California

Paid Sick Leave (SB 616)

California’s new paid sick leave law, Senate bill (SB) 616, significantly expands California’s existing paid sick leave law (i.e., the Healthy Workplaces, Healthy Families Act of 2014).

Paid sick leave entitlement

Under SB 616, an employee is now entitled to five days or forty hours of paid sick leave. Previously, employees were entitled to three days or twenty-four hours.

Accrual or frontload

Employers may still allow employees to accrue paid sick leave at the rate of one hour for every thirty hours worked. Regardless of the accrual rate, employees must be able to accrue forty hours by their 200th day of employment. Additionally, employees must be able to accrue at least twenty-four hours of paid sick leave by their 120th day of employment. Alternatively, employers may still “frontload” the entire amount of paid sick leave.

Increased annual usage cap

Employers may limit an employee’s annual use of paid sick leave to forty hours. Previously, an employee’s annual use could be capped at twenty-four hours.

Increased accrual cap

Employers may cap an employee’s paid sick leave accrual at eighty hours or ten days; previously, the accrual cap was forty-eight hours or six days.

California Minimum Wage Increase for 2024

Starting January 1, 2024, all employees must be paid at least $16 per hour, outside of any local city or county minimum wage requirements which may be higher. Employers need to review their employees’ pay to see who this may affect and have a plan in place for how to properly execute this increase.

It is important to note that since California’s salary threshold is based on the state’s minimum wage, any increase in the latter must result in an increase to the minimum salary threshold. In 2023, the minimum salary threshold for exempt employees in California was $64,480.  With the increase to the minimum wage of 50₵ per hour the salary threshold will adjust by $1 per hour, or $2,080 annually, resulting in a new salary threshold of $66,560. Salaried employees making between $64,480 and $66,560 will need to either receive a raise or be moved to nonexempt status come January 1, 2024.

With all this information it is necessary to discuss the concept of wage compression. If only those at the bottom of your compensation structure receive a wage increase, the delta between them and employees in higher positions becomes smaller, which results in a compression of your wages. No longer does a higher position warrant the pay increase in once did. Therefore, increases in minimum wage, and subsequently the minimum salary threshold, shouldn’t just affect those at the bottom. Positions throughout the organization may need adjustments to ensure proper motivation and pay equity, and to ensure positions are properly paid based on their general worth to the organization.

Local Minimum Wage Updates

• See Guardian HR’s previous LAWlert 

California Noncompete Agreements

Effective January 1, 2024, two new laws - SB 699 and AB 1076 - will:

• Codify existing case law to provide that any noncompete agreement or clause, no matter how narrowly tailored, is null and void unless it meets one of the narrow statutory exemptions, such as when an owner sells their business;
• Clarify that noncompete agreements are unenforceable, regardless of where and when the contract was signed, and whether or not work is performed outside of the state;
• Require employers by February 14, 2024, to notify current and former employees employed after January 1, 2022, who were previously subject to a noncompete agreement that it is no longer in effect; and
• Allow employees, former employees, or prospective employees to file a private lawsuit seeking to stop an employer from using noncompete agreements and/or recover damages that resulted from a noncompete agreement.

Reproductive Leave Loss for Employees [SB 848]

SB 848allows eligible employees to take up to five days of unpaid leave following a “reproductive loss event.” Employees experiencing a reproductive loss and wishing to take a leave must be employed with an employer with at least five employees for at least thirty days prior to the commencement of the leave. The law defines a “reproductive loss event” as the day or, for a multiple-day event, the final day of a failed adoption, failed surrogacy, miscarriage, stillbirth, or an unsuccessful assisted reproduction.

Workplace Violence Prevention Program (SB 553)

Starting July 1, 2024, California law will require employers to adopt comprehensive workplace violence prevention plans, either as part of their injury and illness prevention programs or as a separate document. SB 553 imposes specific requirements on employers, including:

• recording incidents or threats in a violent incident log;
• providing training to all employees; and
• maintaining records related to a workplace violence prevention plan.

Arbitration Enforcement (SB 365)

Currently, trial court proceedings are stayed until an appeal has been fully briefed and is ready to be heard by the appellate court (i.e., until the appeal is “perfected”). There are very limited exceptions to this rule. SB 365 amends California’s Code of Civil Procedure (CCP) to state that: “the perfecting of such an appeal shall not automatically stay any proceedings in the trial court during the pendency of the appeal.”

Employers will see this new law come into play when a court denies a petition to compel arbitration and the employer appeals that decision. SB 365 will allow litigation to continue during such an appeal.

Noncompete Agreements and Notice Requirements (AB 1076, SB 699)

SB 699 prohibits employers from entering into or attempting to enforce noncompete agreements with employees. The new law establishes that noncompete agreements are void in California regardless of where the employee worked when the employee entered into he agreement and/or where the employee signed the agreement.

Additionally, AB 1076 requires employers to notify current employees and former employees (employed after January 1, 2022) in writing by February 14,  2024, that any noncompete agreements they may have signed are void.

Off-Duty Cannabis Use and Drug Test Results (AB 2188, SB 700)

California has two new laws going into effect related to cannabis use and drug test results. The first is AB 2188, which Governor Newsom signed in 2022 and will be effective January 1, 2024. AB 2188 makes it unlawful for an employer to discriminate against individuals in hiring, termination, or any term or condition of employment, or to otherwise penalize an individual for cannabis use or drug test results under certain circumstances. Specifically, the law prohibits employers from taking these actions for either: (1) off-duty cannabis use away from the workplace; or (2) the results of an employer-required drug screening test that has found individuals to have nonpsychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids.

AB 2188 does not allow employees to possess or use marijuana on the job, nor does it interfere with an employer’s right to maintain a drug-free and alcohol-free workplace. An employer may still refuse to hire an applicant based on scientifically valid pre-employment drug screening conducted through methods that do not screen for nonpsychoactive cannabis metabolites. There are also certain exceptions to AB 2188 such as for employees in the building and construction trades.

Piggybacking off AB 2188, SB 700 expands California’s Fair Employment and Housing Act to protect applicants from discrimination based on prior cannabis use, with some exceptions. Specifically, SB 700 prohibits employers from requesting information from an applicant for employment relating to the applicant’s prior use of cannabis. Additionally, when an employer gathers criminal history information regarding an applicant’s prior cannabis use, SB 700 makes it unlawful for employers to use such information. There are exceptions for situations in which the employer is permitted to consider or inquire about that information under state or federal law.

New Industry-Specific Laws

Increased Minimum Wage for Health Care Workers (SB 525)

This bill enacts a multi-tiered statewide minimum wage schedule for health care workers employed by certain covered health care facilities. Under this new law, “covered health facility” covers nearly all health care facilities except those owned, controlled, or operated by the California Department of State Hospitals, tribal clinics exempt from licensure, and outpatient settings operated by federally recognized tribes. “Covered health care employee” covers a broad range of employees, from physicians and nurses to janitors and clerical workers.

Fast Food Minimum Wage Increase to $20/hour (AB 1228)

This new bill repeals the FAST Food Accountability and Standards Recovery Act and replaces it with a $20 per hour minimum wage for fast food workers, among other provisions. Under this law, the minimum wage for California fast food restaurant employees will increase to $20 per hour starting April 1, 2024. This minimum wage will increase annually through 2029. AB 1228 also establishes the Fast Food Council which, starting in 2024, likely will make recommendations regarding other work place conditions.

Food Handler Cards (SB 476)

The California Health and Safety Code currently requires certain workers to obtain a food handler card within 30 days of their hire date and to maintain this card throughout their employment as a food handler. SB 476 requires employers to cover any cost associated with obtaining a food handler card. In addition to the certification program cost, this obligation includes payment for employees’ time required to complete training, the cost of testing, and any element required for the completion of the certification program.

Colorado

Colorado Modifies Pay Transparency Requirements

Effective January 1, 2024, Colorado has amended the requirements for pay transparency and notification of available internal opportunities and career progressions.

Pay Transparency

Colorado employers must include the following information in the notification of each job opportunity:

• The hourly or salary compensation (or a range);
• A general description of the benefits and other compensation for the job opportunity; and
• The date the application window is anticipated to close.

A job opportunity means a current or anticipated vacancy for which the employer is considering one or more candidates, interviewing one or more candidates, or that the employer posts externally. A job opportunity does not include career development or career progression.

A vacancy is an open position, whether newly created or as a result of a vacated position.

Career development means a change to an employee's terms of compensation, benefits, full-time or part-time status, duties or access to further advancement in order to update the employee's job title or compensate the employee to reflect work performed or contributions already made by the employee.

Notice of Internal Opportunities and Career Progression

Colorado employers must make reasonable efforts to announce, post or otherwise notify all employees of each internal job opportunity on the same calendar day and before the employer makes a selection decision. Previously, this notification requirement applied only to promotion opportunities.

Through July 1, 2029, if an employer has no physical facilities in Colorado and has fewer than 15 employees working in Colorado, all of whom work remotely, the employer is only required to provide notice of remote job opportunities.

Within 30 calendar days after a candidate who is selected for a job opportunity begins working in the position, an employer must make reasonable efforts to announce, post or otherwise communicate the following information to, at a minimum, the employees with whom the selected candidate is expected to work regularly:

• The selected candidate's name;
• The selected candidate's former job title, if already employed by the employer;
• The selected candidate's new job title; and
• Information on how employees may demonstrate interest in similar job opportunities in the future, including information on individuals or departments to whom employees can express interest regarding similar job opportunities.

The employer need not identify a selected candidate in a way that violates the individual's privacy rights under federal, state or local law or would place the candidate's health or safety at risk.

For positions with career progressions, an employer must disclose the requirements for career progression to all eligible employees, along with each position's:

• Terms of compensation;
• Benefits;
• Full-time or part-time status;
• Duties; and
• Access to further advancement.

Career progression means a regular or automatic movement from one position to another based on time in a specific role or other objective metrics.

Colorado Redefines Paid Family and Medical Leave Wages, Adds Contributions Nonpayment Penalty

Effective January 1, 2024, amended paid family and medical leave (PFML) rules simplify the definition of wages for PFML contribution calculation purposes. Instead of using the same definition used for unemployment insurance, the definition is changed to pre-tax gross wages.  7 CCR 1107-1, Rule 1.2(9) as amended August 2023 and subsequently updated by FAMLI Wages Update: Gross Wages Will Include Pre-Tax Amounts (September 14, 2023).

Examples of kinds of payments that are considered pre-tax gross wages include:

• Salary;
• Hourly wage;
• Overtime;
• Tips;
• Bonuses;
• Commissions;
• Piece rate;
• Employer-provided paid leave (PTO, sick, vacation, etc.);
• Disability benefits paid by the employer and not by a third-party;
• Parental leave paid by the employer and not by a third-party; and
• The value of lodging or meals used as a credit toward the minimum wage.

Examples of kinds of payments that are not considered pre-tax gross wages include:

• Severance payments;
• Employer contributions to, or payouts from, a deferred compensation plan;
• Profit-sharing;
• Pensions or retirement plan payments;
• Expense reimbursements (mileage, travel, moving, per diems, etc.); and
• Nonmonetary payments (except lodging or meals to the extent they are used as a credit toward the minimum wage).

For example, if an employee is paid a $1,000 weekly salary and chooses to have their $100 health insurance contribution deducted on a pre-tax basis, their pre-tax gross wage is $1,000. In addition, the maximum fine for nonpayment of contributions by an employer (or individual) is $50 per individual whose premium contributions are not timely paid.  7 CCR 1107-1, Rule 1.4(9) as added August 2023 and subsequently updated by FAMLI Wages Update: Gross Wages Will Include Pre-Tax Amounts (September 14, 2023).

Colorado Paid Family and Medical Leave Benefits Begin

Under the Paid Family and Medical Leave (PFML) Insurance Act, eligible employees may access paid leave benefits starting January 1, 2024. Paid leave benefits are available:

• For the employee's own serious health condition;
• To care for a family member with a serious health condition;
• To care for a new child during the first year after their birth, adoption or foster care placement;
• For a qualifying exigency leave; or
• For safe leave.

Employees may qualify for up to 12 weeks of PFML per benefit year, although an employee may take a total of 16 weeks of leave under certain circumstances.

An employer may not take retaliatory personnel action or discriminate against an employee because they exercised their rights, including taking leave, under this law.

PFML benefits are funded through employer and employee premium contributions, beginning January 1, 2023.

Colorado Lowers Overtime Thresholds for Agricultural Employees

Effective January 1, 2024, the weekly overtime thresholds for agricultural employees are lowered from 60 hours to:

• 56 hours for up to 22 peak workweeks and 48 hours otherwise for Highly Seasonal Employers;
• 54 hours for Non-Highly Seasonal Employers; and
• 56 hours for Small Employers.

Colorado Minimum Salary for Executive, Administrative and Professional Employees Increases to $1,057.69 per Week

Effective January 1, 2024, the minimum salary for executive / supervisory employees, administrative employees, professional employees and other employees exempt from the minimum wage and overtime provisions of the Colorado Overtime and Minimum Pay Standards (COMPS) Order increases from $961.54 per week to $1,057.69 per week.

The minimum hourly wage for computer employees and the minimum annual salary for highly compensated employees are adjusted for inflation as measured by the Consumer Price Index used for Colorado.

See: 7 CCR 1103-1(2.5).

Colorado Minimum Wage Increases to $14.42

Effective January 1, 2024, the minimum wage in Colorado increases from $13.65 per hour to $14.42 per hour under an annual inflation adjustment required by the state constitution.  The adjustment is based on the change in the Consumer Price Index for All Urban Consumers (CPI-U), All Items, for the Denver-Boulder-Greeley combined metropolitan statistical area from the first half of 2022 to the first half of 2023.

The minimum direct cash wage for tipped employees increases from $10.63 to $11.40.

Colorado Local Minimum Wage Updates

Denver, Colorado, Minimum Wage Is Adjusted for Inflation

Effective January 1, 2024, the minimum wage in Denver, Colorado increases from $17.29 to $18.29 per hour. The increase is based on the 5.8% increase in the Consumer Price Index (Urban Wage Earners and Clerical Workers, Denver-Aurora-Lakewood) for 2023.

Minimum wage for tipped food and beverage workers will also be raised from $14.27 to $15.27 per hour, as long as the worker earns at least $3.02 in actual tips.

Edgewater, Colorado, Minimum Wage Takes Effect at $15.02

Effective January 1, 2024, the minimum wage in Edgewater, Colorado, takes effect at $15.02 per hour.

The minimum direct cash wage for tipped employees is $12.00 per hour.

Colorado Wage Theft Enforcement Fund for Employee Reimbursements Takes Effect

Effective April 1, 2024, if an employer commits wage theft and fails to pay or underpays wages or other compensation owed to an employee within the time required, the Department of Labor (DOL) may directly reimburse the employee from the Wage Theft Enforcement Fund maintained by the state Treasurer. Once the employee is reimbursed from the Fund, they may not recover that payment from the employer. The DOL will continue to pursue payment from the employer and credit the Fund for the money recovered.

The DOL is required to issue rules by December 29, 2023, providing the procedures and criteria for employees to submit information and request payment from the Fund.

Colorado Drug Use/Possession

Colorado Proposition 122 decriminalized the use or possession of certain natural psychedelic medicines, including psilocybin and psilocin, the psychoactive chemicals in psychedelic mushrooms, but does not require employers to permit or accommodate the use of natural psychedelic medicines in the workplace.

Colorado Restricts Age-Related Inquiries

Effective July 1, 2024, the Colorado Job Application Fairness Act prohibits employers from requesting age-related information on job applications. Employers may ask employees to verify compliance with age requirements implemented for safety reasons or mandated by certain federal, state or local laws.

Although employers do not have to comply with this law until July 1, 2024, the law was passed with an effective date of August 7, 2023.

Colorado Overtime and Minimum Pay Standards (COMPS) Order #39 Modifications Take Effect

Expected January 1, 2024, the Colorado Overtime and Minimum Pay Standards (COMPS) Order #39 takes effect. Among other things, it:

• Updates the definition of a tipped employee for whom an employer may claim a minimum wage tip credit from an employee who receives more than $30 a month in tips to an employee who receives more than $1.55 per hour in tips over a workweek or other pay period permitted by Colorado law;
• Narrows employee eligibility for tip pools to include only those employees who perform significant customer-service functions in contact with patrons;
• Provides that certain activities (or combination of multiple activities consecutively) may be excluded from compensable working time if they are one minute or less and other conditions are met; and
• Adds tips to the types of pay that may be excluded from the regular rate of pay when computing overtime.

Hawaii

Hawaii’s Equial Pay/Wage Transparency

Expands Hawaii’s existing equal pay requirements by prohibiting an employer from paying employees in “any protected category” listed in Hawaii’s employment discrimination statute less than it pays other employees in the establishment for “substantially similar work.” Also requires that certain job listings disclose the hourly rate or salary range that “reasonably reflects the actual expected compensation” for the position being posted.

Illinois

Commuter Benefits

Requires employers with at least 50 employees in Chicago and other towns and counties, to allow employees to use pre-tax dollars for the purchase of a transit pass through payroll deductions.

Time off From Work

Employers with at least 50 full-time employees in Illinois are required to provide unpaid bereavement leave to an employee who has lost a child by suicide or homicide. The amount of the leave depends on the size of the employer.

Also, employers with at least 50 full-time employees in Illinois are required to provide unpaid bereavement leave to an employee who has lost a child by suicide or homicide. The amount of the leave depends on the size of the employer.

Also employers with businesses with 51 or more employees are now required to allow employees to use up to ten days of paid leave in a 12-month period for organ donation.

Paid Leave

SB 208 creates the Paid Leave for All Workers to permit employees to accrue 40 hours of paid leave per year to use for any purpose.

Chicago Paid Leave/Paid Sick and Safe Leave

Employees will accrue one hour of Paid Sick Leave for every 40 hours worked and may use up to 40 hours of Paid Leave per year. Depending on employer size, Paid Leave may need to be paid out on separation of employment.

Minnesota

Minnesota Earned Sick And Safe Time (ESST)

The new Earned Sick and Safe Time (ESST) law requires employers to provide employees one hour of paid time off for every 30 hours worked up to a maximum of 48 hours each year when an employee is sick, to care for a sick family member, or to seek assistance if an employee or their family member has experienced domestic abuse.

Bloomington / St. Paul Earned Sick and Safe Time (ESST)

Both cities will amend their established Paid ESST to align with the new MN ESST.

Ohio

Pay History

Ohio Employers with 15 or more employees are prohibited from asking about or screening job applicants based on their current or prior wages, benefits, or other compensation, or salary histories.

Oregon

Oregon Minimum Wage Is Adjusted for Inflation

Effective July 1, 2024, the minimum wage in Oregon is adjusted for inflation based on the increase, if any, in the US City Average Consumer Price Index for All Urban Consumers for All Items from March 2023 to March 2024.

The minimum wage for employers located in rural counties is $1.00 less than the minimum wage for employers located in nonrural counties (except in the Portland area).

Local Minimum Wage Updates

Portland, Oregon, Minimum Wage Is Adjusted for Inflation

Effective July 1, 2024, the minimum wage for employers located in the area of Portland, Oregon, is adjusted for inflation based on the increase, if any, in the US City Average Consumer Price Index for All Urban Consumers for All Items from March 2023 to March 2024. The Portland minimum wage is $1.25 more than the minimum wage for employers located in nonrural counties.

Oregon Adds Definition of One-Year Period to the Family Leave Act

Effective July 1, 2024, Oregon has amended the Oregon Family Leave Act (OFLA) to add a definition of one-year period for purposes of determining the amount of leave available to an eligible employee.

Although employers do not have to comply with the change until July 1, 2024, the amendment passed with an effective date of June 7, 2023.

Definition of one-year period. For purposes of determining the amount of leave available to an eligible employee, one-year period means:

• A period of 52 consecutive weeks beginning on the Sunday immediately preceding the date when the family leave begins; or
• A consecutive 12-month period (e.g., a calendar year beginning on January 1 and ending on December 31; a fiscal year; the 12-month period that begins or ends on the date when the employee uses any period of family leave).

Additional amendments related to the definition of family member, reinstatement requirements and the OFLA's interaction with other family and medical leave laws are effective September 3, 2023.

Oregon Permits Civil Actions Against Employers Seeking Salary History

Under Oregon's Equal Pay Act of 2017, effective January 1, 2024, an individual may file a civil action against an employer who unlawfully seeks to obtain salary history.

Oregon Shortens Unclaimed Wages Abandonment Period

Effective January 1, 2024, the period for which wages must remain unclaimed before they are considered abandoned property is shortened from three years to more than one year.

Oregon Consumer Privacy Act Takes Effect

The Oregon Consumer Privacy Act (OCPA or Act), effective July 1, 2024, gives Oregon consumers privacy rights with respect to their personal data and establishes certain requirements and limitations for covered businesses.

The Act's protections do not extend to:

• A person acting in a commercial or employment context; or
• Information processed or maintained in connection with a person's employment or application for employment, ownership of or function as a director or officer of a business, contractual relationship with a business, receipt of employment benefits, or emergency contact information.

Accordingly, the Act does not apply to employment-related data.

Oregon Requires New Hire Reporting of Independent Contractors

Effective January 1, 2024, an employer is required to report independent contractors to the ODCS within the first 20 days of work if they:

• Are expected to perform services for the employer for more than 20 days; or
• Are rehired by the same employer, and have not performed services for that employer in the past 60 days.

An employer may satisfy reporting requirements by submitting to the ODCS a copy of the independent contractor's completed:

• Form W-9;
• Form W-4; or
• Other ODCS-approved equivalent form.

Oregon Amends Workers' Compensation Rules Regarding Temporary Disability Benefits and Overpayments

Applying to claims existing or arising on or after January 1, 2024, Oregon amends its workers' compensation rules to require that an insurer or self-insured employer only end temporary disability benefits after written notice has been mailed or delivered to the worker and the worker's attorney, if the worker is represented. The notice must state the reason that temporary disability benefits are no longer payable.

The amendments also make changes to the process of retroactively authorizing temporary disability by a worker's attending physician or nurse practitioner.

In addition, the amendments provide that an insurer or self-insured employer may not recover an overpayment that exceeds a certain amount or after a certain time period from a worker's permanent partial disability compensation.

The amendments take effect January 1, 2023.

Tennessee

Family/Medical Leave Insurance

Tennessee will now provide the option to employers to issue insurance policies to employees for the purpose of providing family leave benefits.

Texas

Texas Workplace Violence Prevention Plan and Policy Deadline Takes Effect for Health Care Facilities

By September 1, 2024, Texas requires certain health care facilities to adopt, implement and enforce a written workplace violence prevention policy and a written workplace violence prevention plan.

Effective September 1, 2023, Texas required these facilities to establish workplace violence prevention committees and to respond to incidents of workplace violence in specified ways.  A facility is:

• A home and community support services agency licensed to provide home health services that employs at least two registered nurses;
• A hospital;
• A nursing facility that employs at least two registered nurses;
• An ambulatory surgical center;
• A freestanding emergency medical care facility; or
• A mental hospital.

The committee must include at least one registered nurse who provides direct care to patients of the facility; one licensed physician who provides direct care to patients of the facility, unless the facility does not have a physician on staff; and one facility employee who provides security services for the facility, if any and if practicable.

A health care system that owns or operates more than one facility may establish a single committee for all of the system's facilities if the committee develops a violence prevention plan for implementation at each facility in the system and data related to violence prevention remains distinctly identifiable for each facility in the system.

Workplace violence prevention policy

By September 1, 2024, a covered facility must adopt, implement and enforce a written workplace violence prevention policy to protect health care providers and employees from violent behavior and threats of violent behavior occurring at the facility. The policy must:

• Require the facility to provide significant consideration of the violence prevention plan recommended by the facility's committee and evaluate any existing facility violence prevention plan;
• Encourage health care providers and employees of the facility to provide confidential information on workplace violence to the committee;
• Include a process to protect from retaliation facility health care providers or employees who provide information to the committee; and
• Comply with Texas Health and Human Services Commission (HHSC) rules relating to workplace violence.

Workplace violence prevention plan

Also by September 1, 2024, a covered facility must adopt, implement and enforce a written workplace violence prevention plan. The plan must:

• Be based on the practice setting;
• Adopt a definition of workplace violence that includes:
  • An act or threat of physical force against a health care provider or employee that results in, or is likely to result in, physical injury or psychological trauma; and
  • An incident involving the use of a firearm or other dangerous weapon, regardless of whether a health care provider or employee is injured by the weapon;
• Require the facility to provide, at least annually, workplace violence prevention training or education to the facility's health care providers and employees who provide direct patient care;
  • This training or education may be included in other required training or education;
• Prescribe a system for responding to and investigating violent incidents or potentially violent incidents at the facility;
• Address physical security and safety;
• Require the facility to solicit information from health care providers and employees when developing and implementing a workplace violence prevention plan;
• Allow health care providers and employees to report incidents of workplace violence through the facility's existing occurrence reporting systems; and
• Require the facility to adjust patient care assignments, to the extent practicable, to prevent a health care provider or employee of the facility from treating or providing services to a patient who has intentionally physically abused or threatened the provider or employee.

The written plan may satisfy these requirements by referencing other internal facility policies and documents.

At least annually, the committee must review and evaluate the workplace violence prevention plan and report the results of the evaluation to the governing body of the facility.

Each facility must make available, on request, an electronic or printed copy of the facility's workplace violence prevention plan to each health care provider or employee of the facility. If the committee determines the plan contains information that would pose a security threat if made public, it may redact that information before providing the plan.

Responding to an incident of workplace violence

Following an incident of workplace violence, a facility must, at a minimum, offer immediate post-incident services, including any necessary acute medical treatment for each health care provider or employee of the facility who is directly involved in the incident.

A facility may not discourage a health care provider or employee from exercising their right to contact or file a report with law enforcement regarding an incident of workplace violence. Additionally, it may not discipline, discriminate against or retaliate against an individual who reports an incident of workplace violence in good faith or who advises a health care provider or employee of their right to report an incident of workplace violence.

Texas Data Privacy and Security Act

Effective July 1, 2024, the Texas Data Privacy and Security Act (TDPSA) gives Texas consumers privacy rights with respect to their personal data and establishes certain requirements and limitations for covered businesses.

The Act's protections do not extend to:

• Individuals acting in a commercial or employment context; or
• Data processed or maintained in the course of a person applying to or acting as an employee, agent or independent contractor; as emergency contact information; or to administer benefits.

Accordingly, the Act does not apply to employment-related data.

Washington

Washington Protects Off-Duty Marijuana Use

Effective January 1, 2024, Washington prohibits employers from discriminating against a person in the initial hiring process for employment if the discrimination is based on the person's off-duty use of cannabis or positive preemployment drug test results showing nonpsychoactive cannabis metabolites in an applicant's hair, blood, urine or other bodily fluids.

The law does not prohibit employers from basing initial hiring decisions on scientifically valid drug screening conducted through methods that do not screen for nonpsychoactive cannabis metabolites. However, the law contains no explanation of what is meant by "nonpsychoactive cannabis metabolites" and there are presently no drug tests that can distinguish between psychoactive metabolites and nonpsychoactive metabolites. If no such drug tests are developed by January 1, 2024, Washington employers will not be able to test for marijuana on preemployment drug tests.

Testing for marijuana will continue to be allowed in the following situations:

• When testing for purposes other than preemployment testing, such as post-accident and reasonable suspicion; and
• When state or federal law requires the applicant to be tested or dictates the way tests are administered, as a condition of employment, receiving federal funding or federal-licensing-related benefits, or as required by a federal contract.

Additionally, employers may continue to require an applicant to be tested for a spectrum of controlled substances, which may include cannabis, as long as the cannabis results are not provided to the employer.

The law does not apply to applicants seeking:

• Positions requiring a federal government background investigation or security clearance;
• Certain law enforcement positions;
• Certain fire department positions;
• First responder (including 911 dispatchers) positions;
• Corrections officer positions;
• Positions in the airline or aerospace industries;
• Safety-sensitive positions for which impairment while working presents a substantial risk of death. Such safety-sensitive positions must be identified by the employer prior to the applicant's application for employment.

The law does not affect the rights or obligations of an employer to maintain a drug and alcohol free workplace or any other rights or obligations of an employer required by federal law or regulation.

Washington Minimum Wage Increases to $16.28

Effective January 1, 2024, the minimum wage in Washington increases from $15.74 per hour to $16.28 per hour under an annual inflation adjustment required by the state statute.  The adjustment is based on the 3.4% change in the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W) from August 2022 to August 2023, rounded to the nearest five cents.

Local Minimum Wage Updates

Seattle, Washington, Minimum Wage Increases

Effective January 1, 2024, the minimum wage in Seattle for Schedule 2 Employers  (500 or Fewer Employees) increases from $16.50 per hour to $17.25 per hour.

The minimum wage for Schedule 1 Employers  (More Than 500 Employees)  and the hourly minimum compensation for Schedule 2 Employers increase from $18.69 per hour to $19.97 per hour under an annual inflation adjustment required by the city code. The increase is based on the change in the Consumer Price Index for Urban Wage Earners and Clerical Workers between September 2022 and September 2023.

SeaTac, Washington, Minimum Wage Increases

The minimum wage will be raised from $19.06 to $19.71 per hour on Jan. 1, 2024 for Hospitality and Transportation Industry Employers.

Covered employers include:

• Hotels with 100 or more guest rooms and 30 or more workers;
• Institutional foodservice or retail operations employing 10 or more nonmanagerial, nonsupervisory employees; and
• Transportation employers other than certificated air carriers that provide services such as curbside check-in, wheelchair escort services and more.

Tukwila, Washington, Minimum Wage Increases

Effective July 1, 2024, minimum wage for large employers remains at $20.29 and minimum wage for midsize employers increases from $18.29 to $19.29.

A Large Employer means an employer that employs more than 500 employees (regardless of where those employees are employed) and all franchisees associated with a franchisor or a network of franchises with franchisees that employ more than 500 employees in aggregate.

Other covered employers (referred to as Midsize Employers in the administrative rule) are those that either:

• Employ at least 15 but fewer than 500 employees, regardless of where those employees are employed; or
• Have more than $2 million in gross revenue generated from sales made, services performed, and other business that occur in the City of Tukwila and do not fit within the definition of a Large Employer.

Small employers that both a) employ fewer than 15 employees regardless of where they are employed; and b) have annual gross revenue of less than $2 million in the City of Tukwila are not covered under the ordinance.

Tukwila Tip Credit

Tips and service charges paid to an employee are in addition to, and may not count towards, the employee' s hourly minimum wage.

An employer must pay its employees all tips and gratuities; and all service charges except those that are itemized as not being payable to the employee(s) servicing the customer under RCW 49.46.160.

Seattle, Washington, Enacts App-Based Worker Paid Sick Leave Law

Effective January 13, 2024, Seattle's App-Based Worker Paid Sick and Safe Time Ordinance requires all covered network companies to provide paid sick and safe leave to eligible app-based workers.

The Ordinance applies to network companies that facilitate work performed by 250 or more app-based workers worldwide, regardless of where the workers perform work. A network company must establish an accessible system for workers to understand, request and use their paid sick and safe time and must provide each worker with written notice of its policy and procedure for meeting the Ordinance's requirements.

Washington Repeals Overtime Exemption for Agricultural Employees

Effective January 1, 2024, agricultural employees must be paid one and one-half times their regular rate of pay for all hours worked over 40 in any one workweek - meaning the overtime exemption for agricultural employees is effectively repealed.

Washington Warehouse Worker Protections Take Effect

Effective July 1, 2024, Washington provides protections against productivity quotas for warehouse workers.

Covered employers must provide new and current employees with a written description of:

• Any production quotas to which they are subject;
• Any potential adverse employment action that could result from failure to meet each quota; and
• Any incentives or bonus programs associated with meeting or exceeding each quota.

In addition, employees must not be required to meet a quota that prevents compliance with:

• Meal or rest periods;
• Use of bathroom facilities; or
• State and federal occupational health and safety laws.

Employees have additional rights under the law, including but not limited to:

• Requesting information regarding their quota;
• Protection from discrimination or retaliation for failing to meet certain quotas; and
• Filing complaints alleging violations of the quota rules.

Washington My Health My Data Act Takes Effect

The Washington My Health My Data Act (WMHMDA or the Act) gives Washington consumers privacy rights with respect to their health data and establishes certain requirements and limitations for covered businesses.

Covered businesses must comply with the Act beginning March 31, 2024; small businesses (as defined by the Act) must comply by June 30, 2024.

Because the Act's protections do not apply to individuals acting in an employment context, the Act does not cover employment-related data.

If you wish to become a client of GHR and get access to all our great resources, including your own HR Manager and our team of employment attorneys, please contact us at sales@guardian-hr.com or call us at 888.373.4724.