Rules & Deadlines to Know This November

Who: All employers

When: Comments due by November 9, 2020

What: The EEOC is seeking public comment on a proposed rule change that affects its conciliation process.

The EEOC is proposing to amend its conciliation process in an effort to improve accountability, transparency, and program effectiveness. The proposed rule allows the respondent at least 14 calendar days to respond to the initial conciliation proposal. In addition, the proposed rule would require the agency to provide certain information to the employer:

• A summary of the information the agency relied on when determining reasonable cause;
• A summary of the legal basis of its findings and how it applied the law to the facts of the case;
• If applicable, the criteria it will use to identify victims from the pool of potential class members;
• The basis for monetary or other relief, including the calculations it used for the initial conciliation proposal; and
• Designation of the case as systemic, class, or pattern or practice, along with the reason for such designation.

How:

• Submit comments by November 9, 2020 at http://www.regulations.gov/ or by any of the other methods described in the proposed rule.

Additional Resource:

Proposed Rule

Who: All employers

When: Effective November 16, 2020

What: The Equal Employment Opportunity Commission (EEOC) published a final rule on October 15, 2020 that amends its procedural regulations with regard to Title VII, the American with Disabilities Act, and the Genetic Information Nondiscrimination Act. The new rule specifically allows for digital transmission of charge-related documents and updates no-cause determination procedures, including:

• Clearer language in letters of determination to advise of the agency’s decision to close an investigation;
• Language in dismissal notices that clearly states the charging party has a statutory right to file a lawsuit; and
• Language that states that dismissal of the case does not mean the claims have no merit.

The amended rule also permits delegation of authority to issue no-cause determinations, which may eliminate the need for review by more senior staff. The EEOC believes the change will increase accountability without delaying decision making.

Additional Resources:

Final Rule on Procedural Regulations

Who: Employers who employ or plan to employ foreign employees

When: Department of Labor rule effective October 8, 2020; Department of Homeland Security rule effective December 7, 2020; comments due by November 9, 2020

What: The U.S. Department of Labor (DOL) and the U.S. Department of Homeland Security (DHS) released interim final rules that affect foreign workers and the organizations that employ them.

The DOL rule changes how prevailing wage rates for foreign workers are calculated, substantially increasing Occupation and Employment Statistics Wage Levels 1 through 4. The wage rates are used in Labor Condition Applications that support H-1B, H-1B1, and E-3 work visa applications and applications for Permanent Employment Certification (PERM). The rule increases the amount of guaranteed wages an employer must pay a foreign worker, thereby making it more difficult for U.S. employers to hire and retain highly skilled foreign workers.

The DHS rule revises the definition of “specialty occupation” and thereby limits the types of positions that qualify as specialty occupations under the H-1B work visa program. The new rule also requires proof an employer-employee relationship; redefines U.S. employer, worksite, and third-party worksite; and imposes other classification restrictions that generally limit the ability of employers to hire foreign workers.

Employers with affected foreign employees must be prepared to document how their H-1B positions meet the definition of Specialty Occupation and to provide corroborating documentation that proves the employer-employee relationship.

How:

• Comment on the interim rules by November 9, 2020.
• Consult with your legal counsel to determine the likely effect of the legislation on your ability to hire and retain foreign workers.
• Determine which employees are affected by the new wage levels and prepare to adjust and file amendments if wages are below the new standard.
• Determine which of your employees could be subject to the new rules and prepare related H-1B documentation as needed.

Additional Resources:

Strengthening the H-1B Nonimmigrant Visa Classification Program

Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States

New Foreign Labor Wage Data

Who: Federal contractors and grantees

When: Applicable to contracts created on or after November 1, 2020

What: The U.S. Department of Labor (DOL) published FAQs related to Executive Order 13950, “Combating Race and Sex Stereotyping.” Among other issues, it clarified the type of training that can and can’t be provided with regard to implicit or unconscious bias.

Specifically, the training cannot teach or imply “…that an individual, by virtue of his or her race, sex, and/or national origin, is racist, sexist, oppressive, or biased, whether consciously or unconsciously.” The FAQ went on to state that such training is not prohibited “…if it is designed to inform workers, or foster discussion, about preconceptions, opinions, or stereotypes that people—regardless of their race or sex—may have regarding people who are different…”

The FAQs also described how to file a complaint alleging unlawful training programs and stated that the Office of Federal Contract Compliance Programs has the authority to investigate alleged violations of Executive Order 13950 now—before its effective date—under the authority of Executive Order 11246.

How:

• Review your training materials to ensure they do not violate the order and revise as necessary.

Additional Resources:

FAQs Related to Executive Order 13950 – Combating Race and Sex Stereotyping

Executive Order on Combating Race and Stereotyping

Who: Federal contractors and subcontractors and federal grant recipients

When: Effective September 22, 2020

What: The Executive Order on Combating Race and Sex Stereotyping sets limits on the type of diversity and inclusion and sexual harassment training covered employers may provide to their employees. Training may not include “Divisive Concepts,” which are defined as:

1. One race or sex is inherently superior to another race or sex;
2. The United States is fundamentally racist or sexist;
3. An individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously;
4. An individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex;
5. Members of one race or sex cannot and should not attempt to treat others without respect to race or sex;
6. An individual’s moral character is necessarily determined by his or her race or sex;
7. An individual, by virtue of his or her race or sex, bears responsibility for actions committed in the past by other members of the same race or sex;
8. Any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex;
9. Meritocracy or traits such as a hard work ethic are racist or sexist, or were created by a particular race to oppress another race; and
10. Any other form of race or sex stereotyping or any other form of race or sex scapegoating.

Federal government contractors must include a contract clause indicating that they will not teach such concepts to their employees in new or amended contracts they enter into after November 22, 2020. Contractors must also notify labor leaders in charge of their employees’ unions. Contracts exempted from coverage by Executive Order 11246 are not subject to these requirements.

Federal grant recipients must certify that they will not use federal funds to promote Divisive Concepts.

The Office of Federal Contract Compliance Programs is responsible for enforcing the new rules and will request copies of covered employers’ training materials and other information related to the training. Violations of the rule may lead to contract suspension or termination, and suspension or termination as a federal contractor.

How:

• Determine if any of your training materials regarding race, sex, diversity, and inclusion are in violation of the Executive Order and modify them as necessary.
• Provide training for your managers and supervisors regarding Divisive Concepts as defined by the Executive Order.

Additional Resources:

Executive Order on Combating Race and Sex Stereotyping

Who: All employers

When: At the time of this reporting, there was no reported effective date. KPA will continue to monitor for any change.

What: U.S. Immigration and Customs Enforcement (ICE) published new guidance and a short FAQ related to its relaxed requirements for in-person Form I-9 document inspection for employers whose operations and employees are 100% remote due to COVID-19. It addresses what to do if the Employment Authorization (EA) documents used during the remote hire have expired or are lost and what to do if the person who examined the EA documents is not available to conduct the physical inspection.

The most recent extension of the relaxed I-9 rules is set to expire on November 19, 2020.

How:

• Review and revise your procedures and documentation as needed in order to comply with the latest ICE guidance.

Additional Resources:

DHS Form I-9 FAQs

Who: California employers with five or more employees

When: Effective October 1, 2020

What: California’s Department of Fair Employment and Housing amended its Fair Chance Act—the state’s “ban the box” law that prohibits employers from asking about an applicant’s criminal history prior to making a job offer. The amendments:

• Update the definition of applicant to include people who begin work before an employer has reviewed their criminal history
• Warn employers that they may not circumvent the law by having the person start work “before undertaking a post-conditional offer review of the individual’s criminal history”
• State that the law applies to workers supplied by labor contractors and union hiring halls
• State that employers who are required by law to conduct criminal background checks must still comply with the law’s requirements and must be able to justify their policies
• Clarify that employers may consider participation in a pretrial or post-trial diversion program as evidence of rehabilitation or mitigating circumstances if offered by the applicant as evidence after a conditional offer of employment has been made
• Remind employers that they must comply with California’s Fair Credit Reporting Act and local ban-the-box laws

The Department also released a set of FAQs that – -explains the law in plain language, describes which employers are covered by the law, and summarizes the rules employers must follow -when inquiring about an applicant’s criminal history.

How:

• Review your policies and procedures related to job applications, interviews, and conditional offers of employment to ensure your compliance with the amended law.

Additional Resources:

Fair Chance Act: Criminal History and Employment FAQs

Fair Chance Act Regulations

Who: California employers

When: Released October 12, 2020

What: California is proposing a third set of modifications to its Consumer Privacy Act. The period of public comment closed October 28, 2020. Among other changes, the modifications would:

• Give examples of how businesses that collect consumers’ personal information offline can provide the notice of right to opt out of the sale of their personal information using an offline method
• Advise how to make it easy for consumer to opt out
• Clarify what proof a business can require an authorized agent to provide
• Clarify what a business may require a consumer to do to verify their opt-out request
• A statement that businesses are required to verify that a person authorizing the sale of a child’s data is the child’s parent or guardian

How:

Monitor the website for the release of the final version of the CCPA.

Additional Resources:

Proposed Modifications to California Consumer Privacy Act

AB-1281 Privacy: California Consumer Privacy Act of 2018

Who: All Illinois employers

When: Training deadline December 31, 2020

What: The Illinois Human Rights Acts requires all Illinois employers, regardless of size, to complete annual sexual harassment prevention training for all employees. No moratorium or extension has been granted for COVID-19–related reasons. The training must include:

• What constitutes sexual harassment, along with examples of unlawful conduct;
• A summary of federal and state statutes relating to sexual harassment;
• Remedies available to victims; and
• A summary of an employer’s responsibilities related to sexual harassment prevention, investigation, and corrective measures.

Employers may develop their own training or use the state’s model training program. Employers need to maintain a record of the training, including date, names of attendees, written materials, and identity of the presenter.

How:

• Provide the required training by December 31, 2020.
• Maintain associated attendance records.

Additional Resources:

Illinois SB 1829 Workplace Transparency Act

Illinois Department of Human Resources Model Training Program

Who: New York City employers

When: Phase 1 effective September 30, 2020; extended deadline for documentation is November 30, 2020

What: On September 28, 2020, New York City amended its Earned Safe and Sick Time Act to be in alignment with the New York State Paid Sick Leave Law that took effect on September 30, 2020. The law requires employers to provide domestic workers with up to 40 hours of paid safe and sick leave The amendments that are effective for Phase 1 require employers to:

• Allow employees to use their paid leave immediately upon accrual rather than waiting 120 days
• Reimburse employees for the cost of obtaining documentation required by the employer to prove leave was taken for an authorized purpose
• Show the amount of accrued and used safe/sick leave on employees’ paystubs
• Accrue safe/sick leave for all employees, regardless of their status as part time, temporary, or seasonal

The amended law protects employees from retaliation or employer interference when employees exercise their rights under the law, even if they don’t explicitly reference the New York City Safe/Sick Leave Law and when they mistakenly but in good faith assert their rights under the law. The amendments also step up enforcement by allowing New York City’s Corporation Counsel to initiate judicial proceedings against employers and bring suit on behalf of the city against employers with a pattern or practice of violations.

Employers that are working in good faith to produce the required documentation for the paystub notification requirement of the law have until November 30, 2020 to comply. The original deadline was September 30, 2020.

Employers must provide employees with a notice of their rights under the law by January 1, 2021. Thereafter, new employees must receive a notice of their rights under the law at the time of hire.

How:

• Provide the required notice by January 1, 2021.
• Analyze your current sick leave practices and policies to ensure compliance with the New York State Paid Sick Leave Law and the New York City Paid Safe and Sick Leave Act.

Additional Resources:

New York City Earned Safe and Sick Time Act

Notice of Employee Rights Under Paid Safe and Sick Leave Law

Information for Workers on Paid Safe and Sick Leave

FAQs for Paid Safe and Sick Leave

Notice of Employee Rights: Safe and Sick Leave Poster

Who: Pennsylvania employers

When: Effective October 3, 2020

What: Pennsylvania’s Department of Labor and Industry released a final rule that increases the minimum salary an employee must receive to be classified as an exempt Executive, Administrative, and Professional (EAP) employee in accordance with Pennsylvania’s Minimum Wage Act (PMWA). Employees that earn less than these minimums still qualify for overtime. The new thresholds are:

• $684 per week ($35,568 annually), which was effective October 3, 2020
• $780 per week ($40,560 annually), which will be effective October 3, 2021
• $875 per week ($45,500 annually), which will be effective October 3, 2022

The threshold will reset automatically on October 3, 2023 and every third year thereafter to 10^th percentile of all Pennsylvania exempt EAP employees. In 2021 and beyond, the increases will make the Pennsylvania threshold significantly higher than the Fair Labor Standards Act (FLSA) standard.

Employers may meet the threshold with nondiscretionary bonuses, incentive, and commissions, up to 10% of the total salary amount. If those amounts don’t meet the threshold, the employer must make one final lump sum payment no later than the pay period after the end of the year in order to meet the threshold.

The final rule eliminates the need for the employee to customarily and regularly exercise discretionary powers in order to be classified as exempt. It also updated the requirements from customarily and regularly exercising discretion and independent judgment to the primary duty requiring exercise of discretion and independent judgment with respect to matters of significance.

How:

• Consult with legal counsel to ensure you are in compliance with both the FLSA and the PMWA when it comes to categorizing EAP employees as exempt.
• Plan ahead for salary increases if you intend to hire or retain exempt EAP personnel.

Additional Resources:

Pennsylvania Department of Labor and Industry Final Rule

Who: Wisconsin employers covered by the state’s unemployment insurance law

When: New rule published on September 29, 2020; notice required starting November 2, 2020

What: The Wisconsin Department of Workforce Development issued an emergency rule that requires employers to notify employees of the availability of unemployment insurance at the time of separation from employment. Employers may give the employee this notice by email, text, mail, or in person. The suggested minimum language is, “You may file an unemployment claim in the first week that your employment stops or your work hours are reduced.”

The new rule does not change the existing requirement that employers display the “Notice to Employees About Applying for Wisconsin Unemployment Benefits” or its equivalent where employees can readily see it. Giving an employee a digital or paper copy of this poster by email or in person also meets the new rule’s notification requirement.

How:

• Provide the required notice by November 2, 2020.
• Update your HR manual to account for the additional notice required under the emergency rule.

Additional Resources:

Emergency Rule to Provide Notification of Unemployment Insurance to Employees

Notice to Employees About Applying for Wisconsin Unemployment Benefits

Employer Unemployment Resources