As the dog days of summer settle upon us, rule makers at both the federal and state levels have been busy crafting new heat illness standards for both indoor and outdoor work areas.

California

In California, the California Occupational Safety and Health Standards Board (Cal OSHA) voted to adopt the country’s second ever indoor heat standard. The new rule focuses on all indoor work areas where the indoor temperatures reach 82 degrees or higher, placing the burden of compliance mainly on employers.  The new rule was poised to become effective on August 1, 2024, but in a surprising change of events, the new rule took effect early on July 23, 2024.

All California employers with indoor work areas that reach 82 degrees or higher are now required to create a written heat illness prevention plan. This written plan must be specific and customized to the employer’s workplace and include a process in which employees can access drinking water, cool-down areas, areas to adjust to the heat, procedures for measuring the temperature and heat index, and emergency response measures.

The regulations surrounding drinking water include the following: drinking water must be fresh, pure, suitably cool, and free of charge. The location of the water must be “as close as practicable” to the work areas and located in the indoor cool down areas. If no running water is available, employers must provide each employee with one quart of drinking water per hour.

Employers must also provide all California employees access to cool-down areas that are maintained below 82 degrees and blocked from direct sunlight for recovery periods and meal and rest breaks. Rule makers emphasize the importance of preventative cool-down rest periods by requiring employers to pay daily premium pay when employees are not taking or permitted to take necessary recovery periods.

Employees recently assigned to high heat conditions or locations must be monitored by their employers for signs of heat stress for the first 14 days of work in these conditions, as well as those employees working during a heat wave. Furthermore, employers must train non-supervisory and supervisory employees on the risks of heat illness in the workplace, including both environmental and personal risk factors for heat illness as well as the employer’s procedures for complying with the indoor heat illness prevention regulation.

California has also instituted additional requirements when the temperature or heat index reaches 87 degrees and requires employers to measure and record the temperature and heat index when it is first “reasonable to suspect” that it has either reached 87 degrees or 82 degrees with employees wearing heat restrictive clothing or working in a high radiant heat area.  Actively involving employees and their union representatives in the planning and implementation process of the heat illness prevention plan is also required. Exceptions to these new regulations include brief indoor work location exposure that last for 15 minutes or less in any one-hour period or to situations where the employee is teleworking in a location of the employee’s choice and in emergency operations directly involving the protection of life or property.

Nevada

California is not the only state to consider heat related illness protection standards for workers. Nevada Occupational Safety and Health Administration (Nevada OSHA) may soon require employers to safeguard employees exposed to heat illness, from various symptoms including heat cramps, heat rash, heat exhaustion, fainting, and heat stroke. The proposed new regulations are only in draft form but have been sent to state lawmakers for approval and are geared towards a Summer 2025 effective date. Unlike the California regulation, Nevada is considering standards for employees that may be exposed to heat illness both indoors and outdoors. These new regulations would cover all employees including those in private business as well as government workers.  Nevada will continue to follow the federal OSHA guidelines under the National Emphasis Program (NEP) for outdoor and indoor heat-related hazards, until April 2025 unless it is canceled, modified, or a state-specific heat illness regulation such as the above is adopted. PrestigePEO will continue to monitor the proposed regulations and provide updates as they become available.

Federal OSHA

At the federal level, the Occupational Safety and Health Administration (OSHA) has also made significant strides toward implementing nationwide heat stress standards. OSHA has proposed regulations aimed at protecting workers from extreme heat both indoors and outdoors. Now that the new rule has been proposed, the months-long administrative process will begin and includes seeking input from both stakeholders and the public on the various regulations. While the public awaits the final determination on the proposed regulations, it is important to note that OSHA currently monitors and enforces heat safety standards in all workplace settings through the General Duty Clause, under the OSH Act of 1970, which requires all employers to provide a place of employment free from recognized hazards which may cause or are likely to cause death or serious physical harm to employees.

The proposed new regulations will apply to all employers engaged in both indoor and outdoor work in what is considered general industry, as well as construction, maritime industries, and agricultural industries where federal OSHA has jurisdiction. Notable, the new rule will not apply to employees engaged in sedentary work, or work that is indoors and generally in an environment that is routinely below 80 degrees, nor will it apply to remote workers or any government employees, as OSHA regulations do not cover public employers.

This new rule will require employers to comply with several factors targeted towards employee safety when the hazards of excessive heat are potentially present. These include requiring employers to identify a heat safety coordinator within the organization and identify the actual heat hazards that may be present both indoors and outdoors. Employers must conduct regular heat risk assessments and monitor workplace temperature. Preventative measures are also a significant component to this new proposal and will require employers to provide workers with accessible drinking water at all times. Regular rest breaks in cool and shaded areas will also be required, as will heat safety training and providing employees with acclimatization programs. There are additional emergency planning and response requirements and recordkeeping and reporting requirements.

As with the proposed new regulations in Nevada, PrestigePEO will continue to monitor the federal OSHA regulations and provide updates as they become available. Pending any dynamic shift in the administrative process as governed by recent Supreme Court rulings or political influence, these new regulations are expected to take place in the first half of 2025.

PrestigePEO is here to help.

PrestigePEO is focused on supporting your business and will continue to monitor these new regulations. If you have questions, please contact your HRBP for assistance.

A recent decision by the Eleventh United States Circuit Court of Appeals may have implications on employers across the country, particularly those in the Eleventh Circuit states of Georgia, Florida, and Alabama.  This recent June 2024 court decision involved federal wage and hour violations and the court’s ruling that a mid-level manager could be held individually liable for these violations.

While the facts of this case were unique, involving a hotel establishment operated by an owner and his son, the key takeaways from the ruling are universally applicable to any management structure.  In this case, a front desk clerk worked for a number of hotels across Alabama, which were all operated by the same owner.  The clerk worked for the operation for approximately 10 years, averaging 62 hours per week and was paid monthly.  A part of his compensation was onsite lodging at the hotel.  The clerk eventually sued the company for wage and hour violations, alleging that he was not paid the federal minimum wage or required overtime premiums, pursuant to the Fair Labor Standards Act (FLSA).

The FLSA grants employees a private cause of action against employers for these types of wage and hour violations.  Furthermore, the FLSA broadly defines the term “employer” as “any person acting directly or indirectly in the interest of an employer in relation to an employee.”  The hotel clerk sued the company as well as the owner and his son for these violations.  The son argued that he was not in fact an “employer” for three reasons: he was not an owner, did not have any control or decision-making authority regarding the hotel clerk’s wages or compensation, and did not exercise control over the finances of the hotel.

The court agreed with the hotel clerk, finding wage and hour violations and holding the hotel owner and his son individually liable, finding that they both met the definition of an “employer.” The court went on to find that the details of the son’s responsibilities did rise to the level of employer status even though he was not an owner or corporate officer.  Rather, the son was found to have control over significant aspects of the company’s day to day functions, even as a mid-level manager.

Essential to understand from this ruling is that the court found that individual liability is not limited to owners, executives, or just upper management, but extends to any position that exercises some direct responsibility for the supervision of other employees or control over significant aspects of the day-to-day functions or financial matters.  This could include having influence over other employee’s salaries, controlling budgetary aspects of the company, or overseeing routine business operations.  The court noted that the hotel owner and his son shared a unique relationship, the son in this matter was “not in the same position as the average middle manager,” and that the son’s control was “both substantial and related to the company’s obligations” under the Fair Labor Standards Act.

All employers need to understand that supervisors and mid-level managers can be held individually liable for wage and hour violations, depending on their involvement in the operations of the business, and steps should be taken to ensure compliance with all FLSA regulations, to help reduce the risk of their management staff being held personally liable.  Employers should educate their managers on the importance of following all required wage and hour laws.  Predicating this education based on potential liability would generate additional support for compliance from their management teams.  Employers should also work to encourage timely reporting of any discrepancies in paychecks from all employees and have steps in place to proactively address wage and hour concerns.  With proper compliance procedures in place, employers could work to avoid allowing complaints to go unchecked or grow into more significant problems. Finally, all employers are encouraged to review pay practices regularly to ensure compliance with all wage and hour regulations.

PrestigePEO is here to help.

PrestigePEO is focused on supporting your business.  If you have questions about the FLSA or any other wage and hour regulations, please contact your HRBP for assistance.

Starting September 4, 2024, the Federal Trade Commission (FTC) will implement a nationwide ban on non-compete agreements. This change prohibits post-employment non-compete clauses and agreements between employers and their workers. Earlier this year, on April 23, 2024, the FTC announced a Non-Compete Clause Rule which bans most agreements that prevent employees from working for competitors or starting a competing business after leaving their current job.

The ban has encountered legal challenges at the state level, creating a complex legal landscape for businesses to navigate. In a significant development, a federal judge in Pennsylvania recently issued a ruling that upheld the FTC’s authority, ruling in favor of the non-compete ban and rejecting all the employer’s arguments against it. This decision conflicts with a recent Texas court ruling which found the FTC exceeded its authority with implementing the ban.

The interaction between the federal ban and state court rulings presents a critical challenge. While the FTC’s regulation is federal, state-level decisions could influence its enforcement and interpretation. Businesses must stay informed about federal guidelines and relevant state court decisions to ensure compliance.

Existing non-competes for most U.S. workers are still valid until the effective date, but employers need to evaluate their options moving forward and plan for contingencies. The ban will require businesses to inform current and former employees that their non-competes are invalid.  Companies may still use non-disclosure agreements to protect proprietary information.

Legal challenges are ongoing, with a final decision in the Texas case expected by August 30, 2024.

PrestigePEO is focused on supporting your business and will continue to monitor this matter as it evolves.

PrestigePEO is here to help.  If you have questions, please contact your HRBP for assistance.

The Louisiana Legislature passed significant amendments to the wage payment and non-compete statutes, impacting employer obligations.

Wage Payment Statute – Changes Effective August 1, 2024

• Employers must pay final wages within five (5) days of termination, reduced from 15 days.
• Employers may pay final wages electronically, including direct deposit and electronic funds transfer.
• Employers offering bonuses or incentives can adjust commissions and bonuses based on change orders or upon receipt of customers’ payments, provided the employer has a written policy. Employers can make payments based on periodic financial performance within 120 days.
• Employers must provide detailed written statements to terminated employees outlining the final wage payment details and any deductions.
• Non-compliance can result in penalties up to double the unpaid wages, plus attorney fees.

Non-compete Statute – Changes Effective January 1, 2025

• The statute shortens the acceptable duration of non-compete agreements to 12 months post-employment.
• Non-compete restrictions must be reasonable in scope, both geographically and temporally. Restrictions should be limited to geographic areas where the employer conducts business and for a duration justified by business interest.
• Employers must demonstrate a legitimate business interest for a non-compete agreement. Legitimate business interests might include the protection of trade secrets, preservation of customer relationships, investment in employee training, and preventing unfair competition.
• Employers must provide additional consideration for current employees to sign non-compete agreements.
• There are special rules for physicians. The duration of Non-compete Agreements for primary care physicians is limited to three years, and for other physicians, five years. If employment ends before the full duration of the noncompete agreement, noncompete period is reduced by to two years.

PrestigePEO is here to help.

PrestigePEO is focused on supporting your business and will continue to monitor these changes. If you have questions, please contact your HRBP for assistance.

Paleny v. Fireplace Products U.S., Inc., 103 Cal. App. 5th 199 (3^rd DCA 2024)

On June 27, 2024, the California Court of Appeals issued a decision in the case of Paleny v. Fireplace Products U.S., Inc., ruling that an employee who wanted to donate and freeze her eggs was not protected by the Pregnancy Statute.

Erika Paleny was an administrative assistant who worked at the Fireplace Products U.S., Inc.  in Sacramento, California between May 2018 through October 2019. On or around October 2018, she informed her manager that she would be undergoing an egg retrieval procedure for “donation” and “potential personal use.” According to Erika Paleny, her employer had expressed strong dissatisfaction of having her to take time off to undergo the egg retrieval procedures and started to create a hostile working environment. A few months later Ericka Paleny had advised her supervisor that she would have to start coming to work a little later in the day so that she could attend her scheduled retrieval procedures. After informing her supervisor about her latest schedule, she was terminated. Subsequently, Erika Paleny filed a claim with the Fair Employment and Housing Act (FEHA) claiming discrimination, harassment, and retaliation due to disability and pregnancy, failure to accommodate, and wrongful termination in violation of public policy.

A few years after Erika Paleny was fired, a new law was enacted in California called the Contraceptive Equity Act of 2022. This new law included protection under FEHA such as “reproductive health decision-making” and different methods of obtaining contraception.

The Court decided that at the time Erika Paleny had filed her claims, the egg retrieval procedure under FEHA did not amount to any medical condition related to pregnancy. The Court further reasoned that Paleny was only undergoing an “elective medical procedure” without an underlying medical condition related to pregnancy. As a result, she did not have a “protected characteristic” under the FEHA.

What Employers Should Know

The decision in the Paleny signifies the importance of the timing of when an employee can bring claims, and the specific protections that are provided under FEHA.  It is also important to note that FEHA now includes “reproductive health decision-making” as a protected category. Employers need to ensure that their polices are up to date and they can properly accommodate employees for time off requests for egg retrieval, egg donation, sperm donation, and any other requests related to reproductive health decision making activities.

PrestigePEO is here to help.

PrestigePEO is focused on supporting your business.  If you have questions, please contact your HRBP for assistance.

On July 3, 2024, New Hampshire Governor Chris Sununu signed HB 1169 into law, making New Hampshire the most recent state to pass a law protecting individuals against discrimination based on their hairstyle. The Creating a Respectful and Open World for Natural Hair Act (the “CROWN Act”) supplements existing anti-discrimination laws to provide a private cause of action for employment discrimination based upon a person’s protective hairstyle. The CROWN Act defines a protective hairstyle as “hairstyles or hair type, including braids, locs, tight coils or curls, corn rows, Banto knots, Afros, twists, and head wraps.”[1] Previously, it was not clearly defined if hairstyle-based discrimination was included as Race or Color based discrimination. Any remaining ambiguity has now been erased with the passage of the CROWN Act.

The law goes into effect on September 1, 2024, sixty (60) days after it was signed into law.

PrestigePEO is here to help.

PrestigePEO is focused on supporting your business and will continue to monitor these new regulations. If you have questions, please contact your HRBP for assistance.

[1] https://www.gencourt.state.nh.us/lsr_search/billText.aspx?id=1204&type=4

On June 20, 2024, the Illinois legislature passed bill SB 0508, which has been sent to Illinois Governor J. B. Pritzker for signature. Should this pending bill be approved and signed by the governor, it will place certain restrictions on employers and could potentially ban employer imposed work authorization verification or re-verification practices, unless they are required to do so by Federal law.  This may impact an Illinois employers’ ability to utilize the Federal E-Verify system, which allows the federal government to assist with reviewing and matching employee authorization documents and notifying an employer of a potential issue.  While the legislation is currently pending, experts agree that the language is vague and should it be signed by the governor, employers should be cautious about using the E-Verify system unless otherwise required to do so by law.

Additionally, if passed, the new law could possibly prohibit employers from taking adverse actions against employees that have certain discrepancies in their work documentation.

We are continuing to monitor the status of the bill and will keep you informed of the final outcome.

PrestigePEO is here to help.

PrestigePEO is focused on supporting your business and will continue to monitor these pending regulations. If you have questions, please contact your HRBP for assistance.

Illinois business owners should prepare for significant changes in employment legislation. Over ten new employment laws and amendments are awaiting the governor’s signature, with their passage highly anticipated. However, this legislation can be amended, withdrawn, or vetoed prior to the Governor signing it into law. This potential legislation includes:

1. Biometric Information Privacy Act (BIPA) – Amendment outlines new limitations and regulations on the collection, use, and storage of biometric information.
2. Day and Temporary Labor Services Act – Amendments include changes to the timing of when temporary employment agencies must pay “equivalent benefits” to employees, ensuring timely and fair compensation.
3. E-Verify – Changes to requirements and uses of the E-Verify system will potentially impact how businesses verify employee eligibility.
4. Equal Pay Act– Amendments outline additional reporting requirements for employers regarding pay data, aimed at closing the gender pay gap.
5. Freedom of Speech Act– If enacted, this law would provide immediate protections for employees’ freedom of speech in the workplace.
6. Illinois Human Rights Act (IHRA) – Changes include an increased statute of limitations specifying that employees will have up to two years to file employment claims under IHRA. Family Responsibilities, defined as an employee’s provision of personal care to a family member, and Reproductive Health Decisions will be added to the list of protected classes.
7. Illinois Personnel Record Review Act (IPRRA) – Amendments will require employers to maintain copies of employee pay stubs for at least three years and produce additional documents upon request.
8. Paid Leave for All Workers Act– Employers will be required to provide a certain number of paid leave days for all employees, enhancing worker benefits.
9. Employer Use of Artificial Intelligence– Regulations include new guidelines and restrictions on how employers can utilize AI in the hiring and employment process.
10. Whistleblower Protection Act– Enhancements provide for expanded protections for employees who report illegal or unethical activities within their companies.

PrestigePEO is here to help.

PrestigePEO is focused on supporting your business and will continue to monitor these proposed regulations. If you have questions, please contact your HRBP for assistance.

Essential Information for New York Employers

On April 19, 2024, New York State made significant amendments to New York Labor Law Section 206-c, requiring employers to provide additional support to nursing employees. This new law introduces several critical changes that New York employers must be aware of, including mandating paid lactation breaks for employees, as reported in PrestigePEO May Insights.

New York’s New Lactation Law

The most significant update is the requirement for employers to provide 30-minute paid lactation breaks. This enhancement builds upon the previous law, which allowed for reasonable unpaid breaks. Now, employers must give 30-minute paid breaks. Employees must be permitted to use additional unpaid break time or mealtime if they need extra time for breast milk expression beyond the paid 30 minutes. The law applies to both in-person and remote workers.

The updated law specifies that employers must provide paid lactation breaks whenever the employee needs to express breastmilk. This provision is applicable for up to three years following the birth of the employee’s child.

The law reiterates the employer’s requirement to provide a private, non-bathroom space for lactation. Employers must ensure the employee’s privacy by providing a space that is shielded from view and free from intrusion. The space should also be near the employee’s work area and meet some other requirements specified in the law and New York Department of Labor Information for Employers, including  a chair and small table or other flat surface, light, an electrical outlet (if the workplace has electricity), and access to a clean water supply. If there is a refrigerator in the workplace, employers must provide employees access to store their expressed milk. If the employer is unable to provide a dedicated lactation room, a temporarily vacant room may be used instead. As a last resort, employers may provide a fully enclosed cubicle with walls at least seven feet tall.

Employers must inform employees about their rights under this law by providing employees with the New York Department of Labor Policy on the Rights of Employees to Express Breastmilk in the Workplace upon hiring, annually after that, and when an employee returns to work following the birth of a child. Inform your employees about their rights under the new law by providing them with the Policy.

Practical Tips for Compliance

Private employers in New York may need to review and revise employee handbooks and policies to ensure compliance. All public and private employers in New York State, regardless of the size or nature of their business, must maintain a written policy outlining nursing employees’ rights, including their new entitlement to 30-minute paid breaks to express breastmilk. Employers should communicate policy or handbook updates to all employees.

Business locations should establish a designated lactation space that meets the law’s privacy requirements and ensure the space is easily accessible and comfortable for nursing employees. Human Resources departments and managerial staff should receive training on the new law to ensure they understand and can successfully implement the new requirements.

By accommodating nursing employees, updating policies, informing staff, and encouraging a supportive workplace culture, you can ensure compliance while promoting a positive and productive work environment for all employees.

PrestigePEO is here to help.

PrestigePEO is focused on supporting your business and will continue to monitor these new regulations. If you have questions, please contact your HRBP for assistance.

The New York City Council has recently proposed new legislation that would be the most stringent pay data reporting requirements in the nation. This regulation seeks to address wage disparities and promote fairness by providing detailed and frequent reporting of compensation data across various demographics. If this new bill were to pass, it would mandate that employers with twenty-five or more employees working either part-time or full time in any one of the five boroughs of New York City to submit comprehensive pay and demographic information to the New York City Department of Consumer and Workers Protection (DCWP) each year starting on February 1, 2025.

Key details of the Proposed Regulation:

• Detailed Pay Data Reporting: Employers would be required to provide comprehensive reports that include compensation ranges for different job titles. This data must reflect average salaries and the distribution of pay within roles and levels.
• Demographic Breakdown: These reports must include a detailed breakdown of pay by race, gender, and ethnicity. This transparency will clarify potential pay gaps and ensure equitable compensation practices across multiple employee groups.
• Regular Updates: Pay data must be updated regularly. This ongoing reporting requirement will help track changes and ensure that compensation practices remain fair and aligned with current standards.
• Enforcement and Compliance: The New York City DCWP will oversee compliance through regular audits. Employers who fail to meet the reporting requirements could face substantial fines and other penalties, reinforcing the importance of adhering to these new standards.

Implications for Employers:

The proposed regulations highlight the importance of remaining vigilant about pay practices and pay management. Employers should prepare by reviewing their pay practices, making sure they can report and explain their pay data correctly, and figuring out how to fix any pay gaps they may find.

As New York City takes steps in progressing pay fairness by following the lead of states like California and Illinois, which already have pay data reporting requirements, it is likely that more states will follow with similar rules.

PrestigePEO is here to help. If you have any questions concerning the proposed New York City Pay Data Reporting Requirement, please contact your HRBP.