7 Important Items & Laws Employers Should Know Going into 2019

State and local officials were quite busy in 2018, especially when it came to employee-related laws. There were changes in 27 states and several important municipalities that affect employers of all sizes. There are caveats to many of these laws so employers should make sure to take note about which laws apply to their organizations. While there were many changes, below are 7 key items that employers should review:

1. Equal Employment Opportunity

  • Requiring anti-harassment training focused on gender identity and sexual orientation.
  • Defining retaliation procedures.
  • Legalizing medical or recreational marijuana use.
  • Adding discrimination protections based on gender identity and for victims of crimes.
  • Providing nongender, single-user restrooms in public places or places of public accommodation.

2. Reasonable Accommodations

  • Expanding reasonable accommodations for women who are pregnant or breast-feeding.
  • Allowing people who have certain conditions public access to employee restrooms.
  • Providing safety accommodations to people who have been sexually assaulted or experienced domestic violence or stalking.

3. Leave of Absences

  • Requiring paid family leave.
  • Expanding existing leave laws to cover smaller employers.
  • Expanding leave and reinstatement rights for military service members.
  • Requiring safe leave to be incorporated into existing sick-leave laws.
  • Providing domestic-violence leave.

4. Equal Pay & Wage Discrimination  

  • Prohibiting wage discrimination on the basis of gender.
  • Prohibiting employers from asking job applicants and employees about salary history or otherwise seeking such information.
  • Prohibiting employers from banning wage discussions among co-workers.it

5. Safe Driving

  • Prohibiting the use of a hand-held cellphone while driving.
  • Redefining the types of devices prohibited under the law.

6. Smoke-Free Workplace  

More states are including e-cigarettes and other tobacco substitutes in their laws prohibiting smoking in the workplace. Employers may be required to post notices, provide designated smoking areas and make other adjustments under such laws.

7. Weapons in the Workplace

  • Keeping guns in vehicles in company parking lots.
  • Restricting the carrying of a concealed handgun to those authorized to carry a handgun.

 

For more detailed information, head over to The Society for Human Resource Management and read this great article.

If you have any questions, please contact your HRBP at DecisionHR at 1-888-828-5511.

Are you Falling for Phishing Scams?

Are you Falling for Phishing Scams?

Tax season is in full swing, and so are email scams. Chuck Rettig, IRS Commissioner notes “the holidays and tax season present great opportunities for scam artists to steal valuable information through fake e-mails”. Scammers will send emails that look like they’re coming from the IRS or business vendors and partners in the community. These scams can look incredibly real, so be cautious when opening suspicious-looking emails.

In fact, the IRS reported a huge increase in new email phishing scams that aim to steal people’s money and/or data. If you suspect you are receiving scam emails, forward them to the IRS at phishing@irs.gov.

While much of this applies to the general public, it is especially pertinent for employers and their payroll departments to take note. To keep you and your employees’ information private, the IRS recommends the following:

  • Instruct employees to hover their cursor over hyperlinks included in e-mails they receive to view the actual URL, and ensure the URL is actually associated with the company it purports to be from.
  • Instruct employees to refrain from supplying log-in credentials or personally identifying information in response to any e-mail.
  • Direct employees to forward suspicious requests for personal information to the IT or HR department.
  • Ensure that log-in credentials used for payroll purposes differ from those used for other purposes.
  • Apply heightened scrutiny to bank information requests initiated by employees seeking to update or change direct-deposit credentials.
  • Monitor employee logins that occur outside normal business hours.
  • Implement two-factor authentication for access to sensitive systems and information.

 

If you have any questions, please contact your assigned HRBP at DecisionHR

at 1-888-828-5511.

Leadership Tip: Should Resignations Be Immediately Accepted?

Employee resignations can be a trying, and at times confusing process for both employers and employees especially when handling unemployment claims. A particularly complicated piece of this process occurs when an employee’s resignation is accepted immediately. This means that an employee has resigned and given their notice, however their employer accepts the resignation immediately. This action can affect the outcome of the individual’s unemployment claim if they do not work through their notice period, and can often be detrimental to the employer.
When deciding the outcome of an unemployment claim, the state is first determining which party (employer or claimant) initiated the separation on the last day of work. A separation that was initially a voluntary separation can be considered a discharge separation by the unemployment office if the employee’s last day of work is accelerated by the employer (meaning the employer accepted the resignation immediately). In this instance, the moving party shifts from the employee to the employer from the state(s) perspective.
This separation scenario will be handled based on the state specific regulations. There are several possible outcomes depending on the state in which the claim is being filed:

  • In most states, the separation will be treated as a discharge, and the employer must be able to establish that they accelerated the separation for work-related misconduct in order for the employee to be denied unemployment benefits and secure a relief from charges.
  • There are some states that will consider the separation to be a discharge for the length of the employee’s intended notice period, but they will consider the separation to be a quit as of the end of the notice period. In this scenario, benefits will usually be charged to the employer for the duration of the notice period (two weeks, for example).
  • Some states will still consider the separation as voluntary resignation as long as the employee is paid through the intended resignation date.
    It is important to consider how the separation will be viewed by the unemployment department before accelerating the separation of an employee who has given notice to resign. It may be cost effective to allow an employee to work through a notice period or pay them through a notice period rather than initiating an immediate separation, especially if there is no misconduct.

 

If you have any questions please reach out to your assigned Human Resources Business Partner at DecisionHR 1-888-828-5511.

 

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New York State Proposes Harassment Prevention Plan

New York state recently released a proposed model sexual harassment policy and a proposed model training program that can be used to comply with New York Labor Law Section 201-g, which requires that all employers either (i) use the model forms, or (ii) establish a policy and training program that meet the state’s minimum requirements. These requirements became effective on October 9, 2018. Moreover, employers with employees who work in New York City face additional sexual-harassment related obligations and deadlines. This alert briefly summarizes these developments.

 

New York State Model Sexual Harassment Documents

 

While the proposed model Policy contains traditional policy terms, the Policy also includes many elements that are not typically found in such employment policies, including protections for non-employee workers, a required complaint form, a promise of due process during an investigation, a description of the investigation process, and information regarding legal and external remedies.

Moreover, Labor Law Section 201-g requires employers to conduct annual sexual harassment prevention training for all employees and conduct training for new hires within 30 days of their start date. The model forms include a PowerPoint that can be used. This training must be completed by October 9, 2019 for all current employees.

If an employer declines to use the model Policy or model Training, the employer must be certain to cover all of the topics required by Labor Law Section 201-g, including that the employer “inform employees of their rights of redress and all available forums for adjudicating sexual harassment complaints administratively and judicially.”

 

New York City’s Efforts to Combat Sexual Harassment

 

New York state, however, is not alone in confronting sexual harassment issues head-on. Earlier this year, New York City Mayor Bill de Blasio signed 11 bills into law, also known as the Stop Sexual Harassment in NYC Act, to seek to deter sexual harassment from occurring in the City. The expanded sexual harassment laws in New York City include, for example:

  • Local Law 95 – Effective September 6, 2018, all employers must visibly display the Commission on Human Rights’ (Commission) anti-sexual harassment rights and responsibilities poster in employee common areas, such as employee breakrooms. Employers must also distribute to all new hires the Commission’s information sheet on sexual harassment, which addresses the same areas outlined in the Commission’s poster.
  • Local Law 96 – Effective April 1, 2019, all employers with 15 or more employees must conduct anti-sexual harassment training on an annual basis for all employees (including interns) employed in the City. Employers are required to keep records of such training for at least three years and produce the records upon request from the Commission.

 

Other New York State Laws Addressing Sexual Harassment

 

In addition to implementing policies and conducting training, New York employers will need to evaluate other areas for compliance with the state’s new sexual harassment laws. The below referenced laws became effective earlier this summer.

Non-Disclosure Provisions

New York employers cannot require employees to sign agreements that would prohibit persons who complained of sexual harassment to disclose the facts and circumstances of the alleged harassment, unless the complainant is the one seeking the confidentiality provision. In such cases, the complainant must have 21 days to consider the agreement’s non-disclosure term or condition and seven days after signing the agreement to revoke the agreement. See New York General Obligations Law 5-336 and New York Civil Practice Law § 5003-b.

Mandatory Arbitration Clauses

Unless permitted by federal law or included in collective bargaining agreements, New York employers are prohibited from entering into agreements with employees that require mandatory arbitration to resolve claims of unlawful sexual harassment. See New York Civil Practice Law 7515.1

 

State Contractor Compliance

 

Effective January 1, 2019, all state contractors must submit written confirmation that they have sufficient anti-sexual harassment policies and provide all employees with sexual harassment prevention training when submitting bids for state contracts. See New York Finance Law § 139-l.

 

What This Means

 

Employers with employees in New York and New York City should promptly review and evaluate their current sexual harassment policies and training programs and take steps to ensure they are compliant (and, in particular, have taken steps to comply with the October 9th deadline). Employers should also review other areas which may intersect with the expanded sexual harassment laws, such as employment and separation agreements, to ensure compliance with these new laws.

 

 

Please reach out to your assigned Human Resources Business Partner at DecisionHR 1-888-828-5511 if you have any questions.

What Steps Can an Employer Take to Prevent EEOC Charges?

You may already know that the Equal Employment Opportunity Commission (“EEOC”), is an agency of the federal government, created by the Civil Rights Act of 1964 (Title VII), for purposes of interpreting and enforcing federal laws prohibiting discrimination.  Federal laws prohibit an employer from discriminating against any applicant and/or employee based on race, color, religion, sex (including sexual harassment), age, national origin/ancestry, disability, and veteran status.  An employee who feels he or she has been discriminated against based on any of these protected categories may file a charge of discrimination with the EEOC.  While the filing of a charge does not constitute a finding that an employer has engaged in discrimination, the EEOC has the authority to investigate whether there is reasonable cause to believe discrimination has occurred.

For those of us who like statistics, a total of 84,254 charges of employment discrimination, harassment, and retaliation were filed against employers with the EEOC in fiscal year 2017.  The EEOC resolved 99,109 employment discrimination claims, resulting in $398 million in compensation paid to claimants in 2017. Of the claims resolved, 47% were for retaliation by an employer against a complaining employee.

Once an EEOC charge has been filed, the EEOC will generally request that the employer provide an answer to the claims made in the charge (referred to as the employer’s “position statement”).  The process may involve, among other things, conducting interviews, answering questions, and submitting documents to the EEOC.  The charging party and the employer will also be given the option to meet in person with the EEOC in an attempt to conciliate, and possibly reach a mutually agreeable settlement.  If either party decides it does not want to participate in such a meeting, ultimately, the EEOC will reach a finding and either give the charging party a Notice-of-Right-to-Sue meaning the charging party may file a lawsuit against the employer if he or she so chooses; or the EEOC can determine the employee’s claims involve allegations of egregious conduct and/or allegations which indicate a potential pattern of discrimination, which could then cause the EEOC to file suit on the employee’s behalf. Regardless of the EEOC’s finding, responding to an EEOC charge can be a time-consuming, protracted costly process for the employer.

Of course, an employer’s best defense to avoid EEOC charges and potential liability is prevention. Employers can follow these steps to help reduce the risk of financial and legal exposure, while also fostering a workplace of professionalism and respect for personal differences:

  1. Establish robust anti-discrimination policies, including equal employment opportunity, anti-harassment, and anti-retaliation policies that are embraced throughout the entire organization. Employers should ensure that these policies are distributed and made available for review at all times by all managers and employees, and that the policies are included in employee handbooks and posted on the employer’s intranet site.
  2. Provide periodic training to managers and employees on nondiscrimination, harassment, and retaliation policies and enforce such policies equitably.  Training should include a clear explanation of what conduct is prohibited, including examples and sample scenarios.  Most importantly, employers should enforce the policies and hold both managers and employees accountable for their actions.
  3. Establish neutral and objective criteria for making employment decisions.  It is good practice to analyze responsibilities, functions, and competencies relevant to the various jobs within the organization and create objective, job-related qualification standards related such specific responsibilities and competencies. Employers should apply these consistently when making decisions related to hiring, promotions, performance appraisals, compensation, and decisions that adversely affect an employee’s employment.
  4. Implement a clear complaint process that provides for multiple and readily accessible avenues for complaints.  Employers need to encourage open communication by making sure all employees feel comfortable discussing concerns with supervisors, human resources, and/or a designated person in the organization. If an employee believes they are, or have been, discriminated or retaliated against, it’s important they feel safe and comfortable bringing it up.  Fostering early dispute resolution will minimize the changes of misunderstandings that can promptly escalate into an EEOC charge.  Provide clear assurances that all employee complaints will be taken seriously and will be promptly and thoroughly investigated. Inform employees that following the impartial investigation of any complaint, the employer will take immediate and appropriate corrective action, if there is evidence of discrimination, harassment, retaliation, or other such conduct.  Moreover, assure employees that if they file a complaint or provide information related to complaints, the employer will protect them from retaliation, and follow through with such assurances.

Please contact your assigned Human Resources Business Partner at 1-888-828-5511 if you have any questions.

Have Questions About Paid Family and Medical Leave?

Recently, the IRS released Notice 2018-71 which provides an in-depth Q & A on the employer tax credit for paid family and medical leave. The tax credit applies for both 2018 and 2019 tax years.

The topics within this Q & A are:

  • Eligible Employers
  • Family and medical leave
  • Minimum paid requirements
  • Calculating and claiming the credit

Wallace Welch & Willingham provided this helpful bulletin that explains how this new guidance affects you.

 

If you have any questions, please don’t hesitate to reach out to your DecisionHR Business Partner at 1-888-828-5511.

HR Laws and Compliance Changes in 2018

There has been a lot of changes this year across the United States.  Here are several state-specific (and some city-specific) compliance advisories for your review.

New Jersey Enacts Statewide Paid Sick Leave

On May 2, 2018, New Jersey Governor Phil Murphy signed the New Jersey Paid Sick Leave Act (Act) into law. This Act will require all New Jersey employers to provide employees with paid sick leave effective Oct. 29, 2018.  The Act preempts all existing and future local ordinances that regulate paid sick leave in the state.

Tennessee Drug and Alcohol Testing Laws

This Employment Law Summary outlines Tennessee’s voluntary Drug Free Workplace Program.

Connecticut Fair Employment Laws – Pregnancy Discrimination

This Employment Law Summary provides an overview of the provisions in Connecticut’s Fair Employment Practices Act that protect employees and applicants from employment discrimination based on pregnancy. Includes information about the amendments to these provisions that became effective as of Oct. 1, 2017.

New York State Passes Strict Workplace Harassment Laws

On April 12, 2018, the New York state legislature enacted a law that requires all employers in the state to adopt a written sexual harassment prevention policy and to provide annual sexual harassment training for employees.

San Francisco Health Care Security Ordinance

The San Francisco Health Care Security Ordinance (HCSO) requires covered employers in San Francisco to spend a minimum amount of money on health care benefits for their covered employees.

This Health Care Bulletin provides an overview of the HCSO’s requirements.

Massachusetts Fair Employment Law –  Pregnant Workers Fairness Act

This Employment Law Summary provides an overview of Massachusetts’ Pregnant Workers Fairness Act (PWFA), which went into effect on April 1, 2018.

The PWFA prohibits employment discrimination based on pregnancy and related conditions.

City of Austin, TX Paid Sick Leave Law

The Austin City Council passed an ordinance requiring Austin employers to provide employees with paid sick time, effective Oct. 1, 2018. Employers with five or fewer employees must comply with paid sick time requirements effective Oct. 1, 2020.

City of Chicago Paid Sick Leave

Illinois does not have a statewide law that requires employers to provide employees with paid sick leave.

However, effective July 1, 2018, employers located in the city of Chicago must provide employees with paid sick leave pursuant to the Chicago Minimum Wage and Paid Sick Leave Ordinance.

This Employment Law Summary provides an overview of Chicago’s paid sick leave rules.

 

If you need assistance with any ongoing regulations, changes in state law, or any other HR related matter, please reach out to your assigned DecisionHR Human Resources Business Partner at 1-888-828-5511.

Ban the Box – State by State Update

Ban the Box refers to the “box” on job application forms asking prospective employees whether they have ever been convicted of a crime. Some jurisdictions make it illegal for employers to ask applicants such questions until the interview stage while others ban the practice until a conditional job offer has been made.

The trend of states and municipalities enacting these so-called “ban the box” laws is part of a movement to prevent employers from treating all criminal convictions as a sort of “Scarlet Letter” that has the effect of discriminating against minority applicants.

This Guide features states and key municipalities with “ban the box” laws that apply in some way to private employers. States that either have no ban the box requirement or have a requirement that is limited to public employers are marked N/A.

If you need assistance with this issue or any other HR related matter, please reach out to your assigned DecisionHR Human Resources Business Partner at 1-888-828-5511.

Changes in the “Golden State” – Updates in California

Lots of changes this year in California.  Here are just a couple of the major developments you should be aware of if you are running a business in California:

San Francisco Amends Ban-the-Box Law

On April 3, 2018, San Francisco amended its Fair Chance Ordinance. The amended ordinance, which will take effect on October 1, 2018, will significantly impact employers that employ, or seek to employ, individuals to work eight hours or more per week in San Francisco. As with the existing ordinance, the amended ordinance will apply to employers that employ full-time, part-time, temporary, seasonal, contract, contingent, and commission-based employees. The amended ordinance, however, will dramatically increase the number of employers to which it applies. While the existing ordinance applies to employers that employ 20 or more employees, the amended ordinance will apply to employers that employ as few as 5 employees worldwide. The amended ordinance will also apply to job placement agencies, referral agencies, and other employment agencies, as well as city contractors and subcontractors.

Hotel Workers Musculoskeletal Injury Prevention

The Cal/OSHA Standards Board approved a standard on “Hotel Housekeeping Musculoskeletal Injury Prevention.” The final regulation was recently approved by the Office of Administrative Law and will be effective July 1.

Requirements

As a preliminary matter, 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.

Under the new rule, each covered employer is required to establish and maintain a written musculoskeletal injury prevention program (MIPP) that addresses hazards that are specific to housekeeping. The standard specifies that the MIPP may be incorporated into an existing injury and illness prevention program (IIPP) or maintained as a separate program and must be readily accessible each work shift to employees (including electronic access).

Required elements of the MIPP

  • 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 work site 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 work site evaluation or injury investigation (again 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, work site evaluations, and training records.

As a result, the new standard became effective July 1. Hotel employers will need to begin conducting work site evaluations, drafting MIPPs and training their housekeeping staff

If you need assistance with any ongoing regulations, changes in state law, or any other HR related matter, please reach out to your assigned DecisionHR Human Resources Business Partner at 1-888-828-5511.

Gig Economy? What’s New . . .

In a ruling with potentially sweeping consequences for the so-called gig economy, the California Supreme Court recently made it much more difficult for companies to classify workers as independent contractors rather than employees.

The decision could eventually require companies like Uber, many of which are based in California, to follow minimum-wage and overtime laws and to pay workers’ compensation and unemployment insurance and payroll taxes, potentially upending their business models.

Industry executives have estimated that classifying drivers and other gig workers as employees tends to cost 20 to 30 percent more than classifying them as contractors. It also brings benefits that can offset these costs, though, like the ability to control schedules and the manner of work.

“It’s a massive thing — definitely a game-changer that will force everyone to take a fresh look at the whole issue,” said Richard Meneghello, a co-chairman of the gig-economy practice group at the management-side law firm Fisher Phillips.

The court essentially scrapped the existing test for determining employee status, which was used to assess the degree of control over the worker. That test hinged on roughly 10 factors, like the amount of supervision and whether the worker could be fired without cause.

In its place, the court erected a much simpler “ABC” test that is applied in Massachusetts and New Jersey. Under that test, the worker is considered an employee if he or she performs a job that is part of the “usual course” of the company’s business.

In addition, a company must show that it does not control and direct the worker, and that the worker is truly an independent business operator, not just classified that way unilaterally.

While companies like Uber have had some success arguing that they don’t exert sufficient control over drivers to be considered employers, it would be hard to assert that drivers are performing a task that isn’t a standard feature of their business.

Even if Uber and the like are eventually forced to change their business model, however, that moment could be far off. Uber drivers typically sign an arbitration agreement stating that any disputes must be brought individually and outside the court system. While the United States Supreme Court recently heard a challenge to such agreements, it is widely expected to uphold them.

 If you need assistance with any regulatory issues or any other HR related matter, please reach out to your assigned DecisionHR Human Resources Business Partner at 1-888-828-5511.