As we wind up 2016 I thought it would be a good idea to review the year’s human resource and legal developments to ensure that our members are compliant and prepared for what faces them in 2017. We knew that this was going to be an interesting year as we experienced the most unusual Presidential Election in our history. It overshadowed everything else that occurred in 2016. As the Obama administration comes to its final days, employers and ambulance providers saw some of the most sweeping regulatory changes.
Fair Labor Standards Act (FLSA)
The biggest change facing employers in 2016 was the Fair Labor Standards Act (FLSA) overtime changes. The Department of Labor (DOL) issued updated regulations which were to become effective December 1, 2016, raising the minimum salary thresholds for the so called “white collar” exemptions. Under the new regulations, the minimum salary would increase from $455 to $970 per week. For those employees earning under the new amount, employers would need to decide if they are going to raise the salary level or pay the employee overtime for hours worked over 40 in one week. The changes have not gone into effect yet as a 5th Circuit Judge issued an injunction on the implementation of the new Regulations until the question of their legality is determined.
Most employees in the ambulance industry are hourly paid employees and the Regulatory changes are will not affect their overtime eligibility. However, ambulance providers should take these changes as an opportunity to evaluate each position within their organization and ensure that any exempt position is appropriately classified.
Civil Penalty Changes
This past August the Department Of Labor published two interim final rules that adjusted the penalties for enforcement actions by several of its agencies. The penalties increased because Congress passed the Federal Civil Penalties Inflation Adjustment Act in 2015 last November with the intent of improving the effectiveness of civil monetary penalties and hopes of maintaining their deterring effect. Many agency penalties had not been adjusted since 1990.
The new penalties will only be applicable to penalties assessed after August 1, 2016 for violation that occurred after November 2, 2015. The DOL posted a chart detailing all of the penalty increases.
Many of the mandated employer postings also experienced a change this year as a result of the FLSA Regulation updates and because of the Civil Penalty increases. Employers need to be sure to update the required Federal employment postings in their workplaces. The new postings are available on the Department of Labor’s website free of charge. Alternatively, many employers purchase the all-in-one combination Federal and State posters from third party vendors. Whether obtained from the DOL or from a vendor, the postings need to be updated to reflect these new changes.
Fair Labor Standards Act (FLSA)
The required FLSA posting will reflect the change to the classification of employees, requirements for nursing mothers, and updated enforcement section. The new posting also removes the prior reference to a specific penalty amount as the penalties will adjust at regular intervals under the penalty adjustment changes.
Occupational Health & Safety Act (OSHA)
In May, the AAA published an advisory notifying members about upcoming changes to the reporting requirements under OSHA, including provisions regarding the notification to employees of non-retaliation for those who file work injury or illness claims. The non-retaliation notice provisions became effective November 1, 2016. The new OSHA posting reflects the notice to employees regarding the non-retaliation provisions.
Employee Polygraph Protection Act (APPA)
Like the FLSA posting, the Employee Polygraph Protection Act (EPPA) posting has changed to reflect the removal of a specific penalty amount. The new EPPA posting can be found on the DOL’s website.
One of the more active debates during the end of 2015 and for most of 2016 was an issue not directly related to employers but that had significant impacts on employers was the North Carolina House Bill 2. HB 2 was sweeping legislation that required restroom and locker room facilities be utilized by individuals based upon the gender listed on their birth certificate.
In May, the Department of Justice filed a Civil Rights suit against the State of North Carolina and its Governor stating that the legislation was “state sanctioned discrimination” and was illegal. After several legal challenges it appears that the legislation will be repealed by the new North Carolina administration. Even without the repeal of the legislation employers were on notice that all Federal regulatory agencies included transgender rights as protected under Title VII and subject to the law.
This is notice to employers that they need to allow all employees to utilize the restrooms and changing facilities that are consistent with their gender identity. The best practice for employers is to provide privacy for all individuals, whether or not they are in a gender specific facility. This means that restroom and shower facilities should provide as much privacy as possible. This could include installing privacy strips to restroom stalls, large partitions between urinals, and privacy curtains for showers. Employers should not assume that individuals born the same gender are comfortable with or do not seek the same privacy in these setting as do individuals of different genders. The message should be to respect the privacy of all individuals regardless of their gender or gender identity.
Affordable Care Act (ACA) Section 1557 Rules
This past July new Regulations, which implement Section 1557 of the Affordable Care Act (ACA), became effective. The provisions of Section 1557 build off of existing Title VII and other discrimination laws that extend protections to previously underserved or under-represented groups of people with regard to healthcare. The new Regulations prohibit discrimination on the basis of race, color, national origin, sex, age, or disability in certain health programs or activities. In addition, the Regulations provide discrimination protections on the basis of pregnancy, gender identity, and sex stereotyping. The Final Rule also requires that “covered entities” make available assistance for individuals with Limited English Proficiency (LEP) and those with disabilities, including communications related disabilities.
The new Regulations require that covered entities have a Compliance Coordinator and a Grievance Procedure. The Compliance Coordinator is to monitor and coordinate compliance with the provisions of the Final Rule. The Grievance Procedure has to provide the appropriate due process standards that would allow for the prompt and equitable resolution of complaints concerning actions prohibited by Section 1557. HHS has included a sample Grievance Procedure in Appendix C to Part 92—Sample Section 1557 of the Affordable Care Act Grievance Procedure to assist covered entities in meeting this requirement.
In addition, the Regulations require that all covered entities post notices assuring patients that the covered entity does not discriminate on the basis of race, color, national origin, sex, age, or disability and that auxiliary aides and services for individuals with Limited English Proficiency (LEP) and Communication related disabilities. To alert these individuals, ambulance providers must post a notice regarding the availability of these aids and services in the top 15 languages spoken in the state of operation.
A Look Ahead to 2017
Starting in 2017, employers will be required to electronically report work related injuries to OSHA. The AAA posted information about this new requirement last week. Employers should anticipate increased OSHA investigatory activity following this first year of injury reporting. Currently, OSHA obtains the majority of their injury data from employee complaints or on site visits. These new reporting requirements are intended to persuade employers to be more proactive with regard to workplace safety. As we learn more about the tools OSHA will utilize to collect this information, we will notify members.
EEO-1 Pay Reporting
The Equal Employment Opportunity Commission (EEOC) and the Office of Federal Contract and Compliance Programs (OFCCP) have approved a new EEO-1 Form that will be used starting with the 2017 report, which will be due on March 31, 2018. The new report requires private employers, including federal contractors and subcontractors, with 100 or more employees to submit summary pay data on the EEO-1 Form. Federal contractors and subcontractors with 50-99 employees will not submit summary pay data but will continue to report demographic data (sex and race or ethnicity) on the EEO-1 as they did before. Also, Federal contractors and subcontractors with 49 or fewer employees, and companies without federal contracts with 99 or fewer employees, will not be required to complete the EEO-1 report. The goal is to remove the pay inequities amongst different protected classes.
Employers will have some time to make the necessary changes to their systems to ensure that their systems can collect and report this data.
Minimum Wage Increases
There are 21 states that are going to have a minimum wage increase in 2017. While most of our industry pay rates are above the minimum wage amounts. Services should check their state minimum wage to ensure that their mandated minimum wage pay and postings are up to date.
New Form I9
Just a reminder that employers will be required to use the new Form I9 for all employees hired on or after January 22, 2017. The USCIS announced last month that it has updated the Form I9 and for employers to begin utilizing these forms no later than January 22, 2017. For more information on the new Form I9, view the IRS Press Release announcement posted last month.
New W2 Reporting Requirements
Employers need to be aware that the Internal Revenue Service (IRS) has moved up the date that employers have to file their Form W2 with the IRS. Previously, employers had until the end of February to file their Form W2s with the IRS. Under the new deadline, employers must file all Form W2 by January 31, 2017. The January 31st deadline has long applied to furnishing of the Form W2s to their employees. For more details on the new filing deadline, read the IRS Announcement.
Signing Off for 2016
This has proven to be an incredibly busy year for all employers, including ambulance providers. AAA Members should remember that there are numerous resources available through the AAA in the Member Area on the website, through AAA Staff and Consultants, and also with the hundreds of members who are all working together to care for the patients and communities we serve. Do not face the challenges in your organization alone. Your membership brings with it a great deal of tools and resources so that you can focus on providing your patient with outstanding service. Happy New Year.