Every month we cover timely federal and state legislative and regulatory employment updates. Check out what you need to know and gain compliance tips to help you stay on top of HR, the right way. Click on the federal topics or state names below to catch up on the latest news.
- “No Match” Letters Return
- Additional H-2B Visas Issued
- Comment Period Extended for Joint Employer Regulations
- Comment Period Extended for Regular Rate Regulations
- Arkansas: Empower Independent Contractors Act of 2019
- Delaware: Sexual Harassment Prevention Information Requirement
- District of Columbia: Universal Paid Leave Act Starts July 2019
- District of Columbia: Tipped Workers Requirements
- Florida: Workplace Vaping Requirements
- Illinois: Mandatory Retirement Enrollment Program
- Kentucky: Employer Representation Requirement at Unemployment Hearings
- Kentucky: Equal Opportunity Poster Updated with Pregnancy Workers Act Info
- Massachusetts: Plan Exemption Deadline Extended for Paid Family and Medical Leave
- Minneapolis: Sick and Safe Time Ruling
- New Jersey: Reminder Family Leave Act Expansion
- New Mexico: Gender Neutral Restrooms Approved
- South Dakota: e-Cigarettes Banned from Workplace
- Washington: Salary History Banned
- Washington: Paid Family and Medical Leave Reports Due
“No Match” Letters Return
Who: Employers who have at least one W-2 form where the name and Social Security Number (SSN) doesn’t match the Social Security Administration’s (SSA) record.
When: Effectively Immediately
Beginning March 2019, the U.S. Social Security Administration (SSA) started sending Employer Correction Request letters, or “No Match” letters, to any employers with mismatched information between W-2 forms and its records. More than 575,000 employers have already received notifications.
The letters inform employers of the number of mismatches and the affected tax year. It requests employers log into the Business Services Online website to find the list of impacted names and to send corrections to the SSA. Corrections should be made to Form W-2C within 60 days of receiving the letter.
No action is necessary unless you receive a letter. If you receive a “No Match” letter:
- Review employee records for typos, name changes, incorrect middle initials, or other small mistakes.
- Employers may not terminate nor discipline employees listed on a “No Match” letter.
- Inform the employee and monitor corrective actions for a reasonable amount of time (there is no guidance from SSA on ‘reasonable’).
- Submit corrections electronically to the SSA
- If the employee does not respond or take action, seek immigration legal counsel for next steps and guidance.
Additional H-2B Visas Issued
Who: Businesses that employ foreign seasonal workers
When: Effective Immediately
The U.S. Department of Homeland Security (DHS) has authorized an additional 30,000 H-2B visas through September 30, 2019 for those workers who previously held the visa at least once in the last three fiscal years.
Comment Period Extended for Joint Employer Regulations
Who: Employers with employees who work for another employer
When: Comments Due June 25, 2019
The Fair Labor Standards Act allows for joint employer situations in which two employers are jointly responsible for an employee’s wages. The U.S. Department of Labor has proposed a rule to clarify employers’ and joint employers’ responsibilities to employees in joint employer arrangements. If passed, it would limit employers’ joint employment liability for wage and hour matters because fewer businesses would meet the definition of a joint employer. See examples.
While not official yet, if the rule is finalized, a new “four-part balancing test” will determine if the second employer is considered a joint employer. Does the employer:
- Hire or fire the employee?
- Supervise and controls the employee’s work schedule or conditions of employment?
- Determine the employee’s rate and method of payment?
- Maintain the employee’s employment records?
After the proposed rule is published in the federal register, the public can submit comments. Visit regulations.gov, search RIN 1235-AA26. You’ll have until June 10, 2019, to post your comment.
Comment Period Extended for Regular Rate Regulations
Who: All Employers
When: June 12, 2019
Employers base eligible employees’ overtime earnings on their “regular rate” of pay. The U.S. Department of Labor is proposing clearer definitions for terms like regular rate and basic rate. The Wage and Hour Division’s Notice of Proposed Rulemaking, proposes excluding the following conditions from an employee’s regular rate of pay:
- The cost of providing wellness programs, onsite specialist treatment, gym access, and fitness classes, and employee discounts on retail goods and services.
- Payments for unused paid leave, including paid sick leave.
- Reimbursed expenses, even if not incurred “solely” for the employer’s benefit.
- Reimbursed travel expenses that don’t exceed the maximum travel reimbursement permitted under the Federal Travel Regulation System regulations and that satisfy other regulatory requirements.
- Discretionary bonuses.
- Benefit plans, including accident, unemployment, and legal services.
- Tuition programs, such as reimbursement programs or repayment of educational debt.
Employers with unique or complex pay structures for overtime-eligible employees may want to participate in the comment period. Visit regulations.gov, search RIN 1235-AA24.
Arkansas: Empower Independent Contractors Act of 2019
Who: Businesses that employ Arkansas-based contractors
When: July 25, 2019
When seeking to employ a contractor or freelancer, businesses must now use an IRS 20-factor test (page 2, section 11-1-104) to determine the individual’s employment status. Employment status is defined as the “status of an individual as an employee or independent contractor for employment purposes, including without limitation wages, taxation, and workers’ compensation.” An employment relationship can be determined if more factors apply to the contracted worker versus an independent contractor relationship.
Review your contracts and relationships with independent freelancers and contractors based on the 20 conditions.
Delaware: Sexual Harassment Prevention Information Requirement
Who: Business with 4+ employees in Delaware
When: July 1, 2019
The law makes employers liable if they should have known or did not take the necessary steps to correct and investigate complaints. It also prohibits retaliation against any adverse reports, protecting victims and witnesses.
Distribute existing employees a copy of the Delaware Sexual Harassment Notice by July 1, 2019. Give this notice to new employees upon hire.
District of Columbia: Universal Paid Leave Act Starts July 2019
Who: Any employer of Washington, D.C. employees
When: July 1, 2019
All Washington, D.C. employers who are required to pay unemployment insurance are covered under the Act. Employers are liable for 0.62% tax on employees’ gross wages.
Employers are required to start paying into the Universal Paid Leave Implementation Fund on July 1, 2019. The first quarterly tax is based on wages from April 1, 2019, through June 30, 2019. Your first quarterly payment should be made to the DC Office of Employment Services (DOES) by July 31, 2019. Employees will be eligible for benefits starting July 1, 2020.
The Universal Paid Leave Act provides up to 8 weeks of parental leave to bond with a new child, 6 weeks of family leave to care for an ill family member with a serious health condition and 2 weeks of medical leave to care for one’s serious health condition.
Contact your payroll administrator to ensure your compliance.
District of Columbia: Tipped Workers Requirements
Who: Washington, D.C. businesses who employ tipped workers
When: July 1, 2019
Employee Rights Notice Requirements: A government website will be launched summarizing employees’ rights, labor laws, and anti-discrimination information for employers and tipped workers. Employers are required to post a notice with the website information and the anti-discrimination, labor, and federal laws. They must also display the hourly minimum wage and the hourly tipped minimum wage. The Mayor’s office will provide the poster which employers must place in a noticeable area accessible to all employees. Employers must keep printed copies of all the required information from the website and have it available along with the poster. These documents must be checked and updated monthly.
Sexual Harassment Training and Reporting Requirements: All employees must receive sexual harassment training, including how to respond to sexual harassment from coworkers, management, and customers. Unless he/she has received the training in the last 2 years, new hires must receive training within 90 days of his/her hire date. Everyone (non-management, owners, and operators) hired before December 13, 2018, has two years to complete the training. Managers must receive the training at least once every 2 years. The Office of Human Rights must provide the training or an approved list of training providers. The Office maintains records of all trained individuals for 5 years.
Sexual Harassment Policy and Reporting Requirements: Before July 1, 2019, employers must report all harassment cases and file its sexual harassment policy to the Office of Human Rights. It must then post and distribute the policy to all employees. The policy must include how employees can report cases to the employer and the Office of Human Rights. Starting July 1, 2019, employers must annually document all cases of reported sexual harassment, regardless of whether the harasser was non-management, management, owner, or operator.
If you haven’t done so already, review your current business practices with legal counsel and map out how best to make the changes to your business and train and inform your employees.
Florida: Workplace Vaping Banned
Who: Florida businesses with enclosed workspaces
When: July 1, 2019
Employees are prohibited from vaping, or using e-cigarettes, in enclosed workspaces. “Enclosed workspace” is an indoor space where one person or more is working and the area is closed in with physical barriers on all sides, regardless of whether the barrier has uncovered or partial openings, screens, windows, doors, etc.
Exceptions to this rule follow the tobacco ban and include stand-alone bars, designated hotel rooms, retail vape shops, facilities owned or rented by membership associations, smoking cessation programs, or medical or scientific research.
Vaping is the inhalation/exhalation of vapor produced by a vapor-generating electronic device (e-cigarette) or the possession of an e-cigarette or mechanical means to produce vapor or aerosol from a nicotine product or other substance.
Review your smoking policies and revise them accordingly.
Illinois: Mandatory Retirement Enrollment Program
Who: Illinois businesses with 25+ employees, in business for 2+ years
When: Deadlines vary by business size:
- Employers with 100-499 employees: July 1, 2019
- Employers with 25-99 employees: November 1, 2019
The Illinois State Treasurer will notify employers when they are required to register 120 days before the registration date and then again 30 days before the deadline.
During registration, businesses must provide certain information (e.g., number of employees and use of another retirement savings program) for the state to determine if the employer is required to participate in the Illinois Secure Choice Program.
Employers who enroll in the state-run program must automatically enroll employees in the savings program, withhold 5% of an employee’s compensation and remit employee’s contributions to the savings program unless the employee chooses a different withholding amount or opts out of the program.
Employees have 30 days to opt out or adjust their contributions. Employers can’t contribute to this program.
- Review the retirement savings you currently offer employees.
- Assess whether your business would benefit from enrolling in the Illinois Secure Choice Program or another retirement plan, like a 401(k) or SIMPLE IRA.
Kentucky: Employer Representation Requirement at Unemployment Hearings
Who: All Employers
When: Effective Immediately
The Kentucky Court of Appeals ruled that it is unlawful for employers to be represented by non-lawyers at unemployment proceedings.
- Immediately stop sending managers, individuals from human resources or other non-lawyers to unemployment hearings.
- Although the decision may be reviewed again, you should comply with the current decision until any announced changes.
Kentucky Pregnancy Accommodation Law
Who: Kentucky employers with 15+ employees
When: June 27, 2019
An amendment to the Kentucky Civil Rights Act will require employers provide reasonable accommodations to employees for pregnancy, childbirth, lactation, or other related conditions. This law goes beyond the federally required accommodations and under it:
- An employee should not have to take leave from work so long as a reasonable accommodation can be provided.
- Employers and employees will engage in a “timely, good faith, and interactive process” to determine reasonable accommodations.
- If an employer has already provided a certain type of accommodation to another employee in the past, whether it related to pregnancy or not, it sets a precedent that the accommodation didn’t cause undue hardship and should be provided in the future.
- Employers must provide a designated space, other than a bathroom, for new mothers to express milk.
- By June 27, 2019, post a notice of the new law and distribute it to new employees. By July 27, 2019, provide current employees with a written notice. The Kentucky Pregnant Workers Act Notice is not yet released.
- Review and update your pregnancy policies, procedures, and accommodations and ensure all managers are trained on the upcoming changes.
- Examples of reasonable accommodations that you may need to consider include more frequent or longer breaks, time off to recover from childbirth, acquiring or modifying equipment, proper seating, etc.
Massachusetts: Plan Exemption Deadline Extended for Paid Family and Medical Leave
Who: All Massachusetts employers
When: June 30, 2019, for employee notifications and September 20, 2019, for exemption applications
The deadline to inform employees about the Massachusetts Paid Family and Medical Leave Act (PFMLA) has moved from May 31, 2019, to June 30, 2019.
The deadline to apply for an exemption from the PFMLA has been moved from June 30, 2019, to September 20, 2019.
- Distribute notice templates to W-2 employees and eligible 1099-MISC workers.
- Employers with a paid leave benefit can apply for an annual exemption on the MassTaxConnect portal. If you do not plan on applying for an exemption or your exemption application is denied then you must begin contributing on July 1, 2019.
- Employers must display the Massachusetts PFML poster before July 1, 2019.
Minneapolis: Sick and Safe Time Ruling Applies to Non-Minneapolis Employers
Who: Businesses with Minneapolis employees who work 80+ hours/year
When: Effective Immediately, Appeal Possible
Minneapolis-based employees now qualify for paid sick and safe time, regardless of their employer’s location. Employers are required to track the time accruals and the employee’s use of time. For every 30 hours worked, employees earn 1 hour of sick and safe time.
Sick and safe time is protected time off related to illness, injury, medical treatment, preventive care, domestic or sexual assault, or care of a family member.
- Review and update your sick leave policies accordingly.
- Identify your Minneapolis employees who qualify for sick and safe time and add their accrual to your payroll and timekeeping system.
Reminder: New Jersey Expands Family Leave
Who: Employers with 30+ employees
When: June 30, 2019 for the expansion of employees
New Jersey Assembly Bill 3975 expanded the New Jersey Family Leave Act (NJFLA). The definition of “family member” now includes siblings, grandparents, grandchildren, parents-in-law, any blood relative, and “any individual that the employee shows to have a close association with the employee which is the equivalent of a family relationship.” It will require employers with 30+ workers to provide 12 weeks of family leave during a 24-month period.
The following updates are effective immediately:
- Include the care for a family member or the equivalent of a family member with a serious health condition.
- Bond or care for a child within the first year of birth, adoption, or foster care.
- Provide at least 15 days notice for intermittent leave requests.
- Review your policies for compliance and plan to inform managers and employees regarding the policy changes.
- Post the New Jersey Family Leave Act Poster.
- Also, the New Jersey Family Leave Insurance notice was released this month and must be given to new hires and employees requesting family leave under the new law.
New Mexico: Gender Neutral Restrooms Approved
Who: New Mexico businesses and public facilities
When: July 1, 2019
All single-use toilet facilities in public accommodations must be open to any person regardless of gender identity or sex. Facilities must be labeled gender-neutral.
“Public accommodation” means any place that offers services, facilities, accommodations, or goods to the public, but doesn’t include a private club or other business that is private in nature.
Review your restroom facilities and signage and alter them to comply with the new law.
South Dakota: e-Cigarettes Banned from Workplace
Who: South Dakota employers
When: July 1, 2019
E-Cigarettes will be banned from South Dakota workplaces and public buildings, which include bars, restaurants, and casinos. Anyone caught vaping or using e-cigarettes in public buildings and workplaces can be fined.
Washington: Salary History Banned
Who: Washington employers with 15+ employees
When: July 28, 2019
Employers are prohibited from looking for applicant’s wage or salary history from the individual or a past employer.
Employers may confirm salary information if the applicant has volunteered the information or after the employer has already made a job offer that included the compensation amount.
The applicant may ask for a position’s minimum wage or salary if the job is offered to him/her. Employers must comply with a candidate’s request.
- Review your interview process to be sure salary history questions are eliminated from interviews or applications.
- Inform managers or other hiring staff about the new law changes, ensure salary history isn’t part of their interview questions, and they know how to respond to questions about a position’s salary.
- Employers must provide salary information to current employees or applicants who request this information.
Washington: Paid Family and Medical Leave Reports Due
Who: Employers with 50+ employees
When: July 31, 2019
In 2020, Washington state’s paid family medical leave program will provide up to 12 weeks of paid leave for eligible employees facing qualifying events. These qualifying events may include the employee’s own serious health condition or taking care of sick family members. Employees could take up to 16 weeks of combined family and medical leave. Up to 2 additional weeks may be available for certain pregnancy complications.
All employers must meet paid family medical leave reporting requirements beginning July 31, 2019. (Originally, this was slated to begin April 30, 2019, but the date was pushed back.) You’ll continue to report on them each quarter.
- Your system will need to report UBI number, your business name, total premiums collected, name of the person preparing the report, employees’ SSNs or ITINs, first names, middle initials, last names, wages paid in the reporting quarter, and the number of hours worked.
- Starting July 31, 2019, you’ll use the Secure Access Washington online account to file your quarterly paid family medical leave reports. As of this post, the portal is currently under development but will be completed before reporting begins.
- Ensure that your reports are submitted by the quarterly deadlines of July 31, October 31, January 31, and April 30.
Your Right as a Worker poster