August 2018 HR Regulatory Updates

by Camille Bradbury on August 8, 2018

This blog post covers timely federal and state legislative employment updates. Check out what you need to know and gain compliance tips to help you stay on top of HR, the right way. Click on the federal topics or state names below to catch up on the latest news.

FEDERAL Updates

STATE Updates

FEDERAL Updates

Alert: Updated FMLA Forms

Based on requirements for the Paperwork Reduction Act, the Department of Labor sends their FMLA forms to Office of Management and Budget (OMB) every three years for an audit.

RECENT UPDATE: The following forms will expire on August 31, 2021.

  • FMLA Certification of Health Care Provider for Employee’s Serious Health Condition (WH-380-E)
  • FMLA Certification of Health Care Provider for Family Member’s Serious Health Condition (WH-380-F)
  • FMLA Notice of Eligibility and Rights & Responsibilities (WH-381)
  • FMLA Designation Notice (WH-382)
  • FMLA Certification of Qualifying Exigency for Military Family Leave (WH-384)
  • FMLA Certification for Serious Injury or Illness of Current Servicemember for Military Family Leave (WH-385)
  • FMLA Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave (WH-385-V)

DOL Rescinds 2016 Persuader Rule

Under the 2016 federal Persuader Rule, the Labor Management Reporting and Disclosure Act of 1959 required any arrangements made between employers and labor consultants to persuade workers to oppose unionization or collective bargaining, to be disclosed. The Trump Administration tested the need for this rule comparing it against attorney-client privilege.

The United States Department of Labor has issued a response and has formally rescinded the 2016 Rule no longer requiring these arrangements to be disclosed.

NLRB New Alternative Resolution Pilot Program

The National Labor Relations Board (NLRB) is expanding its voluntary alternative dispute resolution (ADR) program. Since starting the program, NLRB estimates that more than 60% of cases have reached a resolution in this program and they will now proactively review and engage with cases suitable for ADR. In ADR, parties have 28 days to mediate unless they agree to file an extension. The program is voluntary for both parties. More information can be found on the NLRB website regarding how they decide which cases are suitable and examples of cases that have gone through the process.

Association Health Plans for Small Business Owners

The Trump administration is making it easier for self-employed and small business owners to buy insurance that do not have to comply with some of the Affordable Care Act regulations, specifically certain health benefit requirements like offering maternity care. Association health plans (AHP) are group plans, also known as multi-employer welfare arrangements under the Employee Retirement Income Security Act of 1974 (ERISA). AHPs are groups of small business that band together to buy health insurance.

To file under Title I of ERISA and be considered for an AHP employer’s must meet the criteria set out in the final rule. Employers must be owners of an incorporated or unincorporated trade or business, including partners, without any shared employees, to qualify as employers for the purposes of participating in a group or association of employers sponsoring an AHP.

Important Dates:

  • Final Rule Becomes Effective: August 20, 2018
  • For current, fully compliant insured AHPs, the applicability date is September 1, 2018.
  • For those who already have an established self-insured AHPs the applicability date is January 1, 2019.
  • For new self-insured AHPs the applicability date is April 1, 2019.

Additional Resources
The Department of Labor: Association Health Plans FAQ

Customized Pension Plans, No Longer

The Internal Revenue Service (IRS) is no longer issuing determination letters to approve independently customized pension plans. Employers who have a customized benefit plan have until 2020 to determine if they will transition to the IRS’s pre-approved plans or if their plan can be amended to fit a non-standardized plan. Regardless, employers must ensure their documents are always up to date for Employee Retirement Income Security Act of 1974 (ERISA) compliance.

Additional Considerations:

  • For individually designed plan applications submitted beginning on or after January 1, 2018, the IRS review will be based on the applicable Required Amendments List, past compliance, and prior approval.
  • Determination letters that were issued to individually designed plans and have an expiration date prior to January 4, 2016, are no longer valid.

English Only Rules Not Tolerated by EEOC

The Equal Employment Opportunity Commission (EEOC) applies a high level of scrutiny to employers who have a language only policy. Any rule requiring employees to use a primary language is viewed as discriminatory. Employers must ensure that any language only policy is meeting a business need to safely and efficiently operate their business.

Employers can require employees to use a certain language to speak with coworkers, customers, or another “business necessity” may be considered, but meal or rest breaks must be excluded from this stipulation.

Considerations

  • A “business need” must be narrowly defined and shouldn’t be applied to positions that don’t require language restrictions.
  • Review the EEOC’s Immigrants’ Employment Rights Under Federal Anti-Discrimination Laws: Speak English-Only Rules

Veterans Employed by Government Contractors Must be Reported

Any contractor or subcontractor that is employed by the federal government and paid more than $150,000 must report how many veterans they employ, according to a new rule issued by the Veteran Employment and Training Service. This federal report is known as VETS-4212 and helps veterans obtain more opportunities to enter the workforce.

The 2018 filing season for VETS-4212 started on August 1, 2018 and ends on September 30, 2018.

USCIS Adjudicators Can Now Reject Cases Without Request for Evidence

The U.S. Citizenship and Immigration Services (USCIS) was required to issue a request for evidence (RFE), also known as a notice to deny, to employers when it received incomplete immigration applications. The USCIS has now issued a reversal on this practice. It will potentially reduce the RFE delaying time. However, coupled with another recent USCIS policy requiring notices to appear most likely more immigration applications will be denied.

Effective: September 11, 2018

 

STATES

Arizona

Arizona Helps Ex-Criminals Join the Workforce
Arizona legislature recently helped employers feel more comfortable about hiring ex-criminals with HB 2311. This bill eliminates employers’ liability for hiring someone convicted of a criminal offense. The offense cannot be called into evidence upon litigation unless the employers are negligent, or they hired an individual with known offenses related to the position (i.e. a Security Guard with an assault charge).

Effective: August 3, 2018

Colorado

New Data Security Law Effective September 1, 2018

HB 1128 became law requiring employers to notify Colorado residents within 30 days of a data breach. If more than 500 people are impacted, you must alert the attorney general within 30 days of a breach. This is currently the shortest time of any state. The most important distinction for this state law is the new definition of “personal identifying information” (PII), which is different than “personal information.”

Personal Identifying Information (PII) Includes:

  • Driver’s license number
  • Social security number
  • Passport or identification number
  • Medical information
  • Health insurance identification

Employers must implement safeguards in their daily operations to properly secure and expose any physical and electronic documents that contain this information.

Considerations

  • Other data protection laws, like the Health Insurance Portability and Accountability Act, (HIPAA), don’t create exceptions. The shortest time period always applies to notify of a breach if there is an expected conflict.
  • Employers must maintain a written policy of the destruction and proper disposal of documents containing PII.
  • Make a list of any third-party vendors that have access to your consumers’ data and review your agreements with them to ensure compliance.

Effective: September 1, 2018

Hawaii

Hawaii Signs Salary History Ban

On July 5, 2018, Hawaii jumped on the salary history bandwagon when SB 2352 was signed into law. This law applies to all employers. Employers will no longer be able to inquire about an applicant’s salary history including their past benefits or other compensation. However, if candidates voluntary disclose this information without any prompting, employers will be allowed to discuss candidates’ wage expectations. This law does not apply to internal transfers or promotions and employers cannot prohibit employees from discussing their wages with each other.

Considerations

  • Review your hiring applications and remove questions related to salary history.
  • Train your hiring managers not to ask applicants questions related to prior compensation during interviews.
  • Review and revise any employee policies that prohibit salary discussions among coworkers.
  • Background checks that expose compensation are not prohibited, but the information cannot be used to set a salary wage.

Effective: January 1, 2019

Louisiana

Louisiana Tightens Up on Data Breach Law

Louisiana’s new data breach law pertains to Louisiana residents’ data, expands the definition of “personal information,” and increases employers’ notification responsibilities.
Personal Information Includes:

  • Passports and identification cards
  • Biometric data (data to authenticate identity by an individual’s biology, fingerprints, voice)
  • Social security number
  • Driver’s license
  • Credit card or debit card number with security code and/or password

Louisiana employers must notify residents within 60 days of a data breach discovery. If delayed, employers must notify the Louisiana Attorney General within 60 days to explain the cause of the delay and to be granted an extension to notify consumers.

Considerations

  • Proper protections must be taken when handling personal information.
  • All employers who conduct business in the state of Louisiana must comply with proper security measures to protect personal information.
  • When documents containing personal information are no longer needed, ensure they are properly destroyed.

Effective: August 1, 2018

Massachusetts

Massachusetts Paid Leave and Minimum Wage Increase

Massachusetts is making headlines with their new state Paid and Family Leave, funded by a new payroll tax, the Family and Medical Leave Trust Fund. Effective July 1, 2019, $0.63 cents will be split between the employee and employer to fund the program and pay for paid leave. Employers with fewer than 25 employees are not required to pay the employer portion of this payroll tax.

Paid Family and Medical Leave

All employers must provide up to 12 weeks of paid leave for eligible employees (those who work at least 20 hours a week and have been employed for 26 weeks) to care for family member or bond with a new child and up to 20 weeks of paid leave to address their own serious medical issues. An employee must be eligible for unemployment benefits under Massachusetts law to receive Paid Family and Medical Leave.

Paid medical leave is available to:

  • Care for a family member with a serious health condition (family members include a domestic partner, grandchildren, grandparents, siblings, and in-laws.)
  • A qualifying exigency arising out of the fact that a family member is on active military duty or notified about active duty (given up to 26 weeks of paid leave) or in order to care for a family member who is a covered service member.

Leave will run concurrently with the Massachusetts Parental Leave Act and the federal Family and Medical Leave Act. Employers that have paid leave plans that are equal or greater to a state plan can opt out. Any retaliation taken against an employee within 6 months of their taking leave is prohibited.

Effective: Paid Leave notice describing benefits must be posted and given to employees within 30 days of hire by January 1, 2019.

Effective: Beginning 2021 Paid Leave for Employees

Minimum Wage Increases Annually
Massachusetts’ minimum wage will reach $15 by 2023. The state’s current minimum wage is $11.00, and it will increase to $12.00 on January 1, 2019. Every subsequent year, it will go up $1.00 until it reaches $15 in 2023. Tipped employees’ wages will increase from $3.75 to $4.35 per hour with a subsequent increase every year until it reaches $6.75 by 2023.

Effective: January 1, 2019

Premium Holiday Pay, Soon No More
Sunday and holiday premium pay will gradually decrease over the next 4 years. Effective January 1, 2019, holiday pay will drop 1.4 times the regular rate. The pay will be completely eliminated by January 1, 2023. At that point, employees will be able to refuse to work on Sundays and holidays without being penalized.

Considerations

  • Review your payroll forms to update the minimum wage requirements and revisit your policies related to holiday and premium pay.
  • Start reviewing your policies to prepare for the new paid leave provisions that go into effect the beginning of next year.

Effective: January 1, 2019

New York

NYC Temporary Schedule Change Law Takes Effect
On July 18, 2018, New York City’s (NYC) Fair Workweek Act was amended and is now in effect. It allows employees to make two temporary schedule changes each calendar year, of up to one business day each, for personal events. This applies to all employees except government workers, employees covered under collective bargaining, and some employees in entertainment who work over 80 hours per year in NYC and have been employed for 120+ days.

Temporary Schedule Changes Include:

  • Swapping shifts
  • Working remotely
  • Change of work hours
  • Using PTO or short-term unpaid leave

Personal events include:

  • Care of a minor
  • Care for family or household member who depends on the employee for medical care
  • Reasons that apply under NYC’s Paid Safe and Sick Leave Law
  • Legal proceedings for benefits (for the employee or a dependent/care receipt)

Considerations

Employers must post the “You Have a Right to Temporary Changes to Your Work Schedule” notice in the primary language that is spoken at the business and any other language that 5% of employees speak. Poster availability in other languages is dependent on The Department of Consumer Affairs. The notice needs to be 11 x 17 inches and placed in a location visible to all employees.

Additional Resource
Temporary Schedule Change Law: What Employers and Workers Need to Know

Oklahoma

Oklahoma Allows Medical Marijuana
Medical marijuana use is now legal in Oklahoma. Unlike other states, Oklahoma permits the use of medical marijuana for any condition. Medical marijuana cards can be obtained by anyone 18 years or older. Minors must obtain authorization from two board-certified physicians and one parent/guardian.

Employers cannot discriminate against employees who have a medical marijuana card unless marijuana use would cause monetary harm to the business. Employers can still prohibit the use and possession of marijuana at the workplace. Marijuana paraphernalia is not illegal for licensed users, but it is unclear whether employers can discipline employees who possess such paraphernalia but don’t use the substance.

Considerations

  • Revise your drug and alcohol policies to allow for licensed marijuana users. You can still conduct random drug testing, but keep in mind that proving employees used marijuana at work can be difficult to prove. An employee may test positive if they use marijuana off duty.
  • If you currently test for marijuana prior to employment, ensure that there is an amendment in your policy to allow for medical marijuana patients. Without a medical card, however, employees without a license are not authorized to use it. Employers will also have to have a valid reason to deny employment outside of holding a marijuana license.
  • This law opens the door for recreational marijuana use and employers should be prepared. Marijuana is still illegal under federal law.

Effective: July 26, 2018

South Carolina

New Pregnancy Notification Requirements
South Carolina amended Pregnancy Accommodation requirements and the South Carolina Human Affairs Commission (SCHAC) has released a new poster that must be displayed by September 14, 2018.

The Pregnancy Accommodation Act requires South Carolina employers with 15+ employees to:

  • Notify all new employees at the time they’re hired that they have a right to be free from discrimination for medical or work needs related to pregnancy.
  • Employers must provide reasonable accommodation for pregnant employees and new mothers.

Considerations

  • Employers with 15+ employees must have an Equal Employment Opportunity Commission policy that prohibits pregnancy discrimination, including medical needs related to pregnancy.
  • Your handbook policy should include reasonable accommodation for childbirth-related medical needs unless you can prove it causes undue hardship.
  • In addition to posting the required poster, anyone hired before May 17, 2018, must be provided this notice before September 14, 2018.
  • This poster must be displayed by September 14, 2018 (English and Spanish versions are available).

Additional Resource
South Carolina Human Affairs Commission’s FAQs on Pregnancy Accommodation Act

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Camille BradburyAugust 2018 HR Regulatory Updates