October 2018 HR Regulatory Updates

by Camille Bradbury on October 14, 2018

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

DOL Introduces Resources for Employers and Workers
Ever wondered how to comply with every labor and employment law? What do you need to do if an employee gets hurt or you need to investigate a harassment claim? The U.S. Department of Labor (DOL) launched employer.gov and worker.gov to answer your top questions. Complete with a user-friendly experience, these sites help employers comply with common topics like wage and hour laws, labor posters, health and safety regulations, worker’s rights, and more. Bookmark these sites as additional resources in your HR toolkit.

W-4 Update Prompts Employees to Recalculate Withholdings
The Tax and Jobs Act (TAJA) prompted a new 2019 W-4 form update. The IRS has provided an online calculator for employees to calculate their new withholding. If employees filled out a W-4 form before 2018, they will need to calculate their new withholdings when the new 2019 form is released. For now, continue to use the W-4 form that was revised in 2018. We’ll keep you updated.

For Consideration:

  • Watch for the new 2019 form release
  • Instruct employees to plan on calculating their new withholdings with the IRS online calculator
  • Monitor state regulatory updates surrounding withholding requirements

NRLB Restores Historical Joint Employer Test
In September 2018, the National Relations Labor Board issued a Notice of Proposed Rulemaking about joint employment relationships returning to their original status test. The original test states that a joint employer relationship is valid only if the two employers share and codetermine hiring, termination, discipline, and direction. Public comments can be submitted about the rule until November 13, 2018. Comments can be submitted electronically at regulations.gov.

For Consideration:

  • Experts warn employers to proceed with caution.
  • If you’re exercising direct control over another employer’s employees, you will also be held to joint-employer liability.
  • According to the proposed rule, the most significant change is that “indirect influence and contractual reservations of authority would no longer be sufficient to establish a joint-employer relationship,” like franchise business models and temporary staffing agencies.

Time to Vote? Review Your Election Policy
As we approach midterm elections, employees may need time off to head to the voting polls. Are you required to pay employees? Do they have to give notice? Check your state’s election laws as some states require that no time be provided and others impose strict civil penalties for not providing employees leave time to vote.

 For Consideration

  • Review your state-specific requirements around election day laws.
  • Revisit your election day practices to let your employees know what to expect come election day.
  • Encourage employees to vote.

I-9 Audits and What It Means for the Construction Industry
In 2017, the U.S. Immigration and Customs Enforcement (ICE) made 143,000 administrative arrests. The most significant shift is that under the Obama Administration, ICE’s mission was primarily focused on targeting immigrants with criminal background records. Now, no illegal alien no matter their circumstances is exempt from an arrest. The construction industry is among the industries that have been hit the hardest during this recent surge of raids.

If you are audited, here are some tips:

  • Ask ICE agents to identify themselves and look over any warrants.
  • Notify your legal counsel.
  • Make copies and document everything that the agents do during their investigation.
  • Assign staff to accompany officers while they perform their investigation and document their actions.
  • Instruct staff to answer questions, but tell them they are not required to give any statements to ICE.
  • Contact families of detainees.

If you haven’t already, audit your I-9s and understand the scope of any discrepancies.

Another DOL Overtime Rule Listening Session 
The Department of Labor is gathering additional opinions on white-collar exemption regulations under the Fair Labor Standards Act (FLSA). In September, listening sessions were held across the U.S. Most individuals who commented were in favor of increasing the minimum salary threshold for white-collar exemptions from the current $455 per week ($23, 660 annually), but expressed differing views as to the level of the increase. This final session will take place at DOL headquarters in Washington, D.C. on Wednesday, October 17, 2018. Register and read additional information here.

 

STATES

Illinois

New State IRA Program, Do You Know What to Do?

Effective
Date: November 2018

In November, employers can start enrolling in the Secure Choice Savings Program Act (Secure Choice) if they don’t have an employer-sponsored retirement plan. Secure Choice is only for employees who are not provided an employer plan in the state of Illinois. It’s voluntary for the time being as Governor Rauner has issued a veto in hopes of mandating that employers comply with an Individual Retirement Account (IRA) vote later this fall.

The Secure Choice program requires employers to withhold 5% of an employee’s compensation unless the employee requests a different amount or declines to enroll in the program. Employers send the contribution to the Secure Choice Program.

Covered Employers:

  • Have 25+ employees
  • Do not offer a 401k or similar retirement program

Who’s Eligible?
Full-time and part-time employees are eligible after 60 days of their official start date.

Registration Schedule:

  • The program will notify employers before they’re scheduled to register and to check their eligibility.
  • At least 500 employees: November 2018 registration date
    • Deductions in January 2019
  • 100-499 employees: July 2019 registration date
  • 25-99 employees: November 2019 registration date

What Are Employers Required to Do?

  • Manage the administrative requirements for enrolling employees.
  • Set up payroll to ensure timely contributions submission.
  • Ensure timely renewal enrollment.
  • Distribute information from the State of Illinois to eligible employees about the Secure Choice Program.

Additional Resources
State of Illinois: SecureChoice FAQs

Nevada

Employers Must Limit the Geographical Scope for Noncompete Agreements (NCA’s)
Effective Date: Immediately

In Landon Shore v. Global Experience Specialists, Inc. (GES), Shore (the employee) was not only restricted from competing with GES 12 months after his termination but was also subject to a geographical location restriction of anywhere in the United States because GES is a multistate employer. The district court granted the conditions of the non-compete agreement in favor of GES. However, on appeal, the Nevada Supreme Court overruled stating that the geographical reach restriction was too broad. For employers that conduct business in multiple states, they must show an active business interest with established customer contacts and good-will in the state they are applying the non-compete restriction.

What Do Employers Need to Do?

Non-competes in the state of Nevada depend on several factors:

  • The time duration of the restriction
  • The geographical restrictions
  • The hardship faced by the employee as a result of the noncompete condition

Ensure that your NCAs are specific and narrowly defined to avoid subjecting an employee to undue hardship.

New York

New Discrimination and Harassment Guidance in NYC
Effective Date: Immediately

Just in time for National Disability Awareness Month in October, New York City released disability discrimination guidance for employers in connection with the Human Rights Law (NYCHRL). Legal Enforcement Guidance on Discrimination on the Basis of Disability aims to help employers comply and make employees aware of their rights. The NYCHRL defines discrimination more broadly than state or federal laws so pay special attention to ensure you’re not infringing on disabled workers’ protections when employing or not employing disabled people.

Highlights From NYCHRL

  • Do not discriminate based on actual or perceived physical or mental disability; or association with someone who has a disability (child, aging parent, etc.)

Reasonable accommodation:

  • Must be extended to employees whether they come forward with their disability or not.
  • Even in the hiring process, employers should reach out to individuals and ask what they can do to support them and provide appropriate accommodation for them.
  • The Cooperative Dialogue Law goes into effect October 15, 2018, and mandates that employers engage in a “cooperative dialogue” conversation with an employee who has requested or whom employers notice needs a reasonable accommodation.
  • Employers cannot require documentation for disabilities, and medical tests can only be administered after a conditional offer of employment has been extended.
  • The guidance gives appropriate interview questions to stay in compliance with state law.
  • Review NYCHRL’s guidance for harassment and discrimination.

Additional Resources

NYC Commission on Human Rights Legal Enforcement Guidance on Discrimination on the Basis of Disability

NYC: In the Workplace

New York Sexual Harassment Training 
Effective: October 9, 2018

To prevent sexual harassment and protect victims, the state of New York recently enacted legislation requiring employers to provide sexual harassment training to all employees, distribute written anti-harassment policies, and handle employee complaints in a specific way.

Highlights:

  • An anti-harassment policy needs to be given or emailed to all employees by October 9, 2018.
  • A complaint form is also required
  • Each year, New York employers must provide sexual harassment prevention training
  • All employees must complete the training by October 9, 2019.
  • If you prefer to customize the policy, build off of New York’s Model Sexual Harassment Policy. If you do this, have legal counsel review it.

Additional Resources

Visit New York’s Combating Sexual Harassment in the Workplace website for full details.

Download New York’s Model Complaint Form

New Jersey

New Paid Sick Leave Poster 
Effective Date: October 29, 2018

Employers must post New Jersey’s Paid Sick Leave notice in a visible place for all employees. The notice must be distributed within 30 days of October 29, 2018, effective date, or at the time of hire after October 29. This notice may be distributed electronically and posted electronically, as long as all employees have access to the notice at all times.

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Camille BradburyOctober 2018 HR Regulatory Updates