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Lake Effect / Legal

Remote Verification of Form I-9 Documents ending July 31, 2023

Employers need to inspect remotely verified Form I-9 documents in-person by August 30, 2023

As mentioned in previous blogs, employers with a remote workforce have been allowed to verify acceptable Form I-9 documents virtually rather than in person, dating back to the start of the pandemic in March 2020. The Department of Homeland Security (DHS) and US Immigration and Customs Enforcement (ICE) announced that the temporary option to review acceptable documents remotely will end effective July 31, 2023. This reversion to pre-pandemic procedures for I-9 verification will require time-sensitive actions, and employers need to start planning now.

For employees hired beginning March 2020: If an employer completed page 2 of the I-9 by virtually verifying the documents establishing identity and employment authorization, they will need to have the employee bring in their documents so they can be verified in person. In-person verification needs to be completed for all impacted I-9 forms by August 30, 2023. When the employer’s representative inspects the documents in person, they should document the following in the “Additional Information” box on page 2:

  • notation of “documents physical inspected”
  • the date of inspection
  • initials of the individual who completed the inspection

It is important to note that employees may use the same documents that they had presented virtually, or they may use other accepted documents as allowed by the DHS and ICE. If the employee provides different documentation, the new information should be listed in the appropriate List A or List B and List C columns, with notes indicating the changes in the “Additional Information” box.
As of July 31, 2023, employers will need to return to the process of verifying forms of identification for the Form I-9 in person. Although DHS is currently reviewing options for possible remote verification of documents in the future, no such changes have been finalized or announced. Lake Effect HR & Law will continue to follow this issue and will provide updates as needed.

If you would like assistance or guidance in complying with the Form I-9 identification requirements or internal I-9 audits, please contact Lake Effect at info@le-hrlaw.com or 1-844-333-5253.

Lake Effect is here to answer all your questions about employment laws, regulations, and new agency guidelines. We continue to monitor important legal and HR developments, as well as other information that could impact the workplace. Please watch our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.

Human Resources / Legal - 06/06/2023

EEOC Cautions Employers That AI Selection Tools Can Have Unlawful Disparate Impact

On May 18, 2023, the EEOC issued a technical assistance guide on the use of artificial intelligence tools in employment selection procedures under Title VII, which is the federal anti-discrimination law. The guidance recognizes employers’ increasing use of AI-developed algorithmic decision-making tools in hiring, promotion, and firing. Such tools may include software designed for resume-screening, hiring, video interviewing, and employee monitoring. The EEOC guidance confirms that these types of tools, like more traditional employment decision-making procedures, must be monitored to ensure that they do not disproportionately exclude applicants or current employees based on a protected class. This would constitute unlawful “disparate impact” discrimination under Title VII unless the employer shows that the use of the tool and the use of a protected characteristic in the decision-making process is “job related and consistent with business necessity.” The EEOC specifically notes:

  • An employer may be responsible under Title VII for the impact of algorithmic decision-making tools even if the tools are designed or administered by a third party. Therefore, employers should select software vendors carefully and assess what steps have been or must be taken to evaluate the selection rates for individuals in protected categories.
  • In assessing disparate impact, the EEOC has historically relied on the general rule that the selection rate for one group is “substantially” different from that of another group if the ratio of former to latter is less than four-fifths or 80%. The EEOC will apply the same rule of thumb to AI developed selection tools. However, the guidance cautions that the four-fifths rule is not dispositive with respect to establishing or disproving disparate impact under Title VII.
  • The EEOC guidance encourages employers to conduct self-analyses on an ongoing basis to assess whether a selection tool has disproportionately negative effects on any protected group. Employers can then take proactive steps to revise or change the tool and avoid violating Title VII.

Lake Effect is here to answer all of your questions about employment laws, regulations, and new agency guidelines. We continue to monitor important legal and HR developments, as well as other information that could impact the workplace. Please watch our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.

Human Resources / Legal - 05/25/2023

NLRB Scrutiny Requires Review of Employee Agreements

Based upon the NLRB’s recent decision in McLaren Macomb (February 23, 2023) and related General Counsel Memorandum 23-05 (March 22, 2023), employers (whether unionized or not) should review severance and other employment agreements containing confidentiality, non-disclosure, or non-disparagement provisions to ensure compliance with the Board’s restrictive new standards.

In McLaren Macomb, the NLRB examined severance agreements offered to 11 employees who were permanently furloughed from a Michigan hospital. The NLRB concluded that offering employees severance agreements that contained broad confidentiality, non-disclosure, and non-disparagement provisions unlawfully interfered with their Section 7 rights under the National Labor Relations Act (NLRA). The Board reasoned that such provisions could limit employees’ rights to communicate with other employees, union representatives, and/or NLRB agents regarding workplace issues and labor disputes, rights which are central to the protections of the NLRA.

In General Counsel Memorandum 23-05, NLRB General Counsel Abruzzo provided additional guidance on the McLaren Macomb decision. The General Counsel’s memo confirmed that whether an employee actually signs a severance agreement containing overly broad confidentiality and/or non-disparagement provisions is irrelevant. The employer violates the NLRA simply by presenting employees with such an agreement. In addition, the memo clarified that the McLaren Macomb decision is retroactive and thus applies to agreements presented to employees before February 2023, although such actions are normally subject to a 6-month statute of limitations. The memo also states that the McLaren Macomb standard is not limited to provisions contained in severance agreements, but rather applies to any employer agreement or communication that implicates employees’ Section 7 rights. These would likely include free-standing confidentiality and non-disclosure agreements and could even include non-compete or non-solicit provisions in certain scenarios.

On the heels of this recent NLRB activity, employers are well-advised to work with employment counsel to review separation agreements, as well as other free-standing agreements and communications with employees. Employers should carefully consider whether confidentiality, non-disclosure, or non-disparagement provisions are truly necessary to protect their business interests. If deemed necessary, they will need to be extremely narrowly tailored to meet the NLRB’s stringent new standard. Your partners at Lake Effect are ready to help you with this important review process.

Lake Effect is here to answer your questions about compliance with federal, state, and local laws as they related to all employment agreements. We continue to monitor important legal and HR developments that affect employers. Please watch our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.

Human Resources / Legal - 04/27/2023

Expanded  Workplace Protections for Pregnant and Nursing Employees

Employers should review their policies and practices regarding nursing and pregnant employees in light of the recently signed Consolidated Appropriations Act, 2023 signed into law at the end of 2022.

Effective June 27, 2023, employers with 15 or more employees will have expanded obligations under the PWFA with respect to employees and applicants experiencing limitations due to pregnancy, childbirth, and related conditions. Effectively overruling some prior court decisions, the PWFA specifies that employees affected by “pregnancy, childbirth, and related conditions,” are entitled to processes, accommodations, and protections under the Americans with Disabilities Act (ADA).

Under the PWFA, employers must engage in an interactive process with affected employees and applicants and provide reasonable accommodations even for a temporary period (unless those accommodations would cause an undue hardship). The terms “undue hardship” and “interactive process” have the same definitions as they do in the ADA.

Notably, an employer may not require paid or unpaid leave as an accommodation if another reasonable accommodation can be provided. The EEOC plans to issue regulations by the end of the 2023 clarifying other types of reasonable accommodations under the PWFA. PWFA enforcement procedures mirror those of other Title VII proceedings, meaning affected employees or applicants can file charges for alleged violations with the EEOC or state or local fair employment agencies. An employer is prohibited from taking any adverse action or engaging in retaliation against an employee who attempts to use this law.

Effective immediately, employers covered by the Fair Labor Standards Act (FLSA) must provide reasonable break time and a private space (that is not a bathroom) for exempt and non-exempt employees to express breastmilk. This amendment supplements the 2010 Break Time for Mothers law, which applied only to non-exempt employees. The new law also clarifies that a pumping break need not be paid, unless it is taken concurrently with a paid break, or the employee is not actually relieved from duty. Like the 2010 law, the PUMP Act exempts employers with fewer than 50 employees, if the employer can show that the accommodation causes an undue hardship to the business.

Enforcement procedures under the PUMP Act are somewhat unique. If an employee believes their PUMP Act rights have been violated, they must notify their employer, who then has 10 days to remedy the alleged violation before any additional legal action can be taken. If the alleged violation is not sufficiently addressed, the employee may pursue all remedies available under the FLSA, including unpaid wages, reinstatement, and liquidated damages.

Lake Effect is here to answer all of your questions about current and newly enacted employment laws and regulations. We continue to monitor important legal and HR developments, as well as COVID-related updates from federal, state, and local authorities. Please watch our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253. 
Human Resources / Legal - 02/06/2023

Commit to a Healthy Organization for 2023; Conduct an HR Check-Up

It’s the start of a new year when many of us commit to personal goals and healthy resolutions. For employers, the new year presents a valuable opportunity to conduct an HR check-up, evaluating and updating HR policies and practices to ensure legal compliance while attracting and retaining a diverse, engaged, and talented workforce. Consider the following questions as you assess the HR health of your organization:

  • When did you last update your employee handbook? Many federal and state employment laws and regulations have evolved in recent years, and your handbook policies may need updating to ensure compliance with current laws.
  • Do you have partial or fully remote employees? Have you implemented policies and procedures addressing remote work? Remote work policies should address such issues as schedule expectations, data security and confidentiality, reimbursement for home office expenses, and tracking and recording work time. Employers should also consider specific practices to ensure remote workers feel included, engaged, and connected to on-site activities and colleagues.
  • Do you have remote employees working in other states? Employers should review the applicable employment laws in any city and state where employees are living and performing work for the organization. Standard HR policies and practices may need to be customized and/or supplemented to reflect legal requirements in those local areas.
  • Are you taking deliberate steps to retain your key employees and rising stars? As a new year begins, employees may be considering their career goals and future opportunities within the organization. Providing practical and engaging opportunities for professional growth and development can help your organization retain and maximize its talented workforce.
  • What steps are you taking to ensure that all applicants and employees are attracted to, welcomed within, and included in your workplace? Consider conducting an equity audit of your job postings, position descriptions, and general HR policies and procedures with the goal of removing unnecessary barriers to employment and advancement. Create a workplace culture that invites, values, and encourages employees of all backgrounds and experiences to perform their best and contribute to your team’s success.

These are just a few questions to consider as you assess your organization’s HR health moving into 2023. Contact your partners at Lake Effect HR & Law to help evaluate all of your HR policies and practices and ensure that you stay in good shape for the coming year.

Lake Effect is here to answer your questions about federal and state employment laws and HR best practices. We continue to monitor important legal and HR developments that affect employers. Please watch our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.

Human Resources / Legal - 01/25/2023

Benefits Limits for 2023

Each year, the IRS sets new limits for employee benefits plans and retirement plans. Please see below for Lake Effect’s ready reference chart setting forth the Benefits Limits for the 2023 tax year. A PDF of this information is available on the here.

 

2022 2023
Flexible Spending Accounts (FSAs)
Healthcare FSA max election (per year) (incl. LTD FSA) $2,850 $3,050
Healthcare FSA max rollover $570 $610
Dependent Care FSA max election (per year) (Single or Married Filing Jointly) $5,000 $5,000*
Dependent Care FSA max election (per year) (Married Filing Separately) $2,500 $2,500*
Transportation Benefits
Parking Account $280/mo $300/mo
Transit Account $280/mo $300/mo
High Deductible Health Plan Requirements to Contribute to an HSA
HDHP min annual deductible - Self-only $1,400 $1,500
HDHP min annual deductible - Family $2,800 $3,000
HDHP out-of-pocket max - Self-only $7,050 $7,500
HDHP out-of-pocket max - Family $14,100 $15,000
HSA max contribution limit - Self-only $3,650 $3,850
HSA max contribution limit - Family $7,300 $7,750
HSA catch up contribution limit (age 55+) $1,000 $1,000
ACA Plan Limits
Maximum Out-of-Pocket (Self-only or Individual in a Family) $8,700 $9,100
Maximum Out-of-Pocket (Family) $17,400 $18,200
QSEHRA (Qualified Small Employer Health Reimbursement Arrangement) – Max Employer contribution 
To Individual $5,450 $5,850
To Family $11,050 $11,800
Salary Thresholds for Non-discrimination Testing
Highly compensated employees $135,000 $150,000
Key employees $200,000 $215,000
Retirement Plans (401(k), 403(b))
Max employee elective contributions for those 49 and younger $20,500 $22,500
Max employer + employee contributions for those 49 and younger $61,000 $66,000
Max employee catch-up contributions for those 50+ $6,500 $7,500
Max employee elective contribution plus catch-up for those 50+ $27,000 $30,000
Max employer + employee contributions for those 50+ $67,500 $73,500

 

 

Human Resources / Legal - 10/24/2022

EEOC Issues Updated “Know Your Rights” Poster

On October 19, the United States Equal Employment Opportunity Commission (EEOC) issued an updated "Know Your Rights: Workplace Discrimination Is Illegal" poster. The poster replaces the prior “EEO is the Law” poster. It summarizes federal employment laws and explains steps individuals can take if they believe they have experienced any form of prohibited discrimination. Employers must physically and/or virtually display the poster in a conspicuous location where notices to applicants and employees are usually posted. Organizations are well-advised to work with a reputable employment poster service to ensure compliance with all federal and state notice posting requirements. Your partners at Lake Effect HR & Law LLC can provide further guidance or answer specific questions.
Lake Effect is here to answer your questions about federal and state employment laws and posting requirements. We continue to monitor important legal and HR developments that affect employers. Please watch our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.
Human Resources / Legal - 10/20/2022

Employers Face New Challenges Under Colorado’s Revised Non-Compete Law

Effective August 10, 2022, employers who aim to protect business interests by requiring employees in Colorado to sign non-compete and customer non-solicit agreements will face new challenges under amendments to Colorado's restrictive covenant law. Key provisions include the following:

  • Post-employment non-compete agreements, including customer non-solicitation agreements, are presumed void unless all of the following are established:
    • For a non-compete agreement, the employee is “highly compensated” at the time of signing and termination, with annual earnings at or above the Colorado Department of Labor and Employment’s highly compensated worker threshold (currently $101,250 per year, to be increased each year);
    • For a customer non-solicit agreement, the employee earns at least 60% of the highly compensated worker threshold (currently $60,750 per year, to increase each year);
    • The agreement is for the purpose of protecting trade secrets; and
    • The agreement is no broader than reasonably necessary to protect the employer’s interest in protecting its trade secrets.
  • Employers must provide a separate written notice of the terms of a non-compete and/or customer non-solicitation agreement:
    • For a prospective employee, the notice must be given before the individual accepts a job offer.
    • For current employees, notice must be given at least 14 days prior to the effective date of the agreement or the effective date of additional compensation or other change in conditions of employment that provides consideration for the agreement, whichever is earlier.
    • Notices must be signed by prospective and current employees.
  • Non-compete and/or customer non-solicitation agreement with employees who primarily work or live in Colorado at the time of termination will be governed by Colorado law, and employers may not require employees to adjudicate them outside of Colorado.
  • The amendments apply to agreements entered into on or after August 10, 2022, but they do not apply retroactively to agreements signed before that date.
  • Violations of the amended law can result in penalties up to $5,000 per employee or prospective employee. The amendments also provide a private right of action to individuals, who may recover actual damages, declaratory/injunctive relief, and attorneys’ fees and costs.
  • The amendments do not affect employee non-solicitation agreements, restrictive covenants related to the sale of a business, agreements for the recovery of training and educational expenses, and “reasonable” confidentiality agreements, as defined by the statute.

If your organization has or plans to hire employees in Colorado, please reach out to your partners at Lake Effect to ensure you comply with the amended non-compete and customer non-solicitation agreement requirements.

Lake Effect is here to answer your questions about restrictive covenants and applicable state laws. We continue to monitor important legal and HR pments that affect employers. Please watch our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.

Human Resources / Legal - 10/06/2022

COVID-19’S Continuing Workplace Impact: EEOC Revises Pandemic Guidance Again

On July 12, 2022, the EEOC issued updated COVID-19 guidance for employers, reflecting the ever-changing but persistent impact of the virus on the workplace. Key updates include the following:

  • Workplace COVID-19 testing
    • Previously, employers could require COVID-19 testing (although it is a medical exam under the ADA) because the EEOC recognized that a person with the virus would pose a direct threat to the health of others.
    • Under the revised guidance, employers may only mandate COVID-19 testing if they show that the testing is “job-related and consistent with business necessity.” (A.6.)
    • Mandatory COVID-19 testing will meet the “business necessity” standard when it is consistent with current guidance from the CDC, FDA, and state and local public health authorities. Employers may also consider such factors as:
      • Community transmission rates
      • Vaccination status of employees
      • Possibility of breakthrough infections for fully vaccinated employees
      • Transmissibility of and severity of illness from current variants
      • Potential impact on the workplace if an employee enters with COVID-19 (A.6.)
    • Antibody testing does not meet the ADA’s “business necessity” standard for a medical exam; employers therefore may not require such testing before allowing employees to re-enter the workplace. As the EEOC notes, an antibody test does not show whether an employee has a current infection, nor establish that an employee is immune to infection. (A.7.)
  • Hiring and job offers
    • If an employer screens everyone for COVID-19 before allowing entry to the worksite, it can screen an applicant in the pre-offer stage who needs to be in the workplace. (C.1.)
    • An employer can also screen applicants for COVID-19 symptoms after making a conditional job offer, as long as it does so for all applicants in the same job type. (C.1.)
    • After an applicant has been offered a job, an employer may only withdraw that offer based upon the applicant’s positive COVID-19 test, symptoms, or exposure if: (1) the job requires an immediate start date, (2) CDC guidance recommends the person not be in proximity to others, and (3) the job requires such proximity to others, whether at the workplace or elsewhere. (C.4.)
  • Interactive process/ accommodation requests
    • Delays in engaging in the interactive process and/or responding to employee accommodation requests are no longer acceptable unless an employer shows specific pandemic-related circumstances justified the delay. (D.17.)
  • Vaccinations
    • Consistent with prior guidance, employers may require all employees to be vaccinated against COVID-19, subject to Title VII and the ADA’s reasonable accommodation requirements. Employers may also require proof of such vaccination. (K.1.)
    • An employee’s vaccination status must be kept confidential and separated from the regular personnel file. However, an employer may share the vaccination information with other employees who need it to perform their job duties. Such employees also must keep the information confidential. (K.4.)

This is not a comprehensive list of the many issues covered in the updated COVID-19 guidance. Please reach out to your partners at Lake Effect HR & Law to ensure that your organization’s COVID-19 policies and practices are in full compliance with current EEOC guidelines. We are here to answer all of your questions about COVID-19 compliance and will continue to monitor important legal and HR developments in this area. Please watch our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.

COVID-19 Resources / Legal - 07/21/2022

COVID-19 Resources

Lake Effect HR & Law, LLC
(844) 333-5253 (LAKE)
info@le-hrlaw.com

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