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2013 Employment Law UpdatesJanuary 17, 2013

Presented by:

Sheila Kepler, SPHRPresident

This program, ORG-PROGRAM-138195, has been approved for 1.0 (Credit Hours: General) recertification credit hours toward PHR, SPHR and GPHR recertification through the Human Resource Certification Institute (HRCI).

EEOC Top Targets

• Background checks in hiring• Leave policies for pregnant workers• Litigation of national and regional class-action cases• LGBT discriminations (lesbian, gay, bisexual and transgender)

• Strict leave policies and the ADA (Americans with Disabilities Act)

Federal Updates

On Jan. 1, North Carolina, Tennessee, and Pennsylvania joined Arizona, Utah, Louisiana, Mississippi, Alabama, Georgia, and South Carolina in requiring all or most employers to verify employees' authorization to work in the U.S. using the federal E-Verify system.

A nationwide E-Verify requirement could be passed this year, but at the very least, employers should expect more states to increase E-Verify enforcement and the U.S. Department of Justice to launch more investigations of E-Verify-related discrimination. Additionally, the U.S. Department of Homeland Security remains committed to worksite enforcement in 2013.

Fines levied against employers for I-9 violations hit a record high in the 2012 fiscal year, and more of the same is expected for the current fiscal year, making it important for employers to have sound I-9 processes and ensure personnel receive up-to-date I-9 training.

I-9 Enforcement and E-Verify Compliance Monitoring Will Increase in 2013

*Updated I9 form is still pending – current form expired in August 2012

Federal Updates

Staggering 2012 statistics for ICE workplace audits and fines

Number of Audits

• 2007 – 250 • 2008 – 503• 2009 - 1,444• 2010 - 2,000• 2011 - 2,496

By the end of 2012, Immigration and Customs Enforcement’s (ICE) efforts in I-9 audits broke previous records:  it inspected more than 3,000 businesses for I-9 employment eligibility verification compliance and issued nearly $13 million in fines

ICE has offices in all 50 states and employs more than 20,000 people

Federal Updates

• IRS Mileage - change from 55.5 to 56.5 cents

• Cap on Flex Spending Accounts (FSA) reduced to $2,500

• Commuter pretax benefit increase from $240 - $245 (second change)

• 2012 FUTA tax from .9% to 1.2% will 2013 = 1.5%?

• 2013 FICA SS payroll tax from 4.2% to 6.2%

Federal Updates

Updated Federal Credit Reporting Act (FCRA) Notices

Effective January 1 – must use the updated “FCRA Summary of Rights” and other notice requirements for consumer reporting agencies.

Note: New notices are updated on the Manager portal

Federal Updates

The Affordable Care Act - Employer Mandate

• Report the value of the group health plans on W2’s

• Reduced Flex Spending Accounts - $2,500

• Increases the Medicare tax for employees over $200,000

• March 2013 - Announcement of Exchanges

• 2014 – Mandate for employers over 50 employees (threshold expected to change by state) – offer coverage or pay a penalty of $2,000 per employee

Webinar on Monday, January 28, 2012 at 11am PST

Learn how “pay or play” requirements will affect you and your business.

State Minimum Wage Updates

California Updates

California Updates

Breastfeeding Protected Under the FEHA - AB2386

• Prohibited form of sex discrimination

• Existing law requires breaks and a private room (not a restroom)

New Pregnancy Regulations

Updated written notices that must be posted and new definition of four months now includes various methods of calculation – making it more complicated

California Updates

Commissions plans - AB1396, AB2675

• Written agreement – signed by employee (includes legal language)

• Definition of commission – any compensation paid that is related to the companies service or products

• Must include method by which the commissions are paid and calculated

• Must include when commission earned, performance expectations, at will language, reference to employee handbook, meal and rest break requirements, have a beginning and end date (review and renew contracts)

• Employer must have employee sign

• Employees must receive a signed copy

California Updates

Commuter Benefits - SB1339

• San Francisco – more than 20 employees anywhere must comply

• Must offer to San Francisco employees a pre-tax deduction of up to $125 each month to pay for covered commute expenses

Remember – Sick time and mandatory health insurance requirements as well

California Updates

Contracts with Warehouse Contractors - AB1855

Prohibits employers from entering into agreements that do not comply with applicable laws or regulations. Must include funds that are sufficient to cover costs such as minimum wage, overtime, workers’ comp and other laws.

• Janitorial

• Farm labor

• Security or

• Warehouse contractors

California Updates

Domestic Partners Health Insurance coverage - SB757

The new law makes an amendment to the current law by stating that the plan or policy is not able to discriminate based on same sex domestic partners or different sex domestic partners as well as same sex spouses or different sex spouses. Insurance companies are required to offer the same coverage to domestic partners, same sex or not, as they would to the spouse of the insured whether the same sex or not. If they willfully violate the amended provisions they are committing a crime.

California Updates

Human Trafficking - SB1193

Requires a notice to be posted in:

• Hospital emergency rooms

• Truck stops

• Airports

• Holders of liquor license

Attorney General’s office is developing a model notice to be posted by April 1, 2013

California Updates

Itemized Wage Statements - AB1744 and SB1255

July 1, 2013 - Temporary staffing agencies – itemized wage statement with assignment information

All employers - Nine categories must be on paystubs – employee can recover $50 for the initial pay period and $100 each subsequent, up to $4,000 plus costs and attorney’s fees

Gross wages, total hours, piece rate units, all deductions, net wages, pay period, employee name and last four digits of ss#, name and address of the employer, hourly rates corresponding with hours worked

California Updates

Overtime for Salaried workers - AB2103

Fixed salary to a non-exempt employee (not tracking hours worked)Cannot waive overtime worked

California Updates

Penalties for Failing to Pay Labor Commissioner Awards - SB1144

Increases fine for employers who fail to pay wages due employees. (timely, final wages, PTO balances)

Employers who violate the statue are guilty of a misdemeanor

For awards over $1,000 the minimum fine will be $10,000

California Updates

Personnel Files - AB2674

Amends current law and updates:

• Must allow employee or former employee to inspect file within 30 days

• Must provide a copy of the complete file

• Must provide copies of pay stubs within 21 days (online access will comply)

• Must keep for 3 years after termination

Note: Days means calendar days

California Updates

Religious Accommodations - AB1964

Religious dress practice –

• Wearing or carrying clothing

• Head or other coverings

• Jewelry, artifacts

• And any other item that is part of the observance

Latest news: Vegan can pursue a religious discrimination claim

California Updates

Retirement Savings Plans - SB1234

Employers with 5 or more employees must offer a payroll deposit retirement savings arrangement

Will become effective soon

California Updates

Social Media Privacy - AB1844

Prohibits employers from requesting user names or passwords

(includes personal email and text messages)

Keep in mind the NLRB

Does not include:

• Investigations of misconduct or violation of law

• Employer issued electronic devices

California Updates

AB1775 Wage Garnishment - Effective July 1, 2013 - increases the amount of wages exempt from an “earnings withholding order”

AB1845 the EDD can deny reimbursement to an employer for any overpayments made to their reserve account if the employer fails to respond adequately – effective after October 22, 2013

California Updates

Workers' Compensation - SB863

Revisions to how the insurers and health care providers operate and benefits offered to injured workers

Business Tax Credits

Federal Empowerment Zone Tax Credit The Empowerment Zone Tax Credit is equal to 20% of the first $15,000 in wages in any year if the employee lives and provides services in an Empowerment Zone. All industries are able to participate in this program. Empowerment Zones and Enterprise Communities also offer many other increased deductions, depreciations and capital gains.  

Federal Renewal Community Tax Credit The Renewal Community Tax Credit is equal to 15% of the first $10,000 in wages in any year if the employee lives and provides services in a Renewal Community. All industries are able to participate in this program. The Department of Housing and Urban Development designated 40 Urban and Rural Renewal Communities effective January 1, 2002. Renewal Communities also offer many other increased deductions, depreciations and capital gains incentives.  

Work Opportunity Tax Credit (WOTC) The Work Opportunity Tax Credit is a federal hiring incentive that is available nationally and provides businesses with an incentive to hire individuals from targeted groups that have a particularly high unemployment rate or other special employment needs. WOTC helps targeted workers move from economic dependency into self-sufficiency as they earn a steady income and become contributing taxpayers, while participating employers are able to reduce their income tax liability. The WOTC provides a federal tax credit of up to $2,400, $4,800 and/or $9,000 per qualified employee. 

More information under the manager portal

Labor Law Poster Updates

KimstaffHR clients: Posters will be arriving next week

OSHA Log Posting - February 1 through April 30 - if over 20 employees

• Cal/OSHA notice• Discrimination and Harassment notice• EDD Notice to Employees• Employee Polygraph Protection Act notice• New Pregnancy Leave Notices A and B

Ongoing Updates

Thank you for attending

For more information contact your dedicated HR Specialist or email: info@kimstaffhr.com

Questions?

This program, ORG-PROGRAM-138195, has been approved for 1.0 (Credit Hours: General) recertification credit hours toward PHR, SPHR and GPHR recertification through the Human Resource Certification Institute (HRCI).