PrestigePEO is offering a special open enrollment period for select voluntary benefits, but act fast – the special enrollment period ends on June 14! We have prepared a message you can copy and paste to share with your team members below.

PrestigePEO is offering a special open enrollment period for select voluntary benefits, but act fast – the special enrollment period ends on June 14! Explore benefits from MassMutual Whole Life Insurance, Aura Identity Theft Protection, Pet Insurance, Farmers Home & Auto, Monument Alcohol Counseling and Motivity Caregiving.

These benefits are normally only available for enrollment once a year during Open Enrollment, so take advantage of this special opportunity to enroll!

• MassMutual Whole Life Insurance: https://www.prestigepeo.com/wp-content/uploads/2023/10/MassMutual-Whole-LIfe-at-a-Glance_PrestigePEO.pdf
• Aura identity theft protection: https://www.prestigepeo.com/wp-content/uploads/2023/10/Identity-Fraud-Protection-Benefit-Booklet_Protection-Protection-Plus_Prestige.pdf
• Pet insurance: https://www.prestigepeo.com/wp-content/uploads/2023/10/MetLife-Pet-Insurance-Booklet_prestige-1.pdf 
• Farmers home & auto: https://www.prestigepeo.com/wp-content/uploads/2024/04/Farmers_GroupSelect_Prestige-2024.pdf
• Monument alcohol counseling: https://app.joinmonument.com/patient/partner/intro?promocode=7EJ54
• Motivity caregiving: https://www.prestigepeo.com/wp-content/uploads/2024/01/Motivity-Care-Flyer.pdf
• MetLife webinar recording: https://www.prestigepeo.com/webinars/special-enrollment-metlife-2024/
• Register for a MassMutual webinar on May 30: https://prestigeemployee.webex.com/weblink/register/r67eed149150b5a0b9411a1eebc8d6bb8

Selecting the right candidate for your organization’s job openings is an integral part of ensuring an organization’s overall success.  Taking the time to create a plan to support your hiring decisions can save you time and eliminate the frustration that is caused by the wrong hiring decision.

At the beginning of the process, think through the business case for the role and then establish job duties with the business requirements in mind.  You can begin this process by meeting with internal stakeholders to discuss the reason for the position, how the role will fill the business needs, and the job responsibilities that best meet these needs.  The stakeholders are those who understand the business and will work directly with the employee.  They can provide insight into what the job entails. Stakeholders can include the direct manager, job incumbent, colleagues, or others who may interact with this employee.  During this meeting, you can use an existing job description, if available, to help support the discussion.  The job responsibilities may have changed since the last opening for the position, so it is important to review the job description and revise as necessary.  Once the job description is finalized, it is time to consider your options for posting the role.

There are state and federal regulations that govern job postings.  For example, in New York state, pay transparency rules will affect your posting, including the salary range for any position.  Where you post the role is also significant as it may impact the quantity, quality, and diversity of candidates applying for the role.  Ensure you take time to post the role where it will garner attention and qualified candidates.  You can post on internal and external job boards, professional organization sites, and ask colleagues for referrals.

Applicant tracking tools such as JazzHR can help with posting job openings. Using these tools enables you to post the role on multiple job boards at once.  (PrestigePEO offers JazzHR as an additional benefit – learn more about it here.)  Tools like JazzHR also allows applicants to apply for positions via the ATS (Applicant Tracking System).  These tools filter applications based on key words and even track communications between the employer and the applicant.  Ultimately, using an applicant tracking system can help you improve your recruiting process and get to the best hire more efficiently.

Candidate Interviews

Before you begin to interview candidates, prepare the interview guide by creating relevant, job-related questions to give you a good understanding of the candidate’s skills, knowledge, and abilities.  Ask a variety of behavioral based and situational questions, which help you to understand the candidate’s past job behaviors and gain insight into how the candidate may perform in the role for which they are applying.  You may also include a series of more difficult questions to get a glimpse of how the candidate may respond to high pressure situations.

During the interview process, follow these simple tips:

1. Give candidates an opportunity to answer all questions in your interview guide
2. Take notes
3. Ask others to interview candidates
4. Evaluate candidates
5. Make selections based on qualifications

Recruiting can be challenging, but your HRBP can support you with developing job descriptions, utilizing JazzHR for applicant tracking, and providing guidance during the process.

We have been informed that UnitedHealthcare experienced a data breach in February of 2024. UHC is aware of the concern this has caused and apologizes for the disruption to customers. They are committed to doing everything possible to help and provide support to anyone who may be concerned or impacted.

Given the ongoing nature and complexity of the data review, they will continue to analyze and identify impacted members. As the company continues to work with leading industry experts to analyze data involved in this cyberattack, it is immediately providing support and robust protections rather than waiting until the conclusion of the data review.

Members can visit a dedicated website at http://changecybersupport.com/ to get more information and details on these resources. A dedicated call center has been established to offer anyone impacted free credit monitoring and identity theft protections for two years. The call center will also include trained clinicians to provide support services.

The call center can be reached at 1-866-262-5342 and further details can be found on the website www.myuhc.com.

More than 1 in 5 US adults live with a mental illness. To recognize the importance of this month, we have prepared some helpful materials. Below, you’ll find a recent blog post on the importance of mental health benefits and two products that can support your team’s mental health. We hope these materials are helpful as you and your team recognize Mental Health Awareness Month.

The crisis and suicide hotline is 988. It provides 24/7, free, and confidential support for people in distress, prevention and crisis resources for you or your loved ones, and best practices for professionals in the United States.

Our Employee Assistance Program (EAP) provides access to counselors who can help you with various needs, including marital or family relationships, legal and financial problems, stress management, alcohol and substance abuse, crisis management, and more.

Monument is an online program that offers confidential alcohol counseling and treatment from the privacy of your home. It also includes virtual support groups, a community forum, and online tools.

On April 10, 2024, the U.S. Senate approved a measure to block the National Labor Relations Board’s (NLRB) joint employer rule, siding with business groups that argue it would be too costly in another blow to the rule after a federal court recently struck it down. A federal judge struck down the regulation in March after a coalition of business groups, including the U.S. Chamber of Commerce, challenged it in Texas federal court. This hot-button rule aimed to make it easier for workers to be considered employees of more than one entity for labor relations purposes.

As a reminder, under the NLRB rule, an entity would have been considered a joint employer of a group of employees if each entity has an employment relationship with the employees and they share or codetermine one or more of the employees’ essential terms and conditions of employment.

These terms and conditions of employment include:

(1) wages, benefits, and other compensation;

(2) hours of work and scheduling;

(3) the assignment of duties to be performed;

(4) the supervision of the performance of duties;

(5) work rules and directions governing the manner, means, and methods of the performance of duties and the grounds for discipline;

(6) the tenure of employment, including hiring and discharge; and

(7) working conditions related to the safety and health of employees.

Sen. Joe Manchin (D-W.Va.) and Independent Sens. Kyrsten Sinema (Ariz.) and Angus King (Maine) joined Republicans in rejecting the NLRB rule, which lowers the bar for finding that two companies must share obligations to negotiate with unions as well as joint liability for labor violations. The resolution blocking the rule, which passed in a 50-48 vote, now heads to President Joe Biden’s desk for an expected veto. Lawmakers, however, are unlikely to overcome Biden’s expected veto, given that the resolution cleared both chambers with less than a two-thirds majority.

PrestigePEO is here to help.

PrestigePEO is focused on supporting your business and will continue to monitor this new regulation and related litigation.  If you have questions, please contact your HR Business Partner for assistance.

On April 15, 2024, the U.S. Equal Employment Opportunity Commission (EEOC) issued its final rule implementing the Pregnant Workers Fairness Act (PWFA), which went into effect on June 27, 2023. The PWFA requires most employers with 15 or more employees to provide reasonable accommodations for an employee’s known limitations related to pregnancy, childbirth, or related medical conditions unless the accommodation will cause the employer undue hardship. The regulations have expanded the impact of this relatively simple and limited statute. According to the EEOC, the final rule and interpretative guidance “reflect the EEOC’s deliberation and response to the approximately 100,000 public comments received on the Notice of Proposed Rulemaking (NPRM)” after the NPRM was issued in August 2023.

In the accompanying press release, the EEOC also asserts that the final rule “provides clarity to employers and workers about who is covered, the types of limitations and medical conditions covered, how individuals can request reasonable accommodations and numerous concrete examples.”

Effective Date: June 18, 2024

Key Takeaways from the Final Regulation:

• The broad definition of “pregnancy, childbirth, or related medical conditions” includes abortion, infertility, use of contraception, and menstruation-related conditions. The EEOC refused suggestions to require a temporal proximity to pregnancy. However, it clarified in supplementary text that the condition had to be related to pregnancy or childbirth.
• The EEOC noted that nothing in the PWFA requires or forbids an employer-sponsored health plan to pay for or cover any particular item, procedure, or treatment, including an abortion. It is anticipated that the abortion aspect of the regulation will be the source of future litigation and will likely be tested in court.
• Specifies that the law applies to the pregnancy-related condition of the employee and does not create an accommodation obligation for a spouse, partner, or other family member to support a pregnancy, attempted pregnancy, or other condition.
• Even where an employee seeks unpredictable leave, the employer cannot rely on unpredictability alone to establish undue hardship. The employer would have to show that undue leave caused it significant difficulty or expense with respect to its business operations.
• Increased emphasis on lactation accommodations, including breaks to allow for direct nursing while the child is close by and refusing to categorically rule out remote work as an accommodation to improve lactation.
• Increased emphasis on providing interim accommodations, such as while awaiting documentation, assessing the viability of alternative accommodations in the interactive process, or as an outcome of an emergent situation.
• Employees unable to perform all essential functions for extended periods of time will continue to be regarded as “qualified” for their positions. The EEOC maintained its deviation from ADA caselaw in finding that an employee could be qualified for their position even if unable to perform all essential functions of the position for up to 40 weeks, related to pregnancy.
• Employers are severely restricted in seeking confirmatory documentation of the need or pregnancy-relatedness of a requested accommodation. The EEOC acknowledged that its approach under the PWFA was different and more restrictive than that allowed by the ADA. The EEOC added a statement that an employer could not even insist that an employee provide supporting documentation on its own form.

Job protection under the PWFA will cover workers who are not otherwise covered by employer-provided paid time off or federal, state, or local family leave laws.  Employers are encouraged to remain responsive when an employee expresses the need for an accommodation and should also be careful to consider all state and local laws that may be related to this request.  While employers do not have to grant the exact accommodation requested by an employee, they must offer the employee reasonable alternatives and be very cautious when denying a request altogether. As discussed above, proving an undue hardship to the operations or finances of an employer’s organization is a very high standard under the PWFA and will be more difficult than showing undue hardship under the ADA.

Due to the complexity of the PWFA regulations, employers are encouraged to reach out to their HR Business Partner with any questions or help in navigating this issue.

PrestigePEO is here to help.

PrestigePEO is focused on supporting your business. If you have questions or need assistance regarding the Pregnant Workers Fairness Act, please reach out to your HR Business Partner.

In Muldrow v. City of St. Louis, Missouri (Docket No. 22-193), the U.S. Supreme Court was asked to decide whether a unilateral job transfer, initiated by the employer without the employee’s request or consent, could be challenged as discrimination under Title VII, where the position had the same pay and title but changed the employee’s schedule, overtime opportunities, and other conditions of employment. In a unanimous decision, the Court held that an employee challenging a job transfer under Title VII must show that the transfer brought some harm with respect to an identifiable term or condition of employment, but the harm need not be significant.

In this case, the St. Louis Police Department transferred a female police sergeant from a position as a plainclothes officer in the Specialized Intelligence Division to a uniformed position elsewhere in the Department. While her rank and pay stayed the same, she no longer worked with high-ranking members of the Department, lost access to an unmarked take-home vehicle, and had a less regular work schedule that now included weekend shifts. She was replaced in the Specialized Intelligence Division by a male employee.

Sergeant Muldrow challenged the transfer under Title VII, alleging discrimination on the basis of sex. The District Court found for the City and dismissed her claim. The Court of Appeals agreed with the District Court, holding that the transfer “did not result in a diminution to her title, salary, or benefits” and had caused “only minor changes in work conditions.”

In reviewing the degree of harm that must be demonstrated, the Supreme Court indicated that the lower court’s requirement – that the claimant must demonstrate that the harm had to be “significant” – was too high a bar, and the word “significant” did not exist in the language of Title VII. “What the transferee does not have to show … is that the harm incurred was ‘significant,’ … [o]r serious, or substantial, or any similar adjective suggesting that the disadvantage to the employee must exceed a heightened bar,” Justice Elena Kagan wrote in the Court’s opinion.

This case is now sent back to the lower court to analyze the facts under the clarified standard and further to analyze that if such harm is demonstrated, the decision was in part based upon sex.

Important takeaways from the case:

• Providing transfers that maintain rank, salary, and benefits alone is not enough to avoid a claim of discrimination. A claimant need only show that some harm has occurred.
• Yet, demonstrating some harm is not the end of the case or the end of unilateral transfers. A claimant always maintains the ultimate burden that the transfer was based upon a protected employment category, such as sex.
• Before making unilateral transfers, fully analyze the impact and outline appropriate business reasons for the transfer. Communicate those business reasons to the transferee.
• Consider adding additional benefits for the transferee, if possible. Those benefits may not only avoid litigation, but might also change a reluctant, unhappy transferee into an appreciative, understanding employee.

PrestigePEO is here to help.

PrestigePEO is focused on supporting your business and will continue to monitor significant legal developments and court rulings.  If you have questions, please contact your HR Business Partner for assistance.

On April 23, 2024, the Federal Trade Commission (FTC) voted 3-2 to issue a final rule that would ban virtually all non-compete agreements for nearly all workers of for-profit employers. The Rule is scheduled to be published on May 7, 2024, and will become effective 120 days after publication in the Federal Register, approximately September 4, 2024.

The crux of the Rule is that it makes noncompete clauses unlawful. The Rule states that it is an unfair and prohibited method of competition for a person to:

• enter into or attempt to enter into a noncompete clause,
• to enforce or attempt to enforce a noncompete clause,
• or to represent that a worker is subject to a noncompete clause.

What clauses are impacted by the Rule? The Rule defines a prohibited “non-compete clause” to include any contract term, workplace policy, or term or condition of employment, written or oral, that prohibits a worker from, penalizes a worker for, or functions to prevent a worker from seeking work, accepting work, or operating a business after prior employment ends.

The “functions to prevent” prong of the definition of the non-compete clause does not categorically prohibit other types of restrictive employment agreements, such as nondisclosure agreements (NDAs), client or customer non-solicitation agreements, or training-repayment agreements. However, if the NDAs or non-solicitation agreements are so broad or onerous that they have the same functional effect as a term or condition prohibiting or penalizing a worker from seeking or accepting other work or starting a business after their employment ends, such restrictive covenants will be viewed by the FTC as a non-compete clause under the Rule. In other words, confidentiality agreements, NDAs, non-solicitation of employees, and non-solicitation of customers will likely remain enforceable so long as they are not too broad. The Rule applies to non-compete clauses entered before the Effective Date.

Which employers and workers are impacted by the Rule? Generally, the Rule will impact all employers other than certain banks, savings and loan companies, non-profits, and common carriers, which are not subject to the FTC’s authority by law. The Rule defines “worker” very broadly and applies to paid and unpaid workers, including employees, independent contractors, externs, interns, volunteers, apprentices, and sole proprietors. The Rule does not apply to the franchisee in a franchisor relationship.

The exception for “Senior Executives”:  the Rule provides an exception for non-compete clauses entered into with Senior Executives before the Effective Date. A Senior Executive means a worker receiving total annual compensation (excluding fringe benefits) of at least $151,164 in the preceding year and was “in a policy-making position”—meaning the entity’s president, CEO, officer, or other person who has final authority to make policy decisions that control significant aspects of the entity (and not just a subsidiary or affiliate).

The exception for “bona fide sales of business”: The Rule does not apply to non-compete clauses entered into “pursuant to a bona fide sale of a business entity, of the person’s ownership interest in a business entity, or of all or substantially all of a business entity’s operating assets.”

Notice requirements regarding existing non-compete agreements: Under the Rule, employers must provide “clear and conspicuous” written notice by the Effective Date to workers bound to an existing non-compete agreement who are not senior executives that the non-compete agreement will not be, and cannot legally be, enforced against them in the future. The notice can be delivered via various methods, including: (1) by hand to the worker, (2) by mail at the worker’s last known personal street address, (3) by email at an email address belonging to the worker, including the worker’s current work email address or last known personal email address, or (4) by text message at a mobile telephone number belonging to the worker. Employers may be exempt from the notice requirement with respect to the specific worker that they do not have any record of a street address, email address, or mobile telephone number. The Rule includes model language that employers can use to communicate with workers.

What happens to existing lawsuits? The Rule does not apply to causes of action related to non-compete clauses that have accrued prior to the Effective Date. Put another way, the Rule likely will not change cases involving alleged violations of non-compete clauses occurring before the Effective Date.

What do we expect next? Lawsuits challenging the Rule were filed within hours of the FTC’s vote, including one filed in the United States District Court for the Eastern District of Texas by the U.S. Chamber of Commerce. Given the rule’s expansive scope and impact, it is anticipated that at least some courts will enjoin it from taking effect until the U.S. Supreme Court has an opportunity to weigh in on its validity and constitutionality.

What should employers do now?

1. Take inventory of existing non-compete clauses in your workforce and prepare (but do not yet issue) required notices.
2. Review nondisclosure agreements and policies.
3. Take advanced steps to protect trade secrets and confidential information.
4. Update and refine your customer and employee non-solicitation provisions.
5. Consider other alternative agreements.

Is there still risk when hiring a competitor’s employees? Yes. The Rule does not take effect for months and may never take effect if the court challenges are successful. The Rule also does not apply to conduct occurring before the Effective Date, so actions taken now still have risk. The Rule generally does not eliminate all risk to hiring employees from a competitor because even without non-compete clauses, employers can bring suit based on other contract terms (non-solicitation and non-disclosure clauses), trade secrets, and other legal theories to protect their interests when former employees go to work for a competitor.

PrestigePEO is here to help.

PrestigePEO is focused on supporting your business and will continue to monitor this new regulation and related litigation.  If you have questions, please contact your HR Business Partner for assistance.

On April 20, 2024, New York State lawmakers passed the 2024-2025 budget, which contains several provisions employers need to be aware of and start planning now for their workforce’s impact.

One of the new regulations requires that employers provide employees with twenty (20) hours of paid prenatal leave each year.  This protected leave will allow employees to take leave either during pregnancy or for pregnancy-related medical appointments, procedures, tests, or other related appointments with healthcare providers.  Important to understand is that this leave is separate from the already protected paid sick leave, which provides either 40 or 56 hours, depending on employer size, that is currently required by state law.  Paid prenatal leave, similar to paid sick leave, may be taken in hourly increments, and the employee must receive their regular rate of pay when using this leave.  This new leave law takes effect on January 1, 2025.

Additionally, New York State is requiring paid nursing leave for mothers who need break time to express breast milk during working hours.  The current law allows for employees to take unpaid breaks during the workday at least every three hours or as reasonably requested by the employee, but starting June 19, 2024, employers will be required to provide paid thirty-minute breaks for this purpose.  Furthermore, employees can utilize existing paid break time or mealtime, when necessary, for any period exceeding thirty minutes.

Finally, New York’s COVID-19 leave law is sunsetting as of July 31, 2025, which is a year longer than the initial proposal to repeal this law by July 2024.  Employers will be required to continue to comply with COVID-19 leave laws, which currently require employers to provide employees up to fourteen (14) days of paid leave, separate from other leave accruals when the employee is subject to a mandatory or precautionary order of quarantine or isolation due to COVID-19.

PrestigePEO is here to help.

If you have any questions regarding these new requirements, please contact your HR Business Partner.

If you have an idea for a future newsletter, we’d love to hear from you! Additionally, if you’d like more information on our services or programs, we can certainly accommodate that as well. Email marketingteam@prestigepeo.com today!