Note: Judge Woods only struck down the rules as it applies to vertical joint employment. The changes made to horizontal joint employment were found to be nonsubstantive to the 1958 rule.

What do employers need to do?  
Employers should stay informed of potential regulations being released in the future by the DOL. The new rule was only implemented in March, so it is not likely major changes had occurred in the workplace of joint employers.

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DOL Proposes New Contractor Determination Rule

What happened?
On September 22, 2020, the DOL proposed a new regulation related to determining if a worker is an independent contractor or an employee.

What are the details?  
This new rule is to determine the employment status of a worker under the FLSA.

In this rulemaking, the DOL proposes to:

  • Adopt an “economic reality” test to determine a worker’s status as an FLSA employee or an independent contractor. The test considers whether a worker is in business for themselves (independent contractor) or is economically dependent on a putative employer for work (employee);
  • Identify and explain two “core factors,” specifically, (1) the nature and degree of the worker’s control over the work and (2) the worker’s opportunity for profit or loss based on initiative and/or investment. These factors help determine if a worker is economically dependent on someone else’s business or is in business for themselves;
  • Identify three other factors that may serve as additional guideposts in the analysis including (1) the amount of skill required for the work, (2) the degree of permanence of the working relationship between the worker and the potential employer, and (3) whether the work is part of an integrated unit of production; and
  • Advise that the actual practice is more relevant than what may be contractually or theoretically possible in determining whether a worker is an employee or an independent contractor.

This proposed regulation published by the Federal Register. The public will be allowed to comment on this regulation for the next 30 days (ending October 26, 2020).

The DOL’s press release discussing the new proposed regulation can be found here.

The full text of the new rule is available here.

The rule is available on the Federal Registers webpage, where the public may also submit comments, here.

What do employers need to do?  
Employers should keep an eye on the Federal Register to see the official rule once it is posted. Once it is posted, legal counsel may be needed if there is confusion on which workers at the company may now be considered independent contractors.

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EEOC Clarifies Employer Not Automatically Required to Allow Telework Post-COVID

What happened?
The Equal Employment Opportunity Commission (EEOC) has updated their FAQ to include clarification about teleworking practices post-pandemic.

What are the details?  
The EEOC updated their FAQ on September 8, 2020 to include more content from previously hosted webinars. This content includes multiple questions regarding Americans with Disabilities Act (ADA) requirements for accommodation as it relates to teleworking. Many employers are concerned that because they are offering teleworking now, they will be required to offer it in the future when an employee seeks accommodations under the ADA. Importantly, the EEOC provided this Q&A:

Q: Assume that an employer grants telework to employees for the purpose of slowing or stopping the spread of COVID-19. When an employer reopens the workplace and recalls employees to the worksite, does the employer automatically have to grant telework as a reasonable accommodation to every employee with a disability who requests to continue this arrangement as an ADA/Rehabilitation Act accommodation?

A: No. Any time an employee requests a reasonable accommodation, the employer is entitled to understand the disability-related limitation that necessitates an accommodation. If there is no disability-related limitation that requires teleworking, then the employer does not have to provide telework as an accommodation. Or, if there is a disability-related limitation but the employer can effectively address the need with another form of reasonable accommodation at the workplace, then the employer can choose that alternative to telework.

To the extent that an employer is permitting telework to employees because of COVID-19 and is choosing to excuse an employee from performing one or more essential functions, then a request—after the workplace re-opens—to continue telework as a reasonable accommodation does not have to be granted if it requires continuing to excuse the employee from performing an essential function. The ADA never requires an employer to eliminate an essential function as an accommodation for an individual with a disability. 

The fact that an employer temporarily excused performance of one or more essential functions when it closed the workplace and enabled employees to telework for the purpose of protecting their safety from COVID-19, or otherwise chose to permit telework, does not mean that the employer permanently changed a job’s essential functions, that telework is always a feasible accommodation, or that it does not pose an undue hardship. These are fact-specific determinations. The employer has no obligation under the ADA to refrain from restoring all of an employee’s essential duties at such time as it chooses to restore the prior work arrangement, and then evaluating any requests for continued or new accommodations under the usual ADA rules.

The FAQ may be found here.

Note: Other questions posted recently may be found using the “Find” function on your browser and searching “9/8/20.”

What do employers need to do?  
Employers who offer teleworking to their employees may wish to read some of the newer questions, as they go in depth when discussing the future expectations that employers will be held up to.

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The COVID-19 Vaccine Is Coming. Can Employers Require Employees to Receive It?

What happened?
It has become clear that a COVID-19 vaccine will be developed in the near future with many predicting a feasible vaccine being developed before the end of this year.

What are the details?  
This upcoming decision that employers will need to make is very complex. Two important federal agencies have since weighed in.

Occupational Safety and Health Administration (OSHA)

OSHA has taken the stance that employers can require employees to take influenza vaccines (there is no current COVID-19 vaccine). However, they emphasize that employees “need to be properly informed of the benefits of vaccinations.” OSHA also explains that “an employee who refuses vaccination because of a reasonable belief that he or she has a medical condition that creates a real danger of serious illness or death (such as a serious reaction to the vaccine) may be protected under Section 11(c) of the Occupational Safety and Health Act of 1970 pertaining to whistleblower rights.”

In the past, OSHA has also held this position when dealing with H1N1 (Swine Flu), seen here.

Equal Employment Opportunity Commission (EEOC)

In March 2020, the EEOC issued COVID-19 guidance specifically addressing the issue of whether employers covered by the ADA and Title VII of the Civil Rights Act of 1964 (Title VII) can compel all employees to take the influenza vaccine (noting that there is not yet a COVID-19 vaccine). In responding to this question, the EEOC explained that an employee could be entitled to an exemption from a mandatory vaccination under the ADA based on a disability that prevents the employee from taking the vaccine, which would be a reasonable accommodation that the employer would be required to grant unless it would result in undue hardship to the employer.  Under the ADA, “undue hardship” is defined as “significant difficulty or expense” incurred by the employer in providing an accommodation. Additionally, Title VII provides that once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents the employee from taking the vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship to the employer as defined by Title VII, a lower standard than under the ADA.  Under Title VII, employers do not need to grant religious accommodation requests that result in more than a de minimis cost to the operation of the employer’s business.  However, analogous state laws may impose stricter standards. With this all in mind, the EEOC has advised that it is best practice to simply encourage employees to take the influenza vaccine rather than to mandate it.

Littler, a large law firm, has provided a beautifully prepared rundown of this issue as well, available for download here.

Another article covering this issue can be found here.

What do employers need to do?  
Employers should wait to make a decision regarding if they want to require employees to receive the vaccine when it does eventually release. Employers likely should seek legal advice from their employment attorney when they do decide to make this decision.

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Furloughed Employees Can Trigger WARN Requirements

What happened?
When the United States first began temporarily shutting down various industries, many places of business put their employees on a temporary furlough, roughly six months ago. 

What are the details?  
Employers who were forced to furlough their employees back in late March and early April will be approaching the six-month deadline set by the Worker Adjustment and Retraining Notification (WARN) Act. Under the WARN Act, an employer with at least 100 employees who is laying off 50 or more full-time employees at one location must make a notice 60 days in advance. There is an exception to the notice requirement if the business can prove there was “unforeseeable business circumstances” leading up to the layoffs. While COVID-19 is most definitely an unforeseeable business circumstance by itself, it would be unlikely that four months after the initial business closures, employers would consider an additional two more months of economic downturn an unforeseeable circumstance in any way.

An additional part of the furloughs to keep in mind is that once the six months has passed, the layoffs are considered to have happened at the starting date of the furlough. A business may have only laid off 25 people in March and put another 25 on furlough. Normally, this would not trigger WARN requirements. However, if after six months those employees are not brought back from their furlough, the business will be considered to have laid off 50 employees total. The penalty for a WARN violation can vary. Major penalties can result in the employer being liable for 60 days of employee backpay, plus civil penalties of up to $500 per day and reasonable attorney’s fees.

Read more about how the WARN Act behaves with furlough here and here.

What do employers need to do?  
Employers with 100 or more employees should read the articles and summary above. Employers who have furloughed 50 or more employees at one time should be aware of the risks if they are not brought back within six months and seek legal counsel on how to best move forward.

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President Trump Issues Executive Order Forbidding “Divisive” Concepts in Contractor Training

What happened?
On September 22, 2020, President Trump issued an order forbidding federal contractors from training on “divisive” concepts regarding race and sex.

What are the details?  
The executive order creates a new contract clause to be inserted in all government contracts and subcontracts to which Executive Order (EO) 11246 applies. (EO 11246 prohibits federal contractors from discriminating against employees or applicants on the basis of race, color, religion, sex, sexual orientation, gender identity, and national origin, and requires contractors to take affirmative action to employ females and minorities.)

Under the EO, organizations entering into federal contracts or subcontracts must agree that they will not use any workplace training that inculcates in its employees any form of race or sex stereotyping or any form of race or sex scapegoating, including the concepts that:

  • one race or sex is inherently superior to another race or sex;
  • an individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously;
  • an individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex;
  • members of one race or sex cannot and should not attempt to treat others without respect to race or sex;
  • an individual’s moral character is necessarily determined by his or her race or sex;
  • an individual, by virtue of his or her race or sex, bears responsibility for actions committed in the past by other members of the same race or sex;
  • any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex; or
  • meritocracy or traits such as a hard work ethic are racist or sexist, or were created by a particular race to oppress another race.

In addition, the EO defines “race or sex stereotyping” as “ascribing character traits, values, moral and ethical codes, privileges, status, or beliefs to a race or sex, or to an individual because of his or her race or sex.” “Race or sex scapegoating” is defined as “assigning fault, blame, or bias to a race or sex, or to members of a race or sex because of their race or sex. It similarly encompasses any claim that, consciously or unconsciously, and by virtue of his or her race or sex, members of any race are inherently racist or are inherently inclined to oppress others, or that members of a sex are inherently sexist or inclined to oppress others.”

An article doing going more in depth about this executive order can be found here.

What do employers need to do?  
Federal contractors should review the training provided to employees and adjust to accommodate these special requirements. Additionally, employers may seek legal counsel from their employment attorney to ensure compliance.

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OFCCP Announces Fiscal Year 2020 Audit Schedule

What happened?
On September 11, 2020, the Office of Federal Contract Compliance Programs (OFCCP) published its Fiscal Year (FY) 2020 Corporate Scheduling Announcement List (CSAL).

What are the details?  
CSALs give contractors at least 45 days’ notice of an impending OFCCP compliance evaluation (audit).  Thus, FY 2020 scheduling letters will not be sent prior to October 26, 2020. Once a contractor receives the scheduling letter, it will have 30 days to submit its Affirmative Action Program (AAP) and supporting data, but the OFCCP will grant an automatic 30-day extension on the data portion of an audit submission as long as the contractor timely submits the non-data portion of the AAP and requests the extension prior to the initial due date.  Further, it is OFCCP’s practice, at the time of this publication due to the COVID-19 pandemic, to provide an additional 30-day extension on desk audit submissions and supporting data as a matter of course.

The FY 2020 CSAL includes 2,250 supply and service establishments as well as 200 construction contractors.  The review types are broken down as follows: 700 Compliance Checks (including all 200 construction contractors), 500 Accommodation-Focused Reviews, 500 Promotion-Focused Reviews, 402 Establishment Reviews, 250 Section 503-Focused Reviews, 67 Corporate Management Compliance Evaluation (CMCE) Reviews, and 31 Functional Affirmative Action Program (FAAP) Reviews.  This is the first time OFCCP has included construction contractor compliance evaluations in a CSAL.  In addition, the new CSAL marks the first time that the list has included Accommodation-Focused Reviews and Promotion-Focused Reviews, both of which are new types of compliance evaluations about which OFCCP has not yet released specific guidance.  In yet another new development, the Section 503-Focused Reviews are no longer limited to contractors’ headquarters.

With respect to supply and service establishments, the OFCCP utilized the following criteria to select contractors for compliance evaluations: (1) no more than 10 establishments of any parent company; (2) no more than five full compliance reviews for any parent company; (3) no more than two functional units of a company with an FAAP; (4) no more than two CMCE reviews allocated to each district office; and (5) no more than four university reviews assigned to any region.  However, despite the five compliance review limitation, parent companies may have additional establishments scheduled for Focused Reviews and Compliance Checks.

The OFCCP’s website can be found here.

What do employers need to do?  
Federal contractors should review their workplace policies to ensure compliance with standards set by their contracts. If there is any confusion these employers should see their employment attorney.

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Employment Authorization Document Delays Due to COVID-19

What happened?
Issuance of certain Employment Authorization Documents (Form I-766) (EADs) may be delayed due to the COVID-19 global pandemic.

What are the details?  
To complete Form I-9, new employees who are waiting for their EAD and current employees who require reverification may present certain Forms I-797, Notice of Action, as a List C #7 document issued by the Department of Homeland Security that establishes employment eligibility, even though the notice states it is not evidence of employment authorization. 

For the notice to be acceptable, it must include a Notice Date from December 1, 2019, through and including August 20, 2020, and indicate that U.S. Citizenship and Immigration Services has approved the employee’s Form I-765, Application for Employment Authorization. Both new and current employees may present this notice to complete Form I-9 until December 1, 2020. New employees will also need to present an acceptable List B identity document.

By December 1, 2020, employers must reverify employees who presented this notice as a List C document. These employees must present new evidence of employment authorization – either their new EAD or any other acceptable documentation they choose – from either List A or List C.

What do employers need to do?  
Employers should be sure they are re-verifying documents in a timely manner (December 1, 2020) for employees who had to use Forms I-797.

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Form I-9 Remote Verification Extended

What happened?
U.S. Immigration and Customs Enforcement (ICE) has once again extended the duration of rule allowing employers to remotely verify Section 2 documents.

What are the details?  
ICE has continued to renew their rules about the I-9 remote verification, this time through November 19, 2020. The rules, refreshed on September 14, 2020, allow employers who are limiting psychical interactions in the workplace to remotely verify the Section 2 documents over video link, fax, or email, etc. Once these extensions finally end there is an expectation that employers will then physically inspect the documents when operations return to normal. Employees who were onboarded during these extensions will have three business days to provide their in-person identification documents, once operations are back to normal. Keep in mind this extension only applies to employers who are working remotely. If employees are present in the workplace, these rules do not apply.

The most recent extension announcement can be found here.

The original announcement announcing the rule can be found here.

What do employers need to do?  
Employers who are working remotely and utilizing the remote I-9 verification should be aware of the deadline, and keep in mind that it is not guaranteed to be continued.

September 2020: CalSavers Compliance Deadline and Information

In 2016, California Governor Brown signed Senate Bill 1234 requiring the state’s Secure Choice Retirement Savings Investment Board to develop a workplace retirement savings program known as CalSavers for private-sector workers whose employers do not offer a retirement plan.

As a result, any employer with five or more employees must provide a retirement plan for their workers or register for CalSavers and facilitate employees’ contributions to individual retirement accounts. Deadlines for compliance vary according to the size of the business. An “eligible employee” is defined as anyone 18 years or older, working in California, and receiving W-2 wages.

Size of Business Deadline

  • Over 100 employees: September 30, 2020
  • Over 50 employees: June 30, 2021
  • Five or more employees: June 30, 2022

Businesses who fail to comply with the CalSavers mandate could be subject to penalties of $250 per employee if the employer does not comply within 90 days of receiving a notice requiring registration and $500 per employee if the employer does not comply with 180 days of receiving the notice may be imposed.

If you have over 100 employees and currently offer a company-sponsored retirement plan, you must file an exemption by September 30, 2020.

For more information please visit the CalSavers website.

As a Vensure Employer Services partner, we can assist you in setting up a retirement plan through Slavic 401k Retirement Savings. This 401(k) plan is designed especially for you. Vensure will administer the plan, including monitoring eligibility, setting up deductions, and funding the employee accounts. Slavic offers investment options and comprehensive administration.

If you are interested in receiving information on Vensure’s multiple employer retirement plan, please complete the Plan Evaluation Survey and return to benefits@vensure.com. A Slavic representative will contact you.