Federal Updates

Mar 27, 2026 7:00:00 AM

National Labor Relations Board (NLRB)

Joint Employer Rule

The National Labor Relations Board (NLRB) published a rule at the end of February officially withdrawing the Biden NLRB's 2023 standard for determining joint employer status and reinstating the earlier standard adopted during the first Trump administration. The action is purely ministerial and creates no practical change, but does provide certainty in this area, particularly for employers that use a franchise model of operations.

During the Biden administration, the NLRB made a push to return to the Browning-Ferris interpretation through rulemaking. That standard is based on whether an entity has the authority to control terms and conditions of employment, either directly or indirectly, even if it does not actively exercise that authority. The 2023 rule was vacated just days before it would have taken effect in March 2024.

Because the Biden-era rule was never implemented, the new rule is more formality than substance, and the NLRB's current interpretation of joint employment will continue to rely on the 2020 rule. Under that standard, an entity may be considered a joint employer of a separate employer's employees only if it both possesses and exercises "substantial direct and immediate control" over the employees' essential terms of employment.

The NLRB's joint-employer rule does not affect joint-employer tests under other laws, such as the Fair Labor Standards Act. That said, this month the Department of Labor (DOL) sent a proposed rule on joint-employer classification to the White House, taking the first public step toward replacing the Biden-era rule. The proposed rule is under review by the Office of Management and Budget, but it doesn’t include information about its contents. The department previewed the rule last year as part of its regulatory agenda, stating that the proposal would aim to “promote greater uniformity among court decisions nationwide.” The DOL’s rule is likely to focus on whether a purported joint employer actually exercises direct and immediate control over a worker’s employment terms and conditions, as the NLRB rule does.

Previous Updates

Department of Homeland Security (DHS)

H-1B Lottery

Effective February 27, 2026, the US Department of Homeland Security (DHS) replaces the existing random lottery for allocating cap-subject H-1B visas with a weighted selection process that increases the odds of selection for beneficiaries with the highest wages according to the US Department of Labor's (DOL) four-level prevailing wage system.

Beneficiaries registered for the H-1B cap lottery whose offered wage corresponds to Level 4 (the highest tier) of the DOL's four-level wage structure will be entered into the selection pool four times. A Level 3 beneficiary will be entered three times; a Level 2 beneficiary, two times; and a Level 1 beneficiary, one time.

This system will be in place for the Fiscal Year 2027 H-1B cap registration process in March 2026.

U.S. Department of Labor (DOL)

Independent Contractor Rule

The U.S. Department of Labor announced it will move to rescind the 2024 independent contractor rule, according to a document set to be published in the Federal Register on February 27^th. The DOL is looking to return to the “economic reality test” for determining whether a worker is an independent contractor under the Fair Labor Standards Act (FLSA). After publication in the Federal Register, the public will have 60 days to comment on this proposed rule, after which the DOL would need to adopt a final rule. Stay tuned for additional updates.

Occupational Safety and Health Administration (OSHA) Required Annual Posting As noted in a previous FrankCrum News Alert to clients, February 1 is the deadline for employers to post the OSHA 300A form, a summary of 2025 illnesses and injuries.

Clients can log in to MyFrankCrum to obtain their form under the OSHA section of the Documents tab beginning on February 1, 2026.
Note: Any injuries in monopolistic states (OH, ND, WY or WA) or on OCIP projects are not reflected on the report. Further, if you retain your own workers’ compensation insurance, it is your responsibility to create and post your OSHA 300A. FrankCrum does not have incident/injury information to assist you.
A hard copy of the OSHA 300A form must be posted in a common area of the worksite where employee notices are usually placed.
The summary must remain visible through April 30, 2026.
There is no additional requirement to reach out to workers who do not physically report to the worksite. You may opt to provide these workers with a copy of the summary through additional means (e.g., mail or email) if you choose to do so. If a worker requests access to the summary, you must provide it as required by 1904.35(b)(2) of the rule.

OSHA 300A electronic reporting:

OSHA requires that certain employers (with 100 or more employees in certain high-hazard industries listed here) electronically submit injury and illness data from their OSHA 300A and Form 301 Incident Report.
OSHA requires that certain employers (those with 250 or more employees, and employers with 20-249 employees in certain high-risk industries listed here) electronically submit injury and illness data from their OSHA 300A.
FrankCrum will report all affected clients automatically with the data reflected on their OSHA 300A forms and complete filings by the March 2, 2026, deadline.

Note: You must have Employer access configured in MyFrankCrum to obtain OSHA forms. If you do not have access, you can get set up by contacting your Account Manager.

Internal Revenue Service (IRS) Updates Business Standard Mileage Rate The IRS announced that the business standard mileage rate for transportation expenses incurred on or after January 1, 2026, is 72.5 cents per mile, up from 70 cents in 2025. One Big Beautiful Bill (OBBB) Also on the tax front, some of your employees may be excited about “no tax on overtime” and “no tax on tips”. They can work with their qualified tax professional on their taxes (they can obtain their W-2 and any related W-2 Notice via MyFrankCrum), but MyFrankCrum (MFC) also has additional resources for employers in the Resource Library (as shared in previous FrankCrum News Alerts at the end of 2025). As an employer, log in to MFC. On the left side, under Resources, click Resource Library, then filter to One Big Beautiful Bill (show 12 results). There are resources with good information for you, as employers, and for you to share with your employees. U.S. Department of Labor (DOL) Opinion Letters On January 5, 2026, the US DOL’s Wage and Hour Division released six opinion letters addressing recurring compliance issues under the FLSA and the FMLA. These letters offer compliance guidance and clarify the DOL’s current enforcement posture on exemptions, regular rate calculations, compensable time under CBAs, the Section 7(i) commission-based exemption in restaurants, and FMLA leave accounting for school closures and medical travel. Opinion letters are official written opinions on how a DOL-enforced law applies to a specific workplace situation, providing practical answers to help the public understand their rights and responsibilities. Although not binding, these letters offer a look at how the DOL interprets – and is likely to enforce – key laws. See further below for a summary, and click the following link to view the opinion letters: https://www.dol.gov/agencies/whd/opinion-letters/request#opinion-letter-search. Learned Professional Exemption and Employer Discretion (FLSA2026-1) The DOL confirmed that the loss of supervisory duties does not, by itself, defeat the learned professional exemption for a Licensed Clinical Social Worker where the employee’s primary duty continues to require advanced knowledge and consistent professional judgment. However, a shift from salary to hourly pay generally breaks the exemption, as learned professionals must be paid on a salary basis, subject to limited exceptions. The DOL also emphasized that employers retain discretion to classify employees as nonexempt even if they satisfy all exemption criteria, so long as minimum wage and overtime requirements are met. Bonus Payments and Regular Rate Calculations (FLSA2026-2) The DOL concluded that performance-based bonuses tied to punctuality, attendance, safety, and efficiency, paid according to predetermined formulas and disclosed in advance, are nondiscretionary and must be included in the regular rate when calculating overtime. Discretionary bonuses are excluded only if both the fact and amount are determined at the employer’s sole discretion at or near the end of the period and are not promised by prior agreement. Employers must allocate nondiscretionary bonuses across all hours worked in the bonus period to correctly compute overtime and avoid artificially suppressing overtime by offsetting low base rates with bonuses. Compensable Time Under Collective Bargaining Agreements (FLSA2026-3) A mandatory 15‑minute pre‑shift roll call for unionized county 911 dispatchers is compensable time that must count toward the 40‑hour threshold; it cannot be excluded from overtime calculations merely to increase annual hours. The DOL noted, however, that partial exemptions under FLSA Sections 7(b)(1) or 7(b)(2) may apply to certain Collective Bargaining Agreement structures with specified caps and enhanced overtime triggers (e.g., daily 12‑hour or weekly 56‑hour thresholds). Properly negotiated, these exemptions can relieve covered employees of overtime obligations for 40 to 56 hours in a workweek. Restaurant Employees and Commission-Based Exemptions (FLSA2026-4) For the Section 7(i) exemption, the DOL reaffirmed that the applicable minimum wage benchmark is federal, not higher state or local rates; thus, the current 1.5× threshold is $10.875 per hour. To satisfy the “more than 50 percent commissions” requirement, tips count only to the extent a tip credit is taken; other tips are excluded, while distributed service charges qualify as commissions. The DOL’s examples show that an employee whose compensation is predominantly service charge commissions can qualify if the regular rate exceeds $10.875, whereas an employee with commissions below 50 percent of total compensation (including taken tip credits) does not. The DOL acknowledged contrary district court decisions in some jurisdictions, signaling litigation risk for employers relying on 7(i). School Closures and FMLA Leave Calculations (FMLA2026-1) The DOL explained that FMLA leave accounting turns on whether the employee is on full‑week leave or intermittent leave and whether the employee would have worked during a closure. For intermittent leave, only the actual time the employee would have worked and used leave during a closure counts against the FMLA entitlement; closure days the employee would not have worked cannot be deducted. For full‑week continuous leave, the entire week counts even if a partial closure occurs. This framework applies whether closures are planned or unplanned, and makeup days are treated separately. Travel Time for Medical Appointments Covered Under the FMLA (FMLA2026-2) Time spent traveling to and from medical appointments related to a serious health condition—either for the employee or a qualifying family member—may be taken as FMLA leave when the travel is directly related to the needed care. Medical certifications need not itemize travel time. Non‑related activities or personal errands during the trip are not covered.

Federal Contractor

Minimum Wage

Effective January 1, 2026, the minimum wage for federal contractors is adjusted for inflation. It increases by the annual percentage increase in the Consumer Price Index for Urban Wage Earners and Clerical Workers, rounded to the nearest multiple of $0.05. At this time, it has not been announced by the DOL.

Equal Employment Opportunity Commission (EEOC)

National Origin Discrimination

National origin discrimination includes not only discrimination against workers from foreign nations but also discrimination against American workers, the Equal Employment Opportunity Commission (EEOC) is reminding employers.

Title VII of the Civil Rights Act of 1964 (as well as many state and local laws) prohibits discrimination, harassment and retaliation against both employees and applicants based on national origin.

In new guidance released, Discrimination Against American Workers Is Against the Law, the EEOC stressed that national origin discrimination can include preferences for foreign workers, including workers with a particular visa status, over American workers.

In related news, a group of 20 states filed a lawsuit last week alleging that President Trump’s executive order implementing a $100,000 fee on new H-1B skilled worker visas is unlawful, and should be vacated and set aside. The plaintiffs alleged that public schools, university-level research institutions and healthcare systems all may be harmed by a $100,000 fee on all new visas. The complaint in the U.S. District Court for the District of Massachusetts is at least the third such lawsuit challenging the new H-1B policy.

The White House

Executive Order Regarding State AI Laws

President Trump has signed an Executive Order (EO) that seeks to nullify state laws regulating artificial intelligence (AI) to pave the way for a "minimally burdensome national standard."

The EO, Ensuring a National Policy Framework for Artificial Intelligence, directs the Attorney General to establish an AI litigation task force to challenge state AI laws. It also orders the Secretary of Commerce to publish an evaluation of existing state AI laws that conflict with the EO's policy and withhold certain federal funding from states that retain these conflicting laws.

Particularly under scrutiny are laws aimed at preventing and mitigating algorithmic discrimination - the discriminatory outcomes that can result when employers use certain types of AI tools in recruiting and other employment decisions. The EO characterizes these laws as "requiring entities to embed ideological bias within models" and claims they may "force AI models to produce false results in order to avoid a 'differential treatment or impact' on protected groups."

State and local AI laws have taken a variety of approaches to algorithmic discrimination. Some laws require employers to proactively assess AI tools used in employment for bias, while other jurisdictions have opted to issue regulations or guidance clarifying that certain uses of AI tools can violate existing discrimination laws.

The EO is very likely to be challenged. While federal laws can and often do preempt state laws in the same area, acts of Congress - not executive orders - are the usual vehicle. There is currently no federal legislation regulating AI, although the EO directs the Special Advisor for AI and Crypto and the Assistant to the President for Science and Technology to prepare legislative recommendations.

It remains to be seen how states with existing and pending AI laws will respond. Several AI laws affecting employers are slated to take effect January 1st, and a Colorado law takes effect in June 2026. A New York City law requiring bias audits for automated employment decision tools has been in effect since 2023.

For employers affected by these laws, the safest course of action is to proceed as if they will remain in effect until a specific development rescinds, amends, blocks or delays a particular law or regulation.

Government Shut Down Ends

Federal Agencies Reactivating

With federal funding restored, many “non-essential” agency functions will resume:

The US Department of Labor (DOL) has a new administrator who was sworn in earlier this month. Investigations into minimum wage, overtime, and family medical leave laws will resume. Expect updates to joint employment or independent contractor status under the FLSA in the near future if the DOL sticks to their 2025 regulatory agenda.
The US Equal Employment Opportunity Commission (EEOC) is back with a working quorum and full power to take action. Expect cancelled appointments, hearings, mediations or proceedings to be rescheduled. Work with legal counsel on discovery and filing deadlines. Expect regulations on DEI programs and gender identity protections.
The National Labor Relations Board (NLRB) may soon have a quorum and the pause in operations will continue to have a big impact on union elections and unfair labor practice investigations. Meanwhile, states are considering measures to protect workers as federal labor regulations remain uncertain.
The Occupational Safety and Health Administration (OSHA) has new leadership so expect action. Rules on companies reporting certain injury data are expected to be reviewed. The nationwide heat standard has been in the works and the agency can move forward with reviewing comments submitted during the rulemaking process.

Government Shut Down

Federal Agencies Scale Back

Several federal agencies are affected by the shutdown, including:

The US Department of Labor (DOL) plans to continue monitoring and responding to imminent threats to human life; investigating child labor and mine safety violations; and conducting workplace inspections in high-hazard industries. But the DOL will halt many of its other key activities, including its technical assistance, compliance assistance, research and regulatory efforts.
The US Equal Employment Opportunity Commission (EEOC) plans to accept charges that must be filed in order to preserve the rights of a claimant, but it will not investigate these charges unless it is necessary to protect life or property. It also will continue to litigate lawsuits where a continuance has not been granted.
The National Labor Relations Board (NLRB) plans to continue taking legal actions that are necessary to protect ongoing cases and monitoring its Office of Inspector General Hotline. However, it will stop docketing representation case petitions and unfair labor practice charges.

Equal Employment Opportunity Commission (EEOC)

Quorum Restored

The U.S. Senate has confirmed the appointment of a third commissioner on the five-person commission.

The Senate confirmed Brittany Panuccio as a commissioner. Panuccio joins Acting Chair Andrea R. Lucas and Commissioner Kalpana Kotagal, restoring a quorum at the EEOC with a Republican majority; Kotagal is the sole Democrat. The agency has lacked a quorum since January, when President Trump fired commissioners Charlotte Burrows and Jocelyn Samuels before their terms expired.

Without a quorum, the EEOC can exercise basic functions and responsibilities, such as processing discrimination claims and issuing informal publications like fact sheets and technical assistance. But it cannot engage in formal rulemaking, publish formal guidance or initiate large-scale lawsuits in pattern-or-practice cases or those challenging precedent.

Lucas has stated her intentions to revisit the EEOC's regulations on the Pregnant Workers Fairness Act and the recent revisions to the agency's harassment guidance. Other priorities include focusing on religious and anti-American discrimination and scrutinizing employers' diversity, equity and inclusion programs.

The EEOC is currently closed because of a lapse in appropriations. While the agency is closed, a limited number of EEOC services are available. On another note, the EEOC filed 93 lawsuits over the past fiscal year, the lowest litigation rate in 10 years.

Department of Homeland Security

Removal of Automatic Extension of EADs

The Department of Homeland Security will end the automatic extension of certain immigrant work permits pending renewal, according to a press release issued October 29^th by the U.S. Citizenship and Immigration Services.

Under an interim final rule, DHS will remove a safety net that granted immigrants a 540-day automatic renewal while their employment authorization documents were pending. The new rule will allow DHS to perform “proper screening and vetting of aliens before extending the validity of their employment authorizations,” DHS said.

Gold Card Program

Visa Application Fast Track

A new Gold Card program announced by President Trump the end of September will speed up the process of gaining an exceptional ability (EB-1A) and national interest (EB-2) visa for the employees and corporations that can pay the hefty fee required. The Gold Card would grant an unlimited right of residence in the US and provide a pathway to US citizenship.

President Trump issued an executive order directing the Secretary of Commerce to create a visa program to facilitate entry of foreign employees who pay a fee of $1 million by an individual or $2 million by a corporation.

The paid fee is to be considered evidence of eligibility of exceptional business ability and national benefit for purposes of processing an EB-1A visa or of eligibility for a national-interest waiver under the EB-2 visa program.

The White House also issued a fact sheet providing more details about the Gold Card program. The executive order comes at the same time as Trump announced an increased fee of $100,000 for an H-1B temporary work visa and the Department of Homeland Security issued a proposed rule change in how H-1B visa applications would be weighted.

Additional changes to employment-related visa programs may be coming. A planned Platinum Card, with an expected fee of $5 million, would allow a foreign employee to stay in the US for up to 270 days per year without having to pay US taxes on income they earned outside the United States.

U.S. Department of the Treasury

One Big Beautiful Bill (OBBB)

As noted previously in FranklyHR, in July President Trump signed the OBBB into law. As required, the IRS has issued proposed regulations (which are proposed to apply starting with tax year 2025) that define the tipped jobs that would qualify for a tax deduction. The Occupations That Customarily and Regularly Received Tips; Definition of Qualified Tips, lists sixty-eight qualifying tipped occupations* for which workers will be able to claim a deduction on their “qualified tips.”

Although currently in proposed form, employers may rely on the regulations for tax years beginning in 2025 and on or before the date they are published as final regulations in the Federal Register. Employers are allowed to use a “reasonable method” to estimate qualified tips for the 2025 tax year.

Stay tuned for additional updates.

Federal Trade Commission (FTC)

Noncompete Rule Dead But Enforcement Continues

The Federal Trade Commission (FTC) has officially dropped its appeal of a Texas district court's nationwide injunction halting a federal rule that would have banned nearly all noncompete agreements. But the FTC also signaled its intention to aggressively investigate and penalize employers that abuse such agreements and to gather information that may be used for further enforcement actions.

The FTC issued its final non-compete rule banning noncompetes nationwide in April 2024, saying that noncompetes "keep wages low, suppress new ideas and rob the American economy of dynamism." The final rule was quickly challenged in court, and a district court in Texas blocked the FTC from enforcing the rule in August 2024, holding that the FTC lacked the statutory authority to issue it. The FTC appealed the ruling.

Following the appointment of Andrew Ferguson as FTC Chair, the agency requested a stay of the appeal while determining whether to continue to defend the rule. On September 5, 2025, the Commission voted 3-1 to dismiss the appeal. In announcing the decision, however, Ferguson reiterated the FTC's intention to pursue case-by-case enforcement against "bad actors" who abuse unfair noncompete agreements.

In addition, the FTC issued a request for information from employers about the scope, prevalence and effects of employer noncompete agreements, particularly in the healthcare industry. The information will be used to inform possible future enforcement actions. Members of the public have 60 days to submit comments at Regulations.gov, no later than November 3, 2025.

Department of Homeland Security (DHS)

Immigration Updates

1. The Ninth Circuit Court has stayed a lower court order delaying TPS terminations. As a result:

Nepal: TPS ended Aug. 20, 2025. EADs (Form I-766, category A12 or C19) are no longer valid.
Honduras & Nicaragua: TPS ended Sept. 8, 2025. EADs (Form I-766, category A12 or C19) are no longer valid.

Employer should use Form I-9, Supplement B to reverify any current employee whose EAD may be affected within a reasonable timeframe.

Termination of TPS for Nepal, Honduras, and Nicaragua | E-Verify

2. Venezuela’s 2021 Temporary Protected Status (TPS) designation and related benefits end Nov. 7, 2025.

This termination applies to beneficiaries of TPS Venezuela 2021 who did not re-register under the Jan. 17, 2025 extension notice.
Employment Authorization Documents (EADs), Form I-766, with category A12 or C19 and card expiration dates of Sept. 10, 2025, March 10, 2024, or Sept. 9, 2022, expire on Nov. 7, 2025.
Employers must reverify work authorization for TPS Venezuela beneficiaries who presented these EADs before employment begins Nov. 8, 2025.

Secretary of Homeland Security Announces Termination of 2021 Designation of Venezuela for Temporary Protected Status, EADs Expire on November 7, 2025 | E-Verify

3. Employers looking to hire in-demand foreign workers with specialized skills - such as software developers, engineers and architects - under the H-1B visa program will need to pony up $100,000 per worker. President Trump issued a proclamation requiring all new H-1B petitions to be accompanied by a $100,000 payment, starting September 21, 2025, and ending September 21, 2026, unless extended.

This is not an annual fee but rather a one-time fee that applies only to the petition; and that workers who already hold H-1B visas and are currently outside of the country will not be charged $100,000 to re-enter.

The $100,000 fee will not be required if:

The Department of Homeland Security (DHS) determines that the hiring of a worker, or of all the workers at a company or even all the workers in a particular industry "is in the national interest and does not pose a threat to the security or welfare of the United States"; or
The petition was submitted before September 21, 2025, according to guidance from US Citizenship and Immigration Services and US Customs and Border Protection.

About 65% of H-1B employees work in computer-related jobs, followed by architecture, engineering and surveying (9%), education (6%), administrative specialization (5%) and others, according to the Pew Research Center.

Meanwhile, the US Department of Labor (DOL) recently announced Project Firewall, an enforcement initiative through which it will conduct investigations of employers to maximize H-1B program compliance.

4. Announced last week, higher-skilled and higher-paid workers would get a leg up for H-1B visas under a new plan from the Department of Homeland Security (DHS).

Each year, there are 65,000 new visas available under the H-1B program for in-demand foreign workers with specialized skills, such as software developers, engineers, healthcare professionals and architects. An additional 20,000 H-1B visas are available for foreign nationals holding a master's degree or higher from a US university.

Employers seeking H-1B visas must electronically register each candidate. If the number of registrations exceeds the H-1B quota, the DHS's United States Citizenship and Immigration Services (USCIS) runs a lottery.

Currently, that lottery is random. But now the DHS is proposing to change the lottery to weight registrations based on beneficiaries' equivalent wage levels.

Specifically, the revised method of H-1B quota allocation would be based on the Occupational Employment and Wage Statistics (OEWS) wage levels. Beneficiaries registered for the lottery would be entered into the selection pool using a weighted system based on their proffered wage (meaning the wage the employer intends to pay). Beneficiaries whose offered wage corresponds to Level 4 (the highest tier) of the wage structure would be entered into the pool four times. A Level 3 beneficiary would be entered three times; a Level 2 beneficiary would be entered twice; and a Level 1 beneficiary, once.

Employers would be required to indicate the appropriate occupational code, OEWS wage level and geographic location of employment in each candidate's registration for the H-1B cap lottery.

Employers may comment on the proposed rule through October 24, 2025, at Regulations.gov under DHS Docket No. USCIS-2025-0040. After the comment period ends, the DHS will respond to comments and possibly make revisions before publishing a final rule.

5. DHS has granted USCIS officers full law enforcement powers, including the ability to carry firearms, execute warrants, make arrests, and investigate civil and criminal immigration law violations. This change means USCIS will now operate as both an adjudication and enforcement agency, increasing the likelihood of direct workplace enforcement activity.

Employers should review compliance policies including I-9/document protocols and involve legal counsel early to mitigate new enforcement risks. Effective October 6, 2025. Federal Register :: Codification of Certain U.S. Citizenship and Immigration Services Law Enforcement Authorities

U.S. Department of the Treasury

One Big Beautiful Bill (OBBB)

In July, President Trump signed the OBBB into law. The “No Tax on Tips Provision” of the OBBB, effective 2025 through 2028 allows eligible employees and self-employed workers to deduct “qualified tips” received while working in occupations that customarily and regularly receive tips as specified by the IRS. Eligible tipped employees, including those who itemize or do not itemize their taxes, can claim a tax deduction up to $25,000 per year. The deduction is limited based on adjusted income and phases out for those with a modified adjusted gross income of more than $150,000 ($300,000 for joint filers).

As required, the IRS has issued proposed regulations (which are proposed to apply starting with tax year 2025) that define the tipped jobs that would qualify for a tax deduction. The Occupations That Customarily and Regularly Received Tips; Definition of Qualified Tips, lists sixty-eight qualifying tipped occupations* for which workers will be able to claim a deduction on their “qualified tips.”

Under the proposed regulations, qualified tips are cash or charged tips voluntarily given by service recipients, including:

Tips suggested on a bill;
Tips allocated through a voluntary or mandatory tip pool;
Tips paid through debit or gift cards;
Tangible or intangible tokens that are readily exchangeable for a fixed amount in cash (e.g., casino chips); and
Any other form of electronic settlement (e.g., a point-of-sale device) or mobile payment application that is denominated in cash.

The proposed regulations clarify that qualified tips include those employees receive through the Tipped Employee Participation Agreement (as part of the Tip Rate Determination Agreement/TRDA program) or a Model Gaming Employee Tip Reporting Agreement (as part of the Gaming Industry Tip Compliance Agreement/GITCA).

Tips do not include service charges or tips suggested on a point-of-sale device with no option for no tips, because those tips are not freely given. Tips also must be received from customers (as opposed to money received by an employee for services performed for their employer).

The proposed regulations also create a new categorization system, which provides an occupation code, description and illustrative examples that encompasses occupations that customarily and regularly received tips on or before December 31, 2024. Generally, the occupations are grouped into eight categories:

100s - Beverage and Food Service
200s - Entertainment and Events
300s - Hospitality and Guest Services
400s - Home Services
500s - Personal Services
600s - Personal Appearance and Wellness
700s - Recreation and Instruction
800s - Transportation and Delivery

*Detailed jobs are noted on page 11-12 of the above categorization system link.

Workers in occupations that receive tips, split into eight categories and assigned three-digit codes, would be required to use Form W-2 reporting in Box 14b (“Treasury tipped occupation code”) for reporting tips. Notably, the list includes some occupations, such as dishwashers, cooks, plumbers, and electricians, that are not typically considered as jobs that “customarily and regularly” receive tips by the U.S. Department of Labor (DOL) for purposes of the Fair Labor Standards Act (FLSA). The proposed rule also specifies that tips paid for “illegal activity,” “prostitution,” or “pornography” are not qualified tips for the deduction.

The proposed rule was published in the Federal Register on September 22, 2025 and the IRS will receive comments until October 23, 2025. After that, the IRS will review the comments and then later issue a final rule in the Federal Register. A final rule would be effective 60 days after publication in the Federal Register.

Stay tuned for updates later this year.

U.S. Department of Labor (DOL)

Proposed Regulatory Agenda

The U.S. DOL released its semi-annual regulatory agenda that outlines several proposals that could directly affect employers. Key items include potential changes to joint employer standards, independent contractor classification, minimum wage and overtime exemptions, and workplace safety rules. Businesses can begin monitoring these developments now, as final rules will reshape compliance obligations and employment practices.

https://www.dol.gov/newsroom/releases/osec/osec20250904

U.S. Department of the Treasury

One Big Beautiful Bill (OBBB)

The IRS recently posted that no changes will be made to withholding tables or tax forms (W2) for 2025 and will instead do a phased implementation of the OBBB with further guidance to be released for the 2026 tax year.

IRS announces no changes to individual information returns or withholding tables for 2025 under the One Big Beautiful Bill Act | Internal Revenue Service

The IRS is required to release a list of “qualifying occupations” that may claim the “no tax on tips” deduction, which is expected to include the corresponding codes for use in Box 14b. In addition, the agency has stated that it will issue guidance in the coming months on what constitutes a “reasonable method” for employers to estimate qualified tips and qualified overtime compensation for the 2025 tax year. The IRS has also confirmed that employers subject to these new reporting rules will receive transition relief for 2025.

Department of Justice (DOJ)

Guidance on Antidiscrimination

The DOJ released guidance reminding recipients of federal funding that they must follow antidiscrimination laws. This includes programs labeled as DEI if they involve discriminatory practices. Any federally funded program must not discriminate based on race, color, national origin, sex, religion, or other protected traits—regardless of the program’s name or goals.

The guidance also highlights the legal risks of using protected characteristics in ways that could be seen as discriminatory and offers nonbinding best practices to help avoid violations and potential loss of funding.

Office of Public Affairs | Justice Department Releases Guidance for Recipients of Federal Funding Regarding Unlawful Discrimination | United States Department of Justice

U.S. Department of Labor (DOL)

Veterans’ Employment and Training Service

The U.S. Department of Labor’s Veterans’ Employment and Training Service (DOL/VETS) launched the SALUTE program to help employers comply with USERRA. This initiative allows employers to proactively seek guidance on USERRA-related issues before they escalate into formal complaints or lawsuits. Employers can access various resources and request technical assistance to address specific circumstances or questions regarding their workforce's military service obligations.

Under USERRA, employers are prohibited from discriminating against employees due to their military service and are required to reemploy returning service members in their previous or a comparable position. The SALUTE program provides a valuable opportunity for employers to maintain compliance with these obligations and support their employees who serve in the uniformed services.

Request Employer Technical Assistance (SALUTE) | U.S. Department of Labor

Department of Homeland Security (DHS)

Employment Authorization Documents (EADs)

USCIS

USCIS has updated its policy to follow a court order that automatically extends certain EADs for people from Haiti who have TPS. These work permits are now valid until February 3, 2026. This means that employers should treat EADs with the following listed expiration dates as expiring on February 3, 2026.

Employers must update the employee's Form I-9 (Section 2 or Section 3/Supplement B) to show this new expiration date. Communicate with any affected employee (s) and monitor for any changes leading up to February 3rd with litigation/court orders. This extension to February 2026 helps provide job stability for many Haitian workers, especially in fields like healthcare, construction, hospitality, and farming.

E-Verify

Employers that use E-Verify should regularly generate status change reports that identify whether any employee’s EAD has been revoked. DHS has updated the E-Verify Status Change Report to include “Revoked Document Number” field, effective July 15, 2025, to help employers identify employees with revoked EADs. Employers should now compare the EAD number on an employee’s Form I-9 with the Revoked Document Number in the updated report. USCIS has published updated guidance on both the EAD Revocation Guidance for E-Verify Employers page and USCIS’ What’s New page.

In Conclusion

Follow federal regulations regarding employment eligibility of your workforce. Document all reverification efforts to demonstrate good-faith compliance. You can review uscis.gov for the latest news, consult with immigration counsel as needed, and you can reach out to your HR Consultant for questions regarding employee situations.

On a related note, the One Big Beautiful Bill secured $165 billion in appropriations for DHS, which includes a significant increase to ICE’s budget. Employers should prepare for heightened enforcement.

Occupational Safety and Health Administration (OSHA)

Updates

Penalty Relief

The U.S. Department of Labor just overhauled OSHA’s penalty guidelines to give small employers and safety-conscious businesses a financial break. Effective immediately, the new policy:

significantly increases penalty reductions for small businesses – employers with 25 or fewer employees eligible for a 70% reduction
offers new incentives for employers who quickly fix hazards – employers that immediately fix hazards eligible for 15% reduction
rewards companies with clean safety records – employers with good inspection track records eligible for 15% reduction

Even better news – penalty reductions can be combined. You can learn more here: https://www.osha.gov/fom/chapter-6

Deregulatory Rules Proposed

OSHA has proposed dozens of deregulatory rules. Public comments are open through early September 2025 on rules such as:

General Duty Clause: Restrict enforcement on inherent risks
Construction Illumination: Remove lighting standards
Respirator & Hazard Standards: Simplify compliance
COVID-19 Healthcare Standards: Revoke emergency requirements
Farmworker Protection Rules: Remove coordination mandates
OSHA Advisory Committee: Reduce committee/governance requirements

Click here to view these proposed OSHA rules in the Federal Register.

On a related note, the DOL has begun advancing dozens of proposals to roll back workplace rules across industries. Many of these are in the early stages – more to come and additional details will continue to be posted in the Federal Register. Expect litigation and challenges.

https://www.dol.gov/newsroom/releases/osec/osec20250701-0

Temporary Worker Construction Industry

The new Temporary Worker Initiative (TWI) Bulletin, published jointly by the American Staffing Association (ASA) and US OSHA, outlines key safety and health requirements for temporary workers in construction. The bulletin emphasizes the joint responsibilities of staffing firms and host employers to provide appropriate training and ensure workplace protections for temporary workers on construction sites.

https://www.osha.gov/sites/default/files/publications/OSHA4482.pdf

Heat Injury and Illness Prevention

It is record-breaking hot this summer! Remember best practices for your employees working in heat as OSHA works on official rulemaking. You can read about the latest below:

https://www.osha.gov/heat-exposure/rulemaking

Office of Federal Contract Compliance Programs (OFCCP)

Office To Be Dismantled

OFCCP has been responsible for ensuring that employers doing business with the Federal government comply with the laws and regulations requiring nondiscrimination. On July 2, 2025, the OFCCP announced that it would stop pursuing all compliance reviews tied to its November 2024 scheduling list. Specifically, the agency said it would "administratively close" all reviews that were still pending and would not take any further enforcement or investigative action related to that list. OFCCP will begin normal processing of new Section 503 (disabled) and VEVRAA (veterans) complaints. Secretary's Order 08-2025 lifting Section 503/VEVRAA abeyance

Subsequently, the Trump Administration’s fiscal year 2026 budget was signed into law mid-month, effectively eliminating all funding for OFCCP. This move will dismantle the agency and reassign its remaining responsibilities to other federal entities. It is planned that enforcement of disability discrimination protections under Section 503 of the Rehabilitation Act would be transferred to the EEOC, while oversight of the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) would shift to the Veterans’ Employment and Training Service (VETS). Implementation of certain aspects of the reorganization will require congressional action.

National Labor Relations Board (NLRB)

Nominations To Fill Vacancies

President Trump has nominated Scott Mayer, Boeing’s Chief Labor Counsel, and James Murphy, a longtime NLRB official, to fill two vacant seats on the NLRB. The NLRB has lacked a quorum since January 2025, when Trump controversially fired Democratic member Gwynne Wilcox. This move, currently being challenged in court, left the board unable to issue decisions.

Scott Mayer: Brings extensive in-house corporate experience, having held senior labor counsel roles at Boeing, MGM Resorts, Aramark, and InterContinental Hotels Group. He is expected to bring a management-friendly perspective to the board.

James Murphy: A veteran of the NLRB since 1974, Murphy has served as chief counsel to several Republican board members and most recently to current chair Marvin Kaplan.

If confirmed, Mayer and Murphy would restore a Republican majority on the five-member board. This could lead to reversals of pro-union decisions made during the Biden administration, including rulings on union elections and employer conduct during organizing campaigns.

The White House

One of President Trump’s first executive actions of his second term was revoking a Biden-era AI policy which had aimed to ensure safe and ethical AI deployment, created a slew of new government offices and task forces, and focused on job protections and providing workers with assistance when jobs were eliminated by AI advancements.

Trump then issued a new executive order that signaled a sharp pivot from the prior administration’s regulatory approach by replacing AI oversight with a focus on economic growth and national competitiveness. That January 23 executive order also called for regulators to release an AI action plan within six months, which is exactly what led to the White House unveiling the “Winning the AI Race: America’s AI Action Plan” on July 23. For the workplace, the new plan highlights the need for job retraining and upskilling for workers at risk of displacement – as well as potential incentives for employers.

Occupational Safety and Health Administration (OSHA)

Proposed Heat Safety Standard

This month, the Occupational Safety and Health Administration (OSHA) began hearing from stakeholders on its proposed heat safety standard. Public hearings will continue through July 2. Numerous witnesses representing employers, organized labor, trade associations, and others are expected to provide testimony to the agency.

Department of Homeland Security (DHS)

Employment Authorization Documents

The Department of Homeland Security (DHS) is revoking Employment Authorization Documents (EADs) for certain aliens. These revocations may be on a case-by-case basis or may be for groups, such as aliens paroled through the Processes for Cubans, Haitians, Nicaraguans, and Venezuelans (CHNV).

Keep an eye on EAD (Employment Authorization Document) expirations (as you always should with your I-9 form work authorization documents with expiration dates). If a worker’s authorization document has been revoked, employers must reverify the employee with Form I-9, Supplement B, DHS said.

Employers that use E-Verify should regularly generate status change reports that identify whether an employee’s Employment Authorization Document has been revoked, DHS said this week. On June 20, DHS made information available about workers whose documents were revoked between April 9 and June 13, the agency said. DHS said it will no longer send case alerts; employers must generate a status change report on the E-Verify website instead.

E-Verify is an Internet-based system operated by the DHS in partnership with the Social Security Administration (SSA). E-Verify allows participating employers to electronically verify the employment eligibility of their newly hired employees. FrankCrum can assist your Company and become your designated employer agent for E-Verify. Alternatively, an employer may enroll with E-Verify directly and process your new hire verifications in-house without cost to you. To learn more about this FrankCrum service, please contact us at BAE-Verify@frankcrum.com.

You can review uscis.gov for the latest news, consult with immigration counsel as needed, and you can reach out to your HR Consultant for questions regarding employee situations.

Department of Labor (DOL)

Independent Contractor Misclassification

The U.S. Department of Labor’s Wage and Hour Division this month issued a field assistance bulletin providing guidance on how to determine employee or independent contractor status when enforcing the Fair Labor Standards Act.

While the department reviews the 2024 final rule, Employee or Independent Contractor Classification Under the Fair Labor Standards Act – which is also being challenged in federal court – agency investigators are directed not to apply the 2024 rule’s analysis in current enforcement matters. Instead, the division will rely on longstanding principles outlined in Fact Sheet #13 and further informed by the reinstated Opinion Letter FLSA2019-6, which addresses classification in the context of virtual marketplace platforms. This approach provides greater clarity for businesses and workers navigating modern work arrangements while legal and regulatory questions are resolved.

This guidance does not change existing regulations but reflects how the department is allocating enforcement resources during the review of the 2024 rule. Also, this guidance is for DOL interpretation of independent contractor status; there are also other federal and state considerations. You can review the webinar below for a refresher on the basics of independent contractors vs. employees.

Classification Matters: Independent Contractors vs. Employees Webinar

Occupational Safety and Health Administration (OSHA)

Heat-Related Hazards

OSHA continues to enforce its National Emphasis Program on Outdoor and Indoor Heat-Related Hazards, which focuses on industries with high exposure to heat-related risks. Employers are encouraged to proactively implement heat safety measures to protect their workers. OSHA has not finalized its proposed rule on heat-related hazards in the workplace. The agency is currently in the rulemaking process for the Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings standard.

For certain locations, where high temperatures and humidity are common, these measures are particularly pertinent.

National Emphasis Program - Outdoor and Indoor Heat-Related Hazards

Executive Order

English-Language Proficiency For Commercial Drivers

President Trump issued an executive order on April 28, 2025, reinstating federal enforcement of English-language proficiency requirements for commercial truck drivers. Drivers who cannot meet these requirements must be placed out of service.

FMCSA regulations require commercial drivers to read and speak English sufficiently for public interaction, understanding traffic signs, responding to inquiries, and making entries on reports.

In 2016, DOT guidance allowed drivers to use tools like interpreters and cue cards to meet English proficiency requirements. The new executive order revokes the 2016 guidance and mandates new inspection procedures within 60 days.

Requirements:

DOT must replace the previous guidance with new procedures for verifying English proficiency.
Noncompliance with English proficiency requirements results in drivers being placed out of service.
DOT must review non-domiciled CDLs for irregularities and improve verification protocols.
DOT will identify actions to improve truckers' working conditions.

Trucking companies should review compliance practices, training materials, and hiring standards. Companies may need to offer language training and conduct internal assessments. Companies should consider proactive measures to avoid disruptions with fleets with non-native English speakers if increased roadside inspections focused on language ability may lead to drivers being pulled from service.

Equal Employment Opportunity Commission (EEOC)

EEO-1 Component 1

The EEO-1 Component 1 report is a mandatory annual data collection that requires some employers to submit demographic workforce data. Employers with 100 or more employees (this includes common ownership or affiliation) or federal contractors or subcontractors with 50 or more employees with contracts worth $50,000 or more need to file.

The reporting period for this year has commenced. Clients are being communicated with but please reach out right away to your FrankAdvice HR Consultant if you have questions on filing requirements.

The Supreme Court

Temporary Protected Status (TPS)

On May 19, 2025, the Supreme Court cleared the way for the Trump administration to end Temporary Protected Status (TPS) for more than 350,000 Venezuelans, putting these workers at risk of losing legal authorization to remain and work in the United States. This ruling permits the Department of Homeland Security (DHS) to go ahead with revoking TPS for this group, even as a legal battle continues in a California federal court. While protections remain for some Venezuelan migrants until at least September, many workers could suddenly lose work authorization and their ability to remain lawfully in the United States.

The legal battle continues in federal court in California, where plaintiffs argue that the TPS revocation was both procedurally flawed and motivated by discriminatory animus. The Supreme Court’s order simply removed the procedural freeze. DHS may start issuing notices of termination or removal for impacted TPS holders in the coming weeks. A separate request remains pending before the Supreme Court related to deportation authority for other nationalities under TPS.

This ruling may signal future TPS revocations. A TPS designation termination for Afghanistan will be effective on July 14, 2025. The Trump administration has already requested Supreme Court approval to deport over 530,000 CHNV holders from Cuba, Haiti, Nicaragua, and Venezuela, and has also revoked TPS status for Haitians (a move that was also blocked by a court for the time being).

What Employers Can Do:

Review your workforce for individuals in the aforementioned groups relying on temporary protected status (TPS). Keep an eye on EAD (Employment Authorization Document) expirations (as you always should with your I-9 form work authorization documents with expiration dates). DHS may also publish updated timelines or grace periods.
Treat any affected workers with respect and communicate carefully and compassionately. If you have an impacted employee who received direct notification to them from DHS that their EAD or TPS status has been revoked, be clear about your willingness to explore legal options and provide guidance on voluntary departure from employment.
However, don’t make hasty employment decisions. Workers may still have valid employment authorization or pending litigation that protects their status in the short term, or alternative immigration relief (such as pending green card applications) that could preserve work eligibility. An employer with an employee whose EAD was revoked can reverify that employee’s I-9 form with other unexpired documentation (allow employees to choose which acceptable documentation to present for reverification). Do not reverify identity documents and do not reverify an employee whose employment authorization document was not revoked or is not expiring.
Consider steps you can take to manage work. You may consider cross-training or filling potential staff shortages, such as recruiting or temporary staffing solutions to minimize operational disruption.
You can review uscis.gov for the latest news, consult with immigration counsel as needed, and you can reach out to your HR Consultant for questions regarding employee situations.

Internal Revenue Service (IRS) and Department of Homeland Security (DHS)

Share Certain Immigrant Taxpayer Data

The IRS will share information with U.S. Immigration and Customs Enforcement (ICE) about certain immigrant taxpayers without legal status, under a new Memorandum of Understanding (MOU) between the IRS and the Department of Homeland Security (DHS).

The MOU creates a framework that allows ICE or DHS to provide the IRS with names and addresses of taxpayers living in the United States without legal status who have final removal orders or are under criminal investigation. Then, the IRS will cross reference those names and addresses with existing taxpayer data and provide the resulting information to ICE.

An undocumented worker who wishes to pay taxes can apply for an Individual Taxpayer Identification Number ("ITIN") and use it to report earned income to the IRS. The IRS maintains the data on these registered undocumented persons who pay federal taxes.

Having access to this undocumented worker pay data will provide the DHS and ICE an additional source of intelligence that can help identify companies that employ undocumented workers. The MOU does not state when information-sharing between the agencies will start.

To minimize liability in the event of an ICE subpoena for documents or an unexpected workplace raid, employers need to ensure compliance with the identity and work authorization requirements of Form I-9.

Check out the related I-9 article in this month’s FranklyHR, and for a refresher on the Form I-9, you can view tutorials on MyFrankCrum (click on the lightbulb at the top right, then MyFrankCrum Knowledge Base, Administrators section).

White House

Executive Order On Disparate Impact

A new Executive Order (EO) would upend federal employment discrimination law by eliminating liability for disparate impact - one of the major categories of discrimination cases.

Disparate impact refers to the idea that some employment policies and practices that are not obviously or intentionally discriminatory nevertheless result in disproportionate harm to individuals with certain protected characteristics. By focusing on the effects of employers' policies and practices, rather than solely on their motive or intent, disparate impact broadens the scope of potential liability under Title VII and encourages employers to proactively assess the impact of their actions on protected groups.

An employer is not necessarily prohibited from adopting a practice with a disparate impact but generally must show that the practice is a business necessity and there is not a reasonable alternative. Policies that have been successfully challenged under disparate impact theory include certain physical ability assessments, standardized tests, background checks and educational requirements.

The EO, titled Restoring Equality of Opportunity and Meritocracy, declares disparate impact liability under civil rights laws to be "contrary to equal protection under the law."

The EO directs the EEOC and other federal agencies to:

Deprioritize enforcement of all laws and regulations that impose disparate impact liability; and
Assess (and potentially abandon) all pending investigations or lawsuits involving disparate impact claims.

The Attorney General is directed to:

Report on and detail steps to amend or repeal any existing regulations, guidance, rules or orders that impose disparate-impact liability; and
Determine whether state laws and regulations imposing disparate impact liability are preempted by federal law.

In addition, both the EEOC and the Attorney General are directed to issue guidance for employers on ensuring equal access to employment regardless of whether an applicant has a college education.

Legal challenges to the EO are likely. Because disparate impact liability is part of the text of Title VII, it is unclear whether many of the directives in the EO can be carried out under existing law.

Disparate-impact liability in employment discrimination cases was first established by the Supreme Court of the United States in 1971 and codified by Congress in the Civil Rights Act of 1991.

Office of Management and Budget (OMB)

Request for Public Comment

The OMB is requesting public feedback on deregulation, specifically asking for comments and suggestions regarding potentially outdated or overly burdensome agency regulations, including OSHA rules. The deadline for submissions is May 12, 2025.

While it is possible that someone might recommend that all OSHA recordkeeping requirements be eliminated, or that the construction standards (29 C.F.R. 1926) be eliminated, it is unlikely that this would happen, as the Occupational Safety and Health (OSH) Act requires the agency to issue regulations and collect data on workplace injuries and illnesses.

OMB seeks proposals to rescind or replace regulations that stifle American businesses and American ingenuity. We seek comment from the public on regulations that are unnecessary, unlawful, unduly burdensome, or unsound. Comments should address the background of the rule and the reasons for the proposed rescission, with particular attention to regulations that are inconsistent with statutory text or the Constitution, where costs exceed benefits, where the regulation is outdated or unnecessary, or where regulation is burdening American businesses in unforeseen ways.

Federal Register :: Request for Information: Deregulation

Equal Employment Opportunity Commission (EEOC)

More EEOC Charges Filed Last Fiscal Year

This month, the EEOC released data on Charges filed in its Fiscal Year (FY) ending September 30, 2024. Here’s FY24 vs. FY23:

Charges increased by 9.2%, from 81,055 for FY23 to 88,531 for FY24.
Strangely, retaliation charges declined from 46,047 (54%) during FY23 to 42,301 (47.8%) during FY24.
Disability charges increased from 29,160 (36%) to 33,668 (38%).
Race charges increased from 27,505 (33.9%) to 30,270 (34.2%).
Race-based harassment charges increased from 11,270 (13.9%) to 12,863 (14.5%).
Age charges increased from 14,144 (17.4%) to 16,223 (18.3%).
Sex charges decreased 25,473 (31.4%) to 26,872 (30.4%).
Sex-based harassment charges remained about 17.5% of all charges filed in both FYs. Quid pro quo sexual harassment charges also remained steady at 9.5% of all charges filed in both fiscal years.
Pregnant Workers Fairness Act charges made up 3.1% (2,729) of all charges filed during FY24; the PWFA did not become effective until June 27, 2023, so last FY was the first full year when PWFA charges could be filed.

Technical Assistance on DEI

This month, the EEOC and the U.S. DOJ released two technical assistance documents focused on unlawful discrimination related to diversity, equity, and inclusion (DEI) in the workplace.

What You Should Know About DEI-Related Discrimination at Work | U.S. Equal Employment Opportunity Commission

What To Do If You Experience Discrimination Related to DEI at Work | U.S. Equal Employment Opportunity Commission

The first document, in particular, cautions employers that an “initiative, policy, program, or practice may be unlawful if it involves an employer or other covered entity taking an employment action motivated—in whole or in part—by race, sex, or another protected characteristic.”. In addition to discrimination in hiring, firing, and compensation, the document notes that job duties, access to training, mentorship programs, and employee resource groups should also not be motivated in whole or in part on race, sex, or other protected characteristics.

On a related note, EO 14151 & EO 14173 that target DEI initiatives are once again fully in effect after the injunction was lifted this month. Both executive orders seek to terminate and penalize workplace DEI programming and initiatives considered to be illegal.

Federal Contractors

Updates

Minimum Wage

An executive order issued by President Biden requiring federal contractors to pay workers a minimum hourly wage of $17.75 was among the nearly 20 Biden-era memos and executive orders repealed by President Trump on March 14th. Among the other repealed orders was one that enabled companies to win federal contracts more easily by remaining neutral in union campaigns and taking part in government-approved apprenticeship programs.

Under contracts entered into prior to January 30, 2022, contractors must pay a minimum wage of $13.30 per hour under an Obama-era executive order. For other contractors, workers must receive the federal minimum wage of $7.25 per hour, or up to $17.50 per hour under applicable state minimum wages.

Government contractors in the service and construction sectors should evaluate how this decision to cancel the EO will impact their pricing strategies and price adjustment requests.

Affirmative Action

On March 24^th, President Trump appointed Houston attorney Catherine Eschbach to lead the OFCCP agency and “oversee its transition to its new scope of mission.”

The administration’s new direction includes limiting affirmative action requirements to veterans and individuals with disabilities and combating illegal DEI programs – but the new OFCCP leader said she also wants to review mandatory affirmative action plans submitted prior to the new administration for potential longstanding discriminatory practices.

Prior to this executive action, federal contractors had been required for sixty years to engage in affirmative action under Executive Order 11246, which covers women and minorities. In this context, “affirmative action” meant that federal contractors had to review their workforce information to determine whether goals for women and/or minorities should be set and to engage in good faith efforts to ensure they were providing equal employment opportunities for all.

President Trump eliminated this mandate while retaining affirmative action requirements related to veterans and individuals with disabilities. To comply, covered contractors should be preparing to wind down their gender- and race-related affirmative action plans. It is not yet clear if or how reviews of past affirmative action plans would be conducted, or which federal contractors or subcontractors would be affected.

More information is expected from the OFCCP about this new direction and additional changes are expected as the agency moves forward with plans to reduce its workforce by up to 90% while narrowing its focus to veteran and disability discrimination. Federal contractors should keep up with compliance efforts related to state and federal law as applicable. This continues to evolve and affected federal contractors may want to work with experienced legal counsel to prepare an action plan to comply with the agency’s new direction.

Contract Payment

If a federal contractor is not being paid by the government they can take steps to remedy the matter. They should review their contract’s payment terms, including deadlines, invoicing requirements, and payment dispute clauses. Next, they should follow up with their contracting officer, sending a formal inquiry to confirm the status of their invoice if payment is late. It is important that their invoice meets all federal requirements under the Federal Acquisition Regulation.

If they still do not receive payment, they can file a formal claim under the Contract Disputes Act. With the help of legal counsel, the contractor can submit a written claim to the contracting officer that clearly states the amount owed and the basis for payment, citing relevant law and certifying the claim, if appropriate. The contracting officer has 60 days to respond to the claim, and if the claim is denied or the contracting officer fails to respond, the contractor can appeal to the Civilian Board of Contract Appeals for civilian contracts, the Armed Services Board of Contract Appeals for defense contracts, and the U.S. Court of Federal Claims for both civilian and defense contracts.

U.S. Department of Labor (DOL)

Opinion Letter on Interaction of Employer Paid Leave with Leave Laws

The DOL issued an Opinion Letter, clarifying the interaction between the federal FMLA, state-paid family and medical leave programs, and employer-provided accrued vacation, PTO, and paid sick time (employer-paid leave). The takeaway for employers under DOL’s opinion letter is that when an employee is on FMLA leave and is receiving state-paid family and medical leave benefits, the employer cannot unilaterally require the employee to simultaneously use employer-paid leave.

FMLA2025-01-A

U.S. Citizenship and Immigration Services (USCIS)

Alien Registration Requirement

Starting on April 11, 2025, the Department of Homeland Security will reinstate the interim final rule titled “Alien Registration Form and Evidence of Registration” under the Immigration and Nationality Act from the World War II era. Employers should note that this rule will introduce Form G-325R (Biographic Information–Registration) as the official registration document for noncitizens who have not registered previously. Those completing this form will be required to attend a mandatory biometrics appointment, where they must submit fingerprints, photographs, and signatures for identity verification and background checks. Noncitizens over 18 must carry the issued registration document at all times, and failure to register or carry proof of registration will become a priority for federal immigration enforcement. Violators may face fines of up to $5,000 and/or six months in jail.

Employers can expect heightened immigration scrutiny and potential workforce disruptions as any affected employees attend biometric appointments. It’s important that employers adhere to immigration law antidiscrimination provisions.

https://www.uscis.gov/alienregistration

Additionally, non-citizens must submit FormAR-11 to notify USCIS of any address change within 10 days of moving. Failure to comply may result in penalties, including potential deportation. While these penalties are not new, they are now being enforced.

The White House

Federal Workforce

Roughly seventy-five thousand federal employees accepted President Trump’s buyout offer, and the program is now officially closed to workers. That number makes up 3.75% of the federal workforce, falling short of the White House’s target of 5-10%.

Thousands of workers have been fired in recent weeks as part of the President’s plan to reduce the federal workforce. The cuts have not just been targeted at those directly on government payrolls but also at private companies and individuals who perform contract work for the government. Economists are monitoring how these cuts will impact overall employment data in the coming months.

DEI

A federal district judge in Maryland preliminarily blocked several challenged provisions of President Trump’s executive orders (EOs) on diversity, equity, and inclusion (DEI), including enforcement of provisions applying to private companies. Certification and termination provisions for federal contractors also were paused in the February 21 decision (National Association of Diversity Officers in Higher Education v. Trump, No. 1:25-cv-00333). The ruling is a nationwide injunction.

Plaintiffs are likely to succeed on their claim that the enforcement threat provision in the January 21 EO, titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” violates the First Amendment. The provision “threatens to initiate enforcement actions against the plaintiffs (in the form of civil compliance investigations) for engaging in protected speech,” U.S. District Judge Adam Abelson said.

Even so, the district court did not reach the same conclusion with respect to the investigative portion of the EO. Rather, Abelson said it is a directive from the president to the U.S. attorney general to identify “[a] plan of specific steps or measures to deter DEI programs or principles … that constitute illegal discrimination or preferences.” The court denied plaintiffs’ request to block that aspect of the enforcement threat provision. However, the EO “offers no guidance or notice of what the government now considers ‘illegal’ DEI,” Abelson said.

The Trump administration announced in a January 20 executive order titled “Ending Radical and Wasteful Government DEI Programs and Preferencing” that it will be terminating “all ‘equity-related’ grants or contracts — whatever the administration might decide that means,” Abelson said.

The DEI orders don’t define terms such as “DEI” or “equity-related,” he noted. They also don’t identify which programs or policies would be considered “illegal.”

Contractors and their employees — who make up about 20% of the U.S. workforce — are left with “no idea whether the administration will deem their contracts or grants, or work they are doing, or speech they are engaged in, to be ‘equity-related,’ ” Abelson said.

It is not clear how the decision may apply to actions already taken by the Trump administration, including the closing of offices at many agencies and the firing of staff involved in inclusion and diversity programs.

Other portions of the EOs, such as the revocation of Executive Order 11246, remain unaffected by the court’s decision. Trump had rescinded the 60-year-old EO, which required federal contractors to practice affirmative action based on race and gender.

Occupational Safety and Health Administration (OSHA)

Rulemaking Withdrawn

On January 20, 2025 President Trump issued a presidential memorandum, Regulatory Freeze Pending Review, directing “all executive departments and agencies” to refrain from proposing or issuing “any rule in any manner” until a department or agency head appointed or designated by the president reviews and approves the rule. It immediately withdraws any rules that have been sent to the Office of the Federal Register but have not yet been published.

The memorandum’s directives apply to a broad range of OSHA activity, including rulemaking related to “Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings” and the “Emergency Response Standard”.

National Labor Relations Board (NLRB)

Happenings

Last month, President Trump not only fired NLRB General Counsel Jennifer Abruzzo (which was widely anticipated), but he also dismissed Board Member Gwynne Wilcox. The remaining Board members—Chair Marvin Kaplan, a Republican, and Member David Prouty, a Democrat—do not constitute an operating forum (though routine operations of the Board, such as processing election petitions, continue).

To address stakeholder concerns about the situation, on February 1, 2025, the Board released a statement noting that field offices will continue normal operations of processing unfair labor practice cases and representation cases.

On a related note, last month, the Bureau of Labor Statistics (BLS) released its 2024 data regarding union membership rates. The percentage of workers who were members of labor unions dipped slightly to 9.9 percent (from 10 percent in 2023). Likewise, the private-sector unionization rate decreased from 6 percent in 2023 to 5.9 percent in 2024. The majority of workers still prefer union-free workplaces.

The Equal Employment Opportunity Commission (EEOC)

Priorities

On January 28, 2025, the EEOC issued a press release, titled, "Removing Gender Ideology and Restoring the EEOC's Role of Protecting Women in the Workplace", in which Acting Chair Andrea Lucas outlined the steps the Commission would take to implement President Trump’s Executive Order 14168, “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government”.

On February 19, 2025, the EEOC issued a press release that Acting Chair Andrea Lucas will also prioritize “protecting American workers from anti-American national origin discrimination.” The release coordinates the EEOC’s enforcement agenda with the administration’s scrutiny of both legal and illegal immigration, noting, “The EEOC will help deter illegal migration and reduce the abuse of legal immigration programs by increasing enforcement of employment antidiscrimination laws against employers that illegally prefer non-American workers.” The press release further states that federal law makes it unlawful for employers to adopt policies or practices preferring “illegal aliens, migrant workers, and visa holders or other legal immigrants over American workers.”

Like the NLRB, the EEOC lacks a quorum (only Chair Andrea Lucas and Commissioner Kalpana Kotagal remain), which places limitations on their policy-making agenda. The Commission released a series of frequently asked questions (FAQs) addressing The State of the EEOC. The FAQs note, “The lack of a quorum of Commissioners does not impact the intake, processing, investigation, or resolution of charges of discrimination, nor does it impact the issuance of notices of right to sue.” Conversely, the FAQs share that the lack of a quorum prohibits them from engaging in rulemaking, issuing new policies, or rescinding guidance documents.

Department of Homeland Security (DHS)

H-1B Registration Period Announced

U.S. Citizenship and Immigration Services (USCIS) has announced that the fiscal year 2026 H-1B cap registration period will open at noon ET on Friday, March 7, 2025, and close at noon ET on Monday, March 24, 2025.

Corporate Transparency Act

Financial Crimes Enforcement Network (FinCEN)

On February 18, 2025, the U.S. District Court for the Eastern District of Texas granted FinCEN a stay order on its previously issued preliminary nationwide injunction on the enforcement of the Corporate Transparency Act (CTA). As a result, BOI (Beneficial Ownership Information) reporting requirements are now in effect.

The CTA requires certain types of U.S. and foreign entities to report beneficial ownership information to the Financial Crimes Enforcement Network (FinCEN), a bureau of the U.S. Department of the Treasury.

FinCEN has just issued guidance that clarified the new filing deadlines:

For most reporting companies, the new deadline to file an initial, updated, and/or corrected BOI report is now March 21, 2025.
Reporting companies formed or registered on or after February 18, 2025, must file within 30 days from the date of creation or registration.
Reporting companies previously provided with extended deadlines due to disaster relief should follow the later deadlines.

Reporting companies can report their beneficial ownership information directly to FinCEN, free of charge, using FinCEN’s E-Filing system available at https://boiefiling.fincen.gov.

Click here for additional resources. For questions, reach out to your business attorney or tax professional.

Internal Revenue Service (IRS)

Business Standard Mileage Rate

The IRS announced that the business standard mileage rate for transportation expenses paid or incurred beginning January 1, 2025, will be 70 cents per mile, up three cents from 67 cents per mile for 2024.

Occupational Safety and Health Administration (OSHA)

Required Annual Posting

February 1 is the deadline for employers to post the OSHA 300A form, a summary of 2024 illnesses and injuries. Clients can log in to MyFrankCrum to obtain their form under the OSHA section of the Documents tab. You must have employer access configured to obtain OSHA forms; if you need access reach out to ClientExperience@FrankCrum.com or contact your Account Manager directly.

A hard copy of the OSHA 300A form must be posted in a common area of the worksite where employee notices are usually placed. The summary must remain visible through April 30, 2025.

There is no additional requirement to reach out to workers who do not physically report to the worksite. You may opt to provide these workers with a copy of the summary through additional means (e.g. mail or email) if you choose to do so. If a worker requests access to the summary, you must provide it as required by 1904.35(b)(2) of the rule.

The White House

Executive Orders

On January 20, 2025, President Trump revoked several Executive Orders issued by former President Biden, including two that significantly impacted federal contractors:

Executive Order 14055, “Nondisplacement of Qualified Workers Under Service Contracts”: This order required federal contractors and subcontractors working on covered federal service contracts to offer service employees from the predecessor contract the right of first refusal for employment on the successor contract. With its revocation, federal service contractors starting new government contracts are no longer obligated to hire employees from the expiring contract.

Executive Order 14069, “Advancing Economy, Efficiency, and Effectiveness in Federal Contracting by Promoting Pay Equity and Transparency”: This order directed the Federal Acquisition Regulation (FAR) Council and agency leaders to explore proposed rules aimed at enhancing federal procurement practices by promoting pay equity and transparency for job applicants and employees of federal contractors and subcontractors.

President Trump's new Executive Order directs federal agencies to rescind, replace, or amend these actions but does not provide specific reasoning or justification for the decision.

Initial Rescissions Of Harmful Executive Orders And Actions – The White House

On January 21st, President Trump also issued a broad executive order titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” (the “Order”), which among other things, rescinds Executive Order (“EO”) 11246. EO 11246 is the requirement of the government contractor race and sex affirmative action program. The order also instructs OFCCP to cease immediately:

Promoting “diversity”;
Holding Federal contractors and subcontractors responsible for taking “affirmative action”; and
Allowing or encouraging Federal contractors and subcontractors to engage in workforce balancing based on race, color, sex, sexual preference, religion, or national origin.

Trump’s EO also instructs agency heads to “include in every contractor or grant award” a term requiring the contractor/grantee to “certify that it does not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws.”

DOL employees have also been ordered to cease and desist all investigative and enforcement activity under the rescinded Executive Order 11246 and the regulations promulgated under it. This includes all pending cases, conciliation agreements, investigations, complaints, and any other enforcement-related or investigative activity. The DOL is required to notify all regulated parties with impacted open reviews or investigations by January 31, 2025, that the EO 11246 component of the review or investigation has been closed and the Section 503 and VEVRAA components of the review or investigation are being held in abeyance pending further guidance.

The order does not apply to the private sector, and contracting preferences for military veterans and individuals with disabilities (these preferences are grounded in statute and not EO 11246).

Legal challenges are expected at this time for 11246.

For private employers, DEI programs are not illegal. Now is a good time to review the effectiveness of your program (studies have shown the value of diversity in the workplace). After May 2025 we expect to receive more meaningful information from the Trump administration about how employers in the private sector may be affected.

Ending Illegal Discrimination And Restoring Merit-Based Opportunity – The White House

On January 20, the Trump administration issued an executive order titled, “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.” The EO states that the United States government will recognize only two sexes — male and female — and defines sex as “an individual’s immutable biological classification as either male or female.”

This executive order specifically applies to federal agencies and their employees. It appears likely that in the future directives and restrictions will come through agency action to federal contractors and recipients of federal funding.

Despite the administration’s two-sex only policy, several states require employers to provide restroom access to employees based on gender identity while others restrict access to sex assigned at birth.

Litigation and challenges regarding applicability will come.

Defending Women From Gender Ideology Extremism And Restoring Biological Truth To The Federal Government – The White House

The Equal Employment Opportunity Commission (EEOC)

Fact Sheet on Wearable Technologies

The EEOC released a fact sheet that gives pointers to employers who utilize wearable technologies in the workplace that could violate Title VII and GIINA laws, especially if the employer takes adverse action. Some suggestions before using such technology:

Assessing the type of information collected by the wearable technology and the accuracy and validity of that data;
Vetting providers of wearables and ensuring vendor contracts contain provisions protecting employee data;
Crafting policies and standard procedures for using data from wearables in compliance with the EEO and other laws;
Reviewing manufacturer updates to wearables for changes in the collection, use, and disclosure of data; and
Monitoring changes in laws in the jurisdictions where employees use the wearable technology.

Wearables in the Workplace: Using Wearable Technologies Under Federal Employment Discrimination Laws | U.S. Equal Employment Opportunity Commission

Department of Health and Human Services (HHS)

HIPAA Security Rule

The HIPAA Security Rule may soon undergo a big overhaul that would better defend healthcare data from cybersecurity threats. The Department of Health and Human Services (HHS) published a proposed rule earlier this month aimed at securing the confidentiality and integrity of electronic protected health information (ePHI) in response to growing breaches and cyberattacks. HIPAA-regulated entities can now submit public comments in response until March 7^th.

If a final rule is published, it would be effective sixty days after publication, and covered entities would have 180 days after publication to comply with the final rule.

The Proposed Rule is available here, and the OCR Fact Sheet accompanying the issuance of the Proposed Rule is available here.

Occupational Safety and Health Administration (OSHA)

PPE Standard for Construction

OSHA has revised the personal protective equipment (PPE) standard for construction. The revision adds language explicitly requiring employers to provide PPE that properly fits construction workers, aligning the construction industry standard with the general industry standard.

The standard addresses longstanding industry safety concerns about improperly sized PPE, especially among women and physically smaller or larger workers, as it can create new hazards for workers and discourage use due to discomfort or poor fit.

Click here for more information.

Holiday Workplace Safety

OSHA is reminding employers and holiday-centric workers, such as retail and warehousing workers, of two tip sheets on crowd management and workplace violence prevention. OSHA also offers tips on ergonomics, forklift safety, and warehousing for workers in order fulfillment, and information for delivery drivers on safe driving practices and winter weather hazards and precautions.

Click here for holiday workplace safety information.

Office of Federal Contract Compliance Programs (OFCCP)

Combatting Harassment in the Construction Industry Guide

OFCCP is cracking down on harassment in the construction industry. OFCCP’s latest guidance is geared toward federal construction contractors.

OFCCP guide: A Guide to Combatting Harassment in the Construction Industry

Equal Employment Opportunity Commission (EEOC)

PWFA Information for Healthcare Providers

The U.S. Equal Employment Opportunity Commission (EEOC) released new information for healthcare providers to help their patients obtain pregnancy and childbirth-related accommodations in the workplace under the Pregnant Workers Fairness Act (PWFA).

The new resource includes examples of possible reasonable accommodations, including extra or longer breaks to eat, drink, or use the restroom, changing equipment or workstations such as providing a stool to sit on, changing a uniform or dress code or providing safety equipment that fits, temporary reassignment, light duty or help with lifting, telework, and leave. The resource also provides links to additional helpful resources.

To learn more about the PWFA, visit the EEOC’s “What You Should Know” page and More Resources About the PWFA | U.S. Equal Employment Opportunity Commission; for more information on pregnancy discrimination, visit https://www.eeoc.gov/pregnancy-discrimination.

Proposed Rule for PWFA Recordkeeping

The EEOC has issued a proposed rule that would amend the existing recordkeeping regulations for Title VII, the ADA and GINA to add references to the Pregnancy Workers Fairness Act.

As the EEOC notes, “the PWFA requires covered employers to provide reasonable accommodations to a qualified applicant’s or employee’s known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an undue hardship.” The EEOC further notes that “the PWFA adopts by reference the statutory recordkeeping provision of Title VII, which authorizes the existing EEOC recordkeeping regulations.” These regulations require private employers and labor organizations to preserve records that were “made or kept” for one year, and public sector employers and apprenticeship programs for two years. If a charge of discrimination is filed, the employer must preserve any relevant records until final disposition. However, those regulations do not specifically reference the PWFA, which was enacted in 2022 and which took effect on June 27, 2023.

There is now a public comment period (60 days following publication of the proposed rule in the Federal Register until January 21, 2025 to comment on the proposed rule (comments may be submitted on the Federal Register webpage). The EEOC must consider such comments, as well as hold the requisite hearing, prior to issuing a final rule.

U.S. Department of Labor (DOL)

Tip Credit Rule

The DOL has formally rescinded a 2021 rule that made it more difficult for employers to claim a minimum wage tip credit under the FLSA. The impact on employers is expected to be minimal, as the 5th Circuit Court of Appeals vacated the rule in August. Effective December 17, 2024, the Final Rule officially removes the vacated regulatory text and restores the regulation as it existed before the 2021 rule.

2024-29798.pdf

Department of Homeland Security (DHS)

Employment Authorization

DHS will increase the automatic extension period of employment authorization and employment authorization documentation from up to 180 days to up to 540 days on a permanent basis for eligible noncitizens who file timely requests to renew their work authorization. The final rule goes into effect January 13, 2025, and will apply to eligible applicants with timely filed renewal EAD applications pending or filed on or after May 4, 2022.

DHS Announces Permanent Increase of the Automatic Extension Period for Certain Employment Authorization Document Renewal Applicants | USCIS

National Labor Relations Board (NLRB)

Captive Audience Meetings

This month, the Board issued a decision in Amazon.com Services LLC, ruling that an employer violates the National Labor Relations Act by requiring employees under threat of corrective action or discharge to attend meetings in which the employer expresses its views on unionization. Overruling Babcock & Wilcox Co., 77 NLRB 577 (1948), the Board explained that such meetings—commonly known as captive-audience meetings—violate Section 8(a)(1) of the Act because they have a reasonable tendency to interfere with and coerce employees in the exercise of their Section 7 rights. However, the Board made clear that an employer may lawfully hold meetings with workers to express its views on unionization so long as workers are provided reasonable advance notice of: the subject of any such meeting, that attendance is voluntary with no adverse consequences for failure to attend, and that no attendance records of the meeting will be kept.

Social Security Administration (SSA)

2025 Rates

The SSA recently announced that the maximum earnings subject to the Social Security payroll tax will increase by 4.4% next year, from $168,600 to $176,100. Press Release | Press Office | SSA

The SSA also posted a fact sheet summarizing the 2025 cost-of-living adjustments (COLAs). Social Security Changes - COLA Fact Sheet (ssa.gov)

In 2025, there will be no limit to the amount of wages subject to the Medicare tax rate of 1.45%. In addition, wages that exceed $200,000 ($250,000 for married couples filing jointly) will continue to be subject to the extra 0.9% Medicare tax, which is only paid by employees.

Employers and employees each contribute to the Social Security retirement system via Social Security and Medicare (FICA) taxes. The total FICA tax rate (6.2% for Social Security plus 1.45% for Medicare) will remain unchanged at 7.65% for 2025, up to the $176,100 Social Security taxable wage cap.

The maximum Social Security tax employees and employers will each pay in 2025 is $10,918.20, which is an increase of $465.00 (from $10,453.20 in 2024).

U.S. Department of Labor (DOL)

Overtime Rule

This rule has been struck down. Please click here to see our related article this month.

Equal Employment Opportunity Commission (EEOC)

Releases 2024 Litigation Statistics

The U.S. Equal Employment Opportunity Commission (EEOC) announced that it filed 110 lawsuits challenging unlawful employment discrimination in fiscal year 2024, placing an emphasis on emerging issues and advancing the employment rights of underserved and vulnerable workers.

The 110 lawsuits filed for the year ending Sept. 30, 2024, include:

13 new systemic cases involving a pattern, practice, or policy of discrimination
48 cases under the Americans with Disabilities Act (ADA)
Over 40 cases alleging retaliation under various statutes enforced by the EEOC
7 cases under the Age Discrimination in Employment Act (ADEA)
5 cases under the Pregnant Workers Fairness Act (PWFA)
5 sexual harassment cases on behalf of teenage workers under Title VII of the Civil Rights Act of 1964 (Title VII)
4 cases under Title VII alleging sex discrimination based on sexual orientation
3 cases under Title VII alleging sex discrimination based on gender identity

The agency focused on enforcing the PWFA as an emerging issue. At the forefront of enforcement of the new law, the Commission’s lawsuits allege employers failed to provide reasonable accommodations to workers who were entitled to them and often discharged employees as a result. The PWFA, in effect since June 27, 2023, requires employers to provide workplace accommodations, absent undue hardship, to employees who have a limitation due to pregnancy, childbirth, or related medical condition, including lactation.

Systemic litigation continued to be a sizable portion of the EEOC’s litigation caseload; the agency filed 13 new systemic cases for a total of 45 current cases, or 22% of the docket at the end of the fiscal year. The EEOC also used many non-systemic filings to address a broad swath of agency priorities, such as harassment, equal pay, and access to the legal system.

The EEOC continued to vigorously enforce the ADA, filing 48 cases or almost half of all merits litigation on behalf of workers with disabilities. Many of these cases challenged employer qualification standards or other inflexible policies, such as those requiring employees to work with no medical restrictions without consideration of possible accommodations, or those assessing points for absences related to an employee’s disability.

The agency’s diverse suit filings were consistent with the agency’s Strategic Enforcement Plan (SEP) for Fiscal Years 2024-2028, which prioritizes addressing persistent forms of employment discrimination, such as recruitment and hiring discrimination and systemic harassment, as well as emerging issues and vulnerable populations. The agency also focused on geographic diversity, filing cases in parts of the country geographically removed from an EEOC office such as South Dakota, Utah, and Wyoming.

In addition to the 110 merits suits, the EEOC also filed 18 suits for non-compliance with mandatory federal reporting requirements (EEO-1 Component 1 workforce demographic reports), and one suit alleging breach of a conciliation agreement.

More information on the EEOC’s litigation program is available, including statistics on selected enforcement suits filed and resolved in the federal district courts, a searchable collection of appellate briefs, and a collection of Office of General Counsel Annual Reports.

U.S. Department of Labor (DOL)

Overtime Rule

As employers turn to their year-end review process, they should remember the next salary threshold hike taking effect on January 1, 2025. One of the criteria for the FLSA’s executive, administrative, and professional exemptions (the “white-collar” exemptions) is earning a weekly salary above a certain level. On July 1^st that level increased to $844 per week ($43,888 annualized). For the next phase taking effect on January 1^st the threshold will rise to $1,128 (or $58,656 per year). The threshold for the “highly compensated employee” exemption rose to $132,964 on July 1^st and will increase to $151,164 on January 1^st.

The salary thresholds will be updated every three years.

Legal battles continue over the DOL’s authority to raise the salary threshold. So far, the rule has only been blocked as it applies to the state of Texas as an employer (state employees). The 5^th U.S. Circuit Court of Appeals actually handed the agency a win and noted that Congress gave the DOL the authority to define and delimit the terms of the overtime exemption. In the meantime, the July 1^st increase has been in effect and private employers will need to adjust compensation again on January 1^st unless a court says otherwise.

It is also important to remember that some states can have stricter or higher wage and hour requirements.

You can look back at this article from the June issue of FranklyHR for a refresher.

DOL Overtime Rule Takes Effect July 1st

Stay tuned for additional updates in the coming weeks.

Federal Trade Commission (FTC)

Noncompete Agreements

On October 18th, the FTC appealed a federal court ruling that had blocked the agency’s proposed ban on noncompete agreements. As a refresher, a federal court in Texas permanently blocked the FTC’s final rule this summer that was set to go into effect on September 4th.

Some give the appeal a ghost of a chance but this doesn’t mean employers should be complacent. There is continuing momentum at the state level. Twenty-five states (plus D.C.) have laws in effect that limit noncompete clauses; Iowa, Louisiana, and Pennsylvania have laws that will take effect in the near future; and Arizona, Connecticut, Georgia, Kentucky, Missouri, New York, and Tennessee recently proposed restrictive legislation. In particular, multi-state employers should have their agreements reviewed annually at a minimum by their legal counsel to assist with applicable state compliance.

Occupational Safety and Health Administration (OSHA)

Heat Illness and Injury Prevention Standard

Heat is the leading cause of death among all hazardous weather conditions in the United States and excessive heat in the workplace can cause a number of adverse health effects. OSHA has issued a proposed rule on a heat injury and illness prevention standard for both outdoor and indoor workplaces. The rule would require employers to develop a heat injury and illness prevention plan as well as provide water, rest breaks and control of indoor heat when necessary. Other requirements include developing plans for workers unaccustomed to working in high heat.

OSHA encourages the public to submit comments to the Heat Injury and Illness Prevention rulemaking docket at https://www.regulations.gov/commenton/OSHA-2021-0009-4761. The comment period is open until December 30, 2024.

U.S. Department of Labor (DOL)

Overtime Rule

A federal appeals court has ruled that the U.S. DOL has the power to set a salary-basis floor for workers to be considered exempt from overtime pay. Therefore, the minimum exempt employee salary is still set to rise to $58,656.00 on January 1, 2025, and the weekly salary will be $1,128.00. This past July 1st the threshold increased to $43,888 per year, $844.00 per week.

California, New York (New York City; Nassau County; Suffolk County; and Westchester County), and Washington are states that are higher than the federal salary as of 2024.

Federal Trade Commission (FTC)

Noncompete Clauses in Restrictive Agreements

A federal court in Texas has permanently blocked nationwide the Federal Trade Commission (FTC) final rule banning noncompete agreements. The rule was set to go into effect on September 4. The same court earlier issued a preliminary injunction barring the rule that was limited to only the named plaintiffs.

In its ruling, the court followed its earlier reasoning and held that the FTC exceeded its statutory rulemaking authority. The court found that the text, structure and history of the Federal Trade Commission Act shows that the agency can issue only "housekeeping" rules - rules concerning procedure and practice - regarding unfair methods of competition as opposed to substantive rules. This finding is further supported, the court said, by the FTC's lack of any authority to impose penalties for violation.

The court also held that the rule was "arbitrary and capricious" in violation of the Administrative Procedure Act. The court concluded that the noncompete rule was unreasonably overbroad without a reasonable explanation. "The rule imposes a one-size-fits-all approach with no end date, which fails to establish a rational connection between the facts found and the choice made," the court said.

"The commission's lack of evidence as to why they chose to impose such a sweeping prohibition - that prohibits entering or enforcing virtually all non-competes - instead of targeting specific, harmful non-competes, renders the Rule arbitrary and capricious."

A federal district court in Florida had made similar findings this month, issuing an injunction against the rule on behalf of the plaintiff. However, a Pennsylvania court ruled in favor of the FTC, finding that the agency did have broad rulemaking authority. The question of whether the rule was arbitrary and capricious was not raised in that case.

Although the federal rule has been blocked, employers must still comply with an array of state laws governing the use of noncompete agreements.

Davis-Bacon Act (DBA)

Certain Wage Rules Blocked

A Texas federal court has issued a nationwide preliminary injunction blocking certain of the DOL’s wage rules under the Davis-Bacon Act (DBA). The DBA applies to contractors and subcontractors performing construction, alteration, or repair of public buildings or public works on federally funded or federally assisted contracts. The Act requires payment of prevailing wages and specified fringe benefits to workers called “laborers and mechanics” that are applicable to the location and trades those workers are performing on those contracts.

On August 23, 2023, the DOL issued a final rule revising the DBA. The final rule became effective October 23, 2023, and applies to new contracts entered into after this date. The rule made significant changes to the DBA standards, including extending coverage to workers who are not mechanics and laborers, and expanding the scope of the work covered by the DBA to include work not performed “directly on the site of the work.” Some of the specific changes in the final rule include (1) eliminating the 20% threshold exception for material suppliers in favor of a de minimis standard; (2) applying the DBA’s prevailing wage requirements to work done by truck drivers who make deliveries to work sites; and (3) providing that the DBA’s prevailing wage standards could apply to a contract by “operation of law,” even when the contract did not incorporate the required DBA clauses and wage determinations.

The judge found that (1) elimination of the 20% threshold for material suppliers was contrary to the plain language of the DBA; (2) expanding DBA prevailing wage requirements to truck drivers was arbitrary and capricious; and (3) the DBA may only be applied to contracts containing specific provisions incorporating the required DBA clauses.

While the injunction halting these three provisions brings some relief, contractors should be aware that the remaining provisions of the Final Rule (such as the new prevailing wage calculations, standards for updated wage determinations, and other clarifying guidance) remain in effect. The preliminary injunction will remain in place until the case is fully resolved on the merits or pending a decision by the Fifth Circuit Court of Appeals.

Department of Labor (DOL)

80/20 Tip Credit Rule

A federal appeals court has vacated this 2021 rule nationwide. Read more about this in our article this month.

Department of Justice (DOJ)

Whistleblower Program

Under a new pilot program that started August 1, the DOJ is offering compensation to whistleblowers whose tips result in a successful prosecution. The program covers a certain set of corporate crimes, ranging from domestic and foreign corruption to healthcare fraud.

Under the program, “a whistleblower who provides the Criminal Division with original and truthful information about corporate misconduct that results in a successful forfeiture may be eligible for an award,” the department said. Whistleblowers must be individuals and are eligible for awards if the information they provide leads to criminal or civil forfeiture of more than $1 million in net proceeds.

Reports must be related to crimes involving financial institutions, foreign and domestic corruption or healthcare fraud schemes, the department said. Companies that self-report within 120 days of receiving a whistleblower report internally might be able to avoid prosecution, per the DOJ.

The new whistleblower awards program is meant to fill gaps left by existing DOJ and other government whistleblower programs, according to DOJ guidance. The three-year initiative will be managed by the Criminal Division’s Money Laundering and Asset Recovery Section.

Department of Homeland Security (DHS)

Form I-9

U.S. Citizenship and Immigration Services (USCIS) has updated the Form I-9, Employment Eligibility Verification to extend the expiration date to May 31, 2027 from July 31, 2026. Employers may continue to use the current form until May 31, 2027 but any newly downloaded forms from USCIS will bear the new expiration date.

The USCIS website has many resources:

Form I-9 Employment Eligibility Verification

Form I-9 Acceptable Documents

You can also check out videos on MyFrankCrum on how to complete the Form I-9 (Log into MyFrankCrum, click the Lightbulb top right, Tutorials, MFC Knowledge Base, Administrators, How to complete the I-9).

National Labor Relations Board (NLRB)

Pro-Union Representation Rules

The NLRB is restoring policies that make it easier for unions to achieve or retain recognition. The Fair Choice-Employee Voice Final Rule rescinds portions of the 2020 regulations and returns to prior regulations for processes for union recognition.

These restored policies provide workers with a fair opportunity to decide whether they want union representation in the workplace and a process that respects workers’ choices: the blocking charge policy, voluntary recognition of a union, and construction industry bargaining relationships.

You can read more in the link above.

Equal Employment Opportunity Commission (EEOC)

Furlough Plan Cancelled

As an item of interest, the U.S. Equal Employment Opportunity Commission will not furlough its workforce on August 30^th as the agency previously warned could happen. They will be working this Friday, looking ahead to the holiday weekend, but processing discrimination claims as normal!

The commission in late July told employees it was considering the single-day furlough as it was on track for a budget overrun, pointing to increased costs including a mandatory 5.2% pay raise. The agency said its daily payroll is an estimated $1.3 million.

The EEOC accrued enough savings to avoid the furlough. The agency’s communications director, Victor Chen, said the EEOC did so through aggressive financial management and cooperation from all agency components to maximize efficiencies — specifically, limiting travel, leveraging existing investments in technology and obtaining rent credits. It also continued a hiring freeze, realizing savings through attrition, Chen said.

Notice of the potential furlough came a few weeks ago and was a step required by the employees’ union agreement. The union also suggested last month that the EEOC cut down on physical office space and increase remote work flexibility to help reduce expenses. The union didn’t comment about the rescinded furlough notice.

National Labor Relations Board (NLRB)

Joint Employer Rule

On July 19^th, 2024, the National Labor Relations Board (NLRB) withdrew its appeal of a district court ruling that had blocked its new joint employer rule.

As a result, the current employer-friendly standard for determining joint employer status under federal labor law will remain in place for the foreseeable future.

Federal Trade Commission (FTC)

Noncompete Clauses in Restrictive Agreements

As noted in last month’s FranklyHR, under a new Federal Trade Commission (FTC) rule, for-profit employers will soon be prohibited from entering or enforcing noncompete clauses in their restrictive agreements. The rule is scheduled to take effect on September 4, 2024.

Last week, the U.S. District Court for the Eastern District of Pennsylvania rejected a tree service company’s motion to enjoin and stay the effective date of the Federal Trade Commission’s (FTC) rule banning noncompete agreements. The court rejected the plaintiff’s arguments “that the FTC lacks substantive rulemaking authority under its enabling statute, that the FTC exceeded its authority, and that Congress unconstitutionally delegated legislative power to the FTC.” The ruling sets the stage for a potential circuit split, as earlier this month, the U.S. District Court for the Northern District of Texas enjoined the rule as applied to the particular named plaintiffs in that case.

Stay tuned.

Department of Homeland Security (DHS)

Form I-9

DHS recently announced significantly higher fines against employers for Form I-9 violations. Fines for I-9 paperwork violations will rise from $281 to $2,789 per Form I-9, and fines for employers in the federal E-Verify program that fail to inform DHS of continuing employment following final non-confirmation will increase from $973 to $1,942 per relevant individual employee. There are also additional increases for knowingly employing an unauthorized alien and unfair immigration-related employment practices. Federal Register :: Civil Monetary Penalties Inflation Adjustments for 2024. Employers can also expect an increase in inspections by ICE beginning in 2025.

The USCIS website is a wealth of resources:

Form I-9 Employment Eligibility Verification

Form I-9 Acceptable Documents

Occupational Safety and Health Administration (OSHA)

Hazard Communication Standard Update

Effective July 19, 2024, the Occupational Safety and Health Administration (OSHA) updates its Hazard Communication (HazCom) Standard to improve the amount and quality of information on labels and safety data sheets (SDSs).

The changes align with the seventh revision of the United Nations Globally Harmonized System (GHS) of Classification and Labeling of Chemicals and include:

Revised criteria for classification of certain health and physical hazards;
Revised provisions for updating labels;
New labeling provisions for small containers;
New provisions related to trade secrets and technical amendments related to the contents of SDSs; and
Related revisions to definitions of terms used in the standard.

Federal Trade Commission (FTC)

Noncompete Clauses in Restrictive Agreements

Under a new Federal Trade Commission (FTC) rule, for-profit employers will soon be prohibited from entering or enforcing noncompete clauses in their restrictive agreements. The rule will take effect on September 4, 2024.

According to the new prohibition, it will be considered an unfair method of competition for an employer to: enter into or attempt to enter into a noncompete agreement with any employee; maintain a noncompete agreement with an employee; or represent to an employee, other than a senior executive with an existing noncompete, that the employee is subject to a noncompete agreement.

The new rule also requires employers to rescind existing noncompete provisions in their restrictive agreements and actively notify workers that they are no longer in effect, except in the case of existing noncompete agreements for senior executives. Existing noncompete agreements for other employees are not enforceable after the rule's effective date. The final rule also does not apply to persons who enter a noncompete agreement pursuant to the sale of a business.

The rule does not bar other types of restrictive covenants such as nondisclosure agreements or nonsolicitation agreements unless they are "so unusually broad in scope" that they effectively function as noncompete agreements.

The U.S. Chamber of Commerce has already challenged the new rule, and legal challenges to the rule can result in a stay of the effective date. Even if the national rule is disallowed, employers still face restrictions on non competes at the state level. Some states already prohibit their use (Oklahoma and Minnesota, for instance) and some states have passed specific restrictions on their use such as when employing low wage workers (Colorado and Illinois, for instance). Federal regulation by the FTC aims to preempt all state laws governing non competes.

Employers should monitor the progress of legal challenges but can prepare now by:

Reviewing current agreements and policies.
Deciding whether any employees qualify for the “senior executive” exception. The final rule defines senior executives as workers earning more than $151,164 annually and who are in policy-making positions.
Assembling a list of impacted current and former employees, with relevant contact information in order to send notices.

Equal Employment Opportunity Commission (EEOC)

Promising Practices for Preventing Harassment in the Construction Industry

The Equal Employment Opportunity Commission (EEOC) has released Promising Practices for Preventing Harassment in the Construction Industry, a document that highlights key recommendations industry leaders can take to combat harassment in construction.

The document identifies core practices that will help prevent and address harassment in the construction industry: committed and engaged leadership; consistent and demonstrated accountability; strong and comprehensive harassment policies; trusted and accessible complaint procedures; and regular, interactive training tailored to the audience and the organization.

“At a time when job opportunities in construction are rapidly growing thanks to historic federal investments, significant harassment and discrimination still hinder equal employment opportunity in the industry,” said EEOC Chair Charlotte A. Burrows. “The EEOC is committed to removing barriers to equal opportunity, and these promising practices, together with the agency’s updated Enforcement Guidance on Harassment in the Workplace, provide resources to employers to help prevent and respond to harassment.”

The promising practices document follows a 2023 report issued by EEOC Chair Charlotte A. Burrows, “Building For the Future: Advancing Equal Employment in the Construction Industry,” that examined discrimination based on race, national origin, and sex in the industry through the lens of EEOC cases, witness testimony from a 2022 EEOC hearing, and research.

Department of Labor (DOL)

AI Principles

In response to direction from Executive Order 14110, titled Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence, the US DOL created Principles for Developers and Employers related to the use of AI in the workplace. The DOL recognizes the fluid nature of AI development and evolution, so the principles are not intended to be exhaustive nor prescient, however, they are intended to provide a framework for the development and deployment of AI in work settings and in situations where worker rights and well-being need to be considered. Some principles will apply more or less to different industries or work settings.

There are 8 principles as follows:

(North Star) Centering Worker Empowerment
Ethically Developing AI
Establishing AI Governance and Human Oversight
Ensuring Transparency in AI Use
Protecting Labor and Employment Rights
Using AI to Enable Workers
Supporting Workers Impacted by AI
Ensuring Responsible Use of Worker Data

Overtime Rule

The U.S. Department of Labor announced a final rule, raising the Fair Labor Standards Act’s minimum annual salary threshold for overtime pay eligibility in a two-step process. Starting July 1, 2024, the minimum standard salary is $844 per week (equivalent to $43,888 per year).

Recent issues of FranklyHR have covered this topic. Review more about the upcoming rule and additional tips for employers in our DOL Overtime Rule article this month.

Equal Employment Opportunity Commission (EEOC)

Pregnant Workers Fairness Act

The Pregnant Workers Fairness Act (PWFA) took effect on June 27, 2023. The PWFA requires employers with 15 or more employees to provide reasonable accommodations for an employee's known limitations related to pregnancy, childbirth, or related medical conditions, barring undue hardship.

On April 15, 2024 the EEOC issued its final regulation to carry out the law which will be effective on June 18, 2024 (i.e., 60 days from publication in the Federal Register).

Implementation of the Pregnant Workers Fairness Act, Final Rule and Interpretive Guidance

There are several state lawsuits, and an injunction barring the PWFA’s enforcement against the state of Texas. Employers should proceed with the expectation that the PWFA final regulation will become effective on June 18, but know that legal challenges could impact the scope and enforceability of the EEOC final rule.

U.S. Department of Labor (DOL)

Overtime Rule

The U.S. Department of Labor announced a final rule, raising the Fair Labor Standards Act’s minimum annual salary threshold for overtime pay eligibility in a two-step process.

Standard salary level:

Before July 1, 2024 $684 per week (equivalent to $35,568 per year)

July 1, 2024 $844 per week (equivalent to $43,888 per year)

January 1, 2025 $1,128 per week (equivalent to $58,656 per year)

To qualify for exemption, employees generally must meet certain tests regarding their job duties and be paid on a salary basis at not less than $684* per week (current standard salary level before July 1, 2024). Employers may use nondiscretionary bonuses and incentive payments (including commissions) paid on an annual or more frequent basis, to satisfy up to 10 percent of the standard salary level (not for highly compensated employees as defined).

In addition to increases to the standard salary level, the highly compensated employee (HCE) threshold increases from $107,432 to $132,964 per year on July 1^st and $151,164 per year on January 1^st. The HCE must receive at least the full standard salary level amount per week each pay period on a salary or fee basis without regard to the payment of nondiscretionary bonuses and incentive payments.

The rule is subject to legal challenges but employers should still prepare. Read more about the upcoming rule and additional tips for employers in this month’s Ask An HR Expert section.

AI Guidance

The Wage and Hour Division released guidance regarding employer AI obligations with the FLSA, FMLA, Nursing Employee Protections, the Employee Polygraph Act, as well as prohibited retaliation.

You can learn about this by clicking the link below:

Artificial Intelligence and Automated Systems in the Workplace under the Fair Labor Standards Act and Other Federal Labor Standards

U.S. Department of Labor (DOL)

Overtime Rule

On April 23, 2024, the U.S. Department of Labor announced a final rule, raising the Fair Labor Standards Act’s minimum annual salary threshold for overtime pay eligibility in a two-step process. Starting July 1, 2024, the threshold will increase from $35,568 to $43,888 per year. It will then increase to $58,656 on January 1, 2025.

Read more in our articles here in the newsletter this month.

Occupational Safety and Health Administration (OSHA)

Strengthened Employee Protections

In an effort to promote workers' involvement in its workplace inspections, the Occupational Safety and Health Administration (OSHA) will soon allow employees to designate third parties - including union representatives or community organizers - to accompany the agency during its inspections.

The Occupational Safety and Health Act (OSH Act) gives both employers and employees the right to designate a representative to accompany OSHA compliance officers during physical inspections of a workplace (sometimes known as "walkarounds").

OSHA has long interpreted one of its own regulations as allowing third-party representatives authorized by employees to accompany the agency on its walkaround inspections when it is "reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace." However, in 2017, a federal district court held the regulation generally requires that employee representatives be employees themselves.

As a result, OSHA is updating its regulation, effective May 31, 2024, to explicitly clarify that the representatives authorized by employees may be an employee of the employer or a third party.

OSHA's updated regulation also will clarify that third-party representatives may be necessary by virtue of their "relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language skills." This way, employees' options for third-party representation during OSHA inspections will no longer be limited to only those individuals with skills and knowledge similar to that of the two examples provided in existing regulation: Industrial Hygienist or Safety Engineer.

Worker advocates applaud the new regulation, saying that a trusted intermediary can help OSHA inspectors uncover workplace hazards. "That's because workers who labor under the most dangerous conditions also face the greatest barriers to, and risks from, speaking to OSHA about work practices and hazards," the National Council for Occupational Safety and Health said in a comment.

Opponents said the rule interferes in labor-management relations, increases costs, and overturns longstanding regulations.

Check out our past blog here for how to handle an OSHA visit. For safety questions, you can reach out to SafetyandRisk@frankcrum.com.

Federal Contractor

Portal Opens For Annual Certification

This month, the Office of Federal Contract Compliance Programs (OFCCP) opened its Contractor Portal “where covered federal contractors and subcontractors must certify, on an annual basis, whether they are meeting their requirement to develop and maintain annual [affirmative action programs].” Covered contractors have until July 1, 2024, to register and certify their compliance.

Instructions, frequently asked questions (FAQs), and how-to videos are provided by OFCCP. OFCCP advises contractors that have questions about the Contractor Portal to request assistance through the OFCCP Contractor Portal Technical Help Request Form or call the OFCCP Help Desk at 1-800-397-6251.

Federal Trade Commission

Noncompete Agreements

Employers across the US will soon be prohibited from entering or enforcing noncompete clauses, following a vote April 23rd by the Federal Trade Commission (FTC) approving a final rule banning such agreements.

Effective 120 days following publication of the rule in the Federal Register, it will be an unfair method of competition for an employer to:

Enter into or attempt to enter into a noncompete agreement with any employee, including senior executives after the effective date;
Maintain a noncompete agreement with an employee; or
Represent to an employee, other than a senior executive with an existing noncompete, that the employee is subject to a noncompete agreement.

The new rule also requires employers to rescind existing noncompete agreements and actively notify workers that they are no longer in effect, except in the case of existing noncompete agreements for senior executives. Existing noncompete agreements for other employees are not enforceable after the rule's effective date. The final rule also does not apply to persons who enter a noncompete agreement pursuant to the sale of a business.

The rule does not bar other types of restrictive covenants such as nondisclosure agreements or non-solicitation agreements unless they are "so unusually broad in scope" that they effectively function as noncompete agreements.

The FTC justified the need for the final rule by citing studies showing that noncompete agreements reduce competition in labor markets, resulting in reduced wages for all workers. It also estimates that banning noncompete agreements would increase workers' total earnings by $250 billion to $296 billion per year.

The US Chamber of Commerce has already challenged the new rule, arguing that the FTC exceeded its authority under the Federal Trade Commission Act and that the rule unlawfully infringes on state contract laws. Stay tuned for additional updates.

Equal Employment Opportunity Commission (EEOC)

EEO-1 Component 1

The EEO-1 Component 1 report is a mandatory annual data collection that requires some employers to submit demographic workforce data, including data by race/ethnicity, sex, and job categories. This year’s EEO-1 Component 1 data collection opens on April 30, 2024.

Use our Flow Chart to find out if you’re required to file the EEO-1 Component report and if you are a client that needs to file (and have not already been in contact with your HR Consultant on this), click on the file for me button that you see on the chart and complete and submit the form.

Clients are being communicated with but if you have questions, reach out to your FrankAdvice HR Consultant.

Pregnant Workers Fairness Act Final Rule

The EEOC published its final rule for the Pregnant Workers Fairness Act (PWFA) and will be effective 60 days after official publication, June 18, 2024. The PWFA requires employers with at least 15 employees to make reasonable accommodations for the known limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee or applicant unless they can demonstrate the accommodation would pose an “undue hardship.”

Highlights from the final regulation include:

Numerous examples of reasonable accommodations such as additional breaks to drink water, eat, or use the restroom; a stool to sit on while working; time off for health care appointments; temporary reassignment; temporary suspension of certain job duties; telework; or time off to recover from childbirth or a miscarriage, among others.
Guidance regarding limitations and medical conditions for which employees or applicants may seek reasonable accommodation, including miscarriage or stillbirth; migraines; lactation; and pregnancy-related conditions that are episodic, such as morning sickness. This guidance is based on Congress’s PWFA statutory language, the EEOC’s longstanding definition of “pregnancy, childbirth, and related medical conditions” from Title VII of the Civil Rights Act of 1964, and court decisions interpreting the term “pregnancy, childbirth, or related medical conditions from Title VII.
Guidance encouraging early and frequent communication between employers and workers to raise and resolve requests for reasonable accommodation in a timely manner.
Clarification that an employer is not required to seek supporting documentation when an employee asks for a reasonable accommodation and should only do so when it is reasonable under the circumstances.
Explanation of when an accommodation would impose an undue hardship on an employer and its business.
Information on how employers may assert defenses or exemptions, including those based on religion, as early as possible in charge processing.

What You Should Know About the Pregnant Workers Fairness Act | U.S. Equal Employment Opportunity Commission (eeoc.gov)

Several Republican state attorneys have challenged this, saying the EEOC's stance that the PWFA encompasses abortion-related workplace accommodations is unconstitutional. Stay tuned for any updates.

Guidance on Harassment in the Workplace

On April 29, 2024, the U.S. Equal Employment Opportunity Commission (EEOC) published final guidance on harassment in the workplace, “Enforcement Guidance on Harassment in the Workplace.” By providing this resource on the legal standards and employer liability applicable to harassment claims under the federal employment discrimination laws enforced by the EEOC, the guidance will help people feel safe on the job and assist employers in creating respectful workplaces.

These laws protect covered employees from harassment based on race, color, religion, sex (including pregnancy, childbirth, or related medical conditions; sexual orientation; and gender identity), national origin, disability, age (40 or older), or genetic information.

Between fiscal years 2016 and 2023, more than a third of all discrimination charges received by the EEOC included an allegation of harassment based on race, sex, disability, or another characteristic covered by the laws enforced by the agency. Also, since fiscal year 2018, harassment has been alleged in over half of federal sector equal employment opportunity complaints. In addition, among the 143 merits lawsuits that the Commission filed in fiscal year 2023, approximately 35% of those cases included an allegation of harassment.

Along with the final guidance, the EEOC issued several educational resources, including a “Summary of Key Provisions” document, a document for employees, and a fact sheet for small businesses.

U.S. Supreme Court

Mandatory Job Transfers

On April 17, 2024, the U.S. Supreme Court held that an employee need not show “significant” harm when pursuing a discrimination claim under Title VII of the Civil Rights Act of 1964 when the claim is based on a mandatory job transfer. Rather, in Muldrow v. St. Louis, the Supreme Court held that a plaintiff need only show “some” degree of harm to “an identifiable term or condition of employment.”

Petitioner Muldrow of the St. Louis Police Department argued that her eight-month transfer out of the Department’s Intelligence Division constituted sex discrimination within the meaning of Title VII, even though she had not suffered any economic damages as a result of the transfer. Her FBI credentials were revoked, she lost the take-home use of a department-issued vehicle, and she was reassigned from a consistent weekly schedule to rotating shifts that included work on weekends. The transfer removed her from regular contact with high-ranking officials and diminished her internal visibility within the department. The federal district court dismissed Muldrow’s discrimination claim, finding she had failed to establish proof of “significant” harm resulting from the transfer. The U.S. Court of Appeals for the Eighth Circuit affirmed the decision. The case went to the U.S. Supreme Court.

In light of Muldrow, employees need only show evidence that a job transfer resulted in “some” degree of harm to “an identifiable term or condition of employment.” They need not prove “significant,” “substantial,” or “material” harm. Determining what evidence will satisfy the “some” harm standard will depend on the unique facts and circumstances of each case.

Employers can consider reviewing their practices around job transfer decisions, including how they document the rationale for such transfers, the employee selection criteria they use, and the positive/negative impact the transfer may have on the terms and conditions of employment.

National Labor Relations Board (NLRB)

Union Petitions and Unfair Labor Practices Charges Up

During the first six months of Fiscal Year 2024 (October 1–March 31), union election petitions filed at NLRB field offices rose 35% over the same period in Fiscal Year 2023. Notably, this is driven by a spike in employer-filed RM-petitions, after the Board’s Cemex decision, accompanied by an uptick in employee-filed RC-petitions. In total, 1,618 petitions were filed during this time, compared with 1,199 in the first half of Fiscal Year 2023. Of the recent petitions, 1,137 were RC-petitions and 281 were RM-petitions. You can learn more about petitions and the election process on the NLRB’s website here.

At the same time, unfair labor practice (ULP) charges filed across the NLRB’s field offices have increased 7%—from 9,612 to 10,278. Accounting for union petitions and unfair labor practice charges, the NLRB received 11,896 cases in the first half of Fiscal Year 2024, up 10% over the first half of Fiscal Year 2023 when the field offices received 10,811 cases.

This increase in filings continues the surge in NLRB caseload in recent years. In Fiscal Year 2023, ULP charges were up 10% and election petitions were up 3% over the previous year. In Fiscal Year 2022, union petitions were up 53%, and ULP charges filed increased 19% over Fiscal Year 2021.

For a refresher on unionization and employer requirements, you can check out the Webinar: My Employee Can Say and Do What?! The NLRA And How It Affects You on MyFrankCrum (My Resources section).

Moonlighting Memo

In a recently released advice memorandum, the NLRB's Division of Advice said restricting employees from holding outside or secondary employment violates federal labor law. To read the memo, click here. Employers should pay attention to the position that rules or provisions prohibiting moonlighting are generally unlawful, and note that the NLRB has expressed interest in addressing this.

U.S. Department of Labor (DOL)

Proposed Overtime Rule

On March 1, 2024, the DOL transmitted its final rule amending the Fair Labor Standards Act’s overtime regulation to the Office of Information and Regulatory Affairs. This step likely means that a final rule will be published in several weeks, which would be consistent with the April 2024 timeframe set forth in the most recent regulatory agenda. As proposed, the rule would increase the salary basis requirement for the exemption from minimum wage and overtime pay from $35,568 to $55,068 per year, or perhaps more, as the DOL has stated that the final rule “will use the most recent data available, which will change the dollar figures.” There is also a provision to automatically update the salary basis threshold every three years.

Stay tuned for an update next month and be sure to check out the Ask An HR Expert article this month and in last month’s FranklyHR for tips to prepare.

Equal Employment Opportunity Commission (EEOC)

Annual Performance Report

The EEOC reported that it recovered $665 million for workers in the 2023 fiscal year (FY), a $152 million increase over the previous year and the largest FY recovery in the agency's history.

The EEOC said it secured over $440 million of compensation for private-sector workers and state and local government employees through mediation, conciliation, and settlements and obtained just over $22.6 million through litigation. The EEOC noted it won more than $202 million on behalf of federal employees and job applicants who claimed they were discriminated against.

The recovery coincides with over 81,000 new discrimination charges in the FY, a 10% increase over the previous year. However, the EEOC ended the fiscal year with 51,100 pending charges, a slight decrease from approximately 51,400 charges that were pending at the end of FY2022. If you receive a charge from the EEOC reach out to your FrankAdvice HR Consultant right away.

Federal Agencies

Show Me The Money

The White House proposed raising the EEOC's budget by $33 million in FY2025 to help the agency tackle new issues stemming from artificial intelligence and implement the newly enacted Pregnant Workers Fairness Act.

And as part of President Biden’s annual budget proposal FY 2025, he would set aside billions of dollars for the U.S. Department of Labor to address worker protections and establish a paid leave program.

The proposal calls for $13.9 billion in discretionary funding for the DOL, up $318 million, or 2.3%, from the 2023 amount. Of that total, $2 billion would go to "empowering and protecting workers," which includes addressing workers' wages, independent contractor misclassification, and unlawful child labor.

Centers for Disease Control and Prevention (CDC)

Updated Recommendations for Respiratory Viruses

The CDC released updated recommendations for how people can protect themselves and their communities from respiratory viruses, including COVID-19. The new guidance brings a unified approach to addressing risks from a range of common respiratory viral illnesses, such as COVID-19, flu, and RSV, which can cause significant health impacts and strain on hospitals and healthcare workers. The CDC is making updates to the recommendations now because the U.S. is seeing far fewer hospitalizations and deaths associated with COVID-19 and because there are more tools than ever to combat flu, COVID-19, and RSV.

The 5-day isolation period is no longer recommended by the CDC for those who test positive for COVID-19. COVID-19 symptoms will follow flu and respiratory virus CDC guidelines.

National Labor Relations Board (NLRB)

Joint Employer Rule

The NRLB's new joint-employer rule has been struck down by a US District Court judge who said the rule lacks clarity and is overly broad. The decision came in a legal challenge filed in Texas in which the US Chamber of Commerce and other business groups contended the rule could have led to companies facing excessive liability for employees who aren't on their payrolls.

The rule, which could deem an entity a joint employer even if it has only indirect or reserved control over another firm's workers, is arbitrary because the two-step rule's second step fails to limit the first, the judge said. To be a joint employer under the rule, an entity must be an "employer" under the common law, and it must control one of seven working conditions, the judge noted.

National Labor Relations Board (NLRB)

Joint-Employer Rule

A U.S. District Judge stayed the joint-employer rule until March 11, 2024. Under the new standard, an entity may be considered a joint employer of a group of employees if each entity has an employment relationship with the employees and they share or codetermine one or more of the employees’ essential terms and conditions of employment, which are defined exclusively as: (1) wages, benefits, and other compensation; (2) hours of work and scheduling; (3) the assignment of duties to be performed; (4) the supervision of the performance of duties; (5) work rules and directions governing the manner, means, and methods of the performance of duties and the grounds for discipline; (6) the tenure of employment, including hiring and discharge; and (7) working conditions related to the safety and health of employees.

U.S. Department of Labor (DOL)

Independent Contractor Rule

The final rule revising the Department’s guidance on how to analyze who is an employee or independent contractor under the Fair Labor Standards Act (FLSA), will be effective on March 11, 2024. Under the new rule, the DOL will consider six factors when examining the relationship between a potential employer and workers.

These factors are:

The degree of permanence of the work relationship.
The nature and degree of control over the performance of the work.
The worker’s opportunity for profit or loss.
The use of the worker’s skill and initiative.
Investments made by the worker and the employer.
The extent to which the work performed is an integral part of the employer’s business.

Click the below link for the article about this rule in last month’s issue of FranklyHR:

Department of Labor (DOL) New Independent Contractor Rule (frankcrum.com)

Federal Contractors

Proposed Rule on Pay Equity and Transparency

On January 30, 2024, the administration published a notice of proposed rulemaking on “Pay Equity and Transparency in Federal Contracting.” This proposed rule would:

(1) prohibit contractors and subcontractors from seeking and considering information about job applicants’ compensation history when making employment decisions about personnel working on or in connection with a government contract; and
(2) require contractors and subcontractors to disclose, in all advertisements for job openings involving work on or in connection with a government contract placed by or on behalf of the contractor or subcontractor, the compensation to be offered to the hired applicant, for any position to perform work on or in connection with the contract.

The public can comment until April 1, 2024. To learn more, and submit a comment, click the link below:

Federal Register :: Office of Federal Procurement Policy; Federal Acquisition Regulation: Pay Equity and Transparency in Federal Contracting

Nondisplacement of Qualified Workers Under Service Contracts

The U.S. Department of Labor (DOL) published a final rule, “Nondisplacement of Qualified Workers Under Service Contracts,” which is effective February 12, 2024. It states, “When a service contract expires, and a follow-on contract is awarded for the same or similar services, the Federal Government’s procurement interests in economy and efficiency are best served when the successor contractor or subcontractor hires the predecessor’s employees, thus avoiding displacement of these employees.”

The final rule also addresses issues related to which agencies and contracts are covered, the method and timing of job offers, circumstances around reduced staffing of a successor, the process for excepting contracts from these requirements, and recordkeeping.

Federal Register :: Nondisplacement of Qualified Workers Under Service Contracts

Occupational Safety and Health Administration (OSHA)

Required Annual Posting

February 1 is the deadline for employers to post the OSHA 300A form, a summary of 2023 illnesses and injuries. Clients can log in to MyFrankCrum to obtain their form under the OSHA section of the Documents tab. You must have employer access configured to obtain OSHA forms; if you need access reach out to ClientExperience@FrankCrum.com or contact your Account Manager directly.

A hard copy of the OSHA 300A form must be posted in a common area of the worksite where employee notices are usually placed. The summary must remain visible through April 30, 2024.

National Labor Relations Board (NLRB)

Joint-Employer Rule

The NLRB extended the effective date of its recent rule on determining the standard for joint-employer status to February 26, 2024 to facilitate resolution of legal challenges with respect to the rule. The new standard will only be applied to cases filed after the rule becomes effective.

The final rule only applies to the definition of Joint Employer under the NLRA, which concerns employees’ rights to form or join unions; engage in protected, concerted activities to address or improve working conditions; or refrain from engaging in these activities.

The new rule expands joint employer status beyond the low NLRB threshold already in effect. It makes even indirect and unexercised control over essential terms and conditions of employment part of joint employer status, as opposed to just probative of such status. Under the new rule, even when only one of the joint employers has exercised sole and complete control over each aspect of its employees' essential terms and conditions, the other joint employer, with only reserved and unexercised authority, will be required to participate in the collective bargaining process.

It remains uncertain if the final rule’s effective date will be extended again beyond February 2024 or whether its implementation will be enjoined in pending court challenges.

On a related note, according to data released last week by the U.S. Bureau of Labor Statistics (BLS), just 10% of workers were union members in 2023. This reflects a slight decline from 10.1 percent in 2022. The 2023 private-sector unionization rate held at 6 percent. So, despite policy changes at the National Labor Relations Board and U.S. Department of Labor that benefit unions, most workplaces remain nonunion.

U.S. Department of Labor (DOL)

PUMP FAQs

The DOL released guidance on the PUMP Act for retail and restaurant employers. Additionally, there are FAQs and webinars for agriculture and care industry employers.

FLSA Protections to Pump at Work | U.S. Department of Labor (dol.gov)

Nondisplacement of Qualified Workers Under Service Contracts

The DOL published a final rule, “Nondisplacement of Qualified Workers Under Service Contracts.” It states, “When a service contract expires, and a follow-on contract is awarded for the same or similar services, the Federal Government’s procurement interests in economy and efficiency are best served when the successor contractor or subcontractor hires the predecessor’s employees, thus avoiding displacement of these employees.”

The final rule also addresses issues related to which agencies and contracts are covered, the timing and method of job offers, circumstances related to reduced staffing of a successor, the process for excepting contracts from the requirements, recordkeeping, and remedies.

Effective February 12, 2024.

Federal Register :: Nondisplacement of Qualified Workers Under Service Contracts

Equal Employment Opportunity Commission (EEOC)

New Digital Solution

The U.S. Equal Employment Opportunity Commission (EEOC) announced this week the launch of E-File for Attorneys, an application that allows attorneys to submit charges of discrimination electronically on behalf of their clients. Attorneys representing charging parties will now be able to immediately upload a charge already signed by their client or create a charge their client can sign and submit through the EEOC Public Portal.

Workers and job applicants do not need an attorney to file a charge of discrimination. Access to EEOC services remains free and open to all through the EEOC public portal.

The EEOC estimates that about a third of the charges it receives come from attorneys filing on behalf of their clients. Attorneys submitted these charges by mail, fax, and hand-delivery, and the EEOC processed them manually, resulting in duplication of work for the agency, attorneys, and represented charging parties.

With this digital solution, the EEOC expects to free up resources significantly to better serve individuals who are unrepresented and want to file charges of discrimination. The E-file for Attorneys application will help strengthen the capacity of the agency in alignment with its recent strategic plan.

If you as an employer receive a claim of discrimination from the EEOC reach out to your FrankAdvice HR Consultant right away.
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Pregnant Workers Fairness Act (PWFA)

The Pregnant Workers Fairness Act (PWFA) is a law that took effect this summer that requires covered employers to provide “reasonable accommodations” to a worker’s known limitations related to pregnancy, childbirth, or related medical conditions unless the accommodation will cause the employer an “undue hardship.”

The EEOC has said they will finalize their PWFA rules this month. Click the below link for updates and to see current resources and requirements.

https://www.eeoc.gov/wysk/what-you-should-know-about-pregnant-workers-fairness-act

U.S. Department of Labor (DOL)

Proposed Overtime Rule

The DOL published a proposed rule earlier this year and took public comments until November 7, 2023. See more about this in prior issues of FranklyHR. It looks like the DOL will publish their final rule in April 2024 and it would become effective 60 days afterward (depending on legal challenges). Stay tuned for additional information and best practices in the new year.

On a related note, final regulations for independent contractor status are still pending with the DOL.

Equal Employment Opportunity Commission (EEOC)

Updated Language Access Plan Released

The U.S. Equal Employment Opportunity Commission (EEOC) released an update to its federal agency language access plan this month, in accordance with Executive Order 13166, “Improving Access to Services for Persons with Limited English Proficiency.”

The EEOC’s plan provides information on availability of interpretation services in field offices for the public, access to more than 200 languages for callers to our 1-800-669-4000 number, and translation of key agency documents into several languages. It also notes recent updates to the agency’s Spanish language website and availability of critical information about the laws enforced by the EEOC in seven other languages.

National Labor Relations Board (NLRB)

Joint-Employer Rule

The NLRB has extended the effective date of its recent rule on determining the standard for joint-employer status to February 26, 2024, to facilitate resolution of legal challenges with respect to the rule. The new standard will only be applied to cases filed after the rule becomes effective.

You can read more about the rule in last month’s FranklyHR.

NLRB and OSHA Announce New MOU

On October 31, 2023 the NLRB and OSHA executed a Memorandum of Understanding (MOU) to strengthen the agencies’ partnership to promote safe and healthy workplaces through protecting worker voice.

Because many worker efforts to improve safety and health in their workplaces are protected under both the Occupational Health and Safety Act (OSH Act) and the National Labor Relations Act (NLRA), the NLRB and OSHA have historically engaged in cooperative efforts and have entered into formal Memoranda of Understandings to engage in interagency coordination since 1975.

This most recent agreement expands on the historic interagency coordination by enabling the NLRB and OSHA to closely collaborate by more broadly sharing information, conducting cross-training for staff at each agency, partnering on investigative efforts within each agency’s authority, and enforcing anti-retaliation provisions.

The agencies also released a resource on “Building Safe & Healthy Workplaces by Promoting Worker Voice” which provides tools and key references for employers and workers on working collaboratively to create and maintain safe workplaces, including resources on collective bargaining and compliance.

National Labor Relations Board (NLRB)

Joint-Employer Rule

On October 27th, 2023, the Board issued its Final Rule addressing the Standard for Determining Joint-Employer Status under the National Labor Relations Act.

Under the new standard, an entity may be considered a joint employer of a group of employees if each entity has an employment relationship with the employees and they share or codetermine one or more of the employees’ essential terms and conditions of employment, which are defined exclusively as: (1) wages, benefits, and other compensation; (2) hours of work and scheduling; (3) the assignment of duties to be performed; (4) the supervision of the performance of duties; (5) work rules and directions governing the manner, means, and methods of the performance of duties and the grounds for discipline; (6) the tenure of employment, including hiring and discharge; and (7) working conditions related to the safety and health of employees.

In adopting this new standard, the final rule rescinds the 2020 final rule that was promulgated by the prior Board. The Notice of Proposed Rulemaking was published by the Federal Register on September 6, 2022 and the comment period for initial comments was open until December 7, 2022. The Board received over 13,000 comments that it reviewed and considered in drafting the Final Rule. The effective date of the new rule is December 26, 2023, and the new standard will only be applied to cases filed after the effective date.

Court challenges are expected and a few hours after the Board’s announcement of the final rule, two Senators announced a Congressional Review Act resolution to rescind the rule. Stay tuned.

This month, the NLRB also released case data which shows an increasing demand for its services. In FY 2023 (October 1, 2022 – September 30, 2023), 22,448 cases were filed with the agency, an increase of 10% over FY 2022 and the highest number of cases filed since FY2016.

Equal Employment Opportunity Commission (EEOC)

Proposed Harassment Enforcement Guidance

The U.S. Equal Employment Opportunity Commission (EEOC) has issued proposed guidance titled Enforcement Guidance on Harassment in the Workplace. The EEOC first released a proposed guidance on workplace harassment in 2017 but it was not finalized. This new proposed guidance reflects changes to the law that have occurred since that time, though the EEOC is quick to note that any final guidance document will “not have the force and effect of law and are not meant to bind the public in any way”. Guidance is proposed on:

Pregnancy and childbirth
Sexual orientation and gender identity
“Virtual” harassment
Social media

The proposed guidance explains the legal standards and employer liability applicable to harassment claims under the federal employment discrimination laws enforced by the EEOC. These laws protect covered employees from harassment based on race, color, religion, sex (including sexual orientation, transgender status, and pregnancy), national origin, disability, age (40 and older) or genetic information.

Harassment remains a serious workplace problem. Between fiscal years 2016 and 2022, more than one-third of charges received by the EEOC included an allegation of harassment.

Those who would like to provide feedback on the proposed guidance don’t have much time as comments are due by November 1, 2023. You can submit a comment here.

The EEOC has also shared that according to preliminary data, they filed 143 new employment discrimination lawsuits in FY 2023, representing more than a 50% increase over FY 2022 suit filings. The EEOC provides information about past litigation in the Office of General Counsel Annual reports.

EEO-1 Reporting

Use our Flow Chart to find out if you’re required to file the EEO-1 Component report and if you are a client that needs to file, click on the file for me button that you see on the chart and complete and submit the form.

Clients are being communicated with but if you have questions, reach out to your FrankAdvice HR Consultant.

U.S. Department of Labor (DOL)

Proposed Overtime Rule

The U.S. Department of Labor (DOL) has published a proposed rule that would restore and extend overtime protections to 3.6 million salaried workers. You can read more about this in last month’s FranklyHR.

The DOL has invited the public to comment on this proposed rule until November 7, 2023. Comments can be filed through the Federal Register and will be reviewed. After this review, the DOL will publish a final rule, which would become effective 60 days afterward. The rule is likely to be challenged in court.

U.S. Department of Homeland Security (DHS)

USCIS New Form I-9

Employers must use the new version of the I-9 starting November 1, 2023. Read more about this in the Form I-9 article this month.

Occupational Safety and Health Administration (OSHA)

Heat Illness Prevention Resources

OSHA’s Work Safely in Heat Fact Sheet includes tips for both indoor and outdoor workers, and also features six actions to take when a worker experiences symptoms of a heat-related illness, along with what to do if a worker exhibits signs of a medical emergency.

The “Don’t Wait … HYDRATE” sticker is available in English and Spanish, can be given to workers, placed around a workplace or job site, and displayed in break areas.

Fact Sheet: Work Safely in Heat (osha.gov)

Sticker (English): DON’T WAIT… HYDRATE! (osha.gov)

Sticker (Spanish): No esperes… ¡HIDRÁTATE! (osha.gov)

Hurricane Resources

OSHA has resources that address the workplace-related issues facing employers in the wake of hurricane-related disasters.

Hurricane Preparedness and Response - Introduction | Occupational Safety and Health Administration (osha.gov)

Flood Preparedness and Response - Introduction | Occupational Safety and Health Administration (osha.gov)

Occupational Safety and Health Administration (osha.gov)

U.S. Department of Labor

Proposed Overtime Rule

The U.S. Department of Labor (DOL) on August 30, 2023, announced a notice of proposed rulemaking that would restore and extend overtime protections to 3.6 million salaried workers.

Specifically, the Department of Labor’s proposed rule would: 

Increase the FLSA regulations’ standard salary level from $684 per week ($35,568 per year) to $1,059 per week ($55,068 per year) 
Increase the total annual compensation requirement for highly compensated employees from $107,432 per year to $143,988 per year 
Restore overtime protections for U.S. territories, ensuring workers in those territories where the FLSA minimum wage applies have the same overtime protections as other U.S. workers 
Automatically update earnings thresholds every three years so they keep pace with changes in worker salaries, ensuring that employers could adapt more easily because they would know when salary updates would happen and how they would be calculated

The DOL will invite the public to comment on this proposed rule for 60 days once it is published in the Federal Register.

Anyone who submits a comment (including duplicate comments) should understand and expect that the comment, including any personal information provided, will become a matter of public record and will be posted without change to www.regulations.gov.

Stay tuned for additional information on this proposed rule.

Equal Employment Opportunity Commission (EEOC)

Strategic Plan for Fiscal Years 2022-2026

On August 22^nd, the U.S. Equal Employment Opportunity Commission (EEOC) announced it had approved its Strategic Plan for Fiscal Years 2022-2026 https://www.eeoc.gov/eeoc-strategic-plan-2022-2026. Implementation will begin immediately.

The Strategic Plan serves as a framework for achieving the EEOC’s mission to prevent and remedy unlawful employment discrimination and advance equal employment opportunity for all. The Plan also sets forth its vision of fair and inclusive workplaces with equal opportunity for all.

Highlights of the new Strategic Plan include:

Increased focus on systemic discrimination. The Plan emphasizes expanding the EEOC’s capacity to eliminate systemic barriers to equal opportunity in the workplace, including training staff to identify and investigate systemic cases and devoting additional resources to systemic enforcement.
Improved monitoring of conciliation agreements to ensure workplaces are free from discrimination after the EEOC makes a finding of discrimination.
Enhanced intake services to potential charging parties, respondents, and representatives. Under the Plan, the EEOC will focus on improving and expanding access to intake services, increasing the availability of intake interview appointments, and improving overall service to the public.
Leverage technology and innovative outreach strategies to expand the agency’s reach to diverse populations; vulnerable communities; and small, new, and disadvantaged or underserved employers.
Promote promising practices that employers can adopt to prevent discrimination in the workplace.

The Government Performance and Results Act (GPRA) Modernization Act requires executive departments, government corporations, and independent agencies to develop and post a strategic plan on their public websites every four fiscal years. These plans direct the agency’s work and lay the foundation for the development of more detailed annual plans, budgets, and related program performance information in the future.

U.S. Equal Employment Opportunity Commission (EEOC)

Updated Technical Assistance Document Regarding Visual Disabilities

On July 26, 2023, the U.S. Equal Employment Opportunity Commission (EEOC) released an updated technical assistance document, “Visual Disabilities in the Workplace and the Americans with Disabilities Act,” explaining how the Americans with Disabilities Act (ADA) applies to job applicants and employees with visual disabilities.

The document outlines when an employer may ask an applicant or employee questions about their vision, how an employer should treat voluntary disclosures about visual disabilities, and what types of reasonable accommodations those with visual disabilities may need in the workplace. The updated document highlights new technologies for reasonable accommodation, many of which are free or low-cost, and describes how using artificial intelligence (AI) and algorithms to make employment decisions can impact individuals with visual disabilities.

The document addresses how an employer should handle safety concerns about applicants and employees with visual disabilities and how an employer can ensure that no employee is harassed because of a visual disability.

Occupational Safety and Health Administration (OSHA)

Hurricane Guidance for Employers

The U.S. Occupational Safety and Health Administration has published the Hurricane eMatrix, a hazard exposure and risk assessment tool that provides employers with suggestions and guidance for hurricane season, including the response to a hurricane that has made landfall. The matrix provides tips on personal protective equipment for both employers and employees, and recommendations related to heat stress that may foreshadow the heat illness and injury prevention standard that OSHA has long promised. Employers that respond to hurricane-impacted areas should become familiar with OSHA’s expectations.

Expanded Electronic-Recordkeeping Requirements

More employers will be required to electronically submit more detailed information about their workplace injuries and illnesses to the federal government every year.

Under a final rule from the Occupational Safety and Health Administration (OSHA) that will take effect January 1, 2024, establishments with 100 or more employees in designated high-risk industries - including certain sectors of the manufacturing, transportation and agriculture industries - will be required to submit OSHA 300 Log and the OSHA Form 301 incident reports every year. Currently, employers covered by electronic submission requirements - establishments with 250 or more employees and certain smaller establishments in high-hazard industries - are required to submit only the 300A Annual Summary of Work-Related Injuries and Illnesses, not the more detailed information on the 300 Logs and Form 301.

OSHA also is expanding the list of high-risk industries in which establishments with 20 or more employees must electronically submit information from their OSHA Form 300A annual summaries.

OSHA estimates that some 52,000 establishments - less than 1% of total establishments in the workforce - will be affected by its new electronic reporting requirements. However, it said the new requirements will cover nearly 800,000 injuries and illness cases each year (or almost 30% of all recordable injuries) and impact workplaces that contain 22 million workers.

Stay tuned for additional information from FrankCrum closer to the effective date.

Personal Protection Equipment (PPE) Standard for the Construction Industry

Federal workplace safety officials just announced they are seeking to revise the national Personal Protective Equipment (PPE) standard for the construction industry to explicitly state that PPE must fit each affected employee properly.

Comments and hearing requests on the proposed rule must be submitted by September 18, 2024. If you are interested in submitting comments be sure to reference Docket No. OSHA-2019-0003.

The rulemaking process is expected to continue for several months after the comment period is closed, so we can expect to see the rule finalized – with any changes adopted – by the end of this year or in early 2024.

Heat Hazards

The OSHA heat standard is not yet in sight, but OSHA has issued a heat hazard alert to remind employers of their obligation to protect workers against heat illness or injury.

Federal Court Ruling

Tipped Employee 80/20 Rule

This month, a federal court in Texas rejected a challenge to the United States Department of Labor’s 80/20 Rule, which applies to employers that take a tip credit toward their minimum wage obligation under the Fair Labor Standards Act (FLSA). The 80/20 rule remains in effect. Click here for a refresher on these federal requirements regarding tipped employees.

National Labor Relations Board (NLRB)

Joint Employers Rule

The National Labor Relations Board (NLRB) has confirmed plans to publish a final rule in August updating the standard for determining when two employers may be considered joint employers under the National Labor Relations Act.

The board’s proposed rule would revive the standard in its 2015 Browning-Ferris Industries decision. The public comment period on the proposed rule closed in December 2022.

Under the proposed rule, two or more employers would be considered joint employers if they “share or codetermine those matters governing employees’ essential terms and conditions of employment,” such as wages, benefits, and other compensation, work and scheduling, hiring and discharge, corrective action, workplace health and safety, supervision, assignment, and work rules. The Board proposes to consider both direct evidence of control and evidence of reserved and or/indirect control over these essential terms and conditions of employment when analyzing joint-employer status.

Stay tuned for additional updates in the coming weeks.

Be sure to check out our articles with other federal updates in this issue of FranklyHR.

Occupational Safety and Health Administration (OSHA)

Small Business Safety and Health Handbook

The U.S. Occupational Safety and Health Administration and the U.S. National Institute for Occupational Safety and Health have added self-inspection checklists for ergonomics, young workers, workplace violence, and infection control to the OSHA and NIOSH Small Business Safety and Health Handbook.

The revised handbook features checklists on a wide variety of topics, including electrical safety, emergency planning, fire safety, hazard communication, heat illness prevention, noise exposure, and fall protection. It also details how to implement a safety and health program and the value of having a program in place.

Click below to review the safety and health handbook:

https://www.osha.gov/sites/default/files/publications/small-business.pdf

For assistance with your safety needs, send an email to SafetyandRisk@FrankCrum.com.

Federal Contractors

Self-Identification Form

The Office of Federal Contractor Compliance Programs (OFCCP) has released a new Disability Self-Identification Form. Implementation of the new form is effective 07/25/2023.

The updated form contains several revisions that seek to update the preferred language for disabilities and includes additional examples of disabilities. These changes include:

Listing additional disabilities. The revised form includes, for example, alcohol or other substance use disorder (not currently using drugs illegally); mobility impairment benefiting from the use of a wheelchair, scooter, walker, leg brace(s), and/or other supports; neurodivergence, for example, attention-deficit/hyperactivity disorder (ADHD), autism spectrum disorder, dyslexia, dyspraxia, other learning disabilities; partial or complete paralysis (any cause); pulmonary or respiratory conditions, such as tuberculosis, asthma, emphysema; short stature (dwarfism); and traumatic brain injury.

More descriptive and inclusive examples of disabilities. The previous version of the form lists the following as disabilities: cancer, deaf or hard of hearing, epilepsy, and intellectual disability. The revised form is more inclusive by listing the following as disabilities: cancer (past or present); deaf or serious difficulty hearing; epilepsy or other seizure disorder; and intellectual or developmental disability.

Simplifying and broadening the response options to:

Yes, I have a disability or have had one in the past
No, I do not have a disability and have not had one in the past
I do not want to answer

Of note, the revised form explains that “completing this form is voluntary.” The previous version of the form states, “Identifying yourself as an individual with a disability is voluntary.”

Covered federal contractors and subcontractors have until July 25, 2023, to implement and use the new form, which expires on April 30, 2026. Contractors must continue to use the OFCCP’s prior form until they have implemented the revised form.

https://www.dol.gov/agencies/ofccp/self-id-forms?utm_medium=email&utm_source=govdelivery

Federal Acquisition Regulation (FAR) Clause

Federal contractors now have an addition to their FAR clause that includes a ban from using or installing the TikTok app on covered IT devices. This must be completed by 07/03/2023.

https://www.federalregister.gov/documents/2023/06/02/2023-11756/federal-acquisition-regulation-prohibition-on-a-bytedance-covered-application

National Labor Relations Board (NLRB)

Narrowed Test for Independent Contractor Status

In a decision issued this month, the National Labor Relations Board (NLRB) amended its independent contractor standard by rejecting its own 2019 decision in Super Shuttle DFW, Inc., which emphasized the importance of “entrepreneurial opportunity” among the various factors the NLRB considered in determining if a worker was an independent contractor or an employee. In doing so, the Board reverted to an independent contractor standard that downplays this factor—a standard that has been specifically rejected two times by the D.C. Circuit Court of Appeals. The reinstated standard will give weight only to "actual, not merely theoretical, entrepreneurial opportunity" and ask whether "the evidence tends to show that a putative independent contractor is, in fact, rendering services as part of an independent business."

The decision comes as the US Department of Labor is expected to issue a final rule on determining independent contractor status under the Fair Labor Standards Act (FLSA) no later than October.

U.S. Department of Labor

Intermittent FMLA Leave Calculations for Holiday Weeks

The Department of Labor (DOL) has attempted to clarify how to calculate Family Medical Leave Act (FMLA) leave during weeks with holidays in a recently issued opinion letter.

The FMLA allows qualifying employees to take up to 12 workweeks of unpaid, protected leave in a 12-month period. Usually, leave is accounted for in full weeks. But employees also may take leave on an intermittent basis or work part-time and use FMLA leave for the remainder of the normal work time.

When an employee takes FMLA leave for less than one full workweek, the amount of FMLA leave used is determined as a proportion of the employee's actual workweek, and requires employers to convert weeks to hours to properly calculate and track FMLA usage.

The DOL issued the opinion letter in response to an employer asking how to correctly account for FMLA leave when an employee works during part of a week with a holiday week and only uses FMLA leave intermittently.

The DOL explained that when a holiday falls during a week that an employee is taking a full workweek of FMLA leave, the entire week is counted as FMLA leave. For example, if an employee normally works Monday through Friday and uses FMLA leave the entire week of Memorial Day, that will count as one full week of leave and not 4/5 (80%) of a week.

However, when a holiday falls during a week when an employee takes less than a full workweek of FMLA leave, the holiday is not counted as FMLA leave (unless the employee was scheduled and expected to work on the holiday and used FMLA leave for that day). In such circumstances, the DOL wrote, the holiday generally does not count against the employee's leave entitlement. Instead, the fraction of the workweek of leave used would be calculated as the amount of FMLA leave taken (which does not include the holiday) divided by the total workweek (which does include the holiday).

"Subtracting the holiday from the workweek when calculating the amount of FMLA leave used in a partial week of leave would impermissibly reduce the employee's leave entitlement because the employee would have to use a larger amount of FMLA leave than needed," the DOL stated. "Calculating the amount of leave used in this way would interfere with the employee's FMLA rights."

Department of Homeland Security (DHS)

DHS Form I-9

Last year, the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) extended the flexibility in complying with requirements related to Form I-9, Employment Eligibility Verification, due to COVID-19. Effective July 31, 2023, these flexibilities will no longer be granted.

Click here for more information on the extension and current requirements related to Form I-9 flexibility. Check out last month’s FranklyHR for tips to begin if you need to update any I-9s that were verified virtually due to the pandemic.

Equal Employment Opportunity Commission (EEOC)

Pregnant Workers Fairness Act

The Pregnant Workers Fairness Act (PWFA) has taken effect, expanding current protections to ensure that workers experiencing pregnancy, childbirth, or related medical conditions have the right to reasonable accommodations in the workplace.

Click the below link for the updated Know Your Rights compliance workplace poster:
https://www.eeoc.gov/sites/default/files/2023-06/22-088_EEOC_KnowYourRights6.12ScreenRdr.pdf

Click the below link for our recent blog on the PWFA:
https://blog.frankcrum.com/bun-in-the-office-the-pwfa-and-employer-responsibilities

Equal Employment Opportunity Commission (EEOC)

AI Technical Assistance Document

The Equal Employment Opportunity Commission (EEOC) released a technical assistance document, “Assessing Adverse Impact in Software, Algorithms, and Artificial Intelligence Used in Employment Selection Procedures Under Title VII of the Civil Rights Act of 1964,” which is focused on preventing discrimination against job seekers and workers. The document explains the application of key established aspects of Title VII of the Civil Rights Act (Title VII) to an employer’s use of automated systems, including those that incorporate artificial intelligence (AI).

The EEOC is the primary federal agency responsible for enforcing Title VII, which prohibits discrimination based on race, color, national origin, religion, or sex (including pregnancy, sexual orientation, and gender identity). Employers increasingly use automated systems, including those with AI, and without proper safeguards, their use may run the risk of violating existing civil rights laws.

COVID-19 Technical Assistance Document

The U.S. Equal Employment Opportunity Commission (EEOC) issued a number of updates to its COVID-19 technical assistance, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” including adding a new question and answer about the end of the federal declaration of the COVID-19 public health emergency.

“This installment is the capstone to our comprehensive resource of questions and answers on COVID-19 and the anti-discrimination laws enforced by the EEOC,” said EEOC Chair Charlotte A. Burrows. “The end of the public health emergency is an important milestone, and this will help employees and employers understand how the Americans with Disabilities Act, the Rehabilitation Act, and other federal laws continue to protect our nation’s workforce from employment discrimination. The EEOC remains committed to vigorous enforcement of these laws.”

Key updates include:

The end of the COVID-19 public health emergency does not mean employers can automatically terminate reasonable accommodations that were provided due to pandemic-related circumstances. However, employers may evaluate accommodations granted during the public health emergency and, in consultation with the employee, assess whether there continues to be a need for reasonable accommodation based on individualized circumstances.
For employees with Long COVID, the updates include common examples of possible reasonable accommodations, including a quiet workspace, use of noise canceling devices, and uninterrupted work time to address brain fog; alternative lighting and reducing glare to address headaches; rest breaks to address joint pain or shortness of breath; a flexible schedule or telework to address fatigue; and removal of “marginal functions” that involve physical exertion to address shortness of breath. Many of these are low or no-cost accommodations.
For employers, the updates include tips about remaining alert for COVID-related harassment of applicants or employees with a disability-related need to continue wearing a face mask or take other COVID-19 precautions at work.

The EEOC updated the COVID-19 technical assistance approximately 20 times throughout the pandemic to respond to the evolving situation.

U.S. Department of Labor (DOL)

Updated Posters

The U.S. Department of Labor (DOL) has updated its mandatory Employee Rights Under the Fair Labor Standards Act Poster to reflect recent amendments that expanded the law's breastfeeding and lactation accommodation requirements.

Previous versions "no longer fulfill the posting requirement and should be replaced," according to the DOL.

As soon as possible, employers covered by the FLSA (i.e., virtually all employers) should download and post the new version in a conspicuous place in all of their establishments where employees can easily read it.

Employers with 100%-remote workforces may forego physical posting and simply email the poster to employees or post it on their company websites as long as certain conditions are met. Employers in New York must make the poster available electronically, either on their website or via email, regardless of whether or not they have remote workforces.

The DOL also has updated its Employee Rights Under the Family and Medical Leave Act (FMLA) Poster. Although the DOL did not say that previous versions of the FMLA poster no longer fulfill the law's posting requirement as it did with the FLSA poster, employers are advised to replace their FMLA posters as well.

Department of Homeland Security (DHS)

Form I-9 Requirement Flexibility

Last year, the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) extended the flexibility in complying with requirements related to Form I-9, Employment Eligibility Verification, due to COVID-19. Effective July 31, 2023, these flexibilities will no longer be granted.

Click here for more information on the extension and current requirements related to Form I-9 flexibility. Employers are encouraged to begin, at their discretion, the in-person verification of identity and employment eligibility documentation for employees who were hired on or after March 20, 2020, and who presented such documents for remote inspection in reliance on the flexibilities first announced in March 2020.

To get started:

Prepare a list of all employees who were verified virtually;
Determine who will be conducting the in-person verifications and how the company will be reaching out to the affected employees;
The virtually completed I-9s should have been annotated in the Additional Information field with “COVID-19” as the reason for the delayed in-person inspection. This must be updated by annotating “documents physically examined” with the accurate date and the name of the person who conducted the review in Section 2 of the I-9 or in Section 3 (for re-verification), as appropriate.

National Labor Relations Board (NLRB)

Employee Misconduct During Protected Activities

Employers that impose corrective action on an employee for misconduct committed while the employee is participating in protected concerted activities under the National Labor Relations Act (NLRA) may commit an unfair labor practice, the National Labor Relations Board (NLRB) has ruled.

In announcing its decision in Lion Elastomer LLC II, the Board explained that it is returning to long-established "setting-specific" standards that focus on the severity of the employee's misconduct (such as the use of profanity and abusive language) and the context in which it took place. These standards are based on the setting of the employee's misconduct, including:

On the picket line;
Towards managers;
Between employees; and
On social media.

The decision reverses the prior Board's 2020 decision in General Motors LLC, which made it easier for employers to sanction misconduct that takes place as part of protected activity by applying the same discipline standards as they normally would, provided the corrective action was not motivated by anti-union animus.

Occupational Safety and Health Administration (OSHA)

Increased Citations

OSHA is increasing citations in the wake of the increase of workplace violence under the OSHA’s “General Duty Clause." The general duty clause requires that an employer keep its workplace free from any recognized hazards that cause or are likely to cause death or serious physical harm to employees.

To cite an employer for a general duty clause violation, the Secretary of the Department of Labor must demonstrate that:

The employer failed to keep its workplace free from a hazard to which employees were exposed.
The hazard is recognized.
The hazard was likely to cause death or serious physical harm.
There was a feasible and economically viable way to correct the hazard.

Check out your safety resources on MyFrankCrum and reach out to SafetyandRisk@FrankCrum.com regarding safe workplaces.

Department of Homeland Security (DHS)

Form I-9 Requirement Flexibility

Last year, the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) extended the flexibility in complying with requirements related to Form I-9, Employment Eligibility Verification, due to COVID-19 to July 31, 2023. As a reminder, this date is coming up.

Form I-9 is used to verify the identity and employment authorization of individuals hired for employment in the United States. All U.S. employers must properly complete Form I-9 for each individual they hire for employment in the United States. For guidance on completing Form I-9, you can review the new training videos in the MyFrankCrum Knowledge Base (click the lightbulb at the top of the home page) on MyFrankCrum.

Equal Employment Opportunity Commission (EEOC)

Notice-Posting Violation Fine

Employers can be fined up to $659 for failing to post required nondiscrimination notices, the U.S. Equal Employment Opportunity Commission said last week. The change represents an increase from the previous $612 maximum. The fine can be assessed for each offense.

Employers must have notices where workers can see them – often at a physical location, online, or both. The poster is available to download in several formats and languages here.

Other postings are available on MyFrankCrum My Resources, Posters link.

Federal Court Ruling

NY Federal Court Ruling on Arbitration

A NY federal court ruled that the recent federal law preventing employers from requiring arbitration in sexual harassment claims will also block arbitration with all additional claims within the same suit. There will be most likely a rise in sexual harassment complaints within a claim to avoid arbitration of other employment claims. This issue is expected to continue to be litigated throughout the country.

PUMP for Nursing Mothers Act

Expanded Relief for Nursing Mothers

The Fair Labor Standards Act (FLSA) requires employers to provide reasonable break time for an employee to express breast milk for their nursing child for one year after the child's birth each time such employee has need to express the milk. Employees are entitled to a place to pump at work, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public.

The Break Time for Nursing Mothers Law, passed in 2010, also requires employers to provide reasonable break time and a private, non-bathroom space for breastfeeding employees to pump during the work day.

The PUMP for Nursing Mothers Act (S. 1658/H.R. 3110), makes several important changes:

Provides the right to break time and space to pump breast milk at work to millions more workers, including teachers and nurses
Makes it possible for workers to file a lawsuit to seek monetary remedies in the event that their employer fails to comply
Clarifies that pumping time must be paid if an employee is not completely relieved from duty

The legislation went into effect when it was signed, however, the enforcement provision is effective April 28, 2023. In addition, there is a 3-year delay in the implementation of the protections for railway workers. The law does not apply to flight attendants and pilots.

An employer that violates the PUMP for Nursing Mothers Act may be required to provide relief in the form of employment, reinstatement, promotion, payment of lost wages, and liquidated damages.

Before an employee may bring an action against an employer for a violation of the PUMP Act, the employee must notify the employer of the deficiency and give the employer 10 days to correct the situation. This requirement does not apply if the employer has discharged the employee in retaliation for exercising rights under the PUMP Act or indicated that it has no intention of providing a location for the employee to express breast milk.

Office of Federal Contractor Compliance Programs (OFCCP)

Certification Portal Opens

OFCCP announced that the Contractor Portal for federal contractors and subcontractors to certify compliance with their affirmative action plan (AAP) obligations will open on March 31, 2023, with contractors and subcontractors having until June 29, 2023, to submit the required certification.

Religious Exemption Rule

Effective March 30, 2023 OFCCP will rescind the current regulations that expanded the powers of federal contractors to make employment decisions on the basis of religious faith. You can learn more here.

OFCCP is charged with protecting America's workers by ensuring that those who do business with the federal government fulfill the promise of equal opportunity. They enforce three equal employment opportunity authorities: Executive Order 11246, Section 503 of the Rehabilitation Act of 1973, and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974. For more information, please visit OFCCP’s website.

National Labor Relations Board (NLRB)

“Know Your Rights” Card Series

This week, National Labor Relations Board General Counsel Jennifer Abruzzo launched a “Know Your Rights” card series to educate workers on their rights under the National Labor Relations Act. The series is commencing with two new “Know Your Rights” tri-fold cards, which the Agency is making available in English and Spanish. One card provides information on protections for immigrant workers, while the other card talks about Weingarten rights. The cards are designed to be printed, folded, and used by workers in the workplace. Additional cards in the series will be rolled out this year.

The NLRB also issued updated guidance on severance agreements. Check out the article on this topic here.

U.S. Supreme Court

Decision on High-Earning Professionals

The U.S. Supreme Court ruled last week that high-earning professionals ($107,432 annual) can only be overtime exempt if they are paid on a salary basis. The Court ruled that workers who are paid on a non-salary basis (day rate or shift rate, as examples), even if they earn a relatively high amount, are entitled to overtime pay if they work more than 40 hours per week.

https://www.supremecourt.gov/opinions/22pdf/21-984_j426.pdf

Federal Appeals Court

Ninth Circuit Finds USERRA Requires Paid Military Leave

The Ninth Circuit has ruled that employers who pay employees for some types of short-term leave, such as sick leave or jury duty, must provide equal benefits to employees who take short-term leave for military service under USERRA. The Ninth Circuit joins the Seventh Circuit (IL, IN, WI) and the Third Circuit (PA, NJ, DE, Virgin Islands) with this finding.

National Labor Relations Board (NLRB)

Severance Agreement Provisions

The NLRB has ruled that severance agreements can be deemed unlawful if they broadly restrict a worker’s right to speak about the agreement or talk negatively about their former employer. The decision confirmed that offering employees a severance agreement that requires them to broadly give up their rights under Section 7 of the Act violates Section 8(a)(1) of the Act. This decision may be followed in the coming months with an advisory memo with examples from the NLRB.

Severance agreements should be drafted with legal counsel who can stay away from overly restrictive language and provide written legal safeguards to severance agreements.

You can read more about the ruling here and consult with your legal counsel on your severance agreements.

Be sure to see other relevant federal information in our articles in this month’s FranklyHR.

Federal Trade Commission

Plan to Ban Non-compete Agreements

On January 5th, the Federal Trade Commission (FTC) unveiled a proposed rule that, if finalized, would make it illegal for an employer to:

Enter into or attempt to enter into a non-compete agreement with a worker;
Maintain a non-compete agreement with a worker; or
Represent to a worker, under certain circumstances, that the worker is subject to a non-compete agreement.

The rule also would require employers to rescind existing non-compete agreements and actively notify workers that they are no longer in effect.

The FTC said its definition of non-compete agreements would generally not include other types of restrictive covenants such as non-disclosure agreements or non-solicitation agreements because those generally do not prevent a worker from finding work elsewhere once they leave a job. However, non-disclosure agreements and non-solicitation agreements could be prohibited if they are "so unusually broad in scope" that they effectively function as non-compete agreements.

To justify its proposal, the FTC cited research that it said shows non-compete agreements reduce competition in labor markets, resulting in reduced wages for all workers, including those not bound by non-compete agreements. The agency estimated that banning non-compete agreements would increase workers' total earnings by $250 to $296 billion per year.

Several states already restrict the use of non-compete agreements.

After the FTC publishes a Notice of Proposed Rulemaking (NPRM) in the Federal Register, employers will have 60 days to comment. Comments may be submitted online under Regulatory Information Number (RIN) 3084-AB74.

After the comment period ends, the FTC will respond to comments and possibly make revisions before publishing a final rule. The final rule will go into effect 180 days after the date of publication of the final rule.

U.S. Department of Labor (DOL) and Internal Revenue Service (IRS)

Two Agencies Working More Closely Together

On December 15, 2022 the above federal agencies signed and published a Memorandum of Understanding for Employment Tax Referrals (the "MOU"). Essentially, agencies wish to “share information between the SB/SE [Small Business/Self Employed Specialty Employment Tax unit] and WHD [DOL's Wage & Hour Division] to assist in the identification of emerging and ongoing employment tax compliance issues related to misclassification”. This could mean, for example, that if the USDOL finds that a employer classified a worker incorrectly as an independent contractor, it could refer the matter to the IRS to collect back taxes, penalties and interest.

U.S. Department of Labor (DOL)

New Overtime and Independent Contractor Rules Slated for May

The DOL is planning for a busy springtime.

Its latest regulatory agenda lists May 2023 as the target date for two key Fair Labor Standards Act (FLSA) developments: a proposed overtime rule and a final independent contractor rule.

It remains to be seen whether the DOL will follow its own timeline, however. The agency already has missed its target for the overtime rule twice. The overtime rule was first slated for April 2022 and then for October 2022, so another delay would not be unusual. Conversely, there is nothing stopping the DOL from issuing new rules before its target dates, either.

The Overtime Rule

The DOL's new overtime rule is expected to raise the minimum salary for most overtime-exempt employees and possibly update the duties tests as well.

The agency took meetings and held online listening sessions with stakeholders last year.

After a new overtime rule is proposed, the public will have at least 30 days to comment on it before the DOL can issue a final rule. Then the final rule would need to take effect no sooner than 60 days after it is published in the Federal Register, assuming it is classified as a major rule.

The Independent Contractor Rule
Last October, the DOL proposed a new independent contractor rule that would establish a version of the "economic realities test" as the standard for determining whether a worker is an employee or an independent contractor under the FLSA.

More than 54,000 people submitted comments on the rule. The DOL promised to consider this feedback and may make changes to its draft rule before publishing a final version.

As with the overtime rule, the final independent contractor rule would take effect no sooner than 60 days after it is published in the Federal Register.

Posting the OSHA 300A Form

As noted in a previous FrankCrum News Alert, February 1 is the deadline for employers to post the OSHA 300A form, a summary of 2022 illnesses and injuries.

Clients can log in to MyFrankCrum to obtain their form under the OSHA section of the Documents tab beginning on February 1, 2023.

Note: You must have Employer access configured in MyFrankCrum to obtain OSHA forms. If you do not have access, you can get set up by contacting our Client Experience team at 800-277-1620 ext. 2.

U.S. Equal Employment Opportunity Commission (EEOC)

Updated Resource Document for Hearing Disabilities

The EEOC has released an updated resource document, “Hearing Disabilities in the Workplace and the Americans with Disabilities Act,” explaining 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 document outlines how certain pre- and post-job offer disability-related questions can violate the ADA, describes easy-to-access technologies that can make providing a reasonable accommodation for a hearing disability free or low-cost, addresses employer concerns about safety, and shares realistic scenarios of potential discrimination. In addition to adding information about discrimination against job applicants, the updated document provides new or updated examples that reflect available technologies.

Federal Contractors

Minimum Wage Increase

Effective January 1, 2023, the minimum wage for federal contractors increases from $15.00 per hour to $16.20 per hour under an annual inflation adjustment required by executive order. The adjustment is based on the 7.87% increase in the Consumer Price Index for Urban Wage Earners and Clerical Workers from July 2021 through June 2022, rounded to the nearest multiple of $0.05.

The minimum direct cash wage for covered workers who are tipped employees under the Fair Labor Standards Act (FLSA) increases from $10.50 per hour to $13.75 (85% of the inflation-adjusted minimum wage).

White House Releases Whitepaper on AI

The White House recently released its “Blueprint for an AI Bill of Rights,” a whitepaper intended to support the development of policies to protect civil rights in the deployment of automated systems. It is merely encouraging employers to integrate these 5 principles into their policies to protect employees, a stepping stone before this is regulated.

Blueprint for an AI Bill of Rights: https://www.whitehouse.gov/ostp/ai-bill-of-rights/

President Biden Signs Speak Out Act

As first noted in last month’s FranklyHR, the Speak Out Act - a bill that makes nondisclosure agreements (NDAs) and non-disparagement contract clauses relating to disputes involving sexual assault and sexual harassment unenforceable by the courts if they were signed before a dispute arose - passed both chambers of Congress and the president signed it on December 7, 2022.

President Biden Expected To Sign Speak Out Act

The Speak Out Act - a bill that would make nondisclosure agreements (NDAs) and non-disparagement contract clauses relating to disputes involving sexual assault and sexual harassment unenforceable by the courts if they were signed before a dispute arose - has passed both chambers of Congress and the president is expected to sign it.

Laws similar to the Speak Out Act have already been enacted in several states, including California, Maine, New Jersey, New York, and Washington.

The Speak Out Act also is a companion to the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, a federal law enacted earlier this year that eliminates the use of mandatory arbitration clauses by employers in cases of sexual assault and sexual harassment.

U.S. Department of Homeland Security (DHS)

Form I-9 Extended And Flexibility Continues

The Department of Homeland Security (DHS) has announced that employers should continue to use the current Form I-9 after its expiration date of October 31, 2022, until further notice. DHS will publish a Federal Register notice to announce the new version of the Form I-9 once it becomes available.

The Department of Homeland Security also announced an extension of the Form I-9 flexibilities first announced in March 2020. DHS has extended the flexibilities again until July 31, 2023. We may see a possible permanent remote virtual I-9 verification process in the future. You can learn more here about the extension and the current requirements.

Green Card Extensions

The validity of Permanent Resident Cards (aka Green Cards) is being extended to 24 months for lawful permanent residents who file Form I-90, Application to Replace Permanent Resident Card. Individuals newly filing Form I-90 will receive a Form I-797 receipt notice with the 24-month automatic extension. Individuals who have a pending application will receive an amended receipt notice with the 24-month automatic extension before the initial 12-month extension period expires.

Click here to see helpful information for employers regarding the employment eligibility verification process (I-9 resources, etc.).

Equal Employment Opportunity Commission (EEOC)

Know Your Rights Poster and Small Business Tip Sheets

The U.S. Equal Employment Opportunity Commission (EEOC) released the ‘Know Your Rights’ poster, which updates and replaces the previous “EEO is the Law” poster. The EEOC’s web page for the poster provides information about where to post it. The poster also includes a QR code for applicants or employees to link directly to instructions for how to file a charge of workplace discrimination with the EEOC.

The EEOC also provides Small Business Tip Sheets for employers. Click below to view them:

https://www.eeoc.gov/employers/small-business/small-business-tip-sheets

If you require other federal and/or state posters, visit MyFrankCrum to print them or follow the link to GovDocs, which offers “all-in-one” laminated posters at a discounted price. GovDocs offers a variety of compliance posters and annual subscriptions to ensure you are always up to date with your requirements.

Simply visit MyFrankCrum.com
Select “My Resources”
Under Categories, select “Posters Link”
For additional information on accessing required postings through MyFrankCrum, download detailed instructions here.

U.S. Department of Labor (DOL)

Independent Contractor Test

The U.S. Department of Labor (DOL) announced that it plans to apply a version of the "economic realities test" as its standard for determining whether a worker is an employee or an independent contractor under the Fair Labor Standards Act (FLSA).

Under its proposed regulation, the following six factors would be used to "guide an assessment of the economic realities of the working relationship and the question of economic dependence":

Opportunity for profit or loss depending on managerial skill;
Investments by the worker and the employer;
Degree of permanence of the work relationship;
Nature and degree of control;
Extent to which the work performed is an integral part of the employer's business; and
Skill and initiative.

In addition, the DOL said it would consider any other factors that in some way indicate whether the worker is in business for themself, as opposed to being economically dependent on the employer for work.

Employers may comment on the proposed regulation until November 28, 2022. After the comment period ends, the DOL will respond to comments and possibly make revisions before publishing a final rule. This final rule will include a formal effective date.

The DOL's proposed rule pertains to only the FLSA. There are different tests for independent contractor status under several other federal statutes, including the Employee Retirement Income Security Act (ERISA), the National Labor Relations Act (NLRA), and the Internal Revenue Code. Moreover, each state has its own set of laws governing independent contractor classification. The degree of direction and control are common factors in determining independent contractor vs. employee status.

National Labor Relations Board (NLRB)

Joint Employers

The National Labor Relations Board has the public comment period open for its proposed joint employer standard rule.

As shared in the September issue of FranklyHR, under the proposed rule, two or more employers would be considered joint employers if they “share or codetermine those matters governing employees’ essential terms and conditions of employment."

Click here to learn more and to submit a comment.

Social Security Administration (SSA)

2023 Updates

The Social Security Administration (SSA) announced that the 2023 social security wage base will be $160,200, which is an increase of $13,200 from $147,000 in 2022. The maximum social security tax employees and employers will each pay in 2023 is $9,932.40, an increase of $818.40 from $9,114.00 in 2022. Click here for the SSA Fact Sheet.

National Labor Relations Board (NLRB)

Joint Employers

The National Labor Relations Board (NLRB) released a Notice of Proposed Rulemaking (NPRM) addressing the standard for determining joint-employer status under the National Labor Relations Act (NLRA). The NPRM proposes to rescind and replace the joint-employer rule that took effect on April 27, 2020.

Under the proposed rule, two or more employers would be considered joint employers if they “share or codetermine those matters governing employees’ essential terms and conditions of employment,” such as wages, benefits and other compensation, work and scheduling, hiring and discharge, corrective action, workplace health and safety, supervision, assignment, and work rules. The Board proposes to consider both direct evidence of control and evidence of reserved and/or indirect control over these essential terms and conditions of employment when analyzing joint-employer status.

The NLRB will take comments about the proposed rule through November 7, 2022.

Click here to learn more and to submit a comment.

You can also listen to our webinar on September 28, 2022, to hear more about the NLRA and NLRB and the current workforce landscape. Click here to register.

U.S. Department of Labor (DOL)

Federal Contractor OFCCP Update

OFCCP has announced it is extending the deadline for contractors to respond to the Agency’s August 19, 2022 Notice of Request Under the Freedom of Information Act for Federal Contractors’ Type 2 Consolidated EEO-1 Report Data. The new deadline by which affected contractors need to submit objections is October 19, 2022, to “ensure that Covered Contractors have time to ascertain whether they are covered and submit objections.”

The OFCCP has created an OFCCP Submitter Notice Response Portal for submissions and objections. The website also has FAQs.

Centers for Disease Control and Prevention (CDC)

COVID-19 Guidance Loosened

As shared in a previous FrankCrum News Alert, the CDC announced revised guidance to reflect the fact that high levels of vaccine- and infection-induced immunity and the availability of medical and nonpharmaceutical interventions have substantially reduced the risk for medically significant illness, hospitalization, and death from COVID-19.

Below are highlights:

The six-foot social distancing rule is no longer emphasized
Routinely screening apparently healthy employees for COVID-19 is no longer necessary
Quarantine of exposed persons is no longer recommended but it is recommended they wear a mask for 10 days around others when indoors in public
Symptomatic or infected persons are still recommended to isolate for at least 5 days and, as before, should continue to wear a mask or respirator around others through day 10
Guidelines on vaccines and masking have not changed

You can visit the CDC website here to learn more about COVID-19.

U.S. Department of Labor (DOL)

Federal Contractor OFCCP Updates

The DOL Office of Federal Contract Compliance Programs (OFCCP) issued its first Directive to address the requirement that federal government contractors and subcontractors perform pay equity audits. As part of their affirmative action obligations, supply and service contractors are required to perform an in-depth analysis of their total employment processes, including their compensation systems, to determine whether and where impediments to equal employment opportunity exist.

This Directive explains how OFCCP reviews contractors’ compliance with their obligation to conduct a compensation analysis under 41 CFR 60-2.17(b)(3). This Directive also clarifies OFCCP’s authority to access and review documentation of contractors’ compensation analyses conducted pursuant to 41 CFR 60-2.17(b)(3). Finally, this Directive reaffirms that OFCCP will not require the production of privileged attorney-client communications or attorney work product.

Click here to learn more and to access related OFCCP guides.

On August 19th the OFCCP announced that it plans to release Type 2 (which are consolidated for all locations) reports of all federal contractors for the past five years in response to a Freedom of Information Act request. Contractors have 30 days to object directly to the OFCCP regarding the release of their Type 2 reports. The OFCCP says that it will release the Type 2 reports of all contractors who do not object. Contractors have until September 19th to submit an objection.

Finally, last week the OFCCP announced the opening of the Notification of Construction Contract Award Portal, an online platform intended to “make it easier for contracting officers and contractors to submit information about construction contract awards, which will provide more timely and complete information on federal contracts.” The portal includes frequently asked questions (FAQs), how-to videos, and a user guide.

U.S. Department of Homeland Security (DHS)

Form I-9 Input Requested

DHS is looking into creating alternative means of verifying Forms I-9 according to a proposed rule issued by ICE on August 18. One of these means could be the permanent ability to review Form I-9 documents remotely.

The vast majority of commentators to the October 2021 request for feedback on the Form I-9 verification process supported allowing businesses to remotely examine workers' I-9 forms. Current remote flexibility is allowed through the end of October 2022.

The agency is now requesting input on several questions, such as ways to reduce fraud, protect privacy, avoid discrimination in the I-9 process, as well as various requirements related to remote examination. Also under consideration is whether or not only employers enrolled in E-Verify may use alternative procedures.

Employers have 60 days to comment on the proposed rule. Click here to learn more and submit a comment.

Americans with Disabilities Act (ADA)

Fourth Circuit Rules the ADA Protects Gender Dysphoria

The Fourth Circuit is the first federal appellate court to find that the ADA protects individuals with gender dysphoria (clinically significant distress or impairment based on an incongruence between their gender identity and assigned sex). With this decision, employees experiencing gender dysphoria are entitled to reasonable accommodation, which may include requests such as for restroom usage and leaves for medical treatment. Employees are also protected from discrimination, harassment, and retaliation on the basis of gender dysphoria under the ADA.

The Fourth Circuit covers Maryland, Virginia, West Virginia, North Carolina, and South Carolina. The defendants in the Williams v. Kincaid case may seek U.S. Supreme Court review but this decision will remain the law within the Fourth Circuit, and other circuit courts may adopt this. Employers should consider this ruling when participating in the interactive process and providing reasonable accommodations to people with disabilities.

Equal Employment Opportunity Commission (EEOC)

New EEOC Guidance on COVID Testing

On July 12, 2022, the EEOC updated its Guidance about “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” by updating several Q&As, including:

Employers “will need to assess whether current pandemic circumstances and individual workplace circumstances justify viral screening testing” for employees, the agency said in an update to its technical assistance guidance.
Previously, it said COVID testing for on-site employees was legal across the board. Now, employers will have to prove that testing employees is a “business necessity,” which can be based on factors like community transmission, workers’ vaccination status, or certain working conditions.

U.S. Department of Labor (DOL)

Feedback on Long COVID in the Workplace

The U.S. Department of Labor, in conjunction with the Centers for Disease Control and Prevention and U.S. Surgeon General Vivek Murthy, announced July 12 the launch of a “virtual crowdsourcing event” aimed at collecting feedback from employees and employers about the impact of long COVID-19 in the workplace.

The CDC and the U.S. Department of Justice previously issued guidance confirming that long COVID-19 may constitute an ADA-defined disability if the condition substantially limits one or more major life activities.

Learn more and submit ideas here.

U.S. Department of Homeland Security (DHS)

Form I-9

As noted in prior editions of the FranklyHR newsletter and a client news alert, DHS has ended the COVID-19 Temporary Policy for List B Identity Documents that was temporarily adopted during the COVID-19 pandemic. Employers must only accept unexpired List B documents for the Form I-9.

If an employee presented an expired List B document between May 1, 2020, and April 30, 2022, employers are required to update their Forms I-9 by July 31, 2022. See the table here for easy-to-follow update requirements.

There is also an open public comment period regarding the Form I-9 to invite public comments on its proposed extension and revisions to the form, before it expires on October 31. This comment period will be open until August 8, 2022. To submit a comment, please visit Federal Register notice (87 FR 40857).

When commenting, keep in mind that USCIS is looking for feedback in four broad areas: (1) the I-9's usefulness; (2) its burden on employers (and new hires); (3) the quality, utility, and clarity of the information requested; and (4) any improvements which can minimize the burden – through electronic or other technological means.

Social Security Administration (SSA)

E-Verify Operations Resume

Starting July 15, 2022, employees whose E-Verify cases are referred to SSA on or after July 15, 2022, will have the normal eight federal working days to contact their local SSA office to begin resolving the mismatch. At the onset of the COVID-19 pandemic in March 2020, E-Verify extended the timeframe for an employee to take action to resolve a Social Security Tentative Non-confirmation.

E-Verify cases referred on or after July 15, 2022, E-Verify will no longer provide extended timeframes for employees to visit SSA to resolve these mismatches. E-Verify cases referred between March 2, 2020, to July 14, 2022, with an SSA mismatch will still have an extended timeframe to be resolved.

https://www.e-verify.gov/social-security-administration-resumes-e-verify-operations

Federal Contractors

Affirmative Action Program

As noted in prior issues of FranklyHR, beginning on March 31, 2022, contractors could begin certifying the status of their AAP compliance. Contractors need to certify the status of their AAPs by no later than June 30, 2022. Construction contractors are not required to certify compliance or register for the Contractor Portal.

Click here for the portal and here for FAQs. See the Sample AAP landing page to find illustrative examples of AAPs meeting OFCCP’s regulatory requirements. Additionally, OFCCP field staff are available to provide assistance with your AAP.

U.S. Department of Labor (DOL)

Subminimum Wages for Workers with Disabilities

The U.S. DOL has published new guidance on important limitations on the payment of subminimum wages under Section 511 of the Rehabilitation Act, which applies to certified employers otherwise authorized to pay subminimum wages to workers with disabilities under specific requirements of the FLSA.

The requirements include the documentation and timing of required services. These requirements help ensure that workers receive critical information and services in a timely fashion, which helps maximize opportunities to obtain competitive integrated employment. Employers have the responsibility to ensure all the requirements of these laws are met.

You can read more about this here.

Equal Employment Opportunity Commission (EEOC)

Nonbinary "X" Gender Marker

In an effort to promote greater inclusion, the U.S. Equal Employment Opportunity Commission (EEOC) announced on June 27th full implementation of the opportunity to select a nonbinary “X” gender marker during the intake process for filing a charge of discrimination.

The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination. To find out more about sexual orientation and gender identity discrimination, visit https://www.eeoc.gov/sexual-orientation-and-gender-identity-sogi-discrimination.

Equal Employment Opportunity Commission (EEOC)

EEO-1 Component 1 Reporting

The U.S. Equal Employment Opportunity Commission (EEOC) has extended the deadline to June for employers that are required to file an EEO-1 Component 1 report. Click here for a flowchart on the requirement to file for certain employers. For questions, please reach out to your FrankAdvice HR Consultant.

Use of Artificial Intelligence

Using artificial intelligence (AI) and other software tools to make employment decisions may lead to disability discrimination in violation of the Americans with Disabilities Act (ADA), according to new guidance from the EEOC.

Check out the guidance here.

U.S. Department of Justice (DOJ)

Americans with Disabilities (ADA) Web Accessibility

The ways that websites are designed and set up can create unnecessary barriers that make it difficult or impossible for people with disabilities to use, just as physical barriers like steps can prevent some individuals with disabilities from entering a building.

Guidance has been released on how businesses can make their web pages more accessible for people with disabilities.

You can review the guidance here.

U.S. Department of Labor (DOL)

Compliance Assistance Materials

The DOL has released new compliance assistance materials, including a toolkit, specifically to help construction workers understand their rights and inform employers about their legal obligations, as well as a webpage to help construction employees understand the Davis-Bacon Act.

Click here for the information.

Mental Health and FMLA

The DOL is providing additional resources for workers on their rights to take leave for serious mental health conditions and for employers to better understand how to comply with the FMLA.

Fact Sheet: https://www.dol.gov/agencies/whd/fact-sheets/28o-mental-health

FAQs: https://www.dol.gov/agencies/whd/fmla/mental-health

Occupational Safety and Health Administration (OSHA)

National Emphasis Program to Protect Workers from Heat Hazards

OSHA has launched a National Emphasis Program to protect workers from heat illness and injuries. Through the program, OSHA will conduct heat-related workplace inspections before workers suffer preventable injuries, illnesses, or fatalities. OSHA will proactively initiate inspections in over 70 high-risk industries in indoor and outdoor work settings when the National Weather Service has issued a heat warning or advisory for a local area.

Learn more here.

Equal Employment Opportunity Commission (EEOC)

EEO-1 Component 1 Reporting

The U.S. Equal Employment Opportunity Commission (EEOC) announced on April 20^th that the 2021 EEO-1 Component 1 data collection has opened. The EEO-1 Component 1 collects workforce data from employers with 100 or more employees (and federal contractors with 50 or more employees). Click here for a flowchart on the requirement to file for certain employers.

Upon request, FrankCrum submits the EEO-1 report for clients that are required to do so, and those that don’t wish to handle the process themselves. Affected clients are being contacted, but for questions, and if you would like the report filed on your behalf, please reach out to FrankAdvice.

EEOC to Add Nonbinary Gender Option to Discrimination Charge Intake Process

The U.S. Equal Employment Opportunity Commission (EEOC) announced that it will promote greater equity and inclusion for members of the LGBTQI+ community by giving individuals the option to select a nonbinary “X” gender marker during the voluntary self-identification questions that are part of the intake process for filing a charge of discrimination.

Learn more here.

U.S. Department of Homeland Security (DHS)

Form I-9 Flexibility Extended

On April 25, the Department of Homeland Security (DHS), U.S. Immigration and Customs Enforcement (ICE) announced an extension of the Form I-9 flexibilities through October 31, 2022.

This extension will continue to apply the guidance previously issued for employees hired on or after April 1, 2021, and work exclusively in a remote setting due to COVID-19 related precautions. These employees are temporarily exempt from the physical inspection requirements associated with the Employment Eligibility Verification (Form I-9) until they undertake non-remote employment on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated, whichever is earlier.

Learn more here.

DHS to End COVID-19 Temporary Policy for Expired List B Identity Documents

As a reminder, DHS is ending the COVID-19 Temporary Policy for List B Identity Documents. Beginning May 1, 2021 employers will no longer be able to accept expired List B documents.

DHS adopted the temporary policy in response to the difficulties many individuals experienced with renewing documents during the COVID-19 pandemic. Now that document-issuing authorities have reopened and/or provided alternatives to in-person renewals, DHS will end this flexibility. Starting May 1, 2022, employers must only accept unexpired List B documents.

U.S. Department of Homeland Security (DHS)

DHS to End COVID-19 Temporary Policy for Expired List B Identity Documents

DHS is ending the COVID‑19 Temporary Policy for List B Identity Documents. Beginning May 1, 2022 employers will no longer be able to accept expired List B documents.

DHS adopted the temporary policy in response to the difficulties many individuals experienced with renewing documents during the COVID‑19 pandemic. Now that document‑issuing authorities have reopened and/or provided alternatives to in‑person renewals, DHS will end this flexibility. Starting May 1, 2022, employers must only accept unexpired List B documents.

If an employee presented an expired List B document between May 1, 2020, and April 30, 2022, employers are required to update their Forms I-9 by July 31, 2022.

You can learn more here.

DHS Asks for Public Comment on the Form I-9

On March 30, 2022 the DHS published a notice in the Federal Register inviting the public to comment on proposed revisions to the Form I-9 before this version of the form expires on October 31, 2022. Changes include compressing Sections 1 and 2, updating the List of Acceptable Documents, and simplifying the instructions. Comments are encouraged and will be accepted until May 31, 2022.

Click here to learn more and to submit a formal comment.

As a reminder, the DHS Form I-9 requirement flexibility policy is extended until April 30, 2022. The question of if DHS makes this policy permanent is awaited. Stay tuned but in the meantime, employers can monitor the DHS and ICE's Workforce Enforcement announcements.

U.S. Department of Labor (DOL)

Retaliation Guidance

The U.S. Department of Labor (DOL) released guidance on March 10 that gave specific examples of what constitutes unlawful retaliation under the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA), and visa programs.

FLSA Example 1: Employee calls Wage and Hour Division (WHD) about overtime. Nelson works as a cook at a restaurant and contacts WHD confidentially to inquire about overtime pay. Nelson tells another cook what he learned from WHD and his co-worker tells someone on the wait staff. Later that day their manager overhears two wait staff talking about the call and terminates Nelson’s employment. In this scenario, terminating Nelson’s employment because he contacted WHD (or was suspected of contacting WHD) would be prohibited. WHD may investigate or Nelson may file a private cause of action seeking appropriate remedies, including, but not limited to, reinstatement, lost wages, and liquidated damages.

FMLA Example 2: Worker penalized for using FMLA leave to care for child. Jaime takes approved FMLA leave to care for his seven-year-old daughter when she is in the hospital overnight and recovering from surgery. Jaime returns to work as scheduled but receives three negative attendance points for the days he used FMLA leave. Under his employer’s no fault attendance plan, employees are allocated points for every absence from work, regardless of the reason for the absence. Employees are disciplined when they accrue a set number of points, and employees who accrue more than ten points in a calendar year may be terminated. In this scenario, assigning attendance points to Jaime’s FMLA-protected leave days would be prohibited. Under the FMLA’s anti-retaliation provisions, an employer may not use the taking of FMLA leave as a negative factor in employment actions and may not count FMLA leave days under no fault attendance policies. In an investigation, WHD would require that the employer remove the attendance points from Jaime’s employment record for the days he used FMLA leave to care for his daughter.

Examples of prohibited retaliation under various visa programs include threatening an employee with deportation for refusing to sign a form declaring that deductions for a monthly sponsorship fee were for recouping personal loans the employer purportedly gave to the worker as well as instructing workers to not talk to a Wage and Hour Division Investigator or their visas will not be renewed.

Independent Contractors

Trump-Era Rule Reinstated

In a decision issued on March 15, 2022, the U.S. District Court for the Eastern District of Texas reinstated the U.S. Department of Labor’s (DOL) rule, “Independent Contractor Status Under the Fair Labor Standards Act,” which was originally scheduled to take effect on March 8, 2021. It never went into effect as it was rescinded by the Biden administration. In this ruling, the court held that the DOL did not provide a meaningful opportunity for the public to comment on its proposals. The rule has been reinstated. The DOL has not said whether it will appeal the decision.

The Trump-era independent contractor rule is generally seen as employer friendly and implements an “economic reality” test for deciding whether a worker is an independent contractor or employee.

Federal Contractors

Affirmative Action Program

As noted in the January FranklyHR, beginning on March 31, 2022, contractors may begin certifying the status of their AAP compliance. Contractors need to certify the status of their AAPs by no later than June 30, 2022. Construction contractors are not required to certify compliance or register for the Contractor Portal.

Equal Employment Opportunity Commission (EEOC)

Employment Discrimination Against Caregivers

The U.S. Equal Employment Opportunity Commission (EEOC) has released a technical assistance document, “The COVID-19 Pandemic and Caregiver Discrimination Under Federal Employment Discrimination Law,” and an update to its COVID-19 “What You Should Know” explaining discrimination against employees and job seekers with family caregiving responsibilities.

In addition to this new technical assistance document and related “What You Should Know” updates, the EEOC also released a short video explaining caregiver discrimination in English and Spanish. More information about caregiver discrimination is available in the EEOC’s caregiver discrimination policy guidance, associated fact sheet, and employer best practices document.

Discrimination against people with caregiving responsibilities may violate federal anti-discrimination laws, according to new guidance issued by the Equal Employment Opportunity Commission (EEOC) - a situation intensified by the COVID-19 pandemic.

Updated Technical Assistance

The EEOC updated Section L of their guidance What You Should Know About COVID-19 And ADA Rehabilitation Act, And Other EEOC Laws to confirm that:

When making request for religious objection to receiving a COVID injection, employees do not need to use any “magic words,” such as “religious accommodation” or “Title VII.” However, they need to explain the conflict and the religious basis for it.
The employer may ask for an explanation of how the employee’s religious beliefs, practices, or observances conflict with the employer’s COVID-19 vaccination requirement. Although prior inconsistent conduct is relevant to the question of sincerity, an individual’s beliefs—or degree of adherence—may change over time and, therefore, an employee’s newly adopted or inconsistently observed practices may nevertheless be sincerely held.
An employer will need to assess undue hardship by considering the particular facts of each situation and will need to demonstrate how much cost or disruption the employee’s proposed accommodation would involve. See K.12 for additional considerations relevant to the undue hardship analysis.
The determination of whether a particular proposed accommodation imposes an undue hardship on the conduct of the employer’s business depends on its specific factual context. A mere assumption that many more employees might seek a religious accommodation—or the same accommodation—to the vaccination requirement in the future is not evidence of undue hardship, but the employer may consider the cumulative cost or burden of granting accommodations to other employees. An employer should consider all possible alternatives to determine whether exempting an employee from a vaccination requirement would impose an undue hardship.
The obligation to provide religious accommodations absent undue hardship is a continuing obligation that allows for changing circumstances. Employees’ sincerely held religious beliefs, practices, or observances may evolve or change over time and may result in requests for additional or different religious accommodations. Similarly, an employer has the right to discontinue a previously granted accommodation if it is no longer utilized for religious purposes, or if a provided accommodation subsequently poses an undue hardship on the employer’s operations due to changed circumstances.

Occupational Safety and Health Administration (OSHA)

Proposed Permanent COVID-19 Healthcare Standard

OSHA took steps toward a permanent COVID-19 standard for healthcare employers. OSHA has announced that it is partially reopening the public comment period for the COVID-19 healthcare emergency temporary standard (ETS) that was issued on June 21, 2021, and expired on December 21, 2021.

U.S. Department of Labor (DOL)

Warehouse and Logistics Industries Targeted for DOL Enforcement

The US Department of Labor (DOL) has announced an initiative to ensure warehouse and logistic workers' wages and workplace rights are protected. The initiative is in response to increased pressures on the economic supply chain, which has resulted in a strain on the warehouse and logistics industry, including delivery drivers, truck drivers and others.

The DOL will use education, outreach and robust enforcement to increase compliance and reduce industry violations. The initiative is designed to help ensure that workers in these industries are:

Paid all their legally earned wages (both minimum wages and overtime);
Safe from workplace harassment and retaliation for claiming their legal rights; and
Not prevented from taking Family and Medical Leave Act time off from work.

The DOL will also identify key stakeholders, such as worker advocacy groups, employers and employer organizations, to improve the initiative's effectiveness.

Additional Investigators Added to DOL

The U.S. Department of Labor (DOL) this month announced that its Wage and Hour Division is seeking to add 100 investigators to its team to support enforcement efforts. Common employer violations include failure to pay overtime, failure to keep time and payroll records, and failure to provide job protected leave per the Family and Medical Leave Act. In fiscal year 2021, the Wage and Hour Division collected $230 million in wages owed to 190,000 workers.

The cornerstone of its enforcement team, investigators’ responsibilities include the following:

Conducting investigations to determine if employers are paying workers and affording them their rights as the law requires.
Helping ensure that law-abiding employers are not undercut by employers who violate the law.
Promoting compliance through outreach and public education initiatives.
Supporting efforts to combat worker retaliation and worker misclassification as independent contractors.

The DOL has also recently joined with other federal agencies to increase enforcement of federal law. In November, a joint effort was announced with the Equal Employment Opportunity Commission and the National Labor Relations Board to fight retaliation against employees who exercise their rights under federal labor laws.

Congress Passes Arbitration Carveout

Mandatory Arbitration Banned for Sexual Harassment Claims

With bipartisan support, Congress has passed legislation which eliminates the use of mandatory arbitration clauses in cases of sexual assault and sexual harassment. The legislation provides federal protection for employees’ right to sue their employers, nullifying clauses in employment contracts that force employees to use arbitration. President Biden is expected to sign the bill. Some states, including California and New York, already ban mandatory arbitration of sexual harassment claims.

The EEOC says it is unlawful to harass a person because of that person’s sex. Harassment can include "sexual harassment" or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature. Harassment does not have to be of a sexual nature, however, and can include offensive remarks about a person's sex. Both victim and the harasser can be either a woman or a man, and the victim and harasser can be the same sex.

Federal Contractors

Affirmative Action Program

Federal contractors have long been required to complete annual affirmative action plans (AAPs). However, contractors only needed to produce them during Office of Federal Contract Compliance Programs (OFCCP) audits or certify they have one during the contracting process. The OFCCP recently announced that its Affirmative Action Program Verification Interface (also referred to as the Contractor Portal) is now operative.

On February 1, 2022, contractors will be able to register their companies through the portal. OFCCP will also email covered federal contractors in its jurisdiction whose email information is available in its system inviting them to register.

Beginning on March 31, 2022, contractors may begin certifying the status of their AAP compliance. Contractors need to certify the status of their AAPs by no later than June 30, 2022. Construction contractors are not required to certify compliance or register for the Contractor Portal.

Minimum Wage

The U.S. DOL Wage and Hour Division has issued a field assistance bulletin that clarifies the requirements of the $15 per hour minimum wage for federal contractor workers effective January 30, 2022 (noted in the November FranklyHR). Click here to see the field assistance bulletin details.

COVID-19 Vaccination Mandate

Enforcement of the mandate is currently enjoined nationwide and the federal government cannot enforce the federal contractor mandate against federal contractors. However, employers that entered into contractual agreements to mandate vaccination should consider if those agreements were pursuant to the executive order or were voluntary agreements between parties (contractor and subcontractor, for instance). Consult with your legal counsel as needed on any agreement.

Centers for Medicare and Medicaid Services (CMS)

COVID-19 Vaccination Mandate

CMS has issued new guidance clarifying compliance deadlines for covered health care facilities.

See the CMS State Graph and FAQs.

Remember any applicable state and local law. For instance, in Florida, companies that enact the federal vaccine mandate without offering employees a series of broad, state-specified exemptions are subject to fines (see previous FranklyHR Florida state updates). Consult with legal counsel as needed.

Occupational Safety and Health Administration (OSHA)

COVID-19 Vaccination Rule

Earlier this month, the U.S. Supreme Court blocked OSHA from enforcing the vaccine or test ETS and OSHA has decided to withdraw its ETS rather than litigate the matter further. The ETS is withdrawn but OSHA will continue to pursue a permanent standard to that effect. Stay tuned in the coming months.

OSHA does have hundreds of additional investigators that have been hired in the last year who are wrapping up their training. They will be looking for COVID-19 safety as well as general workplace safety violations. See our recent blog about How To Prepare for an OSHA Visit.

In most states it is still permissible to impose your own vaccine mandate regardless of the recent Supreme Court decision. Keep in mind federal, state, and local requirements as you choose policies and practices best-suited to the needs of your workplace.

U.S. Department of Labor (DOL)

The WARN Act

The DOL has clarified that layoffs with remote workers may set off the WARN Act. In 1988, Congress passed the Worker Adjustment and Retraining Notification (WARN) Act to provide workers with sufficient time to prepare for the transition between the jobs they currently hold and new jobs.

The WARN Act requires employers (with 100 or more workers) to provide written notice at least 60 calendar days in advance of covered plant closings and mass layoffs.

View the employer’s guide here and FAQs here. Some states have additional "mini-WARN" requirements. Reach out to your FrankAdvice HR Consultant if needed.

U.S. Department of Homeland Security (DHS)

Form I-9 Flexibility Extended

On December 16, 2021, U.S. Immigration and Customs Enforcement (ICE) announced an extension of Form I-9 flexibility that was initially granted last year. Due to the continued precautions related to COVID-19, the Department of Homeland Security (DHS) will extend this policy until April 30, 2022.

This extension will continue to apply the guidance previously issued for employees hired on or after April 1, 2021, and work exclusively in a remote setting due to COVID-19-related precautions. Those employees are temporarily exempt from the physical inspection requirements associated with the Employment Eligibility Verification (Form I-9) until they undertake non-remote employment on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated, whichever is earlier.

U.S. Equal Employment Opportunity Commission (EEOC)

New Resources

The EEOC has released new resources regarding sexual orientation and gender identity workplace rights. These materials are intended to help employees, applicants and employers with information about the rights of all employees, including lesbian, gay, bisexual and transgender workers, to be free from sexual orientation and gender identity discrimination in employment.

Resources: https://www.eeoc.gov/sexual-orientation-and-gender-identity-sogi-discrimination

FAQs: https://www.eeoc.gov/protections-against-employment-discrimination-based-sexual-orientation-or-gender-identity

EEO-1 Reporting

If you are filing your EEO-1 report on your own, the deadline has been extended to August 23, 2021 from the original July deadline. Click here for a flowchart on the requirement to file for certain employers. For questions or information, reach out to your FrankAdvice HR Consultant.

U.S. Department of Homeland Security (DHS)

Form I-9 Flexibility Extended

As previously shared in a client news alert, the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) extended the flexibility in complying with requirements related to Form I-9, Employment Eligibility Verification, due to COVID-19. until August 31, 2021.

Occupational Safety and Health Administration (OSHA)

Updated Information

As previously shared in a client news alert, learn about the new Emergency Temporary Standard for Healthcare along with updated OSHA guidance for mitigating and preventing the spread of COVID-19 in all industries.

President Biden Issues Executive Order on Increasing the Minimum Wage for Federal Contractors

On April 27^th, President Biden signed a new executive order (EO) requiring federal contractors and subcontractors to pay a $15.00 minimum wage to those individuals working on or in connection with federal contracts. Highlights include:

The new EO increases the hourly minimum wage for federal contractors to $15.00 by January 2022
The EO requires the minimum wage to be indexed to an inflation measure
The EO eliminates the tipped minimum wage by 2024 for employees working on or in connection with federal contracts
The EO restores minimum wage protections to outfitters and guides operating on federal lands
The EO ensures a $15 minimum wage for federal contract workers with disabilities
The EO will affect a broad range of employers, including those with federal procurement contracts of at least $10,000.

Learn more about the Executive Order on Increasing the Minimum Wage For Federal Contractors here.

U.S. Department of Labor (DOL)

Return of Pre-Litigation Liquidated Damages

The U.S. Department of Labor’s (DOL) Wage and Hour Division announced that, effective April 9, 2021, it had “return[ed] to pursuing pre-litigation liquidated damages” in lieu of litigation. It will leverage this enforcement tool as appropriate. You can read more about the return of this practice here.

Independent Contractor Rule

The DOL is proposing to withdraw the Department’s “Independent Contractor Status under the Fair Labor Standards Act” rule that was delayed to May 7, 2021. The public comment period is not being extended past April 12. You can read more here and learn about independent contractors vs. employees at our upcoming webinar in May.

Tip-Sharing Rule

As a reminder, regulations prohibiting managers from keeping tips and allowing employers to include non-tipped workers in certain tip pools will take effect April 30 as scheduled. If an employer does not take a tip credit, it may allow workers such as cooks or dishwashers, to share in a mandatory tip pool. Employers, managers, and supervisors are explicitly prohibited from keeping tips received by employees. Learn more here.

U.S. Department of Homeland Security (DHA)

New guidance was included that as of April 1, 2021 the requirement that employers inspect employees’ Form I-9 identify and employment eligibility documentation in-person applies only to those employees who physically report to work at a company location on any regular, consistent, or predictable basis.

U.S. Equal Employment Opportunity Commission (EEOC)

The EEOC is expected to update its coronavirus guidance to include information on vaccine incentives. With vaccine rollout in the U.S. in full swing it has been long awaited. You can review their guidance to date at the link below and reach out to your FrankAdvice HR Consultant as needed.

What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws

Federal Updates

Mar 27, 2026 7:00:00 AM

Previous Updates

U.S. Equal Employment Opportunity Commission (EEOC)

New Resources

EEO-1 Reporting

U.S. Department of Homeland Security (DHS)

Form I-9 Flexibility Extended

Occupational Safety and Health Administration (OSHA)

Updated Information

President Biden Issues Executive Order on Increasing the Minimum Wage for Federal Contractors

U.S. Department of Labor (DOL)

Return of Pre-Litigation Liquidated Damages

Independent Contractor Rule

Tip-Sharing Rule

U.S. Department of Homeland Security (DHA)

U.S. Equal Employment Opportunity Commission (EEOC)

State Updates

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