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.
- Proposed Overtime Rule, Comments Due May 21
- Proposed FLSA Regular Rate Rule, Comments Due May 28
- EEO-1 Reports Now Due May 31
- Non-union Members & Fees
- New Section 503 Focused Reviews Website
- FLSA & FMLA Opinion Letters
- U.S. Citizenship and Immigration Services Premium H-1B Processing
- Proposed Rule for Joint Employers, Comments Due June 10
- New Jersey Limits Employment Contracts
- New York City Employers Can’t Discriminate on Sexual/Reproductive Health Decisions
- Lactation Room Resources for New York City Employers
- Pittsburgh Requires Pregnancy Accommodations
Proposed Overtime Rule, Comments Due May 21
Who: All Employers
When: Comments Due May 21, 2019
Last month, 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.
If your organization wishes to participate in the commentary process, visit regulations.gov, search RIN 1235-AA20. Click on the Comment Now! button to enter your formal feedback for “Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees.”
Proposed FLSA Regular Rate Rule, Comments Due May 28
Who: All Employers
When: Comments Due May 28, 2019
Employers base eligible employees’ overtime earnings on their “regular rate” of pay. The U.S. Department of Labor is proposing clearer definitions for such terms as regular rate and basic rate. According to the Wage and Hour Division’s Notice of Proposed Rulemaking, the following could be excluded from an employee’s regular rate of pay:
- The cost of providing wellness programs, onsite specialist treatment, gym access and fitness classes, and employee discounts on retail goods and services;
- Payments for unused paid leave, including paid sick leave;
- Reimbursed expenses, even if not incurred “solely” for the employer’s benefit;
- Reimbursed travel expenses that don’t exceed the maximum travel reimbursement permitted under the Federal Travel Regulation System regulations and that satisfy other regulatory requirements;
- Discretionary bonuses;
- Benefit plans, including accident, unemployment, and legal services; and
- Tuition programs, such as reimbursement programs or repayment of educational debt.
Employers with unique or complex pay structures for overtime-eligible employees may want to participate in the commentary process. Visit regulations.gov, search RIN 1235-AA24.
EEO-1 Reports Now Due May 31
Who: Employers with 100+ employees, Contractors with 50+ employees
When: May 31, 2019
Every year, applicable employers file the EEO-1 with the Equal Employment Opportunity Commission (EEOC) to report the number of employees they employ by job category, sex, and ethnicity/race. Normally, this report is due March 31. However, with the government shutdown earlier this year, the EEOC extended the deadline for this year’s EEO-1 filing. It’s still uncertain if employers will need to provide employees’ pay data in the EEO-1 forms by the proposed September 30, 2019 deadline.
The EEO-1 filing website is now open and employers can electronically file their 2018 EEO-1 reports between now and the May 31 deadline. Employers should be prepared to collect pay data ahead of the proposed deadline.
Non-union Members & Fees
Who: Unionized employers in states without right-to-work laws
When: Effective Immediately
In states with right-to-work laws, employers may require employees to pay union dues as a condition of employment. However, the National Labor Relations Board recently ruled that nonmembers can’t be forced to pay for union lobbying expenses.
Unionized employers will need to provide independent verification showing that they audit how members’ dues are spent. In general, unions can’t charge employees for agency fees that include expenses outside of what’s necessary for the unions to perform their representative functions under the law.
New Section 503 Focused Reviews Website
When: Effective Immediately
In an effort to ensure that federal contractors are complying with equal employment opportunity and anti-discrimination regulations, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) plans to conduct 500 on-site reviews with contractors over its 2019 fiscal year. During the reviews both managers and employees are interviewed. The OFCCP launched a new Section 503 web page to help employers know what to expect. OFCCP has also released a compliance audit of contractors that may be audited.
- Review your policies on leaves of absence and reasonable accommodation to ensure that they are current and compliant.
- Maintain appropriate training logs, disability accommodation requests, employer responses, etc.
- Remind managers about your company’s policies and how to handle reasonable accommodation requests.
- Check your company’s career website and job posts to confirm you’re using the appropriate accommodation language.
- Go through the Section 503 self-audits.
- Consult legal support as needed.
OFCCP FY2019 Supply & Service Scheduling List
FLSA & FMLA Opinion Letters
Who: Covered Employers
When: Available Now
The Wage and Hour Division of the U.S. Department of Labor issued 3 new opinion letters: one pertains to the Family and Medical Leave Act (FMLA) and the other two are about the Fair Labor Standards Act (FLSA). The answers help with understanding and complying with federal employment laws.
- FMLA designated leave is restricted to 12 weeks and personal paid time off must run concurrently with FMLA leave.
- Employers can’t delay designating FMLA leave for eligible employees and must provide a designation notice within 5 business days for qualifying FMLA leave.
- Janitors who live on-site in multi-unit residential buildings and are exempt from state minimum wage and overtime are not necessarily exempt from federal FLSA minimum wage and overtime requirements.
- Participation in optional workplace volunteer programs may not count as hours worked under the FLSA.
U.S. Citizenship and Immigration Services Premium H-1B Processing
Who: Employers that use H-1B visas to temporarily employ foreign workers in specialty occupations
Employers applying for a change in visa status for their employees, such as F-1 to H-1B, can request premium processing now. Any other H-1B petitions subject to caps may be available for premium processing after June 2019.
- Complete and submit Form I-907 Request for Premium Processing Service.
- If you’re filing I-907 with Form I-129 or Form I-140, you need to file them with your designated service center.
“How Do I Use the Premium Processing Service?”
Proposed Rule for Joint Employers, Comments Due June 10
Who: Employers with employees who work for another employer
When: Comments Due June 10, 2019
The Fair Labor Standards Act allows for joint employer situations in which two employers are jointly responsible for an employee’s wages. The U.S. Department of Labor has proposed a rule to clarify employers’ and joint employers’ responsibilities to employees in joint employer arrangements. If passed, it would limit employers’ joint employment liability for wage and hour matters because fewer businesses would meet the definition of a joint employer. See examples.
While not official yet, if the rule is finalized, a new “four-part balancing test” will determine if the second employer is considered a joint employer. Does the employer:
- Hire or fire the employee?
- Supervise and controls the employee’s work schedule or conditions of employment?
- Determine the employee’s rate and method of payment?
- Maintain the employee’s employment records?
After the proposed rule is published in the federal register, the public can submit comments. Visit regulations.gov, search RIN 1235-AA26. You’ll have until June 10, 2019, to post your comment.
New Jersey Limits Employment Contracts
Who: All New Jersey Employers
When: Effective March 18, 2019
New Jersey’s SB 121 limits employment contracts and settlement agreements. Employers can’t have nondisclosure clauses that conceal details about discrimination, retaliation, or harassment claims. You also can’t have employees waive their rights in discrimination, retaliation, or harassment cases. As such, this removes mandatory workplace arbitration clauses.
- Evaluate and adjust employment, arbitration, severance, confidentiality, non-disclosure agreements, etc.
- Do not take adverse action against applicants or current or former employees who haven’t signed an agreement that contained a waiver or non-disclosure.
- Take the opportunity to shore up your organization’s anti-harassment and nondiscrimination policies and practices. KPA offers several online trainings on both of these topics.
New York City Employers Can’t Discriminate on Sexual/Reproductive Health Decisions
Who: New York City Employers With 4+ Employees
When: May 20, 2019
The NYC Human Rights Law will soon protect employees from discrimination against sexual and other reproductive health decisions. The amendment doesn’t require NYC employers to provide reproductive health benefits.
- Don’t terminate an employee if someone at your organization discovers and disagrees with the employee’s choice to have an abortion, have invitro fertilization, or be treated for a sexually transmitted disease.
- Update your anti-discrimination policies and employee handbook to list sexual and other reproductive health decisions among the categories protected from discrimination.
- Inform your HR team as well as managers.
Lactation Room Resources for New York City Employers
Who: New York City Employers With 4+ Employees
When: March 18, 2019
Unless employers demonstrate undue hardship, they must provide a lactation room for nursing mothers. In addition, new employees must receive a written policy about the lactation room. The New York City Commission on Human Rights has issued model policies, a guide, and FAQs to help employers comply with the law’s requirements.
- Lactation rooms must be clean, free from intrusion and shielded from others’ view, contain at least one electrical outlet, a surface to place a pump and other personal items, and a chair. It should also be near running water. The employee needs access to a refrigerator too or the employer will make other arrangements.
- Provide the policy below that’s applicable to your workplace to new hires.
- Employers must provide a reasonable amount of time for employees to express breast milk. The employer and the employee should work together to establish a schedule of breaks that reasonably accommodate the employee’s pumping needs.
Additional Resources (Word document downloads)
- Model Policy: Workplaces With Dedicated Lactation Rooms
- Model Policy: Workplaces With Multi-purpose Space
- Model Policy: Workplaces With No Available Space for a Lactation Room
- Frequently Asked Questions
- Lactation Accommodations Guide
Pittsburgh Requires Pregnancy Accommodations
Who: Pittsburgh Employers With 5+ Employees
When: Effective March 15, 2019
Pittsburgh’s City Council amended Section 659.02 of Article V, Chapter 659 of the Pittsburgh City Code, the City Fair Practices Provision to make pregnancy its own protected class. It also extends the law’s anti-discrimination provisions to partners of pregnant workers. The partner can be of any gender and a marital or domestic relationship is not required.
- Unless it causes employers undue hardship, they need to provide reasonable accommodations for pregnant employees. Examples of reasonable accommodations include schedule modifications, granting leave requests, modified duties and job requirements, and modified work stations.
- Regardless of whether an employee asks for an accommodation, employers will need to initiate an “interactive process” with employees struggling with their work performance due to their own or a partner’s pregnancy, childbirth, or related medical condition.
- Employers will be more restricted when they can ask for medical documentation from pregnant workers.
- Do not retaliate against employees who request reasonable accommodations.
- Revise your policies and train managers.