HR Compliance Trends to Watch in 2018

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1 HR Compliance Trends to Watch in 2018 June 22, 2018 Copyright 2018 ADP, LLC. ADP, the ADP logo and ADP A more human resource are registered trademarks of ADP, LLC. This content provides practical information concerning the subject matter covered and is provided with the understanding that ADP is not rendering legal advice or other professional services.

2 Today s Presenter WAYNE S. YOSHIGAI WAYNE S. YOSHIGAI is a Principal in the Honolulu office of Jackson Lewis P.C., a Law Corporation. Mr. Yoshigai has practiced management employment and labor law in Hawai`i for nearly 30 years. He has been recognized by Best Lawyers in America for his work in the practice areas of Employment Law-Management, Labor Law- Management, and Litigation-Labor and Employment. 2

3 3 Strategically Located Throughout the Nation to Serve Employers Needs 800 Attorneys 56 Locations Nationwide* *Jackson Lewis P.C. is also affiliated with a Hawaii-based firm 3

4 Disclaimer This presentation is not: Legal advice The final word on today s topics A political opinion Before Taking Any Actions Before taking any actions on the information contained in this presentation, employers should review this material with internal and/or external counsel. 4 Copyright 2018 ADP, LLC. All rights reserved.

5 Agenda Leave Laws Sexual Harassment Laws & Best Practices Pay Equity & Hiring/Separation Best Practices 5

6 Hot Topics in Hawaii Awareness Survey 6

7 Leave Laws Copyright 2018 ADP, LLC. ADP, the ADP logo and ADP A more human resource are registered trademarks of ADP, LLC. This content provides practical information concerning the subject matter covered and is provided with the understanding that ADP is not rendering legal advice or other professional services.

8 Family and Medical Leave Act The FMLA was enacted in Applies to employers with 50 or more employees Applies to employees who have worked for at least 12 months, 1,250 hours in the last 12 months, and in a location with at least 50 employees within 75 miles Entitled to 12 weeks of unpaid leave Birth, adoption or foster of a child Care of a spouse child, or parent with a serious health condition Employee s own serious health condition Qualifying exigency related to a spouse, child or parent on or called to active duty 26 workweeks during 12 month period to care for a covered service member (spouse, child, parent, next of kin) with a serious injury or illness

9 FMLA Develop a sound policy Train managers often Protect against misuse Think before you terminate Consider the ADA Review the Department of Labor website 9

10 Americans with Disabilities Act Businesses must provide reasonable accommodations Employers have an affirmative obligation to recognize and ask about a disability Once an employer is aware of an employee s need for an accommodation, it must engage in an interactive process What about when hiring? with_disabilities_toolkit_february_3_2015_v4-2.pdf Cannot ask about whether the person is disabled 10 Can ask if there is anything that would prevent the employee from fulfilling the essential duties of the job

11 State and Local Paid Sick Leave Laws States: Local: Local: WA OR CA AZ VT MA CT RI (eff 7/1/18) MD (eff 2/11/18) New York City WA: Seattle, Tacoma, & Sea Tac (certain industries) CA: Berkeley, Emeryville, Oakland, San Francisco, Santa Monica, San Diego, Long Beach (hotels with 100 or more rooms) and Los Angeles MN: Minneapolis & St. Paul Philadelphia District of Columbia MD: Montgomery County NJ: Bloomfield, Elizabeth, East Orange, Irvington, Jersey City, Montclair, Morristown, Newark, New Brunswick, Passaic, Paterson, Plainfield & Trenton TX: Austin 10/1/18 IL: Chicago & Cook County 11

12 Common Elements Paid or unpaid leave Employee eligibility Reasons for leave Amount of leave Accrual and carryover Notice & recordkeeping requirements Penalties for violation

13 Notice & Recordkeeping If required, include paid sick leave balance on pay stubs Notify employees of leave entitlement upon hire Retain paid sick leave records Check your state and local law to ensure compliance 13

14 Paid Family Leave Programs Washington (benefits begin January 2020) New York Rhode Island California New Jersey District of Columbia (benefits begin July 2020) 14

15 Common Elements Payroll deductions and partial wage replacement Concurrent leave Health benefits continuation Policy requirement 15

16 Paid Leave Best Practices Understand leave laws that apply to your business Create written policies addressing leave entitlements Comply with most generous rule 16

17 Sexual Harassment Copyright 2018 ADP, LLC. ADP, the ADP logo and ADP A more human resource are registered trademarks of ADP, LLC. This content provides practical information concerning the subject matter covered and is provided with the understanding that ADP is not rendering legal advice or other professional services.

18 Legislation Proposed in the Age of #metoo Preventing forced arbitration clauses Limiting non-disclosure agreements Extending training requirements 18

19 EEOC Best Practice: Commitment Committed and engaged leadership Consistent accountability

20 EEOC Best Practice: Written Policy Provide examples of prohibited conduct Hold all individuals accountable Commit to antiretaliation Obtain a signed copy from employees 20

21 EEOC Best Practice: Effective Complaint Process Provide multiple options for filing complaints Conduct a prompt, thorough and impartial investigation Document the complaint process 21

22 EEOC Best Practice: Training Train employees at all levels on your policy and complaint process. Train supervisors on how to prevent, identify and correct harassment; and to avoid and address retaliation. EEOC s Guidelines: promising-practices.cfm

23 Best Practices for a Good Work Environment Leaders need to Model expected behavior Employers must Message expectations and tailor the message to its various audiences Employers must Manage situations Employers must Monitor the workplace 23

24 Pay Equity and Hiring/Separation Best Practices Copyright 2018 ADP, LLC. ADP, the ADP logo and ADP A more human resource are registered trademarks of ADP, LLC. This content provides practical information concerning the subject matter covered and is provided with the understanding that ADP is not rendering legal advice or other professional services.

25 Pay equity laws generally require equal pay for work requiring similar skill, effort and responsibility. 25

26 Pay Equity Best Practices Conduct internal audits Examine policies and procedures Consider pay transparency Document all decisions 26

27 Ban on Salary History Inquiries Legend States with enacted legislation Local jurisdictions with enacted legislation States and local jurisdictions with pending legislation States and local jurisdictions with pending and enacted legislation Copyright 2018 ADP, LLC. ADP, the ADP logo and ADP A more human resource are registered trademarks of ADP, LLC. This content provides practical information concerning the subject matter covered and is provided with the understanding that ADP is not rendering legal advice or other professional services.

28 Ban on Salary History Inquiries Employers cannot: Best practice Seek salary history information about an applicant Rely on an applicant's salary history to determine job or salary offers Remove salary history questions from application forms, interview questions, hiring documents Train employees involved with screening or interviewing applicants Don t ask for or provide salary history information during reference checks Copyright 2018 ADP, LLC. ADP, the ADP logo and ADP A more human resource are registered trademarks of ADP, LLC. This content provides practical information concerning the subject matter covered and is provided with the understanding that ADP is not rendering legal advice or other professional services.

29 Avoid Pay History Inquiries In: Job applications Background check documents Phone screens Interviews Hiring manager/recruiting training materials

30 Ban the Box Laws Prohibit criminal history inquiries on job applications Prohibit criminal history inquiries until after an initial interview or a conditional job offer Best Practice Remove criminal history questions from application forms Don t ask applicants about criminal history information Train hiring managers on compliant hiring procedures Follow Fair Chance procedure Copyright 2018 ADP, LLC. ADP, the ADP logo and ADP A more human resource are registered trademarks of ADP, LLC. This content provides practical information concerning the subject matter covered and is provided with the understanding that ADP is not rendering legal advice or other professional services.

31 Credit History Restrictions Employers cannot request or use applicants or employees credit histories for employment purposes. D.C. NYC Philadelphia Copyright 2018 ADP, LLC. ADP, the ADP logo and ADP A more human resource are registered trademarks of ADP, LLC. This content provides practical information concerning the subject matter covered and is provided with the understanding that ADP is not rendering legal advice or other professional services.

32 Separation Issues ABCDE Ensure consistent application of disciplinary action Ensure sufficiency and clarity of documentation Best Practice Provide timely and honest performance monitoring and feedback Articulate legitimate business reason for decision Consider separation and release agreement Follow the Golden Rule: dignity, courtesy and respect Copyright 2018 ADP, LLC. ADP, the ADP logo and ADP A more human resource are registered trademarks of ADP, LLC. This content provides practical information concerning the subject matter covered and is provided with the understanding that ADP is not rendering legal advice or other professional services.

33 Questions?

34 MAHALO With 800 attorneys practicing in major locations throughout the U.S. and Puerto Rico, Jackson Lewis provides the resources to address every aspect of the employer/employee relationship. 34www.jacksonlewis.com