DOL Publishes “AI & Inclusive Hiring Framework” Website

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September 24, 2024

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  • DOL’s AI Framework provides employers with resources to consider when implementing AI systems in the workplace, designed to reduce the risks of creating unintentional forms of discrimination and barriers to accessibility as they implement AI hiring technology.

Discussion:

On September 24, 2024, the U.S. Department of Labor (DOL) announced publication of its “AI & Inclusive Hiring Framework” website, described as “a new tool designed to support the inclusive use of artificial intelligence in employers’ hiring technology and increase benefits to disabled job seekers.” This publication comes in conjunction with the DOL’s recent guidance for employers and AI developers in designing and implementing AI systems in the workplace.

 

The Framework’s consists of ten focus areas: (1) identify legal requirements; (2) establish staff roles; (3) inventory technology; (4) work with vendors; (5) assess impacts; (6) provide accommodations; (7) use explainable AI; (8) ensure human oversight; (9) manage incidents; and (10) monitor regularly. The DOL emphasizes throughout the Framework, as well as the DOL’s prior AI guidance, the importance of human oversight and use of AI in an ethical and transparent manner that employees and applicants can understand.

 

The Framework provides employers with resources to consider when implementing AI systems in the workplace, which are designed to reduce the risks of creating unintentional forms of discrimination and barriers to accessibility as they implement AI hiring technology. This includes a compilation of blogs, toolkits, podcasts, and newsletters, related to each of the ten focus areas.

 

Action Items

  1. Review current AI practices in the workplace and assess impact of AI systems on employees and applicants.
  2. Consult legal counsel on best practices for implementation and use of AI systems.
  3. Monitor legal developments as state and federal agencies issue regulations on the use of AI systems.

  

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2024 ManagEase

OSHA Publishes Proposed Rule for Indoor and Outdoor Heat Illness Prevention

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  • OSHA publishes proposed rule for Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings.
  • OSHA is requesting comments until December 30, 2024.

Discussion:

On August 30, 2024, the Occupational Safety and Health Administration (OSHA) published a Notice of Proposed Rulemaking for Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings. An initial preview of the proposed rule as provided to the Office of the Federal Register was issued in July. The now-published proposed rule contains much of the requirements initially seen in July but has extensive research regarding the health effects of various heat illnesses on workers and their effects on particular industries and specific parts of the country. A summary of the proposed requirements is below.

 

Applicability. The proposed rule would apply to all employers subject to OSHA’s jurisdiction and includes general industries as well as those employers in construction, maritime, and agriculture. It applies to both indoor and outdoor work. Telework activities conducted at an employee’s home are excluded.

 

Heat Triggers. The initial heat trigger is a heat index of 80° F which requires a specific set of controls and obligations. A high heat trigger is a heat index of 90° F requiring additional controls.

 

Heat Injury and Illness Prevention Plan. The proposed rule requires the development and implementation of a work site heat injury and illness prevention plan (HIIPP). It must be in writing for employers with 10 or more employees. A work site is a physical location where the employer’s work or operations are performed. A HIIPP is required for each work site but if there are work sites that are substantially similar, then the HIIPP can be developed by work site type.

 

The HIIPP must include: (1) a list of the types of work activities covered; (2) policies and procedures required to comply with the final rule; (3) identification of the heat metric used to monitor heat conditions; (4) how to evaluate heat stress hazards from clothing that is vapor-impermeable; (5) designation of one or more heat safety coordinators to implement and monitor the HIIPP; (6) input and involvement of non-managerial employees and their representatives; (7) and review of the effectiveness of the HIIPP whenever a heat-related illness or injury occurs. The HIIPP must be available at the work site to all employees and in a language each employee, supervisor, and heat safety coordinator understands.

 

Identifying Heat Hazards. Employers with outdoor work sites must monitor heat conditions at outdoor work areas by tracking local heat index forecasts or measuring the heat metric of their choosing. Employers must also review indoor work sites to identify work areas where there is a reasonable expectation that employees are or may be exposed to heat at or above the initial heat trigger and implement a plan for monitoring these areas to determine when exposures above the initial and high heat triggers occur, using the heat metric of their choosing. Employers would be required to develop a monitoring plan that covers each work area they identified in the prior step. Employers need to involve non-managerial employees in the determination of which work areas have a reasonable expectation of exposing employees to heat at or above the initial heat trigger and to develop and update the monitoring plan.

 

Requirements at or Above the Initial Heat Trigger. Exposures at or above the initial heat trigger, a heat index of 80° F, would require the employer to provide the following protections: (1) access to suitably cool, potable water that is placed in locations readily accessible to employees (with optional electrolyte supplemental packets); (2) provide one or more employee break areas at outdoor work sites that can accommodate the number of employees on break, is readily accessible to the work area(s) and has either shade or air-conditioning if in an enclosed space; (3) at indoor work sites, the break area(s) must be air-conditioned or have a combination of increased air movement and, if appropriate, de-humidification; (4) indoor work areas would be required to be equipped with a combination of increased air movement and, if appropriate, de-humidification; (5) when ambient temperatures exceed 102 °F, employers using fans to comply with indoor heat controls would be required to evaluate the humidity levels at the work site and discontinue the use of fans if the employer determines that fan use is harmful; (6) employers implement one of two options for an acclimatization protocol for new and returning employees during their first week on the job; (7) allow and encourage employees to take paid rest breaks if needed to prevent overheating; (8) maintain effective, two-way communication with employees and regularly communicate with employees; and (9) maintain the cooling properties of cooling PPE if provided to employees.

 

Requirements at or Above the High Heat Trigger. Exposures at or above the high heat trigger, a heat index of 90° F would require the employer to provide the following protections in addition to those required at the initial heat trigger: (1) a minimum of a 15-minute rest break every two hours; (2) observing employees for signs and symptoms of heat-related illness including, but not limited to headache, nausea, weakness, dizziness, elevated body temperature, muscle cramps, and muscle pain or spasms; (3) issue a hazard alert to employees prior to a work shift or when employees are exposed to heat at or above the high heat trigger; (4) place warning signs at indoor work areas with ambient temperatures that regularly exceed 120 °F; (5) develop and implement a heat emergency response plan as part of the HIIPP; and (6) train employees on heat-related illness prevention.

 

Recordkeeping. Retain on-site temperature measurements for a minimum of six months. This applies to indoor work areas only because employers cannot accurately rely on weather forecasting to predict and monitor temperatures in these areas like they can for outdoor work areas.

 

The effective date for the proposed rule is yet to be determined. OSHA has proposed an effective date of 60 days after the date of publication of the final rule in the Federal Register. Until then, OSHA is soliciting comments until December 30, 2024.

 

Action Items

  1. Review the proposed rule here.
  2. Provide comments on proposed rule here.
  3. Review current heat safety procedures for potential updates.

  

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2024 ManagEase

DOL Has Authority to Set Overtime Exemption Salary … For Now

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September 11, 2024

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  • The DOL has authority to set a minimum salary for the FLSA overtime exemption.

Discussion:

In Mayfield v. U.S. Dept. of Labor, the Fifth Circuit Court of Appeals said that the U.S. Department of Labor (DOL) has the authority to set the minimum salary threshold for overtime exempt employees under the Fair Labor Standards Act (FLSA). Interestingly, this case involved the 2019 DOL rule that increased the FLSA salary test under the Trump Administration; it is not in the context of the current 2024 DOL rule released under the Biden Administration. Nonetheless, it may yet have a lasting reach.

 

Here, the plaintiff claimed that the DOL does not have the authority to set a minimum salary for exempt workers. The court said that the 2019 DOL rule “falls within the Department’s explicitly delegated authority to define and delimit the terms of the Exemption,” but noted that the DOL’s authority “is not unbounded.” The DOL’s rule must still have a “rational relationship” to the text of the FLSA and cannot effectively change the statutory requirements.

 

There have now been five rulings among the different Circuit Courts stating that the DOL has authority to set a minimum salary level for exempt workers under the FLSA. This will likely go toward supporting the DOL’s authority in the multiple legal challenges currently pending on the 2024 DOL rule. However, the 2024 DOL rule is not out of the woods yet as there are multiple arguments on which the pending legal challenges are based. While we wait for more clarity on this issue, employers should continue preparing for the next exempt employee salary increase on January 1, 2025.

 

Action Items

  1. Review the current and upcoming minimum salary requirements for overtime exempt employees here.
  2. Review current job descriptions and salaries to determine whether to increase exempt salaries to meet the upcoming increase, or to reclassify employees as non-exempt.

 

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2024 ManagEase

New ADA Accommodations Tool for Employers!

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September 30, 2024

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  • Employers can use the AskJAN Situations and Solutions Finder for ideas on what types of accommodations can be provided to employees based on their disability, limitation, and/or occupation.

Discussion:

The U.S. Department of Labor (DOL) recently announced availability of a new tool that provides access to more than 700 accommodation ideas for workers with disabilities. The Americans with Disabilities Act requires employers with 15 or more employees to provide reasonable accommodations for disabled applicants and employees, when requested, unless doing so would cause an undue hardship. Employers must engage employees in the interactive process to determine what reasonable accommodations may be provided to meet an employee’s needs, which sometimes leaves employers wondering what their accommodation options are.

 

The Job Accommodation Network (JAN) now has a Situations and Solutions Finder with examples of workplace accommodations coming from organizations large and small, across industries, and from both the private and public sectors. The tool allows users to filter and save results by disability, limitation and/or occupation. Because accommodations are made on a case-by-case basis, these examples may not be effective for every individual or workplace but offer ideas about the types of accommodations that may be possible. Although a federally based tool, it can also support employer compliance with similar disability protections under state and local laws.

 

Interestingly, a survey of JAN data from employers between 2019 and 2024 finds nearly half of reported accommodations for workers with disabilities can be made at no cost and that the median cost for those that require a one-time expense is $300. Moreover, the benefits to employers of providing reasonable accommodations include retaining valuable employees, improving productivity and morale, reducing workers’ compensation and training costs, and improving company diversity. This new tool can help employers meet their compliance obligations and further their employee management goals.

 

Action Items

  1. Review the Situations and Solutions Finder for accommodation support.
  2. Review any decisions to decline a reasonable accommodation on the basis of undue hardship with legal counsel before taking action.

 

 

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2024 ManagEase

First Circuit: Massachusetts Law Properly Applied in Noncompete Jurisdiction Dispute

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September 26, 2024

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  • In DraftKings Inc. v. Hermalyn, the First Circuit Court of Appeals said that Massachusetts law was correctly applied in upholding a noncompete provision in an employment agreement, rather than the application of California law.
  • The defendant was unable to show that California’s “interest” in pursuing its policy was “materially greater” than Massachusetts’.

Discussion:

In DraftKings Inc. v. Hermalyn, the First Circuit Court of Appeals stated that Massachusetts law was correctly applied in upholding a noncompete provision in an employment agreement rather than the application of California law. Here, the defendant worked for DraftKings under an employment agreement which included a one-year noncompete clause. The employment agreement was governed by Massachusetts law. Eventually, the defendant quit his job with DraftKings and went to work in Los Angeles to work for DraftKings’ competitor Fanatics. DraftKings sued the defendant to enforce the noncompete. The defendant sought to have the noncompete voided under application of California law, while DraftKings sought enforcement under Massachusetts law.

 

Massachusetts generally allows noncompete agreements if they comply with certain restrictions, like a time limit of one-year. California generally bans noncompete agreements unless they fit within one of the few narrow exceptions, such as during a business sale or the breakup of a partnership. California applies its ban regardless of where and when the contract was signed and whether the employment was maintained outside of California. In reaching its ruling, the court looked at whether: (1) “application of” Massachusetts law “would be contrary to a fundamental policy of” California; (2) California “has a materially greater interest than” Massachusetts “in the determination of the … issue”; and (3) California is the state whose law would control “in the absence of an effective choice of law by the parties.” The court found the defendant could not satisfy the “materially-greater-interest” prong without looking at the other prongs.

 

In 2018, Massachusetts passed the Massachusetts Noncompetition Agreement Act (MNAA) which banned noncompete agreements for lower-level workers, limited them for higher level workers, and provided procedural protections to inform workers about the agreement they are signing. The court found that the legislative history of the MNAA showed that Massachusetts purposefully opted not to copy California’s near total ban on noncompete agreements. Therefore, the defendant was unable to show that California’s “interest” in pursuing its policy was “materially greater” than Massachusetts’. Since Massachusetts law controlled the noncompete agreement by its very terms, the noncompete provision was enforceable. This case highlights the importance of having legal counsel involved in reviewing, drafting, and enforcing noncompete agreements.

 

Action Items

  1. Have legal counsel review, draft, and enforce noncompete agreements.

 

 

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2024 ManagEase

Sixth Circuit: Plaintiffs Must Provide Specific Facts to Support Hostile Work Environment or Discrimination Claims

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January 30, 2024

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  • A plaintiff asserting a Title VII hostile work environment claim must allege that her “workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe and pervasive to alter the conditions of the victim’s employment and create an abusive working environment,” and that she is a member of a protected class and that “the harassment was based on race.”

Discussion:

In Ogbonna-McGruider v. Austin Peay State University, the Sixth Circuit of Appeals said a plaintiff failed to state specific facts to support her Title VII claims of hostile work environment and racial discrimination. Here, the plaintiff was an instructor hired to teach classes for the University. Fourteen years later, the University underwent organizational changes and the plaintiff’s department was split into two. She could either select a single department to join without faculty approval or get a joint appointment which required faculty review. Her request for joint appointment was rejected by the dean. After this rejection, the plaintiff attempted to select her own department which was denied. The plaintiff filed a complaint with the University’s Office of Equal Opportunity and Affirmative Action (Office) that the denials were due to racial discrimination. The Office agreed that the dean’s actions were wrong, but the university took no action. Ultimately, the plaintiff filed a complaint with the Equal Employment Opportunity Commission (EEOC) against the University and two supervisors alleging a hostile work environment.

 

In this first complaint, the plaintiff cited the following incidents as contributing to a hostile work environment: (1) the dean instructing her to move to a basement office; (2) being denied the opportunity to draft a grant proposal for a juvenile detention center in Tennessee after being assured in writing that she could participate; (3) the dean yelling at her in front of a white faculty member; (4) lack of a faculty evaluation for the 2019-2020 academic year and a subsequent follow-up Zoom meeting during which the Chair of the Department denigrated her teaching and research done with minority students and her teaching style overall; (5) low evaluation scores for the next two years; (6) the dean’s and Chair of the Department’s denial of her proposal to create a master’s program despite other professors’ support; (7) being replaced by a white adjunct professor for one of her classes during the fall 2020 semester; (8) being reassigned to teaching public management classes rather than political science classes due to lack of qualifications; (9) denial of an opportunity to teach summer semester; and (10) omission from the University’s College of Behavioral & Health Sciences’ year-end report of presentations and research completed by faculty members. Subsequently, the plaintiff filed two additional EEOC complaints alleging racial discrimination and retaliation.

 

In reaching its ruling, the court reviewed the U.S. Supreme Court standard for plaintiffs bringing Title VII claims: (1) Did the employer engage in “discrete discriminatory acts” such as “termination, failure to promote, denial of transfer, or refusal to hire”; or (2) Did the employer’s “repeated conduct” create a hostile work environment? The court found, viewing the allegations as a whole, that the plaintiff did not sufficiently allege facts that the harassment was severe and pervasive. Also, only some of the alleged facts could be construed to support a hostile work environment claim: (1) the dean instructing her to more to a basement office; (2) the dean yelling at her in front of a white faculty member; (3) lack of a faculty evaluation for the 2019-2020 academic year and a subsequent follow-up Zoom meeting during which the Chair of the Department denigrated her teaching and research done with minority students and her teaching style overall; and (4) being reassigned to teaching public management classes rather than political science classes due to lack of qualifications. These events occurred over a period of two and a half years which was also too infrequent to demonstrate that the workplace was “permeated with” ridicule and insult.

 

For the plaintiff’s discrimination claim, the court reviewed whether the plaintiff showed: (1) that she was a member of a protected class, (2) an adverse employment action, (3) that she was qualified for her position, and (4) that she was “replaced by someone outside the protected class or was treated differently from similarly situated members of the unprotected class.” Although the court found her discrimination claims to be time barred because she failed to meet the filing deadline, they still considered her claims. The court found the plaintiff failed to state a discrimination claim because she did not allege that any adverse employment action she experienced was motivated by discriminatory animus. The retaliation claim was not considered since the plaintiff provided no argument in support of the claim. This ruling underscores the importance of promptly investigating any claims of harassment or discrimination and documenting the investigation and applicable corrective actions taken.

 

Action Items

  1. Develop and distribute a harassment and discrimination prevention policy including reporting procedures.
  2. Promptly investigate claims of harassment and discrimination including hostile work environment.
  3. Have appropriate personnel trained on the requirements.

 

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2024 ManagEase

Ninth Circuit: False Claims Act Standards Clarified

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September 30, 2024

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  • A retaliation claim under the False Claims Act (FCA) must be analyzed under the McDonnell Douglas burden-shifting framework.
  • Protected conduct does not have to lead to a FCA lawsuit.

Discussion:

In Mooney v. Fife, the Ninth Circuit Court of Appeals said that a retaliation claim under the False Claims Act (FCA) must be analyzed under the McDonnell Douglas burden-shifting framework, which is applied to similar retaliation claims, such as under Title VII, the Americans with Disabilities Act (ADA), and the Age Discrimination in Employment Act (ADEA).

 

Here, an employee talked to his supervisor about concerns of improper Medicare and Medicaid billing practices on numerous occasions. The employee was then fired for unauthorized disclosure of confidential information because he allegedly told a prospective employee about a potential acquisition of another company that ultimately jeopardized the employer’s acquisition opportunities. All of this took place within a relatively short period of time.

 

The FCA protects employees from being terminated for protected activity related to opposing possible fraud against the government. An FCA retaliation claim requires proof of: (1) protected conduct – “the employee must have been engaging in conduct protected under the Act”; (2) notice – “the employer must have known that the employee was engaging in such conduct”; and (3) causation – “the employer must have discriminated against the employee because of her protected conduct.” Under the McDonnell Douglas standard, once the employee has established the existence of retaliation, the burden shifts to the employer to provide a legitimate, non-retaliatory reason for the employee’s termination. Finally, the burden shifts back to the employee to show that the employer’s explanation was merely a pretext for retaliation.

 

Moreover, an employee’s protected “efforts to stop 1 or more violations” under the FCA need “not lead to a lawsuit or to the ‘distinct possibility’ of a lawsuit.” This means that the employee’s ongoing attempts to alert the employer to the company’s potential legal violations were protected. This ruling was brought in the procedural context of a summary judgment motion. However, it underscores the care employers must take when evaluating whether legitimate cause exists to terminate a whistleblowing employee.

 

Action Items

  1. Review decisions to terminate whistleblowing employees with legal counsel before taking action.

 

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2024 ManagEase

Alabama: Exemption for Overtime Pay Amended

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October 1, 2024

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  • Starting October 1, 2024, overtime that is paid in accordance with the Fair Labor Standards Act (FLSA) is exempt from Alabama state income tax.

Discussion:

HB 407 amended Alabama’s Overtime Exemption Act to change what type of overtime pay is exempt from state income tax. Starting October 1, 2024, overtime that is paid in accordance with the Fair Labor Standards Act (FLSA) is exempt from state income tax. Originally, state tax exempt overtime was defined as compensation received by full-time hourly wage-paid employees for any overtime work they performed in excess of forty hours per workweek. The definition left questions as to whether overtime rates calculated based on overtime hours and commission earnings were fully state income tax exempt.

 

There is also additional guidance from the Alabama Department of Revenue. Some important takeaways from the guidance are:

 

  • For employers governed by the National Railway Labor Act, the exempt overtime pay is based on the overtime compensation as stated in relevant collective bargaining agreements.
  • For an Alabama resident, wages earned in another state which is subject to the other state’s withholding tax are not Alabama wages subject to Alabama withholding tax. Since the wages are not Alabama wages subject to Alabama withholding tax, the exemption would not apply in this case.
  • If the wages are considered Alabama wages subject to Alabama withholding tax, any wages which would be considered overtime under the Fair Labor Standards Act would qualify whether earned by a resident or a non-resident.

 

The exemption is set to expire on June 30, 2025, unless the legislature extends it.

 

Action Items

  1. Review the amended law here.
  2. Review the Alabama Department of Revenue guidance here.
  3. Update payroll processes.
  4. Train appropriate personnel on the requirements.

 

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2024 ManagEase

California: “Shocktober” Has Arrived – What Legislative Changes Do Employers Need to Know About?

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  • Consumer Privacy Rights Act definitions will be updated; requirement for affirmative authorization for sharing minors’ personal information will be increased.
  • PAGA exemption for construction employees is extended.
  • Workers’ compensation claim processes are extended.
  • Paid family leave and disability leave processes are extended.
  • Expanded leave protections for paid sick leave, jury and witness duty leave, and crime victims’ leave.
  • Hospital violence prevention plans must include a weapons detection screening policy.
  • Captive audience meetings are prohibited.
  • Independent contract agreements must meet specific requirements.
  • Job postings cannot require use of driver’s license, except under specific circumstances.
  • Workplace postings for workers’ compensation, whistleblowing, and crime victim’s leave must be updated.

Discussion:

California’s legislative session has come to a close with the Governor signing a number of bills impacting employers and employees. As in previous years, the California Legislature has been active this season. Here is a summary of key updates employers should be aware of.

 

AB 1008 / SB 1223 | JAN 1, 2025 – Consumer Privacy Rights Act (CPRA). Amends the definition of “personal information” to clarify the different formats of information covered (e.g., physical, digital, and abstract). It also adds “neural data” to the definition of “sensitive personal information.”

 

AB 1034 | JAN 1, 2025 – PAGA Exemption for Construction Employees. Extends the Private Attorney General Act (PAGA) exemption for employees in the construction industry with a collective bargaining agreement (CBA) until 2038. The current requirement that the CBA must be in effect before January 1, 2025 will be deleted, with no time prerequisite on when a CBA must be in place.

 

AB 1239 | JAN 1, 2025 – Workers’ Compensation Payments. Extends an employer’s ability to start a workers’ compensation program in which disability indemnity payments are deposited in a prepaid card account for employees to January 1, 2027.

 

AB 1824 | JAN 1, 2025 – Consumer Privacy Rights Act (CPRA). A consumer’s right to opt out of sale or sharing of personal information applies when the information is transferred between businesses as a result of merger, acquisition, bankruptcy, or assumed control. The bill also raises the age for required affirmative consent for sharing personal information of minors from less than 16 years of age to less than 18 years of age.

 

AB 1843 | JAN 1, 2025 – Emergency Ambulance Employee Support. This bill requires an emergency ambulance provider to offer to all emergency ambulance employees, upon the employee’s request, peer support services to provide peer representatives who are available to come to the aid of their fellow employees on a broad range of emotional or professional issues. The program must be implemented through a negotiated labor-management agreement, separate from a collective bargaining agreement, if any.

 

AB 1870 | JAN 1, 2025 – Workers’ Compensation Poster. Required workers’ compensation posters must be updated to notify employees of the ability to consult with a licensed attorney regarding their rights under workers’ compensation laws and that attorneys’ fees will be paid from an injured employee’s recovery.

 

AB 1976 | DEC 1, 2027 – First Aid Requirements. Cal/OSHA must draft a rulemaking proposal to require employers to include opioid blocking medications (e.g., naloxone hydrochloride) in their first aid supplies. The proposed rule must be considered by December 1, 2028.

 

AB 2013 | JAN 1, 2025 – Artificial Intelligence Data Transparency. Developers of generative artificial intelligence (AI) must post to their website information about the data used to train the generative AI system or service, including a summary of the datasets used in the development of the system. Although widely applicable, this will help employers to make informed decisions about what AI technology they should leverage in the workplace.

 

AB 2123 | JAN 1, 2025 – Paid Family Leave. Employers will no longer be able to require employees to use up to two weeks of accrued vacation as a condition before accessing California’s paid family leave (PFL) wage replacement benefits.

 

AB 2299 | JAN 1, 2025 – Whistleblower Notice. Employers are currently required to display a list of employees’ rights and responsibilities under state whistleblower laws. This bill requires the California Labor Commissioner to develop a model notice that will allow employers to fulfill their posting obligations under existing requirements.

 

AB 2337 | JAN 1, 2025 – Electronic Signature Permitted for Workers’ Compensation. For purposes of the workers’ compensation system, this bill allows documents that require a signature to be filed with an “electronic signature” as long as it complies with the Uniform Electronic Transactions Act (UETA) or Gov’t Code § 16.5.

 

AB 2499 | JAN 1, 2025 – Expanded Leave Protections. Jury and witness duty leave and crime victims’ leave will move from the Labor Code to the Fair Employment and Housing Act (FEHA) under the Government Code. This means the California Civil Rights Department (CRD) will have enforcement authority over those leaves of absence, as it already does with other leaves like the California Family Rights Act (CFRA). Additionally, the bill expands crime victims’ leave to cover acts of violence (instead of just crime) and provides time off to help an employee’s family member who is a qualifying violence victim. The bill also expands the purposes for which crime victim leave may be used and extends these same changes to California paid sick leave (i.e., victims of violence and employee family members who are victims of violence). The CRD must provide a form notice of employee rights for employers to use by July 1, 2025.

 

AB 2754 | JAN 1, 2025 – Port Drayage Motor Carrier Contracts. The requirement for contracts to include sufficient funds to comply with labor requirements will extend to port drayage motor carriers. There is a rebuttable presumption of no violation if the contract contains specified components.

 

AB 2975 | MAR 1, 2027 – Hospital Violence Prevention Plans. Covered employers must include a weapons detection screening policy in their existing violence prevention plans.

 

AB 3234 | JAN 1, 2025 – Social Compliance Audit. Employers who voluntarily subject themselves to a nongovernmental social compliance audit to determine if child labor is involved in the employer’s operations or practices, must post a clear and conspicuous link on its internet website to a report detailing the findings of its compliance with child labor laws.

 

SB 399 | JAN 1, 2025 – Captive Audience Meetings. Employers cannot take or threaten to take adverse action against an employee who declines to attend an employer-sponsored meeting or participate in, receive, or listen to employer communications about an employer’s opinion on religious or political matters.

 

SB 422 | JAN 1, 2025 – Unemployment Insurance for Motion Picture Loan-Out Companies. A loan-out company is the employer of its employee-owners or members who are engaged to provide services to a motion picture production company or to an allied motion picture services company for purposes of remitting employment taxes and related obligations. The bill prohibits a loan-out company or an individual whose services are provided by a loan-out company from being considered an employee of a motion picture payroll services company. A motion picture payroll services company must file a quarterly report with the EDD for payments made to a loan-out company.

 

SB 988 | JAN 1, 2025 – Freelance Worker Protection Act. Employers hiring independent contractors for “professional services” worth $250 or more must have a written agreement with certain provisions in it. Payment for services must be made on the date stated in the agreement or no later than 30 days after completion of services. Discrimination and retaliation are prohibited against individuals exercising their rights under the law. This applies to contracts entered into or renewed on or after January 1, 2025.

 

SB 1090 | JAN 1, 2025 – Disability and Paid Family Leave Benefits. Disability and Paid Family Leave (PFL) initial benefit payments must be made within 14 days of receiving a claim. A claimant may initiate the claim process up to 30 days in advance of the anticipated first compensable day.

 

SB 1100 | JAN 1, 2025 – Recruiting Restrictions. Employers can only state driver’s license requirements in job applications, advertisements or other employment materials if the employer reasonably expects driving to be one of the job functions for the position and believes using an alternative form of transportation would not be comparable in travel time or cost to the employer.

 

SB 1105 | JAN 1, 2025 – Expanded Paid Sick Leave Usage. California’s paid sick leave law is amended to allow agricultural employees who work outside to use paid sick leave to avoid smoke, heat or flood conditions from a state or local emergency, including when a worksite is closed due to these conditions.

 

SB 1137 | JAN 1, 2025 – FEHA Protections. This bill clarifies that FEHA prohibits discrimination on any combination of protected characteristics.

 

SB 1350 | JUL 1, 2025 – Cal/OSHA Employment Definition Revised. Under Cal/OHSA, “employment” will include household domestic service performed on a permanent or temporary basis, subject to limited exception.

 

Action Items

  1. Update privacy notices consistent with new CPRA definitions.
  2. Update leave policies for compliance.
  3. Display required postings when available.
  4. Prepare required agreements for independent contractors.
  5. Revise job posting processes for compliance.
  6. Have appropriate personnel trained on new requirements.

 

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2024 ManagEase

California: Reasonable Accommodations

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APPLIES TO

Employers with 5+ Employees in CA

EFFECTIVE

September 23, 2024

QUESTIONS?

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Quick Look

  • Failure to engage in the interactive process or provide a reasonable accommodation cannot be the basis for a discrimination claim.
  • Allegations of failure to engage in the interactive process in good faith are irrelevant if there were no objectively identifiable reasonable accommodations to be offered.

Discussion:

In Miller v. California Dept. of Corrections and Rehabilitation, the California Court of Appeal reviewed the interactive process and disability accommodations offered before an employee was ultimately terminated. The court made note of the employee’s permanent disability and inability to perform the functions of the job, and the employee’s request for unreasonable accommodation.

 

Here, an employee had a slip and fall injury at work that left her with permanent work restrictions inconsistent with her job requirements. Although the employee claimed the employer did not properly engage in the interactive process, the employer offered to “medically demote” her to an alternative available position that would accommodate her work restrictions, while retaining the right to be reinstated to her original position if her condition improved, but it was declined. The employee requested a disability retirement as an accommodation but was declined. She also claimed mental health issues preventing her from returning to work and remained on an unpaid leave of absence. Ultimately, the employer terminated the employee who then made a discrimination claim.

 

The court stated that allegations of failure to engage in the interactive process or provide a reasonable accommodation cannot be the basis for a discrimination claim, as they are not synonymous with each other. Additionally, the employee’s request for disability retirement was not a reasonable accommodation. A disability retirement refers to employee replacement, while the Fair Employment and Housing Act (FEHA) is meant to provide accommodations to allow employees to perform their jobs. Finally, allegations of failure to engage in the interactive process in good faith are irrelevant if there were no objectively identifiable reasonable accommodations to be offered.

 

Notably, an offer to medically demote an employee refers to the process of placing an employee who is no longer capable of performing the essential functions of the employee’s current position into another position they are qualified to perform. The court indicated that this may be a reasonable accommodation under the circumstances. This case highlights the importance of reviewing whether potential reasonable accommodations exist that can be offered to an employee with a qualifying disability before taking adverse action against them.

 

Action Items

  1. Engage in the interactive process upon request for accommodation.
  2. Review adverse action with legal counsel following an accommodation request before taking action.

 

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2024 ManagEase