August Updates

The new overtime regulations are currently expected to go into effect December 1, 2016.  In late July, a group of lawmakers introduced the Overtime Reform and Enhancement Act, which would delay the implementation of the new salary regulations into a more gradual, three-year phase in as follows:

• $35,984 effective Dec 1, 2016
• $39,814 effective Dec. 1, 2017
• $43,645 effective Dec. 1, 2018
• $47,476 effective Dec. 1, 2019

In addition, the bill would delete the current law’s provision for automatic adjustments to the minimum salary.  ManagEase will continue to report on the progress of this bill.

OSHA Posting Requirement Extended to November 1, 2016

The Occupational Safety and Health Administration (“OSHA”) is delaying enforcement of new anti-retaliation provisions included in the Final Rule published in May.  Employers are obligated to inform employees of their right to report work-related injuries and illnesses without fear of retaliation, among other requirements.  The Rule allows employers to satisfy the requirement by posting OSHA’s “Job Safety and Health: IT’S THE LAW” poster.  Enforcement of the Final Rule will now begin on November 1, 2016.  Employers should therefore display a copy of the poster no later than November 1, 2016.

Department of Labor Increases Civil Penalties for Violations of Law

The U.S. Department of Labor (“DOL”) has announced a number of civil penalty increases affecting wage and hour, benefits, and safety compliance, among numerous other laws and regulations.  In general, these penalties apply after August 1, 2016, and can be assessed to violations going back to November 2, 2015.  Below are a few key areas of penalty increases affecting most employers.

Penalties for violations of the Fair Labor Standards Act (“FLSA”) in relation to minimum wage and overtime penalties are substantially increased.  However, the DOL is also soliciting public comments on these changes through August 15, 2016.

Likewise, OSHA’s maximum penalties will increase by 78% on August 1, 2016, and similarly, can be applied to violations as far back as November 2, 2015.  These penalty increases, in conjunction with OSHA’s electronic recordkeeping rule, indicate the importance of safety compliance in the workplace.

The DOL also increased civil penalties issued under the Employee Retirement Income Security Act (“ERISA”) for failure to provide information to participants and beneficiaries, failure to provide information to the government, discrimination based upon genetic information, and poorly funded plans.

Lastly, immigration-related violations have increased penalties as well.  The Immigration and Nationality Act (“INA”) provides for civil penalties for violations related to Form I-9.  The penalties for knowingly hiring, recruiting, referring, or training unauthorized workers hired after November 6, 1986 will dramatically increase. Similarly, violations associated with nonimmigrant visa program violations will also increase.

Employers should keep in mind that these sweeping changes to penalty amounts do not change the actual requirements of the various laws; rather, they are intended to encourage greater compliance with federal laws and have been adjusted for inflation.  A comprehensive chart of all penalty increases, including numerous other regulations, can found on the DOL’s website here.

IRS Clarifies Tax Treatment of Wellness Reimbursements and Incentives

The IRS published guidance stating that employers cannot exclude payments of cash rewards  from an employee’s gross income for participating in a wellness program, nor can they exclude reimbursements of premiums from an employee’s gross income for participating in a wellness program if the premiums were originally made by salary reduction through a section 125 cafeteria plan.

EEOC Updates Equal Pay Data Rule, Requires More Detailed EEO-1 Reporting for 2017

In January of 2016, the EEOC proposed a new Rule that would require employers of 100 or more workers to provide detailed information about employee compensation through the annual EEO-1 report.  Employers would have to provide pay information by gender, race, and ethnicity, with the intention to better track pay disparities.

A revised Rule was announced on June 22, 2016, specifying that employers should use Box 1 on an employee’s W-2 as a measure of reportable compensation for the EEO-1 (as opposed to the proposed Rule’s use of a new EEO-1 form).  The revised Rule also relaxed the original reporting deadline for the 2017 EEO-1, the first year to require this pay data, from September 30, 2017 to March 31, 2018.  However, the reporting will be based on data beginning January 1, 2017.

Employers should audit their current pay structure to identify and address any areas of pay disparity as soon as possible.

California: Public Works Contractors and Subcontractors Must Submit Certified Payroll Records Again

Effective August 1, 2016, California public works contractors and subcontractors are required to electronically submit certified payroll records (“CPR”) through the Department of Industrial relations (“DIR”) website.  This requirement for electronic submission was temporarily suspended because of system issues, but will now resume.  More information on compliance can be found on the Public Works page of the DIR’s website.

District of Columbia: Guide Regarding Transgender Workers Published

The District of Columbia Office of Human Rights recently published a resource guide for employers, designed to highlight best practices and offer tips to prevent discrimination against people who identify as transgender and gender-nonconforming. Some key take-aways from the guide include:

• Encourage communication between management, employees and applicants and seek feedback from transgender or gender-nonconforming individuals on creating an inclusive workplace;
• Train manager and co-workers to address employees by their preferred names and pronouns;
• Implement gender-neutral dress codes;
• Allow employees to access restroom facilities consistent with their gender identity;
• Ensure that workplace policies regarding harassment, discrimination, and retaliation are upheld with respect to transphobic or harassing behavior.

Nevada: REMINDER – Workplace Posters Changed July 1, 2016

Effective July 1 2016, Nevada’s two wage and hour notices were revised.  Although the minimum wage itself did not change, the updated versions of the Nevada Minimum Wage Bulletin and Nevada Daily Overtime Bulletin have been updated for the year, and must be conspicuously displayed in the workplace.

Review other recent state-related poster deadlines here.

New Jersey: “Marital Status” Refers to All Types of Marital Status

On June 21, 2016, the New Jersey Supreme Court provided clarification of the term “marital status” as applied in the New Jersey Law Against Discrimination (“LAD”).  The LAD currently prohibits discrimination based upon marital status, among other things.  Previously, many interpreted “marital status” to simply refer to being “single” or “married.”  The Court says that “marital status” includes protection for individuals who are separated, divorced, or in the process of divorcing.

The decision arose from Robert Smith v. Millville Rescue Squad.  Robert Smith and his wife both worked for the Millville Rescue Squad.  Both parties allegedly had affairs with other Rescue Squad personnel, leading to the dissolution of their marriage.  As they prepared for divorce, Robert Smith’s supervisor stated that an “ugly divorce” might affect Smith’s job; he was terminated shortly thereafter, and sued for wrongful discharge under the LAD.

The Supreme Court emphasized that the LAD does not prevent employers from implementing anti-nepotism policies.  Employers may prohibit employees related by blood or marriage from working together if the policy is enforced in a nondiscriminatory manner.   However, employers should not assume employees cannot perform their jobs in relation to their marital status (e.g., assuming an employee will be stressed, distracted or absent due to an engagement, marriage, divorce, or separation), and must avoid making employment decisions based on such.

New York City, New York: Single-Occupant Restrooms Must be Labeled Gender-Neutral

Effective January 1, 2017, Int. No. 871-A requires New York City businesses and establishments with existing single-occupancy, publicly-accessible restrooms to remove and replace any gender-specific signs with a sign indicating that the restroom is accessible for people of all genders.   The bill builds on guidance issued by the Commission on Human Rights in regard to transgender and gender non-conforming individuals.  It does not require businesses to build new restrooms and does not apply to larger restrooms with multiple single-occupant stalls inside.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2016 ManagEase, Incorporated.