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LEGAL UPDATE – MAY 2019

Let’s get down to the nitty gritty...here’s some “schtuff” you need to be aware of. BTW this wasn’t an easy one to deliver...feels like doom and gloom 🙁

ACA is here to stay!

ACA = Affordable Care Act / ObamaCare.

Regardless of all the noise it isn’t going anywhere...yet.

Only change for 2019 = the individual mandate is gone. No more penalties for not having coverage. Hooray to my healthy people who don’t want to pay for coverage or maybe their irresponsible for not having coverage?! No judgement...just zero penalties.

401(k)/Retirement Plans

The government is focusing on missing participants. What does that mean? People who have funds in the plan that should be paid out but for some reason they get lost in the shuffle. Make sure you keep good records and mailing addresses so you don’t breech your fiduciary responsibility.

Do you have employees with student loans? There is the ability to make employer contributions based on repayment of student loans. Best way to do this is to ask the IRS for a PLR (Private Letter of Ruling) from the IRS to allow you to (aka get an attorney).

But the biggest news in this category...CA will have a new retirement regulation requiring you, the employer, to sign up for...it’s called “CalSavers.” You’ll either need a 401(k) plan OR you need to sign up for the state plan by 2020 (100+ employees), 2021 (50+ employees) and finally 2022 (5+ employees). I advise you get your own plan instead of trusting the government with your employee’s retirement savings. Need resources for that. Ask me I’ve got them. 😉

The I-9 Horror Show

Brace yourself...ICE is coming (wink to my GOT fans)

Let’s talk about I-9s. I know...super interesting subject but hear me out because this is important. ICE (Immigration and Customs Enforcement) is upping their audits and raids by 300%-750%. That is a lot.

Does that sound scary? It should especially if your work-house of I-9s isn’t in order. I recently have audited several clients’ I-9s this year and not one has been in good standing; I’ve even had one that knowingly had undocumented workers.

Statistically speaking 50% of I-9s are incorrect.

Here’s how ICE is going to get you:

  • Audits = administrative paperwork investigation

  • ICE “Raids” aka “Judicial Warrant Enforcement Action” and apparently they bring out the dogs, helicopters and SWAT Teams. No joke.

What are the penalties? Here’s a short list:

  • Criminal prosecutions

  • Black balled from government contracts

  • Hiring violations from $559 to $22,363 per occurrence

Here are the industries ICE is targeting:

  • Critical infrastructure

  • Hospitality/ Restaurant

  • Construction

  • Manufacturing/Production

  • Temporary/Staffing agencies

  • Service Industries

  • E-Verify Employers

  • Federal Contractors

  • “Sanctuary” Anything (Cities)

There’s been some cases in CA that prohibit this but there’s been recent developments in April 2019 that now allows employers to voluntarily grant ICE access to I-9s. I’m sure they’ll be more developments as the year goes on.

In addition to all this you may have received a letter from the IRS (aka a “No Match” letter) stating you have mismatches with your names and SSNs you’ve reported. I’ve had several clients have this issue. Instead of me going into detail about what to do just give me a call and I’ll link you with an attorney. Each of these cases must be dealt on a with case-by-case basis.

What you can do to be prepared for this? Here’s a list:

  • Make sure anyone who is doing your I-9s is trained

  • Update your knowledge on record retention (you don’t want ICE to find incorrect I-9s you could of done away with by law)

  • Do a self-audit

  • Make sure you know how to correct errors

  • Handle those “No-Match” IRS letters

  • Hire an expert to audit your I-9s

I hope I didn’t have any of you break out into a cold sweat. If so I’m sorry but wipe that brow and call me. I’m here to help and if I can’t I’ve got the best attorneys in town who can.

Equal Pay | Pay Equity

Paycheck Fairness Act (S.270/HR7)

Not law yet but it prohibit federally/nationwide asking people for prior salary history, making pay transparent, increase penalties, directing the EEOC (Equal Employment Opportunity Commission) and OFCCP (enforces Affirmative Action) to collect data related to this. It’s already passed the House and onto the Senate it goes.

Equal Pay Act | CA Fair Pay Act Bill

We still cannot ask applicants about salary history or prior salary even if voluntarily disclosed BUT you can ask about salary expectations.

Something you can do to stay ahead of the curve is to do a pay equity analysis aka evaluate if your workforce is being paid fairly. You can conduct a company-wide gender pay analysis, review your hiring and promotion process and procedures to make sure they are equal and fair and identify and promote best practices that will help close that gap.

Oh! Also an applicant can ask for the pay scale for a position upon reasonable request. Yeah...you have to give it to them.

EEO-1 Pay Reporting

Only read this if you or someone you know has 100 or more employees or is a federal contractor (50+ employees or a contract of 10K or more)...and then get ready to be stressed out (sorry).

By September 30, 2019, 2017 and 2018 W-2 earnings and hours worked for all employees must be reported by employers with 100 or more employees.

W-2 earnings need to be reported under one of 10 EEO-1 job categories and total W-2 wages for all employees by sex and race/ethnicity (seven categories) within 12 pay bands.

Hours worked need to be reported for each of the 10 EEO-1 job categories and total hours worked by all employees by sex and race/ethnicity within 12 pay bands. Exempt employees you can use a 40 hour work week for the calculation.

You still have to file the workforce demographic information (component one) by May 31, 2019. More info on this here.

Workplace Safety & Health

Keeping our employees safe is key and Cal-OSHA will make sure of it. Here’s the deets...

Cal-OSHA & the IIPP...

If your employee complains to Cal-OSHA, they will show up. What to do ‘bout that? Listen to your employees about safety issues.

You also need to report these incidents to Cal-OSHA (sorry this is grim):

  • Death

  • Dismemberment

  • In-patient treatment for 24 hours or more

If your an employer in CA you need a IIPP (Injury and Illness Prevention Program) unless you have less than 10 employees then you only need to maintain a log of requirements and if you have less than 20 and a Workers Comp mod rate >1.1 then only a minimal program. You’ll also need to train your employees on hazards and keep records of such training for at least a year.

Heat Stress: We MUST train all our employees on heat illness prevention. Seems obvious but of course we want our employees healthy and safe. If you have employees exposed to heat make sure you provide enough fresh water (one quart per hour), that they have shade and have “cool down” rests for five minutes, and make a plan to develop written procedures.

Ergonomics/Cal-OSHA Title 8 - Section 5110: All employers are covered. Take a look at your loss runs and see if there are any issues with repetitive motion injuries and make a plan. Acute care hospitals have their own regulations.

Workplace Violence

CA (Title 8 Section 3342 ) is the only state who has a regulation regarding a policy, plans and training for workplace violence. Also look at your industry and workplace and if you’re more prone to this make sure you take extra precautions (i.e. banks, retail, bars, healthcare, interpersonal relationships in the office). If you think there is potential for workplace violence please, please come up with a plan.

Cybersecurity and Privacy

So there’s a chip you can put under your employees skin. Imma stop right there. Rethink this one if you are approached with this solution.

California employers must have “reasonable safeguards” where you must have security practices and procedures to protect personal information. There are 20 controls defined by the Center for Internet security’s Critical Security Controls.

Whew that was a lot. I hope you came out without a cortisol spike. Also something that can raise your blood pressure, attorneys (this is my way of cleverly saying I am not one and this is not legal advice but if you need an attorney I can snag you one).

As always if you have any questions please feel free to contact us!

SAY HELLO

Have an HR question or an employment issue? Help is an email away! BTW…questions are free!


Mailing Address: 4533 MacArthur Blvd., Ste A-2177, Newport Beach, CA 92660 – E: info@bethechangehr.com – P: 949.375.4071


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