Complying with the EEOC Wellness Programs Regulations

Is Your Employee Wellness Program Discriminatory?

The EEOC has issued rules that set limits on wellness programs that require employees to answer disability-related questions or undergo medical exams, such as health risk assessments or blood pressure checks, to either earn a reward or avoid a penalty. The rules apply only to workplace wellness programs beginning on or after January 1, 2017.

The term "wellness program" generally refers to health promotion and disease prevention programs and activities offered to employees as part of an employer-sponsored group health plan or separately as a benefit of employment.

Many of these programs ask employees to answer questions on a health risk assessment (HRA) and/or undergo biometric screenings for risk factors (such as high blood pressure or cholesterol).

Other wellness programs provide educational health-related information or programs that may include nutrition classes, weight loss and smoking cessation programs, onsite exercise facilities, and/or coaching to help employees meet health goals.

Under the final ADA rule, companies may offer incentives of up to 30 percent of the total cost of self-only coverage in connection with wellness programs. If the incentives stay under the 30-percent threshold, the wellness program still will be considered voluntary and will not violate ADA prohibitions against disability-related inquiries or medical exams.

The final GINA (Genetic Information Nondiscrimination Act) applies to wellness programs offered by employers that request health information from employees and their spouses. It provides that the value of the maximum incentive attributable to a spouse's participation may not exceed 30 percent of the total cost of self-only coverage, the same incentive allowed for the employee.

No incentives are allowed in exchange for the current or past health status information of employees' children or in exchange for specified genetic information (such as family medical history or the results of genetic tests) of an employee, an employee's spouse, and an employee's children.

The rules permit wellness programs to operate consistent with their stated purpose of improving employee health while including protections for employees against discrimination.

Many employers offer workplace wellness programs intended to encourage healthier lifestyles or prevent disease. These programs sometimes use medical questionnaires or health risk assessments and biometric screenings to determine an employee's health risk factors, such as body weight and cholesterol, blood glucose, and blood pressure levels. Some of these programs offer financial and other incentives for employees to participate or to achieve certain health outcomes.

Lauren Sims, the author of this article, is an eqHR Solutions Principal Human Resources Consultant.

When your business requires professional Human Resources or Payroll advice to navigate the ever-changing landscape of California and Federal Employment Laws & Regulations, contact us for a no obligation consultation.

eqHR Solutions provides professional, tactical and strategic, human resources support, ADP payroll product implementation/training and payroll processing services for businesses throughout Southern California.

California Required Breaks

Employees Who Work Outdoors

Summer Heat is Coming- Make Sure You’re Complying with Recovery Period Requirements

Employers in California who have employees that work outdoors should evaluate their business’ heat illness risks and prevention programs before the warmer months to ensure they decrease the likelihood of heat illness and are in compliance with California law.

Cal-OSHA requires all employers with “outdoor places of employment” to implement a heat illness prevention program that includes providing workers five-minute “cooldown” rest breaks in the shade as employees feel the need to do so. “Outdoor places of employment” is not specifically defined.

Beginning Jan. 1, 2014, under Labor Code Section 226.7, California requires employers to provide one hour of pay to employees for missed recovery or “cooldown” periods to prevent heat illness.

A “recovery period” is defined as “a cooldown period afforded an employee to prevent heat illness.” Employers cannot require an employee to work during a recovery period.

The number of recovery periods, unlike the meal-and-rest periods is not controlled by the length of the scheduled work time in a day. The regulations do not address whether an employer may limit the number of recovery periods in a single shift or work day. They also do not address whether the employer may limit the length of a recovery period to five minutes or some other period.

Thus, at a minimum, employers with outdoor places of employment (or with employees who work outside for part of the day) should consider taking the following steps:

1. Revise meal-and-rest-period policies to include recovery periods or implement a separate, written policy providing recovery periods;
2. Adopt a written heat illness prevention program or reevaluate written materials for existing programs to ensure compliance with all applicable requirements of Section 3395; and
3. Implement procedures to pay employees for missed recovery periods.

Heat illness prevention regulations are not limited to employers in certain industries (such as construction). Under the California occupational safety and health regulations, all employers with outdoor places of employment must adopt and implement a heat illness prevention program.

The regulations apply to all outdoor places of employment regardless of the temperature. Therefore, even employers located in historically cooler areas are within the reach of the heat illness prevention regulations.

When outdoor temperatures exceed 85 degrees Fahrenheit, an employer must provide one or more areas of shade that are open to the air or have ventilation or cooling. When outdoor temperatures do not exceed 85 degrees Fahrenheit, the employer must “provide timely access to shade upon an employee’s request.”

An employer that fails to comply may be required to pay each affected employee one hour of pay, as well as being subject to Cal-OSHA citations and proposed penalties.

Lauren Sims, the author of this article, is an eqHR Solutions Principal Human Resources Consultant.

When your business requires professional Human Resources or Payroll advice to navigate the ever-changing landscape of California and Federal Employment Laws & Regulations, contact us  for a no obligation consultation.

eqHR Solutions provides professional, tactical and strategic, human resources support, ADP payroll product implementation / training and payroll processing services for businesses throughout Southern California.

Employer Retaliation - # 1 EEOC Complaint

Protect Your Business from EEOC & DFEH Retaliation Claims

In recent statistics released by the US Equal Employment Opportunity Commission (EEOC) and the California Department of Fair Employment and Housing (DFEH), for the fiscal year 2016, retaliation was the number one charge against employers on both the state and national levels.

Nationally, retaliation took the No. 1 spot with 42,018 charges (45.9% of all charges filed).

In California, retaliation (all statutes) also took the number one spot with 2,937 charges filed (7% of total U.S. retaliation charges).

Employers must remember that the same laws the protect employees from discrimination and harassment also protect them from retaliation.

Under California law, workplace retaliation is unlawful if an employer punishes an employee for protected activities which include: reporting illegal conduct, refusing to engage in illegal conduct, reporting fraud, filing a wage claim with the California Labor Commissioner, filing discrimination lawsuits, complaining of workplace discrimination or harassment and assisting other employees in filing a lawsuit or complaint of illegal activity in the workplace.

Federal law also protects employees from workplace retaliation if they file a discrimination or harassment complaint at work. An employer also cannot lawfully punish an employee for cooperating with EEOC investigations or if they decide to serve as a witness against the business. This is also true of whistleblower activities such as complaining of unsafe working conditions.

Savvy HR Departments must keep a lookout. It may be easy to identify a manager’s retaliatory activity when they want to immediately terminate an employee shortly after they file a harassment complaint. However other times it’s not as clear. Remember that only those changes that have an adverse effect on employment are considered retaliatory.

Below are some examples of activity that can be considered retaliation:

• Unfair disciplinary action
• Negative performance reviews
• Micromanagement shortly after filing a complaint
• Exclusion from project meetings that you’ve been working on
• Denial of ongoing training
• Denial of promotions
• Denial of raises
• Increased workload
• Termination

How can you ensure that your company is not charged with retaliation?

HR must have an open door and empower employees to report complaints and must communicate to both employees and managers that there is a zero tolerance policy on retaliation.

HR can help deter retaliation by incorporating best practices that will help employers prevent or reduce the likelihood of a retaliation charge or lawsuit.

Employers should take the following steps to prevent retaliation:

• Create an anti-retaliation policy.
• Communicate with employees about the process for reporting alleged retaliation.
• Train managers and employees.
• Remind supervisors under investigation of the organization's anti-retaliation policy that they will be subjected to disciplinary action if they retaliate against individuals who complain of discrimination or who provide information related to a discrimination complaint.
• Monitor the treatment of employees who file a workplace complaint or who provide information related to a complaint.
• Investigate allegations of retaliation and take prompt corrective action when warranted.

Internal complaint procedures are an important component of any initiative to prevent retaliation claims. Ensuring that employees have an avenue to report concerns isn’t just helpful; in many cases, it is required by law.

Communicating and training your managers to identify protected activity and to ensure they moderate their own actions toward employees is also crucial in preventing retaliation.

Lauren Sims, the author this article, is an eqHR Solutions Principal Human Resources Consultant.

When professional Human Resources or Payroll advice is required to navigate the ever-changing landscape of California and Federal Employment Laws & Regulations, call for a no obligation consultation.

eqHR Solutions provides professional, tactical and strategic, human resources support, ADP payroll product implementation/training and payroll processing services for businesses throughout Southern California.

When is an ON-DUTY Meal Period is Permissible?

Recently, I was asked by a client if they were in compliance if they had a non-exempt employee who could not take a meal period but paid them the hour as straight time. The non-exempt employee is a shift supervisor and cannot be relieved of their duties for 30 the required minutes.

My first reaction was, “of course not!” But then I thought about it for a minute, and realized that they were essentially paying the employee for an on-duty meal period every day, and if they had an on-duty meal period agreement with this employee, could it be ok?

To answer my own question, I did some research and yes, in fact, it could be ok. However, how the employer defines whether or not the employee can be relieved of all duties is the key to whether this is permissible or not.

In California, generally, employers are required to provide meal and rest periods to non-exempt employees. Under the applicable California Industrial Welfare Commission (IWC) Wage Orders, employers must provide a 30-minute, off-duty meal period prior to the end of the fifth hour of a work shift.  

As a refresher, the Division of Labor Standards Enforcement (DLSE) has set forth the following three criteria in assessing whether an On-duty meal period is permissible:

1. The nature of the work must prevent the employee from being relieved of all duty during the meal period;
2. The employee and employer must have previously entered into a signed agreement authorizing an on-duty meal period; and
3. The signed agreement must expressly state that the employee may, in writing, revoke the agreement at any time.

The next step - Determine if the employee cannot be relieved of duty.

The DLSE applies a “multi-factor objective test” to determine whether the nature of the work justifies an on-duty meal period:

• The availability of other employees to provide relief to an employee during a meal period;
• The potential consequences to the employee, if an employee is relieved of all duty;
• The ability of the employer to anticipate and mitigate these consequences; and
• Whether the work product or process will be destroyed or damaged by relieving the employee of all duty.

The DLSE website provides examples of jobs when on-duty meal periods meet this standard, including:

1. A sole worker in a coffee kiosk
2. A sole worker in an all-night convenience store
3. A security guard stationed alone at a remote site

In an opinion letter, the DLSE has stated that on-duty meal periods were not appropriate for a fast food shift manager when other employees were present. The same would apply to a shift manager in another retail store environment.

In the letter, the DLSE states that they “cannot fathom why the other employees of the restaurant could not function in the absence of the shift manager for thirty minutes.” Even, as the employer asserts, that the employees may have questions that only the shift manager can answer.

So, what does that mean for most employers?

If you have a non-exempt employee who is not the sole worker at a location and cannot take a meal break, you should pay them the meal penalty for those days they could not take a meal break, or could not take their meal break before the end of the fifth hour of work.

If you have an employee who is a sole worker at a location and the nature of their work fulfills the requirements above, then you may provide them an on-duty meal period.

Please remember that you have to allow them the opportunity to eat a meal during their work time before the end of the fifth hour of work.

Lauren Sims, the author of this article, is an eqHR Solutions Principal Human Resources Consultant.

When professional Human Resources or Payroll advice is required to navigate the ever-changing landscape of California and Federal Employment Laws & Regulations, call for a no obligation consultation.

eqHR Solutions provides professional, tactical and strategic, human resources support, ADP payroll product implementation/training and payroll processing services for businesses throughout Southern California.

Time for an I-9 Compliance Refresher?

I-9 Compliance

The Immigration Reform and Control Act of 1986 (IRCA) was established to prevent individuals who are not eligible to work in the United States from performing work. The act requires employers to complete an I-9 form for each employee within three days of hire.

Employers are required to perform the following I-9 verification requirements and to treat all new hires the same. This includes the following:

1. Complete the I-9 form for all new hires. This form establishes that individuals hired are authorized to work in the United States.
2. Permit employees to present any document or combination of documents acceptable by law. Employers cannot prefer one document over others for purposes of completing the I-9 form. If the documents are unexpired, allowed according to the list of acceptable documents on the most current I-9, and appear to be genuine and issued to the person presenting them, they should be accepted. Acceptable documents are listed at the end of the I-9.
3. Update and re-verify I-9s as needed.

If you discover problems with your I-9s, consider taking the following actions:

1. Conduct an audit to understand the scope of the problems;
2. Address problems that you find; and
3. Attempt to prevent future problems by implementing best practices.

Best Practices for Conducting an I-9 Audit

Step One: Preparing for the Audit

Determine the scope of your audit, will you review all the i-9 forms or only a sample? If you choose to review a sample, select the sample carefully. Make sure not select the forms to be audited based on employee's national origin or citizenship status. The safest approach may be a random sampling of forms.

Step Two: Conducting the Audit

Employers must check to see that there is an I-9 on file for every current employee who performs work for the employer in the United States. Employers should keep a list of current employees for whom they do not have an I-9.

Employers should not have an I-9 for nonemployees who may perform work, such as volunteers, independent contractors or consultants. If an employer does have an I-9 for these individuals, it should be removed from the employer's official I-9 file.

Employers should have two files of I-9s:

1. I-9 forms (electronic or paper) for current employees.
2. I-9 forms (electronic or paper) for terminated employees.

What to look for when auditing

1. Missing forms

2. Employers need to check the following information in each section of the I-9:

1. Section 1
1. The name, address, maiden name and date of birth must be completed.
2. For the current I-9, the Social Security number is voluntary except for employers that participate in the E-verify program.
3. The employee must identify his or her immigration status and sign and date the form.
4. The preparer or translator section is to be completed only if someone other than the employee completed Section 1 on behalf of the employee.
2. Section 2
1. The proper document must be entered into the appropriate column. For example, employers must ensure that a List B document is in fact listed under List B and not under List C or List A.
2. All required information must be entered for each document.
3. The documents listed must satisfy the requirement to provide both proof of identity and proof of eligibility to work in the U.S.
4. The certification section must be completed, and a representative of the company must sign and date the form.
3. Section 3
1. This section should be completed only if the employee's work authorization expired or if the employee has been rehired. It can also be completed if the employee had a name change, but this is not required. In most cases, Section 3 will be blank.
2. Expired permanent resident cards and List B documents from the I-9 do not need to be reverified. These documents must not be expired when the I-9 is initially completed, but their subsequent expiration does not trigger the requirement to re-verify the I-9.
3. You should exercise caution throughout the audit to avoid unlawful immigration practices. The purpose of your audit is to ensure compliance with the federal immigration law, not to target or single out specific employees. Ensure that nothing about the timing or scope of the audit is or could be perceived to be discriminatory or retaliatory.

Step Three: Address Problems in the I-9s

Each I-9 should be reviewed and put into groups based on your findings. The problem I-9s will be handled separately and in priority order. Current employees who have no I-9 on file are the highest priority, as their eligibility to work in the United States should be verified as quickly as possible.

Missing I-9s

If you have missing I-9s, you should complete the current version of the I-9 as soon as possible. You should not backdate the form when you sign it, although you should indicate the actual date employment began in the relevant section.

Missing or Incorrect Information on the I-9

The employer should not make any corrections to Section 1. If you find incorrect or missing information in this section, the employee will need to make any necessary corrections. To do so, the employee should draw a line through the incorrect information, enter the correct or missing information, and initial and date the corrected or missing information.

If an I-9 for a former employee contains incorrect or missing information, you can attach a signed and dated statement to the existing I-9 identifying the incorrect or missing information in the form and explaining that the I-9 cannot be corrected because the employee is no longer employed by you.

Employers should follow the same procedure for missing or incorrect information is in Sections 2 or 3. You should not try to conceal changes made to I-9s, either by erasing or covering up existing information. If there are too many errors to correct, you can redo the sections (2 and/or 3) containing errors on a new I-9 with the complete and accurate information, sign and date it with the current date, and staple it to the existing I-9.

Whether you correct an I-9 on the existing form or on a new form, you should also always attach a signed and dated explanation of the action taken.

If Sections 2 or 3 were not completed on the existing form, you should complete them as soon as possible, list the actual date that the person’s employment began and sign and date the section with the current date. Also attach a signed and dated explanation of the steps taken to correctly complete the I-9.

Step Four: Complete the Audit

As corrections are made and missing I-9s begin to come in, an employer's task will be to organize the I-9s and clearly document the steps it took during the audit. Employers can refer to the guide on how to retain and file I-9s for additional guidance on how to organize their I-9 files. Employers may wish to print this procedure to document the process they followed during the audit process. Employers should also retain the I-9 audit logs and communications to employees regarding the I-9 audit process. Employers may wish to keep the audit documentation in a separate I-9 audit file or to place this documentation in their files with the I-9 forms themselves.

Ensuring your I-9s are compliant is extremely important. Employers can face civil and criminal penalties for knowingly hiring or continuing to employ individuals who are not authorized to work in the United States. Federal immigration law requires that all employers verify that an individual is authorized to work in the United States before employing that person. You verify employment eligibility by completing the I-9 for every new employee. If you don’t comply with the requirements — either by not completing the form or not doing so properly — you can face sanctions.

Lauren Sims, the author of this article, is an eqHR Solutions Principal Human Resources Consultant.

When professional Human Resources or Payroll advice is required to navigate the ever-changing landscape of California and Federal Employment Laws & Regulations, call for a no obligation consultation.

eqHR Solutions provides professional, tactical and strategic, human resources support, ADP payroll product implementation/training and payroll processing services for size businesses throughout Southern California.