The following is a summary of four recent and noteworthy federal compliance developments. The summary covers a PUMP Act bulletin, an updated minimum wage poster, new form I-9 information for employers that have hired remote employees, and the NLRB on non-competes.

PUMP Act Field Assistance Bulletin

On May 17, 2023, the wage and hour division of the US Department of Labor (DOL)published a Field Assistance Bulletin 2023 – 2 (FAB) to provide guidance to its field staff on the Providing Urgent Maternal Protections for Nursing Mothers Act and its enforcement. The nine-page bulletin is available here.

The PUMP Act was signed by the president late last December and it took effect immediately. The law amends the Fair Labor Standards Act (FLSA) to provide additional workplace protections for lactating employees such as requiring employers to provide all nursing employees with reasonable time and private space, other than a bathroom, to express breast milk.

The FAB is helpful because it includes in one place information about the PUMP Act, as well as insights into how the DOL views the law and approaches enforcement strategies.

Posting Requirements

The DOL also updated its wage poster, which includes new language on employee rights under the Fair Labor Standards Act to include information about the PUMP Act. If you haven’t already received an updated poster from your poster supply company, you may click on this link to download a copy of the 2023 version to ensure that you are in full compliance with the new law.

The poster should be displayed just as your other posters in the workplace or made available to remote employees electronically provided those employees all have access to the posters via a portal, email, or other electronic means at all times.

Employers have until August 30 to reach compliance after Form I-9 Covid flexibilities end on July 31, 2023

Last month the Department of Homeland Security (DHS) and Immigration Customs and Enforcement (ICE) announced that employers have 30 days to reach I-9 compliance after COVID-19 flexibilities end on July 31, 2023. Under the terms of this announcement, all employees onboarded using remote verification must have in-person physical verification of their identity and employment eligibility documentation used for their Form I-9 by August 30.

Although employers have a deadline of August 30, 2023, to complete physical examination of documents, if you have hired a large number of employees under the remote I-9 program you may want to start the physical verification process well in advance of the deadline.

In some cases, employers may struggle to obtain the necessary information from employees who continue to work remotely. An alternative is to use the longstanding Form I-9 approach to hiring remote employees using representatives to complete Section 2 of the Form I-9.

The designated representative may be a personnel officer, agent, foreman, notary public, or another designated person to act as an agent. This can be as simple as having the remote employee ask a friend or neighbor to act as the agent; the agent cannot be a family member.

Note that the employer remains responsible for any deficiencies in documentation associated with the completion of the Form I-9, even when an outside agent verifies the documents and completes Section 2.

When the physical reverification is conducted, the designated representative or company official must review the documentation. Look to the information box in the middle of page 2 of the form for examples of how the information should appear once updated.

Noteworthy updates

• The new I-9 form continues to be delayed and will likely not issue until sometime later this year;

• The Department of Homeland Security is undertaking a new initiative for workers of investigated employers that have committed various unlawful acts under wage-and-hour law, OSHA, National Labor Relations Act, and other employment laws, to receive Deferred Action.

NLRB General Counsel again signals opposition to non-compete agreements

In recent months, the National Labor Relations Board (NLRB) has indicated that the use of non-competition agreements (NCAs) may violate provisions of the National Labor Relations Act (NLRA).  On May 30,  NLRB General Counsel Jennifer Abruzzo issued a strongly worded memorandum declaring that, with few exceptions, the use of NCAs prevents employees from exercising their rights under Section 7 of the NLRA, which protects employees’ rights to take collective action to improve their working conditions.

This stance is at odds with the law in most jurisdictions.  The Massachusetts Non-Competition Agreement Act (M.G.L. c. 149, § 24L) contains some limitations to the enforceability of NCAs but permits them in certain circumstances.

The memo from the NLRB does not require employers to change or cease their use of non-compete agreements.  But the NLRB’s General Counsel is responsible for deciding whether to issue complaints and it is likely there will be enforcement activity related to the use of NCAs.

AIM members interested in discussing this or other human resources matters may call the AIM HR HelplineH at 1-800-470-6277.