2022 EEO-1 Component 1 Data Collection is Due Fall 2023

The 2022 EEO-1 Component 1 Data Report is due this upcoming Fall of 2023. Although the portal is not open yet, PrestigePEO is preparing for this deadline. In the upcoming weeks, the HR Business Partners will be reaching out to clients that are required to file the EEO-1 Report to provide further guidance.

The Supreme Court has adopted a new standard for denying religious accommodation requests.

In a recent ruling (Groff v. DeJoy) the Supreme Court has made it more difficult for employers to deny employee religious accommodation requests.

Title VII of the Civil Rights Act of 1964 (Title VII) protects against religious discrimination in the workplace, and it requires employers to accommodate employees’ sincerely held religious beliefs unless the reasonable accommodation poses an undue hardship on the business.

In Groff, a Christian mail carrier requested an accommodation to not work on Sundays due to his religious beliefs; the employer, U.S. Postal Service (USPS), denied the request. This employee worked for USPS for years with no issue until a third party entered into an agreement with USPS to help facilitate package deliveries on Sundays. USPS showed that it tried to find other employees to cover his shift, but because there was a shortage of carriers in the area, granting the employee’s request would have caused an undue hardship on the business.

In this case, the Supreme Court questioned the meaning of “undue hardship”. Historically, this meant that the accommodation would need to cause more than a “de minimus” cost or more than a trifling cost to the business for the employer to deny the accommodation. In the new ruling, the Supreme Court rejected this historical standard for undue hardship and stated that “undue hardship is shown when a burden is substantial in the overall context of an employer’s business.”

This decision shows that businesses now must meet a significantly higher standard when demonstrating undue hardship. The case has been remanded to the lower courts, leaving them to decide the practical application of this new standard.

What should employers do if they receive a religious accommodation request?

If an employer receives a religious accommodation request from an employee, the employer should assess all possible avenues available to best accommodate the employee. Some examples of accommodations for employee religious beliefs include schedule changes, voluntary shift swaps, flexible work breaks, job reassignments, and modifications of workplace policies and procedures. If complying with a request would cause a staff shortage, it may be necessary to hire an additional employee. Unless accommodating the request would cause a substantial burden on the overall business the employer should accommodate the employee. Please note that religious accommodations requests must still be considered whether it stems from an employee’s mainstream or non-mainstream religious beliefs.

PrestigePEO is here to help.

If you have questions regarding an employee’s requested religious accommodation, please reach out to your HR Business Partner.

Texas Bans Racial Hair Discrimination in the Workplace, Effective September 1, 2023

Texas recently passed the Create a Respectful and Open World for Natural Hair (CROWN) Act, making it unlawful to racially discriminate based on hair texture and hairstyles in schools, employment, and housing. Enforcement begins on September 1, 2023. It will be unlawful to adopt or enforce a dress or grooming policy that discriminates against an employee’s hairstyle or hair texture that is commonly associated with race. Employers, labor unions, and employment agencies must comply and ensure their handbooks and policies comply with this law.

In passing its CROWN law statewide, Texas has joined numerous other states that have already implemented a CROWN law of their own. These additional states include Alaska, California, Colorado, Connecticut, Delaware, Illinois, Louisiana, Maine, Massachusetts, Minnesota, Maryland, Minnesota, Nebraska, Nevada, New Jersey, New Mexico, New York, Oregon, Tennessee, Virginia, and Washington.

Other states that are taking steps to pass legislation on racial hair discrimination include Michigan, Pennsylvania, New Hampshire, North Carolina, Rhode Island, South Carolina, and Wisconsin.

PrestigePEO is here to help.

If you have questions about complying with anti-discrimination laws or suspect that there may be discriminatory practices in your business, please contact your HR Business Partner.

Minnesota Law Amendment on Lactation Breaks and Pregnancy Accommodations

Lawmakers in Minnesota passed amendments to the Nursing Mothers, Lactating Employees, and Pregnancy Accommodations law which became effective July 1, 2023. These changes affect how employers may navigate pregnancy and childbirth-related accommodation requests, including but not limited to lactation breaks.

Lactation Breaks

As of July 2023, employers cannot deny reasonable break time for employee lactation breaks, even if allowing such breaks unduly disrupts operations; this is a significant change in the law, as before this amendment, employers were permitted to deny lactation breaks if it would unduly disrupt business operations. Now, employers must provide lactation breaks, regardless of the effect on the business.

Lactation breaks may run concurrently with break times that are usually provided. However, employers may not decrease an employee’s pay for the time spent on lactation breaks. The lactation space must also be a “clean, private, and secure” room. The lactation space provided cannot be a toilet or bathroom stall; it must include access to an electrical outlet. The amendment further lengthens the amount of time employers may allow employees for lactation breaks after the birth of a child from 12 months post-birth to no time limit.

Employers may not retaliate or discriminate against employees for asserting their rights or remedies under this law.

Pregnancy Accommodations

As of July 2023, employers with one (1) or more employees must provide employees with reasonable accommodations for health conditions related to pregnancy or childbirth upon the employee’s request. The law recognizes a difference between types of accommodation requests that must be accompanied by either the advice of a health care professional or certified doula and those that do not.

Reasonable employee accommodation requests that an employee generally does need the advice of either a healthcare professional or doula are frequent or longer restroom, food, and water breaks; seating; and/or lifting over 20 pounds. For these types of accommodation requests, the employer may not claim undue hardship as the basis to deny such accommodation requests.

Reasonable accommodation requests that go beyond the above-stated types of accommodation requests must be in accordance with the advice of a healthcare professional or certified doula and may require the employee to provide a doctor’s note or other similar documentation. Generally, unless the accommodation would cause an undue hardship on business operations, the employer should grant the employee’s reasonable accommodation request.

The amendment also extends the scope of possible reasonable accommodations. Such accommodations include, but are not limited to, “temporary transfer to a less strenuous or hazardous position, temporary leave of absence, modification in work schedule or job assignments, seating, more frequent or longer break periods, and limits to heavy lifting.” Additionally, before the amendment, this law only applied to employers with 15 or more employees.

Employers may not require an employee to take a leave or accept an accommodation if it is not what the employee has requested as a reasonable accommodation. Also, employers may not retaliate or discriminate against an employee for asserting their rights or seeking remedies under this law. However, employers are not required to create an additional position, discharge an employee, transfer another employee of higher seniority, or promote an employee to comply with an accommodation request.

Notice Requirement for Lactation Breaks & Pregnancy Accommodations: Employers must inform employees of their rights “at the time of hire” and “when an employee makes an inquiry about or requests parental leave.” An employer that provides an employee handbook must include a notice of employee rights and remedies under this law.

PrestigePEO is here to help.

If you have any questions on navigating reasonable accommodation requests, the needs of mothers and expectant mothers in the workplace, and/or are concerned about discriminatory practices, please contact your HR Business Partner.

Minnesota’s Amendment to the Wage Disclosure Protection Law

As of July 2023, Minnesota’s Wage Disclosure Protection law amendment is in effect. This law forbids employers from prohibiting employees to disclose their pay. Employers must not take adverse action or retaliate against an employee if the employee discusses their own wage or another employee’s wage, so long as the other employee’s wage has been disclosed voluntarily.

Due to the amendment, the law now prohibits more specific employer retaliatory actions. Prohibited types of retaliation under the newly amended law include discharging, disciplining, penalizing, interfering with, threatening, restraining, coercing, or otherwise retaliating or discriminating against an employee for asserting their rights or seeking remedies.

PrestigePEO is here to help.

If you have questions regarding employee wage disclosure protections, please contact your HR Business Partner.

Minnesota’s New Limitations to Cannabis Testing at Work

Effective Aug 1, 2023, Minnesota will provide employees and job applicants with protections for recreational cannabis use outside the workplace. This new law amends Minnesota’s Drug and Alcohol Testing in the Workplace Act (DATWA) and Minnesota’s Consumable Products Act (CPA).

Restriction on Taking Adverse Action for Off-Duty Cannabis Use

The new law makes it unlawful for employers to take action against employees or job candidates (such as withdrawing a job application, discharging, disciplining, etc.) because of their cannabis use outside of the workplace, during non-working hours.

However, employers may still discipline or discharge an employee for cannabis use, possession, impairment, or transfer occurring during working hours, on the worksite, or while operating employer vehicles/equipment. Employers may also prohibit cannabis use if failure to do so would violate state or federal law, regulations, or would cause the employer to lose benefits under federal law or regulations.

Cannabis Testing Restrictions

As a general rule, Minnesota employers cannot require or request a pre-employment cannabis test, refuse to hire someone solely for testing positive for cannabis on a pre-employment test, or require cannabis testing on an arbitrary or capricious basis. There are exceptions to this rule: employers may test for cannabis depending on the employee’s job position or the reason behind the test. A more thorough list of exceptions are as follows:

Testing Due to Job Position

Employers may treat cannabis like any other drug. Employers may test job applicants for cannabis if the employee or job applicant is in any of the following positions:

(1) safety sensitive position (a job in which impairment from drugs, alcohol, or cannabis could threaten the health and safety of anyone)

(2) peace office

(3) firefighter

(4) position requiring face-to-face care, training, education, supervision, counseling, consultation, or medical assistance to certain populations

(5) position requiring a commercial driver’s license or the operation of a motor vehicle

(6) position funded by a federal grant

(7) any other position that would require testing of an employee or job applicant under state or federal law

Random Drug Testing, Including Cannabis Testing

Employers may randomly require employees to undergo cannabis testing or drug and alcohol testing if the employee is:

(1) in a safety-sensitive position; or

(2) employed as professional athletes subject to a collective bargaining agreement that permits random testing.

Reasonable Suspicion Testing

Employers may require employees to undergo a drug and alcohol test, including cannabis testing, if they reasonably suspect that the employee:

(1) is under the influence of drugs, alcohol, or cannabis;

(2) has violated the employer’s written rules that prohibit the use, possession, sale, or transfer of drugs or alcohol or cannabis products at work;

(3) has been injured or caused the injury of another employee; or

(4) caused a work-related accident.

Drug and Testing Policy

The DATWA has always required employers to have a drug and testing policy. With the law changes, employers must now consider amending their policy to expand on the circumstances in which they will test for cannabis. Employers may also include any policies on consequences related to use, possession, or cannabis impairment at work.

PrestigePEO is here to help.

If you have questions regarding cannabis employment testing, please reach out to your HR Business Partner.

Georgia’s Recent Legal Developments: Employee Non-Solicitation Agreements, Voting Leave Law, and Sick Leave Law

Employee Non-Solicitation Agreements in Georgia Must Have Territorial Limitations

In June 2023, the Georgia Court of Appeals held that employee non-solicitation provisions must have territorial limitations to be enforceable. An employee non-solicitation provision is a contract tool employers may use to prevent former employees from recruiting current employees. This recent decision demonstrates the state’s trend towards a more limited non-solicitation agreement for existing and future restrictive covenants.

To ensure your existing employee non-solicitation provisions are enforceable, you may need to amend the agreement to include a territorial limitation. The territorial limitation may state the geographical area the solicitation restriction applies to.

Also, under Georgia law, the definition of employees includes independent contractors. Therefore, make sure that your non-solicitation agreements with independent contractors are compliant with this court decision.

Employee Voting Leave Law was Amended to Include Advance Voting

In July 2023, Georgia amended its voting leave law. The law requires all employers to provide employees with up to two (2) hours of unpaid time off, on either election day or on a designated early voting day, to vote in primaries and other elections. This differs from the previous version of the law that did not allow for early voting.

To qualify for unpaid voting leave, employees must be qualified to vote in the election and be registered to vote on the day the primaries or other elections are held. Employees should provide reasonable notice if they plan to use their voting leave and if employees do not provide reasonable notice, employers can refuse the employee’s request. Also, employers can specify the hours employees may take off.

Georgia’s Employee Sick Leave Law to Care for Family Members Is Here to Stay

As of July 2023, Georgia’s former temporary Family Care Act (FCA) is permanent. Since 2017, this law has required employers who offer paid sick leave to allow employees use of up to five (5) paid sick days to care for immediate family members. Now that the law is permanent, employers must continue to provide this benefit.

PrestigePEO is here to help.

If you have questions regarding employee non-solicitation agreements, employee voting leave, and/or sick leave, please contact your HR Business Partner.

Amendment to the New York State’s Pay Transparency Law is Effective September 17, 2023

New York passed an amendment to the New York State Pay Transparency law that will be effective September 17, 2023. The pay transparency law requires employers, when advertising a position, to disclose the compensation or compensation range and job description (if a description exists) of a job, promotion, or transfer opportunity. The amendment has broadened the scope of job positions it covers; it applies to positions that “will be physically performed, at least in part in” New York State, and to positions that “will be physically performed outside of New York, but report to” a supervisor or office based out of the State of New York.

As part of the amendment, employers are no longer required to maintain records of the compensation ranges or job descriptions for each job position. However, it may be helpful to keep records in case employers need to defend compensation decisions. This amendment further defines “advertise” within the context of the law: “to make available to a pool of potential applicants for internal or public viewing, including electronically, a written description of an employment opportunity.” This definition of “advertise” will apply to both external and internal opportunities.

This law does not supersede or preempt local laws or regulations.

PrestigePEO is here to help.

If you have questions regarding New York’s Pay Transparency law or wage and hour laws, please contact your HR Business Partner.

What the Supreme Court’s Affirmative Action Decision Means for Employers

Considering the Supreme Court’s recent affirmative action decision, employers must understand the risk this decision brings to the workplace.

On June 29th, 2023, in the case of Students for Fair Admissions, Inc v. President and Fellows of Harvard College, the Supreme Court ruled that it is unconstitutional for universities and colleges to consider race as part of student evaluations during the admissions process. The issue was raised by an advocacy group that argued that affirmative action policies discriminate against applicants. While this case specifically dealt with facts related to higher education admissions, the Court’s decision may not be limited to colleges and universities. It may negatively impact businesses, for example, concerning their Diversity, Equity, and Inclusion (DEI) programs.

Shortly after the Supreme Court’s decision, a chairman of the Equal Employment Opportunities Commission (EEOC) stated that the Court’s decision did not change Title VII of the Civil Rights Act of 1964. She noted that this law has always prohibited employers from using race to make employment decisions. In her statement, she also included that employers should review their diversity programs to ensure their initiatives are not violating the law. In other words, employers can use DEI programs, but they must be careful not to make race-based employment decisions.

What can employers do to carry out their DEI efforts legally?

Employers may see challenges against DEI programs. The Court’s reasoning may be used to show that these workplace policies are discriminatory under Title VII, as some may claim that these practices constitute reverse discrimination. To remain compliant with the law, employers should review their DEI program initiatives to ensure they do not include making employment decisions based on a protected class, such as race, color, religion, sex, and/or national origin. DEI policies should not have quotas, preferences, or perceived unfairness. Also, businesses should review any DEI communications to ensure it reflects the business’s commitment to inclusion for everyone. In addition, ensure that your leaders make decisions based on legitimate business reasons, not protected characteristics.

PrestigePEO is here to help.

If you have questions about DEI initiatives and how to implement them legally, please contact your HR Business Partner.

California Employers Are Not Liable If an Employee’s Family Member Contracts COVID-19

In July 2023, the California Supreme Court ruled that employers cannot be held liable by their employee’s household member if the employee contracted COVID-19 in the workplace and infected the household member.

In the case of Kuciemba v. Victory Woodworks, Inc., the worker’s wife contracted COVID-19 from her husband after the husband was infected at the job site. Kuciemba claimed that the employer was negligent by not preventing the spread of COVID-19.

The Court found the employer was not negligent and ruled that employers do not owe a duty of care to an employee’s household member to prevent them from contracting COVID-19. While this decision marks a win for employers, employers must continue to track COVID-19 legal developments as the laws may continue to change in the future.

PrestigePEO is here to help.

If you have questions regarding COVID-19-related workplace policies or general workplace safety guidelines, please contact your HR Business Partner.

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