November Updates

U.S. DOJ Reverses Obama-Era Stance on Transgender Workplace Protections

On October 4, 2017, Attorney General Jeff Sessions distributed a memo stating that Title VII of the Civil Rights Act of 1964 does not prohibit discrimination based on gender identity.  The memo indicates that Title VII expressly prohibits discrimination based on “sex,” meaning that the anti-sex discrimination provision applies only to discrimination between men and women, and does not encompass discrimination based on gender identity, including transgender status.

This represents a complete reversal from former Attorney General Eric Holder’s interpretation of Title VII.  In a 2014 memo, Holder concluded that gender identity and transgender status were “sex-based considerations” and therefore protected under Title VII.

While the memo does not directly revise the law, it indicates how the Department of Justice may apply its interpretation of Title VII going forward.

IRS Releases 2017 Reporting Forms

The Internal Revenue Service (IRS) recently released the final forms for employers to complete their 2017 ACA tax reporting, which is required for all employers with 50 or more full-time or full-time equivalent employees.

The new forms and instructions for reporting are available on the IRS website, and include:

• 2017 Form 1094-C or 1094-B (file with the IRS)
• 2017 Form 1095-C or 1095-B (file with the IRS and provide to each employee or enrollee)
• Instructions for Forms 1094-C and 1095-C or Instructions for Forms 1094-B and 1095-B

The 1094 and 1095-B forms should be used by employers who offer self-funded minimum essential coverage plans.

The deadline to file forms with the IRS depends on whether the employer files the form on paper or electronically.  If filed on paper, the deadline is February 28, 2018; if filed electronically, the deadline is April 2, 2018.

California: Bill Signed to Promote Fairness in Prop 65 Litigation

Proposition 65, also known as the Safe Drinking Water and Toxic Enforcement Act of 1986, requires businesses to post warning signs where workers or the public may be exposed to hazardous chemicals.  Failure to post appropriate warning signs have historically invited costly lawsuits, incentivized by the fact that private enforcers of the law are entitled to up to 25% of penalties collected.  In an effort to curb predatory litigation, a new bill makes a few key amendments to Proposition 65:

1. Plaintiffs must submit a “certificate of merit” that confirms the enforcer has consulted with a knowledgeable third party and has reason to believe that there is exposure to hazardous chemicals, justifying the claim. The amendment allows defendants to request a copy of the certificate of merit through normal discovery, a process previously disallowed by the Proposition.
2. The amendments allow the Attorney General to review the certificate of merit and determine if the Attorney General believes there to be any merit to the action. If there is no merit, the Attorney General is to deliver a letter stating as such to both the complainant and defendant.
3. Lastly, the amendment requires the Governor’s Office of Business and Economic Development to post information regarding Proposition 65 on its website.

New York: NYDOL Issues Emergency Regulation on In-Home Residential Care Worker Compensation

Effective October 6, 2017, the New York Department of Labor (“NYDOL”) amended the state minimum wage order to clarify compensation rules for in-home, residential care workers. The amendment codifies the NYDOL’s longstanding rule that bona fide meal periods and sleep periods are excluded from hours worked by residential care workers who work a shift of 24 hours or more.

This amendment was issued as an emergency regulation and is effective for only 90 days.  On October 25, 2017, the NYDOL published a memo explaining that the emergency regulation is intended to preserve the status quo of the in-home care industry.  It rejects recent court decisions, such as Andryeyeva v. New York Home Attendant Agency, which asserted that such 24-hour home care attendants needed to be paid for meal and sleep periods.

The emergency regulation expires on January 3, 2018, although the NYDOL intends to follow up with a permanent regulation through the standard rulemaking process to codify this interpretation of the state’s minimum wage laws.

New York City: City Issues Guidance on Salary Inquiry Prohibitions

Effective October 31, 2017, all NYC employers are prohibited from inquiring into or making employment decisions based upon a job applicant’s salary history.  This includes searching public records or asking current or former employers for salary history information.  The salary history prohibition applies to almost all employees, with the exception of current employees applying for an internal transfer or promotion, or select public employers.  The NYC Commission on Human Rights has provided an Employer Fact Sheet to assist employers with compliance.

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.

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