Employment Compliance Alerts

Federal/Nationwide

U.S. Citizenship and Immigration Services Publishes New I-9 Form

Effective August 1, 2023, employers should begin using the newly published I-9 Form. You may access it here, or you may find it within your HR Director account. Penalties will be issued to employers who are not using the new form beginning November 1, 2023.

Among the updates, the revised form:

Reduces Sections 1 and 2 to a single-sided sheet;
Is designed to be a fillable form on tablets and mobile devices;
Moves the Section 1 Preparer/Translator Certification area to a separate, standalone supplement that employers can provide to employees when necessary;
Moves Section 3, Reverification and Rehire, to a standalone supplement that employers can print if or when rehire occurs or reverification is required;
Revises the Lists of Acceptable Documents page to include some acceptable receipts as well as guidance and links to information on automatic extensions of employment authorization documentation;
Reduces Form instructions from 15 pages to 8 pages; and
Includes a checkbox allowing employers to indicate they examined Form I-9 documentation remotely under a DHS-authorized alternative procedure* rather than via physical examination.

*The Federal Register document provides an alternative for certain employers to remotely examine I-9 Form documents, instead of the current requirement to examine documents in-person. To participate in the remote examination of I-9 Form documents under the DHS-authorized alternative procedure, employers must:

be enrolled in E-Verify;
examine and retain copies of all documents;
conduct a live video interaction with the employee; and
create an E-Verify case if the employee is a new hire.

New ``Know Your Rights`` Poster

Recently, the Equal Employment Opportunity Commission (EEOC) published an updated “Know Your Rights” poster.

Covered employers are required to post this “in a conspicuous location in the workplace where notices to applicants and employees are customarily posted.” The Americans with Disabilities Act also requires this posting to be made available in a location that is accessible to applicants and employees with disabilities who have limited mobility.

Covered employers may also post a digital notice on their websites to supplement the physical poster as well as inform remote or hybrid workers of their rights. For a digital copy, visit the EEOC’s website by clicking here.

To help employers comply, please click here to download the printing/posting version of the form.

Covered Employers: employers with “15 or more employees who worked for the employer for at least twenty calendar weeks (in this year or last).”

Covered employers may be subject to fines for noncompliance.

California

Four Employment Law Changes Affecting CA Employers

Pay Scale Information (Applicants, Current Employees and Job Postings)

SB 1162 states:

Note: this applies to employers of all sizes.

“An employer, upon reasonable request, shall provide the pay scale for a position to an applicant applying for employment.”

“An employer, upon request, shall provide an employee the pay scale for the position in which the employee is currently employed.”

SB 1162 states:

Note: this applies to employers with 15 or more employees.

“An employer with 15 or more employees shall include the pay scale for a position in any job posting.”

“An employer with 15 or more employees that engages a third party to announce, post, publish, or otherwise make known a job posting shall provide the pay scale to the third party. The third party shall include the pay scale in the job posting.”

“Pay Scale” defined: “the salary or hourly wage range that the employer reasonably expects to pay for the position.”

Record Retention: “An employer shall maintain records of a job title and wage rate history for each employee for the duration of the employment plus three years after the end of the employment…These records shall be open to inspection by the Labor Commissioner.”

Enforcement: Upon finding that an employer has violated this section, the Labor Commissioner may order the employer to pay a civil penalty of no less than one hundred dollars ($100) and no more than ten thousand dollars ($10,000) per violation.

Workplace Safety

SB 1044 states:

Note: this applies to employers of all sizes.

“In the event of an emergency condition, an employer shall not do either of the following:

Take or threaten adverse action against any employee for refusing to report to, or leaving, a workplace or worksite within the affected area because the employee has a reasonable belief that the workplace or worksite is unsafe.
Prevent any employee from accessing the employee’s mobile device or other communications device for seeking emergency assistance, assessing the safety of the situation, or communicating with a person to verify their safety.”

“Emergency condition” means the following:

Conditions of disaster or extreme peril to the safety of persons or property at the workplace or worksite caused by natural forces or a criminal act.
An order to evacuate a workplace, a worksite, a worker’s home, or the school of a worker’s child due to natural disaster or a criminal act.

“Emergency condition” does not include a health pandemic.

Some exceptions apply. To read the full text of the law, click here.

CA Privacy Rights Act (CPRA)

In 2020, voters approved Proposition 24, known as the CA Privacy Rights Act (CPRA). The CPRA amended the CA Consumer Privacy Act (CCPA) and many of the changes take effect January 1, 2023.

Applicability: The CPRA will apply to for-profit businesses doing business in the state of CA that meet one of the following criteria:

Have a gross annual revenue in excess of $25 million;
That buy, sell and/or share (alone or in combination) personal information of 100,000 or more California residents or households; or
That derive 50 percent or more of annual revenue from selling or sharing consumers’ personal information.

Employers covered by the CPRA will have to comply with the law’s notice and disclosure requirements with respect to personal information collected from their employees and job applicants. Employers will also have numerous obligations with respect to employees’ rights under the CPRA.

If CPRA is applicable to your business, please work with legal counsel or an expert on CPRA/CCPA to ensure compliance.

``CalSavers`` Program Expanded'

In 2019, California launched a program called “CalSavers.” To recap the program, it is designed to give Californians an easy and simple way to save for retirement. CalSavers gives employees an opportunity to defer their wages, through payroll deductions by the employer, to a state-run individual retirement savings account. The program rolled out over three years from large employers to small ones. This summer, June 2022, saw the last roll out of the original program to include all employers with 5+ employees.

California employers are required to facilitate CalSavers if they don’t offer an employer-sponsored retirement plan, such as a 401(k) or pension plan. Every employee must be enrolled in the program unless the employee elects to opt-out.

Under a new bill, SB1126, signed by Governor Newsom, the program has been expanded to include any person or entity engaged in a business, industry, profession, trade, or other enterprise in the state who employs at least one California employee.

Additionally, employers with 5 or more employees that do not offer a retirement savings program must have a payroll deposit saving arrangement to allow employee participation in the program within 36 months after the Board opens the program for enrollment. And by December 31, 2025, all eligible employers with one or more employees would need to have a payroll deposit savings arrangement, if they do not provide a retirement savings program themselves.

Registration for the program is open for all employers. Please visit https://www.calsavers.com for more information.

Reporting & Training Mandates Pertaining to Child Abuse & Neglect

Assembly Bill 1963 was signed by Governor Newsom in September, which immediately amends Section 11165.7 of the Penal Code, relating to mandated reporters of child abuse.

Under existing law, the Child Abuse and Neglect Reporting Act requires a mandated reporter, as defined, to report whenever they, in their professional capacity or within the scope of their employment, have knowledge of or observed a child whom the mandated reporter knows or reasonably suspects has been the victim of child abuse or neglect.

This bill adds the following to the list of individuals who are mandated reporters:

a human resource employee of a business with 5 or more employees that employs minors;
for the purposes of reporting sexual abuse, an adult whose duties require direct contact with and supervision of minors in the performance of the minors’ duties in the workplace of a business with 5 or more.

The bill also requires those employers to provide their employees who are mandated reporters with training on identification and reporting of child abuse and neglect.

To read the full text of the bill, please click here.

FAQs Released Regarding the Fair Chance Act (a.k.a. “ban the box” law)

The California Department of Fair Employment and Housing recently released Frequently Asked Questions for California’s Fair Chance Act. The Fair Chance Act, commonly referred to as California’s “ban the box” law, imposes restrictions on when and how employers may inquire about and consider an applicant’s criminal history, including prohibiting employers with five or more employees from asking about an applicant’s criminal history until after a conditional offer of employment has been made. The FAQ provides guidance on the Fair Chance Act and includes questions addressing how the law works, which employers are subject to the law, and the requirements that employers must follow in order to inquire about an applicant’s criminal history and make employment decisions based on that information.

To read the full list of FAQs, please click here.

Pay Data Reporting Obligations

Assembly Bill 973 was signed by Governor Newsom in September.

This bill requires, on or before March 31, 2021, and on or before March 31 each year thereafter, a private employer that has 100 or more employees, and that is required to file an annual Employer Information Report under federal law, to submit a pay data report to the California Department of Fair Employment and Housing (DFEH) that contains specified wage information. Furthermore, the bill authorizes the DFEH, if it does not receive the required report from an employer, to seek an order requiring the employer to comply, as specified.

To read the full text of the bill, please click here.

Cal Savers Retirement

“CalSavers” was designed to give Californians an easy and simple way to save for retirement. California launched a pilot program back in November 2018 that will begin the process of offering an estimated 7 million workers in CA the opportunity to contribute to an Individual Retirement Account (IRA) and get on track for their future.

California employers are required to facilitate “CalSavers” if they don’t offer an employer-sponsored retirement plan and have five (5) or more employees.

Employers don’t have to wait to begin helping their employees save for their future. Employers of all sizes can register for the program beginning July 2019, but no later than the following deadlines:

An employer employing 100 or more employees: June 2020
An employer employing 50 to 99 employees: June 2021
An employer employing 5 to 49 employees: June 2022

You will be notified by “CalSavers” when it’s time for your business to register. You’ll need three pieces of information before you begin:

Federal Employer Identification or Tax Identification Number (EIN/TIN)
CA Employer Payroll Tax Account Number
“CalSavers” access code from your notification.

For more information on “CalSavers,” please see visit https://www.calsavers.com/

Harassment Prevention Law

In the fall of 2018, the California State Governor signed Senate Bill 1343, which added a new training requirement for small employers.

New Mandatory Training

As of January 1, 2019, all employers with five (5) or more employees must provide training to all employees. All current employees must be trained by January 1, 2020.

The training must be two (2) hours of classroom or other effective interactive training and education regarding sexual harassment to all supervisory employees. For non-supervisory employees, the training must be one (1) hour of classroom or other effective interactive training and education regarding sexual harassment.

The training may be conducted with other employees, as a group, or individually, and broken up into shorter time segments, as long as the two-hour requirement for supervisory employees and one-hour requirement for non-supervisory employees is reached.

Once this initial training is completed for each employee, supervisors and non-supervisory employees must receive training once every two (2) years.

New employees: This training must occur within six (6) months of the employee’s assumption of a position.

Temporary or seasonal employees: must be trained within 30 calendar days after the hire date or within 100 hours worked if the employee will work for less than six months.

Developing the Training

The Department of Fair Employment and Housing (DFEH) is required to develop and make available on its website the one-hour and two-hour training courses for supervisory and non-supervisory employees. Employers may develop their own training platforms, or hire a third-party to provide the training, as long as the training provided complies with the law’s requirements.

Additional Information

Click here for the FAQs on the DFEH website.

Click here to read the text of the bill.

For a “Toolkit” on these new requirements that has been created by the DFEH, please click here and here.

Federal W-4 and State DE 4 Form Required

According to the Employment Development Department (EDD), “when you hire an employee, you must have them complete and sign both withholding certificates: the federal Form W-4 and the state DE 4. The W-4 is used for federal income tax and the DE 4 is used for California Personal Income Tax (PIT).”

“New hires and existing employees making changes to their withholdings must submit both the Form W-4 and the Employee’s Withholding Allowance Certificate (DE 4) (PDF). If an employee does not give you a properly completed state DE 4, you must withhold state income taxes from the employee’s wages as if the employee were single and claiming zero withholding allowances.”

“Employees who submitted a Form W-4 before 2020 are not required to submit a new form if they have no changes to their withholding allowances. Continue to calculate withholding based on previously submitted forms.”

Colorado

CO Supplemental Paid Sick Leave

On November 11, 2022, Governor Jared Polis issued an emergency declaration that amends CO’s Public Health Emergency Sick Leave (known as Supplemental Paid Sick Leave in the HR Director program).

Up to 80 hours of Supplemental Paid Sick Leave are available to all employees when there is a public health emergency declaration. This leave continues as long as a federal or state public health emergency is declared. Currently, federal and Colorado public health emergency declarations remain in effect.

Up until 11/11/22, Supplemental Paid Sick Leave could only be used for COVID-19 health needs. With the newest declaration, this has expanded to include flu, respiratory syncytial virus (“RSV”) and similar respiratory illnesses.

Colorado’s labor department confirmed the following: “The expansion beyond COVID-19 doesn’t give employees an extra 80 hours for those conditions, it just means they can use their 80 hours for a broader range of conditions.”

Supplemental Paid Sick Leave is not renewed each year; it is available once throughout the entirety of the public health emergency declaration. Therefore, this new expansion only affects employees who have not exhausted all of the Supplemental Paid Sick Leave hours available to them.

Supplemental Paid Sick Leave requirements will continue until four weeks after all applicable public health emergency declarations end or are suspended. Based on the current emergency declarations, Supplemental Paid Sick Leave will continue at least into February 2023, but will continue longer if either the federal or the state public health emergency declaration is renewed.

CO Supplemental Paid Sick Leave (UPDATED)

CO’s Public Health Emergency Sick Leave (A.K.A. Supplemental Sick Leave) Relating to COVID-19 Ends.

Effective June 9, 2023, CO employers will no longer be obligated to provide supplemental sick leave for COVID-19 reasons. Employees who are absent for reasons related to COVID-19 may use their regular sick leave bank, or take the time off without pay.

If there is a future public health emergency declared that triggers supplemental sick leave requirements, we will let you know.

CO Separation Notice Required

Recently, Colorado enacted a law requiring employers to provide notice of potential unemployment benefits available to an employee who leaves their employment for any reason. Now, at the time of separation, the employer must provide, in hard copy and electronic format, the following:

Notice of unemployment benefits
Employer’s name and address
Employee’s name and address
Employee’s ID number or the last four digits of their SSN
Employee’s first and last dates worked, year-to-date earnings, and wages for the last week worked
Reason for separation

This requirement applies to both voluntary and involuntary terminations.

To help employers comply, the Colorado Department of Labor issued a model form. Please click here for the form. This form will also be available on the Bent Ericksen & Associates HR Director platform.

CO Family and Medical Leave Insurance (FAMLI) Program

New Law Begins 2023: Important Deadlines and Information

Back in 2020, Colorado passed a law requiring employers to provide paid family leave benefits to their employees. The Colorado Family and Medical Leave Insurance (FAMLI) program will be run through a state agency and is set to begin January 2023. Please read below for important requirements and deadlines regarding this new law.

FAMLI is funded through payroll taxes and provides paid time off to employees for the following reasons:

Birth of a child
Bonding with a child
To care for a family member with a serious illness or injury
To care for yourself when you have a serious illness or injury
For situations involving domestic violence, stalking, sexual assault or abuse
For situations involving a family member’s military deployment

As a Bent Ericksen & Associates’ client, your HR Director account will be updated in the coming weeks to include a policy specific to this new program. You will need to update your manual accordingly and issue it to your employees prior to the new year.

Payroll Tax Contributions: As mentioned, FAMLI is funded through payroll taxes. Employers and their employees are both responsible for funding the program and may split the cost 50/50. For 2023, the premiums are set to 0.9% of the employee’s wage, with 0.45% paid by the employer and 0.45% paid by the employee.

Businesses with nine or fewer employees do not have to contribute to the program but do need to remit their employees’ share of the premium on behalf of employees each quarter. This can be done through a simple payroll deduction. All employers, regardless of size, will be required to register with the FAMLI Division before the first premium payment is due at the end of the first quarter of 2023.

Payroll deductions must begin on January 1, 2023. If you are using an outside payroll company, please contact them to ensure this will be managed properly. If you manage payroll in-house, please click here for a registration guide on submitting quarterly contributions.

Notify Employees About FAMLI: Colorado has a “FAMLI Toolkit for Employers” to assist with this requirement.

2023 Required Program Notice: The model notice must be physically posted in a prominent, visible location at each Colorado work site and should be provided electronically or by mail to any remote workers in Colorado. Click here for the form in English. For Spanish, click here.

Paycheck Stuffer: Another tool to help educate your employees about the FAMLI program is the paycheck stuffer. Employers can pair this with their regular paystubs, post it to their intranet, distribute it in internal newsletters or any other internal communication channels that reach employees. Please click here for the form in English. For Spanish, click here.

Breakroom Poster: Please click here for the form in English. For Spanish, click here.

Employee Handbook: Please click here for this in English.

This must be done by January 1, 2023.

Access to Paid Leave Benefits: Employees may apply for paid leave through FAMLI beginning January 1, 2024. This leave, with few exceptions, is job-protected. Please review the new policy for more details once it’s issued, or contact us to speak with an HR Specialist.

Additional Resources: For additional “FAMLI Toolkit for Employers” resources, click here.

Please also visit: https://famli.colorado.gov/

Connecticut

Harassment Prevention Law

On June 18, 2019, the Connecticut State Governor signed Public Act 19-16, publicly known as the “Time’s Up Bill.” This new law has the following requirements:

Mandatory Anti-Harassment Training

As of October 1, 2019, all employers with three (3) or more employees must provide two (2) hours of anti-harassment training to all employees. All employees hired before October 1, 2019 must be trained by October 1, 2020. All employees hired on or after October 1, 2019 must be trained within six (6) months of their date of hire.

As of October 1, 2019, all employers with less than three (3) employees must provide two (2) hours of anti-harassment training to all supervisory employees. All supervisory employees hired before October 1, 2019 must be trained by October 1, 2020. All supervisory employees hired on or after October 1, 2019 must be trained within six (6) months of their date of hire and/or assumption of a supervisory position.

Once this initial training is completed for each employee, employers must provide “periodic supplemental training that updates all supervisory and nonsupervisory employees on the content of such training and education not less than every ten years.”

The Connecticut Commission on Human Rights and Opportunities (CHRO) has been tasked with creating resources that employers can use to satisfy the training requirement at no cost. According to the CHRO website, “The CHRO is working on this project and aims to have the video completed and available by October 1, 2019 when the training requirements become effective for employers.” Here is a link to their website to check on the status of the training materials: https://www.ct.gov/chro/cwp/view.asp?a=5019&Q=609536&chroNav=|

Posting / Notice Requirement

Employers are required to post in a prominent and accessible location information concerning the illegality of sexual harassment and remedies available to victims of sexual harassment. In addition, within three (3) months after an employee’s start date, employers must provide a copy of the information concerning the illegality of sexual harassment and remedies available to victims of sexual harassment.

Special requirements exist if this will be done electronically. Please read the bill (link provided below) for more details.

According to the CHRO website, “The CHRO is currently in the process of developing and updating these materials and will make them available as they are completed.” Here is a link to their website to check on the status of the posting materials: https://www.ct.gov/chro/cwp/view.asp?a=5019&Q=609536&chroNav=|

Expanded Protections for Employees

If an employer takes immediate corrective action in response to an employee’s claim of sexual harassment, such corrective action shall not modify the conditions of employment of the employee making the claim of sexual harassment unless such employee agrees, in writing, to any modification in the conditions of employment. “Corrective action” taken by an employer, includes, but is not limited to, employee relocation, assigning an employee to a different work schedule or other substantive changes to an employee’s terms and conditions of employment.

Statute of Limitations and Potential Damages Increased

Employees who wish to file a complaint with the CHRO for any discriminatory practice will now have 300 days to do so (up from 180).

The new law greatly expands the potential damages that can be assessed by the CHRO if it concludes that a discriminatory employment practice has occurred.

Additional Information

Click here to read the text of the bill.

CT Leave Laws-Notices and Forms

At the start of this year, clients in CT received an update to their HR Director program. This update covered two policies: State Family and Medical Leave Act and Paid Family and Medical Leave. If you have not updated your policy manual, we recommend you do so as soon as possible. If you have, we hope you read the new information regarding required leaves that are now applicable to all employers regardless of size.

Recently, a new, additional requirement has been added. Effective immediately, employers must provide a written notice to employees at the time of hiring and annually thereafter. The notice must advise employees of:
the entitlement to family and medical leave and the terms under which such leave may be used.

The opportunity to file a claim for compensation under the paid leave program.
the fact that retaliation against employees for requesting, applying for, or using family and medical leave for which the employee is eligible is prohibited.
that employees have a right to file a complaint with the Labor Commissioner for any violation of the law.

The Connecticut Department of Labor recently released a sample notice, which employers can use to comply with this requirement. Click here for the notice. Going forward, this form will be available on the client account within the HR Director.

In addition, the CT Department of Labor issued several other forms that may be used as part of managing and documenting employee leave under these two policies. You may find the following forms within the HR Director:

CT Leave: Employers Written Notice (Upon Hire & Annually)
CT Leave: Designation Notice
CT Leave: Family Member Verification
CT Leave: Medical Certification – Employee
CT Leave: Medical Certification – Family Member
CT Leave: Medical Certification – Military Caregiver
CT Leave: Qualifying ExigencyFor additional information and resources, including comprehensive FAQs, visit the following websites:
https://ctpaidleave.org
https://portal.ct.gov/DOLUI/newfmlaguidance

Delaware

Sexual Harassment Prevention Law

Effective January 1, 2019, most Delaware employers have new requirements for managing sexual harassment prevention. This new law, as described below, is applicable to all employers who have 4 or more employees.

Part 1: Notice Requirement

Employers with 4 or more employees must give notice to employees of their right to be free from sexual harassment at work. The Delaware Department of Labor has published a notice for this purpose. Employers must distribute the notice, either electronically or physically, to new employees at the commencement of employment. All current employees must be given notice by July 1, 2019. Click here for the notice.

Part 2: Mandatory Training for Non-Supervisors

This part of the law is applicable to all employers with 50 or more employees.

By January 1, 2020, all current employees, excluding applicants and employees who are employed for less than six (6) continuous months, must be provided with interactive training and education on the prevention of sexual harassment. Training topics must cover the following:

The illegality of sexual harassment
The definition of sexual harassment using examples
The legal remedies and complaint process available to the employee
Directions on how to contact the Delaware Department of Labor
The legal prohibition against retaliation

Once all current employees have been trained, all newly hired employees should be trained in the same manner within one (1) year of the commencement of their employment.

Part 3: Mandatory Training for Supervisors

For employers with 50 or more employees who also employ Supervisors, additional training requirements exist.

By January 1, 2020, all current Supervisors must receive training that covers all of the above plus the following:

The specific responsibilities of a supervisor regarding the prevention and correction of sexual harassment

Once all current Supervisors have been trained, all newly hired Supervisors should be trained in the same manner within one (1) year of the commencement of their employment in a supervisory role.

Training for Supervisors must be repeated every two (2) years thereafter.

Additional Information:

According to the bill, the definition of an employee is: “an individual employed by an employer and includes state employees, unpaid interns, applicants, joint employees and apprentices.”

To read the full text of the bill, please click here.

Illinois

Wage Transparency Law

Beginning January 1, 2025, most employers must “include the pay scale and benefits for a position in any specific job posting.”

Following is some additional information about this new law, as outlined in the amended Illinois Equal Pay Act.

Who does this apply to?

All employers with 15 or more employees (whether the employees are inside or outside of Illinois) that chooses to make a specific job posting for an employment opportunity that is posted after 1/1/2025.

What job postings must include wage transparency information?

This requirement applies to all notices or publications for a specific employment opportunity that (1) will be physically performed, at least in part, in Illinois or (2) will be physically performed outside of Illinois, but the employee reports to a supervisor, office, or other work site in Illinois.

This would not apply to a business that posts a “Help Wanted” sign on its physical premises or website, as there is no specific position or job title identified in the posting.

What does “pay scale and benefits” mean?

This means the anticipated wage or salary, or the wage or salary range, and a general description of the benefits and other compensation, including, but not limited to, bonuses, stock options, or other incentives the employer reasonably expects in good faith to offer for the position. The employer may refer to any applicable internal pay scale, the previously determined pay range for the position, the actual pay range of others currently holding equivalent positions, or the budgeted amount for the position, as applicable, when setting the anticipated wage or salary and benefits for the posted position.

Are there financial penalties for violating the pay transparency?

Yes, the Department may impose a financial penalty, and has discretion as to waiving, setting, or imposing a penalty.

For postings that were still active at the time the Department determined there was a wage transparency violation, if an employer failed to cure the violation in the cure period, the penalties may be as follows:

For a first offense, a fine that may not exceed $500;
For a second offense, a fine not to exceed $2,500; and
For a third or subsequent offense, a fine not to exceed $10,000.

For postings that were no longer active at the time the Department determined there was a wage transparency violation:

For a first offense, a fine not to exceed $250;
For a second offense, a fine not to exceed $2,500; and
For a third or subsequent offense, a fine not to exceed $10,000.

If a respondent has three or more violations, it shall incur automatic penalties without a cure period for active postings for a period of five years; during this period, if the Department finds any further violations, the five-year period will restart.

In determining the amount of a penalty, the Department may consider a number of factors, including (but not limited to) the size of the business of the employer and the gravity of the violation.

Have more questions?

The Illinios.gov website has put together a comprehensive FAQs page containing roughly 32 different questions and answers. We recommend you visit their web page to gain a better understanding of what’s required going forward. You may click here to access this website.

Are there any additional materials?

IL issued a Fact Sheet, which can be accessed here, and a new poster to post, which can be accessed here.

Harassment Prevention Law

In August of this year, the Illinois State Governor signed Senate Bill 75. This new law has the following requirements:

Mandatory Anti-Harassment Training

The Illinois Department of Human Rights (IDHR) shall produce a model sexual harassment prevention training program aimed at the prevention of sexual harassment in the workplace. The model program shall be made available to employers and to the public online at no cost.

Beginning January 1, 2020, every employer shall use the model sexual harassment prevention training program created by the IDHR or establish its own sexual harassment prevention training program that equals or exceeds the minimum standards established in the new law.

The training must, at minimum, include: (1) an explanation of sexual harassment; (2) examples of conduct that constitutes unlawful sexual harassment; (3) a summary of relevant state and federal laws prohibiting sexual harassment and the remedies for violations of these laws; and (4) a summary of the employer’s responsibility to prevent, investigate, and correct sexual harassment.

The sexual harassment prevention training shall be provided at least once a year to all employees.

Visit the IDHR website (https://www2.illinois.gov/dhr/Pages/default.aspx) to check on the status of the training program development.

Annual Reporting of Adverse Judgments or Administrative Rulings

Beginning July 1, 2020, and by each July 1 thereafter, each employer that had an adverse judgment or administrative ruling against it in the preceding calendar year shall disclose information about the adverse judgment or administrative ruling annually to the Department of Human Rights. The required information includes, but is not limited to: (1) the total number of adverse judgments or administrative rulings during the preceding year; (2) whether any equitable relief was ordered against the employer.

Additional Information

Here’s a link to the full text of the bill: http://www.ilga.gov/legislation/101/SB/PDF/10100SB0075lv.pdf

Louisiana

New Law for Healthcare Facilities in Louisiana

Governor John Bel Edwards recently signed two new laws; both are effective August 1, 2022. These laws are aimed at preventing and managing violence against healthcare workers. Below are some specifics.

Act No. 461

What facilities are covered by this law?
The following are considered a “regulated entity” under this law:

Adult day health care facility
Substance abuse/addiction treatment facility
Behavioral health services provider
Ambulatory surgery center
Case management facility
Urine drug screening facility
Mobile cholesterol screening facility
End stage renal disease facility
Supplier of portable X-ray services
Home health agency
Hospice
Hospital
Nursing home
Rural health clinic
ICF/DD facility
Outpatient abortion facility
Psychiatric residential treatment facility
Children’s respite care center
Pediatric day health care facility
A federally qualified health center as defined in R.S. 40:1185.3
A pharmacy permitted in accordance with Part IV of Chapter 14 of Title 37 of the Louisiana Revised Statutes of 1950
Any office of a healthcare provider at which five or more healthcare professionals, as defined in R.S. 14:34.8(B), treat patients and such office is not otherwise licensed by the state but provides healthcare services
Any other healthcare provider licensed or certified by the Louisiana Department of Health

What is required under this law?

1) Each regulated entity shall display at its premises at least one sign that indicates that abuse of or workplace violence against healthcare staff will not be tolerated and could result in a felony conviction under applicable laws.
This sign must be posted in a conspicuous location in a publicly accessible area of the regulated entity’s facility.

The sign shall be at least 18 inches tall by 18 inches wide and written in English language letters not less than one square inch in size.

Download a sample sign here.

2) Each regulated entity shall develop and maintain a comprehensive workplace violence prevention plan.

3) Each regulated entity shall report to the proper authority, as required by the entity’s workplace violence prevention plan, any instance of workplace violence that occurs on its property.

If an instance of workplace violence at a regulated entity’s facility results in injury, involves the use of a firearm or other dangerous weapon, or presents an urgent or emergent threat to the welfare, health, or safety of facility personnel, the regulated entity shall report the incident within twenty-four hours.

4) No regulated entity can take any retaliatory action against a person who, in good faith, reports an allegation of or an instance of workplace violence.

Are there other available resources?

Yes. This law requires the Louisiana Department of Health (LDH) to include information on its website regarding healthcare workplace violence.

In accordance with this law, the LDH launched a workplace violence prevention page. Click here to visit their website.
Some of the information you will find here are:

The full text of Act No. 461
a listing of resources on the issue of healthcare workplace violence
actions healthcare facilities can take to prevent, respond to, and mitigate healthcare violence
a checklist of items that healthcare facilities should consider when developing a workplace violence prevention plan

Act No. 129

This new law imposes enhanced penalties for the assault or battery of emergency room personnel, emergency services personnel, or a healthcare professional. Under the new law, battery or assault of any healthcare personnel is a felony.

This law also expands the prior definition of “healthcare professional” to include nearly all staff of a healthcare facility.

Finally, Act No. 129 creates a new criminal offense: the crime of unlawful disruption of the operation of a healthcare facility.

To read the full text of this law, click here.

Massachusetts

Paid Family and Medical Leave (PFML)

The PFML mandate creates an insurance program that will be administered by the MA Department of Family and Medical Leave. This program will be funded through payroll contributions made by employers and covered individuals.

Starting January 1, 2021, the PFML will require employers to provide eligible employees with up to 26 weeks of paid, job-protected family and medical leaves of absence.

HERE ARE THE KEY COMPONENTS TO THIS NEW LAW:

Financial Contributions

As of July 1, 2019, all employers will be required to start making financial contributions to support the program. The initial rate is 0.63% of each employee’s wages on the first $132,900 of an individual’s annual gross earnings. The gross earnings threshold may be adjusted annually.

For more information about these contributions, particularly as it relates to contracted workers, please click here to visit a published toolkit for employers.

Private Plan Exemption

Employers already providing paid leave benefits that are as generous as the benefits provided by the PFML law can apply for an annual exemption through the MassTaxConnect portal beginning April 29, 2019.

Mandatory Quarterly Reporting

Starting October 2019, employers are required to begin providing quarterly reports through MassTaxConnect. Employers are expected to provide information that includes the name, social security number, and wages paid or other earnings for each employee and contracted service provider.

Notification to Workers

All employees and contractors must be notified of their PFML benefits. Employers may accomplish this by doing all of the following:

Displaying the mandatory workplace poster at each of their MA locations. Click here for the mandatory poster.
On or before May 31, 2019, provide written notice to their current employees and contractors of PFML benefits, contribution rates, and other provisions.
Provide written notice to new hires within 30-days of their first day of employment.
Provide written notice to contractors upon entering into a contract for services.

Click here for an employee notice provided by the Department of Family and Medical Leave (DFML).

Click here for a contractor notice provided by the Department of Family and Medical Leave (DFML).

Actions to Take Now

1) Set up a MassTaxConnect account.

2) Determine whether or not you can apply for exemption and immediately do so when the portal is available on April 29, 2019.

3) Begin taking appropriate deductions from payroll by July 1, 2019.

4) Provide all appropriate notices as required.

5) Update policy manuals to include leave available under PFML before leave can be taken beginning January 2021.

NOTE: For all current clients in 2020, we will ensure all MA policy manuals are updated appropriately.

Maryland

MD Wage Transparency Law

Beginning October 1, 2024, Maryland employers must disclose in each public or internal posting for each position the wage range and a general description of benefits and any other compensation offered for the position.

The above is an expansion of the state’s Equal Pay for Equal Work Act, which requires such disclosure only to job applicants who specifically request it. As of October 1, this information must be provided (or included) in all job postings.

Which employers does this apply to?

Employer is defined as “a person engaged in a business, industry, profession, trade, or other enterprise in the State.” Thus, all employers regardless of size must comply.

Have more questions?

The Maryland.gov website has put together a comprehensive FAQs page containing 19 different questions and answers. We recommend you visit their web page to gain a better understanding of what’s required going forward. You may click here to access this website.

The information contained within this website includes a form employers can use to comply with the new law. We recommend using this form. For quick access of this form, click here.

Want to read the entire legislation that was enacted?

Yes, click here for the full text of the bill.

Minnesota

MN Wage Transparency Law

Beginning January 1, 2025, most employers must “disclose in each posting for each job opening with the employer the starting salary range, and a general description of all of the benefits and other compensation, including but not limited to any health or retirement benefits, to be offered to a hired job applicant.”

Following is some additional information about this new law, as outlined in MN Statute 181.173.

Who does this apply to?

All employers with 30 or more employees at one or more sites in MN.

What is the definition of a job posting?

A job posting means “any solicitation intended to recruit job applicants for a specific available position, including recruitment done directly by an employer or indirectly through a third party, and includes any postings made electronically or via printed hard copy, that includes qualifications for desired applicants.”

What is the definition of salary range?

Salary range means “the minimum and maximum annual salary or hourly range of compensation, based on the employer’s good faith estimate, for a job opportunity of the employer at the time of the posting of an advertisement for such opportunity.”

What if an employer does not have, or does not want to offer, a salary range?

“An employer that does not plan to offer a salary range for a position must list a fixed pay rate. A salary range may not be open ended.”

Is there any additional information on this new law that I can review?

As of the writing of this Alert, no additional information has been provided by MN regarding this new law.

Are there penalties for noncompliance?

As it stands, the law does not specify how it will be enforced or list any potential penalties. Generally, however, under Chapter 181 of the Minnesota Statutes, an individual can bring a claim with the Minnesota Department of Labor and Industry or the state Attorney General can enforce a violation of the law. Further, certain statutes under this Chapter allow for a civil private right of action. In terms of potential damages or penalties, generally, an employer found to have violated one of the Chapter 181 statutes may be liable for compensatory damages and other appropriate relief, including but not limited to, injunctive relief.

Minimum Wage Rates

MN law requires employers to display required workplace posters in a location where employees can easily see them. We recommend printing and posting this updated notice as soon a possible.

To help employers comply, please click here to download the poster in English.

For other languages, such as Spanish, please visit their website by clicking here.

New Wage Theft Act

Wage theft occurs when employers do not pay their workers what is owed them for the work they have performed. It’s estimated up to 40,000 Minnesota workers pursue complaints of wage theft each year because they have been denied a fair day’s pay for a fair day’s work.

Legislation was passed in May 2019 that will invest $3.1 million in new funding over the next two years for the enforcement of the state’s wage and hour laws by the Department of Labor and Industry (DLI). The new Minnesota Wage Theft law will create additional protections for workers, including adding criminal penalties for employers who commit wage theft.

Click here to read the full text of the bill.

Click here to read a summary of the bill.

Click here to read a document detailing specific employer guidance on complying with the new law.

Here is a link to a DLI FAQ page regarding the new bill: https://www.dli.mn.gov/business/employment-practices/wage-theft-qa

Notice Requirement

All employers must provide each employee with a written notice at the start of their employment and keep a signed copy of the notice on file. The notice must contain required information about an employee’s employment status and terms of employment. The notice must include a statement, in multiple languages, that informs employees they may request the notice be provided to them in another language. DLI has provided some translations of this statement on the employee notice example. Employers may use the example notice or create their own.

Click here for the sample notice [Note: this form is now included on the New HR Director program in the “New Hire” section of forms.]

Please visit the following link for this form in other languages: https://www.dli.mn.gov/business/employment-practices/employee-notice

Earnings Statements (Paystub) Requirement

The new law requires the following additional information be included on the earnings statements provided to employees each pay period:

Name of the employee.
Total hours worked by the employee in the pay period.
Employee’s rate or rates of pay and basis thereof, including whether the employee is paid by the hour, shift, day, week, salary, piece, commission or other method (New).
Allowances claimed for permitted meals and lodging (New).
Total amount of gross pay earned by employee in the pay period.
Net amount of pay after all deductions are made.
List of deductions made from the employee’s pay.
Date pay period ended.
Employer’s legal and operating name.
Employer’s telephone contact (New).
Physical address of employer’s main office or principal place of business and a mailing address, if different (New).

Recordkeeping Requirement

Under existing law, employers are required to keep various records for three years. It is in the employer’s interest to maintain complete and accurate records that can be used to demonstrate an employer’s compliance with state wage and hour laws. The new law requires the following additional records be kept by an employer:

Each employee’s name, address and occupation.
Each employee’s rate of pay and the amount paid each pay period.
Each employee’s hours worked each day and each workweek, including, for all employees paid at piece rate, the number of pieces completed at each piece rate (New).
A list of personnel policies with brief descriptions of each policy that were provided to each employee, including the date the policies were given to the employee (New).
A copy of the new notice that is required to be provided to and signed by each employee at the start of employment and a copy of any written changes to the notice that were provided to each employee (New).
For each employer subject to Minn. Stat. §§ 177.41 to 177.44 (Minnesota Prevailing Wage Act), and while performing work on public works projects funded in whole or in part with state funds, the employer shall furnish under oath signed by an owner or officer of an employer to the contracting authority and the project owner every two weeks, a certified payroll report with respect to the wages and benefits paid each employee during the preceding weeks specifying for each employee: name; identifying number; prevailing wage master job classification; hours worked each day; total hours; rate of pay; gross amount earned; each deduction for taxes; total deductions; net pay for week; dollars contributed per hour for each benefit, including name and address of administrator; benefit account number; and telephone number for health and welfare, vacation or holiday, apprenticeship training, pension and other benefit programs.
Other information the commissioner finds necessary and appropriate to enforce Minn. Stat. §§ 177.21 to 177.435.

These and other records that are required to be kept by an employer must be available for inspection by the commissioner upon demand. The records must be either kept at the place where employees are working or kept in a manner that allows the employer to comply with the commissioner’s demand within 72 hours (New).

If records maintained by the employer do not provide sufficient information to determine the exact amount of back wages due, the commissioner may make a determination of wages due based on available evidence (New).

Wages and Commissions Payment Requirement

Employers must pay all wages, including salary, earnings and gratuities earned by an employee at least once every 31 days and all commissions earned by an employee at least once every three months on a regular payday.

The new Wage Theft Law further clarifies that Minn. Stat. § 181.101 provides a substantive right to the payment of commissions and wages, at the employee’s rate or rates of pay or the rate or rates required by law, whichever is greater, as well as the right to be paid wages and commissions earned on a regular payday.

New Jersey

New Posters and Annual Notice Requirements for NJ

The New Jersey Division on Civil Rights (DCR) has issued new regulations regarding poster and notice requirements, which require action by NJ employers by the end of this year. Here are the details:

Two Newly Revised Required Posters

The first poster applies to all employers, and it’s for the NJ Law Against Discrimination (NJLAD), referred to as “Employment Poster.” There are several versions of the poster depending on the type of business an employer has, and NJ has put together a flowchart to help employers with this requirement. Please click here to view all flowcharts on these posting requirements.

Click here for the Non-Medical Facilities’ NJLAD poster.

Click here for one of the Medical Facilities’ NJLAD poster. NOTE: this is for Licensed Professional Facilities including doctor’s and dentists’ offices, pharmacies, clinics, acupuncturist office, and therapy offices.

For other versions of the NJLAD poster, click here to visit their website.

This poster must be prominently displayed “in places easily visible to all employees and applicants for employment.”

The Second poster applies to all employers with 30 or more employees, and it’s for the NJ Family Leave Act, referred to as NJFLA. Unlike the first poster, there is one poster for all businesses that are covered.

Click here for the NJFLA poster.

This poster must be prominently displayed “in places easily visible to all employees.”

Special requirement for printing: Both posters “shall be printed on no smaller than letter size paper (8½ by 11 inches) and contain text that is fully legible and large enough to be easily read.”

Internet or Intranet Sites: “In the event that an employer has an internet site or intranet site for use by its employees to which all employees have access and the employer customarily posts notices to affected employees or other affected individuals electronically on the site, posting of the official [NJLAD and NJFLA] poster[s] on the employer’s internet site or intranet site shall satisfy the conspicuous posting requirement set forth.”

Annual Notice Distribution

Employers must not only post, but also distribute, copies of the posters to each employee (1) annually, on or before December 31 of each year, and (2) upon the first request of an employee.

An employer can satisfy these distribution requirements (1) by email delivery; (2) through printed material, including, but not limited to, paycheck inserts, a brochure or similar informational packet provided to new hires, an attachment to an employee manual or policy book, or a flyer distributed at an employee meeting; or (3) through an internet or intranet website, if the site is for the use of all employees, can be accessed by all employees, and the employer provides notice to the employees of its posting.

Next Steps/Additional Resources

All NJ employers should post these new posters physically, electronically, or both by the end of 2022 as well as distribute them to employees. Thereafter, distribute these annually.

This may be a good time to ensure all posters are up to date. Click here for the federal poster requirements. Click here for the NJ poster requirements.

For additional information on the new posters, including an FAQ document, visit the following website: https://www.njoag.gov/about/divisions-and-offices/division-on-civil-rights-home/division-on-civil-rights-resources/required-posters/

New York

NY Hero Act Now in Effect

We recently alerted you about the New York “Hero Act” and the Airborne Infectious Disease Exposure Plan requirements. This email is simply a reminder that action is required on your part.

Here is additional information:

On September 6th 2021, Gov. Hochul triggered the NY “Hero Act”, after the Commissioner of Health designated COVID-19 as a highly contagious communicable disease. This rule requires you to establish a written policy in your manual, outlining your protocols for handling this airborne infectious disease.

We have created a comprehensive policy for you based on the NY requirements and recommendations: “Airborne Infectious Disease Exposure Plan.” This policy requires action on your part. There are several areas where you need to add specific persons and details relevant to your business.

Instructions:

Go to www.bentericksen.com and log into the HR Director.
When prompted, click the link to view/accept the update.
Click Accept on the policy “Airborne Infectious Disease Exposure Plan”
In the final popup, click “Make Additional Policy Changes”
You will be taken to the Policy Editor. Scroll down to the category “Keeping You Safe On The Job”.
Find the new Airborne Infectious Disease Exposure Plan policy and click Edit.
Review the policy carefully and thoroughly. You will see areas with prompts for you to fill in.
When finished, click Save
If you are finished with all of your edits, please send us a quick email to hrsupport@bentericksen.com that your policy is ready for final review.
One of our team members will review your edits ASAP.
If you have any questions, please contact us at the email above or our main number: (800) 679-2760.

Note: if you choose not to implement the update at this time you can still access other resources, such as Forms and Job Descriptions. However, your current policy manual will not be accessible until you implement the update.

Anti-Discrimination and Harassment Prevention Law

In August of this year, the New York State Governor signed an omnibus bill. This new law has the following requirements:

Expansion of the New York State Human Rights Law (NYSHRL)

All private sector employers are subject to the antidiscrimination provisions of the NYSHRL.

The prohibition against unlawful discrimination based upon each of the protected categories identified in the NYSHRL extends to nonemployees.

The NYSHRL will permit the prevailing claimant to recover both attorneys’ fees and punitive damages from private employers.

The NYSHRL shall be construed “liberally for the accomplishment of the remedial purposes thereof, regardless of whether federal civil rights laws, including those laws with provisions worded comparably to the provisions of this article, have been so construed,” and exceptions and exemptions “shall be construed narrowly in order to maximize deterrence of discriminatory conduct.”

Annual Sexual Harassment Notice

Upon hire and at every annual sexual harassment prevention training program, employers must provide employees a notice containing the “employer’s sexual harassment prevention policy and the information presented at such employer’s sexual harassment prevention training program” (in English and in the primary language of the employee).

Greater Protections for Harassment Complaints

Harassment will be considered “an unlawful discriminatory practice when it subjects an individual to inferior terms, conditions or privileges of employment” because of his or her protected characteristics. Employers will have a seemingly narrow affirmative defense to liability if “the harassing conduct does not rise above the level of what a reasonable victim of discrimination with the same protected characteristic would consider petty slights or trivial inconveniences.” “The fact that such individual did not make a complaint about the harassment to [his or her] employer… shall not be determinative of whether” such employer is liable.

Claims by domestic workers will be subject to the same standard.

Sexual harassment complaints filed directly with the NYSDHR must be filed within three years (previously one year) after the alleged harassment.

Restrictions on Nondisclosure and Arbitration Agreements

Employers will be prohibited from requiring nondisclosure clauses in any settlement, agreement, or other resolution of any claim where the factual foundation for which involves discrimination, including but not limited to under the NYSHRL, unless the condition of confidentiality is the complainant’s or plaintiff’s preference. Any nondisclosure term or condition must be provided in writing to all parties in plain English and, if applicable, the primary language of the complainant, after which he or she will have 21 days to consider such term or condition and 7 days to revoke the acceptance after execution of such agreement.

Any nondisclosure term or condition will “be void to the extent that it prohibits or otherwise restricts the complainant from: (i) initiating, testifying, assisting, complying with a subpoena from or participating in any manner with an investigation conducted by the appropriate local, state, or federal agency; or (ii) filing or disclosing any facts necessary to receive unemployment insurance, Medicaid, or other public benefits to which the complainant is entitled.”

Employers will be prohibited from requiring employees to sign agreements that require mandatory binding arbitration of claims relating to any form of discrimination.

Any agreement entered into on or after January 1, 2020,“that prevents the disclosure of factual information related to any future claim of discrimination is void and unenforceable, unless such provision notifies the employee or potential employee that it does not prohibit him or her from speaking with law enforcement,” the Equal Employment Opportunity Commission, the New York State Division of Human Rights, “a local commission on human rights, or an attorney retained by the employee or potential employee.”

Additional Information

Click here to read the text of the bill.

Sexual Harassment Prevention Law

Earlier this year, the New York State Governor signed the state budget bill which contained a new law regarding harassment prevention. This new law has several parts, as described below, and is applicable to all employers.

While this law passed months ago and went into effect as of October 9th, New York did not issue the required information for implementation until late last week. Since then, we have worked hard to pull the information together and get it to you as quickly as possible. We appreciate your patience.

Part 1: Harassment Prevention Policy

All employers must provide employees with an anti-harassment policy as well as a complaint form that employees can (but are not required to) use to submit concerns. Employees may receive the policy either in writing or electronically. If the policy is provided electronically, your employees must be able to print a copy for their own records. You must issue this policy to all current employees immediately. For any future hires, this policy should be given immediately upon hire.

Part 2: New Mandatory Training

By October 9, 2019, all employees must be provided with anti-harassment training. Once all current employees have been trained, all newly hired employees should be trained in the same manner immediately.

Part 3: New Poster (Optional)

This poster, which is an optional tool, is one way to direct people to your harassment prevention policy and should be displayed in a highly visible place.

Part 4: Restrictions on NonDisclosure Agreements and Arbitration Provisions

No action on your part for this unless you have any nondisclosure agreements or arbitration provisions implemented at your business that must now be reconsidered. Given the nature of these, please contact an attorney for compliance corrections.

Additional Information:

For a “Toolkit” on these new requirements, please click here. For additional information, please visit: https://www.ny.gov/programs/combating-sexual-harassment-workplace

Oregon

Oregon Paid Leave

Paid Leave Oregon applies to all employers regardless of size. The part that applies only to employers with 25 or more employees is in regards to employer contributions. All employees have to contribute to the program. For employers with 25 or more employees, both the employer and the employee have to contribute to the program.

New Law Begins 2023: Important Deadlines and Information

Back in 2019, Oregon passed a law requiring employers to provide paid family leave benefits to their employees. The program itself will be run through a state agency called Paid Leave Oregon and is set to begin January 2023. Please read below for important requirements and deadlines regarding this new law.

Paid Leave Oregon is funded through payroll taxes and provides paid time off to employees for the following reasons:

Birth of a child
Bonding with a child
To care for a family member with a serious illness or injury
To care for yourself when you have a serious illness or injury
For situations involving sexual assault, domestic violence, harassment, or stalking

Payroll Tax Contributions: As mentioned, Paid Leave Oregon is funded through payroll taxes. Employees pay 60% of the contribution, while employers with 25 or more employees pay 40% of the contribution rate. The contribution rate for 2023 is 1%.

For example, if your business has more than 25 employees and pays $1 million in payroll, your business would pay $10,000 into Paid Leave Oregon each year. Of that amount, $6,000 would come from employees’ earnings and $4,000 from the employer.

This must begin on January 1, 2023. If you are using an outside payroll company, please contact them to ensure this will be managed properly. If you manage payroll in-house, after taking the required deductions, you may make contribution payments through this platform.

Post and Distribute Model Notice: The model notice must be physically posted in a conspicuous location at each Oregon work site (for example, in the employee breakroom with other required postings) and must be provided electronically or by mail to any remote workers in Oregon.

Please click here for the form in English. For other languages, click here.

This must be done by January 1, 2023.

Access to Paid Leave Benefits: Employees may apply for paid leave through Paid Leave Oregon beginning September 3, 2023. This leave, with few exceptions, is job- protected. Please review the new policy for more details once it’s issued, or contact us to speak with an HR Specialist.

Additional Resources: For additional resources, including an “Employer Toolkit” that is a “quick start” to better understanding your responsibilities with lots of information to download as well as important links, click here.

To download a detailed “Employer Guidebook,” click here.

Please also visit: https://paidleave.oregon.gov

Washington

Wage Scale/Salary Range Requirements in Job Postings

Beginning January 1, 2023, most employers must disclose wage scales or salary ranges, benefit information, and other compensation in any “posting” for a job opening.

Following is detailed information about this new rule, as outlined in the Administrative Policy for the Equal Pay and Opportunities Act.

Who does this apply to?

All employers, with 15 or more employees, engaging in any business, industry, profession, or activity in Washington.

The “15 or more employees” threshold includes employees that do not have a physical presence in Washington, if the employer has one or more Washington-based employees.

“Engaging in any business, industry, profession, or activity in Washington” includes employers that do not have a physical presence in Washington, but engage in business in Washington or recruit for jobs that could be filled by a Washington-based employee.

Employers must disclose a wage scale or salary range and a general description of benefits and other compensation on postings for remote work that could be performed by a Washington-based employee. For factors used to determine whether an employee is Washington-based, see ES.A.13, “Minimum Wage Act- Washington Based Employee.” An employer cannot avoid disclosing wage and salary information requirements by indicating within a posting that the employer will not accept Washington applicants.

Employers do not need to disclose wage and salary information for jobs to be performed entirely outside of Washington even if the job posting reaches applicants who would fill the position as a Washington-based employee. This out-of-state exception must be applied narrowly, on a case-by-case basis. The out-of-state exception applies to jobs tied to worksites physically located entirely outside of Washington, for example, waitstaff at restaurant locations in other states.

Employers do not need to disclose wage and salary information in printed hard copy postings made and distributed entirely outside of Washington.

What is a job posting?

A “posting” means any solicitation intended to recruit job applicants for a specific available position, including recruitment done directly by an employer or indirectly through a third-party, and includes any postings done electronically, or with a printed hard copy, that includes qualifications for desired applicants.

Job postings must include wage and salary information when the posting includes qualifications for desired applicants of a specific position. Qualifications are, but are not limited to, specific knowledge, skills, or abilities requested of the applicant for suitability of the position.

Not a job posting: A window sign that reads “Help Wanted.”

A job posting: A social media post that reads, “Seeking applicants for a Billing Specialist position. Must have 2 years of medical bill processing experience. $30.00-$40.00 per hour, medical, vision, and dental benefits, 401k retirement plan, and stock options available. More information can be found via hyperlink here.”

Internal postings = job postings.

NOTE: Employers must provide an employee who is offered an internal transfer or promotion with the wage scale or salary range of their new position, if they request that information.

Who is considered an applicant?

All applicants, including existing employees, who apply to a posting recruiting Washington-based employees, including employers who may not have a physical presence or employee in Washington State, are protected by the law.

A person is only considered an “applicant” for the specific posting(s) they applied for, not for every available job of the employer.

If a person is offered a position that is different than the position applied for, the employer should disclose wage and salary information by providing a copy of the compliant posting for the position offered.

What information must be disclosed on the job posting?

For detailed information on the job postings rules, click here.

Should I keep copies of the job postings?

Yes, these records should be kept a minimum of 3 years.

Are there penalties for noncompliance?

Yes.

Civil penalty:

For a first violation, up to $500
For a repeat violation, up to $1000 or 10% of the damages, whichever is greater

A violation as to each affected employee constitutes a separate violation.

Private Right of Action:

Actual damages; statutory damages equal to the actual damages or $5000, whichever is greater; interest 1% per month on all compensation owed
Costs and reasonable attorneys’ fees.
The court may also order reinstatement and injunctive relief.
Statute of Limitations: 3 years from the date of the alleged violation
Recovery of any wages and interest must be calculated from the first date wages were owed to the employee.

Washington D.C.

D.C. Wage Transparency Law

Beginning on June 30, 2024 most employers must “provide the minimum and maximum projected salary or hourly pay in all job listings and position descriptions advertised.”

The above is just one of several new requirements for employers in D.C. Following is detailed information about this new law, as outlined in D.C. Act 25-367.

Who does this apply to?

All employers with 1 or more employees in the District. The new law only excludes the District and Federal Governments.

Does this apply to internal job postings?

Yes, any posting advertising for an open position must include the projected salary or hourly pay.

What does “minimum and maximum projected salary or hourly pay” mean?

“In stating the minimum and maximum salary or hourly pay for the position, the range shall extend from the lowest to the highest salary or hourly pay that the employer in good faith believes at the time of the posting it would pay for the advertised job, promotion, or transfer opportunity.”

Do I have to disclose anything else?

Yes, employers must “disclose to prospective employees the existence of healthcare benefits that employees may receive before the first interview.” Should an employer not provide disclosures as required, “a prospective employee may inquire about such disclosures.”

Can I ask a candidate for an open position about their wage history?

No. Under the new law, employers cannot “screen prospective employees based on their wage history, including by requiring that a prospective employee’s wage history satisfy minimum or maximum criteria or by requesting or requiring as a condition of being interviewed or as a condition of continuing to be considered for an offer of employment that a prospective employee disclose the prospective employee’s wage history.”

Can I ask a potential employee’s previous employer about their wage history?

No. Under the new law, employers cannot “seek the wage history of a prospective employee from a person who previously employed the individual.”

Am I required to let employees know about this new law?

Yes, “an employer shall post a notice in its workplace notifying employees of their rights under this act. The notice shall be posted in a conspicuous place in at least one location where employees congregate.”

Are there penalties for noncompliance?

Yes. The Attorney General, acting in the public interest, including the need to deter future violations, may bring a civil action in a court of competent jurisdiction against an employer or other person violating this act for restitution or for injunctive, compensatory, or other authorized relief for any individual or for the public at large. Upon prevailing in court, the Attorney General shall be entitled to:

A. Reasonable attorneys’ fees and costs; and

B. Statutory penalties equal to any administrative penalties provided by law.

D.C. Transportation Benefits

Earlier today, we issued an HR Director program update for our D.C. clients. This Compliance Alert is to supplement the update release.

Covered Employers: The new HR Director policy as well as this Alert applies only to D.C. employers with 20 or more employees. If you do not have 20+ employees, you may stop reading and disregard this Alert.

For employers with 20+ employees, D.C. passed the District of Columbia’s Transportation Benefits Equity Amendment Act of 2020, also known as the “Parking Cash Out Law,” earlier this year. The deadline of which is fast approaching – January 15, 2023, or by the end of your parking lease, whichever is later. As a result of this law, we have added a Transportation Benefits policy to your HR Director account.

You may be exempt from adopting the Transportation Benefits policy. Please click here for the exemption criteria. If you are exempt, please send us an email to hrsupport@bentericksen.com and notify us of your exemption status. We will disable this policy from your manual.

If you are not exempt from adopting this policy…

Do you provide a “parking benefit” to your employees?

According to the new law, “parking benefit means personal motor vehicle parking, on or within 0.5 miles of the business premises and located in the District, offered to an employee, in addition to compensation, either directly by the employer or through an employer subsidy, for which the employee pays nothing or less than market value. The term “parking benefit” does not include parking that is offered to an employee who is required to use a personal motor vehicle in the regular performance of their work.”

If no, please skip to the bottom section called Required Reporting.

If yes, you have two choices going forward:

Choice #1: review the Transportation Benefits policy in the HR Director and choose your desired option. Send us an email to hrsupport@bentericksen.com and notify us of the option you have selected. We will modify your policy accordingly.
Choice #2: Discontinue your parking benefit. By discontinuing free or subsidized parking, you remove the criteria that requires you to implement one of the options found in the Transportation Benefits policy, hence qualifying you for an exemption. If this is your chosen path, please send us an email to hrsupport@bentericksen.com and notify us of your decision to discontinue parking benefits and be considered exempt from adopting the policy. We will disable this policy from your manual.

Required Reporting: All DC employers with 20+ employees must report their compliance or exemption status to District Department of Transportation (DDOT) by January 15, 2023, and every two years thereafter. Covered employers electing to implement a “Transportation Demand Management Plan” (TDM) must also submit a commuter survey report starting on January 15, 2023, and every year thereafter.

For more information on this law, including using a reporting portal, templates or toolkits, please visit https://godcgo.com/everything-you-need-to-know-about-the-dc-parking-cashout-law/

Notice to Employee re Paid Family Leave

Starting February 1, 2020, District of Columbia employers must notify employees about their right to paid leave under the DC Paid Family Leave Act (PFLA).

Employers must post an official notice in all locations where covered employees work. If an employer has covered employees working remotely, it must send them copies of the notice so they can post it in their own workspaces.

Employers must also give employees copies of the notice at three other points:

to each new employee when hired (after January 31, 2020);
once a year every year from that point forward; and
whenever an employee asks for potentially covered leave.

Click here for the posting/notice provided by the D.C. Department of Employment Services.

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