Each month, Optimum Employer Solutions gathers the latest updates and changes to federal and state
employment law. Read below to learn how these changes may affect you, and how Optimum can help you
ensure compliance.

Question of the Month

Question: I have a problem employee who gave their two-week notice. Management’s thinking is “good riddance!” and we want to accept their resignation immediately. The employee has company property at their house, and we’re concerned they won’t return it. What are the final pay requirements we must follow? Can we withhold a portion of their final check until they return the company property?

Federal/State Updates

Preventing Missteps in Hiring and Managing Seasonal Workers
Hiring seasonal workers can raise some important legal questions over how to properly handle overtime pay, work schedules, employee training, and other matters. These concerns particularly affect businesses in the hospitality and retail industries, which tend to hire seasonal workers in the fall to prepare for the winter holidays.

Read more here.

Upcoming Voting Leave Compliance Obligations

Election Day is almost here, so now is a good time to brush up on voting leave laws and make sure you’re posting any mandatory notices.

Voting Leave
Most states require that employers provide at least a few hours off to vote, and sometimes those hours need to be paid. Often these laws require very little advance notice from employees about their need for leave, so employers should be prepared to grant last-minute requests to leave work to vote.

If you’re in a state with early voting, you may want to encourage employees to take advantage of that option—by offering the same time-off benefit—to reduce the number of absences on Election Day. The availability of early voting and absentee ballots, however, doesn’t change an employee’s right to vote on Election Day if that’s their preference.

Required Notices
California, DC, and New York also require that employers post a notice about employees’ voting rights in a conspicuous location in the workplace. Employees who work from home or don’t report to the workplace regularly should be provided with these notices electronically. (If you have a All in One Labor Law Poster, this posting may already be included.)

California
California requires the notice to be posted at least 10 days before the November 5 election—which is October 26, a Saturday. If you’re closed on Saturdays, we recommend posting or sending this notice by Friday the 25th. California’s notice can be found in English here and in other languages here.

The District of Columbia
DC requires that employers post a voting leave notice created by the DC Board of Elections (DCBOE) at least 60 days before the November 5 election—which is September 6. If you provide this notice electronically for remote employees, you need to get their acknowledgment of receipt. This election’s notice can be found in English and in other languages here. The DCBOE has a web page with additional information.

New York
New York requires the notice to be posted at least 10 working days before the November 5 election (this would be October 22 for a Monday through Friday workplace). New York’s notice is available here.

California 

County of LA Criminal History Update 
Starting September 3, 2024, employers in unincorporated Los Angeles County, including those with remote positions, must adhere to a new fair chance hiring ordinance that goes beyond existing federal and state laws. This ordinance also applies to contractors and freelancers and adds complexity to criminal background check processes. Employers should review and update their hiring practices regarding criminal history inquiries to ensure compliance with this new regulation. The County’s Department of Consumer and Business Affairs will provide necessary notices and documents on its website, currently under construction.

Suggested action items for employers with employees in the County and other jurisdictions having ban-the-box laws are as follows:

• Review the hiring and screening process to help ensure compliance, including the timing of background checks, the distribution of mandatory notices, and the application of mandatory deferral periods.

• Review and update job applications and related forms for impermissible inquiries regarding criminal records;

• Review and update workplace postings to help ensure all required postings are included;

• Review and update company webpages for necessary additions about fair chance hiring;

• Provide training to recruiters and other personnel involved in posting job openings;

• Provide training to personnel who conduct job interviews and make or influence hiring and staffing decisions to explain permissible inquiries into, and uses of, criminal history;

• Provide training to personnel involved in ordering and adjudicating background reports;

• Review written and electronic communications about the hiring process, including conditional job offer templates and pre-adverse action and adverse action notices;

• Plan for the requirement to prepare additional documentation for the individualized assessment and record retention;

• Plan for delays in staffing openings due to delays in receiving background reports; and

• Review the hiring and screening process to help ensure compliance, including the timing of background checks, the distribution of mandatory notices, and the application of mandatory deferral periods.

Illinois

Illinois Law Aims to Curtail Employers’ Mandatory, Captive Audience Meetings
Illinois joined a handful of other states in limiting employers’ ability to conduct “captive audience” meetings when Governor J.B. Pritzker signed into law SB3649, commonly known as the Worker Freedom of Speech Act. The Act is set to take effect on Jan. 1, 2025.

Read more here.

New Law Steps Up AI Regulation in Employment
In an era when artificial intelligence (AI) is rapidly transforming the workplace, Illinois has joined the growing list of states taking legislative action to further regulate the use of AI in employment settings.

Read more here.

New Rules for Employing Minors
Illinois passed new child labor laws that will go into effect on January 1, 2025. The enhanced protections include a certificate authorizing a minor to work, restricting the number of hours a minor can work, changes to the occupations in which minors can work, requiring supervision at all times, and recordkeeping requirements, among others. Read more for additional information.

New York

Retail Workplace Violence Prevention Bill Signed Into Law
On September 4, 2024, Governor Kathy Hochul signed into law the New York Retail Worker Safety Act, a comprehensive measure intended to increase worker safety and address the hazard of workplace violence in retail settings.

Read more here.

Each month, Optimum Employer Solutions gathers the latest updates and changes to federal and state
employment law. Read below to learn how these changes may affect you, and how Optimum can help you
ensure compliance.

Question of the Month

Question: An employee called out a few days ago by leaving a message with some vague information
about being ill and hasn’t followed up since. Can we consider this a voluntary resignation and start the
termination process?

Federal/State Updates

FTC’s Non-Compete Ban Struck Down For All Employers Nationwide

On August 20, a Texas federal court struck down the FTC’s proposed ban on non-competition
agreements on a nationwide basis mere weeks before it was set to take effect, meaning employers
across the country can breathe a sigh of relief and continue to maintain non-competes as their state
laws allow. While there is a slim chance the rule could be resurrected by a federal appeals court in the
future, what’s for certain after the ruling is that you will not have to comply with the rule by September
4 as originally scheduled.

The FTC could try to breathe new life into the rule by filing an appeal of this decision in the coming
weeks. It could also seek an emergency order from the appellate court that would cause the rule to take
effect as scheduled.

We will be monitoring the situation and providing updates as the court battles continue.

California

California Supreme Court Held One Racial Slur Justified Lawsuit

On July 29, 2024, the California Supreme Court issued its opinion in the case of Bailey v. San Francisco District Attorney’s Office, et al. The Court held, in effect, that an isolated act of harassment can be actionable under California’s Fair Employment & Housing Act (FEHA) if it is severe enough “in light of the totality of the circumstances,” and the single use of “an unambiguous racial epithet” can meet that standard of severity.   

New Hampshire

CROWN Act Prohibits Discrimination Based on Hair

September 1, 2024, New Hampshire’s CROWN Act goes into effect. This legislation prohibits
discrimination because of a person’s protective hairstyle. A protective hairstyle “means hairstyles or hair
type, including braids, locs, tight coils or curls, corn rows, Banto knots, Afros, twists, and head wraps.”

Employers with grooming/personal appearance policies banning, limiting, or restricting hairstyles listed
above will be violating New Hampshire law. In addition, facially neutral policies requiring employees to
maintain a “professional,” “neat,” or “tidy” appearance will violate the law if they are discriminatorily
applied or selectively enforced.

Employers should review their dress code policy and educate managers on this change. Prohibiting
discrimination on the basis of a person’s natural hair applies throughout the employment relationship,
from recruiting through termination, not just dress codes.

Connecticut

Expansion of Family Violence Victim Leave

Effective October 1, 2024, amendments to the family violence victim leave law require leave for victims
of sexual assault in addition to family violence. As amended, employees can take leave for the following
qualifying reasons:

• To seek medical care or psychological or other counseling for a physical or psychological injury
  or disability for a victim of family violence or sexual assault;
• To obtain services from a victim services organization on behalf of a victim of family violence or
  sexual assault;
• To relocate due to family violence or sexual assault; or
• To participate in any civil or criminal proceeding related to or resulting from family violence or
  sexual assault.
  The law also amended the supporting documentation an employee may provide regarding the need for
  leave to include documentation related to the sexual assault.

Maryland

Equal Pay Law Amendments

Effective October 1, the Maryland Equal Pay for Equal Work Act is amended to prohibit pay
discrimination on the basis of sexual orientation, religious beliefs, race, and disability.

Under the amended law, an employer may not discriminate by paying employees at a rate less than the
rate paid to other employees in the same establishment performing work of comparable character or of
the same type if the pay difference is based on sex, race, religious beliefs, gender identity, or sexual
orientation.

In addition, employers may not provide less favorable employment opportunities based on sex, race,
religious beliefs, sexual orientation, disability, or gender identity. Less favorable employment
opportunities include

• Assigning or directing the employee into a less favorable career track, if career tracks are
  offered, or position;
• Failing to provide information about promotions or advancement in the full range of career
  tracks offered by the employer; or
• Limiting or depriving an employee of employment opportunities that would otherwise be
  available to the employee but for the employee’s sex, sexual orientation, or gender identity.

It is recommended that employers conduct a pay equity analysis whereby they audit employees’ pay
rate to ensure that employees are being paid fairly for equal work. This audit is aimed at determining
whether pay gaps are due to legitimate, non-discriminatory reasons, such as seniority or merit, and not due to a protected class.

Pay Range Required in Job Postings

Effective October 1, 2024, Maryland employers are required to include a wage range in job postings, as
well as a general description of benefits and other compensation. This is required for any position that
will be performed, at least partially, in Maryland.

This new requirement applies to all Maryland employers, regardless of size and whether the employer
directly posts the position or uses a third-party recruiter.

“Wage range” is defined as the minimum and maximum hourly rate or salary set in good faith by
reference to either:

• Any applicable pay scale;
• Any previously determined minimum and maximum hourly rate or salary;
• The minimum and maximum hourly rate or salary earned by an individual in a comparable
  position at the time of posting; or
• The amount budgeted for the position.
  The Maryland Department of Labor will develop a form for employers to use to comply with disclosure
  requirements by:
• Completing the Maryland Department of Labor’s form;
• Including the completed for in each public or internal job post; and
• Making the completed form available to applicants.
  The law also contains anti-retaliation provisions under which employers may not refuse to interview,
  hire, promote, or transfer an individual because the person exercised their rights under this law.

Employers must be ready by October 1 to include pay ranges in their jobs posts, even if just posting the
job internally. Employers should also educate their recruiters and interviewers about this new law,
including the anti-retaliation provision.