July 2018 HR Regulatory Updates

by Camille Bradbury on July 5, 2018

FEDERAL

Trump’s Travel Ban Approved
The U.S. Supreme Court approved President Trump’s travel ban stating that the President is within his rights to restrict travel for national security reasons. Court’s struck down the argument that the ban was to discriminate against Muslims, ruling that it did not violate Constitutional Law. You may want to caution employees to limit international travel to impacted countries: Iran, Lybia, North Korea, Somalia, Syria, Venezuela, and Yemen.

DOL Fiduciary Rule is Dead
As KPA reported in April and June, this rule has finally has reached a verdict. On June 21, 2018, the U.S. Court of Appeals for the Fifth Circuit vacated the rule, which regulated brokers and financial advisors acting as fiduciaries. The U.S. Securities and Exchange Commission (SEC) has proposed new rules for investment advisors and brokers requiring advisors to act in the best interest of their clients. There will be more to come and KPA will keep you posted on any new developments.


H-2B Temporary Visas Extended by Petition
Currently, employers in industries like agriculture, hospitality, and recreation rely on immigrant workers to fill the majority of their positions. Employers have been pressuring the Trump Administration to authorize more visas for some time now. Employers with a significant financial hardship can now submit a petition for more visas, but the current limit is already maxed out. The U.S. Citizenship and Immigration Office is denying any additional petitions past June 6, 2018, not within the lottery system that the Administration set up to respond to the high volume of requests.

Additional Considerations

  • List your open positions with the U.S. State Workforce Agency to appeal to U.S. workers before applying for immigrant workers.
  • Find out eligibility requirements to apply for next year.
  • Review forms to petition for 2019.


Handbooks for the Win, Common Sense Policies Return
Employers found themselves revisiting their handbooks with the Obama Administration as many policies were deemed unlawful. Now, the National Labor Relations Board (NLRB) has upheld many of these provisions.

Highlights

  • Socially unacceptable behavior can prohibit disrespect, gossip, and other disruptive behavior, including disparaging employees from publishing any negative content about other coworkers.
  • Misrepresentation of company, including talking to the media, using photographs/recordings, and/or misusing the company logo can be prohibited in handbooks.
  • Preventing insubordination employers can once again prohibit employees from being insubordinate and can expect employees to perform their expected duties.
  • Conflicts of interest, including nepotism and self-enrichment policies, continue to be lawful.

Additional Considerations

  • Employers cannot prohibit employees from discussing wages or voting on matters regarding the organization.
  • Employers can take back some control with their handbook policies and should consider revisiting them as these provisions will apply for the next couple of years.
  • Check out NLRB’s Guidance on Handbook Rules Post-Boeing memo.


Health Association Plans Appeal to Small Business Employers & Sole Proprietors
The U.S. Department of Labor has expanded health insurance plans to small business employers that form an association based on geographic location or industry. Redefining “employer,” this new rule allows small business to offer affordable health care insurance to their employees as well as extend to sole proprietors and their families who become a part of associations.

Additional Considerations

  • Review your state rules as they will still dictate association health plans (AHP) rules.
  • AHPs cannot charge higher premiums or restrict employees with pre-existing conditions.
  • Large employers with 50-100 or more employees are still held to the Affordable Care Act (ACA) standards.
  • Forming an association should be considered with scrutiny as the administrative costs and responsibilities may outweigh the benefits.


OSHA Clarifies Electronic Reporting Requirements for State Plans

Last year, OSHA mandated electronic injury/illness reporting for certain employers. At that time, 7 states hadn’t decided if they were going to adopt this requirement. Now they have. Also, keep in mind that only a fraction of employers need to submit an electronic OSHA 300A form by July 1, 2018.

Highlights

  • All employers in states that are covered under federal jurisdiction or OSHA-run state plans that have adopted the electronic recordkeeping rule, must electronically submit injury and illness data for the 2017 calendar year by July 1, 2018.
  • MD, SC, UT, WA, and WY are the only states excluded from reporting injury and illness records electronically to OSHA.
  • CA and MN have OSHA state plans and just adopted the electronic recordkeeping rule. Employers in those states are not required to submit data for the 2016 calendar year.


PCORI Fees Due: July 31, 2018

The Federal Patient-Centered Outcomes Research Institute (PCORI) collects fees through the IRS from self-insured health plans to gather statistics for the Affordable Care Act (ACA). The IRS has increased these fees from $2.26 to $2.39 as it must account for all adults and children covered by self-insured plans or employer-contributed FSA or HRA, unless exempt.

Compliance Considerations

  • Must file IRS Form 720
  • Plans effective January 2017 to October 2017 must pay $2.26 per covered individual.
  • Plans effective October 2017 to December 2017 must pay $2.36 per covered individual.


Form 5500 Due July 31, 2018

Part of the Employee Retirement Income Security Act (ERISA), this form regulates employee benefit plans. All health and welfare plans covering 100+ employees, 403(b) plans, and plans subjected to ERISA must complete this form by July 31.

 

STATES

Arizona

Data Breach Regulations: July 21, 2018
Arizona’s data breach law, taking effect on July 21, 2018, increases employer obligations in the event of a data breach. The new law also expands the definition of “personal information” to include email identification with passwords and security questions to access online accounts.

Actions

  • Must notify affected consumers of a breach within 45 days.
  • If more than 1,000 customers or people are affected, employers must notify the Attorney General.


Employer Hiring Liability for Ex-Criminals
In Arizona, employer liability is now limited when it comes to employer negligence in hiring criminals. However, it depends on the nature of the crime and if the employer knowingly hired a potential candidate who had an offense directly related to intended job duties.

Considerations

  • “Criminal offense” does not cover all past crimes. Violent and sexual offenses are not included.
  • Liability will not be extended to those who knowingly hired criminals who have had offense directly related to employee’s responsibilities.
  • Evidence of offense prior to the date of hire is not valid in court.

We recommend that if you haven’t already that you review and modify your hiring policies in accordance with the new law by July 21, 2018.


Georgia 

Hands-Free Device: Effective July 1, 2018
Law enforcement found it difficult to enforce standard no texting and driving laws, which prompted an amendment to allow only hand-free devices.

Highlights

  • Drivers can only use hands-free devices; no part of the body may be used to initiate a call unless an earpiece or another detached means is used.
  • Drivers of commercial vehicles can use no more than a single button to operate a call on the road.
  • Wireless devices extend to personal device assistants, GPS, computer, tablet, iPhones, or computers.
  • Fines range from $50 for a first-time offense to $15.


Illinois 

Chicago “Hands Off, Pants On” Update
As KPA reported in January, Chicago passed sexual assault protections for hotel workers.Some of the provisions are now in effect.

Action

  • Required employers must supply a panic button to all hotel employees by 7/1/2018.
  • Revisit your anti-sexual harassment policy which should include: the proper procedure in the event of an assault or other emergencies, no retaliation for victims, and paid time off for victims.


Mid-Year Minimum Wage Updates

Chicago, IL$12.00/hr. 7/1/2018
Cook County, IL$11.00/hr. 7/1/2018

 

Iowa

Alcohol Limit Lowered for Employees
As KPA reported in May, Iowa has one of the strictest drug and alcohol regulations for employees in the country prompting employers to revisit and modify their current policies. Updates are now in effect this month. The limit is now no more than .02 grams of alcohol for an employee who shows up to work under the influence. Details govern how to discipline an employee, supervisor training obligations, drug and alcohol testing, and policies.

Action 

  • Lower limit takes effect July 1.
  • Employers should revisit their drug and alcohol policy this month.
  • Ensure supervisors have proper training.

 

Kentucky 

Changes to Workers’ Compensation Laws
As KPA reported in May, Kentucky addressed workers’ compensation in a number of enacted pieces of legislation. These are intended to help protect employers from extensive liability and are now in effect.

Highlights 

  • Termination of income benefits shall cease: four years after the injury, if the individual reaches age 70, or if the individual qualifies for social security.
  • An employer is not liable if the employee willfully intended to injure or kill oneself while performing work duties.
  • Employees alleging trauma related to work must file within two years and must be filed with the Commissioner within five years.
  • In regards to permanent or partial disability employer must compensate 15 years from the date of injury or last exposure. However, the employee must:
    • File an application with 75 days.
    • Demonstrate that continued medical care is necessary.
    • Administrative law judge must agree.

 

Maine 

Maine Legislature Allows Employers to Limit Marijuana Compensation Onsite
Maine’s efforts to legalize recreational marijuana have received opposition from the state’s governor. However, the legislation has voter support. As such, employers need to revisit their drug and alcohol policies that must be approved by the Maine Department of Labor. While regulations for off-site and off-duty consumption remain unclear, employers can include these provisions in their policies:

  • Employers are not required to permit consumption of marijuana in the workplace.
  • Employers can restrict marijuana usage in the context of work.
  • Employers may discipline employers for being intoxicated at work.

Since recreational marijuana usage on the horizon in Maine, it’s a good idea to review your organization’s drug and alcohol policies now.


Portland, ME Midyear Minimum State Wage Increases

Portland, ME $10.90/hr. 7/1/2018

 

Maryland 

Maryland Midyear Minimum State Wage Increases

Maryland $10.10/hr. 7/1/2018
Montgomery County$12.25/hr. (51+ employees)

$12.00/hr. (50 or fewer employees)
7/1/2018

 

Massachusetts 

Massachusetts Pay Equity Takes Effect July 1, 2018
To decrease the gap and wage disparities between men and women, the law restricts asking about applicants’ salary history, however, salary expectations are allowed to be discussed. Below are permitted reasons employers may use to justify different employee wages:

  • Merit or seniority system
  • Commission based or a system that measures earnings related to sales
  • Geographical location and/or amount of travel
  • Education and training

 

Minnesota 

Minneapolis, MN Midyear Minimum Wage City Increases

Minneapolis, MN$11.25/hr. (More than a 100 employees)
$10.25/hr. (100 or fewer employees)
7/1/2018

 

Nevada

Minimum Wage Won’t Increase This Year
Minimum wage in Nevada will not increase in 2018. With benefits, the minimum wage remains at $7.25/hr., and without benefits, the minimum wage remains at $8.25/hr.

 

New Hampshire 

Gender Identity Laws Take Effect July 8, 2018
New Hampshire’s Law Against Discrimination will soon expand to include protection for gender identity — whether or not that gender is biologically the same at birth. The state’s Law Against Discrimination includes discrimination against employment, public accommodations, and housing restrictions for protected classes.

You’ll want to review and modify your existing policies related to discrimination and harassment to better ensure compliance.

 

New Jersey  

Equal Pay Act Effective July 1, 2018
As KPA reported in May, The Equal Pay Act extends from protecting sex-based pay practices to protecting against that kind of discrimination for all protected classes. In cases of wage differentials, employers must show that the following factors existed to account for any wage disparities:

  • Training
  • Education
  • Performance or experience

Additional Considerations:

  • Review existing pay practices to ensure compliance.
  • Train management on salary determination best practices/regulations and guide them on the fact that promotions must be based on the valid reasons listed above.

 

New Mexico 

Minimum Wage Remains Unchanged
Las Cruces, NM is keeping its current minimum wage at $9.20/hr. and $3.68 for tipped workers.

 

New York 

NDA’s and Arbitration in Cases of Sexual Harassment
On July 11, 2018, New York will restrict the use of non-disclosures and mandatory arbitration in sexual harassment settlement cases. Victims can require confidentiality and must do so in writing but, if not, the disclosure of all evidence and underlying facts shall be provided to the courts. (See KPA’s May 2018 HR Regulatory Updates.)

Additional Considerations

  • Employers should revisit their confidentiality laws related to sexual harassment claims to ensure compliance.
  • Looking ahead, training regulations will tighten for employers. Prepare to boost your harassment training efforts in compliance with state law for April 2019.


NYC Employers to Accommodate “Personal Events:” July 18, 2018

All New York City employers will be required to accommodate employees who need temporary schedule changes due to personal events related to:


Westchester Prohibits Inquires Related to Pay History, July 9, 2018
Westchester will soon be closing the pay gap for women, the aging population, and the long-term unemployed who are rejoining the workforce.

Considerations

  • Applies to employers with 4+ employees; unless 2/3 of the staff are family.
  • Review hiring practices and train managers to eliminate questions related to pay history.

 

Oregon 

New Withholding Tax
As part of the transit tax, on July 1, employers must withhold 1/10 of 1% of wages from the following groups of people. Employees who are not subject to current withholding taxes will still need to comply with this new law.

  • Oregon residents (statewide)
  • Non-residents who work in Oregon


Oregon’s Fair Work Week Act Expanded

The Fair Work Week Act, also known as the predictive schedule law, went into effect on July 1, 2018. The first of its kind, this law requires employers in hospitality, retail, and food and beverage industries to adopt predictive schedule procedures for hourly employees. Civil penalties for non-compliance range from $500 to $2000.

Applies to:

  • Large employers with 500+ employers in hospitality, food and beverage, and retail industries, and includes chains and enterprises (that don’t necessarily have 500 employees).
  • Hourly employees; not including temporary workers.

Requirements:

  • If hired after July 1, 2018, employees must be given a good faith, estimated work schedule.
  • Standby list can be opted into by employees to help employers cover unexpected shifts; employees on this list are entitled to the regular rate of pay only. The standby list also has additional regulations.
  • Employees can request schedule changes and the employer is restricted from retaliation, but employers can still deny the request.
  • Employers cannot discipline an employee for refusing to work additional hours that were not scheduled.
  • Employers cannot schedule an employee for more than 10 hours unless the employee consents.

Advance Notice for Schedule Changes: 

  • Employees must be given seven-day notice for work schedule; including temporary or on-call shifts.
  • If no advanced notice is given, employees are owed one hour extra of the employee’s regular rate of pay.
  • When there is a schedule change and no advanced notice was provided, employees are entitled to 1/2 the regular rate of pay for every hour not worked.

Exceptions: 

  • Changes to start time 30min or less.
  • Employee agrees to swap; dependent on manager approval, if necessary.
  • Employee requests a change in writing.
  • Employer subtracts hours for disciplinary reasons.
  • Health, safety, or event changes that are necessary for the employee and outside an employer’s control.
  • Requests are made of employees as stated in the standby list requirements.


Oregon Midyear Minimum State Wage Increases

Oregon $10.75/hr. Urban counties
$12.00/hr. Portland metro
$10.50/hr. Nonurban counties
7/1/2018

 

Rhode Island 

Paid Sick Leave, Effective July 1, 2018
Rhode Island’s Healthy and Safe Families and Workplaces Act
now requires employers with 18+ employees to provide paid sick leave. It went into effect on July 1, 2018, and allows employees to accrue and use paid sick leave.

Additional Considerations:

  • Up to 24 hours of paid sick leave can be accrued in 2018, 32 hours in 2019, and 40 hours in subsequent years.
  • If you offer more hours than required for vacation or PTO, you do not need to provide additional paid sick leave.
  • Employers can request medical documentation.
  • Employers can require 90-day probation period before granting paid sick leave and even longer for temporary or seasonal employees.
  • Include your sick time policy in your employee handbook or manual.

There is also a new poster requirement associated with this law. Employers must post the “Notice to All Employees — Information Employers Must Post” document in a prominent place in the workplace. An optional item that you can distribute to your employees is the “Healthy and Safe Families and Workplaces Fact Sheet.” As always, KPA’s HRDrive® clients have access to up-to-date, state-specific employment documents like these.


South Dakota 

South Dakota Data Breach Law Enacted

Effective July 1, 2018, this law expands the definition of personal information similar to include account credentials, health information, usernames/passwords, and employee identification numbers.

Additional Considerations:

  • South Dakota differs from other states in that it requires employers to notify credit reporting agencies regardless of how many people were impacted.
  • If more than 250 consumers are affected, employers must notify the Attorney General.
  • Requires notification even in cases of “unauthorized acquisition” unless it will “not likely result in harm”.

 

Vermont 

Sexual Harassment Obligations for Employers Effective July 2018
Sexual harassment laws are sweeping the nation, and Vermont requires employers to take an active role in protecting employees in the workforce. New requirements mandate that employers:

  • Provide written sexual harassment policies.
  • Consider provide sexual harassment training.
  • Do not create any policy that mandates employees participate or not in sexual harassment investigations.
  • Abide by strict non-retaliation laws for anyone involved in sexual harassment cases.
  • May use sexual harassment confidentiality clauses.
  • File online complaints using the Attorney General Office’s new online portal and allow the Attorney General to inspect any workplace or investigate managerial staff with 48 hours notice. The Attorney General can require training, if necessary.


Marijuana Use and Restrictions
While retail sales remain illegal, adults over the age of 21 can possess up to 1 ounce and grow up to 2 mature marijuana plants. Employers can still prohibit the use of marijuana at work and drug test for marijuana as a condition of employment. Marijuana is still prohibited in public places and landlords can still ban the use of marijuana on their properties.

You’ll need to revisit your drug and alcohol policies. It’s recommended you also remind employees that marijuana is still illegal under federal law.


Salary History Inquiries Prohibited July 1, 2018
Vermont employers are now prohibited from asking about prior pay. However, inquiring about salary expectations is still valid as well as confirming an applicant’s salary through their references. If the employee offers this information on their own, employers are permitted to consider it.

Considerations

  • Ensure hiring policies reflect this law and that no application question inquires about previous salary history.
  • Train hiring managers on proper protocols.


Protecting Crime Victims
Vermont now extends protections to crime victims in the workplace. A crime victim is defined as anyone who has incurred physical, emotional, or financial injury as a result of a crime committed. In the past when employers have been faced with employing a victim, in the same place as the perpetrator, they have elected not to hire the victim. This legislation makes that illegal.

Additional Considerations

  • Victims have unpaid leave rights to attend court proceedings. Extend this to employees who work at least 20 hours per week. Crime victims may be extended the same protections as the Family Medical Leave Act (FMLA) or the Vermont Parental and Family Paid Leave Act (VPFLA).
  • Employees must be assigned to the same or a comparable job upon returning from leave.
  • Vermont employers must display the required “Vermont Crime Victims Leave Poster” in the workplace.


Virginia 

COBRA Limitation for Gross Misconduct
Mini-COBRA (authorized for employers with 20 or fewer employees) typically grants benefits to eligible employees upon leave for up to 12 months, however, as of July 1, 2018, Virginia is not allowing mini-COBRA to be offered to employees who are discharged for gross misconduct. “Gross misconduct” is defined as intentionally engaging in workplace behavior that goes against an employer’s policies.


Washington DC

Washington DC Midyear Minimum State Wage Increases

Washington D.C.$13.25/hr.7/1/2018
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Camille BradburyJuly 2018 HR Regulatory Updates