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What’s New in Employment Law in 2013?

Our guest writer this week is Margaret Jacoby, SPHR, of MJ Management Solutions, whom has tailored human resources consulting services to small business clients since 1999.

Stack of notebooksThe Department of Labor (DOL) enforces more than 180 employment laws and regulations, and the specific laws that apply to a particular business depend upon its number of employees, the nature of its business, and numerous other factors.

While it is difficult to keep up with the changes in both the federal and state regulations, it is essential that you do so for your home care/health care agency. Failure to comply with even one of the myriad of regulations can land you in serious trouble and impact your bottom line significantly.
Changes in Federal Laws

Form I-9
Let’s talk about the Form I-9 which every home care/health care agency, no matter what size, must have on file for each employee hired since 1986. The main purpose is to prevent undocumented workers from being employed in the U.S. Since its inception, the form has changed approximately 11 times with the latest change becoming effective March 08, 2013. Every employer is required to use the new form or face fines for using the wrong form. Get a copy of the form at www.mjms.net/resources along with the new I-9 Handbook for Employers.

Another new federal area to watch is the Equal Employment Opportunity Commission (EEOC) and involves the misuse of criminal background checks when considering new home care/health care hires. The EEOC has issued guidelines for employers in determining whether an employer’s criminal record policy is job related and consistent with a business necessity and strongly cautions that the information obtained be used in a “neutral” manner. That information can be found in the EEOC’s document Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 and can be found at www.eeoc.gov/laws/guidance/qa_arrest_conviction.cfm.

If you employ 50 or more home care/health care workers within a 75 mile radius, you are probably subject to the Family Medical Leave Act or FMLA. The latest revisions of this leave program impacts military families. The US Department of Labor (DOL) has finalized the rule and has issued a revised required poster. Find it here: www.dol.gov/whd/regs/compliance/posters/fmla.htm.

On March 8, 2013, the definition of “Veteran” was revised to include both those who serve and those discharged in the past 5 years (previously it was only those who served). The explicit definition of “Serious Injury or Illness” was removed as well, replaced by a notice that there are differences between the definition of “Serious Injury or Illness” for a service member or veteran, and “Serious Health Condition” under the FMLA.

The DOL has consolidated information about changes and the final rules, including a summary and a Side-By-Side Comparison Chart here: www.dol.gov/whd/fmla/2013rule/comparison.htm

Additionally, The Uniformed Services Employment and Reemployment Rights Act of 1994 protections for employees who miss work due to USERRA-covered military service are clarified and extend to all military members (active duty and reserve), and all periods of absence from work due to or necessitated by USERRA-covered service is counted in determining an employee’s eligibility for FMLA leave. USERRA is applicable to all employers regardless of size.

Affordable Care Act
The leading rulings from the federal government must surely be in the Affordable Care Act (ACA). Since the Supreme Court has upheld the constitutionality of this health care reform, several components were put in place in 2012 and several more become effective in 2013.

The “big ticket” items in the ACA take place in 2014, including the “pay or play” mandate, new nondiscrimination requirements and automatic enrollment. Be sure to adequately plan for these additional economic burdens upon your home care / health care agency.

NLRB & At-Will Employment
At-will employment policies are common in private sector employment and are typically found in job applications, offer letters, and employee handbooks. After an NLRB administrative law judge found one at-will employment provision to be unduly restrictive, many National Labor Relations Board watchers worried about an impending assault on at-will clauses. The offending at-will clause said, “I further agree that the at-will employment relationship cannot be amended, modified, or altered in any way.” This should be revised to read something like, “I further agree/understand that the at-will employment relationship cannot be amended, modified, or altered except in writing by the CEO/President/Executive Director.” This prevents a home care / health care agency supervisor or manager from altering the at-will status of employees.
Changes in State Laws

Minimum Wage Increases
A common state law impacting most employers comes in the area of minimum wage increases. While the federal minimum did not change from $7.25/hourly, on January 1, 2013, 10 states increased their minimum wages. Those states were Arizona, Colorado, Florida, Missouri, Montana, Ohio, Oregon, Rhode Island, Vermont and Washington. Be sure you have the right posters in place and are paying the correct rate in your home care/health care agency.

Paid Sick Leave
Laws that require employers to provide paid sick leave are increasing. In 2012, laws were passed in Seattle, Philadelphia, San Francisco, Connecticut and Washington, DC. In 2013, such laws are being considered in New York, Massachusetts, Miami, and Portland, OR. While employers worry about the cost of such programs, studies show that the cost is minimal – the yearly average number of sick days per employee is three.

Same Sex Marraige
The number of States that have legalized same-sex marriage are increasing and we are currently waiting for a decision on the subject from the Supreme Court. These decisions could impact benefits that you may be providing to your employees. Pay close attention to the news and consult with your benefits provider on how this impacts your benefits plans in your home care/health care agency.

It is impossible in this posting to list all of the regulations that have changed in the several states, including the more than eight changes in California employment regulations. Suffice it to say that it is critical that you pay attention to these occurrences in your state as well as in the federal government.

The legal and regulatory environment is always changing and being aware of the trends and areas of focus by regulatory bodies can help you be proactive in addressing the areas that are high risk for your home care/health care agency. This article should not be used as a substitute for legal advice.

Margaret Jacoby

MJ Management Solutions is a human resources consulting firm that provides small businesses with a wide range of virtual and onsite HR solutions to meet their immediate and long-term needs. From ensuring legal compliance to writing customized employee handbooks to conducting sexual harassment training, businesses depend on our expertise and cost-effective human resources services to help them thrive.

Ms. Jacoby’s extensive HR and professional management experience spans a wide variety of industries. She has earned the nationally-recognized certification of Senior Professional in Human Resources (SPHR) from the Human Resources Certification Institute, Society for Human Resource Management (SHRM). She specializes in directing high-quality human resources functions for small and emerging businesses and non-profits.

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