Released July 31, 2024

NEW LAWS ENACTED

  • Minnesota amends its pregnancy accommodation and leave law to require employers to maintain insurance coverage for all employees out on pregnancy related leave or accommodation. Additionally, the amendments specify that time taken off for prenatal care medical appointments cannot be counted against the 12-week leave entitlement under the pregnancy and parental leave law. The law will take effect August 1, 2024.
  • Vermont Governor Phil Scott signs a pay equity law requiring employers to disclose compensation in job postings. Effective July 1, 2025, employers with five or more employees will be required to disclose the compensation or compensation range in any job posting.

PENDING BILLS

  • New York legislature passes the Retail Worker Protection Act requiring employers to enact anti-violence policies, implement training, and document and respond to all incidents of violence that occur in the workplace. The bill will be heading to the Governor’s desk. If signed, the bill will become effective 180 days from signature.

COURT & AGENCY NEWS

  • The S. Occupational Safety and Health Administration (OSHA) announced on July 2 a proposed rule on heat illness and injury prevention. The proposed rule includes requirements on heat injury and illness prevention plans, employee training, and more.
  • Pending lawsuits shed doubt on two recently adopted agency rules. The S. Federal Trade Commission’s Non-Compete Rule and the U.S. Department of Labor’s salary threshold for overtime exemption increase are facing stiff legal challenges that may delay or prevent the rules from going into effect.
  • The Supreme Court of the United States (SCOTUS) overturns Chevron USA Inc v Natural Resources Defense Council, Inc., potentially subjecting all federal agencies to increased judicial scrutiny when interpreting vague or ambiguous laws.

For the full stories, keep reading below.

NEW LAWS ENACTED

New Law in Minnesota Requires Employers to Maintain Insurance Coverage for Employees Out on Pregnancy Related Leave

The Minnesota legislature has enacted amendments to the state’s pregnancy accommodation and pregnancy and parental leave laws, effective August 1, 2024. These changes require employers to maintain an employee’s coverage under any group insurance policy, group subscriber contract, or healthcare plan for both the employee and their dependents during any leave taken as a pregnancy accommodation or under the pregnancy and parental leave law. However, employees are still responsible for paying their share of the premiums.

Additionally, the amendments specify that time taken off for prenatal care medical appointments cannot be counted against the 12-week leave entitlement under the pregnancy and parental leave law. This adjustment may result in employees utilizing more than 12 weeks of protected leave for pregnancy-related medical appointments and subsequent child care.

These changes align Minnesota’s requirements more closely with those under the federal Family and Medical Leave Act (FMLA) but have significant implications for smaller employers not covered by FMLA.

Vermont Enacts Pay Transparency Law

Vermont became the latest state to enact pay transparency legislation aimed at addressing pay disparities when Governor Phil Scott signed a pay equity law that mandates pay transparency in job postings. Effective July 1, 2025, Vermont employers with five or more employees must disclose the compensation or compensation range in any job advertisement. This law applies to positions both physically located in Vermont and remote positions primarily serving Vermont-based locations.

Once in effect, employers must list the minimum and maximum annual salary or hourly wage they expect to pay for the advertised position. Exceptions are made for commission-based jobs, where employers only need to state that the position is commission-based, and for tipped positions, where the base wage or range of base wages must be disclosed.

The law includes anti-retaliation protections and will be enforced by the Vermont Attorney General’s Office. Many employers will begin to prepare for this change by reviewing job postings, training relevant personnel, and consulting forthcoming guidance from the Attorney General’s Office.

PENDING BILLS

New York Assembly and Senate Pass Retail Workplace Violence Prevention Law

The New York State Assembly and Senate have both passed the “Retail Worker Safety Act” (Senate Bill S8358), aimed at preventing workplace violence in retail establishments. The proposed law requires retail employers that have at least 10 retail employees to develop comprehensive written workplace violence prevention policies, identify risk factors, and implement preventive measures. The key aspects of the bill include the following requirements for covered employers:

  1. Written Policy. Prepare a written policy that includes a list of identified risk factors and methods to prevent violence in the workplace, among other topics. This policy must be provided to employees in writing when hired and once annually thereafter.
  2. Training. Provide training and information to employees on the risks of workplace violence. Training must be provided to all retail employees upon hire and subsequently on an annual basis. Training must include, but is not limited to, the following topics:
    • Information/resources about the above policy.
    • Examples of protective measures that retail workers can employ when in a dangerous situation.
    • De-escalation tactics.
    • Active shooter drills.
    • Emergency procedures.
    • Instructions on how to use panic buttons, emergency devices, security alarms, etc.
    • Site-specific list of emergency exits and meeting places.
  3. Tracking Incidents. Document each incident of workplace violence and report it to a publicly accessible state database.
  4. Panic Buttons. For employers with 500 or more retail workers nationwide, employers must install panic buttons that immediately dispatch local law enforcement. If signed by the Governor, this element would be required by January 1, 2027.
  5. Security. Employ a security guard during all open hours, applicable to employers experiencing a certain number of violent incidents; such number still to be determined.
  6. Notice of Policy. Provide to all employees (in their primary language), a notice containing the policy and the information presented at the training. This must be provided at the time of hiring and at every annual training.

This law, if signed by Governor Hochul, would take effect 180 days after signature. The act is modeled after similar legislation in California, which was detailed in our October 2023 Brief. The full text of the bill can be viewed here.

COURT & AGENCY NEWS

OSHA Proposes New Heat-Safety Rules

 OSHA has proposed a new rule aimed at mitigating heat-related injuries and illnesses in the workplace. The rule, titled “Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings,” seeks to establish the first nationwide standard to protect approximately 36 million workers. The proposed regulations would apply to a wide range of industries including general industry, construction, maritime, and agriculture, requiring employers to create and implement heat illness prevention plans.

Key provisions of the proposed rule include:

  • Heat triggers.
    • Setting an initial heat trigger at a heat index of 80°F, at which employers must provide drinking water and break areas.
    • A high heat trigger is set at 90°F, necessitating mandatory rest breaks and monitoring for signs of heat illness.
  • Prevention Plan. Employers are also required to develop and implement a Heat Injury and Illness Prevention Plan (HIIPP), designate a heat safety coordinator, and evaluate their plans annually.
  • Training.
    • Employees must receive training before any work at or above the initial heat trigger.
    • Training must include a variety of topics, including: heat stress hazards, heat-related injuries and illnesses, risk factors, warning signs of heat-related illness, and more.
    • Supervisors must be trained on these and additional topics, such as procedures for responding if an employee exhibits signs of heat-related illness.
    • Employees and supervisors must also receive annual refresher training.
    • Furthermore, supplemental training (beyond the annual refresher) may be required when certain circumstances occur, such as changes to risks of exposure or to the employer’s policies or procedures, if a serious incident occurs, or if there is an indication that an employee did not understand the training.
  • The rule emphasizes using the Wet Bulb Globe Temperature (WBGT) as a metric for monitoring heat hazards.

The full text of the rule is available on the OSHA website. The public is permitted to submit written comments on the rule to OSHA. A public hearing is expected to be held after the close of the written comment period.

FTC’s Non-Compete Rule and DOL’s Salary Increase Facing Legal Challenges

On June 28, 2024, the U.S. District Court for the Eastern District of Texas issued a preliminary injunction, temporarily preventing the U.S. Department of Labor (DOL) from implementing its 2024 final rule to increase the annual salary thresholds for executive, administrative, and professional (EAP) exemptions for state employees in Texas. This injunction will remain in place pending the outcome of the state’s legal challenge (State of Texas v. DOL, et al., 2024 WL 3240618 (E.D. Tex. June 28, 2024)).

Additionally, the Northern District US District Court in Texas has issued a preliminary injunction delaying the Federal Trade Commission’s (FTC) Non-Compete Rule.

These early rulings signal that the courts may be prepared to rule against the agencies and bring into doubt whether either Rule will withstand judicial scrutiny. We will continue to monitor as the litigation develops.

The DOL’s salary threshold rule was detailed in the June 2024 edition of The Brief.

The FTC’s Non-Compete Rule was detailed in the May 2024 edition of The Brief.

United States Supreme Court Overturns “Chevron Deference”; Agencies Now May Face Increased Judicial Scrutiny When Interpreting Law

The Supreme Court’s decision in Loper Bright Enterprises v. Raimondo has significant implications for employers. This ruling overturned the long-standing “Chevron Deference” framework, which previously allowed courts to defer to federal agencies’ reasonable interpretations of ambiguous laws. This framework was based on a previous SCOTUS case Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. In simple terms, “deference” meant that if a law was unclear, courts would often side with the agency’s understanding of it.

By ending Chevron deference, the Supreme Court has restricted the authority of federal agencies to interpret and enforce laws without strict judicial oversight. This change means that agencies like the Department of Labor (DOL) and the Occupational Safety and Health Administration (OSHA) may face more challenges when implementing new rules and regulations. Employers should stay informed about this shift, as it could affect how workplace regulations are applied and enforced in the future.

Disclaimer: this information is not intended as legal advice. Please consult with legal counsel to ensure your organization’s compliance with applicable legal requirements.