April 2018 HR Regulatory Updates

by Jill Schaefer on April 4, 2018

FEDERAL UPDATES

H-1B Filing Season Begins
Reminder: Starting April 2, 2018, employers must submit H-1B visa extension of stay petitions. With only 65,000 H-1B regular cap visas and 20,000 H-1B Master’s visas permitted, the U.S. Citizenship and Immigration Services (USCIS) may stop accepting employer applications as early as April 6.

If you haven’t already, overnight mail Form I-129 to the appropriate USCIS service center.

OSHA 300-A Posting Period Continues
Reminder: Through April 30, 2018, you must post your 2017 OSHA 300A Summary Form in a prominent area at your workplace.

E-Verify Website Updated
While the U.S. Citizenship and Immigration Services (USCIS) had previously delayed its launch of proposed E-Verify updates, E-Verify.gov went live on April 10. E-Verify is an Internet-based system that compares information from an employee’s Form I-9, Employment Eligibility Verification, to data from U.S. Department of Homeland Security and Social Security Administration records to confirm employment eligibility.

Highlights

  • Better navigation
  • Easier to use
  • Designed for employers, employees, and the general public

New Program for Resolving Wage Violations
The U.S. Department of Labor’s Wage and Hour Division will soon release a pilot program called the Payroll Audit Independent Determination (PAID) to help employers catch inadvertent overtime and minimum wage violations.

It sounds good. However, some important details about it still need to be sorted out. For example, it’s not clear how employers that have made wage mistakes will be handled in the future. Will it spell audits and fines?

Regardless of whether you decide to participate in the pilot, continue conducting your own internal audits and paying employees any back wages that you may owe them.

Fiduciary Rule Update
Last we reported on the Fiduciary Rule, the U.S. Department of Labor (DOL) had extended its non-enforcement policy until July 1, 2019 and planned on proposing new streamlined class exemption.

That still may be the case. However, last month, the U.S. Court of Appeals for the Fifth Circuit made the fiduciary advice rule legally void. It found that the DOL exceeded its authority by implementing the Fiduciary Rule and should not have reinterpreted the investment advice fiduciary definition.

This decision only applies to courts within the fifth circuit; other federal courts have upheld the Fiduciary Rule. Based on all the confusion, the DOL has again stated it isn’t enforcing the Fiduciary Rule right now. To be continued…

Sexual Harassment in the Workplace Initiative
Perhaps connected to the string of high-profile sexual harassment cases that have been making the news lately (see KPA’s blog posts Enough is Enough and Is It Sexual Harassment?), the U.S. Justice Department’s Civil Rights Division has launched its Sexual Harassment in the Workplace Initiative.

It concentrates on deterring sexual harassment in the public sector by ramping up its enforcement, remediation, and outreach efforts.

 

STATE UPDATES

Colorado

Non-compete Agreements
The Colorado Court of Appeals recently ruled that a non-compete agreement was void in Crocker v. Greater Colorado Anesthesia, P.C. While the court clarified that in general, a non-compete agreement will survive a merger. However, it didn’t hold up in this case because the plaintiff’s shareholder rights in his employer’s company were wed to his rights as an employee. He couldn’t be an employee without being a shareholder and vice versa

If your company uses non-compete agreements, you will need to tread carefully. It is also best to have them reviewed by a credible employment attorney because you need to ensure that the agreement is “reasonable:”

  • Is it ancillary to another agreement and supported by adequate consideration?
  • Does it protect a legitimate business interest?
  • Is it limited in time and geography?
  • Does the employer have an interest in being protected from the competition of the employee?

Massachusetts

Guidance on Equal Pay Law
The Massachusetts Equal Pay Act will go into effect July 1, 2018. To help employers get ready, the state’s Attorney General issued new guidance on the amendments.

Highlights

  • Employers will be prohibited from making pay different between a man and a woman in comparable positions on the basis of gender alone.
  • Employers won’t be able to consider an applicant’s previous wages or salary history to defend a claim.
  • Employers will no longer be able to ask applicants about their prior salary history.
  • There will be an affirmative defense option if employers complete a good faith self-evaluation of their pay practices.
  • The statute of limitations will be expanded.

Pregnant Workers Fairness Act Goes into Effect
The Massachusetts Pregnant Workers Fairness Act (see KPA’s March 2018 HR Regulatory Updates) went into effect on April 1, 2018. The Massachusetts Commission Against Discrimination issued two documents:

New York

Safe Leave Added to New York City’s Sick Leave Coverage
On May 5, 2018, an amendment to the New York City Earned Sick Time Act will take effect that permits employees to use paid sick/safe leave if they or their family members are the victims of a family offense. Qualifying circumstances include disorderly conduct, harassment, sexual offenses, stalking, and human trafficking.

Employees may use safe time to:

  • Obtain services from a domestic violence shelter, rape crisis center, or other shelter or services program.
  • Participate in safety planning, relocate, or safeguard themselves or their family.
  • Meet with an attorney or social worker, or participate in any criminal or civil proceeding.
  • File a complaint or domestic incident report with law enforcement.
  • Meet with a district attorney’s office.
  • Enroll children in a new school.
  • Take other actions to maintain, improve, or restore the physical, psychological, or economic health or safety of the employee or their family member.

Guidance on Paid Family Leave
With New York’s Paid Family Leave (PPL) law launching benefits in four phases from January 2018 through 2022, additional clarification on the parts currently in effect is helpful for employers.

New York State regulators recently clarified that employers don’t need to cap employees’ payroll deductions for PFL at 0.126% of the New York State Average Weekly Wage (NYSAWW) (approximately $1.65 per week in 2018). Instead, employers may deduct 0.126% of employees’ weekly wages until an employee reaches a $85.56 annual cap, which is 0.126% of the annualized NYSAWW.

See New York State’s Weekly Payroll Deduction Calculator.


Ohio

Medical Marijuana Use Approved
Medical marijuana use was approved back in 2016 throughout Ohio, but is first going into effect in September 2018. However, Ohio employers likely won’t need to adjust their stance on marijuana.

Under the law, employers:

  • Don’t have to accommodate employees’ use, possession, or distribution of marijuana in the workplace.
  • Can still discipline, terminate, refuse to hire, or otherwise take an adverse employment action because of a person’s use, possession, or distribution of marijuana in the workplace.
  • Can establish and enforce a drug-testing policy, drug-free workplace policy, or zero-tolerance drug policy.
  • Follow federal laws, which still ban marijuana use, medical or otherwise.
  • May not be sued for disciplining employees for use, possession, or distribution of medical marijuana.
  • Do not have to pay workers’ compensation to employees injured on the job while under the influence of marijuana.


Pennsylvania

Electronic Filing for First Report of Injury and Salesperson Initial License
Two documents Pennsylvania employers used to complete as hard copies now have electronic procedures:

The Pennsylvania First Report of Injury Form LIBC-44 must be filed electronically by your workers’ compensation insurance company.

The Pennsylvania Salesperson Initial License form must also be completed electronically. If you have questions, you can contact the Pennsylvania State Board of Vehicle Manufacturers, Dealers, and Salespersons at (717) 783-1697.

Washington

Ban the Box
Beginning June 7, 2018, under the Fair Chance Act, both public and private employers in Washington will be prohibited from asking applicants about arrests or convictions until after employers have otherwise determined an applicant is qualified for a position.

Highlights
Employers cannot:

  • Verbally or in writing ask job applicants about their criminal records.
  • Advertise for job openings in ways that exclude people with criminal records from applying.
  • Implement any policy or practice that automatically excludes those with a criminal record from consideration prior to an initial determination that the applicant is otherwise qualified for the position.
  • Reject applicants if they don’t disclose a criminal record prior to determining if the applicants are otherwise qualified.

Exceptions to these requirements are for positions that involve unsupervised access to children under 18 years old or vulnerable people. Additional exceptions are for federal screening requirements, law enforcement, and nonemployee volunteers.

Updates to Equal Pay
The Gender Pay Equity Act will apply to all Washington employers with 1+ employees. On June 7, 2018 it will go into effect and it will prohibit Washington employers from discriminating against “similarly employed” employees by providing less “compensation” (wages and benefits) or limiting career advancement opportunities because of gender.

Highlights

  • Job titles are not the only factor to consider. Employees are considered “similarly employed” if their jobs require similar skill, effort and responsibility, and are performed under similar working conditions.
  • Wage differences between genders must be based on one or more non-gender job-related factors.
  • Employees should be allowed to discuss their compensation with each other.

Expanded Protections for Domestic Violence Victims
Under Washington House Bill 2661 will go into effect on June 7, 2018. It will grant new protections to job applicants and employees in Washington who are survivors of domestic violence, sexual assault, or stalking.

Washington employers will not be able to:

  • Refuse to hire qualified individuals because they were an actual or perceived victim of domestic violence, sexual assault, or stalking.
  • Discharge, threaten to discharge, demote, suspending, or in any way discriminate or retaliate against victims.

“Reasonable safety accommodations are another component of this law. This permits employees to request measures that increase their safety, such as being able to transfer or be reassigned, changing their work contact information, installing locks or establishing other security protocols.

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Jill SchaeferApril 2018 HR Regulatory Updates