On June 11, 2019, members of the House and Senate introduced companion bills to amend the Fair Labor Standards Act (FLSA). The bill, called Restoring Overtime Pay Act of 2019, would raise the minimum salary threshold for exempt executive, administrative and professional (EAP) employees to north of $50,000 and automatically update the threshold every three years.

The Restoring Overtime Pay Act of 2019 would legislate the minimum salary for exemption under the EAP exemptions for the first time in U.S. history. 

This law would fix the salary threshold at a level equal to the 40th percentile of earnings of full-time salaried workers in the lowest-wage census region. 

Read more about the bill here.

The U.S. House of Representatives passed the Equality Act, which would prohibit discrimination based on sex, sexual orientation and/or gender identity by employers, as well as in housing and other areas subject to federal law.

Today, several states, counties, and cities have already banned workplace discrimination based on a person’s LGBTQ status. However, not all laws prohibit discrimination based on gender identity, gender expression, and sexual orientation. (Some offer protections for one or two of these, but not all three.) Employers can elect to protect LGBTQ workplace rights with their own internal policies even though federal law doesn’t cover these characteristics.

The Senate is unlikely to pass this bill. Later this year, the Supreme Court is expected to hear several cases that ask whether the Civil Rights Act of 1964 applies to gender-identity and sexual-orientation discrimination.

Find more details on this legislation in this article from SHRM.

The House passed omnibus legislation, combining seven total bills, to support the Affordable Care Act (ACA)’s protections for people with pre-existing conditions and lower prescription drug prices. The bill requires increased transparency of all ACA-related activities by the Department of Health and Human Services (HHS).

This includes bi-weekly public reports during open enrollment periods, as well as reports to ensure the HHS takes appropriate steps to maintain the HealthCare.gov website. It also prohibits the HHS from stopping automatic re-enrollment in ACA marketplace plans.

(While keeping up with ACA changes can be challenging, remember it’s still required for certain employers to provide information about the Marketplace to employees, regardless of whether or not they provide health insurance.)

The U.S. House Committee on the Judiciary is considering a bill to extend protections offered under Title VII of the U.S. Civil Rights Act of 1964 to include sexual orientation and gender identity. If passed, the law would protect LGBTQ individuals from discrimination in the workplace, as well as housing and public accommodations, and provide easier access to federal programs.

Organizations such as ADP, Marriott, and IBM have voiced support for the bill, which offers advantages for employers as well as LGBTQ employees. For example, employers would no longer need to refer to complicated state laws protecting LGBTQ workers and could find it easier to attract and retain a more diverse workforce.

The bill was reintroduced this month after dying in the committee in 2015 and 2017.

In Brumley v. United Parcel Service, Inc., the 6th U.S. Circuit Court of Appeals has ruled that the Americans with Disability Act (ADA) doesn’t require employers to make immediate accommodations of an employees' choosing.

UPS employee Melissa Brumley injured her back while moving heavy packages. After shifting to a light duty position, she took leave and then returned to work with permanent driving and lifting restrictions. Her supervisor initiated the interactive process for workplace accommodation two weeks later, then scheduled a meeting with her the following month. During the meeting, Brumley decided to return to her original job, and UPS closed the interactive process.

Brumley sued, alleging UPS didn’t accommodate her disabilities and sought damages for lost wages and employment benefits for the time she missed. While the ADA requires that employers make reasonable arrangements for employees’ disabilities, the law doesn’t hold them liable if they engage in a process of good faith. In this case, UPS engaged in good faith by keeping Brumley informed throughout the process and offering her alternative accommodations.

On December 14, Republican-appointed Judge Reed O’Connor has ruled the Affordable Care Act (ACA) unconstitutional. He stated that “because rewriting the ACA without its ‘essential’ feature is beyond the power” of his court, the individual mandate was inseparable from the law and therefore must be dismantled.

While this decision sent sweeping shock waves in the healthcare landscape, it has little immediate impact. Government agencies reported that the 2019 enrollment will proceed as planned, and the law would stay in place during appeals. Yet, Judge Reed O’Connor’s ruling raises concerns for millions of Americans who depend on the law for health coverage. Hospitals and provider groups are also stressed as blows to keep the ACA will affect their ability to provide access to high-quality care.

On December 3, the Department of Homeland Security (DHS) proposed a new change to the H-1B visa filing process. This proposed rule would require employers to register candidates online for visas two weeks before the application deadline of April 1. Only accepted submissions are allowed to submit a full application. The new process would also flip the order in which the petitions are reviewed, which would favor candidates with a U.S. master’s degree or higher.

"The Department of Homeland Security (DHS) and this administration are intensely focused on reforming employment visa programs so they benefit Americans to the greatest extent possible," U.S. Citizenship and Immigration Services spokesman Michael Bars said in an emailed statement. The application process aims to reduce the overall costs for businesses of highly skilled foreign workers and decrease the administrative burden of processing thousands of applications.

The rule is yet to be finalized. Despite uncertainties, the best course of action is to stay informed.

At the end of the month, the IRS issued a notice saying it would extend the deadline for furnishing Form 1095-C to employees. After consulting with stakeholders, the IRS determined that employers, insurers, and other providers of Minimum Essential Coverage (MEC) will need an extended period of time to gather and analyze the necessary information to prepare Forms 1095-B and 1095-C. The deadline has been extended from January 31, 2019, to March 4, 2019.

This IRS notice also extended the good-faith transition relief through the 2018 tax year from section 6721 and 6722 penalties to the 2018 information reporting requirements under sections 6055 and 6056. Remember, good-faith transition relief can be applied only when reasonable efforts to maintain ACA compliance and meet ACA reporting deadlines have been demonstrated.

In a unanimous vote, the U.S. Supreme Court ruled in favor of two Arizona firefighters in a lawsuit against the Mount Lemmon Fire District. The firefighters, the two most senior crew members at the time, claimed they were fired based on their age. The Mount Lemmon Fire District argued the employees were let go due to lack of participation in volunteer assignments. Adding to their arguments, the Fire District also claimed the age discrimination law did not apply to them because they had 13 employees at the time the oldest employees were let go. This, they believed, put them well below the 20-person threshold requirement for the private sector.

While the Age Discrimination Employment Act (ADEA) covers private-sector employers with 20 or more employees, Associate Justice Ruth Bader Ginsburg wrote in a statement that the ADEA covers state and local governments without regard to the number of workers they employ. This comes from, as Ginsburg noted, the 1974 amendment that says the term employer “also means a State or political subdivision of a State and any agency or instrumentality of a State or a political subdivision of a State” without any numerical threshold. Knowing your rights and responsibilities as both an employer and employee is valuable in maintaining proper workplace compliance and knowing how to respond when things don’t go as they should.

If you’re expecting regulation updates on overtime exemptions, you’ll have to wait until next year. The U.S. Department of Labor (DOL) pushed the date to propose new regulations governing overtime exemptions from the Fair Labor Standards Act (FLSA) to March 2019.

The DOL plans to roll out an updated salary level for exemption and seek the public’s view on salary-related issues. Today’s salary threshold for overtime pay is $23,660, but President Trump’s DOL may propose a range between $32,000 and $35,000.

When the rules are changing, employers need to prepare their businesses and HR departments for compliance with important FLSA resources. You can also read here to learn more about DOL’s fall regulatory agenda.

It’s better to be safe than sorry when you report workplace incidents, and OSHA wants you to know that. Under a new guidance from the Occupational Safety and Health Administration (OSHA), most safety incentive programs and drug testing policies are not considered retaliatory.

Previously, the agency stated that the guidance could deter employees from reporting work-related injuries and post-accident drug and alcohol testing in fear of retaliation. The updated guidance clarifies that safety incentive programs are unlawful and retaliatory only if they seek to punish an employee rather than promote workplace safety and health.

Lawful safety programs include:

• Incentive programs that reward employees for reporting unsafe conditions in the workplace
• Employee training programs to reinforce reporting rights and responsibilities
• Systems for accurately evaluating employees’ willingness to report injuries and illnesses

Lawful types of drug tests include:

• Random drug testing
• Drug testing unrelated to the reporting of a work-related injury/illness
• Drug testing under state workers’ compensation law and other federal law
• Drug testing to evaluate the cause of a workplace incident that harmed or could have harmed employees

To ensure your policies are compliant with OSHA’s new guidance, you can learn more here.

Employers who provide paid family and medical leave to their employees in the 2018 and 2019 tax years may qualify for a new business credit. “By enhancing the benefits of this tax credit, we help empower working parents to pursue their careers while balancing their demands at home," said Treasury Secretary Steven Mnuchin.

If you’re setting up or updating a leave policy, a retroactive credit may also be available to employers. Generally, employees with paid family and medical leave who earned $72,000 or less in the previous year qualify for the credit.

On August 28, the U.S. Department of Labor’s Wage and Hour Division (WHD) issued four new opinion letters, each interpreting a different aspect of the Fair Labor Standards Act (FLSA). The WHD resumed issuing opinion letters, which serve as official written interpretations about how the FLSA applies in specific situations, in mid-2017. This time around, the opinion letters covered topics such as employer-sponsored wellness events, whether the movie theater overtime exemption applies to in-theater-restaurant workers, and whether employees serving as volunteer graders for non-profit professional credentialing organizations are entitled to overtime pay for time spent on that task. For brief summaries of each of the letters, refer to this National Law Review article.

In a letter released publicly in mid-August, the IRS signaled its willingness to allow employers to contribute to 401(k) accounts for employees who aren’t able to make contributions on their own, provided the employee is making qualified student loan payments. This is huge news for younger employees, and particularly for Millennials, who are saddled with historically high student loan debt.

According to Pew research, only 52% of Millennial employees are currently contributing to their own retirement accounts, often because of the heavy financial burden of student loan repayment. A 401(k) benefit tied to student loan repayment would allow these employees to take advantage of employer contributions to prepare for retirement, as long as they’re currently paying down the balance on their student loan debts. This benefit could serve as a useful recruiting tool for employers looking to prove their employee-friendly bona fides. Read the IRS’s ruling here to learn more.

If companies with rigid attendance policies aren’t careful, they could run afoul of the Americans with Disabilities Act (ADA). This act prohibits discrimination based on disability and requires employers to provide reasonable accommodation to individuals with disabilities.

The Equal Employment Opportunity Commission (EEOC) sued Stanley Black & Decker Inc., a global diversified industrial company, when they fired an employee with cancer who took leave for medical treatments. According to the suit, the company terminated the sales representative for poor attendance in December 2016 despite her good performance. Although her absences were related to cancer treatments and testing, Stanley Black & Decker’s attendance policy doesn’t provide exceptions for people who need leave as an accommodation to their disability. The employee was fired without a final written warning.

Following the thread of blunders, the EEOC filed suit against the company for the alleged violation of the ADA. The EEOC Philadelphia District Director Jamie R. Williamson added, “This case should remind all employers that they have an obligation to make exceptions to ‘no fault’ attendance policies as a form of reasonable accommodation unless doing so would be an undue hardship.”

The EEOC’s vigilance of inflexible leave policies should encourage employers to review their company attendance policies in compliance with the disability laws.

In the President’s pursuit to undo the Affordable Care Act (ACA), many have joined the lawsuit to defend the ACA. Including the city of Columbus, Ohio, who recently joined the combat against the Trump Administration over the ACA.

Columbus is suing President Donald Trump and his administration for allegedly violating the “take care” clause of the U.S. Constitution. Plaintiffs say it’s an unconstitutional sabotage of the ACA. Columbus Attorney Zach Klein reports that the administration is also violating the “Administrative Procedures Act,” which makes guidelines on how administrative agencies can create rules and regulations.

A 130 page complaint recorded the administration’s numerous attempts to stop the ACA. This includes eliminating protections that it guarantees, driving up costs, attempting to destabilize exchanges, directing agencies to undercut the act, and preventing citizens from insurance enrollment.

Other cities suing the administration over the ACA include Baltimore, Cincinnati, Chicago, and Charlottesville.

In effort to enforce full-time employee coverage requirements under the Affordable Care Act (ACA), the IRS began assessing excise tax penalties against Applicable Large Employers (ALEs) that didn’t comply in 2015. For those who failed to comply, the IRS sent Letter 226-J to alert companies that the IRS determined an employer shared responsibility payment (ESRP) was owed.

To put it more simply: if you were suspected for a violation with the employer mandate of the ACA, you might’ve received a letter telling you how much money you owe. It’s up to you to respond with an appeal by the deadline (a 30-day period) or pay the fine.

Now, the IRS will send out one of the five versions of Letter 227 in response to companies who answered:

• Letter 227-J  is used if the ALE agreed to the proposed ESRP liability in its response to the Letter 226-J. No further action is required, besides paying the ESRP liability bill.

• Letter 227-K is used if the ALE provided additional information in response to Letter 226-J to inform that it should not owe an ESRP payment.

• Letter 227-L is used if the ALE provided additional information in response to Letter 226-J and the IRS responds in with its proposed assessment. The ALE can agree with the assessment or request an appeal.

• Letter 227-M is similar to Letter 227-L, but the IRS didn’t revise its proposed assessment.

• Letter 227-N is used to inform the ALE of the IRS’s decision following an appeals discussion. No further action is required, besides paying the ESRP liability bill.

Starting September 1, 2018, the Department of Labor (DOL) has issued a final rule that expands consumer availability of association health plans (AHPs). This rule levels the playing field for small businesses looking to band together and buy health insurance without regulatory limits that individual states and the Affordable Care Act (ACA) impose on smaller employers. Operating as an independent market, AHPs will be able to scale plans and provide more affordable benefits. Secretary of Labor Alexander Acosta believes it will help families and employee groups to have more choice, more access, and more coverage. According to Acosta, the final rule will also implement safeguards to enforce anti-discrimination protections for enrollees.

Under the rule, there are requirements for employers looking to form an AHP:

• Only a “bona fide group or association” can create an AHP—this excludes providers and related healthcare professionals. But it allows payers and related organizations to consult others by preparing claim administration, formulary guidance, and provider network design.
• AHPs need a “commonality of interest” among individuals looking to form a group. For example, a commonality includes individuals who have similar geographical locations and professions. Members can fall in the same trade, industry, or profession through the U.S. or in the same place of business within the same state or common metropolitan state.
• Employers who participate in a benefit program (directly or indirectly) exercise control over the program, both in form and substance.

The DOL expects a substantial number of uninsured people will enroll in AHPs for its affordability. The U.S. Congressional Budget Office (CBO) predicts that 400,000 people will enroll and 3.6 million people will switch coverages.

If you’ve taken a look at your inbox lately, companies and providers are sending you GDPR (General Data Protection Regulation) policy updates. If you check every other news story dealing with privacy concerns, data breaches, and cyber security mishaps, “GDPR” is written and referenced. If you go to a news site, an ecommerce platform, or a web service provider, you may see a pop-up banner explaining how cookies are used for web tracking. Between “asking for consent” and sending updated privacy policies, the GDPR affects every commercial body in the online space. Even for HR organizations. And it goes into effect today, May 25th. Here’s a brief overview of the new privacy law:

What is the GDPR? 

The GDPR is a European privacy law that regulates how individuals and organizations may collect, use, and retain personal data. It’s the latest effort to offer increased rights to individuals and keep organizations compliant with the new data privacy law. Any group that deals with people’s private data must meet new standards of accountability, security, and transparency.

Who is impacted?

Since the GPDR provides data protection for EU citizens, it applies to all organizations who offer goods and services to the EU customers. This includes U.S. companies as well. If you’re collecting personal data (including how data is collected, stored, processed, and destroyed) from EU citizens, you are liable for GDPR provisions. Which brings us to the next question:

What is considered personal data?

Information such as name, ID number, location data, online identifier, or other factors specific to the identity of that person qualifies as personal data. This also includes IP addresses, cookie strings, bank details, social media posts, medical records, and mobile device IDs. If you manage a large organization, this task may be overwhelming. So here’s the next step:

What do you need to keep in mind for the workforce?

After you map how your data flows and develop an audit, classify any areas of concern. You should have an inventory of all personal data of your employees, and justify reasons for its custody. Inform your workforce of the new rules and rights. Assess current data breach reporting procedures and establish a system that allows you to move forward with a transparent, secure, and compliant approach. If you don’t comply with the regulations, your company may be fined up to four percent of your annual global turnover. If there is a data breach, you’re required to notify a data breach authority figure within 72 hours.

With the new data privacy law rolled out, you’re just getting started with data protection compliance. While it seems like a daunting task, compliance is an evolving journey. Ensure that you keep up with best practices to avoid any breaches that may affect your organization.

The Trump administration released its Spring Regulatory Agenda, outlining the actions federal agencies intend to prioritize in 2018. Proposals include removing burdens on infrastructure, emerging technology, and small businesses in hopes to promote economic growth and innovation. The agenda (which includes 3,352 overall rules in play) represents ongoing progress towards more transparency, public notice, and due process in rule making.

Some points of entries include:

• DOL (Department of Labor) stated that it will revise the definition of “regular rate,” the number that shapes the foundation for overtime calculations, this coming September. Changes in bonuses and incentives mandated by the FLSA (Fair Labor Standards Act) would tilt in favor to employers as it would reduce their overtime liability significantly.

• Another proposal in the agenda is to expand apprenticeship and job opportunities to minors under eighteen. It aims to ease rules that prohibit minors from working in “hazardous” occupations or around machinery that is barred.

• The agenda also puts forward relief for small businesses such as creating flexibilities designed to lower costs and allow more business owners to obtain insurance and expanding commercial fishing after fishing seasons close.

• The proposed rule to overturn the controversial “persuader rule” expands the reporting obligations of “consultants” who conduct activities to convince employees about their rights to join a union or bargain collectively. It requires reporting even when the consultant communicated only to the employer and has no direct contact with employees.

The agenda aims to reflect progress toward reducing regulatory burdens. In accordance with President Trump’s Executive Order 13771, the plan seeks to eliminate two regulatory actions for each new regulation—all managed within a controlled budgeting process to reduce government costs. As regulatory actions are in development, it’s important to note the public can create meaningful comments on policies that affect them.

On May 21, the U.S. Supreme Court delivered a pro-employer ruling class-action in Epic Systems Corp. v. Lewis. With a 5-4 vote, SCOTUS upheld an employer’s right to require workers to arbitrate disputes individually, surrendering their right to class or collective action. This is a case of employers who prefer to handle disputes through arbitration against employees who favor united action towards a resolution.

In its culmination, three different cases set the stage for the Supreme Court ruling. The first case rules that arbitration agreements violated employees’ National Labor Relations Act right to engage in concerted action for mutual aid. In the second case, employers argued that the Federal Arbitration Act provides valid, irrevocable, and enforceable agreements. With this circuit split, it forced the court to interpret two federal statutes—the Federal Arbitration Act and the National Labor Relations Act— in this case.

The Supreme Court also ruled that workplace employment agreements that ban class actions do not violate federal labor laws. The Court stated, “the law is clear: Congress has instructed that arbitration agreements must be enforced as written.” For employers, this can save companies money and time from resolving collective battles. However, this makes it harder for employees to address workplace complaints in class action lawsuits in the future.

Since its introduction in 2010, the ACA has survived nearly 70 unsuccessful repeal attempts in Congress. Previous cases like King v. Burwell and NFIB v. Sebelius have upheld the ACA’s constitutionality. In another lawsuit aimed to dismantle the ACA, the ongoing legal battle adds a new layer of players who support or oppose the recent Texas lawsuit.

Last year, President Trump signed legislation that declared the heart of the ACA — the individual mandate — unconstitutional. The original lawsuit filed in Texas argues that if the mandate is killed, the remainder of the ACA must also fail. Nineteen other states joined the anti-ACA coalition. If the attorneys general accept the motion to intervene, they would take part in the court proceedings and be able to provide evidence that the law is constitutional.

• Among 16 attorneys general, California Attorney General Xavier Becerra seeks to enter the lawsuit to defend the ACA. He argues that if the lawsuit succeeds, millions of people who receive quality, affordable healthcare under the ACA could lose half a trillion dollars in healthcare funding. Working families, seniors and people with disabilities could lose preventive care and prescription drug benefits. The state of California would stand to lose $160.2 billion in healthcare for its residents.

• Attorney General Beshear states that Kentucky stands to lose a projected $49.7 billion in federal funding if the lawsuit moves forward. The private insurance plans and Medicaid have been instrumental in the state’s fight against the opioid epidemic.

• Washington State Attorney General Bob Ferguson argues that insurers would discriminate against patients based on medical history, and they would be subject to annual and lifetime limits to their health benefits if the state loses coverage.

Other state attorneys generals joining the motion to intervene include California, Connecticut, Delaware, Hawaii, Illinois, Massachusetts, North Carolina, New Jersey, New York, Oregon, Rhode Island, Virginia, Vermont, Washington and the District of Columbia.

How do you determine “normal” work hours for educators with irregular schedules? If someone has a serious health condition, how are rest breaks compensated? Are lump-sum payments considering “earnings”? Finally, what is the applicability of “white collar” exemptions in higher education institutions?

All these questions are answered in the Department of Labor’s (DOL) new fact sheet for higher education employees concerning overtime pay under the FLSA. The fact sheet addresses the “white collar” exemptions for employees who perform executive, administrative, professional, and outside sales duties. This includes teacher exemption, professional employee exemption, administrative employee exemption, academic administration employee exemption, and executive employee exemption. In particular, it highlights positions unique to higher education that may fall into various exemptions, including coaches, online educators, postdoctoral fellows, academic counselors, and department heads.

Additionally, the fact sheet provides opinion letters, frequently-asked-question responses, and general DOL details. Rolling out the fact sheet will provide employers with assistance and guidance for complying with the FLSA.

In a 5-4 decision, SCOTUS ruled in Encino Motorcars, LLC v. Navarro that the Fair Labor Standards Act (FLSA) exempts service advisors at car dealerships from the act’s overtime requirements. Typically, the FLSA requires employers to pay overtime to employees who work more than 40 hours a week. Some employees are exempt from the rule including “any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles, trucks or farm implement.” But what about employees who consult with customers about servicing needs?

The District Court ruled that service advisors are exempt. However, the Ninth district ruled otherwise, sticking to its assertion that FLSA exemptions should be narrowly construed. While service advisors are considered “salespeople”, they aren’t engaged in “servicing automobiles, as they do not actually repair and maintain vehicles.” The Court rejected the Ninth Circuit dependence on statutory interpretation. This decision solidified that exemptions should be construed as plainly as its written, shedding light for all employers asserting the application of any FLSA exemption.

HR professionals face tremendous pressure to process payroll on time and manage regulations. Under the Fair Labor Standards Act (FLSA), many employers and HR managers struggle to understand its nuances and complexities in the realm of compliance. It can be difficult to fully understand where employees fall under the rules, especially if they’re not properly classified. However, there may be another way to address wage and hour violations. A new program is roaming the halls of HR, and it’s called PAID, otherwise known as the Payroll Audit Independent Determination.

The WHD recently announced the national pilot program for employer self-audit of wage and hour violations under the FLSA. The PAID program aims to ease resolution of potential overtime and minimum wage offenses. Catered to employers, the program hopes to help correct wage and hour violations while limiting risk to pay additional damages and costs of litigation.

While PAID has its benefits…

Employers working under PAID are able to:

• Correct minimum wage and overtime violations without litigation
• Avoid costs of liquidated damages or civil monetary penalties when employer make payments for all back wages due
• Execute limited release of violations identified under the FLSA after accepting payment under the PAID program

...critics see potential downsides too:

Employers are not able to:

• Join the PAID program after violations are disclosed
• Release any private right of action if employees choose not to accept payment
• Exceed the scope of employee identified violations for the time period in which the employer is paying back wages
• Avoid any future investigations that WHD chooses to conduct
• Rely on data protection, which means information submitted to WHD could be available to employees who wish to pursue litigation

Starting in April 2018, the WHD will roll out the program nationwide for six months. In its finish, WHD will evaluate the results and determine next steps.

The H-1B visa is making headlines with its six-month deep freeze. The U.S. Citizenship and Immigration Services (USCIS) is temporarily halting premium processing for all Fiscal Year 2019 cap-subject petitions. This includes exemption-seeking petitions for those with a master’s degree or higher credential obtained in the United States. Acceptance for H-1B petitions begins on April 2, 2018. The suspension will last until September 10, 2018.

It’s not unusual for the USCIS to delay premium processing. For the past several years, employers received an influx of H-1B petitions. According to USCIS, officials collect around 200,000 visa petitions despite 85,000 visas being available each year. A source from the Boston law firm Fragomen expressed that “the USCIS is only now finishing up its processing of H-1B cap cases filed at this time last year.” This may be due to an increase in Request for Evidence (RFEs) as well as a reflection of the agency’s new mission statement.

While the postponement ensures the USCIS has time to process high volumes of filings, this impacts companies who rely on foreign contractors. Organizations will need to find alternative solutions or meet USCIS expectations for visa petitioners. Visa holders have their own challenges to meet as well. With recent restrictions of the H1-B visa program, foreign contractors seeking visas will have to provide documentation for third-party assignments.

Last year’s hurricanes served as reminders to us all about the importance of crisis management planning complete with examples of what to do—and what not to do. Remember the Pizza Hut manager who threatened to punish employees who evacuated for too long during Hurricane Irma? Well, Pizza Hut isn’t the only one revisiting policies on how to handle employees in natural disasters. A proposed ordinance went before Miami-Dade County in Florida that would prevent employers from retaliating against employees who evacuate under county orders. Under this proposed ordinance, if a non-essential  employee complies with county evacuation orders during a declared state of emergency, employers may not withhold wages, demote, or terminate the employee for not working. Penalty for noncompliance will start with a base of $500. According to the county’s code, essential employees are those who are “critical to the performance of the employee’s department or agency’s mission during disaster situations within Miami-Dade county.” This proposal also narrows the essential employees to those employed by specific employers like hospitals and health care providers, public and private utilities, and government agencies.

Other companies like Starbucks have already stepped up without ordinances to offer pay to employees who were not able to work due to evacuation. Whether or not your county prohibits retaliation against county evacuations, your company should revisit the issue. Experts expect more counties in natural disaster prone areas to follow in Miami-Dade’s footsteps.

After a 9-2 City Council vote, Austin became the first city in Texas to mandate paid sick leave for non-government employers. This ordinance will require private employers to give their workers up to 64 hours of paid sick leave. Paid sick leave hours will accrue at the rate of one hour for every 30 hours worked. Companies with 15 or fewer employees can cap their hour allotment at 48 hours. The ordinance will go into effect on October 1, 2018. Employers with five or fewer employees, often referred to as micro-businesses, will have until October 2020 to comply.

Advocates for the ordinance, like former Texas Senator and current Austin resident Wendy Davis, believe this regulation will have a “unique impact” on women and help boost morale for all workers. Critics would like to see a paid sick leave ordinance that could offer benefits to a wider range of businesses in the community. This ordinance is part of a larger trend in the U.S. with nine states and the District of Columbia having already regulated paid sick leave, and many more cities following suit. HR professionals should stay familiar with legislative proceedings at their city and state levels.  

As tax season began in January 2018, the IRS released a statement warning HR and payroll managers of phishing scams surrounding W-2 forms. The IRS encourages payroll managers to talk to their employees about the issue they consider, “one of the most dangerous phishing emails in the tax community.” In this scam, cybercriminals trick payroll staff into disclosing sensitive information. According to SHRM, reports to phishing@irs.gov of these payroll phishing scams increased from 100 in 2016 to 900 in 2017. This scam has affected all types of companies in the last two years, from small businesses to enterprise corporations.

The phishing emails often appear to come from top executives in the company requesting sensitive employee data via Form W-2. This data includes an employee’s name, date of birth, social security number, address, and salary. The emails often include a sense of urgency to get a quick turnaround on the information. Some scams have gone so far as to target specific junior employees and new hires who would be more likely to fall for the scam.

The IRS encourages companies to create a policy that limits the number of employees who have authority to handle W-2 form requests. Companies should also require additional verification to validate any sensitive employee data like Form W-2. 

If you receive a suspicious email asking for sensitive employee data, email phishing@irs.gov. In the email, include the original suspicious email and include “W-2 scam” in the subject line.

For more information about the scam or to report employee data theft from a W-2 scam, visit the IRS data theft information page.

In December 2015, President Obama passed a two-year delay on the Affordable Care Act’s excise tax known as the “Cadillac Tax.” This pushed the tax to take effect in 2020 instead of 2018. On January 22, 2018, President Trump signed another two-year delay on the tax to push that date to 2022. The Cadillac Tax is the ACA’s 40% excise tax on high-value healthcare plans.

This tax delay, "is an acknowledgement by Congress of the importance of employer-sponsored health insurance, which provides benefits to over 178 million Americans and their families," said Chatrane Birbal, senior advisor of government relations at SHRM. For many, the delay is one small step toward victory in repealing the tax altogether.

On December 20, 2017, Congress passed the 2017 Tax Act H.R. 1 (known as the Tax Cuts and Jobs Act). Two days later, President Trump signed the bill into law. The joint congressional committee also released a Joint Explanatory Statement. This document serves to shed light on the different reconciled tax bills passed earlier by the House and Senate and provides a list of provision explanations of the legislation.

Among the changes in this tax overhaul, businesses will likely take most interest in the reduced corporate tax rate and changes to the taxability of certain employee benefits and perks. The tax act also ends the individual mandate for healthcare coverage beginning in 2019 (the employer mandate still stands under the Affordable Care Act). HR can expect the tax act to impact several areas like paid leave and fringe benefits.

Since the bill became a law, many corporations have announced how they plan to use their savings to give back to employees and reinvest money into their companies. Aflac plans to expand its employee benefits and training programs, including a raised 401K match. Suntrust Banks, Inc. also plans to raise its 401K matching and offer cash incentives for employees who complete their in-house “financial fitness” program. Other companies boast increased wages and bonuses in the year ahead. Talent experts say this is a smart move on the part of companies looking to attract better talent, increase retention, and improve their overall brand as employers.

For more insight, SHRM recently released an article highlighting the key tax changes affecting employee benefits.

The IRS extended deadlines for furnishing ACA Forms 1095-B and 1095-C to employees. Previously due on Wednesday, January 31, 2018, the automatic extension gives employers an extra 30 days to give employees their 1095-C forms, now due on Friday, March 2, 2018. 

There are a few things to note about this extension:

• This is an automatic extension that applies to everyone. No application is necessary.
• No other extensions will be available for Form 1095-C (you will not be able to file Form 8809 for an additional extension).
• Due to the extension, employees may not receive their Form 1095-C by the time they file their individual tax returns. While the information on this form may be helpful for preparing a tax return, it is not required to file.
• The IRS still encourages employers to furnish Form 1095-C to their employees as soon as possible.

Please, note that the Form 1094-C deadline remains the same. For more information, visit our ACA reporting forms FAQs.

In its recently published fall regulatory agenda, the US Department of Labor announced its intentions to issue a Notice of Proposed Rulemaking (NPRM) for the FLSA overtime pay salary threshold. This rule proposal would determine the salary level for exempt status of administrative and professional employees. The DOL will use the comments received during the Request for Information period to help inform their decision making. While the DOL has not specified a target threshold (or if there will continue to be one at all), experts predict it to be between $32,000 and $35,000.

Several months ago, the IRS said it would begin issuing penalties for employers who did not comply with the Employer Shared Responsibility Mandate under the Affordable Care Act. Now, the IRS is making good on its promise. The IRS has started mailing notices of potential liability to employers. Under section 4980H of the ACA, Applicable Large Employers (ALEs) must offer health plans with Minimum Value Coverage to full-time equivalent employees and their dependents. ALEs who fail to report offers of coverage are subject to penalty.

Employers who receive notices of penalties for the 2015 reporting year have the opportunity to appeal before the IRS requests payment. Employers also have the option to request an extension within 30 days of receiving the notice from the IRS. If employers are unsure of ACA compliance status for the 2015 reporting year, they should monitor the mail for a notice and be prepared to act swiftly upon receipt.

Employers will now have an additional two weeks to file electronic illness and injury forms under the OSHA recordkeeping rule. On November 22, 2017, OSHA extended the deadline for submitting electronic illness and injury reports from December 1, 2017 to December 15, 2017.

OSHA stated in a news release that the extension will “allow affected employers additional time to become familiar with a new electronic reporting system launched on August 1, 2017.” The release also notes that OSHA is “currently reviewing the other provisions of its final rule to Improve Tracking of Workplace Injuries and Illnesses, and intends to publish a notice of proposed rulemaking to reconsider, revise, or remove portions of that rule in 2018.”

The Equal Employment Opportunity Commission (EEOC) released its Promising Practices for Preventing Harassment report this month. The EEOC chose a Select Task Force on the Study of Harassment in the Workplace to create a report for employers with proactive measures to address and prevent sexual harassment in the workplace. The task force developed five core principles believed to have “generally proven effective in preventing and addressing harassment.” The EEOC intends for these promising practices to be best practices or guiding principles rather than official legal requirements, though all employers are strongly encouraged to put these principles into practice in their workplaces to help them in compliance efforts.

The five core principles in the report include:

• Committed and engaged leadership
• Consistent and demonstrated accountability
• Strong and comprehensive harassment policies
• Trusted and accessible complaint procedures
• Regular, interactive training tailored to the audience and the organization

Based on these principles, the EEOC report includes further insight and checklists to help combat workplace harassment. Employers and HR professionals should be sure to set and enforce policies around office misconduct, especially sexual harassment, and remind employees often about these policies and practices.

Pennsylvania Senator Judy Schwank led a group of Democratic Senators in introducing a bill that would ban the use of non-disclosure agreements (NDAs) in allegations of sexual misconduct. Schwank believes NDAs put more power in the hands of the perpetrators and not the victims of sexual harassment and abuse. Her proposed legislation, Senate Bill 999, aims to shift power to victims to speak out about any misconduct they’re facing.

“The secrecy [perpetrators] are given allows their misconduct to grow and spread to harm others... The law should not be an escape hatch from civil and criminal liability,” Schwank said. Schwank also stated the legislation will prohibit any contracts, settlements, or any other barriers from disallowing disclosure of a perpetrator’s identity.

NDAs in recent high-profile cases like that of Harvey Weinstein have caused controversy and brought this bill to the forefront of discussion. Schwank and her fellow Democratic state lawmakers believe the bill will empower victims report abuse, especially in the case of workplace harassment and misconduct, without fear of legal ramifications.

On November 6, 2017, the 5th U.S. Circuit Court of Appeals granted a motion from the Department of Labor (DOL) to halt litigation over the Obama-era FLSA Overtime rule, that would have extended overtime protection to some four million workers in the U.S. This pause will make the possibility of the 2016 overtime rule ever going into effect unlikely, though changes to the current overtime rule are still expected.

California governor, Jerry Brown recently signed some significant bills into place for California employment law. SHRM put together a list of the top five new state laws that HR should start preparing for. Here’s a summary of those laws:

• Inquiries about salary history: employers will no longer be permitted to ask job candidates about their earning, current or prior. Employers must also provide job candidates with pay scale information should the applicant request it.
• Immigration: employers must demand warrants and subpoenas from Immigration and Customs Enforcement (ICE) agents before enforcement. Employers must also provide certain notices to employees and union reps.
• Ban the box: employers with five or more employees may no longer look at a job candidate’s criminal record until the employer makes a conditional offer of employment. Employers may change the offer upon reviewing criminal history if they follow certain steps before coming to their final decision. This makes California the 10th state to require private-sector employers to ban the box. “Ban the box” comes from the idea that employers discriminate against candidates who check the box on applications that asks if they’ve ever been convicted of a felony. The Ban the Box movement aims to encourage employers to hire the most qualified candidate for a job, regardless of whether they have prior convictions.
• Baby bonding leave: Small businesses with 20-49 employees must provide at least 12 weeks of job-protected new parent leave within the first year of a child’s birth, adoption, or foster care placement. To qualify, employees must have more than 12 months of service and at 1250 hours of service with the employer within that 12 months. Employees must complete the service requirement before beginning the leave period.
• Gender identity and sexual orientation harassment training: In addition to sexual harassment training requirements for companies with 50 or more employees, the new law will add required training on gender identity, gender expression, and sexual orientation harassment. Employers must also post a transgender rights notice in the workplace.

If you’re in Human Resources in the state of California, it’s time to prepare for some changes to employment law coming in 2018. If you’re an HR professional in another state, take note: other states could soon be following suit.

As of January 1, 2018, the minimum wage in Florida will increase to $8.25 per hour, a two percent increase from the current $8.10 per hour established on January 1 of this year.

In 2004, Florida passed a constitutional amendment that established minimum wage rates in Florida. This law requires a minimum wage evaluation on September 30 of each year. This evaluation looks at the percentage increase of the Consumer Price Index (CPI) in the South Region for the 12-month period prior to September 1 of the current year. If the calculation is greater than the federal minimum wage rate, the state’s new minimum wage rate will go into effect on January 1 of the following year.

All Florida employees covered by federal minimum wage will be covered by the new state minimum wage. Employers should prepare for the upcoming changes by the end of the year.

The IRS has officially released the final 1094-C and 1095-C forms for the ACA tax year 2017 (due in 2018). The IRS also issued the instructions for Forms 1094-C and 1095-C.

 Changes to Form 1094-C include the removal of line 22 Section 4980H Transition Relief. This relief applied to the 2015 plan year and remained on forms for the 2016 plan year due to some non-calendar plans that qualified for this relief.

Changes to Form 1095-C include a new paragraph in the instructions entitled, “Additional information.” This section points form recipients to more resources located on the Affordable Care Act Tax Provisions for Individuals and Families page of the IRS website.

In a 23-17 vote, the House Education and the Workforce Committee will send the Save Local Business Act bill to a full vote on the House floor. This bill aims to clarify the treatment of two or more employers as joint employers under the National Labor Relations Act and the Fair Labor Standards Act. If passed, the act would repeal a National Labor Relations Board ruling from the Obama era. This ruling redefined “joint employer” making companies and franchisors potentially liable for labor law violations by subcontractors. According to the Congressman who first introduced the bill this summer, Bradley Byrne (R-Ala), the legislation clarifies that two or more employers must have “actual, direct, and immediate” control over employees to be considered joint employers.

Facing pressure to deliver on their seven-year promise to repeal and replace the Affordable Care Act, Senate Republicans have initiated one more repeal effort for U.S. healthcare. Senators Lindsey Graham of South Carolina and Bill Cassidy of Louisiana recently proposed their Graham-Cassidy bill. The new legislation would repeal many health care law requirements and bundle funding into block grants to states.

The clock is ticking as the September 30 deadline draws near to pass budgetary legislation with a simple majority. After that date, any legislation on health care Senate hopes to pass will need 60 votes, a difficult feat for Republicans. The bill is undergoing the cost estimation and coverage impact process with the Congressional Budget Office.

The injunction on the Obama administration’s Final Rule for changes to FLSA exemptions is now final. Judge Amos Mazzant of the U.S. District Court for the Eastern District of Texas awarded summary judgment against the Department of Labor (DOL) in State of Nevada et al., vs U.S. Department of Labor et al. Among other issues, this case focused on the whether the DOL has the authority to implement regulations under the FLSA that would more than double the salary threshold for FLSA exemptions. Judge Mazzant determined the Final Rule invalid because it is not based on permissible construction of the FLSA. In addition, the judge also concluded the Final Rule provision to create automatic updates to the salary threshold every three years to be “unlawful.” For now, the current salary threshold for FLSA overtime rules remains at the current $455 per week, though changes could be on the horizon.

On September 1, 2017, President Trump announced the official appointment of Cheryl Stanton as the head of the Department of Labor’s (DOL) Wage and Hour Division (WHD). Stanton currently serves as the Executive Director of South Carolina’s Department of Employment and Workforce. Stanton’s other roles include serving as a White House legal liaison to the DOL under the George W. Bush administration.

If the Senate confirms Stanton, she will be responsible for leading the WHD, the branch of the DOL dealing with labor law and ensuring its enforcement. This includes the Fair Labor Standards Act (FLSA) and its federal minimum wage and overtime laws, and the Family and Medical Leave Act (FMLA).

The IRS recently released draft forms for ACA reporting on the 2017 tax year (due in 2018). See the draft forms from the IRS here:

Form 1094-C

Form 1095-C

Changes to Form 1094-C include the removal of line 22 Section 4980H Transition Relief. This relief applied to the 2015 plan year and remained on forms for the 2016 plan year due to some non-calendar plans that qualified for this relief. (Form 1094-B remains unchanged.)

The new  drafts of Form 1095-C and Form 1095-B include a new paragraph in the instructions entitled, “Additional information.” This section points form recipients to more resources located on the Affordable Care Act Tax Provisions for Individuals and Families page of the IRS website. This includes the IRS overview of provisions of individual shared responsibility, employer shared responsibility, and premium tax credits. This section also includes the number for the IRS Healthcare Hotline.

See the ACA 2018 reporting deadlines here.

Applicable Large Employers (ALEs) are responsible for filing Form 1094-C with the IRS and furnishing Form 1095-C with their employees. Read more about Form 1094-C instructions for employers and Form 1095-C instructions for furnishing and filing.

In wage and hour retaliation claims, plaintiffs can now receive damages for emotional distress under the Fair Labor Standards Act (FLSA). Oftentimes jurors tend toward empathy for plaintiffs while feeling that managers acted out of retribution for FLSA claims. SHRM urges  employers to train managers in anti-retaliation or suffer some expensive consequences. Employers should note that emotional distress damages are under federal discrimination law and not subject to damages caps. 

At the end of July, the Department of Labor officially released their Request for Information for the Fair Labor Standards Act. During August and September, the public will have the opportunity to comment on a variety of issues to define and delimit FLSA exemptions.

Those key issues include the following:

• What method should be used to establish the salary threshold for exemption?

• Should the FLSA establish multiple salary levels to account for factors such as the cost of living in a geographic region, the metropolitan area, and the employer size?

• Does the exemption duties test require changes as well?

• Should the nature of the duties alone or other factors such as salary determine exempt status?

• Should different salary levels apply to each exemption?

• How did preparation for the Obama administration 2016 rule affect companies and their employees?

• Does the 2016 salary level too high that it may “eclipse the role of the duties test in determining exempt status?”

• Should the salary level be automatically updated on a periodic basis (every three years)?

The DOL encourages Employers and HR to give their input on the impact the Obama administration’s 2016 rule may have had on their organizations. The DOL would also like to glean more information on how employers prepared for the 2016 changes (raised salaries, decreased hours, etc). This is an opportunity to give your voice in this federal decision-making process.

The public may submit written comments on the RFI no later than September 25, 2017.

On Wednesday July 26, 2017, Senate Majority leader Mitch McConnell (R-KY) held a vote for his repeal-only plan that would give lawmakers two more years to develop a replacement to the Affordable Care Act (ACA). Opposing Senators believe this will only create more chaos in an already unstable situation for the American people. The Senate rejected the repeal now, replace later proposal with votes tallying 45-55. If it had passed, the repeal would still take two more years before going into effect. This would give Republicans a so-called transition period to develop a replacement plan.

On Tuesday, July 25, the Senate succeeded in passing a motion to proceed with the health care debate. This allows them to continue forward with the vote on the bill to repeal and replace the Affordable Care Act (ACA). Vice President Pence cast the tie-breaking vote that passed the motion. Days after a brain cancer diagnosis, John McCain (R-AZ), made it to the Senate floor to add in his affirmative vote. 

The Better Care Reconciliation Act (BCRA), GOP Senate healthcare bill to repeal and replace the Affordable Care Act, fell short of votes to pass as more Republicans raised opposition to the the bill. Senate Majority leader Mitch McConnell (R-KY) proposed a repeal-only (and replace later) strategy that also met opposition from Republican Senators. McConnell’s repeal strategy will effectively wipe out the requirement for people to have health coverage.

Earlier this year, the United States Citizen and Immigration Services (USCIS) made a change to Form I-9—and things are changing again. Form I-9 serves to prove eligibility to work in the United States. The latest I-9 form contains revisions to the instructions along with updates to the list of accepted documents. Employers may begin using the new forms immediately, but have until September 18, 2017 to switch to the new I-9. They may continue using the previous version (revision dated 11/14/16) until September 17, 2017.

U.S. Labor Secretary, Alexander Acosta, announced that the Fiduciary Rule will go into partial effect on June 9, 2017 without further delay. The rule will still go into full effect on January 1, 2018. This rule expands the definition of “investment advice fiduciary” under the Employee Retirement Income Security Act of 1974 (ERISA). This expanded definition will include financial professionals (brokers and planners) who work with retirement plans as fiduciaries. 

Now is an important time for HR managers to evaluate their current retirement plans, vendors, and advisers. You want to ensure your employees receive the best plans for their families and the future.

The Working Families Flexibility Act recently passed the House of Representatives and now awaits a Senate vote. This bill aims to amend the Fair Labor Standards Act (FLSA). The vote fell largely along party lines, passing the bill 229 to 197. Under this controversial amendment, employers in the private sector could give non-exempt employees compensatory time instead of monetary compensation for overtime worked. Employees would earn comp time at the rate of one and a half hours for every hour of overtime worked.

On April 13, the Trump administration issued a final rule on market stabilization for the Affordable Care Act. This rule aims to stabilize the individual and small group markets and affirm the traditional role of state regulators.

On Friday, March 24, House Republican leaders withdrew the GOP health care bill after being unable to garner enough votes to support it. This bill, the American Health Care Act, served as the Republicans’ efforts to repeal and replace the Affordable Care Act. The ACA remains in place. Applicable Large Employers will continue to be held accountable for the shared responsibility mandate to offer affordable health care plans to all full-time equivalent employees and their dependents.

During a confirmation hearing, Department of Labor Secretary nominee Alexander Acosta indicated his support of increasing the salary threshold with inflation. After accounting for inflation to the cost of living since 2004 (when the rule was last updated), Acosta believes “the salary threshold figure would be somewhere around $33,000." An increase from the current rule but not as extreme as the rule the Obama administration proposed. Acosta is aware of both the impact on the economy and lower-wage regions as well as the lack of salary adjustment in over a decade.