2013 HR Regulation Update
Kathryn Carlson
Product Director, HR Management
Questions?
If you have questions
during the presentation,
please submit them using
the “Questions”
feature.
Questions will...
Department of Labor 100th
Anniversary
On March 4, 1913, President William
Howard Taft signed a bill establishing the
U.S. ...
EEOC Sets New Records in 2013
The Equal Employment Opportunity Commission
(EEOC) had a record year for private sector
disc...
New I-9 Coming Soon
The Form I-9 is on the verge of the first
substantive change in 25 years, but not
available yet….
E-Verify
In 2012, eight states enacted legislation
related to E-Verify: Alabama, Georgia,
Louisiana, Michigan, New Hampshi...
Employee Compensation
• Standard business mileage reimbursement
rate is now 56.5 cents
• Minimum wage changes in 10 states...
Minimum Wage Increases
Arizona – Minimum wage will increase from $7.65 to $7.80 per hour. Tipped employee
minimum increase...
Social Media
Get a policy in place now!
California, Delaware, Illinois, Maryland,
Michigan and New Jersey already have law...
Speaking of the NLRB
National Labor Relations Board, or NLRB,
issued a new rule in 2012 requiring all
employers that are s...
Update Labor Posters Now
Federal Polygraph Protection Act &OSHA
PLUS REQUIRED STATE CHANGES
Fines for not having updated a...
The ADA Amendments Act (ADAAA)
• Expanded definitions of a disability
• Job duties clearly documented
• Reasonable accommo...
Don’t Forget State Law
California enacted over 35 new pieces of
employment-related legislation and
regulations but ALMOST ...
Background Checking
• Make sure all forms are updates
• Review your policy on selection-
individualized assessment is cruc...
Preventive Services
New regulations issued as part the Affordable
Care Act require coverage of certain
preventive care ser...
New limits on Flexible Spending Accounts
• The $2,500 limit is effective for plan years
starting January 1, and not the ta...
What’s next?
• Plan/Prevent/Protect
• Right to Know
• I2P2
• More whistleblower protection
• OSHA Recordkeeping changes
• ...
Don’t Forget State Law
California enacted over 35 new pieces of
employment-related legislation and
regulations but ALMOST ...
Questions and Answers
Contact Information
20– KPA CONFIDENTIAL –
The recorded webinar and presentation slides will be emailed to
you today inclu...
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2013 HR Regulation Update

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2013 HR Regulation Update

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  • Copyright © 2001-2007 Infor Global Solutions
  • Copyright © 2008 Infor. All rights reserved. www.infor.com.
  • As of November 30, 2012, a total of 20 states require the use of E-Verify for at least some public and/or private employers: Alabama, Arizona, Colorado, Florida, Georgia, Idaho, Indiana, Louisiana, Michigan, Mississippi, Missouri, Nebraska, North Carolina, Oklahoma, Pennsylvania, South Carolina, Tennessee, Utah, Virginia, and West Virginia. Eighteen of these requirements were through legislation and two, Florida and Idaho, by executive orders. Two states, California and Illinois, currently limit the use of E-Verify. Other states are exploring alternatives to E-Verify or identifying safe harbor provisions. North Dakota is the only state to mandate a Legislative Management study on the feasibility of mandating the use of E-Verify. See the state chart below and state by state summary for more information.
  • The ADA Amendments Act (ADAAA) In September 2008, the ADAAA was signed into law. Final regulations became effective in March 2011. Under the ADAAA, the focus shifted from a determination of whether an individual was disabled to a determination of the accommodation that could be provided to the disabled individual. The ADAAA defines a disability as an impairment that substantially limits one “major life activity.” The original ADA regulations contained a list of nine major life activities that were considered centrally important to most people’s daily lives. The ADAAA final regulations greatly expanded that definition. Under the final regulations, the list was expanded to include 19 activities. Now, limitations in activities such as working, thinking, communicating, learning and concentrating are considered major life activities under the ADAAA and result in an employee being classified as disabled when impaired in any one of those activities. In addition to the list of major life activities, the ADAAA final regulations also provided a list of specific impairments now presumed to constitute a disability. Individuals with impairments such as bipolar disorder, post-traumatic stress syndrome and obsessive compulsive disorder are now presumed disabled under the final regulations. This resulted in a widening of the scope of possible disabilities under the Act. The final regulations also eliminated consideration of mitigating measures in determining whether a disability exists. Under the prior ADA, mitigating measures included assistance such as medication and medical equipment. Determining whether an employee was limited in activities took into account the effect of these assistance measures. As a result, the positive effects from these aides were a factor in the determination as to whether a person was disabled. Under the ADAAA final regulations, the effects of the mitigating measures are largely ignored in the consideration. Now, mitigating measures have been limited to eyeglasses and contact lenses. Thus, even if an individual is taking medication, an accommodation may still be required. The Effect of the ADAAA Final Regulations The ADAAA final regulations greatly expanded the population of employees and individuals considered disabled. The focus has now shifted from one of a determination as to whether a person is disabled to a determination of the accommodation that can be provided and whether this imposes an undue hardship on the employer. The reasonable accommodation analysis begins after the employer is put on notice that a disability exists. However, unless the disability and adverse impact on job performance is obvious, the burden of disclosing the disability still remains on the employee. In other words, if the employee does not disclose, the employer is not under an obligation to consider an accommodation. Those employers with employees who have identified disabilities are required to consider whether a reasonable accommodation is possible to assist the employee in performing his or her required duties. Employers are expected to consult with employees regarding (1) potential accommodations, (2) the cost of the accommodations and (3) the employee’s preference. Unless the accommodation will cause an undue hardship on the employer, employees who have identified disabilities are expected to be accommodated. The result of the shift from disability to accommodation is an increase in cost to the employer. Employers have been placed in a position where the disability element is significantly easier to satisfy. The expansion provides a significant opportunity for abuse by an employee, potentially causing the employer to expend significant time and resources in consulting with employees regarding accommodations to be made as well as implementation of agreed upon accommodations. Practice Pointers With the expansion of the number of employees who may be covered under the ADAAA, documentation plays an even more important role in the employer/employee relationship. Employers, when presented with a claim of disability from employees, must fully evaluate the employee claim and discuss possible solutions with the impaired employee. Employers are not required to provide the accommodation demanded by the employee. Accommodations that place an undue hardship on the employer can be denied. The optimal solution is for employers to collaborate with the employee to arrive at an accommodation that helps the employee overcome his impairment without resulting in a significant cost to the organization. Accommodations, meetings and employee progress should be fully documented throughout this process.
  • As we all know, if an employer uses a third party to conduct criminal background checks for it, the Fair Credit Reporting Act (FCRA) applies. Generally speaking, there are three (3) steps mandated by the FCRA in terms of the communications between the employer and the applicant or employee: (a) prior written authorization; (b) pre-adverse action notice; and (c) adverse action notice. Effective January 1, 2013, there are new forms that must be used as part of the process. In particular, an updated “A Summary of Your Rights Under the Fair Credit Reporting Act,” must be given to applicants and employees as part of pre-adverse action notice (with regard to criminal or other records). In the case of investigative consumer reports, which include personal interviews as opposed to relying solely on documents of record, the revised notice must be given as part of the first step, too. For a copy of the new form, see Appendix K: http://www.ecfr.gov/cgi-bin/text-idx?type=simple;c=ecfr;cc=ecfr;sid=c423ef5035af7477c90f94d5bc9585c3;idno=12;region=DIV1;q1=1022;rgn=div5;view=text;node=12%3A8.0.2.14.16 In this regard, it is important to note that the FCRA no longer is enforced by the Federal Trade Commission (FTC). Rather, it is enforced by the Consumer Financial Protection Bureau (CFPB). The CFPB assumed enforcement and rule making authority from the FTC under the Dodd-Frank Wall Street Reform and Consumer Protection Act. As employers update their forms to comply with the FCRA, now is also a good time to update their forms to take into account the EEOC's guidance on criminal records. See http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm Generally, the EEOC requires that employers make individualized assessments, using the Green factors: (a) nature of job; (b) nature of conviction(s); and (c) time frame since conviction. Green refers to the seminal appellate court decision in this area. As part of recommended individualized assessment, the EEOC encourages employers to do more than consider the Green factors. The EEOC has stated that the individualized assessment also requires "that an employer informs the individual that he [or she] may be excluded because of past criminal conduct; provides an opportunity to the individual to demonstrate that the exclusion does not properly apply to him [or her]; and considers whether the individual’s additional information shows that the policy as applied is not job related and consistent with business necessity." The FCRA requires only that employers notify applicants and employees of the conviction record which would be disqualifying and provide them with an opportunity to correct any mistakes. The individualized assessment inquiry is a due process right that gives the applicant or employee an opportunity to provide potentially "mitigating" factors for the employer to consider, even assuming the conviction record is correct. This very small change can make employer decision-making more defensible before the EEOC. It also is consistent with general notions of fundamental fairness. It should be noted that the EEOC recognizes that there can be "targeted exclusions" such that an individualized assessment is not necessary. That is where there is tight nexus between the 3 Green factors. More detail on targeted exclusions can be found in guidance referenced above. Don't forget state and local laws, too. For example, Newark has become the most recent jurisdiction to “ban the box.” For now, however, let's keep it easy. Update your forms to comply with the FCRA and consider including an inquiry as part of your pre-adverse action notice consistent with the EEOC's preference for individualized assessments.
  • 2013 HR Regulation Update

    1. 1. 2013 HR Regulation Update Kathryn Carlson Product Director, HR Management
    2. 2. Questions? If you have questions during the presentation, please submit them using the “Questions” feature. Questions will be answered at the end of the webinar. Copyright © 2011 TK Carsites. All rights reserved. www.tkcarsites.com.
    3. 3. Department of Labor 100th Anniversary On March 4, 1913, President William Howard Taft signed a bill establishing the U.S. Department of Labor as a cabinet- level Department. This March, one hundred years later, the U.S. Department of Labor will celebrate their centennial anniversary.
    4. 4. EEOC Sets New Records in 2013 The Equal Employment Opportunity Commission (EEOC) had a record year for private sector discrimination claims — securing the recovery of $365.4 million in monetary benefits for fiscal year 2012 through its enforcement activities. This is the highest level of monetary relief ever obtained by the EEOC. According to the EEOC’s recently released FY 2012 Performance and Accountability Report, the agency secured both monetary and non-monetary benefits for more than 23,446 people through administrative enforcement activities — mediation, settlements, conciliations, and withdrawals with benefits.
    5. 5. New I-9 Coming Soon The Form I-9 is on the verge of the first substantive change in 25 years, but not available yet….
    6. 6. E-Verify In 2012, eight states enacted legislation related to E-Verify: Alabama, Georgia, Louisiana, Michigan, New Hampshire, Pennsylvania, South Carolina, and West Virginia. As of November 30, 2012, a total of 20 states require the use of E-Verify for at least some public and/or private employers
    7. 7. Employee Compensation • Standard business mileage reimbursement rate is now 56.5 cents • Minimum wage changes in 10 states and 4 cities • Department of Labor and IRS aggressively pursuing misclassification claims- could you defend each and every employee classification in the event of an audit?
    8. 8. Minimum Wage Increases Arizona – Minimum wage will increase from $7.65 to $7.80 per hour. Tipped employee minimum increases from $4.65 to $4.80. Colorado – Minimum wage will increase from $7.64 to $7.78 per hour. Tipped employee hourly minimum increases from $4.62 to $4.76 Florida – Minimum wage will increase from $7.67 to $7.79 per hour. Tipped employee minimum hourly wage increases from $4.65 to $4.77 an hour. Missouri – Standard minimum wage increases from $7.25 to $7.35 an hour. Minimum wage for tipped employees increases from $3.63 to $3.68. Montana – Standard minimum wage increases from $7.65 to $7.80 an hour. No tip credit is permitted by state law. Ohio – Minimum wage will increase from $7.70 to $7.85 per hour. Tipped employee minimum hourly wage increases from $3.85 to $3.93. Oregon - Minimum wage increases from $8.80 to $8.95 per hour. No tip credit is permitted by state law. Rhode Island – Minimum wage will increases from $7.40 to $7.75 per hour under special legislation enacted in 2012 unrelated to the CPI. Tipped employee hourly minimum of $2.89 per hour is unchanged. Vermont – Minimum wage will increases from $8.46 to $8.60 per hour. Tipped employee hourly minimum wage increases from $4.10 to $4.17. Washington – Minimum wage will increase from $9.04 to $9.19 per hour. No tip credit is permitted by state law.
    9. 9. Social Media Get a policy in place now! California, Delaware, Illinois, Maryland, Michigan and New Jersey already have laws in place that you may not required applicants and employees to provide access to their personal social media accounts…federal legislation under review…
    10. 10. Speaking of the NLRB National Labor Relations Board, or NLRB, issued a new rule in 2012 requiring all employers that are subject to its jurisdiction to provide written and electronic notice to employees of their rights under the National Labor Relations Act. A federal circuit court has temporarily suspended the new requirements until all outstanding issues have been resolved. There has been no deadline posted for when the new NLRB’s notice requirements will go into effect.
    11. 11. Update Labor Posters Now Federal Polygraph Protection Act &OSHA PLUS REQUIRED STATE CHANGES Fines for not having updated and visible posters can be as high at $17,000
    12. 12. The ADA Amendments Act (ADAAA) • Expanded definitions of a disability • Job duties clearly documented • Reasonable accommodations
    13. 13. Don’t Forget State Law California enacted over 35 new pieces of employment-related legislation and regulations but ALMOST every state had something new for employers this year. Trending • Prohibiting discrimination on the basis of unemployment and homelessness • Legal use of marijuana • Non –compete enforcement
    14. 14. Background Checking • Make sure all forms are updates • Review your policy on selection- individualized assessment is crucial for compliance; a) nature of job; (b) nature of conviction(s); and (c) time frame since conviction • Consider which background checks are necessary by position
    15. 15. Preventive Services New regulations issued as part the Affordable Care Act require coverage of certain preventive care services for women at no cost to members for new plan years that begin on or after Aug. 1, 2012 (or when your plan year begins)
    16. 16. New limits on Flexible Spending Accounts • The $2,500 limit is effective for plan years starting January 1, and not the taxpayer’s tax year. • Employers with fiscal year health care FSAs may keep higher reimbursement limits in effect through the end of their 2012-2013 plan year.
    17. 17. What’s next? • Plan/Prevent/Protect • Right to Know • I2P2 • More whistleblower protection • OSHA Recordkeeping changes • Equal Employment Opportunity
    18. 18. Don’t Forget State Law California enacted over 35 new pieces of employment-related legislation and regulations but ALMOST every state had something new for employers this year. Trending • Prohibiting discrimination on the basis of unemployment and homelessness • Legal use of marijuana • Non–compete enforcement
    19. 19. Questions and Answers
    20. 20. Contact Information 20– KPA CONFIDENTIAL – The recorded webinar and presentation slides will be emailed to you today including your local representative’s contact information. www.kpaonline.com kcarlson@kpaonline.com 866-228-6587
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