A new year brings new changes to our organizations, employment relationships, laws, regulations, handbooks and policies. As more states continue to pass state specific legislation, we need to ensure that our handbooks and labor posters are updated accordingly.
Below are 5 areas to watch related to employee handbooks:
- Workplace Conduct and Social Media: Under the new administration, we could see more flexibility in social media policies (pro-employer). Social media is a concern in many organizations, ensure that your policy is legal, up-to-date and not overreaching.
- Arbitration Agreements: There are multiple lawsuits in federal courts related to employer arbitration agreements. These decisions can impact our organizations. I have not implemented arbitration agreements. However, they are growing in popularity.
- Sexual Harassment/Harassment Policies: This speaks for itself. California and Maine have modified their current laws related to sexual harassment, we could see significant changes in New York State, as stated by the Governor recently. Ensure that there is a zero-tolerance and retaliation policies in place, and all employees are trained on current policies and procedures. Organizations need to be proactive and not reactive to issues.
- Parental Leave: Paid Family Leave was effective January 1, 2018. Ensure that you have updated policies and handbook language to reflect this significant legislative change. The state has a website full of information to utilize as we move forward in 2018.
PFL Resource Page
Model Language for Employer Material
- Disability and Other Accommodations: Review language related to the ADA, FMLA and medical marijuana. Medical marijuana law(s) continues to evolve. “In 2017, several courts ruled that registered medical marijuana users who were fired or passed over for jobs because of their medicinal use could bring claims under state disability laws.”[i]
As laws continue to evolve, now is the time to review handbooks, policies and procedures. If you are unclear on a path-forward or what to look for, seek guidance. Do not assume a Google search will provide legal and accurate information, draft handbook language or valid training material.
2018 IRS Mileage Rate:
“Beginning on Jan. 1, 2018, the standard mileage rates for the use of a car (also a van, pickup or panel truck) will be:
- 5 cents for every mile of business travel driven, up 1 cent from the rate for 2017.
- 18 cents per mile driven for medical or moving purposes, up 1 cent from the rate for 2017.
- 14 cents per mile driven in service of charitable organizations, unchanged from 2017.”[ii]
Mandatory State Labor Law Poster Changes Effective January 2018:
- Alaska— Minimum Wage, effective Jan. 1, 2018
- Arizona— Minimum Wage, effective Jan. 1, 2018
- California— Transgender Rights, effective Jan. 1, 2018, Discrimination, Jan. 1, 2018
- Colorado— Minimum Wage, effective Jan. 1, 2018
- Florida — Minimum Wage, effective Jan. 1, 2018
- Hawaii — Wage and Hour Laws, effective July 10, 2017, OSHA, effective Jan. 1, 2018
- Maine — Minimum Wage, effective Jan. 1, 2018
- Minnesota–– Minimum Wage, effective Jan. 1, 2018
- Missouri— Minimum Wage, effective Jan. 1, 2018
- Montana— Minimum Wage, effective Jan. 1, 2018
- Nevada — Rules to Observed by Employers, effective July 1, 2017
- New Jersey— Minimum Wage, effective Jan. 1, 2018
- New York— Minimum Wage, effective Dec. 31, 2017
- North Carolina — Wage and Hour Notice to Employees, effective Dec. 31, 2017
- Ohio— Minimum Wage, effective Jan. 1, 2018
- Rhode Island — Minimum Wage, effective Jan. 1, 2018
- South Dakota — Minimum Wage, effective Jan. 1, 2018
- Vermont— Reasonable Accommodations for Pregnancy, effective Jan. 1, 2018
- Washington— Minimum Wage, effective Jan. 1, 2018, Your Rights as a Worker, Jan. 1,2018
As always-if you feel uncertain or want an extra set of eyes, finding a consultant or strategic legal partner is a good idea. For more information about these subjects, click on the links here or reach out to schedule a meeting and consultation.
-Matthew W. Burr
With changing legislation surrounding Form I-9 compliance, organizations need to be proactive, to ensure accurate record keeping on all required documentation. This includes auditing I-9 records every few years, to ensure all information is up-to-date and forms are correctly filled out. The U.S. Department of Homeland Security’s Immigration and Customers Enforcement (ICE) has the legal right to review your organizations I-9 records at will.
Below are 4 considerations for an I-9 compliance audit:
- Fill Out All Sections Accurately: The basic information on the I-9 from should be filled out completely and accurately. This includes; dates and names on all forms. “A construction company was recently penalized $228,000 for multiple compliance violations…submitting I-9 forms for dozens of employees with incomplete Sections 1 and 2.”[i] Take the time to review instructions and ensure that the employee has filled out the form properly. If not, correct the issues.
- Employee Roster Information Updates: Ensure you have an accurate headcount list of current and past employees, prior to beginning an audit. Remember, employees hired after November 6, 1986 must have an I-9 on file. If an employee is missing an I-9, the organization must obtain one as soon as possible.
- I-9 Documentation: “Documentation for former employees is only needed for one year after separation or three years from date of hire (whichever is later), so no need to clutter your files with unnecessary information.”[ii] Ensure that you are obtaining the required documentation from List A or List B and List C.
- Necessary Signatures: This is consistent with the requirements mentioned previously. All forms need to be signed by an employer representative and the new hire employee. This includes remote workers. The process isn’t complete until the forms are verified for accuracy and contain the proper information with signatures.
The SHRM article quoted throughout, contains other examples of companies that failed to complete accurately and sign the I-9 forms and the fines for these violations. The form contains directions for both the employer and employee. Work through the steps and ensure that the forms are accurate and up-to-date, to protect the organization from any violations and fines. If you have questions about mistakes or conducting an audit, seek guidance and be open to suggestions. Proactive audits necessary to ensure compliance, as the laws and forms continue to evolve. Remember, using the new I-9 form is required now and has been in effect as of September 18, 2017. The link to the new form and other instructional information is here: Updated Form I-9
Some employment applications ask about criminal convictions for prospective employees, either written or on the online application. Ban the box legislation changes, have made it illegal for employers to ask prospective employees and job applicants certain questions related to criminal convictions (in certain cities and states), until the interview stage or until a conditional offer of employment is made. The rules within the jurisdiction vary, based on location and legislative requirements. Yes, that means more complexity related to posting positions, recruiting and interviewing in certain cities and states. “The trend of states and municipalities enacting these so-called “ban the box” laws is part of a movement to prevent employers from treating all criminal convictions as a sort of “Scarlet Letter” that has the effect of discriminating against minority applicants.”[i] For the purposes of this article, we will focus on New York and Pennsylvania laws.
Below are 6 ban the box laws in NY and PA:
- NY-Buffalo: The law impacts private employers with 15 or more employees/contractors doing business with the city. Banning criminal history questions on the initial job applications.
- NY-New York City: The law impacts all employers with four or more employees. No criminal inquiries prior to the conditional job offer.
- NY-Rochester: The law impacts all employers with four or more employees and contractors doing business with the city. No criminal history inquiries until after the initial job interview or conditional job offer.
- NY-Syracuse: The law impacts city contractors. No criminal history inquiries and background checks until after the conditional job offer.
- PA-Philadelphia: The law impacts all employers with at least one employee in the city. No criminal background checks prior to the conditional job offer.
- PA-Pittsburgh: The law impacts contractors and vendors doing business with the city. Banning criminal history inquires until the applicant is deemed otherwise qualified for a position.
The laws vary in the way they are written and the legal requirements for the employer in each location. The laws vary throughout the country, based on state or city requirements. Some states have no ban the box requirements, currently. As leaders, we need to understand the laws and know that a recruitment plan, job application and interview/offer process, that works in New York, might not work in California or Minnesota. Laws continue to evolve at both the federal, state and municipal level. These laws impact the questions we can ask and the information we can request before, during and after the job interview. If you have questions regarding Ban the Box legislation, seek for guidance. Changes occur quickly, and impact businesses of all sizes.
[i] SHRM Legal and Compliance Tools/Resources
I first want to highlight the background of the overtime rule, from 2016 through current day. In November 2016, a district court in Texas blocked the overtime rule put forth under the Obama administration. It was scheduled to raise the salary threshold from $23,600 to $47,476 on December 1, 2016. Moving to current day, under the Trump administration, the decision was appealed, to better understand and determine the Department of Labor’s authority in setting salary thresholds. The 2016 ruling is currently moving (slowly) through the litigation process. However, the Department of Labor has suggested new and more complex alternatives to the salary threshold and overtime rule(s).
Below 4 on the DOL’s Overtime Suggestions:
- Request for Information: On July 26, 2017, the Department of Labor issued a request for information (RFI) during the overtime rule making process. “The use of an RFI in the rule making process is optional but the DOL chose this option rather than immediately publishing a proposed rule in light of pending litigation over the 2016 overtime rule.”[i] The RFI was published in the Federal Register and comments will be public record.
- Cost-of-Living-Based Salary Test: This is comparable to what we have seen with minimum wage levels and exempt/non-exempt weekly rates, throughout New York City and New York State. The suggested rates would vary based location and cost of living, a varying scale of exempt and non-exempt rates. Living in Washington D.C. costs more than living in the rural south. There will be significant challenges with this option, employees that travel, working in more than one location in different areas of the country.
- Litigation and Other Threshold Proposals: Continue to watch for any rulings in the current court proceedings on the Department of Labor’s authority in setting salary thresholds. Also, we could see multiple proposals throughout this process on overtime and salary thresholds, under the new administration.
- New York State Regulations: Regardless of changes made at the federal level, we will see changes in the minimum wage rate and exempt/non-exempt rates on January 1, 2018. Exempt and non-exempt for the specific executive and administrative classifications. Both increases/changes will vary by region, throughout the state.
The laws, regulations and salary thresholds will continue to evolve, through the litigation process by the Department of Labor, request for information proposal and rule making process under the new administration. Ensure that your organization is compliant with state and federal laws regarding exempt, non-exempt and salaried non-exempt statuses. There are duties tests to assist employers in determining overtime eligibility, published by the federal government. If you are confused, seek guidance. Certain positions can be confusing and determinations are complex.
– Matthew Burr, HR Consultant
It seems like we just had a new Form I-9 issued in November 2016, effective in January 2017. We did. The U.S. Citizenship and Immigration Services (USCIS) published an updated version of the I-9 Form on July 17, 2017. This new form will be mandatory to verify employment eligibility on September 18, 2017. The revised form issued on November 14, 2016 can be used through September 17, 2017. The current storage and retention rules remain the same. “The new version brings very subtle changes to the form’s instructions and list of acceptable documents, which were created with the theoretical goal of making the form easier to navigate,” said Davis Bae, managing partner of the Seattle office of law firm Fisher Phillips. “Besides changing the wording on the form in almost imperceptible ways, the new version renumbers all List C documents except the Social Security card, and streamlines the certification process for certain foreign nationals.”[i]
Download the new here: Form I-9: July 17, 2017
Below are six, common I-9 Questions:
- Returning Summer Employees: “If you rehire an employee within three years of the date that a previous Form I-9 was completed, you may either complete a new Form I-9 for your employee or complete Section 3 of the previously completed Form I-9, as long as the original I-9 shows current work authorization.”[ii]
- Re-verify a Female Employee Upon Getting Married: There is no requirement to re-verify a female employee or any employee who has a name change, currently. “One other interesting point about transgender employees: The “Other Names Used field in the form has been changed to Other Last Names Used” to avoid potential discrimination issues and provide increased privacy for transgender individuals and others who have changed their first names.”[iii]
- Scan I-9s and Store Electronically: Due to the complexity of the rules and regulations regarding electronic scanning of I-9 Forms, the Society of Human Resource Management (SHRM) recommends using a qualified vendor to store I-9 Forms electronically.
- End of Retention Period: Shred I-9 Forms at the end of the required retention period. However, verify the retention period requirements prior to shredding any documents.
- Completion Date of I-9 Form: The form can be completed as soon as you offer an individual the job and the job is accepted. It is best practice to have the offer and acceptance in writing. Remind employees to bring the required documentation on the first day of work, if you do not require completion prior to the first day.
- Expired Driver’s License with a Receipt for Extension: This is not legal. “You may accept a receipt for a driver’s license that was requested to replace a license that was lost, stolen or damaged.”[iv]
We have seen multiple revisions to the I-9 Form over the past 10-months. Remember to use the correct form on the dates required. Switching the form now will save you time in September 2017. Review the latest identification requirements and know what is acceptable when you are filling out the form. Remember to fill out the form completely and ensure that the employee fills in their sections completely, signs and dates. If you are confused seek guidance, I-9 Forms have grown in complexity and length since 1986.
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– Matthew Burr, HR Consultant
Job descriptions are an important part of the employment relationship. Once we complete, modify or update the job description, we might assume that the work is done. However; essential functions, duties, technology, responsibilities, etc. can and change throughout the employment relationship. As leaders, we need to review job descriptions and ensure these documents are up-to-date with accurate responsibilities and essential functions. The link at the end of the article provides additional information on legal cases in which a job description protected the employer and one that harmed the employer.
Below are 5 thoughts on job descriptions:
- Current and Accurate: Keep all job descriptions current and accurate. These descriptions can be reviewed during the annual review process or throughout the year. Ask the employee for input on duties and responsibilities. They should know the job!
- Essential Job Functions: Ensure that the essential job functions section is accurate and up-to-date. Physical skills should be included in the essential functions or in another area of the job description. Is prolonged walking or standing an essential function? What about lifting material? How many pounds and how often? This should also be included in the job description. Do not forget time spent at a desk. If the job requires 6-8 hours on the computer, this should be included. This section can be lengthy or detailed.
- FMLA Leave: “If the job description is out of date when an employee seeks FMLA leave, create a current and accurate list of essential job functions, indicate in the designation notice that the employee will be required to submit a fitness for duty certification addressing his or her ability to perform his or her specific job, and provide the list of essential job functions with the notice.”[i]
- Approval and Signature: My recommendation is to have more than one individual review and approve the job description prior to finalizing the draft. There should be a signoff/approval process to ensure we have not missed anything. Once the description is approved, the employee should review and signoff on the job description.
- Internet Search: It is easy to search the internet and find thousands of job descriptions. However, this does not mean the information is legal, up-to-date or fits the job within your organization. O’net and SHRM are great resources when drafting or updating job descriptions. These can be used as templates and resources, to help lay the foundation of a job description that fits the needs of your organization.
As jobs and responsibilities change, so too should job descriptions. As leaders, we should ask for input when modifying and updating job descriptions, to ensure accuracy and employee engagement. If you are unsure on where to begin or how to draft a job description, ask for assistance. Do not assume an internet search will provide legal and accurate information. The case below is an example of when an inaccurate job description harmed an employer and references a case in which a job description helped an employer.
SHRM Saved – Or Sunk – By the Job Description?
– Matthew Burr, HR Consultant
We recently completed an HR training in Dallas, Texas, for Non-HR MBA students. The training focused on the key areas that HR can and does impact in any organization. Throughout the training we discussed the importance of aligning the HR department with the needs of the employees and organization; not an easy task, but necessary to move forward and progress. I know the group of 100 MBA students have a new respect for the many hats that HR professionals continue to wear.
Below are 6 thoughts for non-HR professionals:
- Organizational Impact: HR can and does have an impact on the direction and strategy of the organization. The HR function is as important as any other function within the organization. Know the impact HR can have on the organizations mission, vision, culture, goals and objectives.
- Legal Arena: Labor and employment laws evolve and they change rapidly. Interpreting and implementing legal change, continues to grow in complexity. Federal, state and local laws can have an impact on the organization. Ask questions and never assume you have the answer, legislation is one piece. Remember the case law and amendments.
- Onboarding: Onboarding begins when an applicant applies for a job. This process is critical to recruit and retain top talent. Managers, coworkers and direct reports have ownership in ensuring the onboarding processes are organized and aligned with the organizations mission, vision and values. If you were a new hire, what would you expect from recruiting to hire? Put yourself in their shoes and reverse engineer a great experience.
- Training and Development: Training and development are extremely important pieces of the employment experiences. Have we asked what training is important to the organization? To the employee? What can we afford? Is there grant money available? What about leadership development training? Look for local and national opportunities for industry and profession specific training and development.
- Performance Feedback: Yes, employees want feedback! In fact, continuous coaching and feedback, more than once per year will probably be an effective model. Goals should be aligned with organizations goals and department goals. These goals should also include training and development opportunities; degree, certification, leadership development, computer system training, financial, stretch assignments, etc.
- Conflict Resolution and Communication: The final thought can be the most difficult. Resolving conflict and ensuring effective communication. Never easy, but necessary. As leader’s we will be in situations that require us to have that “difficult” conversation. Practicing these conversations is never enjoyable, at times necessary to ensure we are prepared. Communication is essential. Know your organization and which communication tools are effective for your workforce.
These six thoughts are just a few of the important pieces of HR that do and will impact your organization. As leader’s we need to recognize how these pieces effect our mission, vision, values, culture and employees. Turnover is costly. Recruiting is costly. Training and retraining is costly. Understanding these six areas’ will take work, but being an effective leader takes work. Ask for help if you need it, people spend their careers specializing in each of the six areas. Strategic HR can shape the mission statement, vision, culture, employee engagement and values of any of our organizations.
– Matthew Burr, HR Consultant
The Society of Human Resources Management recently published an article, “Top 10 Mistakes Employers Make in Job Applications.” I decided to add three more to the list, based on my experience. Most employers nationwide, are still using a job application, handwritten or during the online application process. As leaders, we need to be aware of the potential issues of not updating employment applications or using a generic employment application. As laws continue to evolve, so too should our employment application processes.
Below are the 13 common job application mistakes:
- “Including any disability-related or medical questions
- Not including an at-will disclaimer
- Not including a nondiscrimination statement
- Requesting graduation dates in the education section
- Asking about arrests and convictions, without appropriate disclaimers
- Putting a background check acknowledgement on the employment application (I see this too often)
- Not including language telling applicants how to request a reasonable accommodation
- Asking for a photograph
- Asking about marital or familial status
- Asking about citizenship”[i]
- Not including a signature section to verify that the applicant is acknowledging the information is true and accurate. Remember a resume or CV is not the same thing as an employment application.
- Including a section for a social security number, on either the paper application or by not allowing a person to continue through the applicant tracking system. Do we really need a social security number? “An employment application should request only information directly related to an applicant’s ability to perform a specific job… general practice, employers should request SSN information only when absolutely necessary.”[ii] If you do not need it, don’t ask for it.
- Using generic employment applications. “Well I found this on the internet, it should be okay.” Ensure that someone reviews the application or helps you develop a new one prior to using it during the hiring process. Just because it is found on the internet does not make it legal and valid.
Employment applications are an important piece to the recruitment and retention process for all organizations. Asking irrelevant questions on the application can be a potential liability. As the laws continue to evolve, we need to ensure our employment application, both paper and electronic are legally compliant and efficient for job applicants. If you have questions about your application, ask for assistance. Do not assume that the first Google search will provide a legal job application. Remember laws vary; federally, state-wide and city specific. These laws will impact what can and cannot be asked on the employment application.
– Matthew Burr, HR Consultant
“Short Name, Proven Results”