2017 was a bit of a wild ride in the employment realm. The Trump Administration worked to change the trajectory set during the eight years of the Obama Administration. This past year, we saw the undoing or attempts to undo many of the Obama Administration initiatives, including the Fair Labor Standards Act (FLSA) updates, changes to the Persuader Rule, interpretations of Title VII as it relates to transgender protections. Not to mention the repeated attempts to chip away at the Affordable Care Act (ACA). In addition, there were several new requirements for employers that went into effect in 2017 and a few upcoming in 2018. Here is a quick review to ensure that your service is up-to-date and compliant.
The Fair Labor Standards Act Changes
These changes, which would have more than doubled the minimum salary levels for those “White Collar” exemptions, were set to go into effect back in 2016. A Federal Court in Texas enjoined and put on hold these changes until the question of whether the Department of Labor (DOL) had the authority to unilaterally change the Regulations. In July, 2016, the DOL published an Request For Information (RFI) with responses due in late September, requesting input from stakeholders about what changes to the FLSA might be appropriate. We are still awaiting the final action.
The Persuader Rule
In 2016, the DOL Office of Labor-Management Standards (OLMS) released its revised interpretation of the rule that seeks to level the playing field between unions and employers. The new interpretation of the Persuader Rule, which would have taken effect on April 25, 2016, would have required that employers who hire consultants or labor attorneys to counsel them during union organizing campaigns to report if they will undertake “persuader” activities and the cost of those services. This rule was an attempt to increase transparency for unions with regard to these services. The U.S. District Court for the Northern District of Texas blocked the persuader rule late last year stating it was overly broad, arbitrary and capricious. The DOL published a notice of public rule making in June, 2017 of its intent to rescind the new rule.
Dismantling of the ACA
In a surprising announcement this past October, the Trump Administration, the DOL, the Department of Health and Human Services (HHS) released an interim rule that rolled back the Obama Administration position regarding the requirement of employer sponsored health plans to pay for “preventative services” which included birth control and abortion procedures under religious or moral objections. This would permit employers who object on these grounds to limit or not offer these coverages under their employer sponsored health plan. There are several lawsuits pending regarding this move, more to come in 2018.
In another October announcement, the Trump Administration stated that the President had signed an Executive Order that directed the Secretary of Labor to consider expanding access to Association Health Plans (AHP) would give employers the right to form groups in multiple states for the purposes of negotiating health care benefits. This change would require a amenedment to the current interpretation of Employee Retirement Security Act (ERISA). In addition, the Executive Order directed the Departments of the Treasury, Labor, and Health and Human Services to consider changing several ACA restrictions, including low-cost short term limited duration insurance (STDLI) and Health Reimbursement Accounts (HRAs). The impact of this Executive Order may be an impact to the ACA insurance markets because it may attract the younger and healthier away from current plan groups causing those coverage costs to increase substantially.
Title VII Transgender Protections
In October, Attorney General Jeff Sessions published memo to Federal prosecutors stating that Title VII’s discrimination protections did not include protections on the basis of gender identity or for transgender individuals. In the memo, Sessions states that this was a conclusion of law, not of policy and that it would be inappropriate for the DOJ to expand the law beyond what Congress provided. Sessions said that the law provides protections for men and women but not specifically on the basis of gender identity. This goes against current interpretation and is not shared by the Equal Employment Opportunity Commission (EEOC) who enforces Title VII. Employers need to ensure that they provide a workplace that is inclusive and respectful to all employees.
EEO-1 Pay Reporting
In February 2016, the EEOC published notice that would add pay information to the EEO-1 reporting form in an effort to further identify disparities in pay between different protected groups. This new reporting requirement was set to go into effect on September 30, 2017. The deadline was pushed back until March 31, 2018. Under the new pay reporting requirements, employers with 100 or more employees would report W-2 wage information and total hours worked for all employees by race, ethnicity and sex within the 12 proposed pay bands. In August, the Office of Management and Budget (OMB) announced plans to stay the effective date of the pay-data collection provisions in order to review the appropriateness of the revisions under the Paperwork Reduction Act (PRA). In the meantime, employers should still observe the March 1, 2018 deadline and prepare the information on the new EEO-1 Form while we await a decision on if this requirement will go into effect.
OSHA Electronic Injury Reporting
OSHA announced in July that it will be launching the new electronic Injury Tracking Application (ITA) on August 1, 2017. The new rules are an effort to “nudge” employers to improve safety in the workplace by publishing employee injury data, as reported by employers. OSHA pushed back the electronic reporting deadline until December 15, 2017. Many ambulance services already report this information electronically to the Bureau of Labor Statistics (BLS), who collects data on behalf of the Department of Labor but the employer specific information is not released publicly. Under these new rules, employer injury data will be published.
The electronic reporting requirements are based on the size of employer. For the purposes of determining employer size, employers must count each individual employed at any time during the calendar year as one employee. This includes full-time, part-time, seasonal, and temporary workers. All employers with 250 or more employees in industries covered by the recordkeeping regulation must electronically submit to OSHA injury and illness information from OSHA Forms 300, 300A, and 301. Employers with 20-249 employees must electronically submit information from OSHA Form 300A only.
If you have not already submitted your data, you need to do so immediately.
New Form I9
Starting this past January 22, 2017, employers were required to begin using the new Form I9. The old Form I9 expired on August 31, 2017. The new form can be found on the US Citizenship and Immigration Services (USCIS) website. To be certain that you are utilizing the correct form, ensure the expiration date of August 31, 2019 is in the top right hand corner of the form. Last year, several ambulance services were audited by the USCIS and fined for technical form violations. The easiest way to ensure that you are using the correct form and filling it out correctly is to utilize the comprehensive online training resources available on the USCIS website.
Summary of State Law Changes
Ban the Box
Currently 29 states and over 150 local municipalities have enacted criminal background inquiry limitations in an effort to give individuals with criminal histories a fair chance to become employed. Several of the states that had already enacted these laws have passed additional provisions in 2017 and 2018 that expand the application to smaller employers.
Most of the laws regarding the “ban the box” movement require the removal of criminal history inquiries on the job application. Others require that no criminal history inquiries can be made until after a conditional job offer is made to the candidate. If you have not done so already, please remove any criminal history questions from your pre-offer process. For those ambulance providers that are in states that specifically permit EMS agencies from inquiring prior to a job offer, I strongly recommend that any criminal history inquiries occur after a conditional job offer is made. State laws permissions do not prevent an employer from being liable for disparate impact discrimination.
Paid Sick Time
Multiple states (AZ, CA, CT, MA, OR, VT, DC) and municipalities already have or have enacted paid sick time laws or ordinances prior to this year. Joining them in 2017 are Federal Contractors and the states of Arizona, Vermont, and Washington. Each of these laws share similar provisions. Employees earn an hour of paid sick leave after having worked a certain number of hours. Most provide for a 90 day period of employment before an employee can utilize the accrued sick time. For the purposes of calculating working hours, the hours are counted across weeks. Most of the laws provide for some carry-over of unused time from year to year.
Several other states have enacted or will be expanding existing paid sick time provisions which will take effect in 2018. (CA, RI, WA, VT). The state of Oregon passed an amendment to the paid sick time law that was enacted in 2016 that permits employers to limit the accrual of sick time to 40 hours per year. In addition, the amendment permit employers to not count certain individuals in the employee count for the purposes of the application of this law.
California has enacted the New Parent Leave Act which takes effect on January 1, 2018. The Act requires employers with 20 to 49 workers to offer 12 weeks of job-protected leave to mothers and fathers for the purposes of bonding with newborn or newly adopted children, or foster care placement. The employer also must maintain the employees’ health insurance and reinstate them at the end of their leave period. The law includes a strong anti-retaliation provision for employees who take leave under this law.
Paid Family Medical Leave
Currently three states (CA, NJ, RI) provide for some form of paid Family & Medical Leave. Starting on January 1, 2018 private employers in New York must provide their employees who regularly work at least 20 hours a week the eligibility to collect paid-family-leave benefits after 26 weeks of employment, and employees who work fewer than 20 hours a week will be eligible after 175 work days. The leave can be used to after the birth, adoption, or placement of a foster child for up to one year. Additionally, the leave can be used to care for the serious illness of a family member or a qualifying reason an employees’ spouse, domestic partner, child, or parent being on active military duty.
The Act will be phased in over the next few years. Providing 8 weeks of leave in 2018 paid at 50% os the state’s average weekly was (SAWW). In 2019, the leave time extends to 10 weeks at 55% of SAWW, 2020 maintains 10 weeks of leave paid at 60% of SAWW, to full implementation in 2021 when an employee can take up to 12 weeks of leave paid at 67% SAWW.
The State of Washington has passed a paid FMLA law that will start collecting premiums from employers in 2019 for enactment in 2020. Washington DC also enacted paid FMLA that will begin in 2020 as well.
Starting in 2018, the State of California will require that employers with 50 or more employees include additional training information fo its employees on gender identity, gender expression and sexual orientation. The training must include practical examples of harassment. The new law also requires employers to post a poster, developed by the California Department of Fair Employment and Housing, on transgender rights. In addition, the currently mandated two hour supervisor training must also include this new information and provide for annual updates to training programs.
That’s a Wrap
For many employers 2017 proved to be an unusual and challenging year. Aside from the changes details above, it is uncertain what lies on the horizon for EMS employers in 2018. As always, the American Ambulance Association will keep you posted on the important employment and human resources developments that may impact you.