Quarterly HR Update – June 2024

Summertime, summertime, sum sum summertime!

More like, new laws, updated laws, so so many laws!

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

Legal Updates & Info

Under Federal Law…

Ban on Non-Competes: In an April 2024 article we reported that the U.S. Federal Trade Commission (FTC) passed a new law that will vastly prevent most all employers from entering into Non-Compete Agreements with employees. While the Final Rule was published in the Federal Register with a September 4, 2024 effective date, three lawsuits have been filed to challenge the new law. We will share further updates as we get closer to September, if the lawsuits are successful in blocking, changing, or delaying the new law. Stay tuned! In the meantime, refer back to our April article to see our recommendations on what to do now.

Exempt Salary Threshold: Another topic we covered in our April 2024 article was sharing the Department of Labor’s recent final ruling to increase the exempt salary threshold as of July 1, 2024 and again as of January 1, 2025. Similar to the ban on Non-Competes, the new law is being challenged and two lawsuits have been filed. The outcome of those lawsuits is not yet known; employers are encouraged to continue planning for the July 1, 2024 effective date.

Pregnancy Workers Fairness Act (PWFA): While the PWFA went into effect back in July 2023, the final rules were published by the EEOC in the Federal Register on April 15, 2024. The final regulations (all 408 pages of them!) are very similar to the proposed regulations. For example, potential accommodations in the final rules include frequent breaks, sitting, standing, schedule changes, part-time work, leaves, remote work, reserved parking, light duty, accessible facilities, modifying environment, equipment or policies, job restructuring, temporarily suspending essential functions, uniforms/devices, and more. We also want to highlight the following:

• It’s more than just “pregnancy”: PWFA covers current, past or potential pregnancy, breastfeeding/pumping, use of contraception, menstruation, infertility and fertility treatments, endometriosis, miscarriage, stillbirth, abortion (having or choosing not to have), and conditions beginning during, or aggravated by, pregnancy. 
• The disability does not have to meet the ADA definition: Conditions can be minor, modest, or episodic. 
• Temporary conditions are covered: Accommodations can apply to individuals who cannot perform an essential function for a “temporary period” if they are expected to perform it “in the near future”. (Fun fact, PWFA does not define “temporary period” or “in the near future”).
• Certain accommodations are “automatic”: “Modest and minor” alterations on a temporary basis are pretty much presumed by the EEOC to NOT impose an undue hardship on employers in most cases. Those “automatic” accommodations include carrying/keeping water/drink nearby, taking breaks to eat, drink or go to the bathroom, allowing an employee to sit/stand.
• Requesting documentation is limited: Employers are not allowed to ask for documentation when the need for accommodation is obvious, the employer has sufficient information already, when the request is for a “modest and minor” accommodation (mentioned above), for lactation accommodation, and when the accommodation has been provided previously without supporting documentation. 

New OSHA Walk Through Rules: OSHA’s “Walk Through” Rules have changed. They used to say the employee representative who accompanies an inspector on a walk through must be an employee of the employer being inspected. The rule now states the individual can be an employee of the employer or a third party. This new rule was effective May 31, 2024. It’s important to note, that according Fisher Phillips (one of our trusted legal sources), this change isn’t about safety. Rather, “This rule change is not an effort to improve the OSHA inspection process. It is designed to provide labor unions an advantage in their organizing efforts.” For more detailed information about this new rule, see this article from Fisher Phillips.  

Under Washington Law…

Wildfire Smoke Rules: In March we shared information about new rules in Washington pertaining to wildfire smoke exposure. At that time, L&I was working on materials to help employers implement the rules, but they were not yet available. We wanted to share training templates and sample plans are now available on L&I’s site under Training & Resources. If you have employees who work outside, now is the time to check out these requirements and ensure you are putting appropriate training and policies in place. 

Employee Free Choice Act (EFCA): Effective June 5, 2024, the EFCA (SB 5778) was passed to prevent employers from requiring employees to attend meetings related to the political or religious opinions of the employer. The law does specify this pertains to when the “primary purpose” of the meeting is to share those opinions, however “primary purpose” is not defined within the law. Employers are prohibited from disciplining or firing employees for refusing to attend such meetings. We recommend reviewing and updating policies to reflect this new law.

Expanded Equal Pay and Opportunities Act (EPOA): The Washington Equal Pay and Opportunities Act (EPOA) was established in 2018 to specifically prohibit discrimination based on gender in pay and career advancement. In a recent Washington Legislative session, the law was expanded to cover all of Washington’s protected classes, which includes age, sex, marital status, sexual orientation, race, creed, color, national origin, citizenship or immigration status, honorably discharged veteran or military status, presence of any sensory, mental, or physical disability, or the use of a trained dog guide or service animal by a person with a disability.

In addition, under the EPOA, employers are not allowed to require applicants to provide their pay history. And, while already protected by Section 7 rights under the National Labor Relations Act (NLRA), the EPOA also provides protections to employees to discuss and disclose their pay and inquire about other employee’s pay. This law is effective July 1, 2025.

Paid Sick Leave (PSL) Expansion: Washington’s Paid Sick Leave (PSL) Act was recently expanded under ESSB 5793. There are a couple updates to talk through, with differing effective dates, as outlined here:

Construction Industry Changes – Effective March 13, 2024: While payout of unused PSL is not required for most industries, it is for parts of the construction industry. All workers covered under NAICS Code 23, excluding residential building construction (code 2361) must pay out accrued sick leave (or PTO if the employer has a combined plan) for employees who work less than 90 days. The statutory definition of a “construction worker” is a worker who “performed service, maintenance, or construction work on a jobsite, in the field, or in a fabrication shop using the tools of the worker’s trade or craft.”

Expanded Sick Leave Reasons & Amended Definitions – Effective January 1, 2025: When we start the new year, there will be an additional leave reason provided, and additional family members protected, under PSL, as follows:

• Eligible employees will be able to take PSL when an employee’s child’s school or place of care has been closed “after the declaration of an emergency by a local or state government or agency, or by the federal government”.
• The definition of “family member” has been expanded to include “any individual who regularly resides in the employee’s home or where the relationship creates an expectation that the employee care for the person, and that individual depends on the employee for care.” (It does not include someone who lives with the employee where no expectation of care exists.)
• The definition of “child” has an expanded definition to include “a child’s spouse”. 

Non-Compete Agreements: We’ve got Non-Compete updates coming from all over. Here’s a recap: back in 2020, Washington imposed significant restrictions on Non-Compete Agreements, outlining an annually adjusted minimum compensation the employee must earn, specifying a duration of no more than 18 months, requiring a written notice at hire, and requiring pay when an employee is laid off. In April (which we covered earlier in this Update) the U.S. Federal Trade Commission (FTC) passed new regulations at the Federal level that are currently being challenged in court. In early June, Washington updated their law, effective June 6, 2024. While we wait for the courts to battle it out at the Federal level, Washington employers should take appropriate steps to comply with the recent Washington updates. Here are a few highlights: 

• Non-Compete Definition: The previous definitions of a Non-Compete (every written or oral covenant, agreement, or contract by which an employee or independent contractor is prohibited or restrained from engaging in a lawful profession, trade, or business of any kind) is now expanded to include “an agreement that directly or indirectly prohibits the acceptance or transaction of business with a customer.
• Procedural Requirements: Notice of the Non-Compete Agreement must be confirmed as soon as the initial employment offer is accepted – this means if you make a verbal offer that is accepted, the notice must be provided then.

There are also narrower exceptions regarding customer Non-Solicitation Agreements and sale of business, and updated guidelines regarding non-party enforcements. Those areas really dive into the nitty gritty of the law – if that is something you are interested in learning about, this article from Perkins Coie provides a lot of great detail and explanation. The article also provides a good explanation of how the Federal Trade Commission recent ban on Non-Compete Agreements impacts Washington law.

Under California Law…

Violence Prevention Safety Requirements: In December and March we shared information regarding California’s new Violence Prevention Safety Requirements. With the July 1, 2024 effective date, we wanted to include a brief reminder! Please review our previous Updates for more information; California has also provided a sample plan and Fact Sheet to help employers meet these requirements.

Under Oregon Law…

OFLA and PLO: In early April we shared an article outlining the upcoming impact of Senate Bill 1515 on Oregon’s Family Medical Leave Act (OFLA) and the Paid Leave Oregon (PLO) (also known as Paid Family Medical Leave Insurance). As we’ve worked to update our policies and templates, it has become clear that how these laws do or do not interact is pretty complicated. It’s effective July 1st, so feel free to read our previous article if you need a reminder; and reach out to us with any questions!

Independent Contractors & Child Support Reporting: Oregon employers are already accustomed to reporting newly hired employees to the state for purposes of collecting child support. While independent contractors are outside the employment relationship, we wanted to share a new requirement we recently became aware of in Oregon. Companies in Oregon who have independent contractors doing work in Oregon must report the individual to the Oregon Department of Justice’s Division of Child Support using this form (or sending a copy of the IC’s W-9 Form). Employers can enter the information directly in the Portal, or mail/fax within 20 days. 

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.