2018 human resources updates
March 7, 2018
The latest news and updates for employers regarding human resource compliance for 2018.
Starting in 2018, OSHA began mandating covered employers with over 250 employees to submit an OSHA 300A summary log online and not just post the log in breakrooms and employee areas. All covered employers will be required to submit the 300A by 2019. The internal posting requirement has not changed. As of Feb. 1, employers needed to have posted in a conspicuous location their summary log for employees to view until April 30.
Large employers submitting the data for 2017 have until July 1, 2018. Online submission to OSHA will be due no later than March 2 in 2019 and every year thereafter. The online submission can be done in one of three formats: manually, by CSV, or through an interfacing software. If reporting your 300A seems to be a new concept, your requirements are determined by your NAICS code. Additionally, be sure to take into account your state laws. The following states have OSHA-approved plans, but they are not formatted yet for electronic reporting: California, Maryland, Minnesota, South Carolina, Utah, Washington and Wyoming.
Joint employers and independent contractors
In June of 2017, the Department of Labor (DOL) released guidance on classifying independent contractor employees and clarifying the joint employment relationship. This is not a tax reform issue, but has resurfaced amongst the tax reform news. Since last summer, many calls have been fielded regarding randomized unemployment audits by the DOL. The DOL has found businesses with misclassified independent contractors, resulting in states requesting payments for unemployment insurance and back-wages. Employers as small as five employees in rural areas have been audited. The changes will affect the informal administrative interpretations previously stated by DOL agents. The laws around joint employment and/or independent contractors have not changed.
The goal of the DOL is to classify independent contractors as employees as often as possible. The administrative interpretation and informal statement was that if the primary focus of an independent contractor relationship was to primarily run their own operation and perform work for multiple entities, they would be considered an independent contractor. This has been lifted, and all factors will now be considered evenly. There is an IRS test and a DOL test to determine the status, which focuses on the control you have over the employee/independent contractor.
The administrative interpretation for joint employers was that the DOL was going to attempt to find joint employment in most situations, causing overtime and benefit eligibility concerns for many companies such as franchises and staffing agencies. Employees who are shared amongst different companies and/or common entities should still apply the joint employer test on a case-by-case basis.
As of Jan. 5, 2018, employers who offer internships are subject to a new unpaid intern test, now known as a primary beneficiary test. This test is used to determine whether the primary beneficiary of the work conducted during the internships is the employer or the employee, based on whether the work qualifies as academically-focused. Previously, there were six all-or-nothing questions, and employers had to answer ‘no’ to each in order to qualify the intern as unpaid. Now, it is a balancing act of seven questions, and immediately, the employer and intern need to discuss compensation before moving forward with the hire. Examples of the questions to ask yourself of your internship experience are:
- Will the training they receive be similar to an educational environment or be able to be integrated into coursework to receive academic credit?
- Does the work being performed compliment or displace the work being done by regular employees?
- Does the internship follow a regulated timeline, or is it ongoing?
It’s unlikely the new test will drastically change the unpaid vs paid determination for most employer formal internship programs; however, be sure to fulfill the requirements of the test fully before classifying your internships as paid or unpaid to avoid an audit from the DOL.
Ban the Box
Ban the Box has been a concept in motion for quite some time in various states, but is now expanding to other states and can be found in local county and town ordinances. Ban the Box prohibits employers from requesting information on criminal history before the interview is conducted with an applicant. If you want to obtain that information, an application can be filled out after the interview has been conducted and then a conditional offer with a background check can be made. At that point, any adverse action must be related to the job description.
The EEOC oversees protected classes and focuses on compliance assistance and education over litigation. With the current administration, there are major changes being discussed. First is the treatment of sex as a protected class. As of 2015, sexual orientation and gender identity were added as protected classes. Because of recent case law, The Department of Justice (DOJ) now disagrees, but the EEOC has not changed their stance. It is recommended to do nothing at this time; try not to identify and discriminate within your operation. Your EEOC statement should align with federal and state law – some states have more protected classes beyond the federal laws, so be aware of your state’s interpretations.
Family and pregnancy accommodations
More and more states are adding family and pregnancy accommodation expansions. Each state law is different, but one example comes from California: Eligible employees can receive partial pay to take time off to bond with their new baby (employee must pay state disability insurance). New York is offering additional paid leave benefits through a program initiated in New York City which required paid sick leave. It has since been expanded throughout the entire state and was also expanded to include paid family leave. Look for more changes to come throughout the country related to family and pregnancy accommodations.
Private employers with 100 or more employees and public employers with 50 or more employees are required to submit the EEO-1 report, which is a report that captures data on your employees related to demographics and occupational categories/job classifications. The 2016-announced provision requiring employers to submit salary data with their other EEO-1 data has been placed on hold at this time. The date for submitting this report was previously Sept. 30 but has since been expanded to March 31. Therefore, for reporting 2017 data, employers have until March 31, 2018. Employers can have employees fill out a voluntary form to collect this data or do their best to compile it themselves. While employee participation is voluntary, covered employer participation is required. Any pay period between October and December of the previous year can be used to report.