By Elena T. Vetter:

It’s Time to Update the Break Room Bulletin Board

The Department of Labor (DOL) has published two new posters this spring.

The first is an updated Family and Medical Leave Act (FMLA) poster. While the April 2016 and February 2013 posters still fulfill the DOL’s posting requirement, the new poster includes an updated QR code for employees to scan to learn more about their FMLA rights.

The second is a new Fair Labor Standards Act (FLSA) minimum wage poster, which covers the lactation accommodation obligations imposed by the federal Providing Urgent Maternal Protections for Nursing Mothers (PUMP) Act. Please note that previous versions of this poster no longer fulfill the posting requirement and must be replaced. The new law goes into effect on June 27, 2023. As we reported in our last update, PUMP requires employers to provide employees with reasonable break time and a private space (that’s not a bathroom) to express milk at work. The private space must be protected from intrusion and shielded from view. These newly-protected employee rights are outlined in the new DOL poster. The law also requires that employers must provide reasonable accommodations to lactating employees, some of which may include: more additional break time; closer parking; flexible hours; appropriately-sized uniforms and safety apparel; and excusal from strenuous activities.

Check In on Your Remote Workforce

Where do they live? In 2021, 60% of HR professionals were confident they knew where the majority of their workforce lived and worked. In 2022, that proportion decreased to 46%. It’s no wonder: workers are moving across state lines now more than ever. That can pose challenges for employers. An employer must determine which state’s laws apply to which employees—and how those laws differ and overlap. Consider, for example, that certain states—like, quite recently, Minnesota—have enacted strict laws prohibiting non-compete clauses. California and Colorado have also long prohibited the use of certain restrictive covenants in employment agreements. Other jurisdictions—like, for decades, Michigan—(and, as of last Friday, New York City) codify protected classes (there, height and weight) that aren’t protected elsewhere in the country. Employers must reconcile these different requirements,, of course, on top of navigating break-time obligations, local ordinances, tax implications, and workers’ compensation systems that differ across the nation. Keeping track of who lives where, and instituting mandatory reporting requirements when employees relocate, can help employers ensure that agreements, handbooks, and policies are compliant with applicable local laws.

Who do they work for? Nearly 70% of remote employees have a second job, and 37% of remote employees report working more than one full-time job. Only 23% of employees with two full-time jobs actually work 80 hours or more a week. Camera-on attendance at required meetings, occasional in-office days and certain productivity tracking measures can help employers keep track of employees whose attention seems divided.

What are they doing? Fortune recently reported that around 20% of American workers admit they use recreational drugs while working remotely—and that random workplace drug testing rose by 37% between 2021 and 2022. What types of safeguards and check-ins do you have in place for remote employees? It is important to have policies in place that prioritize both workplace safety and productivity requirements as well as considerations arising under the Americans with Disabilities Act (ADA).

Section 7 at the Stadium

The National Labor Relations Board (NLRB) has filed a complaint against the National Collegiate Athletics Association (NCAA), the PAC-12 and the University of Southern California (USC). The complaint alleges that student athletes should be classified as employees, stating that the organizations’ decisions to classify them as “non-employee student athletes” instead represents an intentional misclassification in order to deprive student athletes of their rights to union representation and engagement in concerted activity. Region 31 of the NLRB based out of Los Angeles will hear argument in early November. 

By Lewis M. Francis:

Flexible I-9 Record Keeping Ends July 31, 2023  

The I-9 verification flexibility implemented during COVID-19 will end on July 31, 2023. During the pandemic, the Department of Homeland Security (DHS) implemented an inspection deferral policy, which suspended employers’ obligations to physically inspect remote employees’ work authorization documents. However, by Aug. 30, 2023, employers must now complete in-person physical inspections of all employee documents that were previously inspected by remote means to comply with I-9 verification requirements. Employers should also review the integrity of their employment document verification procedures, especially if they relied on the pandemic era’s remote verification policies. 

Lewis M. Francis specializes in providing employment-based immigration solutions for a global marketplace. Mr. Francis is well-versed in obtaining the necessary immigration visas for specialized temporary employees, including those qualifying for H-1B, E-3, TN, O-1, and L-1A /L-1B. He also has considerable experience securing U.S. Permanent Residency (“green card”) for immigrant workers, including through PERM Labor Certification in the EB-2 and EB-3, as well direct applications for EB-1 Extraordinary Aliens, Multinational Executives/Managers and National Interest Waivers.