Staying abreast of compliance, laws, and regulations is crucial for business owners, and keeping up with the ever-changing landscape of U.S. compliance can be tough. Our Compliance Webinar Series spans the US and covers regional laws that business owners need to be aware of. Our upcoming webinar sessions will cover compliance topics in the Southeast and the Midwest. Join us for recent changes, updates coming soon, and items to track on the horizon.

The Southeast Compliance webinar will be offered on Wednesday, February 21, 2024, at 10:00 am. The Midwest Compliance webinar will be offered on Wednesday, March 6, 2024, at 10:00 am.

Register for either session (or both!) at the links below. If you’re interested in checking out our previous webinar sessions, view the Northeast webinar recording here and the West Coast webinar recording here.

On January 16, 2024, the Governor of New Jersey signed into law comprehensive legislation that would create the state’s first consumer data privacy legal framework, providing consumers with more control over their personal information and increasing obligations on data controllers and data processors. Personal data is defined as any information that is linked or reasonably linked to an identified or identifiable person but does not include publicly available information. This law is set to go into effect on January 15, 2025.

The new law applies to all entities that conduct business in New Jersey or produce products or services that are targeted to residents of New Jersey.  These applicable entities are considered to be “data controllers” or companies that companies that 1) control or process the personal data of at least 100,000 consumers (excluding personal data processed solely for payment transactions); or control or process the personal data of at least 25,000 consumers and 2) the business derives revenue from the sale of personal data.  This includes nonprofit entities, provided they meet the necessary conditions.

The definition of consumer specifically excludes persons acting in a commercial or employment context and the law does not apply to employment or business to business (B2B) data, which would eliminate job applicants from coverage under the law.

Notable highlights under this new law include:

• Defines “financial information” as a form of sensitive data. Sensitive date can include a consumer’s account number, account log-in information, credit or debit number, password information or other information that would allow access to a consumer’s financial account information.
• Requires companies to conduct data protection assessments in any processing of consumer information prior to conducting the processing. Assessments would identify any heightened risk of harm to a consumer which may result from specific forms of targeted advertising, the sale of personal data, and other processing of sensitive data.

The Act requires data controllers to recognize requests to opt-out of the processing of personal data beginning six months after the Act takes effect. There are additional protections from processing children’s personal data for the purposes of targeted advertising, sale of personal data, or certain types of profiling without the consumer’s consent where there is actual knowledge that the consumer is 13 to 16 years old.

The Act does not contain a private right of action for consumers, rather the New Jersey Attorney General retains exclusive enforcement authority.

PrestigePEO is here to help.

PrestigePEO is focused on supporting your business. If you have questions or need assistance updating your existing policies, please reach out to your HR Business Partner.

Effective January 1, 2024, at the time of hiring, employers must include information about the existence of a federal or state emergency or disaster declaration applicable to the county or counties where the employee is to be employed, that was issued within 30 days before the employee’s first day of employment, that may affect their health and safety during their employment.

For employees working pursuant to a federal H-2A agricultural visa, specific information, in Spanish and English if requested by the employee, is required about an agricultural employee’s rights under California law.

Action Items for Employers

California Labor Code Section 2810.5 requires employers to provide each employee with written notice (referred to as a Wage Theft Prevention Notice), at the time of hiring, with the basic terms of employment as set forth in California Labor Code Section 2810.5, such as: ​

• Rate(s) of pay,​
• Payday,​
• Legal name of the employer and any “doing business as names,”​
• Address, workers’ compensation information, and ​
• Paid sick leave information,​
• And other additional information indicated on the notice.​
• The Wage Theft Prevention Act Notice also comes in different languages (Vietnamese, Spanish, Korean, Chinese and Tagalog)

A copy of the Notice can be found here. The California Labor Commissioner is required to publish an updated 2810.5 notice template on its website by March 1, 2024.

PrestigePEO is here to help.

PrestigePEO is focused on supporting your business. If you have any questions regarding the California Wage Theft Prevention Act Notice, please reach out to your HR Business Partner.

Beginning, January 1, 2024, the new Colorado Overtime and Minimum Pay Standard Order #39 (COMPS Order) released by the Colorado Department of Labor and Employment went into effect.

The new COMPS Order expanded the definition of “time worked.” Under the new Order, employees may need to be compensated for activity of less than one minute, depending “on the balance of the following factors, as shown by the employer: (a) the difficulty of recording the time, or alternatively of reasonably estimating the time; (b) the aggregate amount of compensable time, for each employee as well as for all employees combined; and (c) whether the activity was performed on a regular basis.” A copy of the Order can be found here.

In a nutshell, employers should be very careful to make sure they are compensating employees for even the smallest amount of time worked given the expanded definition of time worked.

Next Steps for Employers

Employers should make sure they are displaying the new poster/notice, which is available here. In addition, employers may wish to consider whether they need to update any of their policies and/or train any employees in connection with these changes.

PrestigePEO is here to help.

PrestigePEO is focused on supporting your business. If you have any questions regarding Colorado’s COMPS Order, or if you have questions regarding the updated notice, please reach out to your HR Business Partner.

As of January 1, 2024, the EEPEWA, together with the Equal Pay Transparency (“EPT”) Rules issued by the Colorado Department of Labor and Employment (“CDLE”), created significant, new disclosure and notice requirements for employers with even one (1) employee in Colorado. The goal of these new requirements is to provide both current and prospective employees with expanded information about potential job opportunities. A copy of the new rule can be found here.

What Should Employers Do:

1. Provide notice of each job opportunity to employees;
2. Provide information on how to apply and the application deadline to both internal employees and in external covered job postings;
3. Provide information about compensation and benefits in both external and internal covered job postings;
4. Disclose certain information about selected candidates to employees with whom the candidate will likely work, and about how employees can express interest in similar jobs in the future;
5. Provide notice to eligible employees of career-progression positions, including the requirements to progress, compensation, benefits, responsibilities, further advancement, and full-time or part-time status; and
6. Continue to maintain records of wage and job descriptions.

PrestigePEO is here to help.

PrestigePEO is focused on supporting your business. If you have any questions regarding Ensure Equal Pay for Equal Work Act (EEPEWA), please reach out to your HR Business Partner.

Beginning January 1, 2024, the Family and Medical Leave Insurance Program (FAMLI) benefits officially became available for most employers with one (1) or more employees working in Colorado.

What is covered under FAMLI?

Covered Colorado workers may receive up to twelve (12) weeks of leave per year to:

• Bond with a new child, including adopted and fostered children.
• Care for themselves, if they have a serious health condition.
• Care for a family member’s serious health condition.
• Make arrangements for a family member’s military deployment.
• Address the immediate safety needs and impact of domestic violence and/or sexual assault.

Next Steps for Employers

1. Employers should train managers who handle leave requests from Colorado employees regarding the employer’s obligations and policies pursuant to the FAMLI Act.
2. Employers should update their FAMLI notices with the most updated version as shown on the next page. The most updated version, available here.
3. Employers may wish to update their leave policies to address the FAMLI program.

More information about FAMLI can be found here.

PrestigePEO is here to help.

PrestigePEO is focused on supporting your business. If you have any questions regarding Colorado’s FAMLI Insurance program, or if you need to update your leave policies, please reach out to your HR Business Partner.

The POWR Act amends several components of the Colorado Anti-Discrimination Act (CADA), including revising the definition of “unlawful harassment,” expanding employment discrimination protections to include marital status, and adding new provisions regarding nondisclosure agreements (NDAs) and recordkeeping obligations.

Harassment Claims

The POWR Act has expanded the definition of harassment to include any “unwelcome” conduct. This is a lower standard to meet in comparison to the federal “severe or pervasive” standard for determining whether conduct constitutes legally actionable harassment.

It also sets specific standards for employers to be able to assert an affirmative defense to supervisory harassment. An employer must first show: (1) it has a policy and practice reasonably designed to prevent harassment, deter future harassers, and protect employees from harassment; (2) it communicates the existence and details of the policy to both its supervisory and nonsupervisory employees; and (3) the employee unreasonably failed to take advantage of the policy.

Inclusion of Marital Status as a Protected Class in the Employment Context

The POWR Act adds marital status as a new protected category under CADA’s employment discrimination provisions. (Previously, only CADA’s public accommodation provisions prohibited marital status discrimination.) The other protected categories under the Act are disability, race, creed, color, sex, sexual orientation, gender identity, gender expression, religion, age, national origin, or ancestry.

Action Items for Employers:  Update your EEO and nondiscrimination policies to ensure that marital status is included as one of the protected traits. Update training materials for management to ensure they are not making personnel decisions based on individuals’ marital status.

Restrictions on Nondisclosure Agreements

The POWR Act restricts the use of certain nondisclosure agreement provisions entered into or renewed on or after August 7, 2023.  A nondisclosure agreement is void if it limits an employee or job applicant from disclosing or discussing any alleged discriminatory or unfair employment practice.  Such agreement is not void only if it meets all the following:

1. It must apply equally to all parties
2. It must include exceptions for disclosure of “the underlying facts of any alleged discriminatory or unfair labor employment practice”
3. Specifically state that the underlying facts subject to any enumerated exception does not constitute a disparagement
4. If there is a non-disparagement and the employer disparages the employee, then the employer may not seek to enforce the non-disparagement or NDA provisions or seek damages against the employee for violating those provisions
5. Reasonable liquidated damages provision
6. Addendum signed by both employer and employee attesting to compliance with the POWR Act

Employers who violate these requirements can be liable for actual damages and face a penalty of $5,000 per violation.  Any employee presented with a non-compliant agreement can immediately sue his employer to recover penalties, actual damages, reasonable costs and attorney fees, and punitive damages.

Action Items for Employers:  Revise your nondisclosure agreements and severance agreement to comply with POWR’s new requirements.  Make sure the agreements state they are not intended to limit employees’ ability to disclose information regarding discrimination and unfair employment practices.

New Record-keeping Requirements

The POWR Act also requires employers to preserve personnel and employment records for at least five (5) years.  This includes:

• All job applications submitted by applicants (regardless of whether the individual was hired)
• Employee complaints
• Requests for accommodations
• All records related to personnel decisions (e.g., hiring, firing, transfer, etc.), compensation, and training.

Additionally, employers must keep a “designated repository” for all written and oral complaints of discrimination and unfair employment practices.

Action Items for Employers:

Review your record retention policies to ensure you’re in compliance with POWR’s recordkeeping requirements. Make sure you have a reliable system in place for documenting all complaints of discrimination, harassment, or retaliation.

PrestigePEO is here to help.

PrestigePEO is focused on supporting your business. If you have any questions regarding Colorado’s POWR Act, or if you need to update your leave policies, please reach out to your HR Business Partner.

Employment Practices Liability Insurance (EPLI) covers businesses against claims by job applicants, employees, and former employees alleging that the company has violated their legal rights. EPLI is an essential protection for businesses operating in an increasingly litigious society. EPLI generally covers claims of discrimination, harassment, retaliation, and wrongful termination. It generally does not cover wage and hour claims or claims from third parties, like independent contractors.

EPLI claims can come in a few different forms:

• Demand Letter: Letter from a claimant or their counsel demanding a sum of money or other relief for alleged violation(s) of employment law(s);
• Charge/Complaint of Discrimination: Claims filed with the EEOC or state or local agencies alleging violations of EEO laws; and
• Lawsuit: Formal Complaint filed in state or federal court outlining specific violations of law and demanding monetary or other relief.

Client Expectations

If you are a client of PrestigePEO, your available EPLI coverage under our policy is outlined in your Client Service Agreement (CSA). Each PrestigePEO client plays a vital role in keeping claims and retention costs down. To that end, there are important steps you must take to protect your business:

• Prevent – Make sure you have consistent and legally compliant handbook policies and practices; proactively train your employees; and report allegations of harassment, discrimination, and retaliation to your Human Resources Business Partner (HRBP) so we can help guide you in resolving those issues.
• Report – Within two (2) days of receiving a claim, you must notify your Human Resources Business Partner (HRBP). The sooner we know of a claim, the sooner we can assist in its resolution and report it to the carrier. Please timely report the claim to avoid a denial of coverage. Potential claims must also be reported.
• Cooperate – We are your trusted partner. If you receive a claim, we understand. It happens. We must address and resolve it as quickly and cost-effectively as possible.

EPLI Process

If you receive a claim, you must report it to your HRBP within two (2) business days so we can quickly remit it to our carrier for a coverage determination and help you resolve the issue. Once submitted, the carrier will review the claim to determine coverage under the policy. Once the determination is made, we will communicate next steps to you, including whether coverage counsel will be assigned.

From there, your company, PrestigePEO, and the carrier will work together to resolve the claim. We understand that an EPLI claim can be very stressful for business owners and their management teams. We have helped many clients through the EPLI claim process, and we will be here to help you if you ever receive a claim.

Contact Us

Have questions about PrestigePEO’s EPLI process? Please reach out to compliance@prestigepeo.com. Receive a claim? Please immediately send it to your HR Business Partner.

PrestigePEO is your HR family, and we are here for you! You can contact your dedicated team of specialists via phone, email, your PrestigePRO dashboard, and our convenient PrestigeGO mobile app. No matter where you are or what you need, help is at your fingertips. Now that you know how to find your team, are you aware of everything we have to offer?

The services you get with your PrestigePEO partnership: HR management, payroll services, employee benefits, compliance management, 401(k) retirement assistance, and more!

What else can you take advantage of?

• Monthly Informational newsletters (what you are reading now!)
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