New Year, New Employment Law Roller Coaster? New Year, New Employment Law Roller Coaster?

New Year, New Employment Law Roller Coaster?

The 2016 roller coaster year for employment law has ended. We are now moving into a new year promising new opportunities, challenges and, likely (particularly with a new administration), a few additional hills on the roller coaster. As you return from your holiday celebrations, we thought it might be helpful to highlight some federal employment laws that became effective as of January 1 (or shortly before) or will become effective shortly. This is not intended to be a full description of each law, but should help you identify changes that may be needed. Welcome to 2017. Keep those safety belts fastened and hold on to any loose objects!

NEW I-9. Employers must begin using the new I-9 no later than January 22, 2017. The new form can be located here. Employers and employees will also see the addition of prompts to aid in the online completion of the I-9 (optional), a dedicated space for “additional information,” and enhanced instructions.
 
The NEW 2017 EEO-1. The good news is that, in 2017, employers required to file an EEO-1 will have additional time to do so. The 2017 EEO-1 is not due until March 2018. The bad news is that, if you have over 100 employees, you will face the challenge of reporting the number of employees you have in one of 12 pay bands (based on their 2017 W-2s), separated by their race and gender, along with the number of hours those employees worked in 2017. Why are we including this on the list? To provide you with the opportunity to start preparing now! Employers who do not have an integrated payroll and HRIS system may need to make some changes to more easily prepare the required reports.
 
Employment-Based Visa Programs. The new final rule for employment-based visas will become effective on January 17, 2017. The rule clarifies and formalizes many existing policies and informal rules. In addition, the final rule provides a one year renewable employment authorization for certain visa holders and their family members under limited circumstances, grace periods in some employment situations, and greater protections and job flexibility for pending green card applicants. It broadens an H-1B cap exemption for non-profits with affiliation agreements with institutions of higher education and offers a one year H-1B approval if a state or local professional license is pending due to a lack of a social security number or work authorization.  If you are employing or considering employing foreign nationals, you will want to consult with immigration counsel to determine if any of the changes affect you.
 
Online OSHA Reporting. New OSHA regulations effective on January 1, 2017 require certain employers to electronically submit injury and illness data; however, electronic reporting is not required immediately. A covered employer with a location that has 250 or more employees has until July 1, 2017 to electronically submit its 2016 Form 300A and until July 1, 2018 to submit all its 2017 forms electronically. A covered employer with a location with 20-249 employees in certain high-risk industries also needs to electronically submit information from their 2016 Form 300A by July 1, 2017, and their 2017 Form 300A by July 1, 2018. States with a state plan were required by the new regulation to adopt substantially identical regulations within 6 months of the publication of final regulation, which occurred on May 12, 2016.
 
OSHA Anti-Retaliation. The anti-retaliation provisions contained in the same regulations that will soon require online reporting went into effect on August 10, 2016. We mention them here because OSHA delayed enforcement of those provisions until December 1, 2016. Under this provision, employers cannot discourage workers from reporting an injury or illness. The final rule requires employers to inform employees of their right to report work-related injuries and illnesses free from retaliation. This obligation can be satisfied through posting the current OSHA poster. Further, an employer's procedures for reporting work-related injuries and illnesses must be reasonable and not deter or discourage employees from reporting.

OSHA Update to General Industry Walking-Working Surfaces and Fall Protection Standards.  OSHA published a final rule in November updating and clarifying the standards for fall protection and adding training and inspection requirements. More specifically, it updates standards related to slip, trip, and fall hazards (subpart D), and adds requirements for personal fall protection systems (subpart I).  This rule applies to a variety of industries, although it does not change the standards for the agriculture or construction industries. More information on the update, which is generally effective January 18, 2017, can be found here. The effective date in states with state plans will be approximately 60 days after the general effective date.
 
Federal Contractor Pay Transparency Requirements. Beginning on January 1, 2017, federal contractors who enter into a contract worth more than $500,000 must include specific information on the paystubs it provides to its employees, including the regular and overtime hours worked each workweek (not just the hours worked in the pay period). In addition, federal contractors must inform its exempt employees of their exempt status (prior to them performing work on a covered contract) and workers about their independent contractor status and provide other wage and benefit details.
 
Federal Contractor Paid Sick Leave. Beginning January 1, 2017, certain federal contractors will be required to provide employees with up to 56 hours of paid sick leave per year. This requirement applies to companies entering into new or modified federal contracts resulting from solicitations issued on or after January 1, 2017 if those contracts are construction contracts covered by the Davis-Bacon Act; service contracts covered by the McNamara-O’Hara Service Contract Act; concessions contracts; or contracts in connection with federal property or lands and related to offering services for federal employees, their dependents, or the general public. This requirement also applies to subcontractors of a covered contract.
 
Do not forget about the state laws that change or go into effect around January 1, 2017. For example, many states’ minimum wages increase as of January 1 (e.g., Ohio’s minimum wage increased to $8.15; Michigan’s minimum wage increased to $8.90). Similarly, several state and local governments enacted paid sick leave laws that go into effect on January 1 (e.g., Vermont; Spokane, Washington), with others becoming effective later in 2017 (e.g., Cook County, Illinois; Chicago). In addition, Ohio, for example, has also joined other states in enacting a law that prohibits employers from preventing employees who have a concealed carry permit from storing a gun in a locked vehicle on the employer’s premises; and Illinois now prohibits employers from requiring that certain lower wage workers sign non-compete agreements.

Many commentators anticipate additional state and local laws to counteract the anticipated roll-back by the new administration of several federal laws (including some mentioned above) and other pro-employer policy making. In addition, the United States Supreme Court may accept and decide some employment-related cases this year. No one knows how many hills and loops employers may face, but it will continue to be an interesting ride!

If you would like to know more about these or other employment laws, please contact Tami A. Earnhart at tami.earnhart@icemiller.com or (317) 236-2235, or any other member of our Labor, Employment and Immigration group.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.
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