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I-9 e-Verify Extended 30 Days, 5 States Update HR Regulations

Emily Hartman /

Every month we break down all of the upcoming federal, state, and local regulatory changes related to Human Resources (HR) and labor topics. Check out the latest about remote employee I-9 e-verification, and 5 states update HR regulations (Colorado, Illinois, New Mexico, Virginia, Washington).

Federal

E-Verification of I-9 Data for Remote Employees Extended for 30 Days

IRS Announces Limits for 2021 HSAs and High-Deductible Health Plans

U.S. Department of Labor Issues New Rules on Electronic Disclosure Requirements for Retirement Plans

State

Colorado Increases the Minimum Salary for Exempt Employees

Illinois Releases Its Model Sexual Harassment Prevention Training Program

Illinois Requires Employers to Report Judgments Against Them in Discrimination Cases

Illinois Requires Hotel and Casino Employers to Provide Safety Devices to Employees Working Alone

Chicago Passes Fair Workweek Ordinance

Chicago Amends Paid Sick Leave Ordinance

UPDATED: Bernalillo County, New Mexico Adopts Paid Leave for Any Reason

Virginia Protects Hair as a Characteristic of Race

Virginia Passes Anti-discrimination Laws that Protect Sexual Orientation and Gender Identity

Virginia Law Decriminalizing Marijuana Contains Employment-Related Provisions

Washington Bans Discrimination on the Basis of Hair or Hairstyle

Washington Changes Minimum Salary Threshold for Exempt Employees


E-Verification of I-9 Data for Remote Employees Extended for 30 Days

Who: Employers operating remotely, with 100% remote employees

When: Effective May 19, 2020

What: On May 14, the U.S. Immigration and Customs Enforcement (ICE) announced a 30-day extension to the I-9 E-Verify program, which was set to expire May 19. The extension is to accommodate employers with employees who are taking physical proximity precautions due to COVID-19.

The requirement to review and verify I-9 identity and employment authorization documents in person is waived for employers operating remotely. If there are employees physically present at a work location, there is no exception. Under the ruling, employers may examine identity documents for Section 2 of the I -9 via video, fax, email, or other remote technology.

Employees must report to their employers within three business days once normal operations resume in order to present their documentation in person. Employers must accept any document from List A or from List C of the Lists of Acceptable Documents when reverifying that an employee is authorized to work.

The email address for the Form I-9 Contact Center has been changed to E-Verify@uscis.dhs.gov.

How:

  • Create an E-Verify case for a new hire within three business days of the date of hire.
  • To complete Section 2 of the I-9, examine I-9 documentation via video, fax, email, or other remote technology.
  • Monitor the Department of Homeland Security (DHS) and U.S Immigration and Customs Enforcement (ICE) websites to determine if there have been additional extensions of the E-Verify program and for information about when you must resume inspecting the I-9 identity documents in person.
  • Provide documentation of your remote onboarding and telework policies to each new employee.

Additional Resource:

E-Verify Temporary Policies due to COVID-19

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IRS Announces Limits for 2021 HSAs and High-Deductible Health Plans

Who: Employers that offer health savings accounts and/or high-deductible health plans

When: For the calendar year 2021

What: The Internal Revenue Service announced increased limits for health savings accounts (HSAs) and high-deductible health plans (HDHPs) for the year 2021. The increases are cost-of-living adjustments.

The HSA contribution limit (which can be shared by employers and employees) is increasing by $50 for an individual to a total of $3,600. For a family, it is increasing by $100 to $7,200. The catch-up provision of $1,000 for HSAs remains unchanged.

The maximum out-of-pocket expenses for HDHPs will increase by $100 to $7,000 for individuals and by $200 to $14,000 for families. The minimum deductible of $1,400 for individuals and $2,800 for families has not changed.

How:

  • Consider the new limits when planning your 2021 benefits.
  • Update your payroll and plan administration systems to reflect the new limits.
  • Update your plan communications, such as open enrollment materials, plan documents, and summary plan descriptions, to reflect the new limits.

Additional Resources:

IRS Revenue Procedure 2020-32

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U.S. Department of Labor Issues New Rules on Electronic Disclosure Requirements for Retirement Plans

Who: All employers with covered individuals

When: Effective July 27, 2020

What: The U.S. Department of Labor (DOL) announced final regulations addressing electronic disclosures for retirement plans under the Employee Retirement Income Security Act of 1974 (ERISA) These rules provide an additional safe harbor for employee benefit plan administrators who may now use electronic media as a default to furnish information to participants and beneficiaries of plans subject to ERISA.

Plan administrators who meet certain requirements may notify participants and beneficiaries that disclosures will be made available on a website, or that they will furnish the disclosures by email. Employees may request disclosures on paper and thereby opt-out of electronic delivery.

The safe harbor afforded by this rule applies to covered individuals and to covered documents. A covered individual is a participant, beneficiary, or other individual entitled to covered documents and who provides the employer, plan sponsor, or administrator an email address or a phone number for an Internet-connected device. A covered document is any document that the administrator is required to furnish to participants and beneficiaries pursuant to Title I of ERISA, except for any document that must be furnished only upon request.

How:

  • Review and update your procedures regarding delivery options for ERISA notifications if needed.
  • Create the communication (e.g., email, memo) that you will use to notify plan participants of their options for receiving disclosures.

Additional Resources:

U.S. DOL Press Release

Fact Sheet: Electronic Disclosure Safe Harbor for Retirement Plans

Default Electronic Disclosure by Employee Pension Benefit Plans Under ERISA

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States

Colorado Increases the Minimum Salary for Exempt Employees

Who: All employers in Colorado

When: Effective July 1, 2020

What: Colorado is setting a new minimum salary threshold for exempt employees. Changes to these rules will mean some employers will have to provide overtime, minimum wage, and benefits to employees who were previously classified as exempt and are now nonexempt. In other cases, employers may need to increase salaries for exempt employees.

To maintain an employee’s exempt status and therefore avoid the requirement to pay overtime, the employer must pay the employee a minimum salary of $35,568 per year. The new rule takes effect on July 1, 2020 and has a provision for increases every year thereafter. Starting January 1, 2021, for example, the threshold for maintaining exempt status is $40,500.

Note: To classify an employee as exempt, employers must pay the higher of the federal or state exempt threshold. Starting January 1, 2021, the state threshold will exceed the federal threshold.

How:

  • Conduct a cost-benefit analysis to determine whether the exempt or hourly classification is most beneficial, considering the new thresholds for exempt salaries.
  • Ensure that your exempt salary levels and computations are tied to the state-mandated thresholds rather than the federal thresholds.
  • Review your current policies and employees’ exemption status to determine where changes may be necessary to comply with federal and state requirements.
  • As needed, the budget for annual salary increases and costs associated with changes in benefits for employees reclassified from exempt to nonexempt.

Additional Resources:

Colorado Department of Labor and Employment Colorado Overtime & Minimum Pay Standards (COMPS) Order #36

Poster: Colorado Overtime & Minimum Pay Standards (COMPS) Order #36

COMPS Order #36 Interpretive Notice & Formal Opinion (“INFO”) #1

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Illinois Releases Its Model Sexual Harassment Prevention Training Program

Who: All employers with 1 or more employees working in the state of Illinois

When: Effective January 1, 2020; first training required by December 31, 2020

What: As charged by the Illinois Workplace Transparency Act, and in an effort to combat “rampant sexual harassment in the workplace,” the Illinois Department of Human Rights has released its free model sexual harassment prevention training program. Employers must implement this free model sexual harassment prevention training or similar training that meets the standards in section 2-109 (B) by December 31, 2020, and give the training on an annual basis thereafter.

Employers must provide training in a manner that is accessible to employees with disabilities or limited English proficiency.

How:

  • Provide training based on the new model training program, or a comparable one that meets the minimum standards, by December 31, 2020.
  • Plan for annual training thereafter.
  • Keep records that demonstrate compliance with the training requirements. At a minimum, the record should consist of a paper or electronic certificate, acknowledgment of training signed by the employee, or course sign-in worksheet. Ideally, the records will contain names of employees trained, date of training, name of trainer, and a copy of all written and/or recorded materials the comprise the training.

Additional Resources:

State of Illinois Sexual Model Sexual Harassment Prevention Training Program

FAQ for Sexual Harassment Prevention Training

Minimum Standards for Sexual Harassment Training Programs (Section 2-109(B))

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Illinois Requires Employers to Report Judgments Against Them in Discrimination Cases

Who: All employers with 1 or more employees working in the state of Illinois

When: Effective July 1, 2020

What: The sweeping Workplace Transparency Act of the state of Illinois requires employers to disclose certain information about their involvement in discrimination cases. Specifically, employers must report to the Illinois Department of Human Rights (IDHR) the total number of adverse judgments or administrative rulings against them during the preceding year. The provision covers any discrimination case brought under a federal or state law.

Employers must also disclose whether equitable relief was ordered against them in judgment, and how the judgments break down by the protected characteristics outlined in the Act. Those characteristics including sex, race, religion, age, national origin, disability, military status, sexual orientation, gender identity, and sexual harassment.

The requirement for disclosure begins July 1, 2020, and applies annually (by July 1) thereafter.

If the IDHR is investigating a charge filed under the Illinois Human Rights Act, the investigator may ask for information about settlements of sexual harassment or unlawful discrimination claims. The employer must provide said information under such circumstances.

How:

  • Create a procedure for reporting the required information on an annual basis.
  • Report the information to the IDHR, if applicable, on July 1, 2020.
  • Keep a record of all judgments, administrative rulings, and settlements that fall under the jurisdiction of the Act.

Additional Resources:

SB0075

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Illinois Requires Hotel and Casino Employers to Provide Safety Devices to Employees Working Alone

Who: All hotel and casino employers

When: Effective July 1, 2020

What: Article 5 of Illinois Senate Bill 75, also known as the Hotel and Casino Employee Safety Act, requires hotels and casinos to protect their employees from sexual assault and sexual harassment by guests. The main provision of the Act requires employers to provide a safety device or notification device, at no charge to the employee, to any employee required to work alone in a guest room or restroom or on a casino floor.

The employee may use the device to report an ongoing crime, sexual harassment, sexual assault, or another emergency. Employees are to use the device in accordance with the employer’s written procedure. Employers may not retaliate against employees for using the device, or for reporting violations of the Act.

Employers must update their policies to meet the requirements of the Act, distribute the policy to all employees, and post it in locations where employees will see it.

How:

  • Update your written anti-sexual harassment policy to meet the specifications of the Act.
  • Give a copy of your current anti-sexual harassment policy, in English and Spanish, to all employees.
  • Post the policy, in English and Spanish, in conspicuous areas where employees will see it.
  • Create a program to train staff on your safety-device procedures.
  • Obtain the required safety/notification devices so that you are prepared to provide them to affected employees starting July 1, 2020.

Additional Resources:

Hotel and Casino Employee Safety Act

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Chicago Passes Fair Workweek Ordinance

Who:

  • Chicago employers with 100 or more global employees, 50 or more of whom who are engaged in a covered industry and meet the definition of a covered employee
  • Chicago nonprofit employers with 250 or more employees

When: Effective July 1, 2020

What: The City of Chicago passed the Fair Workweek Ordinance, which requires employers to provide work schedules no later than 10 days in advance to covered employees in the building services, healthcare, hotel, manufacturing, restaurant, retail, and warehouse services industries. A covered employee earns a salary of less than $50,00 per year or an hourly rate of less than $26 and spends the majority of work time in the City of Chicago.

Known as a “predictive scheduling law,” the Ordinance also requires employers to give new hires a written estimate of the employee’s projected days and hours of work for the first 90 days of employment. A new hire may request modification to the work schedule. The employer may choose to do make the modifications or not, but the employer must notify the employee in writing within three days.

The Ordinance has several specific rules that address when and how an employer may add or subtract hours from the schedule provided, and how the employee may respond. Under certain circumstances, the employer must provide “predictability pay” to cover some of the employee’s lost compensation. Employees have the right to request modifications to the schedule and permission to trade shifts with other covered employees.

Requirements of the Ordinance may be waived by a collective bargaining agreement. Requirements are also waived by an exception for COVID-19–related schedule changes.

How:

  • Determine if you are a covered employer with covered employees.
  • Evaluate your policies and procedures to determine if you are in compliance with the provisions of the Ordinance.
  • Update your policies and procedures as necessary.
  • Post a notice as required by the Ordinance.
  • Create a program to train managers and schedulers on the new rules and procedures.
  • Make a budgetary plan to address the costs of training, notification, and additional wages that arise from last-minute schedule changes.

Additional Resources:

Chicago Fair Workweek Labor Standards Notice

Chicago Fair Workweek Ordinance

Chicago Fair Workweek Rules

COVID-19 Pandemic Rule

Fair Workweek FAQs

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Chicago Amends Paid Sick Leave Ordinance

Who: All employers

When: Effective July 1, 2020

What: The original amendments to the Chicago Paid Sick Leave Ordinance excluded certain types of employees, which are now covered by the current amendments:

  • Outside salespeople
  • Members of a religious corporation or organization
  • Students at, and employed by, an accredited Illinois college or university
  • Employees of motor carriers regulated by the U.S. Secretary of Transportation or the State of Illinois

Employers must provide employees with their paid sick leave notice along with their first paycheck on or following July 1, 2020 and annually thereafter. Notice can be by physical or electronic means.

The original legislation prevents retaliation against employees for COVID-19–related absences. Employers may not demote or terminate employees who stay at home to obey a quarantine or isolation order or for caring for a person subject to such an order.

How:

  • Ensure that your current paid sick leave policy covers employees as defined by the Ordinance. Update it if necessary.
  • Consider whether your current policies or practices violate the requirement not to retaliate against employees for COVID-19–related absences. Modify them as necessary.
  • Include a notice of your paid sick leave policy in employees’ first paychecks starting July 1 and once a year thereafter.
  • Post notice of the new policy through your usual means (physical poster or electronic communication) in English (and Spanish if applicable).

Additional Resources:

SO2020-2343 Amendment to Paid Sick Leave Ordinance

Poster: Chicago Minimum Wage & Paid Sick Leave

Chicago Business Affairs and Consumer Protection

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Bernalillo County Adopts Paid Leave for Any Reason

Who: Employers that have a physical premise in and employ two or more employees in the unincorporated county limits

When: Effective July 1, 2020 UPDATE: THIS DATE HAS CHANGED TO OCTOBER 1, 2020 BECAUSE OF THE CORONAVIRUS

What: Employers within the limits of unincorporated Bernalillo County are required under the Employee Wellness Act to allow employees to accrue paid time off (PTO) and to use that time off for any reason. The new law means that employees accrue at least one hour of paid time off for every 32 hours worked. Employers may also choose to provide all earned paid time off at the beginning of the year.

Covered employees are those who work at least 56 hours a year in the unincorporated county limits, but the Ordinance contains a number of exceptions.

Employers must allow employees to accrue up to 24 hours of paid time off as of July 1, 2020, 40 hours of paid time off as of July 1, 2021, and 56 hours of paid time off as of July 1, 2022 and thereafter. Employees must provide notice of leave in accordance with the employers’ policy, with the exception of an unforeseen emergency or illness. Employers must provide the amount of earned PTO accrued and used to an employee upon request.

The Ordinance does not expressly order employers to pay out earned PTO when employment ends. It does provide for reinstatement of earned PTO upon transfer, rehire, or hire buy a successor employer.

How:

  • Prepare to provide paid time off to employees beginning July 2020.
  • Update your policies to address the new requirements. Make sure your policies address how employees must notify you of requests for paid time off and how you handle payout of earned PTO when employment ends.
  • Give new employees notice of your related policies. You may do that by posting notice in English and Spanish in a conspicuous place at your place of business. The notice must include:
    • Their right to earned PTO, how much earned PTO you give, and the related terms of use;
    • How employees must request PTO;
    • A statement that requesting or using PTO is not an act against which employers can retaliate; and
    • A statement that employees may file a complaint with the county.
  • Keep proper records of earned PTO accrued or used by each employee on file for the current calendar year plus a minimum of four years.
  • Watch for the County to publish a related poster that you must post in the workplace.
  • Create a training program for employees and managers as needed in order to educate them about the new PTO rules.

Additional Resources:

Bernalillo County Paid Time Off Ordinance

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Virginia Protects Hair as a Characteristic of Race

Who: Employers with more than 15 employees

Note: There are additional provisions in the case of unlawful discharges based on race, color, religion, national origin, status as a veteran, sex, sexual orientation, gender identity, marital status, pregnancy, childbirth or related medical conditions like lactation, that expand the term “employer” to include 5-20 employees.

When: Effective July 1, 2020

What: Virginia amended its Human Rights Act to include hair texture and type in the terms “because of race” and “on the basis of race.” The amendment also specifically names protective hairstyles, such as braids, locks, and twists, as being protected. The purpose of this part of the Act is to define unlawful racial discrimination.

How:

  • Review your policies and standards about dress code and appearance and update as necessary.
  • Create a training program for managers to educate them about the new policies and the potential for bias in hiring and other employee-management practices.

Additional Resources:

HB 1514 Virginia Human Rights Act; Racial Discrimination, Hair

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Virginia Passes Anti-discrimination Laws that Protect Sexual Orientation and Gender Identity

Who: Employers with more than 15 employees

Note: There are additional provisions in the case of unlawful discharges based on race, color, religion, national origin, status as a veteran, sex, sexual orientation, gender identity, marital status, pregnancy, childbirth or related medical conditions like lactation, that expand the term “employer” to include 5-20 employees.

When: Effective July 1, 2020

What: The state expanded its Virginia Human Rights Act with the SB 868 “Virginia Values Act,” which prevents employment discrimination based on sexual orientation or gender identity. The new statute also prohibits discrimination in housing, public accommodations, and access to credit based on sexual orientation, gender identity, and a number of other protected classes, including status as a veteran.

The new legislation allows employees to sue their employers in state civil court for violations of the provisions of the law. If successful, plaintiffs can be awarded attorney fees, compensatory damages, and punitive damages. There is no cap on damages. A plaintiff may also be awarded injunctive relief, such as reinstatement.

How:

  • Review and revise your policies and practices as needed, including job-training materials, anti-discrimination/anti-harassment training materials, interview and hiring protocols, benefits packages, and any others that could impact an employee on the basis of sexual orientation or gender identity. All changes should be in place ahead of the July 1, 2020 effective date.
  • Create a training program for managers to educate them about the new policies and the potential for bias in hiring and other employee-management practices.

Additional Resources:

SB 868

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Virginia Law Decriminalizing Marijuana Contains Employment-Related Provisions

Who: All employers and employees

When: Effective July 1, 2020

What: On May 21, 2020, Governor Ralph Northam signed HB 972/SB 2, which decriminalizes simple marijuana possession (up to one ounce), punishable by a fine of no more than $25. For employers, there are two relevant clauses. The first is that employers may not require applicants to disclose information related to past criminal charges for simple marijuana possession.

The second is that if the person is found to possess marijuana while operating a commercial vehicle, that violation will be reported to the state Department of Motor Vehicles and added to the person’s driving record. Other than that, any records related to being arrested for, charged with, or convicted of simple marijuana possession are generally no longer open to public inspection.

How:

  • Review your policies and practices to ensure that you do not require applicants to disclose information about simple marijuana possession or any related arrests, charges, or convictions. You may not require or use that information in any application, interview, or any other part of the hiring, admission, or licensing process.
  • Create a training program for managers to educate them about the new laws, your new application forms or processes, and the potential for bias in hiring and other employee-management practices.

Additional Resources:

HB972

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Washington Bans Discrimination on the Basis of Hair or Hairstyle

Who: Employers with eight or more employees; nonprofit organizations are exempted

When: Effective June 10, 2020

What: Washington amended its Law Against Discrimination to include in its definition of “race” traits historically associated with or perceived to be associated with race. The amendment specifically includes hair texture and protective hairstyles, such as afros, braids, locks, and twists. The purpose is to clarify what constitutes unlawful racial discrimination and prevent discrimination based on hair or hairstyle.

How:

  • Review your policies and standards about dress code and appearance and update as necessary.
  • Create a training program for managers to educate them about the new policies and the potential for bias in hiring and other employee-management practices.

Additional Resources:

HB 2602 Amendment to Washington Law Against Discrimination

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Washington Changes Minimum Salary Threshold for Exempt Employees

Who: Employers with one or more employees

When: Effective July 1, 2020

What: Washington is setting a new minimum salary threshold for exempt employees and updating job-duties tests to determine which employees can be classified as exempt. Changes to these rules will mean some employers will have to provide overtime and minimum wage to employees who were previously classified as exempt and are now nonexempt. In other cases, employers may need to increase salaries for exempt employees.

To maintain an employee’s exempt status and therefore avoid the requirement to pay overtime, the employer must pay the employee a minimum salary of $35,100 per year. The new rule takes effect on July 1, 2020 and has a provision for increases every year thereafter.

Starting January 1, 2021, for example, the threshold for maintaining exempt status is $43,004 for smaller employers and $50,180 for larger employers. The new thresholds are different for employers with one to 50 employees than they are for employers with 51 or more employees, but the schedule becomes the same for the year 2028 and beyond.

There is a separate phase-in schedule for computer professionals who are paid by the hour. Beginning July 1, 2020, the minimum hourly rate of $27.63 remains unchanged for smaller employers and increases to $37.13 for larger employers.

To classify an employee as exempt, employers must pay the higher of the federal or state exempt threshold. Starting January 1, 2021, the state threshold will exceed the federal threshold.

How:

  • Conduct a cost-benefit analysis to determine whether the exempt or hourly classification is most beneficial, considering the new thresholds for exempt salaries.
  • Ensure that your exempt salary levels and computations are tied to the state-mandated thresholds rather than the federal thresholds.
  • Review your current policies and employees’ exemption status to determine where changes may be necessary to comply with federal and state requirements.
  • As needed, the budget for annual salary increases and costs associated with changes in benefits for employees reclassified from exempt to nonexempt.

Additional Resources:

New Salary Threshold Implementation Schedule

Hourly Computer Professional Phase-in Schedule

Key Facts of the Washington Overtime Rules ChangesChanges to Overtime Rules

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