October 2017 HR Regulatory Updates

by Jill Schaefer on October 3, 2017

FEDERAL UPDATES

Revised EEO-1 Sunk, Pay Equality Heats Up
One year ago this month, the Equal Employment Opportunity Commission (EEOC) had finished revising the EEO-1 form. By March 2018, employers or federal contractors with 100+ employees would be required to report pay data, categorized by gender, race, and ethnicity.

However, in August 2017, the White House Office of Management and Budget suspended the new pay data reporting requirement indefinitely. For now, continue following the current federal protocols.

Despite this turn of events, pay equality remains a hot HR topic. What’s more, the EEOC will continue to enforce the Equal Pay Act and Title VII.

Pay Equality Compliance Tips

  • Be aware of state and city pay equity laws where you have business locations. Work with HR consultants, such as KPA’s Ask the HR Experts hotline, to help determine if your policies are compliant with relevant laws.
  • Consider completing an internal compliance review of your compensation practices. Be sure to adhere to best practices and legal protocols.
  • Hire reputable employment attorneys to counsel your organization on any proposed compensation practice changes before you implement them. This includes when, for whom, and how much to adjust compensation, as well as appropriate messaging around any adjustments.


What DACA Demise Means for Employers
Last month the Trump Administration announced that it will eliminate the Deferred Action for Childhood Arrivals (DACA) program, which permits nearly 800,000 undocumented immigrants who entered the U.S. as children to use temporary work permits to continue working and not face deportation.

No new DACA applications will be accepted after September 5, 2017. However, current DACA participants will keep their deportation protection status and temporary work permits until those benefits expire.

What do you need to know?

Termination
Do not terminate employment right now for workers who have valid Employment Authorization Cards. These DACA employees may continue to work until their permits expire and perhaps even then.

When these employees’ permits expire, you must re-verify their I-9 forms — just as you would with any other employee with a temporary work authorization. Employees who present documents establishing their work eligibility can continue working. If not, to be in compliance with the federal mandate as it stands right now, you would need to terminate their employment.

We repeat: DON’T TERMINATE EMPLOYEES BEFORE THEIR DACA PERMITS EXPIRE. Doing so is illegal and opens your organization up for discrimination claims.

Uncertainty
This mandate is currently being challenged in the courts and may reverse, making DACA’s future uncertain. In this tumultuous time, avoid making promises to affected employees. Try to provide other forms of emotional support, such as professional counseling through your employee assistance program.

In addition, if you’re concerned how this will affect your organization and its employees, consider contacting your Congress representative to share your views.

 

DOL Overtime Rule Overruled
With legislation slung back and forth, it can be challenging to keep track of it. Allow us to help. The Obama Administrations’ Department of Labor overtime rule that would have raised the minimum salary threshold under the (FLSA) white collar exemptions from $455 per week/$23,660 per year to $913 per week/$47,476 per year has been struck down.

The federal rule was in contention since November 2016. Back then, a Texas federal judge issued a nationwide injunction preventing it from being implemented. The Trump Administration abandoned the appeals process, making the proposed rule officially dead.

Nonetheless, Department of Labor Secretary Alex Acosta has stated on several occasions that the Trump Administration wants to expand overtime protections — just not to the extent that the Obama Administration had proposed.

Verdict: More to come…

 

STATE UPDATES

Connecticut

Expanded Protections for Pregnant Women
Connecticut Governor Dannel Malloy signed “An Act Concerning Pregnant Women in the Workplace” into law on July 6, 2017 and it went into effect on October 1. It enhances existing anti-discrimination protections for pregnant employees.

The new law amends the Connecticut Fair Employment Practices Act (CFEPA), which will still be in effect.

What Not to Do Under the New Rules:

  • Limit, segregate, or classify pregnant employees in ways that deprive them of employment opportunities due to pregnancy.
  • Discriminate against an employee/job applicant on the basis of pregnancy in employment terms or conditions.
  • Fail/refuse to make a reasonable accommodation for an employee/job applicant due to her pregnancy unless your organization demonstrates that the accommodation causes undue hardship.
  • Deny employment opportunities to an employee/job applicant because of a request for reasonable accommodation due to pregnancy.
  • Force an employee/job applicant affected by pregnancy to accept a reasonable accommodation if she:
    • Doesn’t have known limitations related to her pregnancy.
    • Doesn’t require a reasonable accommodation to perform job essential duties.
  • Require an employee to take a leave of absence if a reasonable accommodation can be provided in lieu of the leave.
  • Retaliate against an employee if the terms, conditions, or privileges of her employment are based upon her request for a reasonable accommodation.

Important Definitions Under Connecticut Law:

Pregnancy: Literally pregnancy, childbirth, or a related condition, including, but not limited to, lactation.

Reasonable Accommodation: Examples include, but are not limited to, being permitted to sit while working, more frequent or longer breaks, periodic rest, assistance with manual labor, job restructuring, light duty assignment, modified work schedules, temporary transfers to less strenuous or hazardous work, time off to recover from childbirth, or break time and appropriate facilities for expressing breast milk.

Undue Hardship: An action requiring significant difficulty or employer expense when considered in light of factors, such as:

  • Nature and cost of the accommodation
  • Overall financial resources of the employer
  • Size of the business with respect to number of employees and the number, type, and location of facilities
  • Effect on employers’ expenses, resources, or operation

Post It
The act requires employers inform employees in writing about their right not to be discriminated against due to pregnancy, childbirth, and related conditions, plus the right to reasonable accommodation.

Download the Connecticut Department of Labor’s Pregnancy Discrimination and Accommodation in the Workplace poster.

 

Additional Rights for Veterans in Connecticut

A new Connecticut law went into effect October 1, 2017 that further protects veterans from employment discrimination and grants leave for National Guard members from other states.

In Connecticut, employers are already forbidden from discriminating against individuals because of race, color, religious creed, age, sex, gender identity or expression, marital status, national origin, ancestry, present or past history of mental disability, intellectual disability, learning disability, or physical disability. The new law adds veteran status to those who are officially protected from discrimination in the workplace.

Highlights

  • Protects individuals against discriminatory employment practices on the basis of their status as veterans
  • Requires employers of employees who serve in the National Guard of another state to grant leave for purposes of military orders/missions
  • Permits active duty armed forces members to register certain family members for Medicaid home and community-based programs if such members are registered to vote, pay real property taxes, or are licensed to operate a motor vehicle in the state

 

Maryland

Prince George County Increases Minimum Wage
Reminder: Effective October 1, 2017, the hourly minimum wage for residents of Prince George County in Maryland is $11.50. Be sure you are compliant with this requirement.

 

Missouri

Legislature Invalidates Cities’ Minimum Wages
The Missouri legislature banned all cities in the state from establishing minimum wages that are higher than the state’s rate. Therefore, St. Louis’s and Kansas City’s previously approved $10 per hour minimum wages have been reverted back to $7.70.

Employers in St. Louis and Kansas City that raised their minimum wage rates may voluntarily continue paying those higher rates. However, if your organization chooses to reduce your minimum wage to match the state’s, you must give employees 30 days’ notice of any reduction in wages.

 

Nevada

Pregnant Workers Fairness Act Now in Effect
Nevada’s Pregnant Workers’ Fairness Act (NPWFA) went into effect October 1, 2017. It expands female employees’ workplace protections for pregnancy, childbirth, or a related medical condition.

The new law applies to Nevada employers with 15+ employers. Certain contractors may be exempt from some of the rules.

 What Not to Do Under the New Rules:

  • Refuse to provide a reasonable accommodation to a female employee/applicant, upon request, for a condition related to pregnancy, unless the accommodation would impose an undue hardship on your business.
  • Take adverse action against a female employee because she requests or uses a reasonable accommodation for conditions relating to pregnancy.
  • Deny an employment opportunity to an otherwise qualified female employee/applicant based upon her need for a reasonable accommodation for a condition related to pregnancy.
  • Require a female employee/applicant who is affected by a condition related to pregnancy to accept an accommodation that she didn’t request or chooses not to accept, or to take employment leave if an accommodation isn’t available.

Nevada employers must notify employees about their rights under NPWFA. The Nevada Equal Rights Commission (NERC) has a sample notice available.

Additional Resources

 

New York

New York City’s Pay History Ban Goes into Effect October 31, 2017
Because of proven income disparities, New York City law will soon make it illegal for employers to ask for an applicant’s salary history. Employers who happen to be aware of an applicant’s salary history CANNOT rely on it to determine compensation.

What Not to Do Under the New Law:

  • Ask the applicant direct questions or statements about past salaries
  • Ask applicants’ current or former employer income-related questions or statements
  • Conducting a search of publicly available records or reports for salary history
  • Rely on an applicant’s salary history to determine his/her salary, benefits, or other compensation

The law does allow employers to inquire about the applicant’s desired salary or salary range. During the course of conversation, if an applicant voluntarily shares previous salary information, try to direct him/her away from sharing it or state how the law restricts consideration of salary history.

 

Oregon

Salary History Inquires Banned
Oregon Governor Kate Brown signed H.B. 2005 into law earlier this summer. Most of HB 2005’s rules will take effect on January 1, 2019.

The law covers a lot of territory, prohibiting pay discrimination on the basis of protected class, defined as race, color, religion, sex, sexual orientation, national origin, marital status, veteran status, disability or age. In other words, employers may not pay employees performing comparable work at different rates of pay because of their membership in one of these protected classes.

The law also prohibits employers from screening job applicants based on current or past compensation. In no way will you be allowed to determine compensation for a position based on a prospective employee’s current or past compensation.

However, employers will be able to inquire only about a job applicant’s salary history after making a job offer including a compensation amount.

How to Get Ready

  1. Complete an equal-pay analysis to help ensure legal compliance. This is defined as “an evaluation process to assess and correct wage disparities among employees who perform work of comparable character.”
  2. Get training on the new law, update your application(s), and start coaching managers to not inquire about protected statuses.

Additional Resource
SHRM’s Oregon Governor Signs Pay Equity Bill blog post

 

No Cell Phones While Driving
More and more states want you to put the phone down and drive… safely to your destination. Every day, 8 people are killed and 1,000 people are injured because of distracted driving.

Oregon joins the list of states banning cell phone use while driving. House bill 2597 took effect October 1, 2017.

Oregon drivers can now be fined up to $6,250, depending on the number of repeat offenses, for using a mobile electronic device. Driving while holding or using such a device for texting, talking, entertainment, navigation, writing emails, or internet surfing are now illegal.

Electronic devices include, but are not limited to, cellphones, tablets, GPS, or laptops.

Exceptions to the Rules

  • Calling 911 when no one else in the vehicle can
  • Truck and bus drivers following federal rules
  • School drivers and utility drivers during the scope of their employment
  • Police, fire, ambulance, and emergency vehicle operators during the scope of their employment
  • Ham radio operators

Employer Responsibilities
If you haven’t already, we recommend:

  • Reviewing and revising your organization’s Cell Phone/Safety Policies and handbooks to be compliant with Oregon’s anti-cellphone and driving law.
  • Requiring all your employees to acknowledge revisions (or re-acknowledge your current policies/handbook if they’re still compliant).
  • Communicating changes to all your employees via staff meetings, bulletin boards, and email. Inform them how this state law will impact their work and establish any new company expectations.
  • Consistently enforcing your company’s policies and state laws.

 

Earned Income Tax Credit (EITC) Notices Now Required
Effective October 6, 2017, Oregon employers must notify their employees in writing about the availability of Oregon and federal earned income tax credits.

 Notification Requirements

  • Be in English or the languages you typically use to communicate with employees
  • Be issued to employees by January 31, 2018
  • Be included with your employees’ W-2 forms
  • Include state and federal EITC websites

Oregon’s labor poster has also been updated to reflect the new requirements.

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Jill SchaeferOctober 2017 HR Regulatory Updates