The Equal Employment Opportunity Commission (EEOC) has recently issued a fact sheet addressing the use of wearable technologies in the workplace. These devices range from fitness trackers to biometric monitors offering employers different ways to enhance company productivity and safety. The EEOC warns that improper use of data collected through these technologies could potentially violate federal discrimination laws.

Wearable Technology

While the fact sheet does not provide a precise definition, wearables are described as “digital devices with sensors worn on the body that track movement, gather biometric data, or monitor location.” These devices include items like:

• Smartwatches or rings that track activity and monitor physical or mental health;
• Environmental or proximity sensors that warn users of nearby dangers;
• Smart glasses or helmets that measure brain activity (EEG) or detect emotions;
• Exoskeletons and other physical aids that reduce fatigue; and
• GPS devices that track location.

Data Collection Concerns

Although employees typically must consent to their employer’s ability to access data collected from wearable devices, consent alone does not absolve the employer from complying with laws like:

• Americans with Disabilities Act (ADA): Restricting collection of disability-related information.
• Genetic Information Nondiscrimination Act (GINA): Preventing collection of genetic data.
• Title VII of the Civil Rights Act (Title VII): Prohibiting discrimination based on collected data.

The data collected by wearable devices, such as heart rate, activity level, or location tracking, may seem harmless but could reveal sensitive information indirectly. For example, an elevated heart rate or irregular sleep patterns could suggest pregnancy or a medical condition or reduced activity levels might lead to assumptions about an employee’s health, age, or disability.

Reasonable Accommodations

The fact sheet reminds employers that any wearable technology policy must allow for reasonable accommodations related to religious beliefs (Title VII), disabilities (ADA), or pregnancy (Pregnancy Workers Fairness Act).

What Should Employers Do Now?

1. Ensure that data collected is directly tied to job performance and business necessity.
2. Work with vendors to ensure wearables provide accurate data for all demographics and avoid bias.

Establish written policies covering: (i) what data will be collected and why, (ii) how data will be stored, used, and shared, (iii) employees’ right to opt-out without fear of retaliation and (iv) employees’ right to request accommodations.

3. Provide training on the proper use of wearable technology and handling sensitive information.
4. Consult with legal experts to assess potential risks and ensure compliance with federal employment laws.

If you have questions about wearable technology policies, please feel free to contact any member of the Poricanin Law team.

On December 27, 2024, the United States Court of Appeals for the Third Circuit (“the Third Circuit”) vacated a portion of the National Labor Relations Board’s (NLRB) order requiring Starbucks to compensate two allegedly wrongfully terminated employees for “all direct or foreseeable pecuniary harms” resulting from Starbucks’ alleged unfair labor practices. The Third Circuit held that such a remedy exceeded the NLRB’s authority under the National Labor Relations Act (NLRA).

The decision stems from a case where two Starbucks employees were terminated after engaging in labor organizing activities. Starbucks claimed the terminations were due to policy violations and poor performance. However, the NLRB found that the terminations were motivated by the employees’ organizing activities, violating Sections 8(a)(1) and 8(a)(3) of the NLRA.

An ALJ found substantial evidence that the terminations and reduction in hours were motivated by anti-union animus, supported by internal communications and the timing of disciplinary actions, and the NLRB adopted the ALJ’s findings and ordered Starbucks to reinstate the employees and compensate them for lost earnings and benefits. Specifically, the NLRB cited the NLRB’s 2022 decision in Thryv, Inc. where the NLRB determined that in cases involving remedies of make-whole relief, the respondent must also compensate affected employees for “all direct or foreseeable pecuniary harms” caused by the unfair labor practices.

The Third Circuit reviewed the case and found, among other things, that the NLRB had exceeded its authority under the NLRA, explaining that the NLRA limits the NLRB’s remedial authority to equitable relief, such as cease and desist orders to entities engaging in unfair labor practices and reinstatement orders that may include back pay, and that the NLRB’s remedial authority does not extend to imposition of consequential damage orders.  In essence, the Third Circuit altered the NLRB’s holding in Thryv that all cases involving a make-whole remedy would necessarily include compensation for the affected employee’s direct or foreseeable pecuniary harms suffered because of the unfair labor practices.

The Third Circuit is the only U.S. Court of Appeals to recognize such a limit, so NLRB decisions that order compensation for direct or foreseeable pecuniary harms will still be enforceable in all states and territories outside of Pennsylvania, New Jersey, Delaware, and the U.S. Virgin Islands. If you have any questions about the subject of this article and its implications for your business, please contact Forework.

As 2025 begins, New York employers should keep in mind the following updates and key dates as it pertains to employee leave and benefit entitlements:

January 1, 2025: Paid Prenatal Leave

• New York has become the first state in the United States to offer paid prenatal leave.
• Effective January 1, 2025, New York employers will be required to provide up to 20 hours of paid prenatal leave to pregnant employees during any 52-week period for a long list of pregnancy-related doctor visits.
• Employees may use such leave to receive “health care services received by an employee during their pregnancy or related to such pregnancy, including physical examinations, medical procedures, monitoring and testing, and discussions with a health care provider related to the pregnancy.” Fertility care and treatment and end-of-pregnancy care appointments are qualifying reasons for paid prenatal leave, but post-natal or postpartum appointments are not.
• Paid prenatal leave is a separate benefit from NYS sick leave or any other leave policies and laws. Accordingly, employees are entitled to 20 hours of paid prenatal leave in addition to any other available leave options. Employers cannot require an employee to choose one leave type over another or exhaust one type of leave before using paid prenatal leave. 
• Employers cannot ask employees for details about their prenatal appointments, require corroborating documentation, or require employees to disclose confidential information as a condition to requesting use of leave.
• These benefits are available immediately upon hire, and the leave can be taken in hourly increments and is paid at the employee’s regular rate of pay. Employers are not required to pay out unused prenatal care leave at termination.
• The employee contribution rate and benefit amounts under New York Paid Family Leave will increase:
  • the employee contribution rate will increase from .373 percent to .388 percent
  • the maximum weekly benefit amount will increase from $1,151.16 per week to $1,177.32 per week.

• New York employers should ensure this type of leave is available to employees as of its effective date. Employers should also consider adopting a written policy detailing this new leave so employees and managers are aware of these entitlements.

January 1, 2025: Work-Related Stress & Worker’s Compensation Law

• Effective January 1, 2025, New York’s Workers’ Compensation Law will permit all workers to file claims for mental injury based on extraordinary work-related stress.
• This amendment to the Workers’ Compensation Law under A5745 (the “Amendment”) expands coverage to all workers in the State of New York whereas previously, only certain first responders were eligible for such benefits. The Amendment eliminates the requirement for the stress to be a result of a work-related emergency.
• Similar to physical injuries, the question of whether a causal relationship exists between a work activity and the mental injury is an issue of fact for the Workers’ Compensation Board and will likely be decided on a case-by-case basis.
• With the implementation of the Amendment, employers should consider the potential impact of an employee filing a workers’ compensation claim for mental injury on a subsequent claim of discrimination against the employer.

July 31, 2025: COVID-19 Paid Leave Expires

• New York’s COVID-19 paid quarantine leave expires.
• Currently, New York law requires employers to provide paid sick leave in the event of an order of quarantine or isolation related to COVID-19, in addition to other leave entitlements. Effective July 31, 2025, employers will no longer be required to provide employees with separate Paid Emergency Leave for COVID-19-related quarantines and isolations.
• After July 31, 2025, employees who need time off to manage care or isolate for COVID-19 will need to use existing paid leave laws including New York State’s Paid Sick Leave and New York City’s Earned Sick and Safe Time.
• As this date approaches, employers should ensure that their policies and practices reflect these updates, and that human resources personnel are apprised of these changes.

If you have any questions about the subject of this article and its implications for your business, please contact your designated Forework representative.

On December 23, 2024, President Biden signed into law the Paperwork Burden Reduction Act (PBRA) and the Employer Reporting Improvement Act (ERIA), intended to simplify employer’s Affordable Care Act reporting requirements. The laws allow (i) flexibility for employers to furnish 1095-B and 1095-C tax forms to employees electronically and only upon request, (ii) the use of employees’ birthdates instead of taxpayer identification numbers (TINs), and (iii) employers more time to respond to penalty assessments in IRS Letter 226-J.

The Paperwork Burden Reduction Act

The PBRA amends the Internal Revenue Code (the “Code”) and reduces unnecessary paperwork related to health insurance coverage reporting for employers and employees. Under the PBRA, employers and health insurance providers are no longer required to send a copy of the 1095-B and 1095-C tax forms to covered individuals showing proof of minimum essential coverage unless a form is requested.  Accordingly, forms which would otherwise be required to be sent out this month, January 2025, will now only be required to be sent upon request.

Previously, employers that provided minimum essential coverage were required to report this information to the IRS and provide each covered individual with a 1095-B or 1095-C tax form by January 31 of each year.  Effective for tax forms starting with the 2024 calendar year, employers are no longer required to send the 1095-B and 1095-C tax forms to covered individuals unless a form is requested.  However, note that employers must inform covered individuals of their right to request a form.  The PBRA requires the employer or health insurer to “provide clear, conspicuous, and accessible notice (at such time and in such manner as the Secretary may provide)” that any covered individual may request a copy of such statement.  If a 1095-C tax form is requested, it must be furnished to the individual by January 31 or 30 days after the date of the request, whichever is later.

The Employer Reporting Improvement Act

As mentioned above, previously employers were required to provide each covered individual with a 1095-B or 1095-C tax form by January 31 of each year; employers had to report required information using the covered individual’s TIN; and if an applicable large employer (i.e., 50 or more full-time employees) received a proposed assessment from the IRS (i.e., a Letter 226-J), the employer only had 30 days to respond. 

The ERIA, intended to streamline employer reporting requirements and reduce administrative burdens of ACA compliance, now provides TIN reporting flexibility, allows electronic delivery, and extends applicable large employers response times around penalty assessments.

Effective for tax forms due after December 31, 2024, the ERIA provides for the following changes:

• Employers may use an individual’s date of birth to be substituted for the individual’s TIN if the TIN is not available.
• Employers can offer the 1095-B and 1095-C tax forms to individuals electronically if an individual affirmatively consented to receive forms electronically at any prior time. However, note that an individual may revoke such prior consent in writing.
• Employers now have at least 90 days to respond after the IRS sends its first Letter 226-J regarding a notice of proposed assessment (an increase from 30 days); and
• There is now a six-year statute of limitations for collecting penalty assessments. The six-year period begins “on the due date for filing the return under section 6056 (or, if later, the date such return was filed) for the calendar year with respect to which such payment is determined.”

These bills provide relief to large employers and reduce their burden under the ACA’s reporting requirements.  If you have any questions about the subject of this article and its implications for your business, please contact Forework.

The lawfulness of an employer’s use of GPS Tracking in workplaces, specifically related to company-issued cars and cellphones, is dependent on whether the workplace is unionized or non-unionized.

Unionized Workplace

GPS technology is a mandatory subject of collective bargaining in a unionized workplace when it comes to installing GPS devices on company property or company-issued cell phones. However, whether the employer has the right to install GPS devices is determined by reviewing the collective bargaining agreement.

The NLRB has also ruled that employers can use GPS devices to track employees if it’s not a significant change to their employment terms and conditions. The NLRB GC has proposed that employers must disclose the technology they use to monitor employees, the purpose of the monitoring, and how the data is used.

Non-Unionized Workplaces

In a non-unionized workplace, employers can implement GPS tracking on company-issued vehicles and cell phones so long as they strictly follow the Employee monitoring laws, which became effective on May 7, 2022. The various Employee monitoring laws require private employers who will be lawfully monitoring employees to: (i) provide a prior written notice upon hiring to the affected employees; (ii) obtain the employees’ written or electronic acknowledgement of the notice; and (iii) post the notice of electronic monitoring in a conspicuous place visible to the employees.

Summary

Employers who utilize any form of employee-tracking technology with their employees should review this article carefully to determine if any changes in their policies and procedures are warranted.

On October 7, 2024, the National Labor Relations Board (“NLRB”) General Counsel Jennifer Abruzzo (the “GC”) issued a memo to all field offices discussing two important topics: non-compete agreements and stay-or-pay provisions. The memo lays out her intent to not only prosecute employers who require that their employees sign non-compete and stay-or-pay provisions, but to, as fully as possible, remedy the harmful monetary effects employees experience as a result of these provisions.  Here, we summarize the intricacies of the NLRB’s standards for businesses. 

Non-Compete Agreements

The GC stated her position that overboard non-compete agreements are unlawful because they may prevent employees from exercising their rights under Section 7 of the National Labor Relations Act, which protects employees’ rights to take collective action to improve their working conditions.

To remedy the effects of unlawful non-compete provisions, recission alone will fail to remedy all the harms caused by the provisions and the memo calls for make-whole relief in the following manner:

• Permit employees to come forward during notice-posting period and demonstrate that they were deprived of a better job opportunity as a result of the non-compete provision.
  • Employees must show:
    •  there was a vacancy available for a job with a better compensation package;
    •  they were qualified for the job; and
    • they were discouraged from applying for or accepting the job because of the non-compete provision.

Where a Region determines that these criteria are satisfied, the employer must compensate employee for the difference (in terms of pay and benefits) between what they would have received and what they did receive during the same period. Employees may also be entitled to make-whole relief for additional harms or costs associated with complying with the non-compete during the post-employment period, until those restrictions expired.

Stay-or-Pay Provisions: Presumptively Unlawful

Like non-compete agreements, stay-or-pay provisions have recently become increasingly common in American workplaces. Stay-or-pay provisions are defined as “any contract under which an employee must pay their employer if they separate from employment, whether voluntarily or involuntarily, within a certain time frame.” These provisions take a variety of forms including, training repayment agreement provisions, educational repayment contracts, quit fees, damages clauses, and sign-on bonuses or other types of cash payments tied to a mandatory stay period.

The GC opined that stay-or-pay provisions are presumptively unlawful and have the potential to suppress union organizing and other concerted activity for mutual aid or protection, including by impairing employee job mobility and believes such provisions must be narrowly tailored to minimize the infringement of Section 7 rights.

Employers can rebut the presumption and to meet the burden, the provision must: (1) be voluntarily entered into in exchange for a benefit; (2) have a reasonable and specific repayment amount; (3) have a reasonable “stay” period; and (4) not require repayment if the employee is terminated without cause.

Is your company planning a holiday party this year? Beware, as we know from prior experiences that employee and manager misconduct at a company holiday party – whether in person or some virtual event – can be the basis of a number of employment liability issues. Anticipating and planning in advance for common party-related problems can mitigate exposure to employment claims. Here we provide some tips and recommendations:

1. Remind managers that they are still managers when attending functions such as company-sponsored parties (or even other companies’ parties where the employee is representing his/her employer). Manager misconduct, whether at their employer party or the party of a client/vendor/contractor can certainly be the basis of a harassment or discrimination suit against the manager’s employer.
2. If possible, avoid serving alcohol. But, if alcohol will be served, make sure the bartenders are monitoring employees who may be over-indulging and don’t be afraid to step in and send home those employees who start getting rowdy under the influence.
3. If your party is a dinner, consider serving only wine or beer (plus non-alcoholic alternatives) with the meal.
4. If you do serve alcohol, do not have an “open bar” where employees can drink as much as they want. Instead have a cash bar or use a ticket system to limit the number of drinks.
5. Let your managers know that they will be considered to be “on duty” at the party. They should be instructed to keep an eye on their subordinates to ensure they do not drink too much, and to curb or eliminate their own consumption of alcohol.
6. Arrange for no-cost taxi service for any employee who feels that he or she should not drive home.
7. Before the party, circulate to all employees the employee handbook, which should include the anti-harassment and code of conduct policies, and remind all employees that the company party is still a work event and professional behavior is expected of all. Encourage any employee to come forward and report any inappropriate behavior, either immediately at the party or afterwards.
8. Don’t make attendance at the holiday party mandatory, otherwise you could be required to pay non-exempt employees for their attendance/time at the company party.
9. Ensure the venue is accessible to employees with disabilities, and that any accommodation requests are considered.

And, if every in doubt, refer to your Forework advisor for any questions about this article or how to run your holiday parties in a way to avoid and minimize exposure to liability!

Earlier this month, the Second Circuit dismissed claims of discrimination under the New York State Human Rights Law (“NYSHRL”), concluding that occasional work by an otherwise remote-work employee within New York State is insufficient to render New York “the place where the impact of the alleged discriminatory conduct is felt” for purposes of coverage under the NYSHRL.  This decision highlights that some remote work from a New York location alone is unlikely to be enough to trigger coverage under the NYSHRL. Nonetheless, the risk and possibility of a claim exists, and thus all employers should be mindful of these jurisdictional issues when dealing with remote employees.

Recently, the United States Supreme Court clarified the standard under which a plaintiff can proceed with a claim for a discriminatory job transfer under Title VII of the Civil Rights Act of 1964 (“Title VII”), holding that a plaintiff need only show that the job transfer brought about “some” harm with respect to a term or condition of employment. That harm, however, need not be significant in order for the lawsuit to proceed.   

In the case at issue before the Supreme Court, the plaintiff, Sergeant Jatonya Clayborn Muldrow, worked as a plainclothes officer in the Intelligence Division of the St. Louis Police Department from 2008 through 2017 until she was reassigned to a uniformed job elsewhere in the Department and replaced with a male officer. Although Muldrow’s rank and pay remained the same, her responsibilities, perks, and schedule did not. Muldrow no longer worked with the high-ranking officials in the Department’s Intelligence Division—instead supervising the day-to-day activities of neighborhood patrol officers—and she lost access to an unmarked take-home vehicle and had a less regular schedule involving weekend shifts. Muldrow brought suit under Title VII, challenging the transfer as a discriminatory action based on her sex.

The Supreme Court held that, to make out a Title VII discrimination claim, a transferee must show some harm with respect to an identifiable term or condition of employment, but what the transferee does not have to show is that the harm incurred was “significant” or otherwise exceeded some heightened bar.

The Court’s ruling reaffirms that job transfers that – even arguably – lower the terms and conditions of an employee’s work environment (as subjective as that standard may be) could be the basis of a discrimination claim.  Employers making employment decisions should always be mindful that it’s not just termination but other employment actions that expose them to an employment lawsuit as well.   

The White House Office of Information and Regulatory Affairs (OIRA) completed its review of the updated federal overtime rule on April 10, 2024. Publication of the final rule in the Federal Register is expected any day now, with an effective date likely 60 days after publication.

If the final rule tracks the DOL’s proposed, then the final regulation will increase the minimum salary for exemption for executive, administrative, or professional (“EAP”) employees from $684 per week ($35,568 annualized) to $1,059 per week ($55,068 annualized) and the minimum total annual compensation level for exemption as a “highly compensated employee”—e.g., one who customarily and regularly performs any one or more of the exempt duties or responsibilities of an EAP employee—from $107,432 to $143,988. In addition, if finalized as proposed, the rule would require automatic increases in those thresholds every 3 years.

Other than in states with already-higher minimum salaries for exemption (which include New York for executive and administrative employees, but not professionals) –and absent a successful legal challenge to the new rule–employers will be required to pay most executive, administrative, and professional employees at least $1,059 per week.  Once these rules are finalized, please be sure to check with your payroll provider (such as Forework!) that they are updating the minimum salary requirements for your exempt employees. Failure to do so could result in the loss of the exemption, which would mean that the business would need to pay overtime to those employees it thought were exempt from overtime.