Category: Workforce Compliance

Throughout 2018, we’ve covered some of the biggest compliance issues impacting employers. New legislation took effect around the world, courts weighed in on important issues and policy changes provided new resources to employers. As 2018 comes to a close, here are some of the biggest topics of the year.

GDPR

Commonly known as the GDPR, the EU General Data Protection Regulation requires businesses to protect the personal data and privacy of EU citizens for transactions that occur within EU member states. It took effect in May 2018.

CAN-SPAM, CASL and More

Laws around the world regulate how businesses and employers can interact with individuals through emails. While many marketing teams deal with these regulations every day, they also apply to talent acquisition teams that engage with candidates through email. Different countries have different laws, so in this post we covered the laws in the United States, Canada and Australia.

Salary History

In April, a federal appeals court in the U.S. ruled that salary history cannot be used to justify paying a woman less than a man for doing similar work under the Federal Pay Equity Act. The ruling in Rizo v. Fresno County Office of Education covers California, Oregon, Washington, Nevada, Arizona, Alaska, Hawaii, Idaho and Montana.

Worker Classification in the Gig Economy

Earlier this year, a California court ruling established a three-part test that provides the criteria an organization must meet for a person to be considered an independent contractor and not an employee.

Arbitration Agreements

Earlier this year, the U.S. Supreme Court ruled in favor of employers that use arbitration agreements that include class action waivers. In the event that an employee believes they have a lawsuit against an employer, this agreement provides that the dispute will be resolved through individual arbitration and never as a collective or class action.

Ban the Box

Earlier this year, the governor of Massachusetts signed into law An Act Relative to Criminal Justice Reform that makes several modifications to the state’s “ban the box” law. The law, which goes into effect in October 2018, adds additional restrictions about which criminal convictions an employer can consider and how employers can consider other convictions.

California Consumer Privacy Act of 2018

Earlier this year, the governor of California signed into law the California Consumer Privacy Act of 2018, one of the toughest data privacy laws in the U.S. It takes effect in 2020. The law is similar to the GDPR. The EU General Data Protection Regulation requires businesses to protect the personal data and privacy of EU citizens for transactions that occur within EU member states. The California law applies to most companies that collect the data of Californians, and it expands the definition of what is considered personal information, including behavioral and profiling data and professional and personal background data.

Department of Labor Office of Compliance Initiatives

In August, the U.S. Department of Labor announced the new Office of Compliance Initiatives to promote greater understanding of federal labor laws and regulations to help employers prevent violations.
The Department also announced two new websites aimed at providing compliance assistance:

• worker.gov provides information about worker’s rights and common workplace concerns
• employer.gov provides information about the responsibilities of job creators toward their workers and answers common questions

Sexual Harassment

Earlier this year, New York state signed the 2019 State Budget which updated the state’s sexual harassment laws. The legislation lays out several new requirements all employers must meet in their sexual harassment policies. As a part of the law, every employer in the state must provide sexual harassment prevention training that includes a set of minimum requirements.

Washington State’s Paid Family and Medical Leave Program

In 2017, Washington state passed legislation establishing a Paid Family and Medical Leave insurance program. Parts of that law take effect in 2019, and employers in Washington need to prepare. Beginning January 1, 2019, employers must be prepared to remit premiums and submit quarterly reports for the Paid Family and Medical Leave program, with the first quarterly premium remittance and reports due by April 30, 2019. Employees can begin taking benefits on January 1, 2020.

Compliance Corner is a feature on the PeopleScout blog. Understanding the patchwork of labor laws across the world is complicated, but it’s part of what we do best. If you have questions on the compliance issue discussed in this post, please reach out to your PeopleScout account team or contact us at marketing@peoplescout.com. 

In 2017, Washington state passed legislation establishing a Paid Family and Medical Leave insurance program. Parts of that law take effect in 2019, and employers in Washington need to prepare.

The program will allow workers to take up to 12 weeks of paid time off to welcome a new child to their families, deal with a serious illness or take care of an ill or ailing family member. In some circumstances, workers may be able to take up to 18 weeks of paid time off. The program will be administered by the Employment Security Department (ESD) and is funded by premiums paid by employees and employers. Under the program, employees can receive up to 90 percent of their weekly wage, with a minimum of $100 each week and a maximum of $1,000 each week.

Beginning January 1, 2019, employers must be prepared to remit premiums and submit quarterly reports for the Paid Family and Medical Leave program, with the first quarterly premium remittance and reports due by April 30, 2019. Employees can begin taking benefits on January 1, 2020.

The plan requires employers to report employee wages, hours worked and additional information quarterly. For 2019, the total premiums will be 0.4 percent of gross wages paid, subject to a cap that will be adjusted annually. Generally, the worker will be responsible for 63 percent of the total premiums due and the employer will be responsible for 37 percent of the premiums due. Small employers with fewer than 50 employees do not have to pay the employer portion of the premium, but they are required to collect and report the employee portion and comply with reporting requirements.

To qualify for leave, an employee must have worked for 820 hours in the qualifying period. These hours can be earned at more than one employer. By reporting hours to the ESD, employers ensure an accurate record of hours worked by each employee. The qualifying period is the first four of the last five completed calendar quarters starting from the day the employee intends to take leave.

The application process for employees is being created in 2019. However, employees must inform their employer if they intend to take leave. If the event is foreseeable, the employee must notify their employer 30 days in advance. If the event is unforeseeable, the employee is required to give as much notice as possible. In some cases, like a traumatic auto accident, for example, employees may not be able to give notice.

As the application process for employees is finalized in 2019, employers should build out internal policies that meet state requirements. Employers will be required to post a notice developed by the ESD about this law in their workplace as well. Employers can learn more and obtain resources from the ESD here.

Compliance Corner is a feature on the PeopleScout blog. At least once a month, we’ll be featuring a compliance issue that’s in the news or on our minds. Understanding the patchwork of labor laws across the world is complicated, but it’s part of what we do best. If you have questions on the compliance issue discussed in this post, please reach out to your PeopleScout account team or contact us at marketing@peoplescout.com.

Earlier this year, New York state signed the 2019 State Budget which updated the state’s sexual harassment laws.

The legislation lays out several new requirements all employers must meet in their sexual harassment policies.

• The policies must prohibit sexual harassment consistent with guidance issued by the Department of Labor in consultation with the Division of Human Rights;
• Provide examples of prohibited conduct that would constitute unlawful sexual harassment;
• Include information concerning the federal and state statutory provisions concerning sexual harassment, remedies available to victims of sexual harassment, and a statement that there may be applicable local laws;
• Include a complaint form;
• Include a procedure for the timely and confidential investigation of complaints that ensures due process for all parties;
• Inform employees of their rights of redress and all available forums for adjudicating sexual harassment complaints administratively and judicially;
• Clearly state that sexual harassment is considered a form of employee misconduct and that sanctions will be enforced against individuals engaging in sexual harassment and against supervisory and managerial personnel who knowingly allow such behavior to continue; and
• Clearly state that retaliation against individuals who complain of sexual harassment or who testify or assist in any investigation or proceeding involving sexual harassment is unlawful.

As a part of the law, every employer in the state must provide sexual harassment prevention training that includes the following minimum requirements:

• The training must be interactive;
• Include an explanation of sexual harassment consistent with guidance issued by the New York Department of Labor in consultation with the Division of Human Rights;
• Include examples that would constitute unlawful sexual harassment;
• Include information concerning the federal and state statutory provision concerning sexual harassment and remedies available to victims of sexual harassment;
• Include information about employees’ rights of redress and all available forums for adjudicating complaints; and
• It must include information addressing conduct by supervisors and any additional responsibilities for supervisors.

Employees need to complete this training annually, and it must be provided in the language spoken by employees.

Employers have until October 9, 2019, to comply with the training requirements. The policy requirements became effective on October 9, 2018. Employers can learn more about the state’s website. The website includes a model sexual harassment prevention policy, sexual harassment training script, sexual harassment complaint form, additional explanations of employers’ legal obligations, and FAQs about the new requirements.

Organizations with employees in New York state should evaluate and update their sexual harassment policies to meet the new requirements. Additionally, employers should watch for additional requirements in other jurisdictions as state legislatures respond to the #MeToo movement.

Compliance Corner is a feature on the PeopleScout blog. At least once a month, we’ll be featuring a compliance issue that’s in the news or on our minds. Understanding the patchwork of labor laws across the world is complicated, but it’s part of what we do best. If you have questions on the compliance issue discussed in this post, please reach out to your PeopleScout account team or contact us at marketing@peoplescout.com.

In August, the U.S. Department of Labor announced the new Office of Compliance Initiatives to promote greater understanding of federal labor laws and regulations to help employers prevent violations.

According to the Department of Labor press release, the office will reside within the Office of the Assistant Secretary for Policy and its work will include:

• Facilitating and encouraging a culture that promotes compliance assistance within the Department
• Providing employers and workers with access to high-quality, up-to-date information about their obligations and rights under federal labor laws and regulations
• Assisting enforcement agencies in developing new strategies to use data for more impactful compliance and enforcement strategies
• Enhancing outreach to stakeholders for the Department’s enforcement agencies

The Department also announced two new websites aimed at providing compliance assistance:

• worker.gov provides information about worker’s rights and common workplace concerns
• employer.gov provides information about the responsibilities of job creators toward their workers and answers common questions

According to the National Law Review, the websites do not provide a comprehensive listing or analysis of all rights and responsibilities that exist under every federal employment and labor law, but they do address topics that fall outside the jurisdiction of the DOL, such as employment discrimination laws that are enforced by the U.S. Equal Employment Opportunity Commission (EEOC).

Because the Office of Compliance Initiatives is so new, we have yet to see its full impact; however, employers and employees can consider it a resource for compliance issues.

Compliance Corner is a feature on the PeopleScout blog. At least once a month, we’ll be featuring a compliance issue that’s in the news or on our minds. Understanding the patchwork of labor laws across the world is complicated, but it’s part of what we do best. If you have questions on the compliance issue discussed in this post, please reach out to your PeopleScout account team or contact us at marketing@peoplescout.com.

Earlier this year, the governor of California signed into law the California Consumer Privacy Act of 2018, one of the toughest data privacy laws in the U.S. It takes effect in 2020.

The law is similar to the GDPR. The EU General Data Protection Regulation requires businesses to protect the personal data and privacy of EU citizens for transactions that occur within EU member states.

The California law applies to most companies that collect the data of Californians, and it expands the definition of what is considered personal information, including behavioral and profiling data and professional and personal background data.

Under the new law, consumers in California are guaranteed the following rights:

• “To know what personal information is being collected about them”
• “To know whether their personal information is sold or disclosed and to whom”
• “To say no to the sale of personal information”
• “To access their personal information”
• “To equal service and price, even if they exercise their privacy rights”

The law requires any business that collects a California consumer’s personal information to disclose the categories and specific pieces of personal information that have been collected and the purposes for which the information will be used if the person requests.

If a person requests their information, the business must provide access to it in a format that allows that data to be transmitted to another entity. A person may also opt-out of the sale of any of their information.

Businesses must also delete a consumer’s personal information if that person requests, unless the information is necessary for the business to complete a transaction, detect security incidents or protect against fraud, repair errors, protect free speech, engage in research or comply with other California laws.

Businesses who have changed policies to align with GDPR may need to make additional changes to come into compliance with California’s law, and should work with an attorney to determine the next steps.

Compliance Corner is a feature on the PeopleScout blog. At least once a month, we’ll be featuring a compliance issue that’s in the news or on our minds. Understanding the patchwork of labor laws across the world is complicated, but it’s part of what we do best. If you have questions on the compliance issue discussed in this post, please reach out to your PeopleScout account team or contact us at marketing@peoplescout.com.

Earlier this year, the governor of Massachusetts signed into law An Act Relative to Criminal Justice Reform that makes several modifications to the state’s “ban the box” law.

The law, which goes into effect in October 2018, adds additional restrictions about which criminal convictions an employer can consider and how employers can consider other convictions.

Under the new law, employers cannot ask applicants about misdemeanor convictions where the date of that conviction or the completion of incarceration occurred three years before the date the person applied, unless the person has been convicted of another offense in the past three years.

Additionally, employers cannot ask applicants about criminal records that have been sealed or expunged. Any request for criminal record information must also include this statement: “An applicant for employment with a record expunged pursuant to section 100F, section 100G, section 100H or section 100K of chapter 276 of the General Laws may answer ‘no record’ with respect to an inquiry herein relative to prior arrests, criminal court appearances or convictions. An applicant for employment with a record expunged pursuant to section 100F, section 100G, section 100H or section 100K of chapter 276 of the General Laws may answer ‘no record’ to an inquiry herein relative to prior arrests, criminal court appearances, juvenile court appearances, adjudications or convictions.”

Any employers who hire in Massachusetts should review their current practices with an attorney. With the growing popularity of “ban the box” laws and the variance between jurisdictions, employers should closely watch any developments and adjust their policies accordingly.

You can read our previous blog post on “ban the box” laws below.

California is the latest state to enact a “ban the box” law. The governor recently signed a bill that prevents private employers from asking about applicants’ criminal conviction histories on the employment application. It went into effect on January 1, 2018.

“Ban the box” refers to the box on applications requiring applicants to reveal their criminal history. The law requires employers with more than five employees to not request or consider a candidate’s conviction history until a conditional offer has been made. California already had a “ban the box” law on the record that applies to state agencies, cities and counties. This law expands that to the private sector.

More than 150 cities and 29 states have enacted some form of a ban the box law. The laws are intended to push a background check later into the hiring process so that employers consider an applicant’s qualifications before their criminal history.

While California’s law does not require employers to justify or explain their decision not to employ someone based on their criminal history, New York City’s law requires employers to justify rescinding a conditional offer based on criminal history. Different cities, states and counties have different requirements as to when employers can request a criminal history or run a background check and what they can do with that information.  If an employer runs a background check after a conditional offer has been made, care must be taken before any adverse decision is made as there are strict regulations governing this process.

With the growing popularity of ban the box laws, employers need to be prepared for the patchwork of legislation, and they cannot rely on a one-size-fits-all approach.

If you want to read more about compliance-related issues, check out our other Compliance Corner blog posts on predictive scheduling, salary history, paid sick leave and New York City’s Freelance Isn’t Free law.

Compliance Corner is a feature on the PeopleScout blog. At least once a month, we’ll be featuring a compliance issue that’s in the news or on our minds. Understanding the patchwork of labor laws across the world is complicated, but it’s part of what we do best. If you have questions on the compliance issue discussed in this post, please reach out to your PeopleScout account team or contact us at marketing@peoplescout.com.

Earlier this year, the U.S. Supreme Court ruled in favor of employers that use arbitration agreements that include class action waivers. In the event that an employee believes they have a lawsuit against an employer, this agreement provides that the dispute will be resolved through individual arbitration and never as a collective or class action.

The court ruled 5-4 in Epic Systems Corp. v. Lewis that if workers were allowed to band together to press their claims, “the virtues Congress originally saw in arbitration, its speed and simplicity and inexpensiveness, would be shorn away and arbitration would wind up looking like the litigation it was meant to displace.”

For employers, arbitration is beneficial because it is less expensive and quicker. It is also private and confidential as well as more absolute since there are fewer avenues to appeal a ruling.

However, the court did explicitly state that legislators could change the status quo, with Justice Neil Gorsuch writing, “The respective merits of class actions and private arbitration as means of enforcing the law are questions constitutionally entrusted not to the courts to decide but to the policymakers in the political branches where those questions remain hotly contested.”

Due to this ruling, employers should consult with an attorney and consider adding an arbitration agreement in the onboarding process. However, employers should keep in mind that at some point, the practice could change due to legislation.

Justice Ruth Bader Ginsberg in her dissent called for the U.S. Congress to act, writing, “The inevitable result of today’s decision will be the underenforcement of federal and state statutes designed to advance the well-being of vulnerable workers.”

Before the ruling, the Ending Force Arbitration of Sexual Harassment Act of 2017 was introduced to the Senate; however, at this point, Congress has yet to take action.

In April, a federal appeals court ruled that salary history cannot be used to justify paying a woman less than a man for doing similar work under the Federal Pay Equity Act. The ruling in Rizo v. Fresno County Office of Education covers California, Oregon, Washington, Nevada, Arizona, Alaska, Hawaii, Idaho and Montana.

U.S. Circuit Judge Stephen Reinhardt wrote the majority opinion for the 11-judge panel for the Ninth Circuit Court of Appeals.

“The Equal Pay Act stands for a principle as simple as it is just: Men and women should receive equal pay for equal work regardless of sex,” Reinhardt wrote. “The question before us is also simple: Can an employer justify a wage differential between male and female employees by relying on prior salary? Based on the text, history and purpose of the Equal Pay Act, the answer is clear: No.”

Both California and Oregon have standalone salary history bans, but employers in all states covered by this ruling should review their salary history policies to comply with this ruling.

You can read our previous blog post on salary history bans below:

Oregon is the most recent state to pass legislation banning employers from asking about a candidate’s salary history. The laws are growing in popularity, intended as a way to promote pay equality by imposing limitations on how employers can use a worker’s previous salary as a benchmark to set compensation.

In Oregon, the ban on salary history inquiries is a part of the state’s larger Equal Pay Act. The law prohibits employers from screening candidates based on their salary history, and it also prevents organizations from setting pay based on past or current salary.

Delaware passed a similar law. The law does allow applicants to provide the previous salary information if they want, but an employer cannot request it. Additionally, it allows an employer to request salary history after an offer including compensation has been extended. Any employer who fails to comply with the law will have to pay a civil penalty of $1,000-$5,000 for the first offense, and as much as $10,000 for each subsequent violation.

Various other states, as well as Puerto Rico, have enacted similar bans, as well as some cities like Philadelphia and New York City. Employers in these areas should review their salary history policies to make sure they comply with the local laws.

Many of these laws have not yet taken effect. Philadelphia’s salary history ban was set to take effect in May, but it was put on hold due to a pending lawsuit. New York City’s ban is set to begin in October. Many of the more recent measures don’t take effect until late 2017 or even as late as 2019. This gives employers some time to prepare, but considering the current popularity of these laws and pending legislation, companies should expect even more changes.

Compliance Corner is a new feature on the PeopleScout blog. At least once a month, we’ll be featuring a compliance issue that’s in the news or on our minds. Understanding the patchwork of labor laws across the world is complicated, but it’s part of what we do best. If you have questions on the compliance issue discussed in this post, please reach out to your PeopleScout account team or contact us at marketing@peoplescout.com.