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How Can Employers Avoid the EEOC in 2017?

by Martin Salcedo, Esq. - The Human Equation on 2/14/2017
EEOC-equal-employment-diverse-workforce

The U.S. Equal Employment Opportunity Commission (EEOC) is responsible for enforcing a number of federal equal employment opportunity laws. Every year, the EEOC releases information about its enforcement and litigation efforts during the previous fiscal year. If 2016 is any indication, employers must be vigilant to avoid hearing from the EEOC in 2017.

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Are You Ready for the New Form I-9?

by Martin Salcedo, Esq. - The Human Equation on 12/29/2016
form-I-9-I9-immigration-EEOC-US-citizenship

Employers must use Form I-9 to verify the identity and employment authorization of each individual hired in the United States. Though the last version of Form I-9 expired in March 2016, employers were instructed to keep using the expired form until they received further notice from U.S. Citizenship and Immigration Services. On November 14, 2016, employers received their further notice when USCIS published a revised Form I-9, Employment Eligibility Verification.

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State Minimum Wages Going Up In 2017

by Martin Salcedo, Esq. - The Human Equation on 11/10/2016
Minimum Wage going up in 2017

The current federal minimum wage under the Fair Labor Standards Act (FLSA) is $7.25 per hour ($2.13 for tipped employees). Most states, however, have established their own minimum wage, and employees in these states are entitled to whichever minimum wage is higher. Given the existence of multiple minimum wage rates, employers, particularly those operating in more than one state, must know which minimum wage rate (or rates) may apply to their operations.

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Categories: 2016, 2017

EEOC Issues Final Enforcement Guidance on Retaliation

by Martin Salcedo, Esq. - The Human Equation on 9/7/2016
EEOC Issues Final Enforcement Guidance on Retaliation

Did you know that retaliation is asserted in nearly 45 percent of all charges received by the Equal Employment Opportunity Commission (EEOC)? In 2015, the EEOC received nearly 40,000 charges of unlawful retaliation, which may explain why, on August 29, 2016, the EEOC issued its final Enforcement Guidance on Retaliation and Related Issues. And, as a general rule, if the EEOC is particularly concerned about a specific unlawful employment practice, employers should be too.

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Categories: 2016

EEOC Clarifies Permissible Use of Incentives in Wellness Programs

by Martin Salcedo, Esq. - The Human Equation on 8/11/2016
wellness programs

Can employers offer incentives to encourage participation in wellness programs that ask disability-related questions or require medical examinations? Though the Americans with Disabilities Act (ADA) permits health-related inquiries and medical examinations that are part of a voluntary health program, ADA regulations didn’t address whether employers may offer incentives to encourage employee participation in these health programs...until now.

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Nudge, Nudge. OSHA Revises Injury and Illness Recordkeeping and Reporting Requirements

by Martin Salcedo, Esq. - The Human Equation on 7/7/2016
workplace safety is important and OSHA wants to regulate any accidents

Did you know that each year there are more than 3 million serious (requiring more than first aid) workplace injuries and illnesses? Even though the Occupational Safety and Health Act requires employers to provide safe and healthy workplaces, the number of injuries and illnesses remains unacceptably high. To help combat this problem, the Occupational Safety and Health Administration (OSHA) recently revised various workplace safety regulations.

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New White Collar Overtime Exemption Rules Are Coming...Now What?

by Martin Salcedo, Esq. - The Human Equation on 6/15/2016
Excited Employer FLSA

On December 1, 2016, employers will have to pay more to take advantage of the Fair Labor Standards Act’s (FLSA) so-called white collar overtime exemptions. To prepare for the upcoming change, employers need to know whether and to what extent they will be affected by the new overtime exemption regulations.

The new rules focus primarily on the minimum salary and compensation levels needed to qualify for the FLSA’s executive, administrative, professional and computer employee overtime exemptions. Employers can ask the following questions to determine the potential impact of the new overtime rules before it’s too late.

Are there any employees classified as exempt under one of the FLSA’s white collar overtime exemptions? If no, you should not be affected by the higher standard salary levels under the new rules. If yes, move on to the next question. More...

New White Collar FLSA Overtime Rules Are Here! Will You Be Ready By The Effective Date?

by Anita Byer, President - The Human Equation on 5/19/2016
stacks of money

They’re heeeere. No, not a poltergeist, though for many they may be just as unsettling. We’re talking about the new minimum wage and overtime exemption regulations for white collar employees under the Fair Labor Standards Act (FLSA). The long-awaited Final Rule has been released and is scheduled for publication on May 23, 2016.

The Final Rule focuses primarily on salary and compensation levels for the executive, administrative, professional, outside sales and computer employee exemptions, which are the FLSA’s so-called white collar exemptions. Since the Final Rule is not identical to the proposed rule published on July 16, 2015, let’s look at some of the differences.

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New FLSA White-Collar Overtime Exemption Rules Are Coming...Maybe Sooner Than You Think!

by Martin Salcedo, Esq. - The Human Equation on 4/14/2016
clock depicting overtime

It’s been over two years since President Obama directed the Department of Labor (DOL) to update the ‘white-collar’ overtime exemption regulations under Fair Labor Standards Act, including the executive, administrative and professional exemptions. It’s been nearly a year since the public was first given an opportunity to see and comment on the DOL’s proposed revisions. (The DOL received 293,389 comments.) Now, it seems we are one (huge) step closer to new white-collar overtime exemption rules becoming a reality.

On March 14, 2016, the DOL’s final version of the revised overtime exemption regulations was submitted to the White House's Office of Management and Budget (OMB) for review. Once the OMB completes its review, the final regulations will be published. After that, it’s just a matter of time.

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Categories: 2016

Joint Employment Under the Fair Labor Standards Act

by Martin Salcedo, Esq. - The Human Equation on 3/9/2016
FLSA puzzle piece

Are you a joint employer? According to the Department of Labor (DOL), instances of joint employment are increasing due to economic forces and technological advancements. Since joint employers may be held responsible for violations of various federal employment laws, like the Fair Labor Standards Act, employers must know whether they may be involved in a potential joint employment situation.

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Categories: Human Resources

Will You Be Hearing from the EEOC in 2016

by The Human Equation, Inc. on 1/13/2016
people_around_the_table_at_work

Should employers be concerned that the Equal Employment Opportunity Commission (EEOC) achieved record enforcement results in 2015? Yes! Enforcement of federal equal employment opportunity laws is essentially a zero-sum game. If the EEOC is winning, employers must be losing, and according to the EEOC’s 2015 Performance Report, employers have been losing a lot.

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Categories: Human Resources, Risk Management

Are Your Employees Really Independent Contractors?

by Martin Salcedo, Esq. - The Human Equation on 10/20/2015
medical symbol

The Department of Labor (DOL) recently gave a free lesson about misclassifying employees as independent contractors under the FLSA.

Those failing this lesson may get another from the DOL, but it probably won’t be free. Since the DOL is making an effort to identify and remedy employee misclassification, employers should be doing the same.

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Categories: 2015

Millions of White Collar Employees Could Lose FLSA Overtime Exemption

by Martin Salcedo, Esq. - The Human Equation on 8/18/2015
FLSA-Overtime-Exemption-Fair-Labor-white-collar

In March 2014, President Obama directed the Secretary of Labor to “modernize and streamline” the Fair Labor Standards Act’s overtime exemption regulations governing executive, administrative and professional employees. On July 6, 2015, the Department of Labor (DOL) published its proposed regulatory changes to these so-called ‘white collar’ overtime exemptions, and despite their significance, they are quite simple.

The DOL essentially proposed three general changes to the white collar overtime exemptions.

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Categories: 2015, Human Resources

Employers Increasingly Benefit from Telemedicine

by Martin Salcedo, Esq. - The Human Equation on 6/24/2015
Telemedicine-call-doctor

Did you know that telemedicine can reduce the amount of time off taken by employees to see or take their child to a doctor for non-serious medical issues? This may come as a surprise, particularly if you don’t know the most common reason people have for going to the doctor. (You’ll have to keep reading to find out.)

Telemedicine generally refers to the practice of using telecommunications technologies (phone, Internet, etc.) to diagnose and treat patients, and it’s come a long way. Consider this:

  • The Centers for Medicare & Medicaid Services describes telemedicine as a cost-effective alternative to providing medical care.
  • The American Medical Association says telemedicine is a key innovation that can maintain patient safety, improve access to health care and control costs.
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Categories: 2015, Human Resources

Understanding Your Equal Employment Opportunity Obligations

by Martin Salcedo, Esq. - The Human Equation on 3/18/2015
EEOC-Compliance

The most recent enforcement and litigation data released by the Equal Employment Opportunity Commission (EEOC) confirm that employment-related liabilities remain one of the most significant risks facing employers. Controlling these risks requires an understanding of what employers can and cannot do under the various equal employment opportunity laws enforced by the EEOC, including:

  • Title VII of the Civil Rights Act (Title VII)
  • the Pregnancy Discrimination Act
  • the Equal Pay Act (EPA)
  • the Age Discrimination in Employment Act (ADEA)
  • the Americans with Disabilities Act (ADA)
  • the Genetic Information Nondiscrimination Act (GINA).

These laws generally make it illegal for employers to discriminate on the basis of a person’s protected characteristic, such as an employee’s or applicant’s race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. It is also illegal to retaliate against a person because he or she complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.

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EEOC Releases 2014 Enforcement and Litigation Data

by Martin Salcedo, Esq. - The Human Equation on 3/18/2015
EEOC2014FYData

The Equal Employment Opportunity Commission (EEOC) is responsible for enforcing various federal equal employment opportunity laws. Every year the EEOC releases information about its enforcement and litigation efforts during the previous fiscal year (FY), which runs from October 1st to September 30th. This data can be used to get a better understanding of potential employment-related liability exposures that continue to pose a significant risk to most employers.

In FY 2014, the EEOC received a total of 88,778 charges of workplace discrimination, which is lower than recent fiscal years. There were 93,727 charges filed in FY 2013 and 99,412 charges filed in FY 2012. According to the EEOC, this decrease is due in part to the government shutdown during the first quarter of FY 2014.

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Categories: 2015, Human Resources

State Minimum Wages Going Up in 2015

by Martin Salcedo, Esq. - The Human Equation on 11/12/2014
money in pocket

The current federal minimum wage under the Fair Labor Standards Act (FLSA) is $7.25 per hour ($2.13 for tipped employees). Some states, however, have established their own minimum wage, and employees in these states are entitled to whichever minimum wage is higher. Given the existence of multiple minimum wage rates, employers, particularly those operating in more than one state, must know which minimum wage rate (or rates) may apply to their operations.

According to the National Conference of State Legislatures:

  • 38 states introduced minimum wage bills and 34 states considered minimum wage increases during the 2014 legislative session.
  • 23 states and D.C. have minimum wages above the federal minimum wage as of August 1, 2014.
  • 18 states have minimum wages that are the same as the federal minimum wage.
  • 3 states have minimum wages below the federal minimum wage, so the federal minimum wage applies.
  • 5 states do not have a state minimum wage.
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Categories: 2014, Human Resources

OSHA Issues New Reporting and Recordkeeping Rules

by Martin Salcedo, Esq. - The Human Equation on 10/1/2014
doctor holding medical records

Employers will soon have new rules to follow after experiencing workplace injuries and illnesses. The Occupational Safety and Health Administration (OSHA) recently published regulations regarding the reporting and recordkeeping requirements under the Occupational Safety and Health Act’s (“Act”). These new rules, which become effective on January 1, 2015, modify an employer’s obligation to report workplace injuries and illnesses to OSHA and to routinely keep records of injuries and illnesses.

Reporting Requirements

Though a majority of workplace injuries and illnesses do not have to be reported to OSHA, some do. Like the current rules, the new rules require employers to notify OSHA within 8 hours of an employee’s work-related death. Under the new rules, employers are no longer required to notify OSHA of any work-related hospitalization of 3 or more employees. However, under the new rules, employers will be required to notify OSHA within 24 hours of any work-related incident that results in:

  • the in-patient hospitalization of one or more employees (the formal admission to a hospital or clinic for care or treatment, rather than merely observation or diagnostic testing);
  • an employee’s amputation (the traumatic loss of a limb or other external body part); or
  • the loss of an employee’s eye.
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EEOC Updates Pregnancy Discrimination Act Enforcement Guidance

by Martin Salcedo, Esq. - The Human Equation on 8/27/2014
pregnant woman's stomach

In 1978, the Pregnancy Discrimination Act (PDA) was added to Title VII of the Civil Rights Act to prohibit employment discrimination based on pregnancy, childbirth and related medical conditions. In July 2014, the Equal Employment Opportunity Commission (EEOC) issued enforcement guidance regarding pregnancy in the workplace. It has been over 30 years since the EEOC last issued any PDA guidance.

The EEOC’s guidance identifies two fundamental requirements of the PDA:

  • Covered employers, which are generally employers with 15 or more employees, may not discriminate against an employee on the basis of pregnancy, childbirth or related medical conditions.
  • Women affected by pregnancy, childbirth or related medical conditions must be treated the same as other persons not so affected but similar in their ability or inability to work.

The PDA, which covers all aspects of employment, including firing, hiring, promotions and fringe benefits (leave, health insurance, etc.), prohibits discrimination based on an employee’s:

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When Does Disability Leave Become an Unreasonable Accommodation?

by Martin Salcedo, Esq. - The Human Equation on 7/9/2014
court room

When has an employer done enough to avoid liability for disability discrimination? Though hard and fast rules are rare in employment discrimination cases, particularly those involving disabilities, the Tenth Circuit Court of Appeals recently held that employers are almost never required to provide more than 6 months leave to an employee with a disability.

The quality versus cost argument is nothing new especially when it comes to insurance. Consumers who pay less tend to get less, whether in the form of coverages, limits or financial security. And, when people choose cost over quality, it usually means they are uninformed about what they really need.

In Hwang v. Kansas State University, an assistant professor working under a one year employment contract was diagnosed with cancer. KSU gave Ms. Hwang a six-month paid leave of absence so she could get treatment. On the advice of her doctor, Ms. Hwang requested additional time off. According to Ms. Hwang, KSU refused her request and effectively terminated her employment.

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The Human Equation's newsletters and publications are intended as an information source for the clients and friends of the firm. Their content should not be construed as legal advice, and readers should not act upon the information in these publications without professional guidance. Please note that newsletters and publications that are archived by The Human Equation are not updated after initial publication and may not contain the most current information available.

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