Presented by

Top 10 Compliance Land Mines to Watch Out for in

2016

Eric B. Meyer,Workplace Attorney Partner at Dilworth Paxson LLP

• Partner in Philadelphia-based law firm, Dilworth Paxson LLP

• Chair of #SocialMedia Practice Group and member of Labor & Employment Practice Group

• Publisher of top employment law blog, The Employer Handbook

• Volunteer mediator for Equal Employment Opportunity Commission (EEOC)

About Eric

• How to meet the latest Affordable Care Act tax reporting requirements

• Which of your workers may be affected by pending FLSA overtime rules

• Why the government is cracking down on independent contractor vs. employee classification

• The latest OSHA HazCom standards and recordkeeping rules

• Precautions to take when working “in the cloud”

• How to keep politics out of the workplace in an election year

Learning Objectives

Land Mine #1: Affordable Care Act

Tax-Reporting Requirements

• On December 28, 2015, the IRS issued Notice 2016-4, which extends the ACA reporting deadlines for 2015 forms filed in 2016

• March 31 to furnish employees/recipients with the 1095-B and 1095-C (rather than January 31)

• May 31 to file forms with the IRS if not filing electronically (rather than February 29)

• June 30 to submit forms to the IRS if filing electronically (rather than March 31)

Updated ACA Reporting Deadlines

• Full-time employees average at least 30 hours of service per week during the calendar month (or 130 hours in a month)

• Hours of service represent each hour an employee is paid or entitled to payment, including vacation, paid holidays, sick days, jury duty, military duty and other leaves of absence

• Employees working part-time also count toward the number of full-time workers you have, based on a certain calculation

Employee Classification

• Applicable large employers with more than 50 employees will complete 1095-C and 1094-C transmittal

• Smaller-sized businesses with less than 50 employees will fill out the 1095-B and 1094-B transmittal

• Fully insured employers complete Part I & Part II of 1095-C

• Self-insured employers complete Part I, Part II & Part III of 1095-C

Employer Reporting Responsibilities

• Insured employers purchase health insurance from a dedicated provider (such as Humana, Blue Cross Blue Shield, Aetna, etc.)

• Self-insured / self-funded employers pay for medical claims directly

Are You Insured or Self-Insured?

• Check out our free webinar: Mandatory ACA Reporting in Effect for 2016 – How to Meet the New Requirements

• IRS penalty for failing to file or furnish ACA forms starts at $250, with a maximum of $3 million

• Visit eFile4Biz.com to learn more about satisfying ACA reporting requirements with e-file solution

ACA Reporting: For More Information

Land Mine #2: Proposed Changes to Overtime

Rules

• Employees are eligible for overtime based on their classification as exempt or non-exempt

• Non-exempt, hourly employees are entitled to overtime pay of time and a half for any hours over 40 in a workweek

• Salaried employees are only exempt from overtime if they earn at least $455 per week ($23,660 per year) and meet one of the executive, administrative and professional “white collar exemptions”

Overtime Regulations Today

• The minimum salary level threshold will more than double to $50,440 per year

• Possible changes to the duties tests

• The DOL may raise the salary threshold for “highly compensated employees” from $100,000 to more than $120,000 per year, making applicable employees non-exempt and entitled to overtime

Proposed Changes Under the Overtime Rule Expansion

• To accommodate these changes, you may decide to:

Increase salaries for employees earning less than $50,440 annually so they’re still exempt from overtime (assuming they meet the job duties tests for executive, administrative and professional exemptions)

Reclassify affected employees as non-exempt and pay them on an hourly basis

Prepare for Proposed Overtime Rules

• Check out our recent article: How the Coming Changes to the Overtime Rules Will Impact You and Your Employees

• Visit ComplyRight.com to learn more about preparing for the proposed overtime expansion

Proposed Changes to Overtime Rules: For More Information

Land Mine #3:Misclassification of

Independent Contractors

• The Department of Labor is cracking down on worker classification

• Since 2008, the DOL has hired thousands of additional investigators to “detect and deter” companies from misclassifying employees as independent contractors

• State agencies are stepping in, too

Why Employers Must Stay on High Alert

• Back taxes (Social Security, Medicare, unemployment) for up to six years plus penalties

• Back wages, including overtime pay, for up to three years (sometimes doubled) plus penalties and possible employee lawsuits

• Back premiums for workers’ comp insurance for as many years as the worker relationship has existed, plus possible employee lawsuits

Misclassification Penalties

• Check out our recent presentation: Independent Contractor or Employee? How to Get It Right Every Time

• Hire contractors with skills and expertise to work independently, and who can provide an Employer Identification Number

Misclassification of Independent Contractors:

For More Information

Land Mine #4: Ban the Box Laws and Hiring

• Refers to criminal history question on job applications: Have you ever been convicted of a crime? YES NO

• Question now banned in 18 states and 100+ cities

• When first introduced, ban the box laws applied only to government contractors and subcontractors

• Now ban the box laws have expanded to target private employers

What is Ban the Box?

• 11 states regulate how public employers may use criminal records California, Colorado, Connecticut, Delaware, Georgia,

Maryland, Nebraska, New Mexico, Ohio, Virginia and Vermont

• Seven states extend ban the box laws to private employers Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon

and Rhode Island

Where Does Ban the Box Apply?

• You’re not prohibited from conducting a legally sound background check on an otherwise qualified individual

• Ban the box legislation shifts the criminal history inquiry from the initial application stage until later in the hiring process, when you hold an interview or extend a conditional job offer

Ban the Box: Employer Rights

• Review and revise all employment applications to be certain they don’t include a criminal history question

• Modify your hiring procedures to delay any inquiries about criminal history until it’s appropriate

Ban the Box Compliance

• Check out our recent webinar: The State of Hiring: How to Comply with “Ban the Box” and Other Hiring Laws

Ban the Box Laws and Hiring:For More Information

Land Mine #5: New OSHA Requirements and Increased Penalties

• All employers with hazardous chemicals were expected to train workers on the modified labeling system and how to interpret a Safety Data Sheet by December 1, 2013

• Full compliance with the final rule is effective June 1, 2016

HazCom Compliance

• OSHA issued new regulations effective January 1, 2015, that:

• Expand the list of severe injuries you must report to OSHA

• Require you to report work-related fatalities within 8 hours

• Require you to report work-related inpatient hospitalizations, amputations or loss of an eye within 24 hours

• Change the list of industries exempt from keeping records

Critical OSHA Developments

• In May 2015, OSHA released a new version of the federal OSHA poster incorporating these new recordkeeping requirements

• Non-mandatory posting change – previous version of OSHA posting is fully compliant

2015 Federal OSHA Poster Change

2015 updated poster

previous poster

• OSHA fines for willful or repeat violations could increase from a current max of $70,000 per violation to $125,000

• Fines for serious and other-than-serious violations could increase from $7,000 per violation to approximately $13,000 per violation

• Updated penalties will take effect no later than August 1

Federal Civil Penalties Inflation Adjustment Act of 2015

• Check out our recent webinar: How to Create a Safer, OSHA-Compliant Workplace

New OSHA Requirements and Increased Penalties:

For More Information

Land Mine #6:EEOC Protections for

LGBT Employees

• Equal Employment Opportunity Commission (EEOC) issued a ruling to expand that definition of employment discrimination

• Sexual orientation discrimination is already prohibited under more than 21 state laws and local laws

• Courts are more likely to rule in favor of the employee in states with expanded protections

Expansion Under Title VII of the Civil Rights Act of 1964

• All states must recognize and issue licenses for same-sex marriages

• Businesses must extend spousal privileges for same sex-married couples, which may affect: Family Medical and Leave Act rights Benefits plans Company policies

Obergefell v. Hodges

• Check out the recent article on ComplyRight.com: A Closer Look at Expanded Workplace Protections for LGBT Employees

EEOC Protections for LGBT Employees:For More Information

Land Mine #7: Potential Update to Form I-9

for Employment Eligibility Verification

• In July 2013, the U.S. Citizenship and Immigration Services, or USCIS, announced it was developing a new version of the form

• New form would include enhancements to help employers comply with the law and reduce common mistakes

• In November 2015, the USCIS published a notice of the proposed changes to Form I-9 – with an invitation to provide comments for 60 days, until January 25, 2016

USCIS Proposed Changes

• You can learn more about the proposed changes at the I-9 Central portion of the USCIS website: http://www.uscis.gov/news/uscis-seeks-comments-proposed-changes-form-i-9

• In the meantime, continue to use the current version of Form I-9 until the Office of Management and Budget approves the proposed version and the USCIS posts it on I-9 Central

Potential Update to Form I-9:For More Information

Land Mine #8: Rise in City and County Regulations and Postings

• Businesses in certain cities or counties may be required to post up to 7 additional postings in some locations

• These local laws may be more generous to employees than state and federal laws

• Remember: You have to post these city posters in addition to the state and federal posters

City and County Posting Requirements

• Check out the recent webinar from Poster Guard: City and County Required Postings: It's More than Just a Trend; It's the Law!

• Always keep an eye on posting requirements relative to your location – and update postings accordingly

Rise in City and County Regulations and Postings:

For More Information

Land Mine #9: Moving to Cloud-Based Services

• Reduced costs

• Easier file sharing

• Flexibility

• Integration with services you already use

Benefits of Cloud-Based Services

• Security

• User-friendly platform

• Reasonable cost

• Company reputation

• Support

Important Factors to Consider

• Check out the recent article on ComplyRight.com: 5 Important Considerations Before Doing Business in the Cloud

Moving to Cloud-Based Services:For More Information

Land Mine #10: Politics in the Workplace

• Create a clear, written political activities policy that provides direction for employees

• Educate your employees on proper behavior

• Be sure all managers and supervisors uphold the policy

Handling Politics in the Workplace

• Encourage employees to participate

• Consider including time off for voting into your time off policy

• Look into the specifics of your state law

Time Off for Voting

• Keep an eye out for an upcoming webinar from ComplyRight

Politics in the Workplace:For More Information

Final Notes

• Verify if Affordable Care Act reporting requirements apply to you

• Determine which of your workers may be affected by pending FLSA overtime rules

• Classify all your workers properly • Review the latest OSHA HazCom standards and

recordkeeping rules • Do your homework on cloud-based services before making

the transition • Place parameters about what employees can and can’t do

while on the job regarding political discussions

How to Reduce Risk and Protect Your Business

1. Affordable Care Act Tax Reporting Requirements2. Proposed Changes to Overtime Rules 3. Misclassification of Independent Contractors4. Ban the Box Laws and Hiring5. New OSHA Requirements (and Increased Penalties)6. EEOC Protections for LGBT Employees7. Potential Update to Form I-9 for Employment Eligibility Verification8. Rise in City and County Regulations (and Postings)9. Moving to Cloud-Based Services10.Politics in the Workplace: Stay tuned for more information from

ComplyRight

Additional Resources

Thank you! Questions?

Join us Next Month: 5 Easy Steps to Prevent ‘Accidental’

Discrimination When Hiring

February 9, 201611 a.m. PST / 12 p.m. MT / 1 p.m. CT / 2 p.m. EST