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New Year, New Regulations: What to Expect for HR on January 1, 2020

Emily Hartman /

Every month we cover timely federal and state legislative and regulatory employment updates, but this time we’ve rounded up all the regulations you need to know for the start of 2020.

Check out what you need to know and gain compliance tips to help you stay on top of HR the right way. Click on the federal topics or state names below to catch up on the latest news.

FEDERAL Updates

IRS Releases New Form W-4 for 2020

Who: All employers

When: January 1, 2020

What:

The U.S. Internal Revenue Service (IRS) has released the 2020 Form W-4, Employee’s Withholding Certificate. The final form has some changes in contrast to a draft that was released earlier in 2019. The 2020 form is intended for new employees; current employees don’t have to fill out the new form.

The changes include:

  • Elimination of the total number of allowances
  • Added elements to Federal Income Tax withholding calculations
  • Elimination of worksheets
  • Added questions to make better, more accurate, withholding choices
  • Added tax table for employees opting for a higher withholding. This table should make calculations easier for two-earner households.

In addition to releasing the final W-4 Form, the IRS is working on Publication 15-T, Federal Income Tax Withholding Methods for employers. Using the new 2020 Form W-4, the publication will help employers calculate income tax withholding under the Percentage Method and Wage Bracket Method tables. Publication 15-T hasn’t been finalized yet but should be released shortly. KPA will continue to monitor for its release.

How:

  • Inform your payroll departments and the rest of your human resources team.
  • Update your on-boarding process to ensure the new form is incorporated into a new employee’s paperwork.
  • Inform current employees about the new form, that they don’t need to fill it out unless they would like to make any changes in 2020.

Additional Resources

2020 W-4 Form

FAQs on the 2020 W-4 Form

Publication 15-T Federal Income Tax Withholding Methods

U.S. Department of Labor Overtime Rule Takes Effect; New Cutoff is $35,568

Who: All Employers

When: January 1, 2020

What:

The U.S. Department of Labor’s (DOL) amendment to the Fair Labor Standards Act takes effect on January 1, 2020. The change expands the number of Americans who can qualify for overtime pay. The details of the new rule include:

  • Raising the salary cutoff from $455/week ($23,660/year) to $684/week ($35,568/year). Individuals who make less than $684/week and meet certain job duties must be paid 1.5 times the employee’s regular hourly rate when they have worked more than 40 hours in the workweek.
  • Raising the salary cutoff for highly compensated exempt employees from $100,000/year to $107,432/year.
  • If paid annually or more often, non-discretionary bonuses and incentive payments, including commissions, may be used to satisfy up to 10% of the standard salary. This new rule doesn’t apply to highly compensated employees.
  • Executive, administrative, and professional white-collar exemptions must minimally earn the salary threshold and perform certain duties. Job duties or job titles don’t exclusively determine exemption, but there are tasks for each category that may qualify the employee for exempt status:
    • Executive exemption: Managing the organization or a department of the organization, overseeing the work of at least 2 employees, and have the authority to hire and fire.
    • Administrative exemption: Office work directly related to business operations and the use of discretion and judgment in important decisions made for the company.
  • Professional exemption: Work that requires knowledge of a field of science or specialized study and instruction, e.g., engineer, physician, systems analyst, or programmer. Highly compensated employees are exempt if their duties include any of the specified reduced duties for an executive, administration, or professional exemption.

How:

  • Review employee pay information, job descriptions, and job duties to identify exempt employees who are earning below the new cut off.
  • Compare the cost of increasing employee salaries above the new threshold against the cost of nonexempt employees receiving overtime pay.
  • Determine what the financial impact will be on your organization and what changes you need to make.
  • Communicate and train affected employees about reclassifying their job, or any changes made to their salary, job, or job description, regarding reclassifying their job. Explain exempt and non-exempt employees and how this classification affects them.

Additional Resources

Department of Labor Overtime Final Rule

Wage and House Division Fact Sheet on Final Rule

Final Rule FAQs

Minimum Wage Increases for Federal Contractors

Who: Federal contractors

When: January 1, 2020

What:

The U.S. Department of Labor is upping the minimum wage to $10.80 per hour for employees who work on or in connection with covered government contracts. The tipped cash wage will increase to $7.55 for employees who are associated with covered federal contracts.

How:

  • Post the Workers Rights Under Executive Order 13658 poster in a common area where employess will see it.
  • Evaluate whether this increase impacts your employees, including employees who are doing related work to a contract.
  • If your employees are impacted by this rate change, work with payroll to ensure the adjustment rolls out correctly.

Additional Resource

Final Rule

2020 Health Savings Accounts Contributions Rise Slightly

Who: Employers offering health savings accounts (HSAs) and High-Deductible Health Plans (HDHPs)

When: January 1, 2020

What:

The U.S. Internal Revenue Service (IRS) is increasing contribution limits for individual care by $50, totaling an annual limit of $3,500. The government agency is increasing the limit by $100 for family coverage, totaling an annual limit of $7,100. These contribution limits are an inflation adjustment.

Additionally, the IRS included minimum deductible and maximum out-of-pocket expenses for high-deductible health plans that HSAs are paired with:

  • HDHP minimum deductibles are $1,400 for individuals only and $2,800 for families.
  • HDHP maximum out-of-pocket amounts are $6,900 for individuals only and $13,800 for families.

The catch-up contribution won’t change and will remain $1,000.

Note that the U.S. Department of Health and Human Services (HHS) uses a different methodology for changing coverage amounts. HHS, which sets limits for the Affordable Care Act, has changed the 2020 out-of-pocket maximums. The amounts will increase to $8,150 for individuals only and $16,300 for families.

How:

  • When reviewing your benefit plan, consider these new limits into consideration.
  • Update your communications about the new limits and be sure to include them when distributing information to employees.

Additional Resources

IRS Bulletin

Availability of Health Reimbursement Arrangements Expand

Who: All employers offering or considering offering individual coverage health reimbursement arrangements (ICHRA)

When: January 1, 2020

What:

The Department of the Treasury, the U.S. Department of Labor, and the U.S. Department of Health and Human Services expanded the use of HRAs to include:

  • Premiums for individual market coverage (ICHRA).
  • Excepted Benefit HRAs, which are non-premium (excepting COBRA) medical expenses if the employee isn’t enrolled in the employer’s traditional group health plan.

All employers may fund an ICHRA to give employees tax-preferred funds to pay for health insurance coverage that employees purchase from the individual market. Some of the other rules for using ICHRAs include:

  • Offering the ICHRAs to certain employee classes as long as the class has a minimum number of employees based on the employer’s size (e.g., 10 employees of employers with less than 100 employees, 10% of employees of companies with 100-200 employees, and 20 employees of companies with more than 200 employees).
  • Employees must only be offered one – not both – ICHRA or a group health plan.
  • Coverage must be offered equally to all employees within a class.
  • There must be an opt-out option given, at least on an annual basis.
  • A notice must be provided to participants at least 90 days before the start of the plan year to alert them to ICHRA coverage details

Excepted Benefit HRAs rules include:

  • The annual benefit under the Excepted Benefit HRA is limited to $1,800
  • Premiums for individual health insurance, group health plan, or Medicare coverage can’t be reimbursed.
  • Coverage must be offered equally to all similar individuals, regardless of health.

Both plans must meet the same documentation needs as ERISA.

How:

  • When assessing your health benefits plans and options, consider whether these two types of HRAs would be beneficial for your organization and employees.

Additional Resource

Final Rule

IRS Raises 401(k) Contributions for 2020

Who: Employers who offer retirement plans

When: January 1, 2020

What:

Employees will be able to contribute up to $19,500 to their 401(k) plans next year, in addition to several other changes. The changes reflect cost-of-living adjustments and retirement-related tax items.

Among the other changes to 401(k), 403(b), and most 457 plans:

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Additionally, for the 2021 plan year, employees who earn $130,000+ in 2020 will be considered a highly compensated employee.

Defined Benefit Plan Limits: The annual benefit limit has changed from $225,000 to $230,000. The compensation limit used to define an employee’s annual benefit limit, when they separate from service before January 1, 2020, has changed to 1.0176.

SIMPLE plans: the maximum contribution limit will be $13,500 from $13,000. The catch-up contribution stays the same at $3,000.

Simplified Employee Pensions (SEPs): the minimum threshold stays the same at $600. The SEP maximum compensation limit will increase to $285,000 from $280,000.

How:

  • Review and update your retirement plans and any other employee information that includes retirement plan information.
  • Adjust your retirement plan administration procedures to accommodate the new regulations.
  • Communicate to managers and employees about the recent changes to 2020 contributions and how this will impact them.

Additional Resource

Notice 2019-59

IRS Eases 401(k) Hardship Withdrawals But Require Plans

Who: Employers offering 401k and 403b retirement plans

When: January 1, 2020

What: The IRS has finalized changes to 401(k) and 403(b) retirement plans that will make hardship withdrawals easier but will require employers to make some mandatory changes by January 1, 2020. Among the changes, the rule will:

  • Remove the 6-month suspension that prohibits employees from contributing to a plan after making a hardship withdrawal.
  • Open plan earnings for withdrawal, not just plan contributions. This provision isn’t available for 403(b) plans.
  • Require employees to display or show the financial need for withdrawal. The need should involve at least one of a few options: buying a primary home, expenses to repair damage or improve a primary home, eviction or foreclosure, education for the next year for plan participants, a spouses, or child, funeral expenses, medical expenses not covered by insurance, or expenses related to an event declared a federal disaster.
  • Ease up plan administrator’s hardship withdrawal verification. The new rule only requires that employees certify that they are in financial need of the withdrawal.

There is a 3-part test employers can use to help verify the employee’s request, including ensuring that the employee first accesses other available employer plan money, the employee confirms that they don’t have sufficient funds available, and plan administrator confirms that they believe the employee needs the withdrawal.

Not a mandatory requirement:

  • Remove the requirement that plan participants take out a plan loan before making a hardship withdrawal.

How:

  • Review your 401(k) plans for any language about hardship withdrawals or distributions.
  • Update any relevant language to be compliant with the new rules.
  • Contact your plan administrator(s) to ensure they are aware and updating their processes to comply with the new rules starting January 1, 2020.

Additional Resource

Final Rule

USCIS Disposes of Old E-Verify Records

Who: Employers using the E-Verify System

When: January 1, 2020

What:

The U.S. Citizenship and Immigration Services will be eliminating records that are more than 10 years old from the E-Verify system. Employers will only be left with their own records of the case number and their downloaded copy of the E-Verify confirmation report.

How:

  • Download any E-Verify Historical Records on or before December 31, 2020. These historical records will help to prove USCIS’s documentation of your employee(s).
  • Consider whether to create a regular annual practice of downloading historic record reports.

Additional Resources

E-Verify Records Retention and Disposal Fact Sheet

Instruction to Download Historic Records Reports in E-Verify

STATE Updates

Alabama

The Duration of Unemployment Compensation Linked to State’s Unemployment Rate

Who: Alabama employers

When: January 1, 2020

What:

The legislation ties together the length of unemployment compensation a person can receive and the state’s unemployment rate. The current 26 weeks of unemployment benefits will change to 14 weeks, based on Alabama’s unemployment rate being at or below the average rate of 6.5%.

For every .5% increase above the average unemployment rate, the number of eligible weeks will increase to a maximum of 20 weeks. For example, if the unemployment rate increases to 8%, 17 weeks of unemployment benefits would be available to participants.

How:

Review and update your unemployment information to ensure that you have language that reflects the upcoming changes.

Additional Resource

Act 2019-204

California

Arbitration Agreements Limited Under the California Fair Employment and Housing Act”]Arbitration Agreements Limited Under the California Fair Employment and Housing Act

Who: California employers

When: January 1, 2020

What:

California Governor Newsom signed legislation that changes the state Labor Code to:

  • Prohibit employers from requiring an employee to agree to arbitrate any claims under the Fair Employment and Housing Act (FEHA) as an employment condition.
  • Prohibit employers from threatening, retaliating, or discriminating against job applicants or employees for refusing to agree to arbitration of a possible FEHA claim.
  • Prohibit voluntary opt-out clauses in mandatory arbitration agreements.

These provisions only impact new arbitration agreements that are executed, mod8ified, or extended on January 1, 2020, or after. Additionally, if the mandatory or voluntary arbitration agreement is valid under the Federal Arbitration Act (FAA), this new law won’t impact it. The new law is subject to the FAA.

How:

Review your arbitration agreements and ensure they are valid under the FAA and assess their validity under the new law.

Additional Resource

AB 51

California Consumer Privacy Act Impacts Employees’ Data

Who: California employers

When: January 1, 2020

What:

The California Consumer Privacy Act (CCPA) will have a significant impact on the collection and storage of California residents’ personal information. Although this has a more immediate impact on consumer data, the law also impacts employee data. Employee data has been given a temporary exemption until December 31, 2020, but there are two requirements that employers should adhere to starting January 1, 2020:

  • Before collecting or at the time of collecting personal information, employers must notify California employees about the categories of information being collected and what the information will be used for. Collecting any new personal information will require employees receive an updated notice. Employers can’t use personal employee information for any other purpose that isn’t included in the notice; they must disclose any additional purpose and get the employee’s consent.
  • California employees have the right to act if their non-encrypted, non-redacted, personal information is part of a data breach if the employer has failed to uphold reasonable security procedures.

Employers will need to provide a privacy notice to employees on January 1, 2020, that’s compliant with the CCPA. The notice should include if and how any personal information, collected during 2019, was used, the categories of personal information that the employer needs, why it was collected, and any third parties that the information was disclosed or sold to.

How:

  • Review and update your privacy policy to ensure compliance with the new law.
  • Consult your legal counsel to determine if your current use of employee personal information falls under the CCPA.
  • Work with legal counsel to develop and implement a process for handling employee requests.
  • Educate and train your employees about exercising their CCPA rights when it comes to their HR data and cybersecurity.

Additional Resource

AB25

“No Rehire” Clauses Banned from Settlement Agreements

Who: California employers

When: January 1, 2020

What:

Governor Newsom signed a law that eliminates any “no rehire” provisions from settlement agreements between an employee who has filed a claim against their employer in court or administrative agency. This law doesn’t include severance agreements, as long as it had no part in a filed claim or part of an employment dispute.

Settlement agreements must not contain any language that prevents or restricts an employee from future employment with the employer, including parent companies, subsidiaries, divisions, affiliates, or contractors.

How:

Review and revise your settlement agreements to ensure their compliance with this new requirement.

Additional Resource

AB 749

Arbitration Fees/Costs Must Be Paid, Or Incur Severe Consequences

Who: California employers

When: January 1, 2020

What:

A new California law asserts that any party who drafts arbitration but fails to pay the fees within 30 days of the due date will be held in breach of the agreement and will default.

If the fees aren’t paid, the employee can:

  • Push the issue to court.
  • Seek a court order that demands fee payment.
  • Continue the arbitration and allow the arbitrator to request the fees.
  • Pay the costs and fees and seek payment from the drafting party at the end of the arbitration regardless of the outcome.

If the drafting party doesn’t pay the fees, the court or the arbitrator can place mandatory financial sanctions as well as other sanctions like evidentiary, terminating, or contempt.

How:

When you’re in the process of arbitration, be sure to pay all fees on time.

Additional Resource

SB 707

Rules Final Classifying Workers Versus Independent Contractor

Who: California employers who use independent contractors

When: January 1, 2020

What:

The law codifies the use of the “ABC” test when determining whether a worker is an independent contractor or an employee. The test requires that the following 3 elements be met to consider a person an independent contractor:

  • The hiring company can confirm that the individual is independent of any control or direction of the work.
  • The individual conducts work outside the course of the hiring company’s business.
  • The individual is actively part of an independent trade, occupation, or business, separate from the work they perform for the hiring company.

Under the new law, any individuals who are misclassified will be eligible for workers’ compensation coverage, unemployment insurance, paid sick days, and state family leave. These workers will fall under discrimination and harassment protections and can organize themselves into labor unions.

The following industries are exempt from this law: Doctors, dentists, veterinarians, lawyers, architects, engineers, private investigators, accountants, securities broker-dealers and investment advisers, human resource administrators, travel agents, marketers, graphic designers, grant writers, fine artists, photographers and photojournalists, and certain freelance writers and editors.

Businesses who hire vendors must prove that the vendor provides the same business or work to other clients. The vendor must also provide services to the hiring business, not to the business’s customers.

How:

  • Review your vendor and independent contractor list for a list of potential misclassifications
  • Either conduct the “ABC” test or work with legal counsel to conduct the “ABC” test of potentially impacted contractors to ensure they’re correctly classified.
  • Consider your organizational structure and operations based on the impact of impacted contractors.

Additional Resource

AB 5

Breastfeeding Accommodations Expand

Who: California employers

When: January 1, 2020

What:

All California employers must make a lactation room available to breastfeeding employees. The rooms must meet the following requirements:

  • It can’t be a bathroom
  • Be in close proximity to the employee’s work space
  • Provide privacy, so as to be protected from view
  • A private space that won’t allow intruders while the employee is pumping
  • Safe, clean, free of hazardous materials
  • A surface to place a breast pump and personal items
  • A place to sit
  • Access to electricity or charging stations
  • Access to a sink with running water and a refrigerator

If the space is used for other activities, lactation must be prioritized over other activities.

Employees must be allowed reasonable break times and space under rest period laws, an employer can be fined up to $100 per day if they violate these provisions.

Employers must develop and implement a company policy about accommodating lactation. The policy must include:

  • The employee’s right to request lactation accommodations
  • The process for requesting lactation accommodation
  • The employer’s obligation to respond to accommodation requests
  • The employee’s right to file a complaint with the Labor Commissioner

The policy must be included in the employee handbook or other set of policies that the employer makes readily available to employees. The policy must be distributed to new employees at the time of hire and when an employee asks about or requests parental leave. If the employer can’t provide a break time or location that is compliant with the company policy, the employer is required to provide a written response to the employee.

Specific Provisions and Exemptions

Specific provisions were made for multitenant or multiemployer worksites may provide a shared space at a worksite, if they’re unable to provide a lactation accommodation within their own space. Employers have two business days to respond to requests under this provision.

Temporary accommodations are acceptable when a result of operational, financial, or space limitations but these spaces can’t be a bathroom and must otherwise comply with the new law.

Employers with less than 50 employees may be exempted, if the employer can demonstrate undue hardship based on company size, financial resources, or the nature of the business.

How:

  • Assess whether your current lactation accommodations are compliant with the new law and if you will need to make changes to the physical space. Consult with your legal counsel if necessary.
  • Review and update your policies and procedures about lactation accommodation to be compliant with the new law.
  • Develop a policy that is compliant with the new law that you will include in your employee handbook or with your other policies.
  • Determine how you will distribute the policy to your new hires and employees asking about parental leave.

Additional Resource

SB 142

New Penalties for Unpaid Wages

Who: California employers

When: January 1, 2020

What:

Under changes to the California Labor Code, employees will now have the ability to recover unpaid wages through independent civil action. The employee can recover $100 for the initial violation, or failure to pay, and $200 for any violations that follow. Employers will be liable for 25% of the unpaid wage.

Employees can still seek civil penalties for unpaid wages through the Private Attorneys General Act, but they can’t do both for the same violation.

How:

Review the policies and procedures related to payment and ensure that the language is updated and compliant.

Additional Resource

AB 673

Statute of Limitations for Employment Claims Extended to 3 Years

Who: California employers

When: January 1, 2020

What:

Governor Newsom signed a law that changed a 1 year statute of limitation for employment claims filed under the California Fair Employment and Housing Act to 3 years. Employees who file a claim, then have 1 additional year to file a civil action in court.

How:

  • Review your retention policies for all of your records. You will need to ensure your records retention accommodates these extended timeline by 4 years.
  • If you hire seasonal or temporary employees, consult with legal counsel to assess your current record keeping practices and if they should change to meet the requirements.
  • Review your employee complaint process and ensure that it meets these updated requirements.

Additional Resource

AB 9

Employers Banned from Hairstyle Discrimination

Who: California employers

When: January 1, 2020

What:

Racial discrimination has been expanded to include hairstyles associated with race. The Creating a Respectful and Open Workplace for Natural Hair Act defines protected hairstyles to include, but not limited to, styles like braids, locks, and twists.

How:

Review your workplace discrimination policies and procedures, as well as your dress code or grooming policies to ensure they’re updated and compliant with the new requirements.

Additional Resource

SB 188

New Flexible Spending Account Notification

Who: California employers who sponsor flexible spending accounts (FSAs)

When: January 1, 2020

What:

Employers will be required to notify employees of the deadline to withdraw from FSAs before the end of the year the plan ends. The law doesn’t state when the notification should be made or if there is any required language to include.

The employee notifications must be provided in two different forms, although one form can be electronic. The notification channels include in-person, phone, email, text message, or mail.

How:

  • Consult with legal counsel to review your FSA policies and procedures and what updates should be made to be compliant with the new requirement.
  • Work with consult to develop the notification language.

Additional Resource

AB 1554

Leave Extended for Organ Donors

Who: California employers with 15+ employees

When: January 1, 2020

What:

The new legislation extends the amount of leave, by a maximum of 30 days, an organ donor or bone marrow donor may take following a donation. The 30 days are of unpaid leave and in addition to the 30 days of paid leave per year that already exists for organ donors and the 5 days of leave per year that exists for bone marrow donors.

Employees are required to provide employers with verification of their donation and that the procedure is medically necessary.

How:

  • Review and update your leave policies to comply with the new law.
  • Inform employees that inquire about leave based on organ donation.

Additional Resource

AB 1223Back to the top

Colorado

Wage Theft, Now Criminal Theft

Who: Colorado employers

When: January 1, 2020

What:

Beginning in 2020, an employer who is guilty of not paying wages will be subject to Colorado’s criminal theft statute.

The legislation defines “employee” as an individual performing labor or services for the employer’s benefit, and as it relates to the amount of control the employer has over the individual. The definition of an employer is the same one used in the Fair Labor Standards Act. U.SC. 203 (d)

The current penalty for wage theft is $300 for the failure to pay wages and $500 for the failure to pay minimum wage. Under the new law, the fine for theft could be anywhere from $50 to $1 million, depending on the crime and amount of money withheld.

Additionally, the exemption that exists for employers unable to pay wages due to Chapter 7 bankruptcy or other court action is removed from the new law. Employers will be liable for all financial conditions that disrupt their ability to pay their employees.

How:

  • Review your pay schedule and protocols with this new law in mind.
  • If necessary, consult with legal counsel about how the new law may impact your financial outlook and how to remain compliant.

Additional Resource

HB 1267

Minimum Wage Raises An Option For Colorado Counties and Cities

Who: Colorado employers

When: January 1, 2020

What:

Colorado has lifted the restrictive law that kept local governments from setting the minimum wages in their area. The 2020 law will allow local authorities to consider the cost of living in their regions by setting their own minimum wage standards to take effect on or after January 1, 2021.

Under the law, no more than 10% of Colorado’s local jurisdictions may pass local minimum wage rates, and those rates can’t increase by more than 15% every year. The law permits adjacent communities to join in the local ordinance and create a regional wage rates.

Any local ordinance must also provide a tip credit equal to the state’s tip credit for employees that prepare and offer sales of food and beverages on or off an employer’s premise.

The state’s minimum wage is set to increase to $12.00/hour on January 1, 2020, and the minimum wage for tipped employees will be $8.08/hour.

How:

Be aware of your local politics and consult with your legal counsel as necessary.

Additional Resource

HB 1210Back to the top

Washington, D.C.

Updates to the Paid Family and Medical Leave

Who: Washington, D.C. employers

When: January 1, 2020

What:

The D.C. Office of Paid Family Leave (OPFL) will publish a paid leave notice that employers must post in a visible location and send to all remote personnel by January 1, 2020. The notice will cover the Universal Paid Leave Act. Employers need to get employees to acknowledge receipt of the notice at the time of hire, annually, and when the employer is alerted to an employee requesting to use the leave.

As background, starting in 2020, the Universal Paid Leave Act will begin providing 8 weeks of paid parental leave, 6 weeks of paid family leave, and 2 weeks of paid personal medical leave. The paid leave is funded by a 0.62% increase in D.C. employer payroll taxes.

How:

  • Monitor OPFL for the notice.
  • Determine where you will post the notice and how you will distribute it to employees.
  • Update your paid leave policies and procedures to be compliant with the new requirements.

Additional Resources

D.C. Department of Employment Services

D.C. Paid Leave Notice to Employers and Employees

B21-0415 BillBack to the top

Illinois

Workplace Transparency Act Combats Discrimination and Harassment

Who: Illinois employers

When: January 1, 2020

What:

Governor JB Pritzker signed legislation that provides the following:

  • Unlawful discrimination is actual and perceived discrimination based on an employee or applicant’s race, color, sex, and other protected characteristics under the Illinois Human Rights Act.
  • Harassment is prohibited in a working environment, where an employee is assigned to conduct work. This definition includes locations outside of the workplace.
  • Employers are responsible for managers and supervisory employees who are harassing other employees. Employers are only responsible for harassment by non-manager and non-supervisory employees if the employer is made aware of the situation and fails to take corrective action.
  • Non-employees include contractors, subcontractors, vendors, consultants, and independent contractors. Non-employees are also protected from harassment; the employer is responsible in the case of the harassment of a non-employee if the employer is made aware of the situation and doesn’t take corrective action.
  • Employers must conduct annual anti-harassment training programs; all employees must attend. The training program must include the content in the Illinois Department of Human Rights (IDHR) model training program.
  • Non-disclosure and non-disparagement language that includes harassment and discrimination are banned from employment agreements.
  • Arbitration agreements can’t include clauses that aren’t compliant with the new law, including waiving rights to assert claims and punitive damages.
  • Arbitration agreements must state employees and candidates may file claims of harassment and discrimination through arbitration or judicial means.
  • Although severance agreements may include non-disclosure and non-disparagement language, it must include the employee’s right to consider signing the agreement for 21 days and 7 days after signing the agreement to revoke it.
  • Sexual harassment can be a qualified reason to use up to 12 weeks of unpaid leave for services that fall within the Illinois Victims’ Economic Security Safety Act.
  • IDHR may start a preliminary investigation if it believes there is a pattern or practice of discrimination. IDHR has the right to charge a civil rights violation and to issue civil penalties for failing to report or provide anti-harassment training.

Training requirements

Anti-harassment training must be completed by December 31, 2020 and then follow an annual training schedule. The training course must be interactive, and include the following requirements:

  • Define and explain what sexual harassment is to employees.
  • Provide prohibited sexual harassment and show examples.
  • Provide a summary of the federal and state provisions for anti-harassment and remedies.
  • Explain the employer’s responsibility on how to handle sexual harassment, including being investigated and taking preventative action.

Employers may be fined for any violations, depending on the number of employees and additional violations.

All restaurants and bars need to create training specific to their industries. Hotel and casino employers must provide an anti-harassment policy to employees and post it in a visible place.

How:

  • Update your anti-harassment policies to comply with the new requirements.
  • Review and ensure your current anti-harassment training program complies with the new language and includes the content from IDHR’s training model.
  • Review and update your employment agreements to ensure the language about is compliant and doesn’t include non-disclosure of harassment.
  • Review and update your arbitration agreements to be compliant with the new requirements.
  • Compile any harassment or discrimination judgments, rulings, or settlements that will need to be reported to IDHR.
  • Review and update your employee handbook policies and procedures to be compliant with the new requirements.

Additional Resources

Sexual Harassment and Discrimination Employer Notice

SB 75 Public Act 101-0221

Recreational Marijuana Legalized, but Employer Restrictions Still Exist

Who: Illinois employers

When: January 1, 2020

What:

The state of Illinois will recognize marijuana as a lawful product for possession, use, or purchase. Employers may impose no-drug policies, but the policy must be implemented in a non-discriminatory way.

The legislation does provide specific information about how an employer can determine if an employee is under the influence of marijuana. The employer must demonstrate in good faith that an employee exhibits specific symptoms like:

  • Speech, dexterity, agility, coordination, demeanor, unusual behavior, negligence, or carelessness when operating machinery or equipment.
  • Disregard for employee safety, or any involvement in an accident that resulted in serious damage to equipment or the property.
  • Disrupting the production or manufacturing process.
  • Carelessness the results in an employee’s injury

If an employer disciplines or terminates an employee for being under the influence, the employer has to provide the employee with a reasonable opportunity to contest the decision.

How:

  • Review and update your drug policy and drug-screening policies
  • Communicate with your employees about how your company treats marijuana use and your drug-screening policies, if applicable.
  • Train your supervisors and managers to be aware of and look for signs of impairment.

Additional Resource

HB 1438

Reporting Data Breaches to the Illinois Attorney General

Who: Any organization with a data breach that affects 500+ Illinois residents

When: January 1, 2020

What:

If any organization experiences a data breach that affects 500 or more Illinois residents, the organization must report the incident to the state attorney general. The notice must include:

  • A description of the event
  • The number of impacted Illinois residents
  • The steps being taken to address the event.

The notice must be sent quickly, no later than when the organization informs consumers of the breach.

How:

  • Review and update your data privacy policies and procedures to ensure they are compliant with the new requirements.
  • Review your data collection policies and procedures and update them accordingly.

Additional Resource

SB 1624

Artificial Intelligence Disclosures During Job Interviews

Who: Illinois employers

When: January 1, 2020

What:

The Artificial Intelligence (AI), Video Interview Act, sets standards for employers who use AI during the interview process. The standards captured in the law include:

  • Notifying the job applicant about the use of AI and its purpose during the video interview. An information sheet about how AI works isn’t required but could be considered good practice to provide the candidate before the interview.
  • Employers can’t use AI if the candidate hasn’t given consent. That includes not sharing video interviews with anyone other than those individuals needed to evaluate the candidate’s experience.
  • Employers, including all individuals who have a copy, must destroy a video interview within 30 days of an applicant’s request for its destruction.

How:

  • Evaluate your hiring practices and procedures to determine if they fall within the new law, particularly if you use a vendor to conduct the video recordings.
  • If you’re using AI during the interview process, work with your legal counsel to develop or update a notice with written consent to give to applicants before a video interview. Make sure it includes information about AI and its use during video job interviews.
  • Evaluate your current video destruction procedures and ensure that they can meet the 30-day requirement if a candidate requests it.

Additional Resource

HB 2557Back to the top

Minnesota

Minneapolis Wage Theft Ordinance Covers All Employees

Who: Employers with Minneapolis employees; employers located in Minneapolis city limits

When: January 1, 2020

What:

All employees located in Minneapolis, who work a minimum of 80 hours/year, are covered by the Minneapolis Wage Theft Prevention Ordinance. Among the differences between the city and state regulations are an explanation of the Sick and Safe Time rules and an employee’s signature of approval. The poster must also be in English, Spanish, and any other language used by employees and distributed to employees.

There are also differences in the Employee Notice. The Minneapolis Employee Notice must:

  • Be given to all employees, including new employees at the time of hire, before starting work. New employees must sign their pre-hire notice.
  • Include Sick and Safe Time information including hours of leave, type of year used to determine accrual and carryover, the earliest date that Sick and Safe Time can begin after 90 days from the date of hire
  • Include the employee’s date of hire, overtime pay rates and the hours needed to work to qualify for overtime, and, if the position uses gratuities, a tip-sharing or pooling statement that says it is voluntary.
  • The notice may reference the employer’s handbook or other policies that contain the required information instead of repeating all of the information.

Any changes to the pre-hire notice must be redistributed before the effective date and require a signature of receipt by the employees.

How:

  • Review and update your time off policies to ensure compliance with the new ordinance.
  • Continue to monitor for the Poster and Employee Notice. KPA will continue to monitor and will update our resources when the information is made available.
  • Prepare to quickly distribute the Employee Notice and Posters by January 1, 2020, when they are made available.

Additional Resources

Ordinance No. 2019-031

Minneapolis Wage Theft

Duluth Safe and Sick Time Ordinance Takes Effect

Who: Duluth employers with 5+ employees

When: January 1, 2020

What:

Duluth, Minnesota, joins the twin cities by imposing sick and safe time leave for employers with at least 5 employees. Employees must spend more than 50% of their time within city limits to qualify. Independent contractors, student interns, seasonal employees, and some railway employees are not covered by this ordinance. Employers should use one of two methods for providing paid leave:

  • Accrual: Employees will earn 1 hour of sick and safe time for every 50 hours worked, up to 64 hours/year. Employees can carry up to 40 hours into the following year.
  • Frontload:” Employers may “frontload” by giving employees access to at least 40 hours of sick and safe time at the start of the year. Employers who choose this method aren’t required to carry over the hours from year to year.

Sick time is defined as an absence from work that is related to an employee’s mental or physical illness, injury, or health condition, or to provide care to a family member with an illness, injury, or health condition. Safe time is defined as being an absence related to domestic assault, sexual assault, or stalking of the employee or employee’s family member.

Employers must provide a notice to employees, either in an individual distribution or placing the notice in a visible area.

Additional Resources

Duluth, Minnesota Earned Safe and Sick Time Poster

Duluth, Minnesota Earned Safe and Sick Time FAQs

Duluth, Minnesota About Earned Sick and Safe Time

Ordinance No. 10571Back to the top

Nevada

Pre-employment Marijuana Drug Tests Restricted

Who: Nevada employers

When: January 1, 2020

What:

Nevada is the first state in the nation to curb pre-employment marijuana drug testing. The new law:

  • Ban Nevada employers from refusing to hire a candidate because their drug test screening showed the presence of marijuana.
  • Allows employees who have tested positive for marijuana, to refute the test results by submitting their own screening test within the first 30 days of employment. In that instance, the employee must pay for their screening test.

Certain positions are exempt from this rule and employers retain the right to reject applicants who apply to jobs including firefighters, emergency medical technicians, operating motor vehicles if the law requires the employee submits to a drug test, and a position that the employer decides “could adversely affect the safety of others.”

There are exceptions if the new law conflicts with language in contract-based positions or collective bargaining agreements. The law also doesn’t apply to jobs that are funded by the federal government.

How:

  • Review and update your drug testing policies, procedures, and handbooks to ensure they are compliant with the new law.
  • Review and update your pre-employment procedures, taking into consideration the employee’s ability to rebut a positive drug test with their own test.
  • Review your job descriptions to determine which positions are exempt due to safety.
  • Review your employment contracts and collective bargaining agreements for drug testing language, consider whether you will need language about this new law.

Additional Resource

AB 132

Paid Leave Becomes the Law

Who: Nevada employers with 50+ employees

When: January 1, 2020

What:

For the first time in Nevada, private sector employers with 50 or more employees must provide paid leave for all employees, regardless of full- or part-time status, per the Paid Time Off (PTO) Law.

Requirements:

    • Employees must receive at least 0.01923 hours of paid leave for each hour worked.
    • Each employee may use up to 40 hours of paid leave per year.
    • The pay rate for leave taken must match the employee’s rate of pay.
    • Employees may use paid leave after their 90th calendar day of employment and do not need to provide a reason for leave to the employer when it is used.
    • Employers must post information about the law by January 1, 2020.
    • Every payday, the employee must receive an accounting of the accrued leave hours.

Exceptions:

    • Employers in their first two years of operations.
    • Employers who already provide all employees with paid leave or paid time off at the same or higher rate required in the law.
    • Though the law does not specifically define “employees,” it does make clear that temporary, seasonal, and on-call employees are not eligible.

Additional notes:

    • Employers may require employees to use leave in increments of 4 hours or more at a time.
    • Employees may be required to provide notice of their intent to take paid leave “as soon as is practicable.”
    • The Nevada Labor Commissioner issued an Advisory Opinion to provide further guidance, which includes:
      • Clarity on how the commissioner’s office will interpret eligibility–that all those generally employed for 90 days or more will be considered eligible.
      • Specific definitions of temporary, seasonal, and on-call employees (including per-diem employees) who will not be covered by the law or included in a count to determine an employer’s total number of employees.

How:

  • Review existing leave and paid time off policies and update them to comply with the new law.
  • Collect the Spanish and English posters prepared by the Labor Commissioner’s office and prepare to post them by January 1, 2020.
  • Make sure human resources and managerial/supervisory employees are trained on the new requirements and prepared to explain them to employees.

Additional Resources

SB 312

SB312 Paid Leave Poster (English)

SB312 Paid Leave Poster (Spanish)

Nevada Advisory Opinion LetterBack to the top

New Jersey

No Salary History Inquiries

Who: All private employers

When: January 1, 2020

What:

Employers in New Jersey are no longer permitted to ask a job applicant about salary and benefit history and may not use that information as the basis for screening applicants or making a hiring decision unless the applicant volunteers the information without any prompting from the employer. Additionally, the law:

  • Requires employers to wait to confirm the salary and wage history of an applicant, and collect express written permission to obtain it, until after an offer of employment with complete compensation, has been extended.
  • Prevents employment agencies from sharing salary history with potential employers without the express consent of the applicant.
  • Allows employers to inquire about an applicant’s experience with compensation that includes a commission or incentive plan but does not allow the employer to seek specifics about earnings.
  • Does not permit employers to consider an applicant’s refusal to provide salary and wage information when assessing a candidate for a position.
  • Introduces civil penalties of up to $10,000 for repeat violations.

The law does not apply to:

  • A current employee who is changing jobs or promoted within the company.
  • Any position where federal law or regulation requires the disclosure or verification of salary history for employment or to determine compensation.

How:

  • Review job application policies and forms, as well as any interview guidelines and background, check instructions to make sure they do not include salary history inquiries or screening questions as applicable.
  • Train HR department and other managers about the changes.

Additional Resource

AB 1094Back to the top

New York

Salary History Ban

Who: All employers

When: January 6, 2020

What:

The New York Labor Law has been amended to prohibit employers from seeking wage or salary history, either orally or in writing, of job applicants or current employees for use in determinations of employment offers, job promotions, or appropriate compensation. This law applies to all external job applicants as well as current employees seeking new positions or promotions.

Also, it is illegal to:

  • Seek wage or salary history for an applicant or current employee from other employers, employees, or agencies of an applicant or employee.
  • Use salary or wage history to determine whether or not to offer employment or advancement, or to decide on appropriate compensation for an applicant or employee.
  • Refuse to interview, hire, promote or employ an applicant or current employee who does not provide a prior wage or salary history or someone who has filed a complaint alleging a violation of the salary history ban.

Exceptions:

  • Applicants or current employees may voluntarily (without prompting in any way) disclose or verify wage and/or salary history, especially during negotiation.
  • Employers can confirm wage or salary history after an offer of compensation is made if the applicant or current employee provides this information to support a higher wage or salary than was offered by the employer.
  • Employers may verify salary and wage history if an existing federal, state, or local law requires disclosure or verification.

Applicants and current or former employees who successfully bring a civil action based on this law may be awarded injunction relief and reasonable attorneys’ fees.

How:

  • Review job application policies and forms, as well as any interview guidelines and background check instructions to make sure they do not include salary history inquiries or screening questions.
  • Educate and train employees or managers involved in the recruiting and hiring process about the changes.

Additional Resource

Senate Bill 6549, now Section 194-A

State Bans Discrimination Based on Reproductive Health Decisions

Who: New York state employers

When: Effective Immediately

What:

The New York State Labor Law has been updated to include a new provisions that ban employers from:

  • Accessing personal information about an employee’s reproductive health choices without the employee’s prior written consent.
  • Discriminating or retaliating against employees, whether through compensation, terms, conditions or employment privileges, based on the employee’s reproductive health care choices.
  • Requiring employees sign a waiver that denies their right to make their own reproductive health care choices.

The law defines “reproductive health decisions” to include, but not be limited to, decisions “to use or access a specific drug, device, or medical service.”

Violating the law, gives the affected employee permission to take civil action against the employer. Employees could be entitled to back pay, benefits, reasonable legal fees and costs, injunction relief, or reinstatement against an employer. Courts may award liquidated damages up to 100% of the award for damages.

How:

  • If you have an employee handbook, you must update your protected class lists, any policy related to medial records privacy, retaliation policies, and employees’ rights and remedies notice to comply with this new law. That updated notice must be distributed to employees.
  • Educate and train supervisors and other HR personnel about the new law and how to maintain confidentiality.

Additional Resource

S 660Back to the top

Oregon

Notify Departed Employees of Non-compete Obligations

Who: All employers

When: January 1, 2020

What:

For a non-competition agreement to be legally enforceable, the employer must provide written notice of the non-compete details to the employee within 30 days after that employee has left the company. The law specifies that this notification must occur after the employee has departed, so delivering the written notice during an exit interview or on their final day of employment does not meet the requirement.

Exceptions: The law only applies to non-competition agreements, not other types of restrictive covenants such as non-solicitation agreements.

How:

  • Send every former employee a copy of their signed non-competition agreement within 30 days of employment termination.
  • Review and update your agreements and any relevant policies to be compliant with the changes.

Additional Resources

HB2992

Oregon.gov Technical Assistance for Employers

New Employer Accommodations for Pregnancy Act

Who: Employers with six or more employees

When: January 1, 2020

What: Employees and job applicants with pregnancy-related conditions are now entitled to reasonable accommodations in the workplace unless these accommodations would pose an undue hardship on the employer. Specifically, employers may not:

  • Deny employment because an employee or applicant requires a pregnancy-related accommodation.
  • Take negative action against an employee who asks about or requests such an accommodation.
  • Require a pregnant employee to accept unnecessary reasonable accommodations if they do not need them.
  • Make an employee use FMLA leave instead of providing a reasonable accommodation.

Notices about the Act and the employees’ rights must be posted and provided in writing to all current employees within 180 days of the Act, to any new hires, and any existing employees who become pregnant after January 1, 2020.

How:

  • Access training and educational materials created by the Oregon Bureau of Labor and Industries.
  • Update policies and employee handbooks.
  • Provide training to human resources and managers/supervisors.
  • Post the public notice with more information about these accommodations available in a conspicuous and accessible place to inform all employees of the new protections and their rights.
  • Provide a written copy of the notice to:
    • New employees at the time of hire
    • Existing employees by June 29, 2020
    • Within 10 days of an employee informing the employer of a pregnancy

Additional Resources

HB2341

Oregon.gov Accommodations for Pregnancy Related Conditions

Living Donors Receive Protected Leave

Who: All employers 

When: January 1, 2020

What:

Employees who donate a body part, organ, or tissue, may take protected leave under the Oregon Family Medical Leave Act (OFLA) after living donation becomes a protected procedure under the Act. Specifically, the act’s definition of a “serious health condition” is expanded to include leave related to living donors—which encompasses preoperative preparation, surgery, post-operative care, and recovery. It also prevents insurance companies from limiting a donor’s access any coverage (health, long term care, or life) or increasing premiums based on the person’s status as a donor. The OFLA grants 12 weeks of unpaid, job-protected leave per year for a serious health condition or to care for a family member’s serious health condition.

How:

  • Review and update policies and employee handbooks to ensure information about OFLA requests is up to date.
  • Train human resources and managers/supervisors about what constitutes an appropriate Family Medical Leave request.

Additional Resource

SB 796

Inform Employees of ICE Audits in Advance

Who: All employers

When: January 1, 2020

What:

Employers must notify all employees after they’ve received a federal Notice of Inspection from Immigration and Customs Enforcement (ICE) that will require them to provide ICE with employees’ I-9 forms. Employee notification has to take place within three days of receiving the official notice from the federal agency. The law defines employees as anyone who provides services wholly or partly in the state to an employer who pays the individual at a fixed rate.

How:

Notify employees within three days of receiving a federal Notice of Inspection from ICE by:

  • Posting the notice provided by the Oregon Bureau of Labor and Industries in a conspicuous and accessible location.
  • Distributing, or reasonably attempting to distribute, the notice individually to employees in each employee’s preferred language.

Additional Resources

SB 370

Oregon.gov Federal Inspections Notice (multiple languages available)Back to the top

Rhode Island

New Limitations on Non-competition Agreements

Who: Employers with the following categories of employees:

  • Non-exempt employees as defined by the Fair Labor Standards Act
  • Low-income employees with average annual earnings no more than 250 percent of the federal poverty level guideline for individuals
  • Short-term employees enrolled at an educational institution, i.e., undergraduate or graduate interns
  • Employees age 18 or under

When: January 1, 2020

What: 

The Rhode Island Non-Competition Act will make non-competition agreements unenforceable against specific types of employees (see above), mainly those who earn low wages, are serving as interns, or who are below a certain age. The act does NOT apply to other types of restrictive agreements, including:

  • Non-solicitation covenants
  • Nondisclosure agreements
  • Confidentiality agreements
  • Forfeiture agreements
  • Non-compete provisions that are included in severance/settlement with a departing employee provided that the employee is given a seven-day grace period to rescind the agreement after signing

Non-competition agreements signed before the effective date of January 15, 2020, are still subject to this law’s provisions. However, existing agreements that now include an unlawful provision are not completely void—the remaining lawful provisions within these agreements are still valid.

How:

  • Review and update policies, procedures, and employee handbooks to capture the new requirements and explain how it applies to the company’s non-competition agreements.
  • Review existing non-competition agreements to determine if they fall into categories affected by the new law and consult with employment counsel to mitigate any risks.

Additional Resource

2019-H 6019 Substitute ABack to the top

Tennessee

The 20-Factor Test Determines Contractor Vs. Employee Relationship

Who: All employers, especially those who work with independent contractors

When: January 1, 2020 

What:

The state has adopted the federal Internal Revenue Service (IRS) “20-Factor Test” as an employer-friendly standard for defining whether a worker is categorized as an employee or an independent contractor. There is no single requirement that classifies a worker one way or the other; employment status is defined by the “totality of circumstances.” In other words, how a worker’s job duties and description fall within the full range of the IRS 20 Factors classifies that person as an employee versus an independent contractor. The complete list of 20 factors can be found in the IRS’ Ruling 87-41, 1987-1 C.B. 296, beginning on page 3 of the document.

How:

Review the employment status of any independent contractors against the full list of factors to ensure that they are classified appropriately.

Additional Resources

HB 539

Internal Revenue Service Ruling 87-41, 1981-1 C.B. 296Back to the top

Texas

Amendments to the Texas Privacy Breach Notification Law

Who: All employers

When: January 1, 2020

What:

Recent amendments to the Texas Privacy Protection Act create specific timelines for notifying individuals affected by a privacy breach, changing the law’s current requirement of notification “as quickly as possible,” to require notification:

  • “Without unreasonable delay.”
  • Within 60 days of the date the breach is discovered.

The amendment requires notification of the Texas Attorney General within 60 days of any event affecting 250 or more Texas residents. Information that must be provided to the attorney general in these cases includes:

  • Details of the circumstances, including how sensitive personal information acquired from the breach was used.
  • Current and planned measures undertaken after the breach and the notifications.
  • The involvement of law enforcement.
  • The number of affected Texas residents.

The law also creates a Texas Privacy Protection Advisory Council composed of 15 Texas residents appointed by government leaders from industry, nonprofit, academia, and the state’s house of representatives and senate.

How:

Review and update policies, procedures, and employee handbooks concerning the handling of private information as well as for the reporting procedures and notification requirements in the event of a privacy breach.

Additional Resource

HB 4390

San Antonio Sick and Safe Leave Ordinance’s December Effective Date Delayed

Who: San Antonio employers

When: Effective Immediately

What:

A San Antonio judge granted an injunction and delayed the December 1, 2019, effective date for the city’s Sick and Safe Leave Ordinance.

How:

Continue to monitor for any litigation activity and updates that will impact your business.

Additional Resource

November 2019 HR Regulatory UpdateBack to the top

Washington

Non-compete Reform

Who: All employers

When: January 1, 2020

What:

Employees and independent contractors must now meet a minimum compensation threshold before an employer may ask them to enter into a non-competition covenant. Under the new regulation, non-compete agreements will be “void and unenforceable” if:

  • Employees earn less than $100,000 per year.
  • Independent contractors earn less than $250,000 annually from the agreement holder
  • An employer fails to notify a prospective employee in writing of the terms of a non-compete covenant before that person accepts an offer of employment.
  • The proposed non-competition agreement is for a period longer than 18 months after an employee leaves, unless it’s proven that the longer duration is necessary.
  • The proposed agreement would require adjudication of the non-competition covenant outside of Washington state.

The income threshold for both employees and independent contractors is adjusted for inflation each year. The law doesn’t apply to non-solicitation agreements, confidentiality agreements, and non-disclosure agreements, including non-disclosure of trade secrets or inventions, covenants related to the sale of a business, or covenants entered by a franchisee. It does, however, apply to non-competition agreements signed before the effective date of January 1, 2020, unless legal proceedings started before that date or the agreement was signed before the effective date but is currently not being enforced.

Violations of the new regulations may prompt enforcement action, including payment of actual damages or a penalty of $5,000 to any aggrieved employee or independent contractors, as well as attorney’s fees, expenses, and court costs.

How:

  • Review and update policies, procedures, and employee handbooks to disclose the terms of any non-competition covenant in writing to prospective employees no later than when that employee accepts an employment offer.
  • Review existing non-competition agreements to determine if they fall into categories affected by the new law and consult with employment counsel to mitigate any risks.

Additional Resource

HB1450Back to the top

Virginia

Required Regular Wage Statements

Who: All employers, except for agricultural employment

When: January 1, 2020

What: All employers must provide pay stubs to employees on “each regular pay date,” rather than only upon an employee’s request. These pay stubs must include the following information:

  • Employer name and address
  • Hours worked in the pay period
  • The applicable rate of pay
  • Gross wages for the pay period
  • Amount and reason for payroll deductions

How:

  • Educate and train human resources and payroll employees about the new requirements.
  • Update payroll processes to ensure wage statements and/or pay stubs include all necessary information.

Additional Resources

Virginia Code

SB 1696

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