GetReady –Set -Go Human Resource Compliance Hot Topics …...Immigration and Customs Enforcement Investigations –I-9 Compliance Everything must be accurate Must be kept in separate

2/25/2019

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Copyright 2018 State Volunteer Mutual Insurance Company

Get Ready – Set - Go Human Resource Compliance

Hot Topics for 2019

Kathy R. White, PHR, FACMPESr. Medical Practice Consultant

Objectives

Review HR trends in 2018 and their impact of your practice

Outline the expected focus of DOL and Immigration audits in 2019

Identify the impact of #Me too movement and EEOC Focus

Determine if your employee handbook is out of date and compliance

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Pay Equity Laws

Marijuana LawsDrug Testing Laws

States Adopting Paid Family

Leave

Parental Leave Laws Increase

I-9 Audits Increase 300-

750%

Overtime Exemption Rule

A Look Back at 2018 HR News/Highlights Affecting Employers in 2019

Pay Equity Laws

• Purpose to remove gender wage gap• Still disparity in compensation

Equal Pay Act of 1963

• Banning salary history inquiries• Goal – New hire comp based on

previous

Many States and Municipalities

• Broaden definition on comparable work – “equal work” to “similar work”

• Define reasons for pay disparities

Trends at State & Local

• To provide pay transparency• Encourage pay grades

Goals

Source: Melissa A. Silver – www.experthr.com/pages/eperthr-team/#Melissa-a-silver -

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Marijuana Laws & Drug Testing Policies

81% employers lack comprehensive drug-free workplace policy*

Many practices do not include drug screens on new-hires

Opioid epidemic critical

At minimum need drug and alcohol policy

Drug Free Workplace ProgramOffers 5% WC discount

* Source: SHRM.org/hr-today/news/hr-magazine/0518

Large Employers Offering Paid Maternity Leave

For Mothers at delivery

Also allow for paid time off

adoptions

Johnson & Johnson

17 weeks

Amazon

20 weeks

EBay

24 weeksMicrosoft

20 weeks

Dell

26 weeks

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Why State and Large Employers are Offering Family Focused Benefits

17% of employers offered paid parental leave in

2016*

27% of women will quit jobs due to family

responsibilities Source: Pew Research Center

Trump administration goal for government paid

maternity leave

Impact on small employers

Options for small employers

• Flex scheduling • Review of policies for benefits • Staff surveys(annually)

*SHRM- Research report 2016 Article by Dawn Onley – February 2017

FMLA

Immigration I-9

Wage & Hour

DOL, EEOC and ICE Audit Focus 2019

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Focus of Audits

EEOC/DOL

FMLA

Records for Eligibility & Use

of FMLA

Audits often Based on EEOC

Complaint

Immigration

ICE

Expecting

>5,200

I-9 Audits

Accuracy in completion

DOL

Wage & Hour

Employee Classification

Overtime

Breaks

Minimum Wage

Commons FMLA Violations Prompting DOL Investigations

Refusing to authorize FMLA leave for an eligible employee;

Discouraging a worker from using FMLA leave;

Manipulating an employee’s work hours to avoid responsibilities under the FMLA;

Making someone’s request for or use of FMLA leave a negative factor in employment decisions such as:

– Hiring

– Promotions

– Disciplinary actions

– Counting FMLA leave under “no fault” attendance policies

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Strategies for FMLA Compliance

Review your FMLA Policy

Provide information to employees

Display information with other HR Posters

Audit your FMLA files routinely

Train your managers & supervisors

Clean up your record keeping

Ensure attendance policy complies with ADA and

FMLA

Immigration and Customs Enforcement Investigations – I-9 Compliance

Everything must be accurate

Must be kept in separate

file

Can be stored

electronically 8/2010

Don’t auto populate the

Form

Don’t complete

before hired

Don’t tell new hire

what documents to present

Can’t use photocopies

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RECORD BACK WAGES COLLECTED BY DOL Wage & Hour Division

Source: www.dol.gov/whd/data/

What to Expect and Prepare with a Dept. of Labor Audit

DOL provides little advance notice

Key questions to ask auditor when they call:– Focus of Audit

– Time period for records to provide

– Names of employees to be interviewed

Be prepared – have the requested information

– Contact your HR attorney as soon as possible

– Gather requested information

– Have documentation regarding compensation policies

During the audit – be courteous and cooperative

Ask for a summary of results

Consider doing your own self-audit quarterly

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What Can Employers Expect From DOL in 2019

Including: Alaska, Arizona, California, Colorado, Florida, Massachusetts, Maine, Minnesota, Missouri,

Montana, New Jersey, New York, Ohio, Rhode Island, South Dakota, Vermont, and Washington

Including: Alaska, Arizona, California, Colorado, Florida, Massachusetts, Maine, Minnesota, Missouri,

Montana, New Jersey, New York, Ohio, Rhode Island, South Dakota, Vermont, and Washington

DOL plans to reveal

recommendationson salary

minimum increase

DOL plans to reveal

recommendationson salary

minimum increase

Expect to reveal in March, 2019

Expect to reveal in March, 2019

Twenty states expected to

increase minimum wage

Twenty states expected to

increase minimum wage

#Me Too Movement – Impact & Protecting Your Practice

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#ME Too Movement Results in Dramatic Increase in EEOC Filings 2017-2018

2017 – 14% increase

• Harassment cost US companies more than $160 Million in Settlements

2018 – 33% increase

• A Growing Problem

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EEOC Task Force Report on Harassment– Claims & Costs

18Source: www.eeoc.gov

2014

12,146 claims filed

Resulting in $35 Million

2015

12,573 claims filed

Resulting in $46 Million

2016

12,860 claims filed

Resulting in $40.7 Million

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EEOC Task Force Study – 2016 – Key Findings

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Up to 75% of Victims Don’t Report to Employers

Compelling Data Indicates Simple Training and Policy is Not Enough & Online Training Ineffective

Workplace Culture and Leadership are the Key to Success - Must Start from the Top to Reduce

Robust Training, Accountability, Anti-Harassment Policy and Complaint Procedures

https://www.eeoc.gov/eeoc/task_force/harassment/report.cfm

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75% of those who report experience retaliation

Victims fear that no one will believe them

Often those who report are blamed or shamed

Why victims don’t report harassment

They feel loss of job when it is someone of authority


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EEOC’s 5 Core Principles to Employers

Commitment from engaged

leadership

Consistent and demonstrated

accountabilityfrom management

Strong and comprehensive

harassment policies

Trusted and accessible complaint procedures

Regular, interactive

learning based on audience

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Sources of Offenses

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Case Example: Patient

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Harry was a seemingly harmless elderly patient in an East TN Practice for

35 years

Several complaints were submitted by female

employees stating Harry was groping them when they were in the exam

room alone and theemployees refused to

room him

The physician spoke with Harry regarding his

behavior & potential termination.

Physician managed rooming to alleviate

complaints and preventclaims

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Scenario The Problem Results and Solution

Examples of Sexual Harassment

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Examples of Non-Sexual Harassment

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Hostile Work Environment – When?

Harassment becomes unlawful

when:

It becomes a condition of continued

employment

It is severe or pervasive enough to

create a work environment that is:

Intimidating

Hostile or

Abusive

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Harassment vs Bullying

Harassment Illegal term of discrimination

Bullying

A form of workplace

harassment may not be illegal

Workplace bullying can exist at any level of the company;

it can come from a supervisor or a coworker

Bullying can be seen as a form of discrimination if it’s regarding

protected classes and issues with diversity

Bullying in the Workplace

Social bantering or teasing

Verbal abuse and profanity

Humiliation, or constant criticism

Gossip / Innuendo

Stealing the credit for work that is done by

others

Personal and professional denigration

Slander / Attacking integrity

Assignment of an unrealistic

workload

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Signs of Bullying or Harassment Manager Should Watch For

Reduced self-esteem

Sudden absenteeism or tardiness

Complaints of sleep &

digestive issues

Withdrawal from

coworkers

Signs of depression

Inability to deal with

stressMood swings

Increased turnover in department

Change in work

performance

Increased turnover in department

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Manager’s Responsibility

Treat all complaints with confidentiality and consistency.

Be Sensitive but Neutral

Follow up with both victim and accused

Document, Document Document – Your

Actions

Ensure there is no appearance of any

retaliation

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Managing Complaints

Remain ObjectiveRemain

Objective

Ensure protection

against retaliation

Ensure protection

against retaliation

Seek legal counsel when

necessary

Seek legal counsel when

necessary

Follow complaint

investigation plan

Follow complaint

investigation plan

Document every stepDocument every step

https://www.eeoc.gov/eeoc/task_force/harassment/checklist3.cfm

Is Your Handbook Up-to-Date?

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Is Your Handbook Up to Date – Policies to Update

Disclaimer – that the handbook is not an employment contract

Discussion of salary and benefits – Protected under NLRA

– NLRA – National Labor Relations Act

– Policies threatening employee disciplinary action for discussion

Social Media and Data Privacy

Reasonable Accommodation with regard to ADA protection – 15 or more employees – Alabama

Retaliation for complaints or grievances

Harassment Free Workplace & Diversity Policy

Wages, Payroll and Attendance Rules

State-Specific Laws – stay abreast of your state laws

Leave Benefits and requirements for eligibility and use

Drug Free Workplace Policies

Group Activity

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Recommended Reading & Resources

https://www.xperthr.com/editors-choice/salary-history-inquiry-bans/32296/?keywords=More+states+seek+to+close+wage+gap

https://www.shrm.org/hr-today/.../workplace-drug-policy-updates-just-say-yes.aspx

https://www.shrm.org/hr-today/news/hr-magazine/0317/pages/is-paid-family-leave-becoming-a-new-standard-for-employers.aspx

www.dol.gov/whd/data/

www.eeoc.gov




Questions??

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Documents

GetReady –Set -Go Human Resource Compliance Hot Topics …...Immigration and Customs Enforcement Investigations –I-9 Compliance Everything must be accurate Must be kept in separate