2018 W-4 Form, W-4 Requirements Annually, and changes to NYC Legislation

In late February, the IRS released the updated 2018 Form W-4 and an updated tax withholding calculator.  The calculator provides an opportunity for employees to check their 2018 tax withholding after the passage of the Tax Cuts and Jobs Act, prior to filling out a new Form W-4.

2018 Form W-4

IRS Withholding Calculator

Do employee’s need to complete a new Form W-4 annually:

“Not necessarily. A W-4 form remains in effect until an employee submits a new one except when an employee claims to be exempt from income tax withholding.”

Employers should ensure they have new W-4s for:

  1. New employees. Employers should keep copies of the most current W-4s on hand.
  2. Employees who had a change in withholding events during the year.
  3. Employees claiming exemption from withholding. To continue to be exempt from withholding in the next year, employees must give employers a new W-4 claiming exempt status by Feb. 15 of that year. If an employee doesn’t give you a new Form W-4, employers must withhold tax based on the last valid Form W-4 for the employee that doesn’t claim exemption from withholding or, if one doesn’t exist, as if he or she is single with zero withholding allowances.”[i]

 

IRS Publication 15 provides guidelines for employers to remind employees before December 1 of each year to submit a new W-4 form if the withholding allowances changed or will be changing in the next year; due to added dependents, new tax legislation, etc.  As employers, we need to ensure all of our new hire paperwork is up-to-date.  This recent change should be noted as part of your organizations onboarding/new hire process.

 

NYC Evolving Legislative Changes:

NYC Mandates Temporary Schedule Changes 7/18/18

The new law provides employees with additional rights to demand changes to their schedule.  The law permits employees to demand two temporary schedule changes per calendar year for personal events.  The definition of personal events is broad, which leaves room for interpretation.  There are guidelines and certain exemptions to the new rule.  However, it is broad and will cover many organizations.

NYC Mandates “Cooperative Dialogue” 10/15/2018

This law codifies the organizations obligation to engage in a cooperative dialogue with any employee who may be entitled to reasonable accommodation.  “Specifically, you will need to engage in a good faith written or oral “cooperative dialogue” with the employee addressing:

  1. The employee’s accommodation needs.
  2. Potential accommodations that may address the needs, including alternatives to an employee’s requested accommodation.
  3. The difficulties that such potential accommodations may pose for your business.

After a final determination is made at the conclusion of the “cooperative dialogue,” you must provide the employee requesting the accommodation with a final written determination as to whether or not the accommodation is granted.”[v]

The  legislative changes in New York City will not impact employers in the Southern Tier, unless you have employees in the city.  However, as we have seen in the past, changes in NYC make their way to Albany, which result in statewide sweeping legislative changes, which can and do impact organizations in the Southern Tier.  Continue to watch for legal updates at the federal, state and local level.  If you are confused, seek guidance.  Legislative change is a continuous process and it can be complex.  As society evolves, so do our laws and regulations.  Asking questions, attending trainings, working with consultants and attorneys will provide you with a clearer picture of the evolving legislation.

Interested in learning more from me? Check out the options shared here: 

Upcoming Compliance Key Trainings

Elmira College: SHRM Certification Exam Prep Course- Coming in Spring 2019

Upcoming Corning Community College Training’s

[i] https://www.shrm.org/resourcesandtools/tools-and-samples/hr-qa/pages/cms_015244.aspx

[ii] https://www.shrm.org/resourcesandtools/hr-topics/compensation/pages/daylight-saving-time-wage-hour-problems.aspx

[iii] https://www.shrm.org/resourcesandtools/hr-topics/compensation/pages/daylight-saving-time-wage-hour-problems.aspx

[iv] Burr Consulting, LLC, “3 Daylight Savings Time Wage & Hour Considerations”, Burrconsultingllc.com, November 6, 2017

[v] https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/new-york-city-employers-reasonable-accommodations.aspx

-Matthew W. Burr

5 Considerations on Bereavement and Funeral Leave

Recently we recorded an Upstate HR Podcast episode discussing bereavement and funeral leave policies within organizations and concerns with not enough time or inconsistencies.  In the unfortunate event an employee needs to use leave for bereavement or funeral leave, organizations need to have policies and processes in place that ensure consistency throughout the workforce.  As family relationships have evolved, so to should our policies and procedures.

The 5 considerations on bereavement and funeral leave:

  1. Notification Process: If an employee needs to take time off for leave, who should they notify and what is the process for approving the time? Should the employee contact their supervisor or the human resources department?  Does the supervisor contact a manager or the human resources department?  Email, phone, text message, etc.? More than likely the employee will notify their supervisor, but we need to outline the processes in the policy.
  2. Extended Leave: Will we grant extended leave for an employee who needs additional time to cope with the loss or coordinate family affairs? Can the employee use PTO and/or vacation time?  Remember, there might be legal issues, funeral planning, estate meetings, etc. that an employee must deal with in relation to the loss.  Situations will vary.  If the death happens in the winter, will we allow time off in the spring for the burial? These are areas we don’t usually consider but need to recognize.  Most organizations are lenient with granting additional time off, but we should outline it in the policy.
  3. Paid Bereavement Leave: This will vary by organization. Organizations might grant unlimited leave to cope with a loss.  Other organizations have a set number of days based on the relationship in the family.  Below is a simple draft outline to consider as part of your leave policy:
    1. “Employees are allowed up to four consecutive days off from regularly scheduled duty with regular pay in the event of the death of the employee’s spouse, domestic partner, child, stepchild, parent, stepparent, father-in-law, mother, mother-in-law, son-in-law, daughter-in-law, brother, sister, stepbrother, stepsister, or an adult who stood in loco parentis to the employee during childhood.
    2. Employees are allowed one day off from regular scheduled duty with regular pay in the event of death of the employee’s brother-in-law, sister-in-law, aunt, uncle, grandparent, grandchild or spouse’s grandparent.
    3. Employees are allowed up to four hours of bereavement leave to attend the funeral of a fellow regular employee or retiree of the company, provided such absence from duty will not interfere with normal operations of the company.”[i]

Relationships in families vary, the policy needs to be flexible, but consistent.  Ensure you are providing the needed time off for the workforce.

  1. Providing Documentation: Organizations I have worked for in the past have required notice if an employee does ask for bereavement and funeral leave. We have requested obituary notices; newspaper or website and employees have returned with copies of the funeral documentation.  Unfortunately, I have seen employees abuse leave and lie about their need for bereavement leave.  If you do require documentation, ensure you are doing so consistently.
  2. Pay Policy: “Bereavement pay is calculated based on the base pay rate at the time of absence, and it will not include any special forms of compensation, such as incentives, commissions, bonuses, overtime or shift differentials.”[ii] Policies will vary; this sentence is short and covers the details.

The loss of a loved one is challenging for anyone.  The organizational policies are necessary, but showing compassion and understanding is the most important thing we can do for our workforce.  Remember to offer Employee Assistance (EAP) to any employee that is struggling with the loss, as these services provide additional support for our employees and their families.  Be consistent and flexible with the policies.  Ensure that the policy is reviewed and updated.  As always, remember to seek guidance if you need assistance reviewing and updating all policies.

[i] https://www.shrm.org/resourcesandtools/tools-and-samples/policies/pages/cms_006397.aspx

[ii] https://www.shrm.org/resourcesandtools/tools-and-samples/policies/pages/cms_006397.aspx

-Matthew W. Burr

7 Factor Test for Internship Programs Under FLSA Determinative Changes in 2018

In January of 2018, the U.S. Department of Labor (DOL) adopted a new primary beneficiary test for determining internships of for-profit employers.  Defining internships under the federal Fair Labor Standards Act (FLSA).  Under the old and new primary beneficiary test, interns and students might not be defined as employees.  Non-employee cases, organizations would not have to compensate these students and interns for work performed, during their time at the internship or for projects they complete.  The new test as defined by the courts, is a flexible test, with no single, determining factor.  Each case will be reviewed on its unique basis and duties.

The seven factors of primary beneficiary test for unpaid interns and students:

  1. “The extent to which the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee—and vice versa.
  2. The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by educational institutions.
  3. The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.
  4. The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar.
  5. The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.
  6. The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.
  7. The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.”[i]

Fact Sheet #71: Internship Programs Under The Fair Labor Standards Act

Old Six Factor Test

SHRM Recommendations for Unpaid Internship:

  1. “We recommend employers get something in writing, preferably with the school as well, that lays out everybody’s expectations,” Orr said. “You’d want to consider having something in writing that says there will be no expectation of compensation, that the internship will be limited to a period of beneficial learning and that there is no promise of a job at the end. If you get acknowledgment of those three things in writing and you follow through on them, you will be in good shape.
  2. If they are in a formal education program, find out if they can get credit for the internship,” Olson agreed. “If the person will get academic credit for the internship, that is very supportive of the internship being to the primary benefit of the intern.”[ii]
  3. Knowledge of local and state legislation is necessary for any HR professional or business owner. Many states follow the old six factor test or have another test, similar to the old six factor test.  This means organizations can fall under both federal and state jurisdiction on FLSA legislation and pay vs. unpaid internship obligations.  “In those cases, employers must typically follow whichever law is most generous to workers.”[iii]

NY State Wage Requirements for Interns in For-Profit Businesses

Wage Requirements for Interns in Not-For-Profit Businesses

My research shows Pennsylvania using the old 6-factor test

These changes can impact your organization.  Many colleges and universities offer credit for internships, work with the career services office prior to hiring an intern and fully the process.  Ensure a contract is in place, agreed upon and expectations are clearly communicated from both the school and workplace.  If your organization does hire an intern, provide feedback throughout to both the intern and academic institution.  In my experience, there is a feedback evaluation form to complete at the end of the internship, as part of the credit approval process.  Students can also be required to write a paper or keep a journal of experiences.  If you are confused on the new requirements, seek guidance.  Ensure that your organization is compliant under all laws.  If you can afford to pay an intern, great.  We all see the amounts of debt students are saddled with upon completion graduation and non-completion.  However, experience paid or unpaid will add value to both academic and professional opportunities for any student.

[i] https://www.dol.gov/whd/regs/compliance/whdfs71.htm

[ii] https://www.shrm.org/resourcesandtools/hr-topics/talent-acquisition/pages/unpaid-internships-new-dol-intern-test.aspx

[iii] https://www.shrm.org/resourcesandtools/hr-topics/talent-acquisition/pages/unpaid-internships-new-dol-intern-test.aspx

3 Thoughts on What Should and Should Not Be Included in the Personnel Files

In a March 2015 article written by the Society of Human Resource Management, the article provided guidance on separating employee files for relevancy and confidentiality.  Employee records can be separated into three types of files.  “A general personnel file, a confidential employee file and a common file.”[i]  Organizations should always consider and be aware of sensitive information (date of birth, marital status, Social Security numbers, HIPAA protected information, criminal history, court orders, financial history, etc.), that can be included in any of the three separated files.  Other considerations should include relevancy to the supervisor or management of the workforce.  “Is it related to the employee’s performance, knowledge skills, abilities or behavior?”[ii]  This should also be a determining factor, when separating information and organizing new files.  Does the supervisor or manager need access to all the information?

The Basic Personnel File (supervisor and manager relevant):

  • Recruiting information, resumes, job application and academic transcripts
  • Job descriptions (signed)
  • Job offer, promotion, rates of pay, compensation information, training records
  • Handbook and policy acknowledgements (including revised policies)
  • Recognition
  • Disciplinary information, warnings, coaching and counseling
  • Performance evaluations
  • Termination records, exit interview, closure of the file (goes without writing)

The Confidential Personnel File:

  • EEO records
  • Reference and background checks
  • Drug test results
  • Medical and insurance records
  • Child support and garnishments
  • Legal documents
  • Workers compensation and short-term disability claims
  • Investigation notes
  • Form I-9*

The Common File:

  • Form I-9 Audits
  • Form I-9’s* (my recommendation is to put active employee’s I-9’s in a binder that is accessible, confidential and locked in a cabinet, for auditing and reviews).

Regardless of the filing process(s) your organization has implemented, the information contained in any of the employee files needs to be kept confidential and locked in secure filing cabinets.  During trainings with supervisors and managers, my statement is simple, treat your employee’s information as it is your own confidential information.  The last thing we want is open personnel files on desks, doctor’s notes attached to calendars and unlocked filing cabinets.  When an employee exits the organization, I consolidate all files and information into one folder and store in a terminated employee file section, with the exit interview (if applicable).  “Maintaining records in separate files as discussed above allows managers, employees and outside auditors to see the information they need to make decisions, yet does not allow inappropriate access.”[iii]  Filing and organizing paperwork is not always fun, but it is necessary to ensure legality and confidentiality.  If you are confused on employee files and appropriate storage, seek guidance.  Electronic files and legal requirements related to electronic filing can vary by state, a thorough understanding of these laws is necessary prior to implementing an electronic filing system.  We should be proactive and take all precautions, related to employee records and record retention.

[iv]

[i] https://www.shrm.org/resourcesandtools/tools-and-samples/hr-qa/pages/includedinpersonnelfile.aspx

[ii] https://www.shrm.org/resourcesandtools/tools-and-samples/hr-qa/pages/includedinpersonnelfile.aspx

[iii] https://www.shrm.org/resourcesandtools/tools-and-samples/hr-qa/pages/includedinpersonnelfile.aspx

[iv] http://cyquesthr.com/access-personnel-files-laws-50-states/

9 Statistics on 2017 EEOC Claims

On January 25, 2018 the U.S. Equal Employment Opportunity Commission (EEOC) announced that a decreased number (from 2016) of 84,254 workplace discrimination charges were filed with the federal agency during the fiscal year of 2017.  These charges, lawsuits and settlements, secured $398 million for victims in private sector, state and local government workplaces, costing organizations and tax payers a significant amount of money.  “Retaliation, which topped the list, occurs when employers treat some people less favorably than others…that includes job applicants, employees, and former employees…the 41,097 retaliation charges the EEOC received made up nearly 49 percent of the complaints.”[i]

9 statistics on 2017 EEOC claims:

  1. “Race: 28,528 charges (33.9 percent).
  2. Disability: 26,838 charges (31.9 percent).
  3. Sex: 25,605 charges (30.4 percent).
  4. Age: 18,376 charges (21.8 percent).
  5. National origin: 8,299 charges (9.8 percent).
  6. Religion: 3,436 charges (4.1 percent).
  7. Color: 3,240 charges (3.8 percent).
  8. Equal Pay Act: 996 charges (1.2 percent).
  9. Genetic information: 206 charges (.2 percent).

*The percentages add up to more than 100 because some charges allege multiple bases.”[ii]

The EEOC also received 6,696 sexual harassment charges and obtained $46.3 million in monetary relief for the victims of these claims.  There are two types of sexual harassment claims included; quid pro quo (this for that) and creating a hostile work environment (a variety of issues in the workplace).

Overall, the number of EEOC filings decreased, as compared to 2016 data.  However, retaliation claims are on the rise and have been on the rise for many years.  As leaders, we need to understand that an employee filing a charge with the EEOC or the Department of Human Rights (NYS legislation), is as easy as going to a website and working through the steps, as outlined on the respected site.  The EEOC, in the past, has tweeted steps to submit a claim, through Twitter.  These claims are real, do not assume “this can never happen to our organization.”  It can, and it does happen to organizations of any size, in any location.  A culture of respect and zero-tolerance for discrimination and retaliation, while following up on allegations, will set the tone for reducing the likelihood of claims against our organizations.

The Department of Human Rights has not released statistics for 2017 claims.  Employees can file claims with the EEOC and/or Department of Human Rights, if there are issues in the workplace. Use the link below to learn more about what to do in the case of receiving an EEOC charge of discrimination, and as always, if you are uncertain about your compliance or HR practices, seek the assistance of a consultant and/or legal team for guidance.

What should I do if I receive an EEOC charge of discrimination?

[i] https://www.shrm.org/ResourcesAndTools/hr-topics/behavioral-competencies/global-and-cultural-effectiveness/Pages/EEOC-Retaliation-Makes-Up-Almost-Half-of-Discrimination-Charges.aspx

[ii] https://www.eeoc.gov/eeoc/newsroom/release/1-25-18.cfm

 

4 New Hire Forms Needed in New York State

As we have now entered the second month in 2018, some of our organizations will be hiring new employees for continued operation and some for the upcoming seasonal summer months.  Hiring new employees into the workforce is great, we have a tremendous opportunity to set the new hire up for success with a great onboarding process and introduction to the organization.  With new hires, comes legal paperwork.  State and federal forms get updated and posted on government websites for all of us to use.  As leaders and business owners, we need to ensure our forms are updated and legal.

Below are the new hire forms needed in New York State:

  1. Form I-9, Eligibility to work in the United States: This form is required in every state for new hires and needs to be reviewed for expired ID’s; driver’s license, passport, etc. Organizations must verify that each new employee is legally eligible to work in the United States.  Ensure the form is filled out correctly and signed by the right person in the organization.  This form changed in late 2017.
  2. Form W-4, wage Withholding Allowance Certificate: This form is necessary for federal withholdings. All employees should complete and sign a Form W-4 prior to starting work.  Currently, the 2017 form is still being used.  Watch for any updates or changes in 2018, related to the new tax legislation.
  3. Form IT-2104, Employer Allowance Certificate (NYS): This is the New York State withholding form required to be completed in full prior to an employee starts working for the organization. Ensure you are using the 2018 version of the form.
  4. Wage Forms Required by New York Labor Laws: Organizations are required to provide wage notification forms to all employees. The forms vary by hourly, salary, salaried nonexempt, etc.  The link above provides a definition on which form to use based on the classification of the employee.  Reminder, these forms were updated in 2017 as well.

These are the legally required forms that employees are required to complete prior to starting work (I-9 the first three working days).  Other forms will vary by organization; direct deposit, safety rules and regulations, handbooks and policies, IT and login information, safety and security, vehicle registration, cellphone policy, tour of the facility, labor and employment posters, payroll deductions, payroll processing, etc.  Remember, state forms will vary.  Pennsylvania uses a different withholding form from that used in New York.  Consultants should be providing a signed an updated (revised 11.2017) federal Form W-9.

Develop a checklist for your organization to ensure we consistently cover information for all new hires.  The onboarding process is an important part of the employment relationship and many people will decide during this process how long they will potentially stay with an organization.  As leaders, we need to ensure all employees feel welcome and engaged on day 1, while covering the legalities of the employment relationship.  If you need assistance developing a new hire orientation checklist, seek guidance, the last thing we want is to place a new hire in a conference room and have the individual read policies and sign paperwork alone all day.  I have been part of process like this and it does not work!

4 EEOC Guidelines on Workplace Harassment Prevention and Cadillac Healthcare Tax Updates

The U.S. Equal Employment Opportunity Commission recently released the “Promising Practices for Preventing Harassment.”  This is a guidance document for employers, that contains harassment prevention recommendations for all employers in four categories.  As leaders we have a responsibility to take all harassment claims serious and need to ensure a proactive approach to investigations, communication and accountability as it related to workplace harassment claims, sexual harassment, retaliation, bullying, workplace violence concerns, etc.

The Four Categories:

  1. Leadership and Accountability: “The cornerstone of a successful harassment prevention strategy is the consistent and demonstrated commitment of senior leaders to create and maintain a culture in which harassment is not tolerated.”[i]
  2. Comprehensive and Effective Harassment Policy: “A comprehensive, clear harassment policy that is regularly communicated to all employees is an essential element of an effective harassment prevention strategy.”[ii]
  3. Effective and Accessible Harassment Complaint System: “An effective harassment complaint system welcomes questions, concerns, and complaints; encourages employees to report potentially problematic conduct early; treats alleged victims, complainants, witnesses, alleged harassers, and others with respect; operates promptly, thoroughly, and impartially; and imposes appropriate consequences for harassment or related misconduct, such as retaliation.”[iii]
  4. Effective Harassment Training: “Leadership, accountability, and strong harassment policies and complaint systems are essential components of a successful harassment prevention strategy, but only if employees are aware of them. Regular, interactive, comprehensive training of all employees may help ensure that the workforce understands organizational rules, policies, procedures, and expectations, as well as the consequences of misconduct.”[iv]

For additional information on the Promising Practices for Preventing Harassment guidance (each of the four have additional recommendations on the website) for your organization and workforce, the link is below:

Promising Practices for Preventing Harassment

Cadillac Tax Updates

Congress passed a law on January 22 to delay the affordable Car Act’s 40 percent excise tax on high-value healthcare plan for two years.  The Cadillac tax was set to take effect in 2020, under the new law, the tax will be delayed until 2022.

What to expect in 2022:

  • $10,200 for individual coverage ($11,850 for qualified retirees and those in high-risk professions).
  • $27,500 for family coverage ($30,950 for qualified retirees and those in high-risk professions).[v]

Under the new administration we could see significant changes to the Affordable Care Act and healthcare in general.  Continue to monitor for updates and changes, that can and will impact your workforce.  If you are confused seek guidance, healthcare law continues to evolve in complexity at the federal and state levels.

[i] https://www.eeoc.gov/eeoc/publications/promising-practices.cfm

[ii] https://www.eeoc.gov/eeoc/publications/promising-practices.cfm

[iii] https://www.eeoc.gov/eeoc/publications/promising-practices.cfm

[iv] https://www.eeoc.gov/eeoc/publications/promising-practices.cfm

[v] https://www.shrm.org/resourcesandtools/hr-topics/benefits/pages/congress-delays-cadillac-tax-until-2022.aspx

 

4 Need to Knows on Inclement Weather and W-2 Scams Updates

The weather, throughout the country during this time of year can be extreme, causing delays, and at times we will need to shut down operations because of inclement and unpredictable weather.  As most of us know, a few weeks ago the extreme cold was a perfect example of weather causing operations to close.  As leaders, we need ensure safety of our workforce and to fully understand the laws and regulations related to pay for both exempt and nonexempt workers, if the organization closes due to inclement weather.  

Below are 4 need to knows on inclement weather and pay:

  1. Exempt Employees: Under the Fair Labor Standards Act, exempt employees almost always must be paid during inclement weather and/or a natural disaster.  The Department of Labor has a list of instances in which an employer can dock an exempt employees pay, inclement weather and/or a natural disaster does not fall into pay docking.  The exempt employee must be paid for the entire day.  If the organization plans to close for an entire week due to weather or a disaster, at this time, an organization would not have to pay an exempt employee.
  2. Nonexempt Employees: Under the FLSA (federal law), employers are only required to pay hourly, nonexempt employees hours worked.  Certain states have report-in or call-in pay laws that can require employers to pay nonexempt employees if they show up to work as scheduled.
  3. New York State Nonexempt Laws: The New York Labor Law “Call-In Pay” provisions state, “that an employee who, by request or permission, reports to work on any day shall be paid at least the lesser of: a) four hours at the basic minimum wage rate; or (b) the number of hours in the employee’s “regularly scheduled shift” at the basic minimum hourly rate.”[i]  In inclement weather or a natural disaster, call-in pay will be due regardless of whether or not an employee was called in or showed up for work during their regularly scheduled shift and is informed  at that time, the organization is closed.

NYS DOL Minimum Wage Order Language

  1. Federal versus State Laws: In this situation, state law will supersede the federal laws related to inclement weather and nonexempt employee pay.  State laws on this subject will vary, this is just an example from New York State.  Be aware of legal requirements during this season of unpredictable weather.  If a nonexempt employee is working from home (emails, phone calls, etc.) during the inclement weather, this would also constitute payment for hours worked.  

Communication is critical in situations involving inclement weather or natural disasters.  We need to be proactive with our communication, while ensuring our employees know about closures prior to showing up for work.  Communication should be the normal communication process in the organization (phone, email, text, etc.)

W-2 Scams:

I wrote about this topic last year as well.  Cyber thieves continue to file fake tax returns and claim refunds.  Recently the thieves have posed as company executives and have obtained protected information from organizations about the employees.

Below are links to helpful resources regarding these scams:

Form W-2/SSN Data Theft: Information for Businesses and Payroll Service Providers

How to Handle W-2 Phishing Scams

Report Phishing and Online Scams

[i] http://www.hodgsonruss.com/newsroom-publications-inclement-weather.html

 

 

2018 OSHA 300-A Posting Timeline

As many of us know; all employers are required to keep OSHA Form 300 (Injury and Illness Log) records throughout the year and must post Form 300A.  This annual summary of job-related illness and injuries, must be posted in the workplace by February 1, 2018.  The OSHA 300-A from should be posted in common areas, comparable to locations of labor and employment posters, workers compensation certification and paid family leave certification (break rooms, meeting rooms, kitchens, etc.).  The summary must include the total number of job-related injuries and illnesses that occurred in 2017.

Areas to remember:

  1. Posting Period: The posting period starts on February 1, 2018 and ends on April 30, 2018.
  2. What is a Form 300A: The form reports a business’s total number of fatalities, missed workdays, job transfers or restrictions, and injuries and illnesses as recorded on the OSHA Form 300.  The information posted should also include the number of employees and the hours they worked for the year.  No recordable illnesses or injuries?    However, an organization must still post the form, with zeroes on the appropriate lines.
  3. Helpful Links:

OSHA Injury and Illness Recordkeeping and Reporting Requirements

Injury & Illness Recordkeeping Forms

OSHA Recordkeeping Advisor

Partially Exempt Industries List

“The Trump administration continues to look for ways to lessen the regulatory burden on employers. As a result, the Occupational Safety and Health Administration’s (OSHA) electronic recordkeeping regulation continues to be whittled down. OSHA’s latest Regulatory Agenda sets out new changes to the already beleaguered rule. Specifically, OSHA intends to propose to amend the Electronic Recordkeeping rule to eliminate the requirement that establishments with 250 or more employees submit OSHA 300 Logs and 301 forms. Instead, two types of establishments would continue to submit 300A summary forms: (1) establishments of 250 or more employees; and (2) establishments with between 20 and 249 employees in the high-hazard industries listed in Appendix A to the regulation. Employers with establishments meeting these criteria electronically submitted OSHA 300A summaries with 2016 data on or before December 31, 2017 and will submit their calendar year 2017 summaries by July 1, 2018. Beginning in 2019, and every year thereafter, covered establishments must submit the information by March 2.”[i]

As we see with many of the HR laws and regulations, OSHA is continuing to evolve and change under the new administration.  Ensure that you are monitoring for recent or upcoming changes and posting as required under the federal and state law.  Public sector rules will vary as well.  If you have questions, seek guidance.  Safety rules and regulations can be complex, just as HR laws and regulations are.

[i] https://ogletree.com/shared-content/content/blog/2018/january/osha-anticipates-more-changes-to-the-electronic-recordkeeping-rule

 

 

2018 Employee Handbook Changes, IRS Mileage Rate and Labor Poster Updates

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:

  1. 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.
  2. 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.
  3. 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.
  4. 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

  1. 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]

Notice 2018-03

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

[i] https://www.shrm.org/ResourcesAndTools/legal-and-compliance/employment-law/Pages/5-Employee-Handbook-Issues-to-Watch-in-2018.aspx

[ii] https://www.shrm.org/ResourcesAndTools/hr-topics/benefits/Pages/2018-standard-mileage-rate.aspx

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