Perspectives

It’s no surprise that the number of DWI’s and alcohol related crashes increases during the St. Patrick’s day weekend. If you are caught drinking and driving, the luck of the Irish won’t be much help, but advice from an attorney could be invaluable.

1.  Always have your driver’s license, registration, and Proof of Insurance in a location where you can easily locate them. Police Officers will take notice if you fumble around looking for these items. In the eyes of the Police Officer, fumbling can be used against you as a sign of impairment.
2. Be polite and cooperative. However, please remember, you have absolutely no obligation to provide any information to the police officer except for the items listed above. In fact, it always better to not answer questions about how many drinks you may have had and where you are coming from/going to. (You are free to exercise your right to remain silent.)
3. If the police officer requests that you get out of your vehicle to do some Field Sobriety Tests, you may refuse to do so. These tests can include reciting the alphabet backwards, and walking in a straight line. Whether or not it is a good idea to take these tests depends on the situation. If you are not impaired, full cooperation is the quickest way to be sent on your way. However, if you are impaired (or fear you might be), your cooperation can provide incriminating evidence that could be used against you at trial.
4. If the Police Office requests that you take a Preliminary Breath Test, commonly referred to as “PBT”,  at the initial traffic stop you may refuse to do so. Putting in breath mints, chewing gum, or drinking coffee will not help if you have been drinking. If the PBT indicates that your Blood Alcohol Content “BAC” is above the legal limit (.08 in MN and most other states), you will likely be arrested for Driving While Impaired or Intoxicated. (“DWI”).
5. If you are arrested for DWI in Minnesota (this applies to most other states as well, but always be aware of the laws in your specific location), Police Officers have an obligation to inform you of the Implied Consent Advisory. An Implied Consent Advisory will inform you that the law requires you to take the test to determine your BAC, even if you already took the PBT on the side of the road. When the Police Officer informs you to take a breath test at the station, you must do so. It is never in your best interest to refuse to take a test at this point, doing so will most likely result in more serious criminal penalties, longer license revocation, and mandatory ignition interlock. (Which comes at an extra cost to you!)
6. Before taking the test, you have a right to consult with an attorney. In fact, Police Officers must supply you with a phone book in order to ease your search to contact an attorney. However, it is always best to have an experienced Criminal Defense team at the ready, like WFJ, through LegalShield or other methods, as a contact in your cell phone to call case of an  emergency.
7. Regardless of the outcome, use the experience as a lesson. Consider alternative transportation options for future events, such as designated drivers, rideshare services, or public transportation. Planning ahead can prevent similar situations in the future.

While the goal is always to celebrate responsibly, life is unpredictable, and mistakes can happen. But DWI charges are complicated-they can result in serious jail time, fines, loss of license, forfeiture of your vehicle, and a criminal record. You should always seek competent legal advice as soon as possible. If you find yourself in this position, contact Wagner, Falconer & Judd for a consultation.

Employers know that staying up-to-date with the latest changes in employment law is crucial to the success of your business. These updates can affect everything from how you hire and manage employees-to how you handle disputes and protect your business from legal action. That’s where the Employment Law team at Wagner, Falconer & Judd comes in! We rounded up some of the most impactful new laws across the United States that are taking effect soon.

California

California Governor Gavin Newsom signed off on a number of new laws that impact employers across various industries.

• Set healthcare industry minimum wage requirements for nearly all healthcare workers, whether they are hourly or salaried employees, or independent contractors. The law also provides these workers with an independent private right of action to enforce these minimum wage requirements.
• Codified legal precedent banning certain non-compete and non-solicitation agreements and requires that employers notify current and former employees in writing by February 14th, 2024 that any prior non-compete agreements contravening the law are void.
• Update to California Fair Employment and House Act allowing eligible employees to take up to five days of reproductive loss leave following failed adoption, failed surrogacy, miscarriage, stillbirth, or unsuccessful assisted reproduction.
• New law requires employers to pay food handler employees for the costs associated with obtaining a food handler card required by the California Health and Safety Code. The new law also makes employers responsible for the time required for the employee complete the training, the cost of testing, and any element required for the completion of the certification program.
• California Consumer Privacy Act (CCPA) definition of “sensitive personal information” is revised to include personal information that reveals a consumer’s citizenship or immigration status.
• SB 700 expanded California’s Fair Employment and Housing Act to protect applicants from discrimination based on prior cannabis use, with certain exceptions
• Expanded California’s existing paid sick leave law (the Healthy Workplaces, Healthy Families Act of 2014) increasing employee’s entitlement to annual paid sick leave
• Raised minimum wage for restaurant workers at national fast food chains to $20/hour

Colorado

• The Boulder County Board of Commissioners adopted a minimum wage ordinance, effective January 1, 2024
• SB 23-105 which expands notifications requirements in Colorado’s Equal Pay for Equal Work Act
• Enacted the Job Application Fairness Act (JAFA), effective July 1, 2024, which prohibits employers from requesting or requiring that job applicants provide information relate to “age, date of birth, or dates of attendance at or graduation from an educational institution” on initial employment applications.

Connecticut

• Minimum wage will increase to $15.69 on January 1, 2024 under its first-time economic indicator adjustment and will adjust annually
• PA 23-35 “An Act Expanding Worker’s Compensation Coverage for Post-Traumatic Stress Injuries for All Employees”, which expands the definition of employee to allow nearly all workers (not just first responders) who suffer certain tragic qualifying events to claim workers’ compensation benefits, effective January 1, 2024

Hawaii

SB 1057, effective January 1, 2024 will:

• require most employers with 50 or more employees to disclose a position’s hourly rate or salary range in certain job postings
• amend existing equal pay requirements by prohibiting an employer from paying employees in any protected category of the state’s employment discrimination statute less than it pays other employees

Illinois

Governor J.B. Pritzker joined other states in signing legislation to expand leave protections to employees, and provided guidance on a number of matters impacting employers and employees.

• Chicago City Council passed a new paid leave ordinance requiring all Chicago employers to provide employees with 10 paid leave days. Adding complications for employers, the varying types of leave will have different rules for initial eligibility, minimum usage, rollover and payout upon termination.
• New law, Child Extended Bereavement Leave Act (also known as Zachary’s Parent Protection Act) requires employers with at least 50 employees to provide between 6 and 12 weeks unpaid leave (depending on the employer size) for employees who have lost a child due to suicide or homicide
• Evanston, IL adopted a Fair Workweek Ordinance, expanding hourly workers’ rights to predictable scheduling across multiple industries
• The Illinois Department of Labor (IDOL) published Paid Leave for All Workers Act FAQ, which provides guidance on the state’s Paid Leave for All Workers Act, effective January 1, 2024
• Illinois will require private employers to provide a minimum of 40 hours of annual paid leave to employees to be used for any reason. Employers have options on how to distribute that leave time, but may not require any documentation on the need for leave.

Maryland

• Maryland Governor Wes Moore approved the Maryland General Assembly’s modifications to the Maryland Time to Care Act of 2022 which will add a critical provision, mandating employee and employer contribution rates at 50/50 to the sweeping paid family and medical leave program.
• Moore also signed the Fair Wage Act of 2023, which mandates a uniform $15 hourly minimum wage for all employers effective January 1, 2024.

Minnesota

Minnesota was another state with sweeping changes to the legal landscape of the state in 2023, legalizing recreational marijuana and expanding expanding employee protections.

• MN Department of Labor and Industry has issued guidance on the state’s paid earned sick and safe time (ESST) law, which takes effect January 1, 2024. The agency has also published a sample employee notice employers may use to satisfy their ESST notice obligations
• City of Bloomington amended its paid sick leave law to more closely align it with the statewide paid sick leave mandate. Among other things, the amendment (effective January 1, 2024):
  • expands the definition of “family member”
  • modifies the allowable reasons for leave
  • allows frontloading with no waiting period
  • allows reasonable documentation to justify the reasons for leave
• MN DOL announced that minimum wage rates will be adjusted for inflation and increase 2.5% on January 1, 2024
• Governor Walz also signed a far-reaching omnibus jobs and economic development and labor funding bill that:
  • provides for investing $500 million in a fund matching federal investments in infrastructure and large development projects
  • bans employment non-compete agreements signed after July 1, 2023
  • mandates certain worker safety protections
  • creates new paid sick leave entitlements
  • provides employees with additional pregnancy and nursing accommodations
  • prohibits employers from mandating attendance at employer-sponsored meetings about religious or political matters
  • adds protections for employees who disclose their own wages or voluntarily discuss their wages with other employees
• Bloomington published initial rules implementing its Earned Sick and Safe Leave (ESSL) Ordinance, which took effect on July 1, 2023. It also published the mandatory Notice of Employee Rights in English ( posters in other languages will also be available.)

Nevada

• Nevada passed SB 290, which requires earned wage access providers to obtain a license from the state government and regulates the providers. The law governs entities that provide consumers with an advance of income they have earned or accrued but have not been paid yet.
• Nevada OSHA announced increased penalties that took effect on January 17, 2023 and on March 24, 2023, released an updated list of establishments it is targeting for programmed inspections.

New Jersey

The New Jersey DOL launched the Workplace Accountability in Labor List (the WALL), a publicly available list of businesses with outstanding liabilities for violations of state wage, benefit, and tax laws enforced by the agency. Businesses on the list are prohibited from public contracting.

New York

New York’s Paid Family Leave Program will be updated for 2024 so that employee’s maximum:

• • weekly benefit is $1,151.16
  • annual contribution is $333.25
• Additionally, the list of family members for whom eligible workers can take Paid Family Leave to care for was expanded in 2023 to include biological, adopted, step-, and half-siblings, including those living outside of NY and outside the U.S.

• A5295, with some exceptions, renders unenforceable agreements that assign an employee’s rights in an invention to their employer even where the employee develops the invention entirely on their own time without using the employer’s property.
• S5572 increases the salary threshold for certain wage payment exceptions, such as pay frequency requirements. Effective March 2024.
• S2518A prohibits employers from requesting or requiring an employee or applicant to disclose access information for a personal social media account or performing other related acts.
• S4878A requires employers to provide employees written notice of their right to file for unemployment benefits when they are let go or experience a reduction in hours or other interruption of employment.

Ohio

Joining 23 other states, Ohio has passed a recreational marijuana law legalizing and regulating the cultivation, sale, purchase, possession, use and home growth of recreational marijuana. The new law does not require an employer to “accommodate an employee’s use, possession, or distribution of adult use cannabis”.

The City of Columbus joins Toledo and Cincinnati as the latest Ohio city to prohibit employers from asking prospective employees about past compensation. Effective March 1, 2024, employers operating in Columbus may not ask about a prospective employee’s wage or salary history. The new ordinance makes it an “unlawful discriminatory practice” for an employer to: ask about an applicant’s salary history, which includes current or prior wages, benefits or other compensation.

Rhode Island

Rhode Island Governor Daniel McKee signed a bill that increase the penalties for employers that knowingly and willfully violate the wage and hour laws, and specified additional penalties for employers in the construction industry.

Washington

• The Department of Labor and Industries announcement of increases to state and local minimum wage and exempt salary thresholds for 2024. The increases are effective January 1, 2024.
• SB 5586 allows employees, an employer, and third parties acting on behalf of the employee or employer to request access to records related to paid family or medical leave claims.
• SB 5123 prohibits employers from making hiring decisions based on off-duty cannabis use or a positive pre-employment drug test result detecting psychoactive cannabis metabolites. Takes effect January 1, 2024
• SB 5111 amends the minimum wage law and requires employers to pay out standalone unused paid sick and safe time to certain short-term or temporary construction workers.

Staying on top of local employment laws doesn’t have to be complicated! Work with the attorneys at Wagner, Falconer & Judd and make compliance a breeze.

In 2024, keeping your finger on the pulse of the economy can seem daunting. Words like “recession” and “inflation” are all over the news, and you’re feeling the pinch at checkout. But what’s white noise, and what is supported by the data? There have recently been some key indicators that suggest less than smooth waters ahead.

Let’s break down the latest developments and explore strategies for staying afloat during challenging times.

Housing Market Update: A shifting Landscape

The housing market has experienced notable shifts that demand attention. Mortgage rates have surged back to 7% post-inflation data, impacting affordability for potential homeowners. Median rent has seen a 6% decline since August 2022, offering a silver lining for renters. However, mortgage activity is at a 20-year low, and new home listings are down 17%, contributing to falling home prices and reduced equity. Pending home sales have dipped by 29%, indicating a cautious market sentiment-with new home construction also showing signs of slowing.

On a financial front, household debt has reached a record $16.9 trillion, with credit card debt spiking to $986 billion-a $61 billion increase in Q4, the largest since 1999. Mortgages account for a substantial $11.9 trillion, while student loans follow at $1.8 trillion, with auto debt closely behind at $1.5 trillion. These figures underscore the financial challenges faced by the general public and the potential ripple effects on the economy.

Shipping Data and Economic Indicators

The Port of Long Beach, a vital artery of global trade, saw a concerning drop in container volume, plummeting by 28.4% in January. This decline reflects broader disruptions in supply chains, likely exacerbated by ongoing challenges such as labor shortages and logistical bottlenecks.

Adding to the complexity, Challenger, an outplacement firm, reported a dramatic rise in job cuts across various industries. Such developments underscore the economic strain felt by businesses grappling with inflationary pressures and supply chain disruptions.

Speaking of inflation, the latest Consumer Price Index (CPI) paints a sobering picture. Inflation rates have surged to 6.4%. The Breakfast Cost Index, a telling indicator of everyday expenses, has spiked by 22.5%. These numbers signal heightened financial burdens for businesses and consumers alike.

Small Business Challenges and Economic Responses

Small businesses find themselves caught in a vise, with mounting debt necessitated by rising costs stemming from inflation, labor shortages, and supply chain woes. The NFIB survey echoes this sentiment, revealing a plunge in business equipment investment, indicative of cautious spending amid uncertain economic conditions.

The Federal Reserve, tasked with maintaining stable economic conditions, faces the delicate balancing act of curbing inflation while avoiding market shocks. With a target inflation rate of 2%, the Fed is cautiously considering rate hikes, mindful of the potential impact on economic stability.

Navigating Uncertainty: Strategies for Business

In times of uncertainty, taking proactive measures to fortify your business can make all the difference.

1. Survey Your Portfolio: Evaluate the dollar value, industry/market, region, and business channel of your portfolio to identify potential vulnerabilities and opportunities.
2. Risk Assessment: Identify and assess risks associated with shipping delays, job cuts, inflation, and supply chain disruptions. Develop contingency plans to mitigate these risks effectively.
3. Review Agreements: Scrutinize customer and vendor agreements to understand remedies, statutes of limitations, dispute processes, and suspension of performance clauses.
4. Protect your Rights: Ensure your business is protected by understanding and utilizing legal tools such as liens, bonds, UCC filings, credit agreements, and guarantees.
5. Communication and Documentation: Establish a transparent communication channel up and down the chain, documenting any issues, changes, or disruptions promptly.
6. Team Collaboration: Turn challenges into opportunities by fostering a collaborative approach within your organization. Engage credit, sales, branch offices, and franchise locations in a collective effort to address challenges.
7. Efficient Data Management: Implement an efficient process to collect and share critical data within the organization, enabling informed decision-making.
8. Take Action: Act promptly on the insights gained from your surveys and risk assessments. Swift and informed decisions can make the difference in navigating uncertain waters successfully.

Embracing Resilience

A resilient workplace cultivates an environment where employees are adaptable and capable of overcoming obstacles, fostering a collective mindset that views challenges as opportunities for growth. Proactive management strategies and partnerships not only make a team more efficient but also enable them to be lighter on their feet, swiftly adjusting to market dynamics and emerging trends. This adaptability not only ensures business continuity but positions the organization to seize new opportunities. By instilling a culture of resilience, teams can develop creative techniques that revolutionize the way they conduct business, ultimately paving the way for sustainable success in the face of economic uncertainty.

If partnering with an experienced law firm like Wagner, Falconer & Judd sounds like the right fit for your business, reach out today to consult with a member of our team. Or learn more about the solutions and services we offer here. 

‘Tis the season for holiday festivities, and that often means attending parties and celebrations with friends and family. While the joy and merriment are undoubtedly contagious, it’s crucial to keep safety in mind, especially if you’ve had a couple drinks. No one plans to get pulled over, but it’s essential to be prepared, just in case. Here are some steps you should take if you find yourself facing the flashing lights of law enforcement instead of the twinkling of holiday lights:

1.  Always have your driver’s license, registration, and Proof of Insurance in a location where you can easily locate them. Police Officers will take notice if you fumble around looking for these items. In the eyes of the Police Officer, fumbling can be used against you as a sign of impairment.
2. Be polite and cooperative. However, please remember, you have absolutely no obligation to provide any information to the police officer except for the items listed above. In fact, it always better to not answer questions about how many drinks you may have had and where you are coming from/going to. (You are free to exercise your right to remain silent.)
3. If the police officer requests that you get out of your vehicle to do some Field Sobriety Tests, you may refuse to do so. These tests can include reciting the alphabet backwards, and walking in a straight line. Whether or not it is a good idea to take these tests depends on the situation. If you are not impaired, full cooperation is the quickest way to be sent on your way. However, if you are impaired (or fear you might be), your cooperation can provide incriminating evidence that could be used against you at trial.
4. If the Police Office requests that you take a Preliminary Breath Test, commonly referred to as “PBT”,  at the initial traffic stop you may refuse to do so. Putting in breath mints, chewing gum, or drinking coffee will not help if you have been drinking. If the PBT indicates that your Blood Alcohol Content “BAC” is above the legal limit (.08 in MN and most other states), you will likely be arrested for Driving While Impaired or Intoxicated. (“DWI”).
5. If you are arrested for DWI in Minnesota (this applies to most other states as well, but always be aware of the laws in your specific location), Police Officers have an obligation to inform you of the Implied Consent Advisory. An Implied Consent Advisory will inform you that the law requires you to take the test to determine your BAC, even if you already took the PBT on the side of the road. When the Police Officer informs you to take a breath test at the station, you must do so. It is never in your best interest to refuse to take a test at this point, doing so will most likely result in more serious criminal penalties, longer license revocation, and mandatory ignition interlock. (Which comes at an extra cost to you!)
6. Before taking the test, you have a right to consult with an attorney. In fact, Police Officers must supply you with a phone book in order to ease your search to contact an attorney. However, it is always best to have an experienced Criminal Defense team at the ready, like WFJ, through LegalShield or other methods, as a contact in your cell phone to call case of an  emergency.
7. Regardless of the outcome, use the experience as a lesson. Consider alternative transportation options for future events, such as designated drivers, rideshare services, or public transportation. Planning ahead can prevent similar situations in the future.

While the goal is always to celebrate responsibly, life is unpredictable, and mistakes can happen. But DWI charges are complicated-they can result in serious jail time, fines, loss of license, forfeiture of your vehicle, and a criminal record. You should always seek competent legal advice as soon as possible. If you find yourself in this position, contact Wagner, Falconer & Judd for a consultation.

Get ready for a new year filled with changes to the employment law landscape. As we step into 2024, there is a fresh wave of regulations and requirements heading our way, and it’s crucial to have your HR and Compliance teams up to date on the laws taking effect in 2024 that will impact their business. Let’s explore some of the major changes set to unfold in 2024 and the notable changes and potential repercussions from being non-compliant.

Exempt Salary Threshold Increase

On August 30, 2023, the U.S. Department of Labor announced their plan to increase the exempt salary threshold from $684 per week to $1,059. Employees will need to earn $55,068 or more per year to be exempt from overtime pay. Before we discuss the steps employers should consider taking to prepare for this proposed plan, it’s important to note that this proposal isn’t law yet. That means there is time to understand and plan for the changes if and when they become law.

A great first step is to review your pay practices and start to prepare for compliance.

How many of your employees fall under the “white-collar” exemption? Qualifying employees will meet the following criteria:

1. Paid on a salary basis
2. Paid at least the designated minimum weekly salary
3. Perform certain duties

This new threshold amount is a significant jump from the current guidelines, so it will likely require some planning on your part if you have multiple employees that make less than the proposed amount. Be sure to review exempt employees and ensure job positions meet the associated duties test.

Another recommendation is to give employees plenty of notice on the changes, and discuss the plans with the leaders of the employees impacted by the change.

Plan to provide a written communication to each employee about the specific changes to their compensation and what new responsibilities come with the changes, such as timekeeping, meal and rest breaks, and other requirements. Some states require advance notice of wage changes, so you should check your local requirements.

As previously mentioned, making sure exempt employees meet the duties test is a vital step of planning.

A summary of the basic requirements under federal law for the white-collar exemptions are as follows:

Executive Exemption

• The employee’s primary duty must be to manage the enterprise or customarily recognized department/subdivision
• Employee must customarily and regularly direct the work of at least two or more other full-time employees or their equivalent
• The employee must have the authority to hire or fire employees, or the employee’s suggestions and recommendations as to hiring, firing, or any other change of status must be given particular weight

Administrative Exemption

• The employee’s primary duty must be the performance of office or non-manual work directly related to the management or general business operations of the employer or its customers
• Employee’s primary duty includes the exercise of discretion and independent judgment with respect to matters of significance

Professional Exemption

• The employee’s primary duty must be the performance of work requiring advanced knowledge, predominantly intellectual in character and which requires the consistent exercise of discretion and judgment
• The advanced knowledge must be in a field of science of learning
• The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction.

Last, and certainly not least, you should evaluate applicable state laws. Your state may have higher, stricter, or different wage and hour requirements than this federal proposal. For example, some states have a higher salary threshold for the white-collar exemptions than the FLSA’s $684 per week. Others might have different exemptions or exceptions, including those where the salary exemption related to practicing medicine. And of course, some states (and cities!) have higher minimum wage rates and/or overtime-type requirements.

New Marijuana Laws

As the legality of recreational marijuana has evolved, so have the regulations regarding marijuana in the workplace. California has officially, and for the first time, provided protections for users of recreational marijuana within the employment context. This new bill, which takes effect on January 1,2024, amends the Fair Employment and Housing Act (FEHA) by making it unlawful for an employer to discriminate against an applicant or employee for the use of marijuana off the job and away from the workplace and for an employer-required drug screening test that finds the person to have non-psychoactive cannabis in their system. (This is the THC left behind in the body after the “high” feelings have left. Indicating that marijuana has been consumed in some capacity in the last few weeks.) Essentially, this bill prohibits employers from holding it against applicants if the test determines there is evidence of past marijuana use. The general intent of employment related drug testing is to test for impairment on the job/at the jobsite, versus long-term use. If the trend started by California continues, traditional and common tests for marijuana will no longer be used for pre-employment drug screening or be the basis for discipline or termination of an employee.

Importantly, California’s AB 2188 will not take away an employer’s right to maintain a drug-free workplace. You can continue to issue disciplinary actions against employees who possess or use cannabis on the clock.

• Exemptions include:
  • building and construction employees
  • Applicants or employees hired for positions that require federal government background investigations or security clearances
  • Applicants or employees required to be tested under state or federal law

The state of Washington also implemented new marijuana laws taking effect January 1, 2024. The new law does not prohibit employers from:

• Basing initial hiring decision on scientifically valid drug screening methods that do not include non psychoactive cannabis metabolites
• Maintain a drug and alcohol-free workplace
• Complying with employer obligations required by federal law
• Testing for controlled substances other than pre-employment, such as post-accident testing or testing because of a suspicion of impairment or being under the influence
• Testing a job applicant for a spectrum of controlled substances, including cannabis, only if the cannabis results are not provided to the employer

Effective January 1, 2024 the law does not apply to applicants seeking a position:

• Requiring a federal government background investigation or security clearance
• in law enforcement, fire protection, or the airline or aerospace industries
• as a first responder or corrections officer
• That is a safety-sensitive position for which impairment while working presents a substantial risk of death, if the employer identified the position as safety-sensitive before the applicant’s application for employment

Paid Family and Medical Leave

Colorado employers are already well aware of their new Paid Family and Medical Leave laws, as they were required to begin contributing to the benefit on January 1, 2023. Beginning January 1, 2024, employees may start using the benefit. Employees can use the paid leave up to 12 weeks in the application year for:

• Birth
• Adoption
• Foster care placement
• Care for a family member with a serious health condition
• Qualifying exigency related to a family member being on active duty
• Certain purposes related to employee or employee’s family member experiencing domestic violence, harassment, sexual assault, or stalking.

Employees may take an additional 4 weeks for a serious health condition related to pregnancy or childbirth complications.

New Pay Transparency Laws

New transparency laws around salary history and how salaries are shared in the workplace and in job postings are just one way legislation is pushing for a more open and accountable workplace. Several states have laws taking effect in  addressing this issue.

• Minnesota became the 29th state to prohibit employers from inquiring into an applicant’s salary history. (Taking effect January 1, 2024)
• Oregon created a private right of action for employees to seek damages for an employer’s violation of the salary history ban. (Goes into effect January 1, 2024)
• Colorado signed S 23-105, which expands notification requirements in Colorado’s Equal Pay for Equal Work Act beyond “promotional opportunities” to “job opportunities”, eliminating any arguments that a posting is not required because an opportunity is not promotional.

Hawaii enacted legislation that impacts how employers post open job positions. SB 1057 (taking effect January 1, 2024) will:

• Require most employers with 50 or more employees to disclose a position’s hourly rate or salary range in certain job postings
• amend existing equal pay requirements by prohibiting an employer from paying employees in any protected category of the state’s employment discrimination statute less than it pays other employees for “substantially similar work” instead of “equal work”.

OSHA Changes

Employers across various industries are bracing themselves for changes as OSHA publishes a final rule in July, 2023 amending its regulations to require certain employers in designated high-hazard industries to electronically submit injury and illness information to OSHA. Among the amendments, which take effect January 1, 2024, is a new requirement that employers with 100 or more employees in certain high-hazard industries to electronically submit information from their Form 300–Log of Work-Related Injuries and Illness, and Form 301-Injury and Illness Incident Report to OSHA once a year. These submissions are in addition to submission of form 300A-Summary of Work-Related Injuries and Illness. Click here to read the final rule as published.

According to OSHA, the “high-hazard” establishments include, (but are not limited to) manufacturing, grocery stores, agriculture construction, transportation, warehousing and storage, performing arts, and retail. A full list of the “high-hazard” industries can be found here. These requirements apply to establishments covered by Federal OSHA as well as establishments covered by states with their own occupational safety and health programs. 

Miscellaneous Changes

California  

The Industrial Welfare Commission is back.

IWC is the administrative agency that was established to regulate wages, hours, and working conditions in California. It’s job is to meet by January 1, 2024 to convene industry-specific wage boards and adopt orders specific to wages, hours, and working conditions in such industries.

Colorado

Colorado enacted the Job Application Fairness Act (JAFA), effective July 1, 2024, which prohibits employers from requesting or requiring that job applicants provide information related to “age, date of birth, or dates of attendance at, or graduation from an educational institution’ on initial employment applications.

Connecticut

Connecticut’s “An Act Expanding Workers’ Compensation Coverage for Post-Traumatic Stress Injuries for All Employees” which expands the definition of employee to allow nearly all workers (not just first responders) who suffer certain tragic qualifying events to claim workers’ compensation benefits, effective January 1, 2024.

Illinois

Governor J.B. Pritzker signed SB 2034, the Child Bereavement Leave Act (also known as Zachary’s Parent Protection Act. The new law requires employers with at least 50 employees provide between 6 and 12 weeks unpaid leave (depending on employer size) for employees who have lost a child due to suicide or homicide. The law becomes effective January 1, 2024.

Effective January 1, 2024 Illinois will require private employers to provide a minimum of 40 hours of annual paid leave to employees to be used for any reason. Employers can choose to frontload the leave on the first day or employment or a designated twelve month period or use an accrual method. Employers may not require any documentation or certification of the need to take leave. Employers may require up to seven days’ notice if the leave is foreseeable and set a reasonable minimum of increment of no less than two hours per day.

The Illinois DOL published Paid Leave for All Workers Act FAQ, which provides guidance on the state’s Paid Leave for All Workers Act. (Effective January 1, 2024).

In the dynamic landscape of ever-evolving employment laws, staying ahead of regulatory changes is vital for a business to thrive-it has become clear that compliance is not only a legal obligation, but a strategic one as well. By entrusting the responsibility of staying up to date on your HR and compliance needs to legal professionals well-versed in employment law, businesses can simplify complexities efficiently, saving both time and money. Beyond those benefits, outsourcing mitigates the risks associated with regulatory compliance, shielding organizations from potential legal repercussions.

To learn more about how Wagner, Falconer & Judd can support your business needs, reach out for a consultation.

The Employment Law team was recently asked to speak on a panel regarding Hot Topics in Compliance-and we ran out of time! 2023 has been a big year for the legal landscape in general, and in a post-pandemic world the workplace garnered a lot of focus. With some states introducing recreational marijuana, and others getting rid of non-competes, HR professionals are left figuring out how these changes affect them.

Paid Leave Laws

“Who qualifies for paid leave, and why is there so much confusion around this?”   There is confusion because who qualifies for paid leave varies depending on the law that we are talking about and the location where your employee works. For example, New York state and New York City each have a paid sick leave law, but they are different from one another. California and San Francisco each have paid sick leave laws, but again, they differ. And they differ in pretty significant ways sometimes. Employees in California can rack up up to 3 days of paid sick leave, while San Francisco employees can get 40 hours if their employer has 1-9 employees or 72 hours if the company has 10 or more. The amount of carryover, allowed uses for leave, and many other components of leave laws vary also.

Some jurisdictions also have paid family and medical leave-which allow employees to get paid leave for reasons similar to FMLA. Many operate as an insurance program where the employer and employee both pay a portion of wages into a state-run fund.

“What types of paid leave are mandated by law?” There are many types of paid leave mandated by law. The most common are paid sick leave laws and paid family and medical leave. However, some states require paid jury duty leave-including states you not think of like Nebraska, Georgia, and Tennessee.

Non-Competes & Severance Agreements

“There has been a lot of talk in the industry about the strength of non-competes and severance agreements. Where are we seeing challenges to these agreements, and how are they holding up in the courts?”   Non-compete agreements outright banned in California, North Dakota, Oklahoma, and most recently Minnesota. Also, there are many more states that place some kind of limitation on which employees can be subject to non-competes-most based on salary threshold, but some others only allow them against exempt employees. Where they are still allowed, courts tend to disfavor them as unreasonable restraints on free trade. So, where they are still allowed, the agreements must be narrowly tailored as to their geographic scope, duration, and the activity that is prohibited.

“Does a non-compete have strength if I agree to it, regardless of local legal support?” If a non-compete is banned in the jurisdiction where the employee works, even if the employee voluntarily agrees to the non-compete, it is unlikely to be worth the paper it’s written on. Besides, there are often better ways to protect a company’s legitimate business interests including with comprehensive non-solicitation agreements (both for customers/clients and employees) and robust confidentiality and trade secret protections.

“What states are in the ‘ones to watch’ column?”   Employers with operations or employees in New York should be watching what Governor Hochul might do. On June 20,2023, the New York State Assembly passed a bill that, if signed into law by Governor Hochul, will effectively ban future non-compete agreements.

Overtime

“Did the new overtime proposal get published?”  Yes! the DOL announced a notice of proposed rulemaking in August, that would restore and extend overtime protections to 3.6 million salaried workers. The proposed rule would guarantee overtime pay for most salaried workers earning less than $1,059 per week, about $55,00 per year.

“What do we anticipate this new change will include? How can small businesses, for example, prepare to meet new regulations?”   It’s unclear what will happen here since the last time the DOL tried to increase the salary threshold, the 2016 final rule to change the overtime thresholds was enjoined by the U.S. District Court for the Eastern District of Texas and was subsequently invalidated by that court.

Salary Transparency Laws

“What are the requirements for hiring practice? Is posting on a job listing enough?”  Generally, salary transparency laws require that employers disclose the hourly or salary compensation, or a range of hourly or salary compensation in all job postings. The risk is, of course, that by publishing salary ranges, it may expose underlying pay equity issues.

“Are employers required to post all jobs, eve those that have been filled already?”   Under Colorado’s Equal Pay for Equal Work Act, employers must announce to all employees all advancement opportunities and job openings. We wouldn’t recommend a “hollow” job posting where the job has already been filled, but companies often do to comply with the law.

“Asking about salary history in an interview-are we done with that?”  This one is a bona fide trend. Employers may not ask about an applicant’s pay history, nor can they rely on pay history to determine wages, This is the case in several states and some cities as well.

State Mandated Retirement

“What states have adopted these so far?”  When states require employers to provide their employees with retirement savings opportunities, it’s known as a state-mandated retirement. Businesses generally have two ways to comply with these laws-enroll their employees into a state-sponsored retirement program or sponsor a plan through the private market. States like Washington and Connecticut have mandated plans in place, while other states have passed them into law, ut have yet to fully implement them.

“Who is eligible”   It depends, but for example, per Connecticut’s MyCTSavings Program, employers with five or more employees, of whom have been paid more than $5,000 in the calendar year. Employees are auto-enrolled and contribute 3% after 120 days for employees who are 19 or older.

“How might this affect a payroll provider?”  You may need to make mandatory deductions from an employee’s pay and/or contributes to a state-run fund on a periodic basis.

“Are there requirements for employee match or other employer contributions above standard payroll?”  It seems like at this time, there is no cost to employers and that the accounts are funded solely through employee contributions.

“Do employees have to participate?”  Typically, participation is optional. For example, based on Connecticut’s plan, employees are automatically enrolled if they are 19 years old or older, but they can choose to opt out if they would like.

Staying on top of ever-changing employment laws is a full-time job. Let us help you out with that. Through our service hotline, you can ask an attorney or HR professional all your pressing employment law questions.

While a full-blown recession seems to remain at bay, inflation and raising interests rates have people, and companies, tightening their pursestrings.

When times are tough, focusing on a few key things can help you weather the storm and come out the otherside. With over nine decades of guiding companies through legal matters, the attorneys at WFJ agree on three very important ways to keep collecting from their customers no matter the economic climate:

1. Be efficient

2. Be resilient

3. Be adaptable

Efficiency

Invest in technology that simplifies your process and keeps your team on the same page. ERP and CRM systems can streamline your accounting and collection process so you aren’t wasting valuable resources looking for payments or tracking down customer data. Another way to tighten up your systems is to pay close attention to the language in your credit applications, security interests, personal guarantees, etc. This is a great time to reach out to your in-house counsel or attorney to review your documents and paperwork-looking for any looming deadlines, opportunities for improved status, or ambiguous language. “Good paper” works for you, not against you.

Resiliency

Staying up-to-date on new laws and deadlines is a full time job-and having a firm understanding of your lien and bond rights is one of the best ways to secure your financial interests and protect your money and capital assets. Remaining diligent in reviewing your contracts, getting paperwork from clients, and staying on top of your accounts receivables department will also ease tensions if money gets tight.

Adaptability

Building a team that communicates well and can easily jump in and pivot when something isn’t working is vital to protecting resources-and money- when times are tough. Providing education and resources like legal support hotlines can help your employees feel empowered in their decisions and capability to tackle whatever issues might arise. Having the ability to outsource in-house counsel for your financial matters could make the difference on how your business survives a tough economic run.

As you navigate complicated financial times, remember to put tools in place you can leverage to avoid defaults, recover money, and mitigate risk. Watch trends, and plan accordingly. Most importantly, remember that the experienced team at Wagner, Falconer & Judd is here to guide you through all your complex legal issues. Reach out to us today for a consultation with a team member.