Federal Employment Law Update – September 2018
HHS Hurricane Florence and HIPAA Bulletin Released
In light of the public health emergencies announced for the Carolinas due to Hurricane Florence, the federal Department of Health and Human Services (HHS) released a Hurricane Florence and HIPAA Bulletin: Limited Waiver of HIPAA Sanctions and Penalties During a Declared Emergency.
Read the bulletin
E-Verify Expands Access to DMV Records
On September 17, 2018, the Department of Homeland Security and United States Citizenship and Immigration Service announced that E-Verify expanded its access to Department of Motor Vehicles (DMV) records. Subsequently, if an employee presents a driver’s license or state ID card as a List B document for Form I-9, and if the document is issued by one of the states and territories under E-Verify’s expanded access, E-Verify will prompt the user to enter the document information into E-Verify. E-Verify is using this process to prepare for an expansion of driver’s license and state ID verification capabilities.
Note that states participating in the Records and Information from DMVs for E-Verify (RIDE) program will continue to verify the validity of driver’s license and state ID card information.
See the press release
NLRB Publishes Proposed Rule to Change Joint-Employer Standard
On September 14, 2018, the National Labor Relations Board published a Notice of Proposed Rulemaking in the Federal Register regarding its joint-employer standard. Under the proposed rule, an employer may be found to be a joint employer of another employer’s employees only if:
- It possesses and exercises substantial, direct, and immediate control over the essential terms and conditions of employment; and
- Has done so in a manner that is not limited and routine.
Indirect influence and contractual reservations of authority would no longer be sufficient to establish a joint-employer relationship.
Public comments on the proposed rule are invited and must be received by the board on or before November 13, 2018.
Read the proposed rule
Updated FCRA Model Disclosures
On September 12, 2018, the federal Consumer Financial Protection Bureau (CFPB) updated the following model disclosures to reflect changes made to the Fair Credit Reporting Act (FCRA) by the Economic Growth, Regulatory Relief and Consumer Protection Act:
- Summary of Consumer Rights
- Summary of Consumer Identity Theft Rights
Under the revised FCRA:
- Nationwide consumer reporting agencies must provide consumers with a new notice of their right to a national security freeze whenever they are required to receive either of the aforementioned notices. This national security freeze must be provided by the consumer reporting agency free of charge. The freeze restricts prospective lenders from obtaining access to a consumer’s credit report and makes it difficult for identity thieves to open accounts in the consumer’s name.
- Nationwide consumer reporting agencies must also include an initial fraud alert in a consumer’s file within one year (extended from 90 days). A fraud alert informs a prospective lender that a consumer may have been a victim of identity theft and requires that the lender take steps to verify the identity of anyone seeking credit in the consumer’s name.
The CFPB permits the use of the new model disclosure or a combination of the 2012 disclosure forms along with a summary of the security freeze rights; however, a separate page that contains the additional required information must be provided in the same transmittal to the consumer.
The security freeze right, the notice requirement, and the change in duration for initial fraud alerts are all effective September 21, 2018.
Minimum Wage for Federal Contractors Increases in 2019
On September 4, 2018, the Wage and Hour Division of the U.S. Department of Labor published notice in the Federal Register of the following:
- The Executive Order 13658 (Establishing a Minimum Wage for Contractors) minimum wage rate that must be paid to workers performing work on or in connection with covered contracts increases to $10.60 per hour.
- The required minimum cash wage that must be paid to tipped employees performing work on or in connection with covered contracts increases to $7.40 per hour.
These rates are effective January 1, 2019.
See the notice
FMLA Forms with 2021 Expiration Date
Over the Labor Day weekend, the DOL released the following Family and Medical Leave Act (FMLA) notices and certification forms with an expiration date of August 31, 2021:
- WH-380-E, Certification of Health Care Provider for Employee’s Serious Health Condition
- WH-380-F, Certification of Health Care Provider for Family Member’s Serious Health Condition
- WH-381, Notice of Eligibility and Rights & Responsibilities
- WH-382, Designation Notice
- WH-384, Certification of Qualifying Exigency for Military Family Leave
- WH-385, Certification for Serious Injury or Illness of Covered Servicemember — for Military Family Leave
- WH-385-V, Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave
The expiration date is the only change from the forms released in August 2018.
See all the forms
DOL Releases New Opinion Letters
On August 28, 2018, the U.S. Department of Labor (DOL) released opinion letters on the following subjects:
- Family and Medical Leave Act (FMLA):
- Fair Labor Standards Act (FLSA):
- Application of 29 U.S.C. § 13(b)(27) motion picture theater exemption to an establishment that is both a theater and restaurant (FLSA 2018-23).
- Compensability of frequent rest breaks required by a serious health condition (FLSA 2018-19).
- Compensability of time spent attending employer-sponsored benefits fairs (FLSA 2018-20).
- Retail or service establishment and the 29 U.S.C. § 7(i) exemption (FLSA 2018-21).
- Volunteer status of nonprofit members serving as global credentialing examiners (FLSA 2018-22).
Opinion letters provide a clearer understanding of FLSA and FMLA compliance and may be relied upon as a good faith defense to wage claims arising under the FLSA but not the FMLA.