DOL Increases Labor Penalties for 2018

While the Department of Labor is still waiting for the administration to fill a number of positions, it did not wait to announce an increase in penalties for employment law violations, and it is still enforcing federal labor laws.  Most employers will see penalties increase at 2%, as federal law requires agencies to adjust civil monetary penalties annually for inflation.

The new penalties will be as follows:

  • The maximum penalty for violating minimum wage and overtime rules has increased from $1,925 to $1,964.
  • Maximum penalties for violating child labor laws has increased from $12,278 to $12,529.
  • Maximum penalties for violating anti-retaliation and discrimination laws under visa programs has increased from $20,111 to $20,521.
  • Maximum penalties for workplace injuries or deaths of child workers has increased from $55,808 to $56,947.
  • Maximum penalties for the willful replacement of American workers under the H-1B visa program has increased from $51,588 to $52,641.

Misuse of Biometric Information Costs Corporations Millions

What do you need in your HR toolbox that Facebook, Google, United Airlines, Snapchat, and Shutterfly wish they would have had?  You may not know it yet, but a biometric information policy could be standing between you and millions of dollars in liability. 

Illinois passed the Biometric Information Privacy Act (BIPA) in 2008 to regulate the collection and use of biometric information.  Biometric information includes any personally unique physical characteristic used to identify an individual, including fingerprints, hand scans, and retinal scans.  BIPA permits an Illinois resident to sue any entity that collects his or her biometric information without following BIPA’s notice, disclosure, and consent provisions.  Washington and Texas have passed similar laws, and legislation in other states is on the horizon.

A grocery store chain and its timeclock manufacturer that used fingerprint-enabled time clocks without following BIPA’s disclosure and consent provisions are currently facing a lawsuit that could cost them up to $10 million in damages.  If you use or are considering using fingerprints, hand scans, or other biometric information to track or identify your employees, consult with myHRcounsel to ensure that you have an up-to-date, legally compliant policy that protects you and your employees.   

 

Remain Alert and Stay Diligent: Employer Shared Responsibility Provision Enforcement to Go into Effect by Late 2017

With all the confusion and ambiguity surrounding the current state of the ACA provisions and enforcement, one thing that seems to have remained consistent is the enforcement of the Individual and Employer Mandates.

Earlier this week, the IRS made revisions to their Employer Shared Responsibility FAQ that leave little doubt that enforcement of the Employer Mandate will move forward. https://www.jdsupra.com/legalnews/at-last-our-employer-mandate-tax-58247/

What Does This Mean for Employers?

For the 2015 calendar year, the IRS plans to issue Letter 226J informing Applicable Large Employers (ALEs, with 50 full time employees, including full-time equivalents)  of their potential liability for an employer shared responsibility payment, if any, in late 2017.  ALEs can expect to receive a letter (226J) from the IRS informing them of their potential responsibility payment. The enforcement will begin with year 2015, which is the first year the Employer Mandate was put into effect.

New California Laws Part 6- Anti-Harassment Training, Human Trafficking Notice, and Construction Contractor Liability

Anti-Harassment Training:

CA S.B. 396 will require employers with 50 or more employees to add to their two-hour supervisory training on sexual harassment already required to take place every two years.  Now, anti-harassment training must include “practical examples inclusive of harassment based on gender identity, gender expression, and sexual orientation,” and must be “presented by trainers or educators with knowledge and expertise” in these areas. 

The new law also requires employers with five or more employees to post a new workplace notice, to be developed by the Department of Fair Employment and Housing, regarding transgender rights.

Another new law, S.B. 295, requires that farm labor contractors comply with existing requirements to conduct sexual harassment training for certain employees by providing the training in the language understood by the employee.

How to Prepare

-Update sexual harassment training to include information regarding gender identity, gender expression, and sexual orientation.

-Post the DFEH new poster in the workplace by the first of the year (https://www.dfeh.ca.gov/

wp-content/uploads/sites/32/2017/08/DFEH_

TransgenderRightsWorkplace_ENG.pdf).

 

Human Trafficking Notice

CA A.B. 260 expands existing posting requirements regarding human trafficking and assistance hotlines to additional employers. The new law includes hotels, motels, and bed and breakfast inns, and S.B. 225 will require new language in the notice to state that person can text a specified number for services and support.

How to Prepare

-Ensure the notice is in place and incorporates the new language. 

 

Construction Contractor Liability:

CA A.B. 1701 applies to contracts entered into on or after January 1, 2018, and makes general contractors responsible for any payments owed to a wage claimant (or third party on a wage claimant’s behalf) by their subcontractors if the claimant’s work is a subject of the contractors’ relationship. Liability extends to unpaid wages, fringe or other benefit payments and contributions, including interest owed, but it does not extend to penalties or liquidated damages. The new law also requires subcontractors to provide payroll records to general contractors upon request. Finally, general contractors may establish remedies by contract for liabilities incurred on behalf of subcontractors.

How to Prepare

-General contractors should review agreements with subcontractors and include appropriate indemnification provisions. They should

-Discuss proper wage and benefit practices with subcontractors.

-Request to review subcontractors’ payroll records where wage compliance may be an issue.

New California Laws Part 5- Retaliation

Retaliation:

CA S.B. 306 expands certain employee retaliation and whistleblower claims. The law allows the Labor Commissioner to investigate an employer, with or without a complaint being filed, when it suspects the employer discharged or otherwise discriminated against an individual in violation of any law under the Labor Commissioner’s jurisdiction.

Under the new law, the Labor Commissioner or an employee may seek injunctive relief (meaning employee be reinstated pending resolution of claim) during the course of a wage claim or other investigation, upon mere finding of “reasonable cause” that a violation of the law has occurred.  

This diminishes the burden of proof for injunctive relief in retaliation or whistleblower cases under the Labor Commissioner’s jurisdiction, in part due to the “chilling effect on other employees asserting their rights under those laws” in determining if temporary injunctive relief or a permanent injunction is proper.

S.B. 306 does provide that any temporary relief does not restrain an employer from disciplining or terminating an employee for conduct unrelated to the retaliation claim. In practice, however, employees with performance issues who know that they are about to be terminated or disciplined may attempt to file retaliation claims internally or with state and federal agencies in order to protect themselves from adverse action.

The bill also authorizes the Labor Commissioner to issue citations directing the employer to cease the alleged violation and take actions necessary to remedy the violation, such as ordering reinstatement or back pay, placing the burden on the employer to challenge the citation through an administrative and court appeal. The law also requires any employer challenging the citation to post a bond with the Labor Commissioner’s office equal to the amount of back pay allegedly owed. 

How to Prepare

-Document, analyze, and make reasonable disciplinary decisions.

-Know that litigating retaliation and whistleblower claims under the Labor Commissioner’s jurisdiction, opposing petitions for injunctive relief related to these claims, and challenging citations will be more difficult under the new law.