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May 2022: New York City Council Passes Amendment to Pay Transparency Law

Update Applicable to:
All employers with four or more employees in New York City.

What happened?
In our previous communication, we informed you about the proposed amendment to the New York City Pay Transparency Law that was passed on December 15, 2021. This is an update to that law.

What are the details?
After the New York City Committee on Civil and Human Rights (Committee) hearing on April 5, 2022, it became clear that the Committee would not adopt the initially proposed amendment of the NYC pay transparency law, which requires that NYC employers with four or more employees include the salary range of the position in job postings. However, the Committee proposed a second amendment that was passed by the NYC Council on April 28, 2022.

The new amendment postpones the effective date to November 1, 2022, and also clarifies for employers that both hourly wage and salaried jobs are subject to the statute.

The amendment also eliminates the broad private right of action available under the original law. Under the revised version, only current employees may bring an action against their employer for non-compliance. Based on the change, applicants likely cannot file a private right of action for violations. However, the New York City Commission on Human Rights (CCHR) will still have the authority to enforce violations applicable to applicants.

Further, under the amended law, first-time violators will not be subject to any monetary penalties, so long as they correct the violation within 30 days, presumably by updating the relevant job advertisement.

However, the amended version incorporates guidance from the CCHR regarding the applicability of the law to remote job positions. Specifically, the amended law provides that the salary disclosure requirement does not apply to positions that “cannot” or “will not” be performed, at least in part, in New York City. Stated differently, if any part of an advertised job can theoretically be performed in New York City, then the salary range for the position must be disclosed in the advertisement.

For more information, please see the links below:

NYC Pay Transparency

Original NYC Salary Transparency Factsheet

Vensure Legal Update (4/5/2022)

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What do employers need to do?
Employers should review the links provided above and should take advantage of the extended time to adjust their job advertisement policies.

May 2022: South Carolina Governor Signs Bill Banning Private Employer Vaccine Mandates

Update Applicable to:
All employers enforcing a vaccine mandate on their employees in the state of South Carolina

What happened?
On April 25, 2022, South Carolina Governor McMaster signed into law House Bill 3126 (HB 3126), which, among other things, bans state and local governments from imposing COVID-19 vaccine mandates as a condition of employment and provides certain protections for workers subject to private employers’ vaccination requirements.

What are the details?
HB 3126 went into effect immediately upon signage and will remain in effect until December 31, 2023, unless its provisions are extended by the South Carolina General Assembly.

Below are some points relevant to private employers (broadly defined in the law as “all employers other than state and political subdivisions”).

Unemployment Benefits

If a private employer terminates, suspends, or reduces an employee’s compensation because the employee fails to get a COVID-19 vaccination or booster, the employee is still eligible for unemployment benefits, subject to the usual statutory limits on amounts, duration, and other requirements.

Vaccine Incentives Permitted

Section 6 of the statute explicitly states that the law’s provisions do not prevent employers from encouraging, promoting, or administering vaccinations—or from offering incentives to employees who elect to be vaccinated. This section of the law refers to vaccinations in general terms, and thus this provision does not appear to be limited to COVID-19 vaccinations.

Prohibition on Extension of Vaccine Mandate to Independent Contractors/Third Parties

Under the law, if a private employer implements a vaccine mandate, it may not extend the mandate to independent contractors or other non-employees who provide goods or services to the employer, nor may it coerce such individuals and third-party entities into implementing their own vaccine mandates in order to maintain the business relationship with the private employer. However, the law does carve out an exception to this rule. This section of the law does not apply to federal contractors, employers seeking to become federal contractors, or those subject to a federal regulation where the applicable contract or regulation includes a valid and enforceable contrary requirement, and the employer submits an affidavit to the South Carolina Department of Employment and Workforce (SCDEW) attesting to that fact. This provision also does not appear to be limited to COVID-19 vaccination mandates.

Broader Exemptions

The law states that religious and medical exemptions “must be honored” with respect to any COVID-19 vaccine or booster requirement. Accordingly, any employer imposing a COVID-19 vaccine requirement on workers must extend broader exemptions than required by federal law:

  • Medical exemptions include the presence of antibodies, a prior positive COVID-19 test, or pregnancy. The law does not indicate exactly what an employee must present to his or her employer to secure this medical exemption (i.e., there is no specific requirement to submit a doctor’s note or physician statement, as is required in other states with similar exemptions from workplace vaccination requirements).
  • To claim a religious exemption, a person must provide the employer with a “short, plain statement” that receiving the COVID-19 vaccine and booster would violate a tenet of the person’s deeply held religious convictions.
  • As with the provision pertaining to third parties, this section of the law also contains a carveout from this requirement if the employer submits an affidavit to the SCDEW attesting to the fact that the employer is a federal contractor, is otherwise subject to a federal regulation that is contrary to the requirement or will be required to enforce a contrary provision if awarded a federal contract the employer has sought to secure.

Prohibits Vaccine Status Discrimination in Public Accommodations

The law prohibits places of public accommodation, including hotels, restaurants, hospitals, retail stores, movie theaters, and other such establishments from denying services based on an individual’s vaccination status. Private clubs and establishments not in fact open to the general public are not subject to this ban.

The law also provides similar limitations on public employers that wish to enact COVID-19 vaccination mandates with certain exceptions.

The law also extends the “South Carolina COVID-19 Liability Immunity Act” (Senate Bill 147), the state’s liability shield law, which previously expired on December 31, 2021. The liability protections against coronavirus-based claims for businesses covered under the South Carolina COVID-19 Liability Immunity Act now apply to all civil and administrative causes of action that arise between March 13, 2020, and December 31, 2023, and that are “based upon facts that occurred during this time period.”

For more information, please see the links below:

House Bill 3126 (HB 3126)

Senate Bill 147

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What do employers need to do?
Employers should review the links provided above and ensure their COVID-19 mandate policies are in compliance with the new law.

May 2022: Oregon Governor Signs Bill on Incentives, Bonuses, and Equal Pay Requirements

Update Applicable to:
All employers in the state of Oregon.

What happened?
On March 7, 2022, Governor Brown signed Senate Bill 1514 (SB 1514) into law, extending the expiration date of temporary amendments to Oregon’s Equal Pay Act.

What are the details?
To provide employers with greater flexibility in attracting and retaining workers during the COVID-19 pandemic, the Oregon legislature amended Oregon’s Equal Pay Act in 2021 to temporarily exclude vaccine incentives, hiring bonuses, and retention bonuses from the Act’s definition of “compensation” for purposes of pay equity requirements.

Those amendments were set to expire on March 1, 2022; however, SB 1514 extends the expiration date of those amendments until “the 180th day following the expiration or termination of the declaration of a state of emergency issued by the Governor on March 8, 2020.”

Effective immediately upon Governor Brown’s signature on March 7, 2022, Oregon employers may offer vaccine incentives, hiring bonuses, and retention bonuses until 180 days (August 28, 2022) after the expiration of the COVID-19 state of emergency without running afoul of the Equal Pay Act.

For more information, please see the links below:

Senate Bill 1514 (SB 1514)

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What do employers need to do?
Employers should review the links provided above and take advantage of this time to offer incentives and bonuses before the expiration date on August 28, 2022.

May 2022: New York Electronic Monitoring Law Reminder

Update Applicable to:
All employers who monitor their employees electronically in the state of New York

What happened?
In our previous communication, we informed you that Senate Bill S2628 (SB S2628) was signed into law, which will require employers to provide notices concerning the electronic monitoring of employees. This is an update to that law.

What are the details?
Effective since May 7, 2022, employers are required to provide prior written notice to newly hired employees if they intend to monitor or otherwise intercept telephone conversations or transmissions, email, or internet access or usage of or by an employee by any electronic device or system, including, but not limited to, the use of a computer, telephone, wire, radio, or electromagnetic, photoelectronic, or photo-optical systems.

The notice must be:

  • Provided in writing;
  • In an electronic record, or in another electronic form; and
  • Acknowledged by each employee either in writing or electronically.

The law requires that employees acknowledge receipt of the notice, “either in writing or electronically.” Employers must post a notice of electronic monitoring in a conspicuous place that is readily available for viewing by its employees who are subject to electronic monitoring.

Vensure has written a notice for electronic monitoring, and it can be found on Vensure’s Client Center.

For more information, please see the links below:

NY Client Center

Vensure’s Previous Update (1/25/2022)

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What do employers need to do?
Employers should review the links provided above and post the required notice in a conspicuous location next to the labor law poster.

This notice has been uploaded to all instances of Prism for clients who utilize the electronic onboarding. Clients who do use electronic onboarding can click this link to obtain the notice for their paper packets.

May 2022: Mississippi Governor Signs Bill Requiring Public and Private Employers to Permit Religious Exemptions

Update Applicable to:
All employers imposing vaccine mandates on their employees in the state of Mississippi

What happened?
On April 22, 2022, Governor Reeves signed House Bill 1509 (HB 1509) into law, which prohibits private and public employers from requiring a COVID-19 vaccine for employees who have “a sincerely held religious objection to receiving a vaccine for COVID-19.”

What are the details?
Effective immediately, private and public employers are prohibited from requiring a COVID-19 vaccine for employees who have a “sincerely held religious” objection to receiving a vaccine for COVID-19.

While the act’s use of the term “sincerely held religious” objection mirrors Title VII’s well-known “sincerely held religious belief” standard, the act does not reference Title VII and does not reference the ability of a private employer to deny a requested exemption due to undue hardship, as allowed under Title VII.

Given the mandatory language of the act and lack of guidance, Mississippi employers, both public and private, should approach COVID-19 vaccine religious exemption requests with caution.

For more information, please see the links below:

House Bill 1509 (HB 1509)

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What do employers need to do?
Employers should review the links provided above and per our source, Butler Snow LLP, should exercise caution and seek legal counsel when analyzing an employee’s request for religious exemption to a COVID-19 vaccine mandate.

May 2022: Mississippi Enacts Pay Equity Law

Update Applicable to:

All employers in the state of Mississippi

What happened?
On April 20, 2022, Governor Reeves signed House Bill 770 (HB 770) into law, which will reduce the wage gap between men and women in the state.

What are the details?
Effective July 1, 2022, employers are prohibited from paying “an employee a wage at a rate less than the rate at which an employee of the opposite sex in the same establishment is paid for equal work on a job, the performance of which requires equal skill, education, effort and responsibility, and which is performed under similar working conditions.”

Like similar laws from many jurisdictions (including at the federal level), Mississippi exempts pay differences “pursuant to differential based on:

  1. A seniority system;
  2. A merit system;
  3. A system that measures earnings by quantity or quality of production; or
  4. Any other factor other than sex.”

The law mirrors the requirements of the federal Equal Pay Act of 1964. But it differs most notably from the recent trend in pay equity laws by including the catchall “any other factor other than sex.” Most recent state and federal laws have limited this catchall.

Mississippi’s new law also differs from many other states (and perhaps federal) pay equity laws in that:

  1. It is solely focused on gender, without reference to race-based pay differences;
  2. It expressly permits an employer to rely on (a) an employee’s salary history, (b) the continuity of an employee’s employment, (c) market competition for an employee’s services, (d) employee attempts to negotiate wages, and similar explanations, as “any other factor other than sex”;
  3. It does not prohibit employers from inquiring about salary history; and
  4. It does not require pay transparency for applicants or employees.

For more information, please see the links below:

House Bill 770 (HB 770)

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What do employers need to do?
Employers should review the links provided above and review and make adjustments to their payroll policies so that they are paying each gender equally to be in compliance with the new law.

May 2022: Amended Maine Law Will Require Vacation Payout When Employment Ends

Update Applicable to:
All employers with 11 or more employees in the state of Maine.

What happened?
On April 7, 2022, Governor Mills signed H.P 160 – L.D 225 into law, which amends the state’s final wages statute to require that “all unused paid vacation accrued pursuant to the employer’s vacation policy on and after January 1, 2023, must be paid to the employee on cessation of employment.”

What are the details?
Effective July 19, 2022, private employers with 11 or more employees must pay all unused vacation to a separated employee at the cessation of employment regardless of the employer’s policy. Payment must be made in full no later than the employee’s next established payday.

Additionally, if a collective bargaining agreement (CBA) governs an employee’s employment and addresses vacation payout when employment ends, the CBA, not the statute, will determine vacation payout requirements. These new provisions also apply when a company sells its business under a separate part of the statute, treating a sale of a business the same as any other “cessation of employment.”

For more information, please see the links below:

H.P 160 – L.D 225

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What do employers need to do?
Employers should review the links provided above and payout their employees’ unused vacation time upon cessation of employment.

May 2022: Connecticut Enacts Consumer Privacy Law

Update Applicable to:
All businesses that collect personal data of customers in the state of Connecticut

What happened?
On May 10, 2022, Connecticut Governor Lamont signed Public Act No. 22-15, also known as the Connecticut Data Privacy Act (CTDPA), into law.

What are the details?
Effective July 1, 2023, the CTDPA will apply to individuals and entities that:

  1. Conduct business in Connecticut, or produce products or services that are targeted to Connecticut residents; and
  2. During the preceding calendar year, either:
    1. controlled or processed the personal data of at least 100,000 consumers (excluding for the purpose of completing a payment transaction), or
    1. controlled or processed the personal data of at least 25,000 consumers and derived more than 25% of their gross revenue from the sale of personal data.

The CTDPA exempts certain entities, including, for example, state and local government entities, nonprofits, higher education institutions, financial institutions subject to the Gramm-Leach-Bliley Act, and qualifying covered entities and business associates subject to the Health Insurance Portability and Accountability Act.

The CTDPA’s protections apply only to Connecticut residents acting in an individual capacity (i.e., “consumers”), and do not apply to individuals acting in an employment or commercial (B2B) context. Under the CTDPA, consumers will have the right to:

  • confirm whether or not a controller is processing the consumer’s personal data and access to such personal data;
  • correct inaccuracies in the consumer’s personal data;
  • delete personal data provided by, or obtained about, the consumer;
  • obtain a copy of the consumer’s personal data processed by a controller, in a portable and, to the extent technically feasible, readily usable format; and
  • opt-out of the processing of their personal data for purposes of (1) targeted advertising, (2) the sale of personal data, or (3) profiling in furtherance of solely automated decisions that produce legal or similarly significant effects concerning the consumer.

Among other obligations, controllers will be required to:

  • limit the collection of personal data to “what is adequate, relevant and reasonably necessary” to the purposes for processing, as disclosed to the consumer;
  • process personal data only for purposes that are reasonably necessary to and compatible with the purposes for processing, as disclosed to the consumer (unless the controller obtains the consumer’s consent);
  • establish, implement, and maintain reasonable administrative, technical, and physical data security practices;
  • not process sensitive data concerning a consumer without obtaining the consumer’s consent;
  • not process personal data in violation of federal and state anti-discrimination laws;
  • provide an effective mechanism for a consumer to revoke consent and cease processing the data within 15 days of receiving a revocation request; and
  • not process personal data of a consumer for purposes of targeted advertising or sell the consumer’s personal data without the consumer’s consent, where a controller has actual knowledge and willfully disregards that a consumer is 13-15 years old.

The CTDPA shares many similarities with the California Consumer Privacy Act (CPRA), Colorado Privacy Act (CPA), Virginia Consumer Data Protection Act (VCDPA), and Utah Consumer Privacy Act. It incorporates the CPA’s and CPRA’s broad definition of “sale,” which includes exchanges of personal data for monetary or “other valuable consideration.”

Beginning January 1, 2025, the CTDPA also will follow the CPA’s example in requiring controllers to recognize opt-out preference signals sent via universal opt-out mechanism. The CTDPA aligns with the CPRA in not requiring the authentication of opt-out requests. Like the CPA and CPRA, the CTDPA prohibits the use of dark patterns to obtain consent.

In line with the CPA and VCDPA, the CTDPA requires controllers to obtain parental consent for the collection of personal data from a known child (i.e., children under 13 years old). The CTDPA also joins the CPRA, VCDPA, and CPA in requiring controllers to conduct data protection assessments prior to engaging in data processing activities that present a heightened risk of harm to consumers. Although the CTDPA will initially provide controllers a right to cure violations, the right to cure will end on December 31, 2024. As with most of the existing U.S. state privacy laws, the CTDPA does not provide for a private right of action.

The law will be enforced by the Connecticut Attorney General.

For more information, please see the links below:

Public Act No. 22-15

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What do employers need to do?
Employers should review the links provided above and make immediate adjustments to their data collection policies to ensure they are in compliance with the law.

May 2022: Colorado’s Public Health Emergency Paid Sick Leave Requirement Continues

Update Applicable to:
All employers in the state of Colorado

What happened?
On April 12, 2022, The Department of Health and Human Services renewed the public health emergency (PHE) determination. The 90-day renewal took effect on April 16, 2022, and if not renewed again, will expire on July 15, 2022.

What are the details?
Under Colorado’s Healthy Families and Workplaces Act (HFWA), employers are required to provide extra paid leave to employees when there is a PHE and for four weeks after the expiration of the PHE. Confusion has resulted due to multiple government officials and agencies, on both the federal and state level, making multiple emergency and disaster declarations. For HFWA purposes, the expiration of one is of no consequence when the others exist.

HFWA’s definition of a “public health emergency” has resulted in widespread confusion and misinformation. To set off on the right foot, the statutory language is excerpted below:

A “public health emergency” is defined as:

  1. an act of bioterrorism, pandemic influenza, or an epidemic caused by a novel and highly fatal infectious agent, for which:
    • an emergency is declared by a federal, state, or local public health agency; or
    • a disaster emergency is declared by the governor; or
  2. a highly infectious illness or agent with epidemic or pandemic potential for which a disaster emergency is declared by the governor.

For more information, please see the links below:

PHE Renewal Determination

PHE Planning

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What do employers need to do?
Employers should review the links provided above, ensure your policies are up to date, and ensure human resources staff and managers are continuing to follow HFWA requirements.

May 2022: Virginia Governor Signs VCDPA Amendment Bills into Law

Update Applicable to:
All businesses that obtain and store consumer personal data in the state of Virginia.

What happened?
On April 11, 2022, Virginia Governor Youngkin signed three Virginia Consumer Data Protection Act (VCDPA) amendments into law and will go into effect on July 1, 2022. With the signing of the bills, the VCDPA’s text is now finalized in advance of its January 1, 2023, effective date.

What are the details?
The first amendment, H 381, adds an exemption to the right to delete. Specifically, the new language states that data controllers that have obtained personal data about a consumer from a source other than the consumer shall be deemed in compliance with a consumer’s request to delete such data by either:

  1. retaining a record of the deletion request and the minimum data necessary for the purpose of ensuring the consumer’s personal data remain deleted from the business’s records and not using such retained data for any other purpose; or
  2. opting the consumer out of the processing of such personal data for any purpose except for those exempted pursuant to the VCDPA.

The second amendment to the VCDPA, S 534, abolishes the Consumer Privacy Fund previously established by the VCDPA, and provides that “all civil penalties, expenses, and attorney fees collected pursuant to this chapter shall be paid into the state treasury and credited to the Regulatory, Consumer Advocacy, Litigation, and Enforcement Revolving Trust Fund.”

The third amendment to the VCDPA, also in S 534, redefines the phrase “nonprofit organization” to now include any political organization that is exempt from taxation under section 501(c)(3) of the Internal Revenue Code.

The bill states that “political organization means a party, committee, association, fund, or other organization, whether or not incorporated, organized and operated primarily for the purpose of influencing or attempting to influence the selection, nomination, election, or appointment of any individual to any federal, state, or local public office or office in a political organization or the election of a presidential/vice-presidential elector, whether or not such individual or elector is selected, nominated, elected, or appointed.” Nonprofits that meet this new definition will not have to comply with the VCDPA.

For more information, please see the links below:

Virginia Consumer Data Protection Act (VCDPA)

H 381

S 534

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What do employers need to do?
Employers should review the links provided above and make adjustments to their consumer data privacy policies so that they are in compliance with the law once the amendments take effect.

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