Shannon Gatlin, Board Certified Labor & Employment Attorney in Cokinos | Young’s Houston office, recently wrote the following article for Construction News magazine discussing important employment law updates [NOTE: Since the below article was originally published, a Travis County District Court ruled Texas House Bill 2127 to be unconstitutional but did not bar the law from taking effect on September 1; the State of Texas has appealed the District Court’s ruling]:
A lot has changed since the beginning of the year—and the employment law sphere is no exception. One article is hardly enough to cover all that is new in employment law, but here are a few highlights that your company may want to take note of.
Two new federal laws have taken effect within the past year, imposing obligations on employers with employees who are pregnant or who have the need to express breast milk for a newborn child. The first of these is the Providing Urgent Maternal Protections for Nursing Mothers (PUMP) Act, which took effect December 29, 2022. Much of what the PUMP Act requires will already be familiar to employers, because the primary goal of the PUMP Act is to extend the break time and private pumping location requirements for non-exempt employees under the Affordable Care Act to now cover all employees of companies covered by the Fair Labor Standards Act, including exempt employees. The U.S. Department of Labor has an updated required poster on its website, as well as useful information about the PUMP Act.
The second of these federal laws, the Pregnant Workers Fairness Act (PWFA), which took effect on June 27, 2023, allows individuals to file charges of discrimination with the Equal Employment Opportunity Commission (EEOC) under the PWFA. Employers are obligated to post notice of this law as well. The EEOC’s website has the required poster and helpful information on employer compliance with the PWFA, with updates to this information expected over the coming months. Some of the biggest changes the PWFA makes to existing protections for pregnant workers include: (1) a medical condition does not need to meet the definition of “disability” under the Americans with Disabilities Act for PWFA protection; (2) an individual is no longer required to show that accommodations are being provided to a non-pregnant “comparator”; (3) employers may be required to alter a job’s “essential functions” as a reasonable accommodation for temporary, short-term inability to perform such a function if the PWFA applies; and (4) an employer cannot impose leave as a reasonable accommodation without first considering other options with the individual.
The U.S. Department of Homeland Security (DHS) has been promising to update the I-9 process for employers for quite some time now, and it appears the agency is ready to make good on that promise. First, the agency—through U.S. Citizenship and Immigration Services—has issued a shorter and more streamlined Form I-9. The new form became available for downloading on August 1, 2023, and will be mandatory for employers to use starting on November 1, 2023, at which point employers using the previous Form I-9 will be subject to penalties. There are several improvements in the new Form I-9—but one in particular is meant to satisfy employer requests that only grew louder during the widespread adoption of remote hiring: a checkbox indicating that the employer used a DHS-authorized alternative procedure to examine the employee’s supporting documents.
Companies had hoped DHS might permanently allow its temporary COVID-19 flexibility of remote document examination—DHS is granting that wish, at least for some. DHS issued a final rule permitting alternative document examination procedures (including remote examination) under an approved framework from the agency. While this could pave the way for all employers to eventually use remote document examination, for now DHS is limiting the use of remote examination to employers that use the federal E-Verify system and are in good standing. Among the requirements for those employers who meet this eligibility threshold, they must (1) conduct a live video interview with the employee, (2) retain copies of all documents presented in the I-9 verification process, and (3) create E-Verify cases for new employees. While this DHS rule may not go as far as many had hoped, it is an encouraging step toward more widespread remote document verification.
Finally, an important development in state law could provide consistency in regulations applicable to construction companies operating throughout Texas. Unless paused by the courts, Texas House Bill 2127 (HB 2127)—commonly referred to as the “Death Star” bill—becomes law on September 1, 2023. In a nutshell, HB 2127 bars local governments from passing ordinances that go beyond state law in such areas as labor, agriculture, natural resources, and finance. HB 2127 would also strike down any such ordinances already in existence. For example, local mandates requiring water or rest breaks for workers and local “wage theft” ordinances—like Austin’s that went into effect within the past year and specifically targets the construction industry—are nullified under HB 2127.
Again, whether HB 2127 will withstand legal challenges has yet to be seen. The cities of Houston (July 3, 2023) and San Antonio (July 24, 2023) have already sued the state looking to have HB 2127 declared unconstitutional, void, and unenforceable. The ultimate fate of HB 2127 remains uncertain, and this legal battle warrants watching closely.
A lot has happened in employment law since the January issue, so now is the time to catch up with your employment counsel to ensure that your company stays on the right side of the above items and anything else that may have been overlooked.
About the Author: J. Shannon Gatlin is Senior Counsel in the Houston office of Cokinos | Young, is Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization, and leads the firm’s Labor & Employment Practice Group. Mr. Gatlin can be reached at (713) 535-5504 or firstname.lastname@example.org. For more information about Cokinos | Young and to speak with an Employment Attorney, contact our office at 713-535-5500.
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