Halfway to 2024!

2023 is trucking along – we’re already halfway through the year. The summer months are calling and we are looking forward to a nice balance of working hard and enjoying some down time – after all summer is a time for relaxing, traveling, and taking the time to soak in some beautiful sunsets! 

As we’ve done for the past few Updates, we’re focusing again on recent and upcoming legal changes. There doesn’t seem to be a shortage of topics to share. We hope this helps you and we welcome any questions – please reach out.

Please note this is a summary of upcoming changes and not an all-inclusive overview.

Legal Updates

Under Federal Law…

EEO-1 Reporting: As we reported in our last Update, per the Equal Employment Opportunity Commission (EEOC) website “The 2022 EEO-1 Component 1 data collection is tentatively scheduled to open in mid-July 2023.” No update has been given on the timing – but we will provide additional information once we have it, including any confirmation on whether there will be new categories to report on.

Form I-9 Physical Verification Requirements: As we all know, all employees are required to fill out a Form I-9 upon hire, which also requires the employee to provide documents that establish their identity and eligibility to work in the United States. Prior to the pandemic, the documents provided by employees had to be reviewed in person by an authorized representative of the employer. During the pandemic when most workplaces were working remotely, employers were allowed to inspect the documents virtually. As more aspects of our world return to post-pandemic practices, the U.S. Immigration and Customs Enforcement (ICE) and the Department of Homeland Security (DHS) have announced the following dates and changes regarding I-9 requirements:  

• July 31, 2023: Temporary flexibilities end – meaning, in-person verification of I-9 documents must be done for all employees hired after July 31, 2023.
• August 30, 2023: Physical reverification deadline – meaning, employers must conduct in-person verification of any I-9 document that was provided virtually during the pandemic (i.e., March 2020 until present). 

What to do now? We recommend making a plan to determine which I-9s require a physical verification of documents (likely all new hires from March 2020 until you returned employees to onsite work), and then ask the affected employees to bring in their I-9 documents for physical inspection. Providing office hours or blocking out a specific timeframe to do the inspections may be helpful. Please also note:

• If the person who conducted the original virtual inspection of documents also conducts the in-person inspection, the DHS advises the employer representative to write “COVID-19” and “documents physically examined,” along with the date and a signature or initials, in the “Additional Information” field in Section 2 (or Section 3 where appropriate).
• If the person who conducted the original virtual inspection of documents does not conduct the in-person inspection, DHS advises the employer representative to complete a new Section 2 of Form I-9 and attach it to the original Form I-9.

We realize this can be a huge undertaking for certain employers; please reach out to HRT with further questions if needed.

Non-Compete Agreements: In recent years, Non-Compete Agreements have come under scrutiny at the state level – making them harder to utilize and enforce. Once again, Non-Competes are getting some attention, this time from the National Labor Relations Board (NLRB), with a recent memo from the NLRB’s Chief Prosecutor saying that many Non-Compete Agreements violate federal law, regardless of whether you have unionized employees. (As a reminder, while the NLRB and NLRA (National Labor Relations Act) deal primarily with union environments, they do have impact and influence on all employee environments. For example, the right for all employees to discuss pay is a protection from the NLRA.)  For those who would like to read the memo directly, we’re providing it here, but ultimately we are using this as another opportunity to remind employers who are utilizing Non-Compete Agreements, to make sure they are up-to-date, valid, and reviewed by legal counsel.

Updated FCRA Summary of Consumer Rights: The Fair Credit Reporting Act (FCRA) recently updated their Summary of Consumer Rights noting a deadline of March 20, 2024 to begin using the document. As a reminder, the Summary must be provided whenever a pre-adverse action letter is sent due to a concern on a background check.

New Disability Self-Identification Form for Contractors: The Office of Federal Contractor Compliance Programs (OFCCP) updated the Voluntary Self-Identification of Disability, Form CC-305. Federal contractors must begin using the form as of July 25, 2023.

Further Guidance Regarding the PUMP Act: The PUMP Act (Providing Urgent Maternal Protections for Nursing Mothers Act) provides break time protections (beyond those in the FLSA) to nursing mothers and provides guidance regarding requirements for the location of the breaks. A recent Field Assistance Bulletin (FAB) from the United States Department of Labor (DOL) provides further clarifying details about the break time and location requirements. In short: 

• Break time: the frequency and duration of breaks depend on the individual’s needs. Employees are entitled to reasonable break time every time there is a need to pump. While a break schedule based upon the individual needs may be created, it cannot be static. The individual can adjust the schedule anytime based on needs. 
• Lactation Space Requirements: While the requirement to provide a private space, other than a bathroom, is not new, the FAB provides further guidance: “A space must contain a place for the nursing employee to sit, and a flat surface, other than the floor, on which to place the pump. Employees must be able to safely store milk while at work, such as in an insulated food container, personal cooler, or refrigerator.”

Federal Employment Poster Updates:

• FLSA Labor Law (Minimum Wage) Poster: To ensure the rights of the PUMP Act are reflected on the DOL’s Minimum Wage poster, it’s been updated and the new version is required to be posted. Please replace your current poster with this April 2023 version. 
• FMLA Poster: An updated FMLA Labor Law poster is available, which provides some formatting changes (the addition of a QR code and a Q&A format for some information). Unlike the FLSA poster, this is a recommended update only. If you’d like to post the April 2023 version, please do. 
• EEOC Labor Law Poster: A new “Know Your Rights: Workplace Discrimination Is Illegal” poster, is scheduled to be released at the end of this month. We will provide a link once available.  

In Washington…

Washington Long-Term Care Fund: Our last Update provided detailed information about the Washington Long-Term Care Act. For this Update, just a quick reminder that payroll deductions are required to start July 1, 2023, for any employee who does not have an approved exemption or opt-out. 

Off-Duty Marijuana Use: In early May, Governor Inslee signed Senate Bill No. 5123 into law, which goes into effect January 1, 2024. SB 5123 provides some protections to employees regarding their lawful and off-duty use of marijuana in regard to pre-employment testing and hiring decisions. In simple terms, employers cannot use the following to disqualify someone from hire: “the use of cannabis off the job and away from the workplace” or the result of a pre-employment drug test “that has found the person to have nonpsychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids.” Please note, employers CAN continue to test for marijuana use in non-pre-employment testing such as reasonable suspicion and post-accident. To prepare for the January 1, 2024 effective date we recommend reviewing your Drug Testing policies and procedures to ensure they are updated to reflect this new law.

In Oregon…

Minimum Wage Increases: As Oregon employers have seen since 2016, minimum wage rates for the state have been increasing in July of each year.  Separate rates for standard, Portland Metro, and Nonurban Counties are designated. It is also interesting to note, as reported on the Oregon Bureau of Labor and Industries (BOLI) website, “beginning July 1, 2023, the minimum wage rate will be indexed to inflation based on the Consumer Price Index (CPI), a figure published by the United States Bureau of Labor Statistics.” As recently announced by BOLI, the rates effective July 1, 2023 are: 

• Standard Rate:  $14.20 per hour  (5.2% increase from current rate, or $.70)
• Portland Metro Rate:  $15.45 per hour  (4.75% increase from current rate, or $.70)
• Nonurban Counties Rate: $13.20 per hour  (5.6% increase from current rate, or $.70)

We recommend Oregon employers update their minimum wage posters to reflect these changes. And, based on all the federal posting updates mentioned above, purchasing a consolidated poster is likely the easiest option!

If you have questions about any of this information, please reach out – we are happy to help.

HRT Northwest: Your HRT Northwest Team

Seattle: (253) 642-7372 | info@hrtnorthwest.com

This Update is not a full overview of all recent or upcoming legal changes. HRT Northwest is staffed by professionals in the field of Human Resources and business management. We are glad to help with your HR needs; however, we do not offer legal advice and our services are not a substitute for the help of a qualified attorney.