JUNE 1, 2018: EEO-1 Report Due [Extended from March 31, 2018]
Organizations with 100+ employees and organizations with federal government contracts of $50,000 or more and 50+ employees are now required to submit the 2017 EEO-1 report by June 1, 2018. The deadline was recently extended from March 31.
Click here for additional resources: EEO-1 reporting information (https://www.eeoc.gov/employers/eeo1survey/) and How to File an EEO-1 Report https://www.eeoc.gov/employers/eeo1survey/upload/eeo-1-how-to-guide.pdf
JULY 1, 2018: OSHA Form 300 A Accident Summary Due
Employers with at least 250 employees (including part-time, seasonal, or temporary workers) in industries covered by the recordkeeping regulation must submit information from their 2017 Form 300A by July 1, 2018. Employers with at least 20 employees, but fewer than 250, in certain high-hazard industries must submit information from their 2018 Form 300A. Click here for OSHA instructions and forms https://www.osha.gov/recordkeeping/RKforms.html.
Employers in state plans that have not adopted the Improve Tracking of Workplace Injuries and Illnesses requirements are required to submit their 300A Forms using the Injury Tracking Application on OSHA’s website by July 1, 2018. However, an agency official recently clarified that since OSHA does not have jurisdiction in those states with state plans, it is prohibited from enforcing the regulation and cannot issue citations to employers for failing to electronically submit the 2017 300A. Therefore, while OSHA is requiring employers in state plans that have not yet adopted the regulation to submit their 2017 300A, it has acknowledged that it has no enforcement authority for those employers who fail to do so.
JULY 31, 2018: PCORI Fee Due for Self-Insured Plans
Employers who sponsor self-funded plans are responsible for submitting the Patient Centered Outcomes Research Institute (“PCORI”) fee and accompanying paperwork to the IRS no later than July 31, 2018.
The amount of the PCORI fee is equal to the average number of lives covered during the policy year or plan year multiplied by the applicable dollar amount for the year. PCORI fee for plan years ending on or after October 1, 2017 and before December 31, 2017 is $2.39 per each person covered. For plan years ending on or after January 1, 2017 and before October 1, 2017, the PCORI fee is $2.26 per each person covered. Click here for IRS FORM 720.
FEDERAL COMPLIANCE UPDATES
IRS RESTORES 2018 FAMILY HSA CONTRIBUTION MAX TO $6,900
The Internal Revenue Service has reversed its previous decision to lower the 2018 maximum family health savings account (“HSA”) contribution from $6,900 to $6,850. Therefore, the 2018 limit is $6,900 for 2018 for individuals with family coverage under a high-deductible health plan.
Revenue Procedure 2018-27 also details the options for individuals and employers where an excess contribution was already returned to the individual based on the previous lower limit.
UPDATED FREE HSA GUIDE FOR 2019 NOW AVAILABLE
Chicago-based attorney Larry Grudzien has created an updated Employer’s Guide to Health Savings Accounts to include the new 2019 contribution and coverage amounts. It explains every aspect of HSAs in 50 questions and answers. It also includes a chart that compares HSAs with Health FSAs and HRAs. Download here document here: Updated HSA Guide.
GDPR DATA PRIVACY LAW APPLIES TO MANY U.S. COMPANIES
Effective May 25, 2018, American companies that do business in the European Union (“EU”) must be in compliance with the EU’s new General Data Protection Regulation (“GDPR”). GDPR applies to companies that offer goods and services to EU member countries even if they do not have operations in the EU.
The GDPR requires companies to offer enhanced data protection to EU citizens through numerous means, including undertaking increased security measures, appointing data privacy officers, and keeping records of data processing activities.
A business subject to the GDPR must be able to document its corporate compliance efforts and its commitment to data privacy and security. It also must be able to establish that in the event of a data breach, it can meet its obligations for notifying anyone whose data was affected.
NEW FLSA AMENDMENT ON TIPS
A recent amendment to the Fair Labor Standards Act (“FLSA”) states that an employer may not keep any portion of tips received by its employees, whether or not the employer uses a tip credit in pay. The new law also reverses Department of Labor regulations that banned employers from requiring tip sharing. Thus, tipped and non-tipped employees now can share tips as long as the employer does not use the tip credit in wage calculation.
Emeryville Minimum Wage to Increase July 1
Effective July 1, 2018, the minimum wage for employers with more than 55 employees in Emeryville will increase to $15.69 per hour. For employers with 55 or fewer employees, the minimum wage will increase to $15 per hour.
Los Angeles Minimum Wage to Increase July 1
Effective July 1, 2018, the minimum wage for employers with more than 25 employees in Los Angeles City as well as in Los Angeles County (unincorporated) will increase to $13.25 per hour. For employers with 25 or fewer employees, the minimum wage will increase to $12 per hour.
Milpitas Minimum Wage to Increase July 1
Effective July 1, 2018, the minimum wage for employers in Milpitas will increase to $13.50 per hour.
Pasadena Minimum Wage to Increase July 1
Effective July 1, 2018, the minimum wage for employers with more than 25 employees in Pasadena will increase to $13.25 per hour. For employers with 25 or fewer employees, the minimum wage will increase to $12 per hour.
Exceptions to the Pasadena minimum wage include the following:
- Employees who are 14 to 17 years of age may be paid 85 percent of the applicable minimum wage, rounded to the nearest nickel, during the first 160 hours of employment. After 160 hours of employment, these employees must be paid the applicable minimum wage.
- The Chief Executive officer’s salary is capped at 5 times the wage of the lowest paid employee.
- The employer is a transitional employer who helps long term unemployed individual get back into the workforce. Transitional employers have to be certified through the city.
- The employer is a child care provider.
- The employer is funded by City, County, State, or Federal Grants or reimbursements.
San Francisco Minimum Wage to Increase July 1
Effective July 1, 2018, the minimum wage for employers in San Francisco will increase to $15 per hour.
Santa Monica Minimum Wage to Increase July 1
Effective July 1, 2018, the minimum wage for employers with more than 25 employees in Santa Monica will increase to $13.25 per hour. For employers with 25 or fewer employees, the minimum wage will increase to $12 per hour.
San Francisco’s Salary History Ban
Effective July 1, 2018, San Francisco’s Pay in Parity Ordinance will prohibit employers within the city and county of San Francisco from asking applicants about their salary history, from disclosing an employee’s salary without permission, and from considering salary history in determining whether to offer employment to an applicant or what salary to offer.
Update on Cal/OSHA Hotel Housekeeping Injury Standard
Effective July 1, 2018, the Cal/OSHA Standards Board approved a standard on “Hotel Housekeeping Musculoskeletal Injury Prevention.”
Under the new rule, each covered employer is required to establish and maintain a written musculoskeletal injury prevention program (“MIPP”) that addresses hazards specific to housekeeping. The standard specifies that the MIPP may be incorporated into an existing injury and illness prevention program or maintained as a separate program and must be readily accessible each work shift to employees.
Required elements of the MIPP include:
- Worksite evaluations for identifying and evaluating housekeeping hazards.
- The initial evaluation must be completed within three months of the effective date of the standard and shall be reviewed and updated annually (or earlier if needed). The MIPP must include an effective means of involving housekeepers and their union representative in designing and conducting the worksite evaluation.
- Specific risks identified.
- The worksite evaluation must identify and address potential risks to housekeepers, including (1) slips, trips and falls; (2) prolonged or awkward static postures; (3) extreme reaches and repetitive reaches above shoulder height; (4) lifting or forceful whole body or hand exertions; (5) torso bending, twisting, kneeling and squatting; (6) pushing and pulling; (7) falling and striking objects; (8) pressure points where a part of the body presses against an object or surface; (9) excessive work-rate; and (10) inadequate recovery time between housekeeping tasks.
- Injury investigations.
- Procedures to investigate musculoskeletal injuries to housekeepers including whether required tools or control measures were being used appropriately.
- Corrective measures.
- Methods for correcting hazards identified in the worksite evaluation or injury investigation (including housekeepers and their union representative).
- Required when the MIPP is first established, to new hires, to all housekeepers given new job assignments, when new equipment or practices are introduced, and at least annually thereafter.
- Record-keeping, including the MIPP, worksite evaluations, and training records.
The new standard applies to “lodging establishments,” which it defines as establishments that contain sleeping room accommodations that are rented or otherwise provided to the public, such as hotels, motels, resorts, and bed and breakfast inns.
California Supreme Court Adopts Broad New Misclassification Test
In the case Dynamex Operations West, Inc. v. Superior Court, the California Supreme Court has adopted a new legal standard for determining whether a company is the employer for purposes of the California Wage Orders.
Under the new “ABC” test, a worker is considered an employee under the wage orders unless the hiring entity establishes all three of these prongs:
- The worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact.
- The worker performs work that is outside the usual course of the hiring entity’s business.
- The worker is customarily engaged in an independently established trade, occupation or business of the same nature as the work performed for the hiring entity.
Worker’s Compensation Clarification on Mental Impairments
Effective July 1, 2018, a new bill adds definitions for “psychologically traumatic event” and “serious bodily injury” and revises the definition of “mental impairment” under the Colorado workers’ compensation statute. The purpose is to clarify when a worker is entitled to benefits for a mental impairment. The new definitions capture traumatic events such as being subject to the use of deadly force, or witnessing a death or serious bodily injury, or the immediate aftermath of the same.
DISTRICT OF COLUMBIA
District of Columbia Minimum Wage to Increase July 1
Effective July 1, 2018, the minimum wage for employers in Washington, D.C. will increase to $13.25 per hour. Tip credit for cash employees increases to $9.36, so the minimum cash rate increases to $3.89.
Chicago Minimum Wage to Increase July 1
Effective July 1, 2018, the minimum wage for employers in Chicago will increase to $12 per hour.
Cook County Minimum Wage to Increase July 1
Effective July 1, 2018, the minimum wage for employers in Cook County (other than in Chicago) will increase to $11 per hour. The new ordinance applies to any business or individual that employs at least one employee who performs at least two hours of work in any two-week period while physically present within the geographical boundaries of Cook County, with very few exceptions.
Iowa Amends Alcohol BAC Limits of Drug Testing Law
Effective July 1, 2018, Iowa Code Section 730.5 lowers Blood Alcohol Concentration (BAC) limits to .02 grams of alcohol per two hundred ten liters of breath for private employers to be able to take action based on an alcohol test result.
Maryland Minimum Wage to Increase July 1
Effective July 1, 2018, the minimum wage for employers in Maryland (other than in Montgomery County) will increase to $10.10 per hour.
Montgomery County Minimum Wage to Increase July 1
Effective July 1, 2018, the minimum wage for employers in Montgomery County with more than 50 employees will increase to $12.25 per hour. For employers with 50 or fewer employees, the minimum wage will increase to $12 per hour.
Exceptions to the legislation include home healthcare companies and nonprofits, which will be exempt from the compliance deadline, as well as employee under the age of 20 years, who may be paid a wage equal to 85 percent of the county minimum wage for the first 6 months of employment.
Amended Equal Pay Act Limits Salary History Questions
Effective July 1, 2018, the Massachusetts Equal Pay Act (“MEPA”) prohibits employers in Massachusetts from asking for salary history on job applications or in interviews prior to extending an offer.
Additionally, employers are prohibited from contacting an applicant’s former company to confirm past wage amounts unless they have written permission from the applicant.
The amended legislation also describes situations where variations in pay between men and women are acceptable, such as to reflect seniority or merit raises, education, and factors such as regional differences in pay. However, employers are prohibited from reducing a person’s seniority for the time spent on pregnancy leave or family or medical leave. Certain pay variations based on geography, education and training, and travel requirements are also permissible.
Massachusetts Equal Pay Act Calculation Tool
The Massachusetts Office of the Attorney General has issued a Guidance regarding the MEPA that includes explanations and examples for applying the new legal standards, frequently asked questions, tips for conducting a proactive self-evaluation, and a “Pay Calculation Tool” to assist employers with identifying and evaluating gender-based pay gaps under MEPA.
The Pay Calculation Tool is an Excel spreadsheet containing fields for employers to enter employee-specific pay information, assign pay groupings, and quickly see each employee’s base salary and total compensation in relation to others in the same grouping. The Tool also uses embedded formulas to automatically produce helpful metrics, such as the difference in average pay between sexes and each employee’s “gap” from the group average.
The Pay Calculation Tool is designed to help employers organize relevant data and be used to conduct basic self-evaluations but is not appropriate for larger pay groups or sophisticated pay systems.
Minneapolis Minimum Wage to Increase July 1
Effective July 1, 2018, the minimum wage for employers with more than 100 employees in Minneapolis will increase to $11.25 per hour. For employers with 100 or fewer employees, the minimum wage will increase to $10.25 per hour.
The ordinance does not include an exception for tipped workers in the hospitality industry. All workers will be subject to the minimum wage, regardless of tips.
Pay Equity Act Signed into Law
Effective July 1, 2018, the Diane B. Allen Equal Pay Act extends legal protections beyond gender and provides relief to all classes of employees protected under the state’s antidiscrimination law. The new law also prohibits discrimination with respect to compensation or financial terms of employment, extends the statute of limitations to six years, and allows up to triple damages for violators.
The Diane B. Allen Equal Pay Act prohibits employers to pay any employee “who is a member of a protected class at a rate of compensation, including benefits, which is less than the rate paid by the employer to employees who are not members of the protected class for substantially similar work, when viewed as a composite of skill, effort and responsibility.”
Other than a seniority or merit system, a different rate of compensation may only be permitted if the employer demonstrates:
- The differential is based on one or more legitimate, bona fide factors other than the characteristics of members of the protected class (like training, education, experience, or the quantity or quality of production).
- The factors are not based on, and do not perpetuate, a differential in compensation based on sex or any other characteristic of a protected class.
- Each of the factors is applied reasonably.
- One or more factors account for the entire wage differential.
- The factors are job-related with respect to the position in question and based on a legitimate business necessity, where there is no alternative business practice that would serve the same business purpose without producing the wage differential.
Salary History Ban Enacted in Westchester County
Effective July 9, 2018, employers in Westchester County are prohibited from asking for salary history of a prospective employee. The law applies to employers with at least four employees, unless at least two-thirds of the employer’s staff is family.
Under the new law, an employer cannot inquire about prior salary history unless voluntarily disclosed by the prospective employee to support a higher wage than offered by the employer, nor rely upon wage history received from any current or former employer of the individual to determine the wages for such individual. In addition, employers are prohibited from requiring that a prospective employee disclose information about wages from any current or former employer, either orally or in writing, as a condition of being interviewed, as a condition of being considered for an offer of employment, or as a condition of employment. If the prospective employee had disclosed wage information to support a wage higher than offered by the employer, the employer may confirm prior wage information post-offer, provided the employer has the prospective employee’s prior written authorization to do so.
Lastly, employers are prohibited from retaliating against someone for exercising his or her rights under this law, including opposing any act or practice.
Legislation to Combat Opioid Crisis
The Governor and the Legislature have agreed to a package of legislation that requires opioid manufacturers and distributors to help fund treatment program and will limit the prescription of opioids to a patient for the treatment of pain to three months or the period of time it normally takes for tissue to heal, unless the patient’s medical records contain a treatment plan that meets generally accepted national, professional, or government guidelines.
Patients who are being treated for cancer and are not in remission, patients in hospice or other end-of-life care, and patients being treated as part of a palliative care practice are exempt from this provision.
The legislation also contains provisions that add Fentanyl analogs, synthetic cannabinoids, and cannabimimetic agents to the list of Schedule I controlled substances under New York’s Public Health Law. The schedules of controlled substances are used to combat the illegal use and trade of substances, or their analogs or derivatives, and to govern the use of those substances in health care.
Predictable Scheduling Law Enacted
Effective July 1, 2018, S.B. 828 requires Oregon employers with 500 or more employees worldwide who provide services relating to retail trade, hotels, motels or food services to provide predictable scheduling to non-exempt employees. Workers supplied to an employer by an employee leasing company and employees of businesses that provide services to or on behalf of an employer are exempt from the new legislation.
The law is intended to provide for predictability of work schedules for non-exempt employees and to ensure at least ten hours of rest between shifts. Covered employers will be required to give advance notice of work schedules and, once set, those schedules cannot be changed except as provided under the law.
Among the law’s requirements are the following:
- Employers must provide new hires with a written, good faith estimate of the employee’s work schedule on or before the first day of employment. The estimate must state the median number of hours the employee can expect to work in an average one-month period and must explain whether the employee can be included on a voluntary standby list for additional hours.
- Employees have a right to identify limitations or changes in their availability and request not to be scheduled for work shifts during certain times or at certain locations. Employers are prohibited from retaliating against employees for requesting a particular schedule or work location but are also under no obligation to grant any such request and may require the employee to provide reasonable verification of the need for a particular schedule.
- Employers must provide employees with a work schedule in writing at least seven calendar days before the first day of the work schedule. Beginning July 1, 2020, the written work schedule must be provided at least 14 days in advance.
- Employers must provide a rest period of at least 10 hours between shifts unless an employee consents to work during the rest period, in which case the employer must pay the employee one-and-a-half times the employee’s normal rate of pay.
Below are answers to some of the most frequently asked questions about the new law.
Does the law apply to employees subject to a collective bargaining agreement?
Yes. The law does not exempt employees subject to a collective bargaining agreement. However, the law states that it is not intended to create an additional remedy with respect to the right to rest between shifts and compensation for shift changes, if employees have an equal or better remedy under the terms of a collective bargaining agreement.
What procedures must an employer follow if it makes changes to the schedule after the advance notice date?
If the employer requests changes to the work schedule after the date on which advance notice is required under the law, the employer must:
- Provide the employee with timely notice of the change, and the employee may decline any work shift not included in his or her written work schedule.
- Pay the employee an additional hour of pay at his or her regular rate, in addition to wages earned, if the schedule change results in the addition of more than 30 minutes of work to the employee’s shift, changes the date or start or end time of the shift with no loss of hours, or schedules the employee for an additional work shift or on-call shift.
- Pay the employee one-half times his or her regular rate for each scheduled hour that the employee does not work if the schedule change results in the subtraction of hours from the employee’s work shift, changes the date or start or end time of the shift resulting in a loss of work shift hours, cancels the work shift or does not ask the employee to perform work when the employee is scheduled for an on-call shift.
How can an employer deal with unexpected absences or changes in work needs outside the employer’s control?
There are several exceptions to the requirement that employees receive additional compensation for untimely changes to the schedule. In particular, employers have the option of maintaining a voluntary standby list of employees who have requested or agreed in writing to be available to cover unanticipated absences or business needs. Employees on a standby list must be free to decline offers of additional hours; however, if they accept additional hours, they are not eligible for additional compensation as a result of an untimely change in their normal schedule.
Other exceptions to the compensation requirement include the following:
- The employer changes the start or end time of the employee’s work shift by 30 minutes or less.
- Shift swaps mutually agreed to by employees.
- A schedule change made at an employee’s written request.
- A subtraction of hours from an employee’s work schedule for disciplinary reasons for just cause, provided that the employer documents the incident leading to discipline in writing.
- The cancellation or cessation of a work shift due to threats to employees or property or due to the recommendation of a public official.
- The cancellation or cessation of a work shift because of a public utility failure or a natural disaster or because a ticketed event is canceled, rescheduled or is changed in duration due to circumstances outside the employer’s control.
Does the law impose notice, recordkeeping, and anti-retaliation requirements?
Covered employers will be required to display a poster in the workplace providing notice of employees’ rights under the new law and must maintain records of their compliance with the law for three years.
Employers are prohibited from interfering with, restraining, denying or attempting to deny the exercise of any right under the law or to retaliate or in any way discriminate against employees because they have inquired about their rights.
Oregon Minimum Wage to Increase July 1
Effective July 1, 2018, the minimum wage rates for employers in Oregon will increase according to their location within designated areas.
The Standard Minimum Wage rate of $10.75 applies to the following counties:
- Hoover River
The Urban Minimum Wage rate of $12 per hour applies to the Portland Metro area, which includes parts of Multnomah, Clackamas, and Washington Counties. Employers in these counties who need to see if they must pay the Urban Minimum Wage can enter their address here.
The Non-urban Minimum Wage rate of $10.50 applies to employers in the following counties:
Oregon also does not allow for tip credit to tipped employees. Those employees must earn the regular minimum wage.
The law does not specifically explain how an employer should determine its location for purposes of paying minimum wage, or whether employees will be entitled to various wage rates if they travel through the state (or out of the state) as part of their jobs. Instead, the commissioner of the Bureau of Labor and Industries has been given the authority to issue rules that will describe how that determination is to be made.
Oregon Enacts Tougher Data Breach Notification Law
Effective June 2, 2018, Oregon’s data breach notification law now requires companies to notify affected consumers no later than 45 days following discovery of a breach. Additionally, if a company offers free credit monitoring or identity theft protection services to the affected consumers, the company may not require the consumers to provide a credit or debit card number in order to receive such services.
Other key changes in the 2018 amendment to the Oregon Consumer Identity Theft Protection Act include:
- The law now applies to any person or organization that “owns, licenses or otherwise possesses personal information.”
- The duty to report is now triggered if a company receives notice of a breach from a third-party contractor that maintains such information on behalf of the company.
- The definition of personal information under the law is expanded to include any “information or combination of information that a person reasonably knows or should know would permit access to the consumer’s financial account.”
The amended requirements now apply to any person or organization that has control over or access to personal information, in addition to those that own, maintain or otherwise possess such information.
The safeguards that should be part of an organization’s information security program include:
- Administrative safeguards, including identification of potential risks and training of key employees, must be performed with reasonable regularity.
- Technical safeguards must now include assessment of vulnerabilities in addition to risks, and security updates or patches must be implemented when risks or vulnerabilities are identified.
- Physical safeguards must be assessed “in light of current technology,” and intrusions must be monitored and isolated in addition to the previous requirement that they be detected, prevented, and responded to.
Philadelphia Puts Hold on Salary History Ban
A federal judge in Pennsylvania partially blocked Philadelphia’s ban on salary history inquiries, saying such a ban violates the First Amendment. However, the portion of the law that bars employers from relying on past salary is allowed to go forward.
Vermont Enacts Salary History Inquiry Law
Effective July 1, 2018, H. 294 prohibits employers from asking a prospective employee about or seeking information regarding his or her compensation history.
Under the new law, employers are also prohibited from requiring that a prospective employee’s current or past compensation satisfy minimum or maximum criteria for employment. If an employer discovers a prospective employee’s salary history, the employer may not determine whether to interview the prospective employee based on this information.
If a prospective employee voluntarily discloses his or her salary history, the employer may seek to confirm or request that the applicant confirm the disclosed salary after making an offer of employment. An employer may also ask a prospective employee about general salary expectations.
Sexual Harassment and Domestic Violence Victim Protections Enacted
Effective June 7, 2018, new laws provide protection for victims of domestic violence and bar employers from requiring employees to enter into nondisclosure agreements or other contracts that would limit certain rights. A commission to create Model anti-harassment policies by the Washington State Human Rights Commission were also mandated.
S.B. 5996 encourages “the disclosure and discussion of sexual harassment and sexual assault in the workplace”. The law prohibits employers from requiring employees to sign a nondisclosure agreement, waiver, or other document that prevents the employee from disclosing sexual harassment or sexual assault occurring in the workplace as a condition of employment. This law does not prohibit employees and employer from entering into a settlement agreement to resolve claims of sexual harassment, and such agreements may include confidentiality provisions.
S.B. 6313 preserves an employee’s right to file a complaint or cause of action for sexual harassment or sexual assault publicly. This law provides that an employment contract or agreement is against public policy and is void and unenforceable if it requires an employee to waive rights to:
- Publicly pursue a cause of action under the Washington State Law Against Discrimination;
- Pursue a cause of action under federal discrimination laws; or
- Publicly file a complaint with the appropriate state or federal agencies.
S.B. 6471 directs the Washington State Human Rights Commission to create a work group to develop model policies and best practices for employers and employees to keep the workplace free from sexual harassment. The Commission must post the model policies and best practices prominently on its website for the public to access by January 1, 2019.
West Virginia Permits Certain Deductions from Final Pay
Effective May 15, 2018, West Virginia employers are allowed, under certain conditions, to deduct from an employee’s final paycheck the actual cash value of unreturned employer-provided property.
Under the new legislation, an employer is permitted to deduct the replacement cost of unreturned property when: (1) the property was provided while performing the employer’s business; (2) the value of the employer-provided property is more than $100; and (3) the employee signed a written agreement at the time the employer-owned property was provided to him or her.
Such an agreement requires the employee’s signature, a list of the employer-owned property and replacement cost, and a clear notification that the property must be returned upon separation. It must also clearly inform the employee that if he or she fails to return the specified item, the replacement cost of such item may be recovered from the employee’s final wages.