December 2017 HR Regulatory Updates

by Jill Schaefer on December 4, 2017

FEDERAL UPDATES

EEO-1 Reporting Updates
As we reported in our October 2017 Regulatory Updates, the version of the EEO-1 form that would have required employers to report pay data, categorized by gender, race, and ethnicity, is still on hold. KPA will continue to keep tabs on where things are at.

In the meantime, qualifying employers must comply with the current EEO-1 reporting requirements. A workforce snapshot that includes race, ethnicity, and sex data from October 1,2017 through December 31, 2017 is due by March 31, 2018.


Beware: USCIS Form I-9 Scam
The U.S. Citizenship and Immigration Services reminds employers to be cautious of Form I-9 scams. For example, the agency never requests I-9 forms by email.

The most recent round of illegitimate emails is from [email protected], which is not a valid USCIS email address. Don’t respond to these emails or similar ones — even if they look official. Don’t click the links in them either.

How I-9s Work

  • Employers are not required to submit physical or electronic I-9 forms to the USCIS.
  • Employers must have a Form I-9 on file for every person on your payroll.
  • All of these forms must be retained for a certain period of time.

 See the UCIS’s Common Scams for more information.


OSHA Electronic Filing Deadline Nears
Under the U.S. Occupational Safety and Health Administration’s (OSHA) injury/illness recordkeeping requirements, certain employers must now electronically submit workplace injury and illness records.

The submission deadline for the 2016 OSHA 300A Summary is December 15, 2017.

Affected States
This requirement applies to 43 states. CA, MD, MN, SC, UT, WA, and WY are currently excluded.

Affected Industries
Your North American Industry Classification System (NAICS) code for your industry determines whether you need to electronically submit your 2016 OSHA 300A Summary. Below are some of the affected industries.

Additional Criteria 

  • Applies to employers with 250+ employees AND certain industries with 20-249 employees at a single establishment
  • Regardless of the size of the establishment, any workplace incident that results in an employee’s hospitalization, amputation, loss of an eye, or death must be reported directly to OSHA within a prescribed timeframe.

What Information Must Be Included?

  • Name and address of your establishment
  • NAICS code
  • Average number of employees
  • Total number of hours worked during the year
  • Number of injuries/illnesses

KPA clients have the advantage of being able to pull all of this information from our software and easily submit their OSHA 300A Summary!


STATE UPDATES

Minimum Wage Increases in 18 States
The following states will see increases in minimum wage. Some have effective dates starting the end of December 2017.

In addition to adjusting your payroll for your employees, employers in these states will also need to display new labor posters. All will be available through KPA’s HRDrive software.


Delaware

Pay History Inquiries Banned
On December 14, 2017, Delaware’s H.B. 1 law goes into effect, establishing new hiring and recruiting strategies around pay or salary history.

Delaware employers will no longer be permitted to:

  • Screen applicants based on their compensation histories, including by requiring that an applicant’s prior compensation satisfy minimum or maximum criteria
  • Seek the compensation history of an applicant from the applicant or a current or former employer.

If you haven’t already, you’ll need to revise your handbooks, policies, and trainings so that they instruct everyone in your organization not to ask about wage history during interviews or at any time in the hiring process. You’re also on the hook for recruiters’ actions so be sure to communicate these new restrictions to them and any other agents acting on your behalf during the interview and hiring process.


North Carolina

New Employment Poster
Starting December 31, 2017, under the North Carolina Employee Fair Classification Act, a new Employee Classification Section of the North Carolina Industrial Commission (NCIC) will investigate employee reports about being misclassified as independent contractors.

Employers must post a workplace notice stating that workers must be treated as employees unless they’re independent contractors. It will inform individuals that they have the right to report alleged misclassifications to the Employee Classification Section. The NCIC hasn’t issued an official poster, but the bill states that this language must be included on the poster:

  1. Any worker who is defined as an employee by either G.S. 95-25.2(4), 143-762(a)(3), 96-1(b)(10), 97-2(2), or 105-163.1(4) shall be treated as an employee unless the individual is an independent contractor.
  2. Any employee who believes that the employee has been misclassified as an independent contractor by the employee’s employer may report the suspected misclassification to the Employee Classification Section within the Industrial Commission.
  3. Alleged incidents of employee misclassification occurred may be reported to the Employee Classification Section within the Industrial Commission:

Email: [email protected]

Telephone: (919) 807-2582

Mail:
Employee Classification Section
North Carolina Industrial Commission
1233 Mail Service Center
Raleigh, NC 27699-1233


Nevada

Leave for Domestic Violence Victims
Senate Bill 361 was signed into law in March 2017 and goes into effect on January 1, 2018. It amended Nevada Revised Statutes, Chapters 608 and 613 and will require Nevada employers to grant leave to employees who are the victims of domestic violence or whose family or household members have been the victims of domestic violence.

Highlights

  • Workers employed for at least 90 days and who have been a recent victim of domestic violence or whose family have been are eligible for leave.
  • Employees may take leave for the following reasons:
    • For the diagnosis, care or treatment of a health condition.
    • To obtain counseling or assistance.
    • To participate in a court proceedings.
    • To establish a safety plan, including any action to increase the safety of the employee or the employee’s family or household member.
  • Leave may be paid or unpaid and used consecutively or intermittently.
  • Leave under the act must be deducted from Family and Medical Leave Act (FMLA) leave if the domestic violence leave duplicates the same reasons that warrant FMLA leave.
  • Employers may require an employee seeking domestic violence leave to provide documentation (i.e., police reports, protection orders, affidavits from victims’ organizations, or documentation from a physician).
  • Employers are required to maintain records of domestic violence leave for a two-year period.
  • Employers must also provide the following accommodations for employees/family members who are victims of domestic violence:
    • Transfers or reassignments.
    • Modified schedules.
    • New work phone number(s).
    • Other reasonable accommodations that don’t create undue hardships for the employer and ensure both employee and workplace safety.
  • Discrimination against employees who use domestic violence leave is forbidden.


New York City

Sick Time Includes Safe Time
Last month, New York City Mayor Bill de Blasio officially signed Introduction No. 1313-A into law. It amends and renames the city’s Earned Sick Time Act. It is now known as the Earned Safe and Sick Time Act (ESSTA) and goes into effect on May 5, 2017.

Under this law, safe time refers to family offense matters, sexual offenses, stalking, and human trafficking. It will primarily affect employee scheduling, reporting, and payroll.

Safe time can be used for the employee or a covered family member to:

  1. Obtain services from a domestic violence shelter, rape crisis center, or other shelter or services program for relief from a family offense matter, sexual offense, stalking, or human trafficking.
  2. Participate in safety planning, temporarily relocate, or take other actions to increase the safety of the employee or employee’s family members from future family offense matters, sexual offenses, stalking, or human trafficking.
  3. Meet with a civil attorney or other social service provider to obtain information and advice on, and prepare for or participate in, any criminal or civil proceeding, including, but not limited to, matters related to a family offense matter, sexual offense, stalking, human trafficking, custody, visitation, matrimonial issues, orders of protection, immigration, housing, discrimination in employment, housing, or consumer credit.
  4. File a complaint or domestic incident report with law enforcement.
  5. Meet with a district attorney’s office.
  6. Enroll children in a new school.
  7. Take other actions necessary to maintain, improve, or restore the physical, psychological, or economic health or safety of the employee or employee’s family member or to protect those who associate or work with the employee.


Washington

Paid Sick Leave Takes Effect Soon
In a move that feels a lot like cramming the night before an exam, Washington’s Department of Labor and Industries recently finalized how employers must implement Washington’s paid sick leave law, which goes into effect on January 1, 2018.

Every Washington employer needs to have a documented policy in place that permits nonexempt employees to accrue paid sick leave. Employers are not required to offer paid sick leave to exempt employees. (If you need help drafting your policy, KPA’s HR Consultants can help.)

Requirements
The state defined the following requirements that will factor into your policy development.

Accrual
Employees accrue at least 1 hour of paid sick leave for every 40 hours worked. Employees do not accrue paid leave when they are not working (i.e., on vacation, paid sick leave, etc.).

Accrual Caps
Accrual caps are prohibited.

Usage

  • Employees can use paid sick leave for an absence resulting from their own mental or physical illness, injury, or health conditions; need for medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition; or need for preventive medical care.
  • Family member. An employee may use paid sick leave to care for a family member with a mental or physical illness, injury, or health condition; to care for a family member who needs medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition; or to care for a family member who needs preventive medical care.
  • Business or Place of Care Closure. Paid sick leave may be used when the employee’s place of business has been closed by order of a public official for any health-related reason, or when an employee’s child’s school or care center has been closed for such a reason.
  • Domestic Violence Leave Act. Paid sick leave may be used for absences that qualify for leave under Washington’s Domestic Violence Leave Act.

Family Members
All of the following are considered family members:

  • A child, including a biological, adopted, or foster child, stepchild, or a child to whom the employee stands in loco parentis, is a legal guardian, or is a de facto parent, regardless of age or dependency status
  • Parent, including a biological, adoptive, de facto, or foster parent, stepparent, or legal guardian of an employee or the employee’s spouse or registered domestic partner, or a person who stood in loco parentis when the employee was a minor child
  • Spouse
  • Registered domestic partner
  • Grandparent
  • Grandchild
  • Sibling

Waiting Periods
Although employees must begin accruing paid sick leave immediately, an employer may prohibit usage of paid sick leave until the employee has been employed for 90 calendar days.

Verification
Employers may only request verification for absences exceeding 3 days. Any verification requirements must be described in a written policy.

Front Loading
Employers are permitted to frontload paid sick leave. However, employers who do this must ensure employees receive all the paid sick leave that’s required and they must also comply with carryover requirements.

Notice of Need to Use Paid Sick Leave
Employers may require employees to give reasonable notice of absences from work for authorized reasons. If foreseeable, the employer may require 10 days advance notice before using leave.

If unforeseeable, an employer may require notice as soon as possible. Any notice requirements must be in a written policy or collective bargaining agreement.

Notifying Employees
Employers must notify employees of their entitlement to paid sick leave, the rate of accrual, authorized purposes of use, and of the fact that retaliation is prohibited. Notice can be made in writing or electronically, and must be made for employees hired after January 1, 2018.

Employers must provide at least monthly notice to employees of the amount of paid sick leave they have accrued, reductions since the last notification, and the amount of unused paid sick leave available.

Paid Time Off
Employers may use a combined paid time off (PTO)/sick leave policy. However, it must still comply with all of the paid sick leave law requirements.

Pay
For each hour of paid sick leave used, an employer must pay an employee the minimum wage rate or the employee’s normal hourly compensation, whichever is higher.

Retaliation
You cannot retaliate against employees for exercising their right to use paid sick leave. Employers must inform employees in writing that retaliation is prohibited.

Recordkeeping
Employers must retain records on at least a monthly basis of paid sick leave accruals, the amount of paid sick leave available for use by an employee, and paid sick leave reductions.

Reinstatement
Employers must reinstate accrued unused paid sick leave for employees who leave and are rehired within 12 months.

If reinstatement happens in a new benefit year, an employer may limit the reinstated paid sick leave based on its carryover requirements. If an employer pays out accrued, unused paid sick leave upon separation, the employer does not have to reinstate any leave upon reinstatement.

Payout
Employers are not required to pay out accrued, unused paid sick leave when an employee voluntarily resigns or is terminated.

For complete details and helpful resources, please visit the Washington State Department of Labor & Industries’ Paid Sick Leave page.

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Jill SchaeferDecember 2017 HR Regulatory Updates