May 2019 HR Updates

on May 8, 2019

Every month we cover timely federal and state legislative and regulatory 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

NEW DATE: EEO-1 Pay Data Reports Due September 30, 2019

Who:

  • Employers with 100+ employees
  • Contractors with 50+ employees and $50,000+ in contracts, subcontracts, or purchase orders

When: September 30, 2019

What:

This year, employers will be required to report 2017 and 2018 pay data on the revised EEO-1 form. This will include total hours worked for all employees based on 10 categories, including race, ethnicity, and sex within 12 pay bands.

Previously, the Equal Employment Opportunity Commission’s (EEOC) electronic submission system didn’t include the new required pay data parameters. Be aware that the deadlines for EEO-1 submission already shifted twice this year. The normal submission deadline with employer demographic data is May 31, 2019. The new deadline for this year  pay data is September 30, 2019.

How:

  • About mid July, the EEOC will open its online portal and you’ll be able submit employee pay data along with hours worked.
  • Start gathering 2017 and 2018 pay data. You need to submit both 2017 and 2018 pay data along with hours worked by the September 30, 2019 deadline.
  • Review pay data, identify areas of pay disparity and develop a plan to address any discrepancies that could cause further examination from the EEOC.
  • If employers need to file extension for the employer demographic data due on May 31, 2019 the extension is only two weeks and will be due on June 14, 2019.

Additional Resources:

EEO-1 Pay Data Collection for 2017 Federal Register

EEO-1 Pay Data Collection for 2018 Federal Register

U.S. Equal Employment Opportunity Commission

Class Arbitration Cases Must Be Addressed in Contracts

Who: All employers

When: Effective now

What:

The U.S. Supreme Court ruled that if an arbitration agreement between an employee and employer is unclear, then a court can’t order a class-wide arbitration case. Arbitration agreements, including contracts, must clearly state that the employer and employee agree to resolve class and collective actions through arbitration.

How:

Consult with legal council to review your arbitration agreement and ensure any class action waivers include compliant language that clearly states an employee can’t arbitrate a class-wide claim.

Association Health Plans (AHP) Expanded Access Pending

Who: Small business employers using AHPs

When: To be determined

What:
In 2018, the U.S. Department of Labor (DOL) expanded employer access to AHPs, which allow small employers to come together to purchase employee healthcare coverage as if they were a large employer.

On March 28, 2019, a federal judge blocked the expansion and the DOL has since appealed that decision (as of April 26, 2019). While all of this is working its way through the legal system, employers should abide by their current AHPs.

How:

  • Anyone currently enrolled in an AHP will continue to be covered under that plan through the end of the plan year or contract term,
  • Under the DOL’s enforcement stance, current plans and health insurance issuers should act in good faith, uphold their policies, and pay valid claims. The DOL has said it will not go after employers with AHP violations that occurred before the federal district court ruling.
  • If you’re using an AHP, contact your plan administrator for more clarification.


Additional Resources:

DOL AHP Court Ruling Q&A

Updated DOL Statement Regarding Court Appeal

H-1B Petition Cap Met and Closed, New Data Hub Will Disclose Company Names

Who: Employers that applied to the H-1B program

When: Effective now

What:

On April 5, 2019, the U.S. Citizenship and Immigration Services (USCIS) reached its 65,000 H-1B visa petition quota for fiscal year 2020. The 20,000 advanced degree petitions cap for 2020 has also been met.

The USCIS is still accepting petitions for current H-1B employees who need:

  • A time extension to remain in the United States
  • Terms of employment changes
  • To change employers
  • To add a second H-1B position

If you’re curious which employers were successful in their H-1B petitions, the USCIS launched an Employer Data Hub. It provides information on employers who sponsor H-1B employees. The site provides employer name, the cumulative number of applications and their status, tax ID, and location.

You can search the site by employer name, state, city, zip, fiscal year (data goes back to fiscal year 2009), and NAICS code.

How:

  • Review any applications, extensions, etc. for any H-1B sponsored employee.
  • Be aware that your current or future H-1B petitions will be public.

Additional Resource:

Understanding the Employer H-1B Data Hub

Clarified Direction About Compensation for Volunteer Programs

Who: Employers, including nonprofits, with optional volunteer programs; employers considering establishing a volunteer program

When: Effective now

What:

The U.S. Department of Labor clarified, under the Fair Labor Standards Act (FLSA), employers may establish an employee volunteer program without overtime pay considerations.

So as not to qualify as “hours worked” under FLSA, the volunteer program must be optional and encourage participation during non-working hours without the employer’s guidance.

Employers shouldn’t guarantee incentives for volunteer hours. You can offer a discretionary incentive based on an employee’s volunteerism.

Organizations may track volunteer hours to measure community benefit.

How:

  • If you have a volunteer programs, review your policies to ensure there’s no coercive language and that employee participation is voluntary.
  • Keep in mind there should be no repercussions for employees who choose not to volunteer and no guarantee that employees who volunteer will receive a bonus.

Draft 2020 W-4 Form Coming Soon

Who: All employers

When: May 31, 2019

What:

By May 31, 2019, the U.S. Internal Revenue Service (IRS) will release a draft of the 2020 W-4 Form for public comment. The IRS will then release a second draft during the summer 2019. The final is expected toward the end of the year.

The proposed changes are expected to align with the Tax Cuts and Jobs Act, which went into effect January 1, 2018. On the 2020 version of the W-4 form, withheld taxes should be more accurate. The idea is that taxpayers will not receive a refund nor owe money to the IRS during the 2020 filing season.

How:

Be on the lookout for the draft. We will continue to monitor for new information.

STATE Updates

Connecticut Issues Guidance on Pregnancy Discrimination

Who: Connecticut employers with 3+ employees

When: Effective now

What:

The Connecticut Commission on Human Rights and Opportunities (CHRO) issued a bluepaper and a one-pager clarifying pregnant workers’ rights. CHRO outlined that pregnant employees are entitled to:

  • Reasonable working accommodations in light of pregnancy, childbirth, and other related conditions (e.g., frequent or longer bathroom, water, or rest breaks).
  • Reasonable leaves of absence “due to disability resulting from pregnancy.”
  • Reasonable accommodation and leaves of absence for any pregnancy-related condition or symptom.
  • Reasonable accommodation for lactation.
  • Following a request, a “good-faith” conversation between employer and employee about possible accommodations.

It is illegal to punish an employee for requesting reasonable accommodation or leave of absence due to pregnancy.

How:

Additional Resource:

Connecticut Commission on Human Rights and Opportunities

Kentucky Permits Mandatory Arbitration Agreements

Who: All Kentucky employers

When: June 26, 2019

What:

SB 7 states that employers may require employees, former employees, or employment candidates to complete an agreement for arbitration, mediation, or other alternative dispute as a (pre)condition of employment or rehire.

Employers may require employees or candidates sign an arbitration agreement that decreases the period of limitations for filing a claim (but not more than a 50% reduction). This requirement is only allowed if the cause doesn’t fall under a prohibitive state or federal law. Note: not all state/local laws and jurisdictions permit reducing the limitation period.

As part of a litigation settlement or another proceeding, employers may request that former employees waive an existing claim as a (pre)condition of rehiring the former employee.

Keep in mind, under section KRS 336.700 in Senate Bill 7, there are some safeguards for employee rights. For example, employers may also require employee or candidate background checks or other inquiries, as long as the individual consents to the report.

How:

Review your arbitration agreements and make sure the language and period of limitations are compliant with Kentucky law.

Kentucky Pregnancy Accommodation Law

Who: Kentucky employers with 15+ employees

When: June 27, 2019

What:

An amendment to the Kentucky Civil Rights Act will require employers provide reasonable accommodations to employees for pregnancy, childbirth, lactation, or other related conditions. This law goes beyond the federally required accommodations and under it:

  • An employee should not have to take leave from work so long as a reasonable accommodation can be provided.
  • Employers and employees will engage in a “timely, good faith, and interactive process” to determine reasonable accommodations.
  • If an employer has already provided a certain type of accommodation to another employee in the past, whether it related to pregnancy or not, it sets a precedent that the accommodation didn’t cause undue hardship and should be provided in the future.
  • Employers must provide a designated space, other than a bathroom, for new mothers to express milk.

How:

  • By June 27, 2019, post a notice of the new law and distribute it to new employees. By July 2, provide current employees with a written notice. The Kentucky Pregnant Workers Act Notice is not yet released.
  • Review and update your pregnancy policies, procedures, and accommodations and ensure all managers are trained on the upcoming changes.
  • Examples of reasonable accommodations that you may need to consider include more frequent or longer breaks, time off to recover from childbirth, acquiring or modifying equipment, proper seating, etc.

Massachusetts Issues Paid Leave Guidance

Who: All Massachusetts employers

When: June 30, 2019 for notice requirements. The Paid Family and Medical Leave Act (PFML) goes into effect July 1, 2019.

What:

The Massachusetts’ PFML provides eligible employees with up to 12 weeks for family leave and 20 weeks for medical leave.

Employers must provide a required Family and Medical Leave Employer Notice, either in paper or electronic form, to employees and independent contractors about the PFML by June 30, 2019. The notice must include the following information:

  • An explanation of the available family and medical leave benefits
  • Employee’s contribution amount and obligations
  • Employer’s contribution amount and obligations
  • Employer’s name and address and the Department of Family and Medical Leave (DFML) identification number
  • Instructions on how to file a claim for the benefits
  • DFML’s address, email address, and phone number

Employers must document all employees who accept or decline acknowledgement of the information. New employees and independent contractors must receive a written acknowledgment within 30 days of hire. Employers will be fined if they cannot provide required notices for employees. First violations will be $50/individual and $300/individual for following violations.

Employers must display the Massachusetts PFML poster before July 1, 2019.

Beginning July 1, 2019, the funds for the paid leave come from a 0.63% payroll tax on an employee’s first $132,900 in wages. Employers are responsible for 0.312% per pay period, the remaining amount may be deducted from the employee’s wages. Starting on July 1, 2019, employers are required to make wage deductions in order for the payouts to beginning on January 1, 2021.

Employers who already have a paid leave benefit can apply for an annual exemption beginning April 29, 2019, on the MassTaxConnect portal.

How:

    • Written employee notification: Decide whether to write your own written notices or download the DFML’s templates and distribute them by June 30, 2019.
    • Posters must be downloaded and posted in a common area by July 1, 2019.
    • Revise employee handbooks to reflect the new law.


Additional Resource:

Massachusetts Department of Family and Medical Leave’s PFML Templates

Massachusetts Requirement on Data Breach Notifications Law

Who: Business organizations or public agencies that collect Massachusetts residents’ personal data

When: Effective now

What:

The Massachusetts Data Breach Notification Act states organizations that collect information about Massachusetts residents must inform the state Attorney General and Director of Consumer Affairs and Business Regulation about the implantation of the company’s written information security program (WISP).

In addition to submitting the prior requirements (nature of the breach, number of residents impacted, and steps to rectify the incident), the organization must state whether it implemented a WISP and whether the WISP was updated following the data breach.

In addition to notifying residents about the incident, businesses must inform affected residents that there will be no charge for a security or credit freeze. If Social Security Numbers were disclosed, the organization is responsible for providing a minimum of 18 months of credit monitoring or 42 months if the organization is a consumer reporting agency.

How:

If affected, review your WISPs or plan to write and implement one per Massachusetts law.

Additional Resource:

Frequently Asked Questions on Data Breach Notification Law Changes

Maryland: Baltimore City Lactation Accommodations

Who: Baltimore City employers with 2+ full-time employees

When: Effective now

What:

A Baltimore City Ordinance requires that employers provide breastfeeding employees lactation accommodations. These accommodations must include:

  • Reasonable time and location for breaks.
  • Ideally, the lactation break should run concurrently with a paid rest break.
  • Private lactation locations should be near the employee’s workspace (not to exceed 500 feet), as well as safe and free of toxic/hazardous materials, not a bathroom or closet, and have a lockable door, a place to sit as well as a table or shelf, at least one electrical outlet, a working sink and fridge.

Employers are required to institute a written lactation policy that includes:

  • The employee’s right to request lactation accommodation
  • Employer’s process for submitting lactation accommodation
  • Employer’s mandate to explain a request denial
  • Employee’s right to file a complaint with the Commission
  • Employer’s inability to retaliate against an employee who exercises any of the rights made under the Act.

Exceptions to this rule include volunteers, individuals employed by a spouse/parent/child, and domestic workers in a private residence. Employers may also apply for a waiver if it can prove that the requirements would impose hardship.

How:

  • Review or create policies compliant with the new requirements and educate other managers and HR personnel about the changes.
  • Provide a copy of the lactation accommodation policy to employees, informing them about their rights:
    • At hire
    • Within 10 calendar days of any policy modification
    • Any employee requesting lactation accommodation or inquires about pregnancy/parental leave.
    • The employee handbook must include the employer’s lactation accommodation policy
  • Employers must keep lactation accommodation requests on file for 3 years.

New Jersey Expands Family Leave

Who: Employers with 30+ employees

When: June 30, 2019 for the expansion of employees

What:

New Jersey Assembly Bill 3975 expanded the New Jersey Family Leave Act (NJFLA). It will require employers with 30+ workers to provide 12 weeks of family leave during a 24-month period. The following updates are effective immediately:

  • Include the care for a family member or the equivalent of a family member with a serious health condition.
  • Bond or care for a child within the first year of birth, adoption, or foster care.
  • Provide at least 15 days notice for intermittent leave requests.

How:

Additional Resource:

State of New Jersey Department of Law and Public Safety’s Anti-Discrimination Posters

New Mexico Bans the Box Law

Who: New Mexico private employers

When: June 14, 2019

What:

SB 96, the “Criminal Offender Employment Act,” prohibits private employers from asking an employment candidate about his/her arrest or conviction history on an application. This law does not prohibit employers from asking about criminal history during an interview or not hiring a candidate based on their criminal history.

How:

Review applications and policies and eliminate any mention of prior criminal history.

New Mexico Caregiver Leave Act

Who: New Mexico private employers

When: June 14, 2019

What:

The Caregiver Leave Act allows employees to use accrued sick leave to care for a family member. Family member is defined as an “employee’s spouse, domestic partner, or (whether by blood, marriage or adoption) a parent, grandparent, great-grandparent, child, foster, child, grandchild, great-grandchild, sibling, niece, nephew, aunt, or uncle.”

The law states that employers can choose to offer paid sick leave and prohibits retaliation against employees who request sick leave to care for a family member. The law doesn’t mention leave that falls under the Family Medical Leave Act.

How:

  • Review and amend your sick leave policy to be compliant with the new law.
  • Inform managers and employees.

New Mexico Bans e-Cigarettes

Who: New Mexico employers with 1+ employees

When: June 14, 2019

What:

The Clean Indoor Air Act has been updated to include the ban of e-cigarettes from indoor workplaces. Designated outdoor smoking areas remain acceptable, provided they are a reasonable distance from the building.

How:

Review your smoking policy,update it accordingly, and plan to inform employees.

New Mexico Provides Protections for Medical Marijuana Users

Who: All New Mexico employers

When: Effective now

What:

New Mexico expanded the Lynn and Erin Compassionate Use Act, to include employees legally using medical marijuana and broadened the defined medical conditions to include Parkinson’s disease, post traumatic stress disorder, severe chronic pain, severe anorexia and cachexia. Employers are prohibited from taking adverse actions against employees or job candidates, unless the employers qualify for exemptions from the new law.

Exemptions include:

  • If the employer would lose money or license if it hires people who test positive for marijuana
  • If employee positions are “safety sensitive,” defined as “a position in which performance by a person under the influence of drugs or alcohol would constitute an immediate or direct threat of injury or death to that person or another.”
  • If an employee uses medical marijuana during designated working hours or on company grounds.

How:

  • Review your drug policies and procedures regarding marijuana and update them to comply with the new law.
  • Update manager training materials to include responding to a positive drug test and accommodations or employment issues involving medical marijuana.

New Mexico Human Rights Act Amended

Who: New Mexico employers with less than 15 employees

When: June 14, 2019

What:

SB 227 expanded the anti-discrimination protection of sexual orientation and gender identity to include all employers. Before this bill was signed, only employers with 15+ employees were obligated to uphold this protection.

How:

Review your anti-discrimination and equal employment policies and procedures to include the new protections.

New Mexico Right to Work Ordinance Preemption

Who: Employers that operate under union agreements or labor organizations

When: June 14, 2019

What:

Under HB 85 employers and labor organizations may enter into union security agreements. The law cancels right-to-work laws passed in a group of New Mexico counties.

The law still upholds the state’s right to stop the negotiation, execution, or application of a labor agreement requiring membership as part of an employment contract.

How:

Employers need to review their union and labor organization policies and employment conditions and update them for compliance.

New York City Released Online Sexual Harassment Training

Who: New York City employers with 15+ employees (including supervisors, managers, interns, independent contractors, seasonal, or part-time employees who work more than 80 hours per year or for 90 days)

When: April 1, 2019

What:

As part of the city’s new training legislation, the New York City Commission on Human Rights has launched a new free interactive sexual harassment training for employers to meet the new sexual harassment requirement. The training takes about 45 minutes, includes a brief quiz as well as a completion certificate.

Employers may create their own sexual harassment training but it must meet the New York City and New York state legal requirements. A new frequently asked questions (FAQ) was developed to provide further guidance to employers.

Although New York City requires all employees complete the sexual harassment training and acknowledge participation by December 31, 2019, New York state mandates that the training be completed by October 9, 2019

How:

  • Train all employees and record their participation before October 9, 2019 with an employee signed acknowledgement.
  • Complete the sexual harassment training annually and keep records of participation for at least 3 years.

Additional Resources:

Anti-Sexual Harassment Training Read First

Anti-Sexual Harassment Training Module 

New York Employees Will Receive Up to 3 Hours Paid Time Off to Vote

Who: New York employers

When: Effective now

What:

As long as the request is made at least two working days before election day, registered voters may request up to 3 hours of paid time off to vote.

Employers may specify whether the time off occurs at the end or beginning of an employee’s shift.

How:

  • Review paid time off policies and update them accordingly.
  • Post the time off to vote notice at least 10 days before election day. The time off to vote notice must remain posted until the polls close.

Additional Resource:

New York Board of Elections

New York: Suffolk County Bans Salary History

Who: Suffolk County employers and employment agencies with 4+ employees

When: June 30, 2019

What:

The Restricting Information Regarding Salary and Earnings (RISE) Act prohibits employers from asking for a job candidate’s salary history throughout the hiring process. This law intends to decrease wage discrimination, including wage gaps based on gender, race, ethnicity, and minorities.

An exception to this law is if a candidate voluntarily provides their salary information, the employer may not use this information in determining the employee’s final compensation. The Suffolk County law doesn’t provide details regarding internal transfers or promotions.

How:

  • Remove salary history from your employment applications, policies, and hiring practices.
  • Inform other HR personnel, managers, or recruiters about the new requirements.

Westchester County, New York Earned Sick Leave Law Notice

Who: Westchester County employers with 5+ employees qualify for sick leave; Westchester employers with less than 5 employees qualify for unpaid sick leave

When: Effective now

What:

Under the Westchester County Earned Sick Leave Law (ESLL) all employees will accrue up to 40 hours of paid sick leave, at a rate of 1 hour for every 30 hours worked. Employers with fewer than 5 employees must offer up to 40 hours of unpaid sick leave. All domestic workers may accrue up to 40 hours of paid sick time per year, at a rate of 1 hour for every 7 days worked.

Covered employees won’t begin to accrue sick leave until July 10, 2019. In the meantime, employers are required to notify all employees with a copy of the ESLL and a notice of how the law will effect his/her employment terms. The notice must be given to new employees starting April 10, 2019, and to current employees by July 10, 2019.

How:

Additional Resource:
Westchester County Human Rights Commission ESLL Resource Page

Tennessee Amends Workplace Anti-Bullying Statute

Who: Tennessee private employers

When: Effective now

What:

The Healthy Workplace Act has been expanded to include private employers, not just public sector employees.

Employers with an anti-bullying policy meeting the new law’s requirements will be in a better position to defend themselves against lawsuits involving intentional or negligent mental anguish from abusive conduct. Employers can either adopt the Tennessee Advisory Commission on Intergovernmental Relations’ anti-bullying policy or create their own. The policy must meet 2 requirements:

  • Protects employees who report abusive conduct from retaliation.
  • Assists employees in recognizing and responding to abusive behaviors.

Employers that choose not to enforce an anti-bullying policy may be subject to legal claims and lawsuits.

How:

Adopt the anti-bullying policy created by the Tennessee Advisory Commission on Intergovernmental Relations, review its existing policy or create anti-bullying policies compliant with the expanded Healthy Workplace Act.

Additional Resource:
Model anti-bullying policy

Emily Hartman

Emily Hartman

Emily is the Client Content Specialist. She’s using the skills she learned in Washington, D.C. to breakdown technical information into news you can use.

Share this post:
Emily HartmanMay 2019 HR Updates

Related Posts

Take a look at these posts