August 2017 HR Regulatory Updates

by Kathryn Carlson on August 4, 2017

NATIONAL UPDATES

NEW! I-9 Form

As you know, the U.S. Citizenship and Immigration Services’ I-9 Employment Eligibility Verification form was updated in July. However, now is the time to ensure that you are using the new form.

All employers must be compliant by September 18, 2017.

What Changed?

  • The new version has language changes, such as removing “the end of” from the verbiage “the first day of employment” in Section 1.
  • Updated the name from Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices to the much easier Immigrant and Employee Rights Section.
  • Interactive form changes for those completing the I-9 online related to Acceptable List C certification or report of the birth issued by the U.S. State Department.

 

2017 Changes to the EEO-1 Survey

Private employers with at least 100 employees and most federal contractors are required to submit an Employer Information Report EEO-1 with the U.S. Equal Employment Opportunity Commission (EEOC). Demographic data collected, such as race/ethnicity, gender, and job category, must be included in this mandated compliance survey.

In 2016, the EEOC announced a new reporting requirement to include pay data with the annual EEO-1 Reports and updated the reporting cycle from September 30 each year to March 31, beginning in 2018. The pay data will be broken down into 12 bands provided by the EEOC for each job category. In addition, the EEOC has shifted the “workforce snapshot period” from July 1–September 30 to October 1–December 31.

The objective of these changes is to help combat wage discrimination. The EEOC and the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) carry the responsibility of enforcing federal prohibitions of pay discrimination.

So, what do you need to remember?

  • Your EEO-1 report is due by March 31, 2018
  • “Workforce snapshot period” is now October 1–December 31
  • Tally the total number of employees in the 12 pay bands for each job category using Box 1 of the employees’ W-2
  • Count and report the number of hours worked by all employees in each pay band
  • FAQs from the EEOC
  • EEOC’s Revised Instruction Booklet

With these changes come additional cautions. President Trump is proposing to merge the OFCCP into the EEOC by the end of fiscal year 2018. The House Subcommittee is also critical of the EEOC’s decision to include pay with the EEO-1 report and there is a request to the White House Office of Management and Budget (OMB) to review and possibly reject the revisions to the EEO-1 form. However, there are NOT any additional revisions at this time.

 

OSHA — New Website for Electronically Filing Injury and Illness Reports; Deadline for eSubmission of Recordkeeping Forms Extended

Earlier this year, the U.S. Occupational Safety and Health Administration announced a new regulation requiring certain employers to submit their 2016 OSHA 300A Summary electronically through a secure OSHA website. The online Injury Tracking Application is now live.

OSHA has extended the deadline for eSubmission of the 300A Summary from July 1 until December 1, 2017.

However, there is still a chance that this regulation will be eliminated. OSHA stated that it intended to issue a separate proposal to reconsider, revise, or remove other provisions of the regulation that include the new anti-retaliation requirements, post-injury drug testing and incident-based safety incentive programs. So far there have not been any new developments. KPA communications will keep you informed about OSHA updates and other regulation changes.

What do I have to do?

You can start familiarizing yourself with OSHA’s Injury Tracking Application. This page also reviews who this regulation pertains to and provides instructions and frequently asked questions to help you through the process.

 

VETS-4212 Filing Season Begins

Each year starting August 1 though September 30, all contractors and subcontractors with certain federal contractual agreements must file a report detailing the number of employees in their workforces, by job category and hiring location, who are qualified covered veterans.

Under the Vietnam Era Veterans Readjustment Assistance Act (VEVRAA), federal contractors and subcontractors must also report the number of new hires during the reporting period who are qualified covered veterans.

Does it Apply to You?

Does your organization hold any government contracts or agreement with a person or department, agency, establishment or instrumentality of the United States Government for the purchase, sale, or use of personal services and non-personal services (including construction)?

How to Submit the Form

First, ensure that you are using the most current version of the VETS-4212 form. You are encouraged to submit your completed form electronically.

Access frequently asked questions here or if you need additional assistance, you can contact the VETS-4212 Customer Support Center at 866-237-0275 or email [email protected].

 

STATE UPDATES

Massachusetts

Employers Must Accommodate Legal Medical Marijuana Use

The Massachusetts Supreme Court ruled that Massachusetts companies cannot fire employees who have a prescription for medical marijuana simply because they use the drug.

This decision overturns employers’ arguments that terminating medical marijuana users was justified because marijuana is illegal under federal law, and that permitting employees to use it, even outside of work hours, exceeded “reasonable accommodation” under antidiscrimination laws.

Going Forward

Do not use blanket anti-marijuana policies as grounds for dismissing workers whose doctors have prescribed the drug to treat their illnesses.

Instead, try to negotiate a mutually acceptable arrangement with each medical marijuana patient you employ, such as exploring alternative medications or allowing use of the drug only outside of work hours.

Keep in mind that the decision doesn’t mean employers can never fire a patient for using marijuana medically. Federal contractors or organizations in which workers operate heavy machinery, could argue that accommodating their employees’ use of the drug constitutes an “undue hardship.”

Nonetheless, the ruling puts the burden on employers to prove they cannot accommodate medical marijuana patients because their cannabis use impairs their ability to do required work, endangers public safety, or otherwise demonstrably endangers the business.

 

Missouri

Right-to-Work

In February 2017, Missouri Governor Eric Greitens signed the state’s right-to-work bill into law. Then organized labor unions filed a rarely used referendum petition seeking to freeze the law and put it before voters in 2018. Where are we now?

To get right-to-work on the ballot, the unions must collect an estimated 90,000 signatures before the new law is set to take effect on August 28, 2017.

Despite a circuit court judge ruling in June that the language of the ballot initiative seeking to overturn Missouri’s right to work law was “unfair and insufficient,” the unions are continuing their campaign to collect the necessary signatures.

More to come …

 

Human Rights Act Amendments

On June 30, 2017, legislation to make it tougher to prove workplace and housing discrimination in Missouri courts was signed into law and will go into effect August 28, 2017.

Causation

One of the Missouri Human Rights Amendments changes the litigation standard from “contributing factor” to “motivating factor.” This brings the state closer to the standard used in federal anti-discrimination laws.

“Motivating factor” is defined as “the employee’s protected classification actually playing a role in the adverse action or decision and had a determinative influence on the adverse decision or action.”

Individual Liability

The amendment removes the individual liability clause. To wit, supervisors can no longer be held personally liable and, in many cases, diversity of citizenship will allow removal to federal court.

Damages Cap

Under the amendment, exclusive of attorneys’ fees, damages awarded under the law will not exceed: 1) actual back pay and interest, and 2) where the defendant has:

  • More than 5 employees, but less than 100 employees: $50,000
  • More than 100 employees, but less than 200 employees: $100,000
  • More than 200 employees, but less than 500 employees: $200,000
  • More than 500 employees: $500,000

Time Limit

Under the amended law, if an employee doesn’t file a charge within 180 days of the alleged discriminatory act, then Missouri courts lack jurisdiction to hear the lawsuit.

In addition, the Missouri Commission on Human Rights (MCHR) will not investigate the charge or take any action other than dismissal if the timeframe for filing litigation is not met. Employers can use a timeliness defense at any time. The MCHR may only issue a notice of right to sue pursuant to the charging party’s request for one.

Wrongful Discharge

The amendment aligns with the wrongful discharge claim in the Whistleblower Protection Act, which protects an employee who:

  • Reports an employer’s unlawful act to the proper authorities
  • Reports to the employer serious misconduct in violation of a clear mandate of public policy found in the constitution, statute or regulation
  • Refuses to carry out an employer’s unlawful directive

Managers whose job is to report or provide professional opinion on the conduct in question are not protected. Employees who report alleged unlawful conduct to the person the employee claims acted unlawfully are not protected either.

 

Nevada

Requires Accommodations for Nursing Mothers

Effective July 1, 2017, all Nevada employers must provide employees who are the mother of an infant less than one year with reasonable break time and a reasonable place (other than a bathroom) where they can go to express milk.

The breaks may be with or without pay. The break rooms must be private as well as clean and free from dirt or hazardous debris.

Employers also need to publicly display an all in one poster that covers this law as well as the Pregnant Workers Fairness Act and the Domestic Violence Victims law.

 

New York City (NY)

“Ban the Box” Rules Take Effect August 5, 2017

The Fair Chance Act (FCA), commonly referred to as “Ban the Box,” prohibits New York City employers from inquiring about job applicants’ criminal conviction history before they receive a conditional employment offer. Employers that are required to conduct criminal background searches by local, state, or federal law or statute, or by the rules of a financial self-regulatory organization, are exempt. Employers hiring for positions within law enforcement agencies are also exempt.

Earlier this year, the New York City Commission on Human Rights issued clarification rules that went into effect on August 5, 2017.

Highlights

  • Established per seviolations,” which are “an action or inaction that, standing alone, without reference to additional facts, constitutes a violation of the FCA, regardless of whether any adverse employment action was taken or any actual injury was incurred.”
  • Clarified how employers may withdraw conditional employment offers due to information revealed in an applicant’s criminal conviction history report.
  • Covered how employers should respond if an applicant voluntarily disclosures his/her criminal conviction information during an interview.
  • Instructed employers on which online search terms to avoid using in conjunction with an applicant’s name prior to the extension of a conditional offer of employment. Forbidden words include: “mugshot,” “warrant”, “jail,” and “prison.”
  • Outlined responsibilities for businesses that use “temporary help firms” for short-term employment.

Compliance Tips

  1. Do not include any reference whatsoever to criminal convictions or criminal background checks in job postings, advertisements, or other publications.
  2. Do not ask about criminal conviction histories in job application forms.
  3. Never refer to an applicant’s criminal conviction history in any way prior to extending a conditional employment offer.
  4. Follow notice requirements should you wish to withdraw a conditional offer of employment because of an applicant’s criminal conviction history.
  5. Do not seek information about arrests that didn’t result in a criminal conviction.
  6. If a candidate voluntarily discloses criminal conviction information at any stage of the selection process, refrain from asking for additional information. Do not rely on the information that the applicant voluntarily disclosed.

Procedures For Withdrawing Conditional Offers of Employment

  • “Provide a complete and accurate copy of each and every piece of information relied on to determine that the applicant has a conviction history,” including but not limited to Internet search results, third-party reports, and “written summaries of oral conversations.”
  • Provide a written copy of the analysis conducted pursuant to Article 23-A. While employers don’t have to use the form drafted by the Commission, the analysis provided “must 1) include specific facts that were considered pursuant to the Article 23-A analysis and the outcome, 2) articulate the employer’s, employment agency’s, or agent’s concerns and basis for determining that there is a direct relationship or an unreasonable risk, and (3) inform applicants of their rights upon receipt of the notice, including how they can respond to the notice and the timeframe within which they must respond.”
  • Provide applicants with a reasonable period of time (at least 3 days) in which to respond to the report. In this process, the employer “must affirmatively request information concerning clarification, rehabilitation, or good conduct while engaging in the Article 23-A analysis.” The rules also contain a detailed protocol concerning employers’ duty to hold the position open while the applicant gathers this information.
  • Consider any additional information applicants provide and issue a written hiring determination that addresses the information.

 

Oregon

Set to Become First State to Require Employers to Give Hourly Employees Advance Notice of Work Schedules

Food service, retail, and hospitality employers with more than 500 employees worldwide may soon need to provide hourly employees working in Oregon with predictable schedules.

Oregon Governor Kate Brown is expected to sign Senate Bill 828, also dubbed the Fair Work Week Act, into law soon.

Under the proposed bill, qualifying employers would have to post a written work schedule for all employees at least 1-week ahead of time.

During the hiring process, employers will also need to give applicants a good faith estimate of the median number of hours they can expect to work if they’re hired.

More to come…

 

Clarifies Paid Sick Leave Law

On July 1, 2017, Oregon Governor Kate Brown signed S.B. 299 into law to clarify Oregon’s paid-sick-time law. The amendments will take effect January 1, 2018.

Summary of Changes

  • Employers can now limit the accrual of paid or unpaid sick time of their employees to 40 hours per year. Employees can still have a maximum bank of 80 hours if they have 40 hours of carryover from a prior year and 40 hours accrued within the current year.
  • Employers with a sick leave, vacation, personal or other paid time off policies that are equivalent to or more generous to employees than the paid sick leave law’s minimum requirements must comply with the law’s requirements for the first 40 hours that the policy provides per year. However, these employers don’t have to comply with the law’s requirements beyond the first 40 hours that the policy provides per year.
  • If an employee is paid an hourly, weekly or monthly wage and on a piece-rate or a commission basis, leave is paid at a rate equivalent to the employee’s hourly, weekly or monthly wage or the minimum wage, whichever is greater.
  • Seasonal farm stands or temporary construction offices located in the Portland area are not subject to the lower employee count. 
  • Certain people associated with employers may be excluded from the employee count. These individuals include directors of a corporation, members of a LLC, partners of a LLP, and sole proprietors, if they have more than 15% ownership interest in the operation. Members of the immediate families (child, spouses, and parents) of these people may also be excluded.

 

Washington

Grants More Protections for Pregnant Workers

In Washington state, if a pregnant employee works for an employer with 15 employees or more, she now has the right to the following accommodations:

  • Frequent, longer, or flexible restroom breaks
  • Modification of a no food or drink policy
  • Providing seating or allowing the employee to sit more frequently
  • Limiting lifting to 17 pounds or less.

Employers may not ask for written certification from a healthcare professional for the above accommodations.

In addition, a pregnant employee may have rights to the following workplace accommodations so long as there is no significant difficulty or expense to the employer:

  • Job restructuring, including a modified work schedule, job reassignment, and a different work station or equipment
  • A temporary transfer to a less strenuous or hazardous position
  • Work schedule flexibility for prenatal visits
  • Further accommodations upon request

Employers may request written certification from a health care professional regarding the need for these accommodations, or for restrictions on lifting less than 17 pounds.

 

Clarifies Distracted Driving Law

Washington drivers have joked that with the new distracted driving law (DUI-E) that even drinking coffee may be ticket worthy. (For the record, it’s still OK to drink your morning jo on the way to work. Just stay in your lane.)

Here is a list of what drivers can and cannot do on the road.

State Patrol Capt. Monica Alexander said officers are using their discretion on whether to write the $99 distraction ticket on top of other tickets. This is the same protocol already in place for other secondary offenses. The grace period will end in January 2018.

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Kathryn CarlsonAugust 2017 HR Regulatory Updates