What's New in 2022- Employment Laws & Rules- State by State

Now that 2022 is officially in full swing, we want to help ensure you are set up for success and aware of the most important compliance updates. Below we outline the major employment law changes* that took effect January 1, 2022 (unless otherwise noted). 

The following list does not include minimum wage increases; however, you can access our ScalePEO State and Local Minimum Wages guide linked here.

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Federal Updates:

• FLSA Tip Credit Rule, effective 11/23/2021. The FLSA tip credit regulations are amended to:
  • Allow DOL to assess civil money penalties against employers that unlawfully keep employees' tips, even if those violations are not repeated or willful;
  • Allow employers to require managers and supervisors to contribute to tip pools;
  • Allow managers and supervisors to keep tips they receive directly from customers only when those tips are based on the service they directly and solely provide; and
  • Broaden the circumstances under which an employer's minimum wage and overtime violations can be considered "repeated and willful," and therefore subject to civil money penalties.
• Ban the Box for Federal Contractors, effective 12/20/2021. Federal contractors are prohibited from:
  • Requiring an individual or sole proprietor submitting a bid for a contract to disclose their criminal history record information before determining to whom to award the contract; and
  • Requesting verbally or in writing the disclosure of criminal history record information regarding an applicant for a position related to work under a contract before the contractor extends a conditional offer to the applicant.
  • There are exceptions to the Ban the Box law for law enforcement, those with national security duties, jobs with access to classified information, and positions which by law require federal contractors to obtain criminal history before making a conditional job offer.
• FLSA “80/20 Plus 30”, effective 12/28/2021. The FLSA tip credit regulations are amended to clarify an employer may take a minimum wage tip credit only during the time employees spend on tip-producing work or on directly supporting work taking up no more than 20% of their workweek and no more than 30 continuous minutes at any one time.
  
  

• The California Family Rights Act is amended. The definition of “parent” will now cover a parent-in-law, i.e., the parent of a spouse or domestic partner.
• California will stop issuing new licenses authorizing the employment of individuals with mental and/or physical disabilities at subminimum wage.
• An intentional wage theft law will take effect making the theft of wages, including gratuities, punishable as grand theft if it is more than $950 for any one employee or independent contractor and more than $2,350 in the aggregate for two or more employees or independent contractors. Theft of wages is the intentional deprivation of wages, gratuities, benefits, or other compensation by unlawful means with the knowledge the amount is due under the law.
• Employers can distribute workplace posters via email. Any information an employer is required to physically post may also be distributed to employees by email with the document or documents attached. However, email distribution does not alter an employer's obligation to physically display the required posting under Labor Code laws, including, but not limited to, those related to:
  • Cal/OSHA,
  • Minimum wage and overtime,
  • Paid sick leave,
  • Smoking, and
  • Wage payments.
• Employers who impose warehouse production quotas must provide written notice to employees by January 31, 2022. Among other requirements and provisions, this law includes the following:
  • Covered employers are those with either:
    • 100 or more employees at a single warehouse distribution center in the state; or
    • 1,000 or more employees at multiple warehouse distribution centers in the state.
  • By January 31, 2022, covered employers must provide new and current employees with a written description of any production quotas to which they are subject. The information must include:
    • The quantified number of tasks to be performed or materials to be produced or handled within the applicable time period; and
    • Any potential adverse employment action that could result from an employee's failure to meet the quota.
  • In addition, employees must not be required to meet a quota preventing compliance with:
    • Meal or rest periods;
    • Use of bathroom facilities; or
    • State and federal occupational health and safety laws.
  • Employees also have additional rights, including but not limited to:
    • Requesting information regarding their quota in the event of an alleged violation;
    • Protection from discrimination or retaliation for failing to meet certain quotas; and
    • Seeking injunctive relief to obtain an employer's compliance with the law.
• Corporate boards must include women, effective 12/31/2021. Publicly held domestic or foreign corporations whose principal executive offices are located in California must maintain the following number of women on their board of directors:
  • If the number of directors is six or more, the corporation must have at least three female directors;
  • If the number of directors is five, the corporation must have at least two female directors; and
  • If the number of directors is four or fewer, the corporation must have at least one female director.
• Corporate boards must include underrepresented communities, effective 12/31/2021. Publicly held domestic or foreign corporations with principal executive offices located in California must have at least one director from an underrepresented community on their board.
  • A director from an underrepresented community means an individual who self-identifies as:
    • Black;
    • African American;
    • Hispanic;
    • Latino;
    • Asian;
    • Pacific Islander;
    • Native American;
    • Native Hawaiian;
    • Alaska Native;
    • Gay;
    • Lesbian;
    • Bisexual; or
    • Transgender.
  • In addition, by December 31, 2022, such corporations must maintain a certain number of individuals from underrepresented communities on their board of directors depending on the corporation's total number of directors:
    • If the number of directors is nine or more, the corporation shall have a minimum of three directors from underrepresented communities.
    • If the number of directors is more than four but fewer than nine, the corporation shall have a minimum of two directors from underrepresented communities.
    • If the number of directors is four or fewer, the corporation shall have a minimum of one director from an underrepresented community.

Colorado Updates:

• All employers must now provide paid sick leave as of January 1. Previously, the Healthy Families and Workplace Act applied to just those employers with 16 or more employees. Now all employees must accrue at least one hour of paid sick leave for every 30 hours worked, up to 48 hours per year.
• The minimum wage exemption for agricultural employees is repealed. All agricultural workers must be paid the Colorado minimum wage. A separate minimum wage of $515.00 per week is established for workers principally engaged in the range production of livestock.

Connecticut Updates:

• Under the Paid Family and Medical Leave (PFML) Act, eligible employees may access paid leave benefits starting January 1. PFML benefits are funded solely through employee contributions that began January 1, 2021. PFML benefits are available for leave taken under the Connecticut Family and Medical Leave Act (CFMLA) and for reasons related to family violence. The PFML Act amends the CFMLA, effective January 1, 2022. Amendments include:
  • Dropping the employee threshold for employer coverage from 75 or more employees to one or more employees;
  • Eliminating the hours-worked requirement for employee eligibility and dropping the months-worked requirement from 12 to three;
  • Allowing up to 12 weeks of leave in any 12-month period (from 16 weeks in a 24-month period), and allowing an additional two weeks of leave for incapacitation during pregnancy;
  • Broadening the list of covered family members to include grandparents, grandchildren, siblings, and individuals whose close association is equivalent to a covered family relationship, and amending the definitions of parent, son, or daughter and next of kin; and
  • Allowing employees to retain at least two weeks of accrued paid leave that the employee may elect, or the employer may require the employee, to otherwise substitute for unpaid CFMLA.

Hawaii Updates:

• Employers must file copies of Forms W-2 with the state Department of Taxation (DOT) by January 31 following the end of the calendar year (this previously was required by the last business day of February). Employers must also provide a copy of the forms to each employee by January 31. A penalty of $25, not to exceed $50 per employee, will be imposed each time an employer:
  • Willfully fails to timely provide a copy of Form W-2 to an employee;
  • Fails to timely file Forms W-2 with the DOT; or
  • Fails to electronically file Forms W-2 if the employer is required to file electronically.

Illinois Updates:

• The Victims' Economic Security and Safety Act (VESSA) is amended to:
  • Cover victims of a crime of violence (e.g., homicide, sex offenses, bodily harm, harassing and obscene communications, and armed violence).
  • Expand the definition of a covered family or household member to include:
    • Children, regardless of age or disability,
    • Parties to a civil union,
    • Grandparents,
    • Grandchildren,
    • Siblings,
    • Any other person related by present or prior civil union, and
    • Any other individual whose close association with the employee is the equivalent of a family relationship as determined by the employee.
  • Clarify leave may be taken consecutively, intermittently, or on a reduced work schedule.
  • Permit employees to choose which document to submit in order to fulfill certification requirements.
  • Prohibit employers from requesting or requiring more than one document to be submitted during the same 12-month period leave is requested or taken if the reason for leave is related to the same incident or incidents of violence or the same perpetrator or perpetrators of the violence.
  • Require employers to keep in the strictest confidence any information provided to it, including an employee's statement or any other documentation, record or corroborating evidence, and the fact the employee has requested or obtained an accommodation under VESSA. Exceptions apply if disclosure is:
    • Requested or consented to in writing by the employee, or
    • Otherwise required by applicable federal or state law.
• The Illinois Personnel Record Review Act is amended to provide remedies for an employee whose employer or former employer divulged confidential disciplinary information from the employee's personnel records in violation of the Act. Specifically, the amendments provide for a private right of action that must be filed within three years after the date of the disclosure of the report, letter, or other disciplinary action.
• The Illinois Human Rights Act is amended to prohibit discrimination against an individual because they are associated with a person who has a disability.
• The Illinois Freedom to Work Act is amended to impose greater restrictions on the use of noncompete and nonsolicitation agreements. It also sets criteria that must be met for such agreements to be valid and enforceable, including among other requirements, earnings thresholds that must be exceeded for an employee to be subject to a noncompetition or nonsolicitation agreement.
  • A noncompete agreement is prohibited unless an employee's actual or expected earnings exceed $75,000 per year. This threshold will increase in three phases, the first of which takes effect in 2027.
  • A nonsolicitation agreement is prohibited unless an employee's actual or expected annual earnings exceed $45,000 per year. This will also increase in three phases, the first of which takes effects in 2027.

Minnesota Updates:

• Minnesota’s pregnancy accommodation requirements (Minn. Stat. § 181.9414) are repealed and incorporated into state law regarding nursing and lactation accommodations (Minn. Stat. § 181.939).
  • The pregnancy accommodation requirements are further amended to:
    • Apply to employers with 15 or more employees (from 21 or more), and
    • Remove the length-of-service and hours-worked requirements for employee eligibility.
  • The lactation accommodation requirements are also amended to:
    • Limit an employee's ability to take lactation breaks to the 12 months following the child's birth, and
    • Prohibit an employer from reducing an employee's compensation for time used to express milk.

Montana

• Montana amends the definition of “lawful product” to include marijuana, thereby prohibiting discrimination against an individual for their use of marijuana during off-duty hours, unless the off-duty marijuana use:
  • Affects the employee's ability to perform job-related employment responsibilities or the safety of other employees;
  • Conflicts with a bona fide occupational qualification that is reasonably related to the employee's employment; or
  • Violates a personal service contract with an employer and the unique nature of the services provided authorizes the employer to limit the use of marijuana (or other products).

New York Updates:

• New York amends the cap on paid family leave (PFL) benefits when leave is taken intermittently. Specifically, as of January 1, when an employee takes PFL in daily increments, the maximum number of days of PFL available is calculated based on the average number of days worked per week multiplied by 12. Previously, the law capped leave taken in daily increments to 60 days per year.
• New York expands whistleblower protections, effective 1/26/2022. New York extends retaliation protections to those who report unlawful or dangerous business practices, including former employees. In addition, retaliatory actions will include employer actions or threats to take action that would adversely affect a former employee's current or future employment, as well as an employer contacting or threatening to contact immigration authorities.
  • With the addition of former employees to the definition of covered employees under the law, the statute of limitations was also extended to two years to ensure proper action can be taken in the case of retaliation.
  • Under the amendments, employees are protected whether or not they are acting within the scope of their job duties. The amendments also ensure employees only have to prove they reasonably believe there is a violation of the law or there is substantial or specific danger. Under prior law, employees had to show there was an actual violation of law that created and presented a substantial and specific danger to be protected from retaliation - expanding the type of whistleblowing that is protected.

Oregon Updates:

• Oregon law restricts the reasons for which employers may require an employee or prospective employee to possess or present a driver license. Oregon law prohibits an employer from:
  • Requiring, as a condition for employment or continuation of employment, an employee or prospective employee to possess or present a valid driver license unless the ability to legally drive is an essential function of the job or is related to a legitimate business purpose; and
  • Refusing to accept from an employee or prospective employee, as an alternative to a driver license, any other identification documents deemed acceptable for the purpose of forms prescribed by the US Citizenship and Immigration Services that are used for verifying the identity and employment authorization of individuals hired for employment in the US.
  • An employer may continue to accept a driver license as identification if voluntarily offered by an employee or prospective employee.
• Oregon amends and expands its Family Leave Act to:
  • Allow employees of a covered employer to take leave during a public health emergency, with certain exceptions;
  • Allow employees who separate from employment to take leave if they are eligible for leave at the time of separation and are reemployed within 180 days;
  • Allow employees to take leave if they are eligible at the beginning of a temporary cessation of scheduled hours of 180 days or less and return from work at the end of the temporary cessation of scheduled hours of 180 days or less; and
  • Codify regulatory provisions providing for child care leave due to a public health emergency and verification of such leave.
• Oregon CROWN Act prohibits hairstyle discrimination. The definition of race under the Oregon Fair Employment Practices Law is amended to include physical characteristics which are historically associated with race, including but not limited to natural hair, hair texture, hair type and protective hairstyles.
  • Protective hairstyle means a hairstyle, hair color or manner of wearing hair including but is not limited to braids, regardless of whether the braids are created with extensions or styled with adornments, locs, and twists.
  • The amendment does not prohibit an employer from enforcing an otherwise valid dress code or policy as long as:
    • The employer provides for reasonable accommodation based on an individual's health and safety needs; and
    • The dress code or policy does not have a disproportionate adverse impact on a protected class.

Rhode Island Updates:

• Paid family leave (also known as temporary caregiver leave) benefits are increased from four weeks to five weeks in a benefit year. Temporary caregiver leave is available to bond with a newborn or newly placed adopted or foster child, and to care for a seriously ill family member.

Washington Updates:

• Earning requirement for noncomplete agreements is increased. The amount of minimum earnings required for a noncompete agreement to be enforceable in Washington is increased for inflation as follows:
  • For employees - To $107,301.04 (from $101,390); and
  • For independent contractors - To $268,252.59 (from $253,475).
• Washington requires pay deductions for long-term care benefits. All employers (with limited exceptions) subject to the state Paid Family and Medical Leave (PFML) program are required to withhold 0.58% of each employee's gross wages on a quarterly basis to fund a new state long-term care benefits program.
  • Employers required to withhold the contributions must remit them to the Washington Employment Security Department (ESD) and will be required to file reports. The first quarterly premiums are due April 30, 2022. The ESD will use the PFML program premium assessment, collection and reporting procedures for the long-term care benefits program.
  • The ESD is expected to issue proposed regulations and additional guidance before employer withholding of the contributions begins.
  • Long-term care benefits will become available beginning January 1, 2025

Every year, there are dramatic changes in the tax and compliance requirements for employers. We at ScalePEO are here to help you through times where you need a little information, a helping hand, or a “knight in shining armor” to jump in and help solve your questions. Reach out if you have any questions or would like to set up time to chat and see if ScalePEO can help you achieve your goals.

*This information is offered for general information only. It does not provide, nor is it intended to provide, tax or legal advice.