EEOC Releases Sample Notice for Employers to Comply With New ADA Wellness Program Requirements

Q&As Provide Additional Guidance

A sample notice is now available to help employers comply with new wellness program rules under the federal Americans with Disabilities Act(ADA). Among other things, the new rules require employers offering wellness programs that collect employee health information to provide a notice to employees informing them what information will be collected, how it will be used, who will receive it, and what will be done to keep it confidential.

The requirement to provide the notice takes effect as of the first day of the plan year that begins on or after January 1, 2017 for the health plan an employer uses to calculate any incentives it offers as part of the wellness program. Once the notice requirement becomes effective, employees must receive it before providing any health information, and with enough time to decide whether to participate in the program.

New Q&As Also Released
To help employers comply with the new notice requirement, the EEOC has also released a set of Q&As, which clarify, among other items:

  • Who must provide the notice;
  • The format in which the notice should be provided;
  • Whether an employee’s signed authorization is required as part of the notice requirement; and
  • Whether the current notice required under the federal Health Insurance Portability and Accountability Act (HIPAA) satisfies the new notice requirement under the ADA.

The ADA applies generally to employers with 15 or more employees. For more information on the new ADA rules, you may review the previously released Q&As and fact sheet.

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Federal Contractors and Subcontractors: 2016 VETS-4212 Reporting Season Runs from August 1 to September 30

Reports May Be Submitted Online

The U.S. Department of Labor (DOL) is reminding federal contractors and subcontractors that the 2016 VETS-4212 reporting season starts onAugust 1, 2016 and ends on September 30, 2016.

Background
The DOL’s Veterans’ Employment and Training Service (VETS) is responsible for administering the requirement under the Vietnam Era Veterans’ Readjustment Assistance Act that federal contractors and subcontractors track and report annually the number of employees in their workforces who belong to the categories of veterans covered under the affirmative action provisions of the law.

Filing Threshold
Federal contractors and subcontractors with certain contracts or subcontracts of $150,000 or more are required to file a VETS-4212 Report.

Note: Effective as of October 1, 2015, the previous $100,000 threshold for VETS-4212 reporting is increased to $150,000. Accordingly, for the2016 filing year beginning on August 1, 2016, the filing threshold for contracts entered into prior to October 1, 2015, is still $100,000; for contracts entered into on or after October 1, 2015, the filing threshold is$150,000. The filing threshold for contractors continuing to file their VETS-4212 Reports for 2015 is still $100,000.

Reporting Requirements
Federal contractors and subcontractors completing the VETS-4212 Report are to provide information on the number of employees and new hires during the reporting period who are protected veterans.

The 2016 filing season for the VETS-4212 Report starts on August 1, 2016 and ends on September 30, 2016. Any reports entered prior toAugust 1, 2016 are considered part of the 2015 filing cycle.

VETS encourages online website submission of reports. Additional information, including instructions and FAQs, is available on the VETS-4212 website.

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Employers Must Protect Workers from Excessive Heat

Originally Published by HR360

OSHA’s Heat Illness Website Outlines Employers’ Legal Duties

Under federal law, employers are responsible for providing workplaces free of known safety hazards, which includes protecting workers from extreme heat. The U.S. Occupational Safety and Health Administration’s (OSHA) heat illness website provides employers with (among other things) information on how to meet their obligations under the law.

OSHA’s tips and strategies include the following:

  • Provide heat stress training.Topics you may wish to address include worker risk, prevention, symptoms (including the importance of workers monitoring themselves and coworkers), treatment, and personal protective equipment.
  • Schedule hot jobs for the cooler part of the day.The best way to prevent heat illness is to make the work environment cooler. Monitor weather reports daily and reschedule jobs with high heat exposure to cooler times of the day. When possible, routine maintenance and repair projects should be scheduled for the cooler seasons of the year.
  • Provide rest periods with water breaks.Provide workers with plenty of cool water in convenient, visible locations in shade or air conditioning that are close to the work area. Avoid alcohol and drinks with large amounts of caffeine or sugar.
  • Monitor workers who are at risk of heat stress.Workers are at an increased risk of heat stress from personal protective equipment, when the outside temperature exceeds 70°F, or while working at high energy levels. Workers should be monitored by establishing a routine to periodically check them for signs and symptoms of overexposure.
  • Acclimatize workers by exposing them for progressively longer periods to hot work environments.Allow workers to get used to hot environments by gradually increasing exposure over at least a 5-day work period. OSHA suggests beginning with 50% of the normal workload and time spent in the hot environment, and then gradually building up to 100% by the fifth day.

Note: Displaying OSHA Safety Posters shows a commitment to safety. Therefore All In One Poster Company has created a Federal Heat Stress Poster for the convenience of its clients. California has its own Outdoor and Indoor heat illness prevention standards as well, for which All In One Posters Company has created separate posters.

The Centers for Disease Control and Prevention also has a page dedicated to providing information on heat stress (including symptoms and first aid), along with fact sheets and other resources for protecting employees.

DOL Updates Salary and Compensation Levels Required for FLSA ‘White Collar’ Exemption

Changes Effective December 1, 2016

The U.S. Department of Labor (DOL) has released a final rule, effectiveDecember 1, 2016, to update the regulations governing which executive, administrative, and professional employees (referred to as “EAP” or “white collar” workers) are entitled to the federal Fair Labor Standards Act’s (FLSA) minimum wage and overtime pay protections.

Current Rules
The FLSA provides an exemption from both minimum wage andovertime pay for employees employed as bona fide executive,administrative, and professional employees (among others). The current regulations implementing the exemption have generally required each of three tests to be met for the exemption to apply:

  1. The employee must be paid a predetermined and fixed salary that is not subject to reduction because of variations in the quality or quantity of work performed (the “salary basis test“);
  2. The amount of salary paid must meet a minimum specified amount, the current level for which is not less than $455 per week, or $23,660 per year (the “salary level test“); and
  3. The employee’s job duties must primarily involve executive, administrative, or professional duties as defined by the regulations (the “duties test“).

“Highly-compensated employees” (HCEs) who are paid total annual compensation of $100,000 or more and meet certain other conditions are also deemed exempt.

Note: Job titles never determine exempt status. Receiving a particular salary, alone, does not indicate that an employee is exempt. Rather, in order for a white collar exemption to apply, an employee’s specific job duties and earnings must meet all of the applicable requirements provided in the regulations.

Key Changes
A comparison table of the current regulations, proposed rule, and final rule has been provided by the DOL. Among other things, the final rule:

  • Sets the standard salary level at the 40th percentile of earnings of full-time salaried workers in the lowest-wage Census Region (rather than on national data as originally proposed), resulting in a salary level of $913 per week or $47,476 annually for a full-year worker;
  • Sets the HCE total annual compensation level equal to the 90th percentile of earnings of full-time salaried workers nationally, consistent with the DOL’s original proposal ($134,004 annually);
  • Establishes a mechanism for automatically updating the salary and compensation levels every 3 years, beginning on January 1, 2020 (rather than annual updates as originally proposed); and
  • Amends the regulations to allow employers to use nondiscretionary bonuses, incentives, and commissions to satisfy up to 10% of the new standard salary level, so long asemployers pay those amounts on a quarterly or more frequent basis.

The DOL is not making any changes to the current duties tests. For more information, please refer to the DOL’s website on the final rule, which offers employers comprehensive resources including fact sheets, Q&As, guidance for businesses, and more.

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OSHA Requires Certain Employers to Electronically Submit Injury and Illness Data

Fact Sheet and FAQs Available

The U.S. Occupational Safety & Health Administration (OSHA) has issued a final rule that (among other things) requires certain employers toelectronically submit injury and illness data.

Background
Under OSHA’s recordkeeping regulation, employers with more than 10 employees and whose establishments are not classified as a partially exempt industry generally must record work-related injuries and illnesses that meet certain criteria using OSHA Forms 300, 300A, and 301. In addition, such employers are required to post Form 300A,Summary of Work-Related Injuries and Illnesses, from February 1 – April 30 of each year. Employers with 10 or fewer employees—regardless of their industry classification—are exempt from the requirement to routinely keep records of worker injuries and illnesses.

Final Rule
The new rule, generally effective January 1, 2017, requires certain employers to electronically submit injury and illness data to OSHA that they are already required to record on their OSHA injury and illness forms, as follows:

  • Establishments with 250 or more employees in industries covered by the recordkeeping regulation must submit information from their2016 Forms 300A by July 1, 2017. These same employers will be required to submit information from all 2017 forms (300A, 300, and 301) by July 1, 2018. Beginning in 2019, the information must be submitted by March 2.
  • Establishments with 20-249 employees in certain high-risk industriesmust submit information from their 2016 Forms 300A by July 1, 2017, and their 2017 Forms 300A by July 1, 2018. Beginning in 2019, the information must be submitted by March 2.
  • Establishments with fewer than 20 employees at all times during the year do not have to routinely submit information electronically to OSHA (however, employers with more than 10 employees and whose establishments are not classified as a partially exempt industry must otherwise comply with applicable OSHA recordkeeping provisions).

Note: OSHA “State Plan” states must adopt requirements that are substantially identical to the requirements in the final rule within 6 months after the rule’s publication (listed as May 12, 2016).

Further details and requirements are contained in the final rule. Additional resources, such as a fact sheet and FAQs, are available by clicking here.

 

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Beware of Scam Targeting Small Businesses through Mailers and “Inspectors”

Inspector and Mailer Heading PhotoAll in One Poster Company, Inc would like to warn its customers as well as other small business owners to avoid mass mailer scams informing them that their labor law posters are outdated while pressuring them to purchase an overpriced product for their employee and business.

These mailers are false, misleading, deceptive and even threatening. As a part of this scam, business owners are demanded to pay varying amounts that range from $65 to $285 or face fines up to $17,000.

One mailer is marked with the company name “Corporate Compliance Services” and labeled “Labor Law Compliance Request Form.” Several businesses who receive these notices are just starting up and have yet to have any employees, and therefore are not required to post such information. Even when posting is required, the individual notices are provided at no charge by the U.S. Department of Labor as well as various agencies within your state’s labor department.Corporate Compliance Services Mailer

Another mailer comes from a “PCI – Customer Compliance Department” and is marked “Compliance Update 2016 (or current year) – URGENT”. Inside this mailer, an imposing phrase in bold letters says, “SUSPENSION OF COVERAGE” greets the unsuspecting reader. In a different strategy, this mailer actually offers similar posters at a much lower price of $10 for a non-laminated version and an extra $9.95 for lamination. Given that this mailer might get a much larger response due to pricing, the company comes back at the unsuspecting customer with an invoice that is well over $100, adding posters that they claim are also required. This company also makes constant phone calls to companies, whose information they most likely obtained through purchasing leads from the state. Please note that although this company uses “AIO Acquisition, Inc” as one of its several names, and calls its products as “Space Saver All-On-One Poster”, it is in no way affiliated with All In One Poster Company, Inc.Personnel Concepts Mailer2

Lastly, All in One Posters would like to warn against people posing as agents or “inspectors” who visit small businesses and threaten unknowing owners with fines and citations due to missing labor law posters, which they just so happen to be selling! Even if they show you a fake ID or citation sheet claiming they represent the “compliance department”, remember that real government inspectors DO NOT SELL POSTERS! Do not be fooled. Again, sole proprietors and business owners who have no employees, are not required to post labor law posters.

Related article: How do you know if your labor law posters are up to date? When you are one of our customers, you don’t have to worry!

 

Fake Inspectors2

DOL Releases New FMLA Poster and Employer’s Guide

new20fmla20banner200416The U.S. Department of Labor (DOL) has released an updated version of the “Employee Rights Under the [Federal] Family and Medical Leave Act”poster (often referred to as the “General FMLA Notice”), along with a newemployer’s guide to help employers comply with the law.

Background
The FMLA provides eligible employees of covered employers with unpaid, job-protected leave for specified family and medical reasons, with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave. The law also includes certain family military leave entitlements.

Private sector employers who employ 50 or more employees for at least 20 workweeks in the current or preceding calendar year must comply with the FMLA.

New Poster
The DOL released an April 2016 version of the FMLA poster that covered employers are required to display in a conspicuous place where employees and applicants can see it. A poster must be displayed at all locations even if there are no employees eligible for FMLA leave. If a covered employer has any eligible employees, it must also provide the general notice to each employee by including it in employee handbooks or other written guidance concerning employee benefits or leave rights (if such written materials exist—otherwise, the employer may distribute a copy of the general notice to each new employee upon hire).

(Note: According to the DOL, the February 2013 version of the FMLA poster is still valid and can be used to fulfill the posting requirement.)

Employer’s Guide
An employer’s guide was also released, which is designed to provide information about employers’ obligations under the law and the options available to employers in administering FMLA leave. Specific areas covered include:

  • Covered employers under the FMLA and their general notice requirements;
  • What to do when an employee needs FMLA leave;
  • Qualifying reasons for leave;
  • The certification process;
  • Military family leave;
  • What to do during an employee’s FMLA leave; and
  • FMLA prohibitions.

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EEOC Fact Sheet Outlines Responsibilities of Small Businesses Under Federal Nondiscrimination Laws

Equal opportunityFact Sheet Available in Multiple Languages

The U.S. Equal Employment Opportunity Commission (EEOC) has issued a fact sheet that provides an overview of the legal obligations of small businesses under federal nondiscrimination laws.

Background
The EEOC enforces federal laws against employment discrimination based on race, color, religion, sex, national origin, disability, age, and genetic information. These laws also prohibit retaliation (punishment) for opposing or reporting discrimination, or participating in a discrimination investigation or lawsuit. The laws enforced by the EEOC apply to employers who employ a certain threshold number of employees.

Fact Sheet
In the fact sheet, the EEOC outlines the following responsibilities for employers:

  • Ensure that employment decisions are not based on race, color, religion, sex, national origin, disability, age, or genetic information.
  • Ensure that work policies and practices are related to the job and do not disproportionately exclude people of a particular race, color, religion, sex, national origin, disability, or age.
  • Ensure that employees are not harassed because of race, color, religion, sex, national origin, disability, age, or genetic information.
  • Provide equal pay to male and female employees who perform the same work (unless employers can justify a pay difference under the law).
  • Respond promptly and adequately to discrimination complaints. Stop, address, and prevent harassment and discrimination. Ensure that employees are not punished for complaining.
  • Provide reasonable accommodations (changes to the way things are normally done at work, such as permitting a schedule change so an employee can attend a doctor’s appointment or can observe a religious holiday) to applicants and employees who need them for medical or religious reasons, if required by law.
  • Display a poster that describes the federal employment discrimination laws.
  • Keep any employment records (such as applications or personnel records) as required by law.

Note: Employers may have additional responsibilities under federal, state, or local nondiscrimination laws.

The fact sheet also provides information about EEOC resources for small business owners, and is available in multiple languages. Click here to download the fact sheet (scroll down to the “Small Businesses” tab to view the available languages).

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8th Cir. Backs NLRB on Jimmy John’s Protests

Jimmy Johns Sick PosterBy Lawrence E. Dubé

March 25 — A Jimmy John’s franchisee illegally fired workers who publicly linked their complaints about sick leave to questions about restaurant food safety, the U.S. Court of Appeals for the Eighth Circuit ruled in a 2-1 decision.

The March 25 decision enforces a National Labor Relations Board order in favor of the workers. The opinion shows there is a continuing controversy about giving legal protection to employees who disseminate negative publicity about their employer’s products.

MikLin Enterprises Inc. argued the employees had no legal right to make false claims that the company’s policy on medical absences compromised the health of the workers who prepared customers’ sandwiches. However, Judge Jane Kelly wrote for the court that exaggerated rhetoric is common in labor disputes and was protected during a publicity campaign by Minnesota restaurant workers. Judge Kermit E. Bye joined in the opinion.

Judge James B. Loken dissented in part, stating the employees lost the protection of the National Labor Relations Act by broadcasting a “scare message” about MikLin’s food that was deliberately false, devastating to the employer and unnecessary for the advancement of the employees’ cause.

Flier Linked Worker Leave, Health Risk

According to the decision and NLRB records, MikLin operated Jimmy John’s sandwich shops in the Minneapolis-St. Paul area.

The Jimmy John’s Workers Union, an Industrial Workers of the World affiliate, lost an October 2010 representation election but remained active among the employees and pressed MikLin to adopt workplace changes, including the introduction of paid sick days for employees.

The board said union supporters took the dispute public by posting in and near MikLin restaurants fliers that pictured identical sandwiches side-by-side above a message “Can’t Tell the Difference?”

The flier labeled one sandwich as being made by a healthy worker and one by a sick worker. The flier asserted that workers didn’t get paid sick days and couldn’t even call in sick.

NLRB Found Discharges Unlawful

MikLin fired six employees for participating in the publicity campaign and the IWW filed an unfair labor practice charge.

An administrative law judge found the discharges violated Section 8(a)(3) of the NLRA, which prohibits discrimination due to union activity, and Section 8(a)(1), which forbids interference with employees’ NLRA-protected activity .

The board affirmed in a 2-1 decision (361 N.L.R.B. No. 27, 200 LRRM 1604 (2014) ..

In the Eighth Circuit proceeding, MikLin argued the “sandwich” fliers were false because employees weren’t precluded from calling in sick. However, Kelly observed a written company rule said, “We do not allow people to simply call in sick” and the company required employees to find their own replacements if they were ill.

The NLRB heard evidence that employees were told to report to work while sick, and Kelly said the board had sufficient evidence to conclude the employees’ claims about MikLin’s leave policy weren’t intentionally false or maliciously motivated.

“There was sufficient evidence in the record tying the effort to obtain paid sick leave with the effect that the lack of paid sick leave could have on MikLin’s product,” Kelly wrote.

Stating the board found employees did no more than suggest the “realistic potential” for illness, the court said it would defer to the NLRB’s finding that the employees’ communications “were not so disloyal as to lose protection under the Act” and it enforced the NLRB findings of unlawful discharges.

Dissent Sees Unprotected Attack on Employer

Dissenting from the court’s ruling on the discharges, Loken cited the U.S. Supreme Court’s decision in NLRB v. Electrical Workers Local 1229 (Jefferson Standard), 346 U.S. 464, 33 LRRM 2183 (1953), and argued the NLRA doesn’t protect “calculated devastating attacks upon an employer’s reputation and products.”

The “dramatic poster allegations of food contamination were not necessary to aid the employees’ labor dispute,” Loken said. Stating “the employees punished MikLin by urging customers not to buy its sandwiches out of an unwarranted fear of becoming ill,” Loken concluded the employees’ activity wasn’t protected by the NLRA, and their discharges were lawful.

Michael A. Landrum of Landrum & Dobbins LLC in Edina, Minn., argued the appeal for MikLin Enterprises Inc. NLRB attorney Joel A. Heller in Washington argued for the board.

To contact the reporter on this story: Lawrence E. Dubé in Washington at ldube@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

For More Information

Text of the opinion is available athttp://www.bloomberglaw.com/public/document/MikLin_Enterprises_Inc_doing_business_as_Jimmy_Johns_Petitioner_v.

DOL Issues Guidance on Joint Employment Under the FLSA

Fact Sheets and Q&As Available for Employers

The United States Department of Labor (DOL) has issued guidanceregarding the meaning and applicability of joint employment under the federal Fair Labor Standards Act (FLSA).

Background
The FLSA requires employers to (among other things) pay covered employees who are not otherwise exempt at least the federal minimum wage and overtime pay of one-and-one-half-times the regular rate of pay. Under the law, it is possible for a worker to be employed by two (or more) joint employers who are both responsible for compliance. This is because joint employment is included in the law’s definition of “employment,” which was written to have as broad an application as possible.

Determining When Joint Employment Exists
According to the guidance, the most likely scenarios for joint employment are:

  • Where the employee has two or more technically separate but related or associated employers. Joint employment exists where two or more employers benefit from the employee’s work and they are sufficiently related to or associated with each other (this is sometimes called “horizontal joint employment” by the courts).
  • Where one employer provides labor to another employer and the workers are economically dependent on both employers. Joint employment also exists where a worker is, as a matter of economic reality, economically dependent on two employers: an intermediary employer (e.g., a staffing agency or other labor provider) and another employer who engages the intermediary to provide workers. (Some courts have called this “vertical joint employment.”)

Responsibilities of Joint Employers

  • Joint employers (whether vertical or horizontal) are responsible—both individually and jointly—for compliance with the FLSA.
  • Joint employers must combine all of the hours worked by the employee in a workweek to determine if the employee worked more than 40 hours and is due overtime pay.

Note: The analysis for determining joint employment under the Family and Medical Leave Act (FMLA) is the same as under the FLSA. For information about how joint employment affects FMLA coverage and eligibility determinations, click here.

Additional resources, including Fact Sheets and Q&As, are available on the DOL’s website.

HR360 Editorial Team http://www.hr360.com