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March 2020: New I-9 Form Out Now; Plus More HR Regulatory Changes

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. Taking effect this month and next month, the CDC has released employer guidance about the coronavirus and 7 state/local governments are making employment changes.

Federal

States

New I-9 Released For Employment Verification

Who: All employers

When: Effective Immediately

What:

The U.S. Citizenship and Immigration Services (USCIS) published the new version of the I-9 Employment Eligibility Verification Form. The form is identified by the version date 10/21/2019 in the lower-left corner of the form. The I-9 form must be completed by all employees, regardless of citizenship, and employers to verify the individual employee’s identity and authorization to work.

Updates to the new form include:

  • Country names in auto-populated boxes of Sections 1 and 2, found only in the online version.
  • The instructions about using authorized representatives. The representative can be anyone, but the employer is liable for any violations that the person commits.
  • Acceptable documentation no longer requires “N/A.” Under List C, documentation includes a Social Security card and birth certificate but doesn’t include the Employment Authorization Document. The latter is included in List A.
  • The updated USCIS website address and U.S. Department of Homeland Security privacy notice.

How:

  • Although it isn’t mandated to use the new form until May 1, 2020, USCIS recommends employers should use it immediately.
  • Double-check that the form you’re using is the correct version.

Additional Resource:

I-9, Employment Eligibility Verification

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CDC Releases Coronavirus Guidance for Employers

Who: All employers, as recommended by the U.S. Centers for Disease Control and Prevention (CDC)

When: Effective Immediately

What:

The CDC released an “Interim Guidance for Businesses and Employers to Plan and Respond to 2019 Novel Coronavirus.” The document includes recommendations and strategies employers can use to protect the workplace.

A few key highlights from the document:

  • Actively advise employees to stay home if they are sick, particularly if they have a respiratory illness. They should only come back to work if they are fever free or don’t show fever symptoms for at least 24 hours.
  • Traveling employees should take extra precautionary steps. Encourage employees who are traveling to check the CDC’s Traveler’s Health Notices. If any employees are traveling to China, be sure to check the CDC’s guidance about China. If traveling employees exhibit any acute respiratory illness symptoms, they should not travel or stay home if they have symptoms during or after travel.
  • Employees with symptoms at work should be sent home or separated from other employees.
  • Promote hygiene and staying home by displaying posters about hand hygiene, how to contain germs, and what to do when you’re sick.
  • Conduct proper cleaning of the workplace.

How:

  • Review the CDC’s recommendations and your current procedures.
  • Develop and implement an awareness campaign using the CDC’s resource that best suits your organization.
  • Consider and develop a plan for addressing a possible outbreak of coronavirus in the United States.

Additional Resources:

Coronavirus Disease 2019

COVID-19

Guidance for Employers

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Updated National Labor Relations Board Union Elections Rules Take Effect

Who: Employers with union chapters

When: April 16, 2020

What:

Last year, the National Labor Relations Board (NLRB) announced changes to union election procedures, increasing the time between when the NLRB regional director calls for an election and the election date.

The increased time allows employers to comply with pre-election requirements, clarify litigation procedures and voter eligibility. The updates include:

  • The pre-election hearing should be scheduled 14 business days before the hearing notice. Regional directors may postpone the hearing if they have a good reason.
  • The Notice of Petition for Election must be distributed and posted within 5 business days after employers receive notice of the hearing.
  • The Statement of Position (SOP) states that non-petitioning parties must file and serve the SOP within 8 days after the notice of the hearing. Regional directors may give additional timing for filing. Additionally, the petitioner is required to file an SOP in response to the issues in the non-petitioning party. This responsive SOP is due 3 business days before the hearing starts.
  • The pre-election hearing is reverting to procedures before 2014, where the pre-election hearing can litigate unit scope and voter eligibility, resolved by the regional director before the election. Employees in dispute may vote subject to a challenge, deferring litigation about the dispute until after the election.
  • All parties have the right to file post-hearing and post-election briefs. These briefs are due within 5 business days, although the hearing officer may extend the deadline up to 10 additional business days with good reason.
  • The regional director has the right to issue a Notice of Election after releasing the election notice.
  • Regional directors should schedule normal elections after the 20th business day after the direction of election, although the idea of the earliest practical date is still applicable.
  • Election observers must be a current member of the voting unit. If there isn’t an available person to be an observer, a current nonsupervisory employee should be chosen.
  • The regional director won’t certify election results if there is a pending request for review or if the deadline to review a review hasn’t passed.

How:

  • Be aware that the new rules allow you additional time to comply with pre-election requirements.
  • Review your current election procedures and update them to comply with these new rules.

Additional Resource:

National Labor Relations Board Rule

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Medicare Part D Notices Due to the U.S. Center for Medicare and Medicaid February 29

Who: All employers who provide employees with prescription drug benefits

When: Effective Immediately

What:

The U.S. Centers for Medicare and Medicaid Services’ annual deadline to submit creditable or non-creditable prescription drug coverage was on February 29, 2020. This disclosure applies to group health plan sponsors that provide drug coverage to Medicare Part D eligible individuals, regardless of whether they’re employees.

Disclosures are to made to CMS within 60 days of the new plan year and must use the Disclosure to CMS Form.

An employer is exempt from submission if it doesn’t offer prescription drug benefits to any Medicare Part D-eligible people on the first day of the plan year.

If employers change their prescription drug plan, they must submit a new disclosure form to CMS within 30 days. Those changes can include terminating a creditable coverage plan or changing the coverage creditable or non-creditable status.

How:

Review your current CMS reporting procedures and ensure you have met the deadline. 

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District Court Closes EEO-1 Component 2 Pay Data Collection

Who: Employers with 100+ employees, including federal contractors that have 50+ employees and contracts of $50,000+

When: Effective Immediately

What:

A U.S. District Court federal judge ordered the Equal Employment Opportunity Commission (EEOC) to stop collecting EEO-1 Component 2 pay data and shut down the reporting portal. This motion ends the collection of 2017 and 2018 pay data.

For more historical information about this issue, check out a recent regulatory update.

How:

Unless you have already submitted your pay data, you no longer need to submit.

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NLRB Finalizes Joint Employer Rule

Who: All employers

When: April 27, 2020

What:

The National Labor Relations Board is editing the term “joint employer.” If the two employers are sharing direct control of the terms and conditions of a worker’s employment, they are considered joint employers. The conditions of employment can include wages, benefits, hours of work, hiring, discharge, discipline, supervision, and direction. A decision about joint employer status needs to take into account all of the facts for each situation.

Employers should be mindful of the following conditions when navigating a potential joint employer scenario:

  • The employers must share essential terms or conditions of employment.
  • Significant and immediate control of the employment terms or conditions, meaning that a joint employer:
    • Determines the wages, salary, or other pay rate given to another business’s employee or job classification; a cost-plus contract is excluded.
    • Must be part of the decisions made for fringe benefits given to another business’s employee. The benefits include health insurance, pension, or the level of benefits provided to another employer’s employees. What doesn’t count as a joint employer is allowing another business to participate in its benefits plans.
    • Determines the work schedules or hours of another employer’s workers. Determining the hours of operations of another employer or its hours of service doesn’t count.
    • Must be part of the decision about which employees will or won’t be hired. Asking for staffing changes to complete tasks or setting minimal hiring standards isn’t enough to qualify as a joint employer.
    • Decides when to terminate, discipline, or suspend another business’s employee. Alerting another employer about a worker’s misconduct or performance doesn’t count
    • Supervises another business’s employee, directs how the employee performs their job, or is part of the employee’s performance reviews. Telling the employee what works needs to be done, where or when to do the work, but not telling them how to do it, doesn’t count.
    • Assigns another business’s employee, their work schedule, position, and tasks. Setting a schedule for completing a project or outlining the work that needs to be done to complete a task doesn’t count.

The NLRB’s position works in conjunction with the U.S. Department of Labor’s (DOL) ruling about joint employers.

This guidance means that businesses are less likely to find themselves in joint employer situations. It’s less likely that there will be unfair labor practices filed against businesses.

How:

  • Work with your legal counsel to review your current business practices to ensure they comply with the new guidance.
  • Re-asses any potential joint employer status using the new guidance from the NLRB and DOL.

Additional Resources:

NLRB Joint Employer Final Rule

NLRB Joint Employer Final Rule Fact Sheet

NLRB Joint Employer Final Rule on the Federal Register

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NLRB Reinstates Deferral of Unfair Labor Practices to Private Arbitration

Who: Employers who have collective bargaining agreements

When: Effective Immediately

What:

The National Labor Relations Board (NLRB) has reestablished the practice of deferring unfair labor practices to private arbitration.

Regardless of the presence of a union, any worker can file an unfair labor practice with the NLRB. With this practice reinstated, employers can request the NLRB concede the arbitration procedure to the arbitrator to handle the practices filed under the collective bargaining agreement and with the NLRB.

How:

When an unfair labor practice if filed against your company or under your collective bargaining agreement, be sure to review the issue and seek a deferral if warranted.

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States

District of Columbia: New Deadlines for Employer to Report Health Coverage

Who: Employers with self-funded medical plans; Large employers with fully-insured plans.

When:

  • March 2, 2020: Information returns must be sent to individuals.
  • June 30, 2020: Information returns must be filed electronically with the D.C. Office of Tax and Revenue.

What:

The District of Columbia was one of several jurisdictions to adopt a law that reinstated the individual mandate of the Affordable Care Act (eliminated by Congress in 2017) at the state/local level. The District also requires employers to provide information to individuals and the D.C. government about the health coverage employers provided in the previous year.

Employers with self-funded medical plans must provide the federal information returns 1095-C for large companies or 1095-B for small companies to D.C. residents and the Office of Tax and Revenue by the deadlines above. Large employers with fully-insured plans must also provide Form 1095-C according to the same deadlines. Small employers with fully-insured plans do not have a reporting obligation in D.C.

How:

  • Assess your reporting requirements according to the law.
  • Determine if you have D.C. resident employees who must receive an information return.  

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Florida’s Pinellas County Requirements for Wage Theft

Who: Any employer in Pinellas County

When: Effective February 7, 2020

What:

Amendments to the county’s existing Wage Theft and Recovery Ordinance (WTRO) update the notice and posting requirements for wage theft information. Employers must now:

  • Post information about employee rights under the WTRO in a visible area.
  • At hiring, the employee should receive a written notice signed by both employer and employee that outlines pay rate, pay type (hourly, shift, day, week, salary, commission, etc.), overtime pay, and any allowances claimed as part of the minimum wage (examples include meal/lodging), among other information.
  • Notify employees in writing of any changes to the information in that original notice within 7 calendar days after the change. Employers must keep a copy of the updated notice for 1 year from when the employee signs it.

The county has provided a compliant notification poster and a reporting form to assist with the new requirements.

How:

  • Post the Pinellas WTRO notice provided below in a public place
  • Update hiring policies to include written notification requirements
  • The poster and notice are located in Vera HR

Additional Resources:

Wage Theft Poster 

Wage Theft Form for Employer and Wage Information 

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More Details About Illinois’ Mandatory Sexual Harassment Training

Who: All employers with one or more employees working in Illinois (supplemental training requirements for restaurants and bars)—even if the employer is not based in Illinois.

When: Provide the training by December 31, 2020, and each calendar year by December 31 after that

What:

New Frequently Asked Questions (FAQs) published by the Illinois Department of Human Rights (IDHR) adds clarity on specifics of the Illinois Human Rights Act that require all employers to provide sexual harassment prevention training by the end of 2020 and annually after that. New hires must be trained as soon as possible.

All employees who work in Illinois must receive the training. Independent contractors are ‘strongly advised’ to receive it if they interact with employees, but it is not required.

IDHR released a model training that may be used but employers may design their own as long as the training:

  • Is provided in English and Spanish
  • Includes:
    • Examples and explanation of sexual harassment
    • Summaries of federal and state laws as well as remedies for victims
    • Summary of employers’ obligation to prevent sexual harassment, investigate claims and take prompt corrective action when necessary

In addition, restaurants and bars must also:

  • Create a sexual harassment prevention policy and give copies to employees. The policy must align with the IDHR minimum requirement.
  • Train employees in English and Spanish with industry-specific activities or videos and include an explanation of manager liability.

Employers must also keep training records (paper or electronic) and be prepared to provide those records to the IDHR upon request.  

How:

Review your current training programs to see if they meet the law’s requirements. If not, or if you do not have a training program, review the IDHR model training and assess if your organization can use that training model must design a company-specific compliant training.

Additional Resources:

Frequently Asked Questions

Illinois Sexual Harassment Training

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Ban-the-Box on Job Applications in Maryland

Who: Maryland employers with 15 or more full-time employees

When: February 29, 2020

What:

Employers may no longer inquire about an applicant’s criminal record or any criminal accusations prior to the applicant’s first in-person interview. This law, the Criminal Record Act, only applies to applicants for employment; however, it also protects from discrimination and retaliation for both applicants and employees who identify a violation of the act. If the Maryland Commissioner finds an employer violated the statute, an order of compliance will be issued, and there may be a civil penalty of up to $300 per applicant if violations continue.

The law defines a criminal record as:

  • Arrest
  • Guilty plea or verdict
  • Nolo contendere plea
  • Disposition of probation before judgment
  • Disposition of “not criminally responsible”
  • Marking a charge “stet” on the docket

Exempted groups include: 

  • Employers who must collect criminal history information according to other federal or state laws
  • Employers who provide care, services or programs to vulnerable adults or minors

In addition, localities may adopt more restrictive laws regarding criminal history.

How:

  • Identify any local ban-the-box restrictions in your jurisdiction to ensure compliance with both state and local laws.
  • Review job applications and remove questions about criminal records or accusations of criminal behavior.
  • Ensure recruiters and screeners do not ask about an applicant’s criminal history at any point before the first in-person interview, unless you are an exempted party.

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New Jersey: Deadlines for State-Level ACA Health Insurance Reporting

Who: Employers with operations or employees who reside in New Jersey, who also provide healthcare Minimum Essential Coverage, regardless of the company’s size.

When:

  • March 2, 2020: Health coverage verification forms must be sent to primary enrollees
  • March 31: 1095-C schedules for full-year and part-year primary enrollees must be provided to the state’s Division of Taxation via the system for filing W-2 forms.

What:

Starting with the tax year 2019, employers with operations in New Jersey or who employ New Jersey residents must provide health coverage verification forms to all primary enrollees for whom the company provides Minimum Essential Coverage. A record of this coverage using the federal IRS Form 1095-C or 1095-B must also be sent to the New Jersey Division of Taxation. Reporting requirements must be fulfilled for full- and part-year residents of New Jersey, with part-time defined as an individual who resides in the state for at least 15 days each month.

How:

  • Assess your reporting requirements according to the law.
  • Determine if you have New Jersey resident employees (either part-time or full-time residents) who must receive an information return.

Additional Resource:

Updated Guidance for Health Coverage Filings

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Final Regulations On New Jersey Earned Sick Leave Issued

Who: All employers

When: Law effective January 6, 2020; guidance and regulations apply immediately

What:

The New Jersey Department of Labor and Workforce Development issued additional guidance and regulations regarding the administration of the New Jersey Earned Sick Leave Law (ESLL), which requires that all employees accumulate 1 hour of time off for every 30 hours worked and allows employees to earn a maximum 40 hours of paid sick leave each year.

The new regulations clarify several key areas, including:

  • Employers may establish individual benefit years for employees. However, the employer must still document an employee’s established benefit year date and give 30 days’ notice to the Commissioner of proposed changes to an employee’s benefit year.
  • For employers who offer a single paid-time-off (PTO) policy that includes the required 40 hours of sick leave, the employee’s entire bank of paid time off will have to meet or exceed all ESLL requirements for accrual, permitted use purposes, payment, and pay-out and carry over.
  • Employers can prevent the use of “foreseeable” leave on “verifiable high-volume periods or special events where foreseeable sick leave would unduly disrupt operations.”
  • Discretionary bonuses aren’t required as part of the paid leave rate calculation. Employers can pay out unused time at the end of a benefit year or allow it to be carried over, but employees can’t use more than 40 hours of this leave in a given benefit year.

The ESLL does not apply to construction workers covered by collective bargaining and per diem healthcare employees. Additional guidance and regulation will be issued soon regarding out-of-state employees, and prorating advanced earned sick leave.

How:

  • Ensure sick leave policies, procedures for documentation, and notification practices comply with the state’s regulations.
  • If you have a single PTO policy, assess the impact of ESLL requirements applying to all leave versus just the mandated 40 hours of sick leave.
  • Keep apprised of additional adjustments as more guidance and regulation is issued.

Additional Resource:

New Jersey Earned Sick Leave Regulations

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New York State Human Rights Law Now Applies to All Employers, Regardless Of Size

Who: All employers in New York State (including those with fewer than four employees)

When: February 8, 2020

What:

Starting in early February, the New York State Human Rights Law (NYSHRL) expands coverage to apply to all New York employers, no matter their size.

How:

  • Familiarize yourself with statutory anti-discrimination and anti-harassment obligations.
  • Previously exempted employers should make sure they are following all obligations, including recent updates, legal standards, and amendments to that law, many of which happened in 2019.

Additional Resource:

New York State Division of Human Rights

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Philadelphia, Penn. Delays Fair Workweek Ordinance

Who: Philadelphia employers in retail, food, and hospitality industries with 30+ locations nationwide (including franchises and chains) and 250+ full-time and part-time employees

When: April 1, 2020

What:

The ordinance demands employers to provide work schedules to employees at least 14 days in advance. The ordinance also requires that employers:

  • Alert employees about possible on-call time
  • Quickly update employees about any schedule changes
  • Allow employees to decline hours that aren’t part of the schedule
  • Provide at least 9 hours in between shifts
  • Allow current workers to take available hours before decisions are made about new hires
  • Ensure employees don’t fear retaliation if they make schedule change requests
  • Follow recordkeeping and posting requirements

The ordinance doesn’t include independent contractors. Employees with a collective bargaining agreement can waive the requirements.

How:

  • Review and update your current scheduling and notification procedures to comply with the new ordinance.
  • Communicate the upcoming changes with your general managers and other location managers and ensure their practices are meeting the new guidelines.

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Philadelphia, Penn. Upholds Salary History Ban

Who: Philadelphia employers

When: Effective Immediately

What:

The federal appeals court revived and passed a 3-year-old proposal to ban employers from asking candidates about their salary history.

The ordinance bans Philadelphia employers from:

  • Asking about a job candidate’s salary history
  • Requiring salary history
  • Making salary history a condition of employment or a job interview
  • Retaliating against a job candidate for not providing salary history
  • Relying on salary history to determine a candidate’s wage

How:

  • Review job application policies and forms, as well as any interview guidelines and background, check instructions to make sure they do not include salary history inquiries or screening questions.
  • Educate and train employees or managers involved in the recruiting and hiring process about the changes.
  • If you have multiple locations, determine if your policy changes to accommodate the city’s new law should extend to other locations.

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