Tech Flex. February 2016, Volume II NATIONAL ACCOUNT SERVICES

Transcription

1 Tech Flex February 2016, Volume II NATIONAL ACCOUNT SERVICES

2 Topics Covered In This Issue Benefits: Changes to EEO-1 Reporting Proposed Payroll: Santa Fe, NM Announces Revised Minimum Wage Minimum Wage Enacted in Santa Monica, CA Leave: Joint Employment and the FMLA Colorado Parental Leave Act Repealed Santa Monica, CA Adopts Paid Sick Leave Ordinance

3 3 CHANGES TO EEO-1 REPORTING PROPOSED On January 29, 2016, the Equal Employment Opportunity Council (EEOC) announced a proposal to collect data about employees' pay on Form EEO-1 for employers with 100 or more employees. If the proposal is adopted, the first report would be due September 30, The proposal replaces a Department of Labor (DOL) proposal to collect similar information from federal contractors. EEOC and Office of Federal Contract Compliance Programs (OFCCP) will use the data to focus investigations, assess complaints, and identify pay disparities that may warrant further examination. Comments on the proposal are due by April 30, By way of background, the EEOC and the OFCCP in 2010 began participating in the President's National Equal Pay Task Force (Task Force). Following the Task Force s recommendation, the EEOC commissioned a National Academy of Sciences (NAS) study on how to collect pay data from employers. The NAS issued its report in 2012, and based on a recommendation from that report, the EEOC contracted to conduct an independent pilot study on collecting pay data, which was completed in September In 2012, the Commission also convened human resources information systems (HRIS) experts, information technology specialists, and employer stakeholders, to discuss EEO surveys, including the EEO-1 and pay data. Finally, the EEOC discussed the above-referenced OFCCP pay data proposal with the OFCCP and considered the public comments submitted in response to that proposal. Further, the EEOC and the OFCCP together consulted with the Department of Justice, focusing on how EEO-1 pay data would be used to assess complaints of discrimination, focus investigations, and identify employers with existing pay disparities that might warrant further examination. Current EEO-1 Reporting Requirement The current EEO-1 Report requires certain federal contractors with employees and other private employers with 100 or more employees to report each September 30th the number of individuals they employ by job category and by race, ethnicity, and sex. Under the EEOC s proposal, employers, including federal contractors, with 100 or more employees would submit data about pay. However, federal contractors with employees would not report pay data but would continue to report ethnicity, race, and sex by job category. Consistent with current practice, non-contractor employers with 1-99 employees and federal contractors with 1-49 employees would not be required to file the EEO-1 Report. Proposed EEO-1 Pay Data Reporting Requirement The proposal would add the number of workers by classification within 12 pay bands. EEOC would account for part-time and part-year workers by collecting hours worked by the employees in the W-2 earnings pay bands. Employers would need to calculate employees' W-2 earnings for a 12-month period looking back from a pay period between July 1st and September 30th. The employer would report the number of employees whose W-2 earnings for the prior 12 months fell within each pay band. ($19,239 and under; $19,240 - $24,439, etc)

4 4 For each pay band, the employer would also report the total hours worked by the employees for the last 12 month period, by ethnicity, race, and sex. Example: Total hours worked for 10 African American men who are Craft Workers in the second pay band ($19,240-$24,439) = 10,000 hours. A copy of the proposal may be accessed by clicking the following link. A link to a document containing the additional data collection form is attached, and an illustration of all of the data to be collected when the new survey is adopted may be found below. SANTA FE, NEW MEXICO ANNOUNCES REVISED MINIMUM WAGE The City of Santa Fe, New Mexico, in accordance with its Living Wage Ordinance, has announced its minimum wage rate that is adjusted each year based on any changes to the Consumer Price Index (CPI). Effective March 1, 2016, Santa Fe s minimum wage rate will be $10.91 per hour. The cash wage for tipped employees continues to be $2.13 per hour. As a result, the new minimum wage will raise the tip credit to $8.78 per hour. Santa Fe does not have a Youth Minimum Wage. Under the Fair Labor Standards Act (FLSA), Where a State or local law requires payment of a minimum wage higher than $4.25 an hour and makes no exception for employees under age 20, the higher State or local minimum wage standard would apply. As a result, employees under the age of 20 are entitled to Santa Fe s minimum wage. For more information on the Santa Fe Living Wage, please click on the link provided below.

5 5 MINIMUM WAGE ENACTED IN SANTA MONICA, CA The City Council has enacted an ordinance to increase the minimum wage in Santa Monica, California as follows: Employers with 26 or more employees: July 1, 2016 $10.50 per hour July 1, 2017 $12.00 per hour July 1, 2018 $13.25 per hour July 1, 2019 $14.25 per hour July 1, 2020 $15.00 per hour Employers with 25 or fewer employees: July 1, 2017 $10.50 per hour July 1, 2018 $12.00 per hour July 1, 2019 $13.25 per hour July 1, 2020 $14.25 per hour July 1, 2021 $15.00 per hour Beginning on July 1, 2022, the minimum wage for all employers except those of Hotel Workers, see below, will be increased for inflation annually. The ordinance also established a separate minimum for Hotel Workers as follows: July 1, 2016 $13.25 per hour July 1, 2017 $15.37 per hour Beginning on July 1, 2018, the minimum wage for Hotel Workers will be increased for inflation annually. BIRMINGHAM, AL ACCELERATES RAISE IN MINIMUM WAGE This past August, the Birmingham, Alabama City Council passed an ordinance that raised the city's minimum wage to $8.50 in July 2016 and again to $10.10 in July On February 9, 2016, the Council passed an ordinance moving the minimum wage increase to March 1, 2016 instead of its original July 1, 2016 implementation. The accelerated date was in response to a proposed bill introduced in the Alabama state legislature that that would prevent cities and counties from setting a minimum wage for private employers. City Council President Johnathan Austin previously said the two-year period was introduced to allow small businesses to adjust. During the February 9th city council meeting, he explained the decision to implement the increase four months earlier. "The challenge we have now is, if the legislature passes a minimum wage restriction, it could potentially affect the minimum wage increase we passed back in August 2015."

6 6 JOINT EMPLOYMENT AND THE FMLA On January 20, 2016, the Wage and Hour Division (WHD) of the Department of Labor (DOL) published an Administrator s Opinion providing new guidance on the determination of joint employment under the federal Fair Labor Standards Act (FLSA) and the Migrant and Seasonal Agricultural Worker Protection Act (MSPA). The DOL also published a fact sheet on joint employment, DOL Fact Sheet #28N. This fact sheet appears to simply be a reminder to employers of the definition and guidelines around joint employment under the FMLA. The FMLA guidelines do not appear to have changed. When an individual is jointly employed by two or more employers, both may be jointly responsible for compliance with the FMLA. In part, 29 CFR of the FMLA regulations states as follows: (a) Where two or more businesses exercise some control over the work or working conditions of the employee, the businesses may be joint employers under FMLA. Joint employers may be separate and distinct entities with separate owners, managers, and facilities. Where the employee performs work which simultaneously benefits two or more employers, or works for two or more employers at different times during the workweek, a joint employment relationship generally will be considered to exist in situations such as: (1) Where there is an arrangement between employers to share an employee's services or to interchange employees; (2) Where one employer acts directly or indirectly in the interest of the other employer in relation to the employee; or, (3) Where the employers are not completely disassociated with respect to the employee's employment and may be deemed to share control of the employee, directly or indirectly, because one employer controls, is controlled by, or is under common control with the other employer. Fact Sheet #28N outlines the rules for determining the primary and secondary employers when a joint employment relationship exists. To assist in this determination, the DOL considers the following factors: who has authority to hire and fire, and to place or assign work to the employee; who decides how, when, and the amount that the employee is paid; and, who provides the employee s leave or other employment benefits. For most employers, a joint employment relationship normally exists when temporary staffing agencies are involved. The temporary agency would generally be the primary employer. While both employers are restricted from preventing an employee s use of leave under the FMLA or interfering with FMLA rights, the primary employer is responsible for sending the required FMLA notices, maintaining benefits, and other responsibilities relating to the administration of FMLA. Fact Sheet #28N provides a useful chart on page 3 to assist employers in determining their responsibilities under the FMLA when joint employment is involved. For a copy of Fact Sheet #28N, please click on the link provided below.

7 7 COLORADO "PARENTAL LEAVE ACT" REPEALED In 2009, the general assembly enacted the "Parental Involvement in K-12 Education Act" (2009 Act), which allowed an employee of an employer who is subject to the federal "Family and Medical Leave Act" to take leave from work for the purpose of attending academic activities for or with the employee's child. Under the 2009 Act, academic activities included parent-teacher conferences or meetings related to special education services, interventions, drop-out prevention, attendance, truancy, or discipline issues. The leave was allowed for an employee who is the parent or legal guardian of a child enrolled in a public or private school or in a nonpublic home-based educational program in this state in kindergarten through twelfth grade. Leave under the 2009 Act was limited to 6 hours per month and 18 hours in any academic year. The 2009 Act permitted employers to: restrict the use of leave in cases of emergency or other situations that may endanger a person's health or safety or if the employee's absence would halt the employer's service or production; and limit the leave to 3-hour increments at a time and require the employee to submit written verification from the school or school district of the activity necessitating the leave. An employee was required to provide the employer with at least one week's notice of the leave except in emergency situations. The 2009 Act specified that the 2009 Act would repeal on September 1, The repeal provision was never amended, so the 2009 Act was repealed under its own provisions as of September 1, HOWEVER, house bill 1002 (HB 1002) was introduced to reenact the 2009 Act with some modifications as follows: Renames the act the "Parental Involvement in Preschool Through Twelfth Grade Education Act" (the Act) and expands the scope to allow leave to attend academic activities for a child in preschool; Expands the types of academic activities for which a parent is entitled to leave from work to allow parents to attend meetings with school counselors in which the employee's child is directly participating or to attend academic achievement ceremonies; Requires school districts and institute charter schools to post on their websites, and include in district-wide or school-wide communications sent to parents and the community at large, information about the Act; Requires the Colorado state advisory council for parent involvement in education to also provide information about the act to the extent possible within existing resources; and Continues the Act indefinitely and amends the original repeal date in the 2009 Act to specify that the repeal was to apply only to the 2009 Act and its provisions. On February 4, 2016, HR 1002 passed through the House Committee on Education and now will be considered by the House as a whole. Future actions will be tracked and reported on. However, as of now the "Parental Involvement in Preschool Through Twelfth Grade Education Act" is NOT in effect.

8 8 SANTA MONICA, CA ADOPTS PAID SICK LEAVE ORDINANCE The City Council of Santa Monica, California has enacted an ordinance to provide paid sick leave to employees of employers in the city. Under the ordnance, effective February 25, 2016, these terms are defined as follows: City means the City of Santa Monica. Employee means any person who in a particular week performs at least two hours of work within the geographic boundaries of the City for an employer; and qualifies as an employee entitled to payment of a minimum wage from any Employer under the California Labor Code and wage orders published by the California Industrial Welfare Commission. Employer means any person, including a corporate officer or executive, association, organization, partnership, business trust, and limited liability company or corporation, who directly or indirectly, or through an agent or any other person, including through the services of a temporary service or staffing agency or similar entity, employs or exercises control over wages, hours or working condition of any Employee. Some of pertinent provisions of the ordinance are as follows: Employees will accrue one hour of paid sick leave for every 30 hours worked: (Will only accrue in hour-unit increments no accrual in fractions of an hour) For Employers with 26 or more employees: o Employer must provide at least 72 hours of accrued paid sick leave. Unused accrued paid sick leave will carry over until the paid sick leave reaches a maximum of 72 hours, unless the Employer s established policy is more generous. For Employers with 25 or less employees: o Employer must provide at least 40 hours of accrued paid sick leave. Unused accrued paid sick leave will carry over until the paid sick leave reaches a maximum of 40 hours, unless the Employer s established policy is more generous. Employees may use paid sick leave consistent with California state sick leave laws as follows. Employee can take paid sick leave for themselves or a family member, for preventive care or diagnosis, care or treatment of an existing health condition, or for specified purposes if employee is victim of domestic violence, sexual assault or stalking. Family members include the employee s parent, child, spouse, registered domestic partner, grandparent, grandchild, and sibling. Preventive care would include annual physicals or flu shots. For employees working for an employer on or before February 25, 2016, paid sick leave will begin to accrue as of that date. For employees hired by the employer after February 25, 2016, paid sick leave will begin to accrue 90 days after commencement of employment. An employee is eligible to use accrued paid sick leave after the first 90 days of employment or consistent with employer s policies, whichever is sooner.

9 9 An employer is not required to pay out to an employee for unused paid sick time upon the employee s termination of employment. Employer may not require an employee to find a replacement as a condition of the employee taking paid sick time. Employer may require employee provide reasonable notification of intent to use paid sick time. Paid sick leave provision does NOT apply to employers that are government agencies, including federal agencies, state agencies, cities, counties, school districts, and all other public entities. For a copy of the Santa Monica, California ordinance, please click on the link provided below: ADP National Account Services does not make any representation or warranty that the information contained in this newsletter, when used in a specific and actual situation, meets applicable legal requirements. This newsletter is provided solely as a courtesy and should not be construed as legal advice. The information in this newsletter represents informational highlights and should not be considered a comprehensive review of legal and compliance activity. Your legal counsel should be consulted for updates on law and guidance that may have an impact on your organization and the specific facts related to your business. ADP, the ADP logo and IN THE BUSINESS OF YOUR SUCCESS are registered trademarks of ADP, LLC. Copyright 2014 ADP, LLC. All rights reserved. **Please note that the information provided in this document is current as of the date it is originally published.**