Temporary Form I-9 Remote Flexibility Policy Ending

The Department of Homeland Security’s temporary policy, which allowed employers to remotely verify Form I-9 supporting documents for employment eligibility, will be ending on July 31, 2023. All Form I-9 supporting documents that were verified virtually since March 2020 under the temporary policy will have to be physically inspected before August 30, 2023.

Additionally, all Form I-9 supporting document inspection after July 31 must occur in-person. As was the case before March 2020, employers will have to either plan for remote employees to begin work in person or utilize a service as the employer’s authorized representative, so that documents can be physically inspected.

HHS COVID-19 Public Health Emergency Ends

The Public Health Emergency (PHE) issued by the US Department of Health and Human Services (HHS) due to the COVID-19 pandemic has ended as of May 11, 2023. HHS noted that even with the PHE, individuals will still be able to access COVID-19 vaccines at no cost.

The Equal Employment Opportunity Commission (EEOC) has updated their COVID-19 technical assistance to address considerations for employers’ continued obligation to provide accommodations for some “high risk” employees with disabilities.

Employers should be aware that health insurance providers may no longer be required to waive costs for COVID-19 tests. We encourage employers to have employees utilize Health Advocate to help them navigate medical coverage and benefits due to the ending of the PHE.

Employers should be aware that certain COVID-19 requirements, like those related to sick leave, vaccination leave, infectious disease safety policies, may remain in effect in some states and localities, and are encouraged to review their current policies and procedures to see if they need to be revised to meet state or local compliance requirements.

Federal DOL Releases Updated Labor Posters

The US Department of Labor (DOL) published updated posters covering the Fair Labor Standards Act (FLSA) and Family and Medical Leave Act (FMLA). Among other updates, the FLSA poster updates cover new lactation accommodation obligations and the FMLA poster has been redesigned to include language about how a qualified covered employer is defined under the law.

Customers who subscribe to Justworks’ poster service will receive a copy of this posting for all office locations and an electronic version will be made available to their remote workers.

EEOC Guidance on Artificial Intelligence and Employment Selection

The Equal Employment Opportunity Commission (EEOC) issued a technical assistance document on employers’ use of artificial intelligence (AI)-driven tools in recruiting and selecting applicants and employees. Employers are encouraged to review this document and conduct ongoing evaluations to determine whether their use of AI tools is being used in a way that could result in unintentional discrimination. Employers should also modify their process and procedures, as appropriate, to meet compliance requirements.

2023 Midyear Minimum Pay Requirement Updates

The summer will bring changes in many jurisdictions to the minimum wage, minimum salary thresholds for exemptions from minimum wage and overtime requirements, and other minimum pay requirements.

Federal Ruling Declares PTO is Not Considered Salary for Exempt Employees

The Third Circuit Court of Appeals has ruled that paid time off (PTO) is not considered salary for exempt employees. This ruling confirms, under federal law, employers can deduct PTO when exempt employees are not meeting productivity goals. Employers should keep in mind state laws regarding PTO may also be applicable, depending on the state in which the employee performs work. Employers are encouraged to revisit their company policies in partnership with legal counsel before making decisions on PTO deductions to ensure compliance.

Highly Compensated Employees Paid On a Daily Rate Now Entitled to Overtime

This February, the Supreme Court ruled that highly compensated employees who earn a flat fee per day worked (daily rate) may be entitled to overtime pay under the Fair Labor Standards Act (FLSA), if they are not also guaranteed a weekly minimum payment of $684 or more. Employers are encouraged to work closely with legal counsel to ensure highly compensated employees who are paid on a daily rate are classified appropriately and paid in compliance with this change.

National Labor Relations Board (“NLRB”) Ruling on Severance Agreement Provisions

On February 21, 2023, the National Labor Relations Board (“NLRB”) ruled that including certain non-disparagement and confidentiality provisions in severance agreements violates the National Labor Relations Act (“NLRA”).

The NLRB ruling states that certain non-disparagement and confidentiality provisions unlawfully restrains both union and non-union employees from exercising their right to engage in protected activity.

Employers should review their separation agreements with legal counsel surrounding confidentiality and non-disparagement provisions. Employers may also want to consider reviewing these provisions if outlined in offer letters, handbooks and other company policies in accordance with the NLRB ruling.

Update 3/22/23: Since the date of this posting, there has been additional guidance issued by the General Counsel of the National Labor Relations Board (NLRB) to further explain confidentiality and non-disparagement clauses that are likely to be lawful under this ruling. Acceptable clauses include prohibiting sharing of company trade secrets, restricting disclosure of financial terms in the agreement, and not allowing defamatory statements about the employer, amongst others.

Updated EEOC Guidance on ADA Requirements for Individuals with Hearing Disabilities

The Equal Employment Opportunity Commission (EEOC) issued updated guidance in January, laying out how the Americans with Disabilities Act (ADA) applies to job applicants and employees who are deaf or hard of hearing or have other hearing conditions. The new guidance outlines questions to avoid asking candidates, addresses employer safety concerns, and provides low- or no-cost accommodation solutions and practical scenarios for potential discrimination.

Federal Appeals Court Provides Insight on FLSA Exemption Tests

A Federal Appeals Court has provided further guidance on the administrative exemption from minimum wage and overtime under the federal Fair Labor Standards Act (FLSA). The court noted that employers must carefully consider the relationship between the employee’s job duties and the employer’s business purpose when determining whether the administrative exemption applies. Employers in Maine, Massachusetts, New Hampshire, and Rhode Island (as well as Puerto Rico) should review the exemptions applied to their employees with the aid of legal counsel, review any related policies, and update exemption statuses as needed.

IRS and DOL Issue New Memorandum on Working Misclassification Referrals

The U.S. Department of Labor (DOL) and the Internal Revenue Service (IRS) released a joint memorandum explaining an expanded effort to combat worker misclassification through case referrals between the agencies. With increased enforcement likely from the agencies, employers should review their practices around the use of independent contractors.