Employment Compliance Alerts

Earlier this year, we sent a Compliance Alert regarding a new harassment prevention law that was in effect for CA. In this Alert, we informed you about new anti-harassment training requirements that were to be completed by January 1, 2020. To view the previous Alert, see below.  This requirement has been delayed. Here is the new schedule (information provided by CALChamber):

Some California employers now have until January 1, 2021 to train employees on sexual harassment prevention, which is a one-year extension of the original January 1, 2020 deadline.

The deadline was not extended for employers of seasonal and temporary employees, who are hired to work for less than six months. Starting January 1, 2020, these employees must be trained within 30 calendar days after their hire date or within 100 hours worked, whichever occurs first.

Employer Training Deadlines

Under the new law, SB 778, all employees — supervisory and nonsupervisory — must be trained by January 1, 2021.

Below is a quick breakdown for employers who’ve trained employees this year or in previous years:

“CalSavers” was designed to give Californians an easy and simple way to save for retirement. California launched a pilot program back in November 2018 that will begin the process of offering an estimated 7 million workers in CA the opportunity to contribute to an Individual Retirement Account (IRA) and get on track for their future.

California employers are required to facilitate “CalSavers” if they don’t offer an employer-sponsored retirement plan and have five (5) or more employees.

Employers don’t have to wait to begin helping their employees save for their future. Employers of all sizes can register for the program beginning July 2019, but no later than the following deadlines:

• An employer employing 100 or more employees: June 2020
• An employer employing 50 to 99 employees: June 2021
• An employer employing 5 to 49 employees: June 2022

You will be notified by “CalSavers” when it’s time for your business to register. You’ll need three pieces of information before you begin:

• Federal Employer Identification or Tax Identification Number (EIN/TIN)
• CA Employer Payroll Tax Account Number
• “CalSavers” access code from your notification.

For more information on “CalSavers,” please see visit https://www.calsavers.com/

In the fall of 2018, the California State Governor signed Senate Bill 1343, which added a new training requirement for small employers.  

New Mandatory Training

As of January 1, 2019, all employers with five (5) or more employees must provide training to all employees. All current employees must be trained by January 1, 2020.

The training must be two (2) hours of classroom or other effective interactive training and education regarding sexual harassment to all supervisory employees. For non-supervisory employees, the training must be one (1) hour of classroom or other effective interactive training and education regarding sexual harassment.

The training may be conducted with other employees, as a group, or individually, and broken up into shorter time segments, as long as the two-hour requirement for supervisory employees and one-hour requirement for non-supervisory employees is reached.

Once this initial training is completed for each employee, supervisors and non-supervisory employees must receive training once every two (2) years.

New employees: This training must occur within six (6) months of the employee’s assumption of a position.

Temporary or seasonal employees: must be trained within 30 calendar days after the hire date or within 100 hours worked if the employee will work for less than six months.

Developing the Training

The Department of Fair Employment and Housing (DFEH) is required to develop and make available on its website the one-hour and two-hour training courses for supervisory and non-supervisory employees. Employers may develop their own training platforms, or hire a third-party to provide the training, as long as the training provided complies with the law’s requirements.

Additional Information

Click here for the FAQs on the DFEH website.

Click here to read the text of the bill.

For a “Toolkit” on these new requirements that has been created by the DFEH, please click here and here.

According to the Employment Development Department (EDD), “when you hire an employee, you must have them complete and sign both withholding certificates: the federal Form W-4 and the state DE 4. The W-4 is used for federal income tax and the DE 4 is used for California Personal Income Tax (PIT).”

“New hires and existing employees making changes to their withholdings must submit both the Form W-4 and the Employee’s Withholding Allowance Certificate (DE 4) (PDF). If an employee does not give you a properly completed state DE 4, you must withhold state income taxes from the employee’s wages as if the employee were single and claiming zero withholding allowances.”

“Employees who submitted a Form W-4 before 2020 are not required to submit a new form if they have no changes to their withholding allowances. Continue to calculate withholding based on previously submitted forms.”

On June 18, 2019, the Connecticut State Governor signed Public Act 19-16, publicly known as the “Time’s Up Bill.” This new law has the following requirements:  

Mandatory Anti-Harassment Training

As of October 1, 2019, all employers with three (3) or more employees must provide two (2) hours of anti-harassment training to all employees. All employees hired before October 1, 2019 must be trained by October 1, 2020. All employees hired on or after October 1, 2019 must be trained within six (6) months of their date of hire.

As of October 1, 2019, all employers with less than three (3) employees must provide two (2) hours of anti-harassment training to all supervisory employees. All supervisory employees hired before October 1, 2019 must be trained by October 1, 2020. All supervisory employees hired on or after October 1, 2019 must be trained within six (6) months of their date of hire and/or assumption of a supervisory position.

Once this initial training is completed for each employee, employers must provide “periodic supplemental training that updates all supervisory and nonsupervisory employees on the content of such training and education not less than every ten years.”

The Connecticut Commission on Human Rights and Opportunities (CHRO) has been tasked with creating resources that employers can use to satisfy the training requirement at no cost. According to the CHRO website, “The CHRO is working on this project and aims to have the video completed and available by October 1, 2019 when the training requirements become effective for employers.” Here is a link to their website to check on the status of the training materials: https://www.ct.gov/chro/cwp/view.asp?a=5019&Q=609536&chroNav=|

Posting / Notice Requirement

Employers are required to post in a prominent and accessible location information concerning the illegality of sexual harassment and remedies available to victims of sexual harassment. In addition, within three (3) months after an employee’s start date, employers must provide a copy of the information concerning the illegality of sexual harassment and remedies available to victims of sexual harassment. 

Special requirements exist if this will be done electronically. Please read the bill (link provided below) for more details. 

According to the CHRO website, “The CHRO is currently in the process of developing and updating these materials and will make them available as they are completed.” Here is a link to their website to check on the status of the posting materials: https://www.ct.gov/chro/cwp/view.asp?a=5019&Q=609536&chroNav=|

Expanded Protections for Employees

If an employer takes immediate corrective action in response to an employee’s claim of sexual harassment, such corrective action shall not modify the conditions of employment of the employee making the claim of sexual harassment unless such employee agrees, in writing, to any modification in the conditions of employment. “Corrective action” taken by an employer, includes, but is not limited to, employee relocation, assigning an employee to a different work schedule or other substantive changes to an employee’s terms and conditions of employment.

Statute of Limitations and Potential Damages Increased

Employees who wish to file a complaint with the CHRO for any discriminatory practice will now have 300 days to do so (up from 180).  

The new law greatly expands the potential damages that can be assessed by the CHRO if it concludes that a discriminatory employment practice has occurred. 

Additional Information

Click here to read the text of the bill.

Effective January 1, 2019, most Delaware employers have new requirements for managing sexual harassment prevention. This new law, as described below, is applicable to all employers who have 4 or more employees.

Part 1: Notice Requirement

Employers with 4 or more employees must give notice to employees of their right to be free from sexual harassment at work. The Delaware Department of Labor has published a notice for this purpose. Employers must distribute the notice, either electronically or physically, to new employees at the commencement of employment. All current employees must be given notice by July 1, 2019. Click here for the notice.

Part 2: Mandatory Training for Non-Supervisors

This part of the law is applicable to all employers with 50 or more employees.

By January 1, 2020, all current employees, excluding applicants and employees who are employed for less than six (6) continuous months, must be provided with interactive training and education on the prevention of sexual harassment. Training topics must cover the following:

• The illegality of sexual harassment
• The definition of sexual harassment using examples
• The legal remedies and complaint process available to the employee
• Directions on how to contact the Delaware Department of Labor
• The legal prohibition against retaliation

Once all current employees have been trained, all newly hired employees should be trained in the same manner within one (1) year of the commencement of their employment.

Part 3: Mandatory Training for Supervisors

For employers with 50 or more employees who also employ Supervisors, additional training requirements exist.

By January 1, 2020, all current Supervisors must receive training that covers all of the above plus the following:

• The specific responsibilities of a supervisor regarding the prevention and correction of sexual harassment

Once all current Supervisors have been trained, all newly hired Supervisors should be trained in the same manner within one (1) year of the commencement of their employment in a supervisory role.

Training for Supervisors must be repeated every two (2) years thereafter.

Additional Information:

According to the bill, the definition of an employee is: “an individual employed by an employer and includes state employees, unpaid interns, applicants, joint employees and apprentices.”

To read the full text of the bill, please click here.

In August of this year, the Illinois State Governor signed Senate Bill 75. This new law has the following requirements:

Mandatory Anti-Harassment Training

The Illinois Department of Human Rights (IDHR) shall produce a model sexual harassment prevention training program aimed at the prevention of sexual harassment in the workplace. The model program shall be made available to employers and to the public online at no cost. 

Beginning January 1, 2020, every employer shall use the model sexual harassment prevention training program created by the IDHR or establish its own sexual harassment prevention training program that equals or exceeds the minimum standards established in the new law. 

The training must, at minimum, include: (1) an explanation of sexual harassment; (2) examples of conduct that constitutes unlawful sexual harassment; (3) a summary of relevant state and federal laws prohibiting sexual harassment and the remedies for violations of these laws; and (4) a summary of the employer’s responsibility to prevent, investigate, and correct sexual harassment.

The sexual harassment prevention training shall be provided at least once a year to all employees. 

Visit the IDHR website (https://www2.illinois.gov/dhr/Pages/default.aspx) to check on the status of the training program development.

Annual Reporting of Adverse Judgments or Administrative Rulings

Beginning July 1, 2020, and by each July 1 thereafter, each employer that had an adverse judgment or administrative ruling against it in the preceding calendar year shall disclose information about the adverse judgment or administrative ruling annually to the Department of Human Rights. The required information includes, but is not limited to: (1) the total number of adverse judgments or administrative rulings during the preceding year; (2) whether any equitable relief was ordered against the employer.

Additional Information

Here’s a link to the full text of the bill: http://www.ilga.gov/legislation/101/SB/PDF/10100SB0075lv.pdf

The PFML mandate creates an insurance program that will be administered by the MA Department of Family and Medical Leave. This program will be funded through payroll contributions made by employers and covered individuals.

Starting January 1, 2021, the PFML will require employers to provide eligible employees with up to 26 weeks of paid, job-protected family and medical leaves of absence.

Here are the key components to this new law:

Financial Contributions

As of July 1, 2019, all employers will be required to start making financial contributions to support the program. The initial rate is 0.63% of each employee’s wages on the first $132,900 of an individual’s annual gross earnings. The gross earnings threshold may be adjusted annually.

For more information about these contributions, particularly as it relates to contracted workers, please click here to visit a published toolkit for employers.

Private Plan Exemption

Employers already providing paid leave benefits that are as generous as the benefits provided by the PFML law can apply for an annual exemption through the MassTaxConnect portal beginning April 29, 2019.

Mandatory Quarterly Reporting

Starting October 2019, employers are required to begin providing quarterly reports through MassTaxConnect. Employers are expected to provide information that includes the name, social security number, and wages paid or other earnings for each employee and contracted service provider.

Notification to Workers

All employees and contractors must be notified of their PFML benefits. Employers may accomplish this by doing all of the following:

• Displaying the mandatory workplace poster at each of their MA locations. Click here for the mandatory poster.
• On or before May 31, 2019, provide written notice to their current employees and contractors of PFML benefits, contribution rates, and other provisions.
• Provide written notice to new hires within 30-days of their first day of employment.
• Provide written notice to contractors upon entering into a contract for services.

Click here for an employee notice provided by the Department of Family and Medical Leave (DFML).

Click here for a contractor notice provided by the Department of Family and Medical Leave (DFML).

Actions to Take Now

1) Set up a MassTaxConnect account.

2) Determine whether or not you can apply for exemption and immediately do so when the portal is available on April 29, 2019.

3) Begin taking appropriate deductions from payroll by July 1, 2019.

4) Provide all appropriate notices as required.

5) Update policy manuals to include leave available under PFML before leave can be taken beginning January 2021.

NOTE: For all current clients in 2020, we will ensure all MA policy manuals are updated appropriately.

Wage theft occurs when employers do not pay their workers what is owed them for the work they have performed. It’s estimated up to 40,000 Minnesota workers pursue complaints of wage theft each year because they have been denied a fair day’s pay for a fair day’s work.

Legislation was passed in May 2019 that will invest $3.1 million in new funding over the next two years for the enforcement of the state’s wage and hour laws by the Department of Labor and Industry (DLI). The new Minnesota Wage Theft law will create additional protections for workers, including adding criminal penalties for employers who commit wage theft.

Click here to read the full text of the bill.

Click here to read a summary of the bill.

Click here to read a document detailing specific employer guidance on complying with the new law.

Here is a link to a DLI FAQ page regarding the new bill: https://www.dli.mn.gov/business/employment-practices/wage-theft-qa

Notice Requirement

All employers must provide each employee with a written notice at the start of their employment and keep a signed copy of the notice on file. The notice must contain required information about an employee’s employment status and terms of employment. The notice must include a statement, in multiple languages, that informs employees they may request the notice be provided to them in another language. DLI has provided some translations of this statement on the employee notice example. Employers may use the example notice or create their own.

Click here for the sample notice [Note: this form is now included on the New HR Director program in the “New Hire” section of forms.] 

Please visit the following link for this form in other languages: https://www.dli.mn.gov/business/employment-practices/employee-notice

Earnings Statements (Paystub) Requirement 

The new law requires the following additional information be included on the earnings statements provided to employees each pay period: 

• Name of the employee. 
• Total hours worked by the employee in the pay period. 
• Employee’s rate or rates of pay and basis thereof, including whether the employee is paid by the hour, shift, day, week, salary, piece, commission or other method (New). 
• Allowances claimed for permitted meals and lodging (New). 
• Total amount of gross pay earned by employee in the pay period. 
• Net amount of pay after all deductions are made. 
• List of deductions made from the employee’s pay. 
• Date pay period ended. 
• Employer’s legal and operating name. 
• Employer’s telephone contact (New). 
• Physical address of employer’s main office or principal place of business and a mailing address, if different (New).

Recordkeeping Requirement

Under existing law, employers are required to keep various records for three years. It is in the employer’s interest to maintain complete and accurate records that can be used to demonstrate an employer’s compliance with state wage and hour laws. The new law requires the following additional records be kept by an employer: 

• Each employee’s name, address and occupation. 
• Each employee’s rate of pay and the amount paid each pay period. 
• Each employee’s hours worked each day and each workweek, including, for all employees paid at piece rate, the number of pieces completed at each piece rate (New). 
• A list of personnel policies with brief descriptions of each policy that were provided to each employee, including the date the policies were given to the employee (New). 
• A copy of the new notice that is required to be provided to and signed by each employee at the start of employment and a copy of any written changes to the notice that were provided to each employee (New). 
• For each employer subject to Minn. Stat. §§ 177.41 to 177.44 (Minnesota Prevailing Wage Act), and while performing work on public works projects funded in whole or in part with state funds, the employer shall furnish under oath signed by an owner or officer of an employer to the contracting authority and the project owner every two weeks, a certified payroll report with respect to the wages and benefits paid each employee during the preceding weeks specifying for each employee: name; identifying number; prevailing wage master job classification; hours worked each day; total hours; rate of pay; gross amount earned; each deduction for taxes; total deductions; net pay for week; dollars contributed per hour for each benefit, including name and address of administrator; benefit account number; and telephone number for health and welfare, vacation or holiday, apprenticeship training, pension and other benefit programs. 
• Other information the commissioner finds necessary and appropriate to enforce Minn. Stat. §§ 177.21 to 177.435. 

These and other records that are required to be kept by an employer must be available for inspection by the commissioner upon demand. The records must be either kept at the place where employees are working or kept in a manner that allows the employer to comply with the commissioner’s demand within 72 hours (New). 

If records maintained by the employer do not provide sufficient information to determine the exact amount of back wages due, the commissioner may make a determination of wages due based on available evidence (New). 

Wages and Commissions Payment Requirement

Employers must pay all wages, including salary, earnings and gratuities earned by an employee at least once every 31 days and all commissions earned by an employee at least once every three months on a regular payday. 

The new Wage Theft Law further clarifies that Minn. Stat. § 181.101 provides a substantive right to the payment of commissions and wages, at the employee’s rate or rates of pay or the rate or rates required by law, whichever is greater, as well as the right to be paid wages and commissions earned on a regular payday.

In August of this year, the New York State Governor signed an omnibus bill. This new law has the following requirements:

Expansion of the New York State Human Rights Law (NYSHRL)

All private sector employers are subject to the antidiscrimination provisions of the NYSHRL.

The prohibition against unlawful discrimination based upon each of the protected categories identified in the NYSHRL extends to nonemployees. 

The NYSHRL will permit the prevailing claimant to recover both attorneys’ fees and punitive damages from private employers.

The NYSHRL shall be construed “liberally for the accomplishment of the remedial purposes thereof, regardless of whether federal civil rights laws, including those laws with provisions worded comparably to the provisions of this article, have been so construed,” and exceptions and exemptions “shall be construed narrowly in order to maximize deterrence of discriminatory conduct.”

Annual Sexual Harassment Notice

Upon hire and at every annual sexual harassment prevention training program, employers must provide employees a notice containing the “employer’s sexual harassment prevention policy and the information presented at such employer’s sexual harassment prevention training program” (in English and in the primary language of the employee).

Greater Protections for Harassment Complaints

Harassment will be considered “an unlawful discriminatory practice when it subjects an individual to inferior terms, conditions or privileges of employment” because of his or her protected characteristics. Employers will have a seemingly narrow affirmative defense to liability if “the harassing conduct does not rise above the level of what a reasonable victim of discrimination with the same protected characteristic would consider petty slights or trivial inconveniences.” “The fact that such individual did not make a complaint about the harassment to [his or her] employer… shall not be determinative of whether” such employer is liable. 

Claims by domestic workers will be subject to the same standard.

Sexual harassment complaints filed directly with the NYSDHR must be filed within three years (previously one year) after the alleged harassment.

Restrictions on Nondisclosure and Arbitration Agreements

Employers will be prohibited from requiring nondisclosure clauses in any settlement, agreement, or other resolution of any claim where the factual foundation for which involves discrimination, including but not limited to under the NYSHRL, unless the condition of confidentiality is the complainant’s or plaintiff’s preference. Any nondisclosure term or condition must be provided in writing to all parties in plain English and, if applicable, the primary language of the complainant, after which he or she will have 21 days to consider such term or condition and 7 days to revoke the acceptance after execution of such agreement.

Any nondisclosure term or condition will “be void to the extent that it prohibits or otherwise restricts the complainant from: (i) initiating, testifying, assisting, complying with a subpoena from or participating in any manner with an investigation conducted by the appropriate local, state, or federal agency; or (ii) filing or disclosing any facts necessary to receive unemployment insurance, Medicaid, or other public benefits to which the complainant is entitled.”

Employers will be prohibited from requiring employees to sign agreements that require mandatory binding arbitration of claims relating to any form of discrimination.

Any agreement entered into on or after January 1, 2020,“that prevents the disclosure of factual information related to any future claim of discrimination is void and unenforceable, unless such provision notifies the employee or potential employee that it does not prohibit him or her from speaking with law enforcement,” the Equal Employment Opportunity Commission, the New York State Division of Human Rights, “a local commission on human rights, or an attorney retained by the employee or potential employee.”

Additional Information

Click here to read the text of the bill.

Earlier this year, the New York State Governor signed the state budget bill which contained a new law regarding harassment prevention. This new law has several parts, as described below, and is applicable to all employers.

While this law passed months ago and went into effect as of October 9th, New York did not issue the required information for implementation until late last week. Since then, we have worked hard to pull the information together and get it to you as quickly as possible. We appreciate your patience.

Part 1: Harassment Prevention Policy

All employers must provide employees with an anti-harassment policy as well as a complaint form that employees can (but are not required to) use to submit concerns. Employees may receive the policy either in writing or electronically. If the policy is provided electronically, your employees must be able to print a copy for their own records. You must issue this policy to all current employees immediately. For any future hires, this policy should be given immediately upon hire.

Part 2: New Mandatory Training

By October 9, 2019, all employees must be provided with anti-harassment training. Once all current employees have been trained, all newly hired employees should be trained in the same manner immediately.

Part 3: New Poster (Optional)

This poster, which is an optional tool, is one way to direct people to your harassment prevention policy and should be displayed in a highly visible place.

Part 4: Restrictions on NonDisclosure Agreements and Arbitration Provisions

No action on your part for this unless you have any nondisclosure agreements or arbitration provisions implemented at your business that must now be reconsidered. Given the nature of these, please contact an attorney for compliance corrections.

Additional Information:

For a “Toolkit” on these new requirements, please click here. For additional information, please visit: https://www.ny.gov/programs/combating-sexual-harassment-workplace

Earlier in the year, the Oregon Legislature passed House Bill 2341. This new bill provides additional employee protections for pregnancy, childbirth, or related medical conditions. The law is effective January 1, 2020. If you are an Oregon employer and have 6 or more employees, this affects you.

Part of the new rule requires employers to post signs in a conspicuous and accessible location informing employees of the new discrimination protections and their right to reasonable accommodation.

In addition to the posting, employers will need to provide a written copy of the notice to:

• New employees, at the time of hire;
• Existing employees, by June 29, 2020; and
• Any employee who informs the employer of the employee’s pregnancy, within 10 days.

The Bureau of Labor and Industries (BOLI) published a template that employers may use for both purposes. You can download this posting/notice here.

Starting February 1, 2020, District of Columbia employers must notify employees about their right to paid leave under the DC Paid Family Leave Act (PFLA). 

Employers must post an official notice in all locations where covered employees work. If an employer has covered employees working remotely, it must send them copies of the notice so they can post it in their own workspaces. 

Employers must also give employees copies of the notice at three other points:

1. to each new employee when hired (after January 31, 2020); 
2. once a year every year from that point forward; and 
3. whenever an employee asks for potentially covered leave.

Click here for the posting/notice provided by the D.C. Department of Employment Services.