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.
- U.S. Department of Labor (DOL) Issues Rule on Drug Testing Applicants of Unemployment Compensation
- U.S. Department of Labor’s Tip Credit Rule Proposal Changes, Open Comment Period Ends December
- U.S. Department of Labor Proposes Moving 401k Disclosures to Electronic Format
- EEOC Component 2 Data Submission Deadline Extended
- Connecticut Releases Sexual Harassment Prevention Training Program
- Massachusetts Releases Guidance About Paid Family and Medical Leave (PFML)
- Minneapolis Seeks Comments on Wage Theft Rules and FAQs
- New York City Issues Guidance to Avoid Immigration Status Discrimination
- Dallas Releases FAQs About Paid Sick Leave
- San Antonio Revises and Delays Sick and Safe Leave Ordinance
Who: All employers
When: November 4, 2019
The language in the DOL’s final rule acknowledges permits states to drug test people applying for unemployment compensation under the following conditions:
- If the applicant’s work is only available in an occupation where there is regular drug testing
- If the state identifies the applicant’s occupation as one where drug testing is a standard requirement for obtaining or maintaining employment
In the above circumstances, states may deny unemployment compensation to applicants that have a positive drug test.
This rule is effective November 4, 2019, but there is a chance that it could be challenged in the Court system for being too similar to another rule that Congress rejected in 2016.
- Determine if your state has any rules related to drug testing applicants of employment and if they apply to any of the jobs within your organization.
- Update any internal language you have in your unemployment paperwork that reflects these changes.
Who: Employers who have employees that receive tipped wages
When: Submit comments by December 9, 2019
There are several proposed changes to the DOL’s tipped wages component of the Fair Labor Standards Act (FLSA):
- Employers may mandate tip pools that include non-tipped employees, excluding managers and supervisors, but the employer can’t take the tip credit and must pay minimum wage.
- Classifying a manager or supervisor will depend on if the job’s duties fall under the “executive exemption” of the FLSA, not including salary.
- If an employer mandates a tip pool, they are required to keep records of employees’ tips.
- Pooled tip distribution should be no later than a regular payday or when the regular payday for a work period ends.
- Employers may take all tip credit for the time employees spend completing tasks that are associated with tipped work. Examples of this type of related task could include things like rolling silverware in napkins or toasting bread. A list of these tasks are on the Occupational Information Network.
These changes solidify the official end of the 20% tip rule. Employers have until December 9, 2019, to submit any comments to the DOL about these rule changes.
- Review your tip credit policies and determine if they are compliant with these proposed changes.
- Review your tip pool rules and ensure that managers and supervisors aren’t among the receiving employees.
- Submit any comments you have about the proposed changes to the DOL by December 9, 2019.
Wage and Hour Proposed Tip Credit Rule (including comment submission instructions)
Who: Employers who offer a 401k Plan
When: Submit comments by November 22, 2019
A proposed rule from the U.S. Department of Labor would give employers the option of submitting their required 401k disclosure forms electronically to participants and beneficiaries rather than through postal mail. Under the proposed rules:
- As long as participants have internet availability, Employee Retirement Income Security Act (ERISA) disclosures may be posted online.
- Email addresses and smartphone numbers should be submitted by the plan sponsor or given to the sponsor by the plan participant. Plan Administrators may not default participant or sponsor into electronic delivery.
- The electronic notice should include instructions on how to access the ERISA disclosures and a statement of the participant’s right to receive paper copies.
- A notice of internet availability must be included with each retirement plan disclosure
The proposed rule is part of the DOL’s response to a White House order to review and improve retirement disclosure actions for effectiveness.
- Submit any comments about the proposed changes by November 22, 2019.
- Review your current disclosure practices and assess how you might transition your disclosures in a compliant manner.
Proposed Rule (including instructions for commenting)
Who: Employers with 100+ employees, including federal contractors
When: November 11, 2019
The September 30 deadline to submit EEO-1 Component 2 data for 2017 and 2018 has been extended by the Equal Employment Opportunity Commission to November 11, 2019. The portal to submit 2017 and 2018 data will remain open until the EEOC has received 98.25% of the required data.
As previously reported, the EEOC will not be collecting data moving forward, starting with 2019 information.
- Submit your 2017 and 2018 data.
- Work with legal counsel to assess your pay practices and avoid future scrutiny.
Who: All employers with Connecticut-based employees
When: All current employees must be trained by October 1, 2020; new employees must be trained within 6 months of their start date.
The Connecticut Commission on Human Rights and Opportunities (CHRO) released its sexual harassment prevention training program, including free training and posters. Note that the training doesn’t distinguish between supervisors and employees. Employers also may need to incorporate company-specific information about the complaint process on top of the state’s training course.
- Review the CHRO training and poster to determine whether it meets your company’s needs and processes.
- Work with legal counsel to ensure your sexual harassment prevention training is compliant with the requirements.
Who: Massachusetts employers
When: December 20, 2019, is the date to file an exemption application
New guidance from the Massachusetts Department of Family and Medical Leave outlines new parameters for employers seeking an extension from the deductions and matching contributions that should now be taking place for January submission to the state.
The new guidance states that employers may seek an exemption if they provide at least the same level of benefits, through self-insured or private insurance, that employees would receive through the state’s plan. The Department also included a list of 12 state-approved insurance carriers that offer compliant plans.
While the state is working with the list of approved insurance carriers to develop a standard template policy of compliance, it will accept a Declaration of Insurance as proof of coverage in exemption applications.
- Based on this new guidance, determine whether it is more beneficial for your company to file for an exemption.
- Determine whether your insurance carrier is on the state-approved list.
PFML Declaration of Insurance (including the list of approved insurance carriers)
Who: Minneapolis employers
When: Submit comments by December 31, 2019, the rule’s effective date is expected to be January 1, 2020.
The city of Minneapolis has adopted parts of the state’s wage theft law and published rules and frequently asked questions (FAQs) for comment.
As part of the city’s proposed rules, employers must follow a regular payday schedule, provide notices of certain employment terms and conditions before hiring someone, and provide an earnings statement each pay period. Additionally, employers must provide a notice of benefits that fall under sick and safe time rule on pre-hire notices and earnings statements.
- Assess the new rules’ impact on your current new hire notifications and current employee earnings statements.
- Begin updating your new hire notices and policies.
- If your company doesn’t already do this, work with payroll to determine how to include earnings statements for each pay period.
Who: New York City employers
When: Effective Immediately
New York City’s Commission on Human Rights released the following guidance:
- Employers are prohibited from discriminating or harassing work-authorized people.
- Work authorization questions are allowed if made in a nondiscriminatory manner.
- All employees must be treated fairly and in a nondiscriminatory manner.
- Employers can’t demand that job applicants or employees provide work authorization documents beyond what any law requires.
- Adverse action taken based only on a “no match” letter from the Social Security Administration is not acceptable.
- Unless prohibited by law, employers are encouraged to notify employees of a U.S. Immigration Customs Enforcement raid or audit.
- If separated from their jobs, undocumented immigrants, the New York City Human Rights Law covers them.
- Employers can’t retaliate against an employee based on their national origin or perceived immigration status.
- Other forms of discrimination include: Use of the term “illegal” or “illegal alien” as a way to humiliate or offend an employee, an employer’s threat to call federal immigration authorities based on immigration status, perceived status, or national origin, and an employer’s threat to call immigration authorities as a way to force an employee to work in an unsafe or illegal condition.
- Review and update your anti-discrimination policies and procedures to ensure its compliance with the new rules.
- Educate your managers about the new rules and instruct them on how to inform and teach their employees.
Who: Private Dallas employers with 5+ employees, including temporary employees or employment agencies
When: Effective Immediately
The city of Dallas has released frequently asked questions about the Paid Sick Time Ordinance. The document includes 25 questions, like administration of the Ordinance, rate of pay calculations, retaliation, and example scenarios.
With the Ordinance already in effect, refer to the FAQ for any questions or concerns you have about meeting the requirements.
Who: San Antonio employers
When: December 1, 2019
All employees within the San Antonio city limits will qualify for 1 hour of paid sick leave for 30 hours worked, up to a total of 56 hours per year. Exempted from this rule are independent contractors, paid and unpaid interns, employees who are part of a collective bargaining agreement, and employers that comply with the Railway Labor Act.
Although accrual begins on the employee’s first day of work, employers may require new employees to wait up to 90 days before using the accrued time.
Employers may not request medical documentation until an employee’s fourth consecutive day of leave. Employers may request a document if there is a reasonable suspicion of the abuse of sick and safe leave.
The ordinance doesn’t require the payout of sick and safe leave upon employment separation or its calculation as part of an increase in salary or wages.
The definition of a covered family member includes a spouse, domestic partner, or different-sex or same-sex significant other, any family member within the second degree, a member of the covered employee’s household, a minor’s parents, no matter the sex or gender of the parent.
- Consult with your legal counsel and begin to work towards the December 1, 2019 deadline.
- Contact your payroll systems and make additional preparations to accommodate for the paid sick leave accrual and tracking requirements.
- Update any relative policies or employee handbooks with the new requirements.
- Inform and educate eligible employees about the changes.
- Post the Sick and Safe Leave Law poster when it is becomes available (we will update our products when it is published).