– NEW UPDATES –
FEDERAL
Department of Labor Announces Final Rule on Worker Classification Under the Fair Labor Standards Act
The Department of Labor (DOL) released its highly anticipated final rule regarding the determination of employee or independent contractor status under the Fair Labor Standards Act (FLSA) in the Federal Register on January 10, 2024. This new rule supersedes the existing assessment, which centers on two fundamental factors: control and the potential for profit or loss. Instead, it introduces a comprehensive “totality of the circumstances” evaluation, encompassing six key factors:
- The extent to which the work performed is an integral part of the employer’s business.
- The worker’s opportunity for profit or loss based on their managerial expertise.
- The relative investments made by both the employer and the worker.
- Whether the work necessitates special skills and initiative.
- The permanency of the working relationship.
- The level of control exercised or retained by the employer.
The final rule is scheduled to take effect on March 11, 2024. The DOL has posted FAQs and additional information on its website.
Department of Justice and Department of Homeland Security Issue Form I-9/E-Verify Fact Sheet
The Department of Justice (DOJ) and the Department of Homeland Security (DHS) have jointly issued a fact sheet offering guidance to employers on ensuring compliance and preventing unlawful discrimination and other violations while utilizing commercial software programs for tasks such as electronic completion, modification, or retention of Form I-9 or the creation of E-Verify cases. This informative fact sheet outlines prevalent errors, crucial points to keep in mind, recommended actions, and directs employers to additional resources for further information.
Child Labor Enforcement Field Assistance Bulletin
The Department of Labor (DOL) has released a Field Assistance Bulletin (FAB 2023-4) outlining revisions to the agency’s approach to child labor enforcement. Effective November 28, 2023, civil monetary penalties for nonserious and noninjury violations of the child labor provisions in the Fair Labor Standards Act (FLSA) will now be assessed on a per-violation basis rather than per affected child. The fines can vary, with potential penalties reaching up to $15,138 per violation, contingent on the severity of the infraction and the size of the business. This change in policy is a component of the DOL’s Strategic Enforcement Initiative on Child Labor, which was initiated last February.
CALIFORNIA
Updated Wage Theft Notice Requirements
Due to the enactment of SB616 and AB 636, modifications have been made to the state’s existing wage theft notice. This notice, which is mandatory for distribution to all employees upon hiring and must be provided in the language commonly used for employment-related communication, has been updated to include essential information regarding the state’s expanded paid sick leave policy and the circumstances involving federal or state emergency or disaster declarations.
Furthermore, commencing on March 14, 2024, AB636 mandates that employers of H-2A agricultural workers also incorporate a separate section in Spanish, featuring unique information that delineates additional rights and protections afforded to agricultural employees under California’s laws and regulations. The Labor Commissioner will develop and make available templates on its website to facilitate compliance with these requirements.
New Paid Sick Leave FAQs
The Department of Industrial Relations (DIR) has revised its Frequently Asked Questions (FAQs) on paid sick leave to incorporate the latest amendments to the state’s sick leave regulations, which took effect on January 1, 2024. California’s paid sick leave entitlement has been extended from three to five days. The updated FAQ provides guidance on adjusting annual sick leave limits to align with the new five-day (40-hour) requirement, addressing frontloading strategies, and navigating calculations when using a benefit year instead of the calendar year.
San Diego, CA – State & Local Paid Sick Leave Guidance
The Office of Labor Standards and Enforcement has issued new guidelines outlining compliance with both the city’s earned sick leave ordinance and the recent modifications (CA S 616) to the state’s paid sick leave legislation. Starting on January 1, 2024, CA S 616 mandates that employers provide employees with 40 hours of paid sick leave, a requirement already in place under San Diego law. In cases where local regulations are silent or less generous, the guidance advises employers to adhere to state law.
The guidance also includes a comprehensive chart that highlights disparities in requirements pertaining to rehiring, advanced lending of sick leave hours, providing advance notice, and payment deadlines.
This newsletter shares information on legislative and regulatory developments that may affect your business. Consultation with your Human Resources Professional, and in some cases legal counsel, is recommended to address any questions or concerns you may have that are related to these developments. As always, it is your obligation as the employer to ensure your compliance with applicable laws and regulations.. Please contact our team at (888) 356-4937 or info@pprclaw.com with any questions regarding state-specific guidance or application to your workplace.
