Federal Employment Law Update – November 2016

Federal

OSHA Anti-Retaliation Regulations Will Take Effect December 1

In a November 28, 2016 decision, a federal district court in Texas denied a preliminary injunction to block the Occupational Safety and Health Administration’s (OSHA) recent final rule, Improve Tracking of Workplace Injuries and Illnesses. This means that the anti-retaliation provisions will take effect on December 1, 2016 and the electronic filing provision takes effect in 2017.

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Texas Court Issues Injunction Blocking New December 1st Overtime Regulations

On November 22, 2016, a federal district court in Texas granted a preliminary injunction that temporarily blocks the U.S. Department of Labor (DOL) from implementing and enforcing its recently revised regulations on the white collar exemptions to the Fair Labor Standards Act (FLSA). The regulations, which were released in May and scheduled to go into effect on December 1, would more than double the minimum salary requirement certain executive, administrative and professional employees must receive in order to be exempt from overtime.

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EEOC Issues Enforcement Guidance on National Origin Discrimination

On November 18, 2016, the U.S. Equal Employment Opportunity Commission (EEOC) issued updated enforcement guidance on national origin discrimination to replace its 2002 compliance manual section on that subject.

The guidance discusses Title VII’s prohibition on national origin discrimination as applied to a wide variety of employment situations and highlights best practices for employers to prevent discrimination. The guidance also addresses developments in the courts since 2002, as well as topics such as job segregation, human trafficking, and intersectional discrimination.

The EEOC also issued two resource documents to accompany the guidance:

  • A question-and-answer (Q&A) publicationon the guidance document; and
  • A small business fact sheetthat highlights the major points in the guidance in plain language.

In fiscal year 2015, approximately 11 percent of the 89,385 private sector charges filed with the EEOC alleged national origin discrimination. These charges alleged a wide variety of Title VII violations, including unlawful failure to hire, termination, language-related issues, and harassment.

Read the Enforcement Guidance on National Origin Discrimination
Read the Q&A Publication
Read the Small Business Fact Sheet

OSHA Issues Final Rule Updating Walking-Working Surfaces Standards and Establishing Person Fall Protection System Requirements

On November 18, 2016, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) issued a final rule updating its general industry Walking-Working Surfaces Standards specific to slip, trip, and fall hazards. The rule also includes a new section under the general industry Personal Protective Equipment standards that establishes employer requirements for using personal fall protection systems.

The final rule’s most significant update is allowing employers to select the fall protection system that works best for them, choosing from a range of accepted options including personal fall protection systems. OSHA has permitted the use of personal fall protection systems in construction since 1994 and the final rule adopts similar requirements for general industry. Other changes include allowing employers to use rope descent systems up to 300 feet above a lower level; prohibiting the use of body belts as part of a personal fall arrest system; and requiring worker training on personal fall protection systems and fall equipment.

The rule becomes effective January 17, 2017.

Read the Final Rule

DHS Amends Regulations on Certain Visa Programs

On November 18, 2016, the Department of Homeland Security (DHS) issued a final rule, Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers, amending its regulations related to certain employment-based immigrant and nonimmigrant visa programs.

Specifically, the final rule provides various benefits to participants in those programs, including the following:

  • Improved processes and increased certainty for U.S. employers seeking to sponsor and retain immigrant and nonimmigrant workers;
  • Greater stability and job flexibility for those workers; and
  • Increased transparency and consistency in the application of DHS policy related to affected classifications.

Many of these changes are primarily aimed at improving the ability of U.S. employers to hire and retain highly-skilled workers who are beneficiaries of approved employment-based immigrant visa petitions and are waiting to become lawful permanent residents, while increasing the ability of those workers to seek promotions, accept lateral positions with current employers, change employers, or pursue other employment options.

The final rule goes into effect on January 17, 2017.

Read the Final Rule
Read the U.S. Customs and Immigration Services (USCIS) Press Release

IRS Extends Deadline for Employers to Furnish Forms 1095-C and 1095-C

On November 18, 2016, the IRS released Notice 2016-70 to extend the due date for employers to furnish Form 1095-C or 1095-B under the Affordable Care Act’s employer reporting requirement. Employers will have an extra 30 days to prepare and distribute the 2016 form to individuals. The due dates for filing forms with the IRS are not extended.

Background

Applicable large employers (ALEs), who generally are entities that employed 50 or more full-time and full-time-equivalent employees in 2015, are required to report information about the health coverage they offered or did not offer to certain employees in 2016. To meet this reporting requirement, the ALE will furnish Form 1095-C to the employee or former employee and file copies, along with transmittal Form 1094-C, with the IRS.

Employers, regardless of size, that sponsored a self-funded (self-insured) health plan providing minimum essential coverage in 2016 are required to report coverage information about enrollees. To meet this reporting requirement, the employer will furnish Form 1095-B to the primary enrollee and file copies, along with transmittal Form 1094-B, with the IRS. Self-funded employers who also are ALEs may use Forms 1095-C and 1094-C in lieu of Forms 1095-B and 1094-B.

Extended Due Dates

Specifically, Notice 2016-70 extends the following due dates:

  • The deadline for furnishing 2016 Form 1095-C, or Form 1095-B, if applicable, to employees and individuals is March 2, 2017 (extended from January 31, 2017).
  • The deadline for filing copies of the 2016 Forms 1095-C, along with transmittal Form 1094-C (or copies of Forms 1095-B with transmittal Form 1094-B), if applicable, with the IRS is:
    • If filing by paper, February 28, 2017.
    • If filing electronically, March 31, 2017.

Prior to the IRS announcement, a process existed for employers to file Form 8809 to request a 30-day extension of the due date to furnish forms to individuals. Notice 2016-70 explains that the new extended due date applies automatically so individual requests are not needed. Employers that had already submitted extension requests will not receive a reply.

Notice 2016-70 also provides guidance to taxpayers who do not receive a Form 1095-B or 1095-C by the time they file their 2016 individual tax return.

Read IRS Notice 2016-70