2016 Already a Very Busy Year for New Regulations...Let's Review

Blog Post created by 1002028 on Aug 22, 2016

In case you missed it, we've already had 21 new regulatory requirements added to our already large bucket of compliance responsibilities.  Ranging from new posters all the way to sweeping new legislation, these requirements affect most employers.  As always CAI is here to help you navigate this murky maize.  Call any member of our Advice & Resolution team if you have any questions.  Without further ado, and in no particular order, lets countdown our 21 regulatory changes...through the first half of 2016 ...


OSHA Releases "Poster Patch".  North Carolina OSHA has revised the Discrimination language on its poster.  Rather than printing a whole new poster, the Bureau has issued a “patch” that can be placed over the existing language.  


Form I-9 Infractions Now Cost More: How to Reduce Your RisksThe federal government, through the Justice Department's recent Civil Monetary Penalties Inflation Adjustmentrevised its fines for mistakes made on the Form I-9.  These new fines became effective on August 1, 2016, but are retroactive to mistakes made from November 2015.


New Federal Minimum Wage and Polygraph Protection Act Posters.  The Minimum Wage poster did add language regarding the “Nursing Mother’s Amendment” to the Fair Labor Standards Act (FLSA) but removed the amount of penalties for FLSA violations. The only difference I could determine for the change in the Polygraph Protection Act poster is that the amount of penalties were removed from the poster as with the Minimum Wage poster—so much for the “Paperwork Reduction Act.”


FLSA Penalties for Minimum Wage, Overtime Violations Increased.  The FLSA provides for the assessment of civil money penalties against any person who repeatedly or willfully violates the law's minimum wage or overtime requirements [29 U.S.C. §216(e)(2)]. Under prior rules, the maximum penalty was $1,100 per violation. Effective August 1, 2016, the maximum penalty is increased to $1,894 per violation.


Governor Restores Right to Sue.  On July 18, Governor Pat McCrory signed into law House Bill 169, reversing a little-known portion of the controversial "HB2" law.  House Bill 169 does two things.  First, it restores the right to sue in state court for discrimination-based wrongful discharge .   In the 1980's and 1990's, our courts created that right in appellate decisions. No EEOC charge was required.  HB2 deleted that judge-made law.  House Bill 169 (Sec. 1-54(12)) has now specifically restored that right by statute:  "For wrongful discharge in violation of the public policy set forth in G.S. 143-422.2."


OSHA Announces Three Month Delay in Retaliation Rule.  This provision prohibits employers from having “blanket” post-incident drug and/or alcohol tests.  OSHA’s believes such testing discourages employees from reporting an injury or illness. The provision further states that post-incident tests should only be conducted if there is “reasonable suspicion” that the incident was caused by an employee’s impairment of drugs/alcohol.  These provisions originally were to become effective August 10, 2016, but OSHA has delayed their enforcement until November 1, 2016 in order to provide outreach to the regulated community.


OSHA Issues Final Rule on Electronic Submission of Injury/Illness Data.  The final rule requires businesses with 250 or more employees, per facility, to electronically report annually to the agency all of the company’s injury and illness logs for that year starting in 2017. Required reporting dates will be phased in over the next three years (Reports due July 1,2017; July 1,2018 and March 2,2019). Companies with 20-249 employees, per facility, in “designated industries” including manufacturing, will also have to report annually (list of “designated industries” is found in Appendix A to Subpart E of Part 1904 of the rule) .


DOL Persuader Rule ‘Defective To Its Core,’ Enjoined Nationwide.  Deeming the DOL’s controversial "persuader" rule "defective to its core," a federal district court in Texas enjoined the agency from implementing the provisions on a nationwide basis.


EEOC Issues Final Proposal to Add Compensation Data to EEO-1.  The EEOC has revised its proposal that would add the collection of summary pay data from employers with more than 100 employees to the existing Employer Information Report, commonly known as the EEO-1 Report. Among other things, the updated proposal would move the due date of the 2017 report from September 30, 2017 to March 31, 2018, to simplify employer reporting by allowing employers to use existing W-2 pay reports, which are calculated based on the calendar year.


DOL Drastically Hikes Penalties for Failures to Meet Notice, Updates Civil Penalties.  The Department of Labor (DOL) has issued an interim final rule to adjust the amounts of civil penalties assessed or enforced under its regulations. Those adjustment amounts pertain to regulations enforced by the DOL’s EBSA, Wage and Hour Division, OSHA, and other agencies. In conjunction with the interim final rules, the DOL has issued a fact sheet and a list of each agency’s penalty adjustments.


Sample Notice for Employers Offering Wellness Programs Now Available.  On June 16, the EEOC posted on its website a sample notice that will help employers who have wellness programs comply with their obligations under a recently issued Americans with Disabilities Act (ADA) rule. The rule itself says that employer wellness programs that ask employees about their medical conditions or that ask employees to take medical examinations (such as tests to detect high blood pressure, high cholesterol, or diabetes) must ensure that these programs are reasonably designed to promote health and prevent disease, that they are voluntary, and that employee medical information is kept confidential.


OFCCP Announces its Final Rule Updating Sex Discrimination Guidelines.  This Final Rule replaces the outdated sex discrimination guidelines from 1970 with new regulations that align with current law and address the realities of today’s workplaces.  The Final Rule deals with a variety of sex-based barriers to equal employment and fair pay, including compensation discrimination, sexual harassment, hostile work environments, a lack of workplace accommodations for pregnant workers, and gender identity and family caregiving discrimination. The effective date of the Final Rule is August 15, 2016.


DOL Issues Final Overtime Rules: An Overview.  The DOL issued the highly anticipated new overtime rules with an effective data of December 1, 2016, increasing the minimum salary threshold from the present $455 weekly/$23,660 annually to $913 weekly/$47,476 annually.


The Current Form I-9 Expired on March 31, 2016...What Do You Do?  The USCIS has proposed a list of technical changes to the current I-9 form and those changes are still under public comment.  Many of the proposed changes to Form I-9 are intended to help reduce technical errors and help customers complete the form on their computer after they have downloaded it from uscis.gov


New FMLA Notice Poster, Employer Guidebook Unveiled.  The Department of Labor will require employers to post a new FMLA notice in their workplaces, the agency announced on Monday, April 25.


ECNC Eyes On Legislation: Governor Pat McCrory Signs Bill Restricting LGBT Accommodations.  The North Carolina General Assembly, in a Special Session, approved legislation on March 23, 2016 that would prohibit local governments from passing nondiscrimination ordinances that opened bathrooms for individuals to use based upon their preferred gender identity. 


LEGISLATIVE ALERT: DOL Issues Mandatory Paid Sick Leave Rule.  The U.S. Department of Labor just published its Proposed Rule to implement Executive Order 13706, Establishing Paid Sick Leave for Federal Contractors. President Obama issued the Executive Order on Labor Day 2015, and the Department of Labor is required to issue final regulations by September 30, 2016. Individuals have 30 days, or until March 28, 2016, to submit comments on this proposal.


New Notice Provisions of the Defense of Trade Secrets Act of 2016. On May 11, 2016, President Obama signed into law the Defend Trade Secrets Act of 2016 (“DTSA”), which amends the Economic Espionage Act of 1996 to provide a federal cause of action to private companies for trade secret misappropriation.


LEGISLATIVE ALERT: EEOC Now Providing Employer Position Statements To Charging Parties.  Last week the U.S. Equal Employment Opportunity Commission (EEOC) announced a new nationwide procedure. The EEOC now will provide employer position statements and any non-confidential attachments to a charging party during an investigation upon request.  It then will permit the charging party to submit a response within 20 days. However, the EEOC will not afford employers the right to receive a copy of the charging party’s response.


EEOC Issues Proposed Guidance on Retaliation.  For the first time since 1998, the EEOC has issued enforcement guidance on what it considers workplace retaliation.  In a 76-page document entitled, “Enforcement Guidance on Retaliation and Related Issues,” the agency outlines the standards it plans to use to prove retaliation under civil rights and anti-discrimination laws.


Alert: OFCCP’s Pay Transparency Rule Takes Effect January 11, 2016.  In 2014, President Obama issued Executive Order 13665, promoting pay transparency and openness, making it possible for workers and job applicants to share information about their pay and compensation without fear of discrimination. 


Employee or Independent Contractor?.  One of the most significant moves by North Carolina government officials was Governor McCrory’s ExecutiveOrder No. 83 signed December 18, 2015 establishing the Employee Classification Section within the NCIC (North Carolina Industrial Commission).  The primary focus of this newly created section is to identify businesses that engage in activities of Employee Misclassification throughout the State of North Carolina.