COMPLIANCE DATE REMINDERS
September 30, 2016 – EEO-1 Report and VETS 100 Report Due
Organizations with 100+ employees and organizations with 50+ employees and federal contracts or subcontracts greater than $50,000 must submit the EEO-1 report no later than September 30. Click here for more details: EEOC Reporting
Organizations with federal contracts or subcontracts of $25,000 or more must file a VETS-100 Report no later than September 30, 2016. Click here for more details: VETS Reporting
FEDERAL COMPLIANCE UPDATES
DOL INCREASES CIVIL MONEY PENALTIES
The Department of Labor (“DOL”) recently issued an interim final regulation to adjust the amount of civil penalties assessed in its regulations. This interim final regulation increases penalties imposed under the Employee Retirement Income Security Act of 1974 (“ERISA”), Occupational Safety and Health Act (“OSHA”), Fair Labor Standards Act (“FLSA”), and the Family and Medical Leave Act (“FMLA”), among other laws. The adjusted civil penalty amounts apply to civil penalties assessed after August 1, 2016.
Click here for more details: DOL Fact Sheet
SUPREME COURT LEAVES HOME CARE RULE IN PLACE
In the case Home Care Ass’n of Am. v. Weil, the Supreme Court let stand a lower court’s holding that home care workers are eligible for minimum wage and overtime pay.
The home care rule narrowed the “companionship exemption” so that home care workers employed by third-party agencies are eligible for overtime pay but workers employed by consumers are not. The exemption was scaled back to cover those mainly in an “elder sitter” role.
EEOC ISSUES NEW GUIDANCE ON RESPONSE STATEMENTS:
The Equal Employment Opportunity Commission (“EEOC”) recently issued new guidance about the written responses employers send to the agency regarding discrimination and retaliation charges. The new guidance states that responses will be available for review/rebuttal by charging parties. It also states that employers must protect confidential information such as medical information, Social Security numbers, trade secrets, personal identifying information about witnesses, etc. in responses; explains that filing time extensions will be granted only after justification; and outlines what types of information an employer must supply in a charge response.
Click here for more details: EEOC’s new guidance
STATE-BY-STATE COMPLIANCE
CALIFORINIA
San Diego Earned Sick Leave Approved
“The Referendum of Ordinance Relating to Earned Sick Leave and Minimum
Wage to be Provided to Employees Working in the City of San Diego” was passed on June 7, 2016 and is expected to take effect immediately following certification of the election results.
Under the new law, employees who perform at least two hours of work within the geographic boundaries of San Diego are entitled to benefits under the Ordinance. Limited exceptions apply to employees under a special license for handicapped individuals, persons employed under a publicly subsidized summer or short-term youth employment program, or certain student-employees or counselors of organized camps as provided under the California Labor Code.
Employers must provide covered employees with one hour of earned sick leave for every
30 hours worked by the employee within the geographic boundaries of San Diego. However, employers who provide an amount of paid leave, including paid time off, vacation, or paid personal days, sufficient to meet the requirements of the Ordinance and allow use of such paid time off under the same conditions and purposes as the Ordinance are not required to provide additional leave.
Employers may not limit the amount of earned sick leave that employees accrue. They may, however, limit use of earned sick leave to 40 hours in a consecutive 12-month period (to be determined by the employer). All unused, accrued earned sick leave must be carried over to the next year. Employers are not required to pay out earned sick leave upon termination of employment if the earned sick leave is separate and distinct from a paid time off or vacation plan.
Employees begin to accrue earned sick leave upon hire, and existing employees will begin accruing earned sick leave immediately. Employees may begin using earned sick leave on their 90th day of employment.
Employees may use earned sick leave for their own medical care and for the medical care of certain covered family members. Employees also may use earned sick leave for themselves and covered family members for reasons associated with domestic violence, sexual assault, or stalking, including medical care, counseling, relocation, or legal services. In addition, employees may use leave time for a public health emergency.
When the use of earned sick leave is foreseeable, employers may require reasonable advance notice not to exceed seven days prior to the date that the earned sick leave is to be used. When the need for used of earned sick leave is not foreseeable, employers may require employees to provide notice of the need to use earned sick time as soon as practicable.
If an employee is absent for more than three consecutive work days, the employer may require reasonable documentation that earned sick leave was taken for a permissible reason. Employers must accept reasonable documentation (which does not specify the nature of the injury, illness or medical condition) signed by a licensed health care provider regarding the amount of earned sick leave required.
Employers are also required to post a notice published each year by the City and must provide each employee written notice of the employer’s name, address, and telephone number, and the legal requirements under the Ordinance at the time of hire.
Los Angeles Approves Minimum Wage Increases and Paid Sick Leave
Effective July 1, 2016, employers in Los Angeles with at least 26 employees must provide the minimum wage rate of $10.50 per hour. Every year thereafter, they must meet the following rate increases:
- July 1, 2017: $12.00/hour
- July 1, 2018: $13.25/hour
- July 1, 2019: $14.25/hour
- July 1, 2020: $15.00/hour
Employers with 25 or fewer employees will have an extra year to comply with the rate increases.
Also effective July 1, 2016, Ordinance No. 184320 requires employers in Los Angeles to provide their employees with 48 hours of paid sick leave, doubling the mandatory minimum under California’s statewide paid sick leave law.
Employees who work in Los Angeles for the same employer for at least 30 days within a year from the start of employment are entitled to take up to 48 hours of sick leave in each year of employment, calendar year, or 12-month period. Employees may use paid sick leave beginning on the 90th day of employment or July 1, 2016, whichever is later.
Employers may choose to provide the entire 48 hours of paid sick leave up front in each year of employment, calendar year, or 12-month period, or employers may provide the accrual of sick leave at the rate of one hour for every 30 hours worked. Accrued paid sick leave must carry over to the following year of employment, but may be capped at 72 hours. Employers are not required to pay out earned sick leave upon termination of employment if the earned sick leave is separate and distinct from a paid time off or vacation plan. However, if an employee is rehired within a year from the date of separation, previously used and unused paid sick time must be reinstated.
Employers who provide an amount of paid leave or paid time off that is equal to or greater than 48 hours are not required to provide additional time.
Employees may use paid sick leave for their own medical care and for the medical care of covered family members. In addition, the Ordinance also allows for use of paid sick leave for “any individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship.”
Employers must provide paid sick leave upon the verbal or written request of an employee. Employers may require an employee to provide reasonable documentation of an absence from work for which paid sick leave is or will be used.
Employers are also required to post the notice published each year by the City informing employees of the current City minimum wage rates, sick time benefits, and of their rights under the Ordinance, as well as provide the notice in writing to employees.
COLORADO
Colorado Expands Pregnancy Discrimination Law
Effective August 10, 2016, House Bill 16-1438 amends the Colorado Anti-Discrimination Act to require employers to provide reasonable accommodations to a job applicant or an employee for conditions related to pregnancy or childbirth. The law also requires employers to engage in an interactive process with employees who request accommodations.
Examples of reasonable accommodations include the following:
- More frequent or longer break periods;
- More frequent restroom, food, and water breaks;
- New or modified equipment or seating;
- Limitations on lifting;
- Temporary transfer to a less strenuous or hazardous position;
- Job restructuring;
- Light duty;
- Assistance with manual labor; and/or
- Modified work schedules.
An employer cannot require a pregnant applicant or employee to accept an accommodation that the applicant or employee has not requested and it cannot require an employee to take leave if the employer can provide another reasonable accommodation.
The new law applies to most employers, regardless of size. However, employers are not required to provide accommodations that impose any “undue hardship” to the employer’s business. Factors considered in determining undue hardship include:
- the nature and cost of the accommodation;
- the overall financial resources of the employer;
- the overall size of the employer’s business; and
- the effect on the expenses, resources, or operations of the employer.
Employers may not retaliate against employees who request or use a reasonable accommodation related to pregnancy, childbirth, or a related condition.
Beginning August 10, 2016, employers must provide new employees written notice of employees’ right to be free from discriminatory or unfair employment practices at the start of employment. Employers must provide current employees with written notice of their rights under the new law by December 8, 2016.
State Employment Verification Requirement Repealed
Also effective August 10, 2016, Colorado employers will no longer be required to comply with the additional state verification and retention obligations related to the Form I-9, Employment Eligibility Verification.
Colorado employers will no longer be responsible for the completion and retention of a written or electronic version of an entirely separate affirmation form, nor will they be required to retain copies of the identity and work authorization documents presented by the employee during the I-9 process.
NEBRASKA
Data Breach Notification Requirements
Effective July 20, 2016, LB835 amends the state’s breach notification statute. The new law includes a new requirement to notify the Nebraska Attorney General in the event of a data breach and broadens the definition of “personal information” to include a user name or email address, in combination with a password or security question and answer that would permit access to an online account.
PENNSYLVANIA
New Anti-Wage Theft Law Takes Effect in Philadelphia
Effective July 1, 2016, Philadelphia’s Wage Theft Law imposes higher penalties for violations of the state’s anti-wage theft law, provides for a private right of action for alleged violations, and creates the position of Wage Theft Coordinator within the City’s Managing Director’s Office.
According to the Wage Theft Law, “wage theft” would include any instance of wages being earned but not paid to the earning employee.
The Wage Theft Law provides for a private right of action that does not require a complaint to be filed administratively first. Rather, an action brought under the ordinance may be filed in court at any time within the applicable statute of limitations. It also includes an anti-retaliation provision and a posting requirement.
Philadelphia Restricts Credit History Use
Effective July 7, 2016, Philadelphia Bill No. 160072 amends the Philadelphia “Fair Practices Ordinance: Protections Against Unlawful Discrimination” to make it an illegal for an employer to use an applicant’s or employee’s credit information to make employment decisions including hire, discharge, tenure, promotion, discipline or consideration of any other term, condition or privilege of employment.
TENNESSEE
Garnishments Definition of Earnings Modified
Effective September 1, 2016, H.B. 1775 amends the definition of income in regards to garnishments from “salaries, wages or other compensation” to simply “earnings,” thus increasing the pay that may be subject to wage garnishments.
TEXAS
Concealed Handguns Allowed in University Buildings
Effective August 1, 2016, S.B. 11 allows handgun license holders to carry concealed handguns into public and private colleges, universities, and other independent institutions of higher learning. The law does permit private universities to opt out and public universities to set up gun-free zones.
The law will apply to public junior and community colleges effective August 1, 2017.
WISCONSIN
Posting Required for Bone Marrow and Organ Donation Leave Rights
Covered employers with 50 or more employees must post a notice in one or more conspicuous places in a form approved by the Department of Workforce. Click here to download the free poster: WI Poster