March 2019 HR Regulatory Updates

by Jill Schaefer on March 12, 2019

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

Notice of Proposed Overtime

Who: All Employers

When: To be determined

What:
The U.S. Department of Labor issued a notice of proposed rulemaking for overtime. If it’s approved, employees who make $679/week or less ($35,308/year) would need to be paid overtime if they work 40+ hours per week. Automatic updates are not part of the proposal. The duties tests remain the same.

How:

  • Once the proposed overtime rule is published in the Federal Registrar, employers will have 60 days to submit comments on it. Visit regulations.gov, search RIN 1235-AA20.
  • Since the rule hasn’t been finalized, employers don’t need to change their compensation structures yet. However, consider auditing your exempt classified employees to estimate your 2020 compensation structure should the proposed overtime rule go through.

Expanded Independent Contractor Definition

Who: Employers that use independent contractors

When: Effective Now

What:
The National Labor Relations Board (NLRB) recently expanded who’s considered an independent contractor. Essentially, it’s once again easier for someone to be classified as an independent contractor and not be eligible for employee protections. Independent contractors also can’t join unions. The board has gone back to using the common-law test.

How:
To determine if a worker should be an independent contractor vs. an employee, go through this 10-point, common-law test. Keep in mind that you may need to consider additional state-specific factors.

QuestionsClassify as...
Employee
Classify as...
Independent Contractor
1. How much control does the company have over the work?Not a lotA lot
2. To what extent is the worker engaged in a distinct occupation or business?Not a lotA lot
3. Is the work done under the employer’s direction or by a specialist without supervision?Employer's directionWorker's direction
4. What amount of skill is required to do the work?Not a lotA lot
5. Who supplies the tools at the workplace?EmployerWorker
6. How long will the worker be employed?A long timeA short time
7. How is the worker paid?Time workedCompleted job
8. Is the work part of the employer's regular business?YesNo
9. What type of relationship do the parties think they are creating?Employer-EmployeeContract job
10. Does the worker own his/her own business?NoYes, has control over important business decisions, schedule, and can work for other companies

Higher Penalty Structures for Department of Labor Violations

Who:
Employers covered under FLSA (2+ employees and annual sales of $500,000)
Employers covered under FMLA (50+ employees)

When: Effective Now

What:
Employers that willfully and repeatedly violate the Fair Labor Standards Act (FLSA) or the Family and Medical Leave Act (FMLA) now face higher fines. The maximum fine per FLSA violation is $2,014 while the FMLA fine per violation is $173.

How:

  • Do not intentionally violate federal minimum wage, overtime, or posting requirements.
  • Use KPA’s Ask the HR Expert consulting service and software resources to remain compliant.

H-1B Filing Changes

Who: Employers that use H-1B visas to temporarily employ foreign workers in specialty occupations

When: April 1, 2019

What:
This year, U.S. Citizenship and Immigration Services (USCIS) is reversing the order of the regular and advanced degree lotteries. It will count all applicants with a bachelor’s degree or graduate degree toward the 65,000 cap for H-1B visas. Then, it will select employer petitions for 20,000 visas reserved for applicants with advanced degrees from U.S. academic institutions. For next Fiscal Year 2021, employers will have to electronically register before submitting their H-1B petitions.

How:

  • Keep in mind that employers have to supply more information this year as part of the H-1B process. Employers must submit Form ETA 9035/9035E to the U.S. Department of Labor for certification before filing H-1B visa petitions with USCIS.
  • Submit your H-1B petitions first thing on April 1. In 2018, the cap was reached within a few days.
  • Certain types of H-1B petitions that employers previously filed on or before December 21, 2018, may be eligible for premium processing this year.
  • In 2020, you will need to use a USCIS online registration system. This system is still in development.

New Association Health Plans Can Be Submitted

Who: Small employers and sole proprietors

When: April 1, 2019

What:
Small employers and self-employed individuals can band together, based on geography or industry, to become a single employer sponsor offering an association health plan. This gives them more negotiating power when buying health insurance.

How:

  • New or existing associations may establish self-funded association health plans starting April 1, 2019.
  • Your Association Health Plan needs to comply with nondiscrimination provisions as well as state and federal regulations.

FCRA Disclosure Requirements

Who: Employers that conduct background screening

When: Effective immediately

What:
The U.S. Court of Appeals for the Ninth Circuit recently reinforced a 2017 decision in a 2019 case that employers can’t combine the Fair Credit Reporting Act (FCRA) with other state disclosure forms. In the words of the justices, FCRA disclosures must be “clear and conspicuous.” “Clear” means reasonably understandable and “conspicuous” means readily noticeable to consumers.

How:

  • Keep the FCRA disclosure separate from information that relates to other states’ laws.
  • Don’t include a broad or all-encompassing FCRA disclosure that says “any person” can provide “any and all information” to a consumer reporting agency.
  • Don’t include a liability waiver with the FCRA disclosure form.
  • If necessary, work with qualified legal counsel to update your FCRA disclosure and authorization forms. KPA is also in the process of updating our materials based on this court ruling and will make the documents available soon within our HRDrive® software.

80/20 Tipping Rule Abandoned

Who: Employers of tipped employees

When: Effective immediately

What:
Under federal law, employers have to pay hourly (non-exempt) employees at least $7.25/hour. Tipped employees, however, get $2.13/hour and receive a tip credit to account for the difference between their cash wage and the federal minimum wage. There’s a distinction between employees who perform dual tasks vs. dual jobs. Dual task employees also complete duties that don’t qualify for tips. A U.S. Department of Labor Wage and Hour Division opinion letter clarifies that employers can pay tipped employees less than the federal minimum wage for hours dual task employees spend on non-tip-producing duties that are incidental to their main job. This removes the previous 80/20 tipping rule.

How:

  • Employers still can’t keep tips that their employees have earned.
  • Refer to the Field Operations Handbook (section 30d00(f)) and the Field Assistance Bulletin 2019-2.
  • Employers must consider the nature of tipped employees’ additional duties in order to comply with tip credit rules and to provide proper wages.
  • Keep in mind that other state laws may apply and a federal opinion letter alone may not be a strong enough litigation defense in a wage and labor dispute.


STATES

New Jersey

New Jersey Expands Paid/Unpaid Leave

Who: Employers with 30+ employees after June 30, 2019

When: Various Deadlines

What:
A3975 was signed into law on February 19, 2019. It expands the existing paid family leave program to cover employees who must miss work to care for a newborn child or another loved one who is suffering from a serious health condition.

  • Increases Family Leave Insurance and Temporary Disability Insurance from 6 weeks to 12 weeks of job-protected leave in a 24-month period (effective July 2020).
  • The intermittent paid leave period will go from 42 days to 56 days in any 12-month period (effective July 2020).
  • The maximum weekly benefit will go from $650/week to $860/week during the leave (effective July 2020).
  • Contains an anti-discrimination/anti-retaliation and reinstatement provision (effective June 30, 2019).
  • Paid leave now includes non-immediate family members, such as siblings, in-laws, grandparents, grandchildren, domestic partners, other blood relatives, as well as unrelated individuals who could be deemed “family” (effective immediately).
  • Covers domestic and sexual violence situations for one’s self or a family member (effective immediately).

How:

  • Update your current policies and practices to ensure compliance.
  • Tell your managers and supervisors about your policy changes and how retaliation is prohibited.
  • Watch for updated notices from the New Jersey Department of Labor and Workforce Development. KPA will also post these when they’re released.
  • Because employee payroll deductions will fund this leave, employers will need to adjust their payroll setup in accordance with upcoming deadlines.

New York City

New York City Sexual Harassment Training Requirements

Who: New York City employers with 15+ employees

When: April 1, 2019

What:
As part of the Stop Sexual Harassment in NYC Act, most employers located in New York City will need to have all their employees, including interns, take an interactive training each year, starting April 1, 2019. New employees must complete this training within 90 days of being hired. However, if they’ve already taken it with a previous employer, they don’t need to repeat the training until the following year.

How:
The New York City Commission on Human Rights will release an online training on or before April 1, 2019 that satisfies the requirements. Employers may also develop their own training or hire an outside party to provide the training so long as it meets the requirements. Employers must keep a record of employees’ signed training acknowledgments for 3 years.

Additional Resource
NYC Human Rights Stop Sexual Harassment Act FAQs

New York City — Don’t Discriminate Based on Hairstyles

Who: New York City employers, operators of restaurants, fitness clubs, stores, schools, libraries, etc.

When: Effective Immediately

What:
The New York City Commission on Human Rights (NYCCHR) issued new enforcement guidance on appearance and grooming. In short, employer policies can’t ban or restrict “natural hair, treated or untreated hairstyles such as locs, cornrows, twists, braids, Bantu knots, fades, Afros, and/or the right to keep hair in an uncut or untrimmed state.”

How:

  • If necessary, revise your current grooming and appearance policies to ensure compliance.
  • Don’t enact policies that force Black employees to straighten, relax, or otherwise manipulate their hair to conform to employer expectations.
  • If your work environment has health and safety reasons that require employees to wear their hair up or in a net, apply the same rules to everyone.

Additional Resource
NYC Commission on Human Rights Legal Enforcement Guidance on Race Discrimination on the Basis of Hair

Washington Paid Family and Medical Leave Reporting

Who: Employers with 50+ employees

When: July 31, 2019

What:
In 2020, Washington state’s paid family medical leave program will provide up to 12 weeks of paid leave for eligible employees facing qualifying events. These qualifying events may include the employee’s own serious health condition or taking care of sick family members. Employees could take up to 16 weeks of combined family and medical leave. Up to 2 additional weeks may be available for certain pregnancy complications.

All employers must meet paid family medical leave reporting requirements beginning July 31, 2019. (Originally, this was slated to begin April 30, 2019, but the date was pushed back.) You’ll continue to report on them each quarter.

How:

  • Your system will need to report UBI number, your business name, total premiums collected, name of the person preparing the report, employees’ SSNs or ITINs, first names, middle initials, last names, wages paid in the reporting quarter, and number of hours worked.
  • Starting July 31, 2019, you’ll use the Secure Access Washington online account to file your quarterly paid family medical leave reports. As of this post, the portal is currently under development, but will be completed before reporting is supposed to begin.
  • Ensure that your reports are submitted by the quarterly deadlines of July 31, October 31, January 31, and April 30.

Additional Resource
Paid Family and Medical Leave employer toolkit

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Jill SchaeferMarch 2019 HR Regulatory Updates