February 2018 HR Regulatory Updates

by Jill Schaefer on February 6, 2018

FEDERAL UPDATES

Penalties Increase for Employment Law Violations
Three federal agencies — the Environmental Protection Agency (EPA), the Occupational Health & Safety Administration (OSHA), and the U.S. Department of Labor (DOL) — announced their annual-allotted increases for non-compliance fines.

This is yet another reason why it’s so important to ensure your organization is abiding by all environmental health and safety and employment laws. Fortunately, both are KPA’s specialty.

With the new inflation-based updates, many EPA penalties are now $53,484–55,907. Some penalties are as high as $97,229 per day, per violation. OSHA’s updated penalty range is $12,934–129,336 per violation for willful and repeated offenses.

Below are the maximum amounts the DOL can charge employers for various violations:

  • Minimum wage and overtime rules = $1,964 per day
  • Child labor laws = $12,529 per day
  • Anti-retaliation and discrimination laws under visa programs = $20,521 per day
  • Workplace injuries or deaths of child workers = $56,947 per day
  • Willful replacement of American workers under the H-1B visa program = $52,641 per day
  • Employee Retirement Income Security Act (ERISA) = $2,140 per day
  • Genetic Information Nondiscrimination Act (GINA) = $569,468 maximum 


EEO-1 Filing Period Opens
Employers have until March 1, 2018, to file their 2017 EEO-1 report, which must include the number of employees by race, ethnicity, and sex, in each of the 10 equal employment opportunity job categories. At this time, employers are not required to include payment information.

Employers can submit the EEO-1 survey online through the U.S. Equal Employment Opportunity Commission’s web portal.

Additional Resource
KPA’s “Are You Up-to-speed on the New EEO Changes?” webinar


E-verify Records Deletion
If you’ve been participating in the U.S. Citizenship and Immigration Services’ (USCIS) E-Verify electronic employment eligibility verification system since December 2007, you may want to back up the records that you entered that year. That’s because the agency will soon start deleting data that is 10+ years old starting this year and continuing annually thereafter.

Beginning March 1, 2018, the USCIS will delete E-Verify records dated on or before December 31, 2007.

You have until February 28, 2018, to log in and download case information from the Historic Records Report if you want to retain the information. Otherwise, it will be lost.

Employment lawyers recommend that you do take the time to back up this historical data if you haven’t already done so.

The USCIS also recommends that employers add the E-Verify case verification number on the I-9 forms and keep the Historic Records Report along with the corresponding forms.

Additional Resource
Instructions to Download Historic Records Reports in E-Verify


Lowered Risk for Unpaid Internships
For many professionals, an unpaid internship is part of the tradeoff for gaining experience. However, since 2010, unpaid internships were tricky for employers due to the risk of wage and hour litigation.

Last month, the U.S. Department of Labor replaced the old six-factor test for determining whether an intern was properly classified and entitled to wages under the Fair Labor Standards Act (FLSA). It released a simpler, seven-point primary beneficiary test for employers to use to determine if an intern is really an employee.

  1. Do the intern and the employer both clearly understand that there is no expectation of compensation? Any promise of compensation, expressed or implied, suggests that the intern is actually an employee.
  2. To what extent does the internship provide training similar to the kind that is given in an educational environment?
  3. How much is the internship tied to the intern’s formal education program by integrated coursework or the receipt of academic credit?
  4. Does the internship accommodate the intern’s academic commitments and correspond with the academic calendar?
  5. Is the length of the internship limited and does it provides the intern with beneficial learning?
  6. How much does the intern’s work complement, rather than displace, the work of paid employees and provide significant educational benefits to the intern?
  7. Do the intern and employer both understand that the internship doesn’t entitle the intern to a paid job at the end of the internship?


Cadillac Tax Delayed Until 2022
Under the Affordable Care Act (ACA), there is a high-cost plan tax that requires insurers to pay a 40% excise tax if employer-sponsored healthcare plans exceeded ~$10,200 in individual premiums or ~$27,500 for families. It was supposed to go into effect in 2020, but Congress and President Donald Trump authorized a 2-year delay for it.

The Cadillac Tax has been controversial as many experts said that the true burden of this tax would fall on workers in the form of lower wages and that it would limit tax preferences for employer-sponsored health insurance.

If it does go into effect in 4 years, the Cadillac Tax would affect employers’ and employees’ health insurance premium contributions, health saving accounts, health reimbursement arrangements, and medical flexible spending account contributions.

Depending on the status of healthcare reform, the Internal Revenue Service will eventually need to issue regulations on this tax to clarify how it works.


OSHA 300A Posting Begins
It’s that time of the year again! Your 2017 OSHA 300A Summary Form needed to be posted in a prominent area at your workplace by Thursday, February 1, 2018. The posting can be taken down after April 30, 2018.

KPA clients can download a PDF form from myKPAonline.com that auto-populates any accident information entered into the system.

The following industries are exempt from this posting requirement:

  • Retail
  • Restaurants
  • Finance
  • Insurance
  • Real estate
  • Any facility with 10 employees or less

The complete exemption list can be found in Appendix A to Subpart B. Another important note is that this requirement is not the same as the electronic submission requirement.

Before posting your OSHA 300A notice in a visible and accessible location for employees, you’ll need to add the following details to the “Establishment Information” section:

  1. Industry description
  2. Standard Industrial Classification (SIC) or North American Industry Classification System (NAICS) code
  3. Total hours worked by employees in 2017
  4. Certifying official signature.

Additional Resource
OSHA’s 15-minute tutorial on completing recordkeeping forms


Prepare H-1B Visa Petitions for FY2018
Starting April 2, 2018, employers must submit H-1B visa extension of stay petitions in order to be considered as part of the limited selection lottery. Once a sufficient number of applications are submitted, the U.S. Citizenship and Immigration Services (USCIS) will stop accepting petitions. This could happen as early as April 6. Employees with accepted H-1B visas can continue or begin work on October 1, 2019.

The H-1B program allows U.S. companies to temporarily hire foreign workers who have highly specialized knowledge and a bachelor’s degree or higher.

Just as last fiscal year, the H-1B regular cap will again be 65,000 and the H-1B Master’s exemption will be 20,000. Demand for these visas exceeds the allotted amount.

As soon as possible, identify any current or prospective employees who need H-1B sponsorship. Assemble all necessary evidence to support your petitions, including detailed proof of a person’s qualifications in a specialty position.

Additional Resource
H-1B Fiscal Year 2018 Cap Season

 

STATE UPDATES

MARYLAND

Paid Sick Leave Law Enacted
On January 11, 2018, Maryland legislators overrode Governor Larry Hogan’s veto on the Healthy Working Families Act and it was set to go into effect on February 11, 2018. By January 25, 2018, an emergency bill was enacted to delay enforcement of this sick leave law for another 60 days.

Highlights

  • Under this law, employers with 15+ employees must offer part-time, full-time, temporary, and seasonal employees up to 40 hours of paid sick and safe leave each year.
  • Eligible employees will accrue paid leave at a minimum rate of 1 hour for every 30 hours worked.
  • Employers can grant employees the entire 40-hour block of paid sick and safe leave at the beginning of the year or the beginning of employment.
  • Employers may allow new employees to be employed for 106 consecutive calendar days before they can accrue sick leave.
  • Employees may carry over up to 40 hours of paid sick leave into the next calendar year. Employers can cap sick leave usage at 64 hours per year.
  • Qualifying events include care for the employee’s own mental or physical illness, or that of a family member; preventive medical care; maternity or paternity leave; domestic violence, sexual assault, or stalking.
  • Employees must provide 7 days advance notice when the leave is foreseeable.
  • Employers can deny sick leave requests if the employee doesn’t provide proper advance notice and the absence will cause a disruption for the employer.
  • Employers can establish a verification process to support employees’ sick leave requests.
  • Employers with fewer than 14 employers have to offer unpaid sick and safe leave.
  • A mandatory notice must be given to each employee informing them about their sick leave and safe leave rights.
  • The following are exempt:
    • Anyone who works less than 12 hours/week
    • Those under age 18
    • People employed by a temp services agency
    • Those who perform work on an as-needed basis in health or human services industries
    • Agricultural sector or operations workers
    • Construction workers subject to collective bargaining agreements

The Maryland Department of Labor, Licensing & Regulation will be developing guidance documents, sample policies, and FAQs. In the meantime, review your organization’s leave policies and payroll setup and adjust them accordingly.

For Maryland employers located in counties that already enacted sick leave ordinances, including Montgomery and Prince George’s County, employers must follow the more generous set of regulations, which are likely to be at the local level.


NEW JERSEY

Anti-discrimination Breastfeeding Protections
The New Jersey Law Against Discrimination was amended to protect individuals who are breastfeeding or expressing milk from being discriminated against in the workplace, housing, and public accommodation environments. The law is now in full effect.

It’s illegal for New Jersey employers to refuse to hire, terminate, or otherwise discriminate against someone who is breastfeeding. In addition, if an employee asks for accommodations related to breastfeeding, employers can’t retaliate against employers for doing so.

Employers also need to provide employees reasonable accommodations to express milk during the workday unless employers can demonstrate that doing so causes undue harm.

Accommodations include:

  • Reasonable break times each day to express milk
  • A private room or location other than a bathroom stall

NEW YORK CITY, NEW YORK

Updated Pregnancy Accommodation Notices
New York City employers must provide reasonable accommodations related to childbirth and pregnancy for employees. If you haven’t already, check out the New York City Commission on Human Rights’ Fact Sheet and Notice.

The notice must be given to all new employees and posted prominently in the workplace. It notifies employees about their rights as well as identifies employer responsibilities.

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Jill SchaeferFebruary 2018 HR Regulatory Updates