Legislative Updates

On October 27, the NLRB published a notice of final rule titled, "Standard for Determining Joint Employer Status."  Under the new rule, an entity may be considered a joint employer of a group of employees if each entity has an employment relationship with the employees and they share one or more of the essential terms and conditions of employment.  Some examples would be wages and benefits, hours of work/schedules, duties performed, supervision, work rules and discipline, tenure and working conditions.  

The final rule rescinds the 2020 final rule from the prior board.  The new rule provides vast guidance to parties about their rights and responsibilities of joint-employer establishments.  

Read the final notice at: 2023-23573.pdf (federalregister.gov)

Earlier this month, the EEOC issued the proposed Updated Workplace Harassment Guidance to Protect Workers by a vote of 3 to 2.  The proposed guidance provides updated examples on a wide range of scenarios and case law on workplace harassment.  The EEOC welcomes public comment until November 1st when they plan to issue final guidance. 

EEOC Guidance: PROPOSED Enforcement Guidance on Harassment in the Workplace | U.S. Equal Employment Opportunity Commission (eeoc.gov) 

The US Equal Employment Opportunity Commission announced an updated deadline for employers to submit their EEO-1 reports which is December 5, 2023.  All private employers with at least 100 employees as well as federal contractors and first--tier subcontractors with at least 50 employees and $50,000 in contracts are required to submit the EEO-1 report on an annual basis.  State and local governments and public-school systems are not required to submit the EEO-1 report.  

The IRS announced that the 2024 affordability factor for group health plans will decrease to 8.39 percent which is down from 9.12 percent.  This is the lowest the affordability factor has been since the ACA was implemented.  

Read the IRS bulletin at: 26 CFR 601.105: Examination of returns and claims for refund, credit, or abatement; determination of correct tax liability. (irs.gov)

On 8/30/23, the Department of Labor announced a proposed rule that would extend overtime protections to workers earning less than $1,059 per week or about $55,000 per year.  The DOL will take public comments for 60 days before considering and publishing a final rule.  

Read the press release at: Department of Labor announces proposal to restore, extend overtime protections for 3.6 million low-paid salaried workers | U.S. Department of Labor (dol.gov)

The IRS delayed part of the SECURE 2.0 law that was passed last December.  Employees and plan sponsors were originally scheduled to require earners making $145,000 or more to make catch-up contributions on a Roth basis instead of a Pre-tax basis effective 1/1/2024.  This has now been delayed until 2026 per IRS Notice 2023.62.    

On August 7th, the EEOC announced a proposed rule for implementing the Pregnant Workers Fairness Act which provides examples of possible reasonable accommodations.  The regulations will be published in the Federal Register on Friday at Federal Register :: Public Inspection: Regulations to Implement the Pregnant Workers Fairness Act.

Public comment will be open for 60 days.  The regulations seek input on if there should be additional examples or situations. 

Read the proposed regulations at: 2023-17041.pdf (federalregister.gov)

On 7/25/23, Health and Human Services published a proposed rule to ensure that private health plans are complying with the Mental Health Parity Act of 2008.  The Mental Health Parity Act aims to make sure that individuals have the same access to mental health services as they do to other services on their health plans. 

The proposed rule would require insurance companies to make changes when they are providing inadequate access to mental health services, make it clear what health plans can and cannot do, and close existing loopholes.  Health plans would also have to evaluate how their plans impact the patient's access to mental health services.  

Read more at: Departments of Labor, Health and Human Services, Treasury announce proposed rules to strengthen Mental Health Parity and Addiction Equity Act | HHS.gov

USCIS announced that a new I-9 Form will be published on August 1, 2023 for immediate use.  Employers may continue to use the previous version of the form through October 31, 2023.  Employers will be subject to penalties if they continue using the older version after that time.  Several updates to the form have been made.  Read more at: USCIS To Publish Revised Form I-9 | USCIS.  

The US Supreme Court ruled in favor of a website designer who refused to make wedding websites for same-sex couples due to her Christian beliefs.  The US Supreme Court found that her freedom of speech rights outweighed Colorado's protections against discrimination.  The ruling is specific to businesses who sell "expressive goods."