HR Tips & eAlerts

At Accuchex, we believe that the human resources department is the heart of every organization. It’s important that HR departments run as smoothly and efficiently as possible. Below you can find a collection of tips for HR professionals and eAlerts with law and compliance updates. This page is updated on a monthly basis.

January 19, 2018

Federal Law Alert

Reminder: OSHA 300A Forms Must Be Posted by February 1

The Occupational Safety and Health Administration (OSHA) mandates that all employers with more than 10 employees—except those in exempt low-risk industries—maintain a record of work-related injuries and illnesses. Those who are required to maintain these records should use OSHA’s Form 300: Log of Work-Related Injuries and Illnesses or an equivalent state-specific form.

Those same employers must then post OSHA’s Form 300A: Summary of Work-Related Injuries and Illnesses each year between February 1 and April 30. As its name implies, Form 300A summarizes (and sanitizes) the information logged on Form 300.

OSHA Form 300A must be certified by a company executive and posted in a conspicuous location where notices to employees are customarily posted. The notice must be posted even if there were no workplace-related injuries or illnesses.

The OSHA Form 300 and 300A, as well as detailed instructions, can be found by searching for OSHA Form 300 in the HR Support Center and selecting “OSHA Form 300, 300A, 301, and Instructions” from the Forms tab.

A full list of the industries exempt from OSHA recordkeeping requirements can be found by searching OSHA Fact Sheet in the HR Support Center and selecting “OSHA Fact Sheet: Reporting and Recordkeeping Rule and Partially Exempt Industries List” from the Guides tab.

In addition to these internal recordkeeping requirements, certain employers with 20 or more employees must submit their OSHA 300A form online by July 1. The website for submission is OSHA’s Injury Tracking Application (ITA), which can be found here.

Our HR Pros are here to help. Do you have any questions about this eAlert?  Contact us over the phone at: (877) 880-4772. Online via your HR Support Center. Not a HR Support Center customer?  Click here to learn more about this service.

January 9, 2018

DOL Adopts New Unpaid Intern Test

Last Friday the Department of Labor (DOL) adopted a new test for unpaid interns. Employers should use this test—called the primary beneficiary test—when determining if a worker can be properly classified as an unpaid intern or if they need to be classified as an employee and paid minimum wage and overtime. The test adopted by the DOL has already been in use in four federal appellate courts, most recently the Ninth Circuit Court of Appeals. The DOL’s switch to the primary beneficiary test creates a nationwide standard.

Balancing v. All-or-Nothing

Previously, the DOL was using a six-question all-or-nothing test. An employer needed to be able to say “yes, the internship does that” to all six questions or else classify the worker as an employee. The new test is a balancing (or factors) test and has seven questions. No single question will disqualify the worker from being classified as an unpaid intern. Instead, the employer may look at the answers as a whole.

The New Questions

The new questions overlap significantly with the old questions. The major element missing from the new test is a focus on whether the intern is providing a tangible benefit to the employer. The old test indicated that the employer should receive little to no benefit from the services of an unpaid intern, with the exception of goodwill and a qualified future applicant. The new test doesn’t ask if the employer is receiving a benefit.

In place of questions about whether the employer receives any benefits, the new test places more emphasis on the internship being academically focused. Only one of six questions in the old test asked about the training and educational aspects of the job, whereas four of seven do in the new test. Employers are free to look at factors outside of these seven, but should be careful about stretching to find new questions if these seven lead to an answer of “paid employee.”

Under the primary beneficiary test, employers should consider the following:

  1. The extent to which the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee.
  2. The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by educational institutions.
  3. The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.
  4. The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar.
  5. The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.
  6. The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.
  7. The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.

January 2, 2018

How to Reduce Absenteeism

Taking time away from work is good for the health and morale of employees. When they can rest during an illness, recuperate after an injury, or tend to affairs in their personal lives, they’re better able to focus at work and engage in the tasks at hand. Too many absences, however, can be costly for employers and frustrating for other employees who have to pick up the slack.

A lot of absences may be sign of absenteeism, which occurs when employees skip work for no good reason. You may not be able to prevent the illnesses, injuries, or family emergencies that keep employees from coming to work, but you can and should do something about absenteeism. Fortunately, there are a few steps you can take.

The first step to reduce absenteeism is to make sure you have a clear attendance policy. This policy should state your expectations for attendance and the procedures for time-off requests—as well as the possible consequences for employees who violate the policy. Having and following a clearly-written attendance policy makes it easier to hold people accountable to it.

The second step is to make sure you’re following all applicable leave laws. If your company is subject to the Family and Medical Leave Act, for example, you may be required to provide job-protected leave to an employee who needs a leave of absence to seek care for themselves or a family member. A number of states and municipalities have sick leave laws that may guarantee employees a certain number of sick days per year. Make sure you give employees the option to take all the time off to which they’re legally entitled. You can certainly give employees more time off than what the law requires, and allowing for more expected absences may help reduce the number of unexpected ones. Just make sure you offer this leave in a non-discriminatory manner, consistent with your policy.

Third, use discipline for policy violations. If an employee has been missing work without a legitimate reason and in violation of your policy, you should discipline them. Depending on the severity of the absenteeism, you might start with an oral or written warning and then move up from there. Reoccurring absenteeism could be grounds for termination if you’ve given the employee fair warning and they haven’t improved.

The fourth step to reducing absenteeism is to create a workplace where people want to be. If absenteeism is widespread or higher than you find acceptable, assess the management styles and employee interactions in your workplace. Are people generally happy? Do they get along? Are there any issues of concern, such as bullying? Do employees have opportunities to get to know one another and form collaborative and supportive relationships? Do they feel supported and valued by management? You can stop attendance problems before they start by building a workplace where people are inspired to work hard, do well, and celebrate success.

December 1, 2017

Preventing Sexual Harassment in the Workplace

Last year, nearly 27,000 charges of sexual harassment were filed with the Equal Employment Opportunity Commission (EEOC). This number doesn’t include charges filed with state and local agencies or situations where employees went directly to an attorney, and many employees who are victims of sexual harassment or are affected by it never report the incidents at all.

Victims and witnesses of harassment often refrain from reporting because the harasser has the power to retaliate or because the organization has not set up adequate channels for reporting. In other cases, victims report the harassment, but nothing is done about it. The harassment is excused, and the complaints are rebuffed. Word gets around that the organization tolerates harassment, and people cease reporting it internally. They either keep quiet, file charges with a governmental agency, or seek out an attorney.

None of these outcomes is good for employers or for the people they employ. If litigation ensues, harassment can cost employers hundreds of thousands of dollars—millions even, if harassment is pervasive in the company culture. And when harassment continues unabated, victims suffer physically and psychologically, and often see their careers stifled.

Needless to say, the workplace should be a safe and secure place, and it’s the employer’s responsibility to make it that way. No one can prevent all harassment from happening, but employers can and should do everything in their power to prevent harassment and appropriately respond when it occurs. Training employees on what constitutes harassment and how to respond to it is a good and necessary first step, but employers also need to establish multiple options for reporting, investigate allegations promptly and thoroughly, and take appropriate steps to discipline violators.

The EEOC recommends these additional preventive measures:

  • Make an organizational commitment to diversity, inclusion, and respect—and establish policies and procedures to hold people accountable to that commitment.
  • Empower those who are responsible for responding to allegations of harassment and preventing harassment from occurring.
  • Establish a sense of urgency and seriousness about prevention by spending appropriate amounts of time and money on training or other prevention and response activities.
  • Survey employees on whether they’re currently being harassed or know of harassment taking place.
  • Avoid rewarding managers for minimum complaints on their team, as doing so could incentivize the suppression of reporting.
  • Protect people from retaliation.
  • Assess risk factors.
  • Assess preventative measures already in place to ensure they are effective.
  • Clarify what behavior is prohibited.
  • Use discipline proportional to the offense (sexual assault and an offhand remark shouldn’t necessarily have the same consequence).

For any of these measures to work, employees need to know that if they report harassment, their report will be taken seriously, they’ll be protected from retaliation, and the harassment will stop. In short, they need to trust their employer. Consequently, anything an employer does to foster distrust will make anti-harassment measures much less effective. When it comes to preventing harassment, employers cannot say one thing and do another. Honesty and accountability are key. Trust can take time to build, but it can be lost in a moment.

October 20, 2017

California Law Update: California Bans Salary History Inquiries

Beginning January 1, 2018, California employers will no longer be able to ask applicants about their current or previous salary or hourly rate of pay, whether on an employment application or during the interview process. Additionally, employers must provide an applicant with the pay scale for the position upon reasonable request.

If an employer is aware or becomes aware of an applicant’s salary history, that information should not be used to determine the rate of pay offered, unless the information was volunteered by the applicant without any kind of prompting. In accordance with the California Equal Pay Act (which is already in effect), even if salary history is provided without prompting, it must not be the only basis for a disparity in pay between employees.

The good news is that if you’ve been using the Employment Application currently available in the HR Support Center, your application form is already in compliance. And if you haven’t been using it, it’s easy to download now. Just use the search bar in the HR Support Center and type in Application Form. The document is available in both English and Spanish.

September 15, 2017

Reminder: Employers Must Begin Using the New I-9 Form on Monday, September 18

Beginning Monday, September 18, employers must use the revised Form I-9 for all new employees. This new version of the form has the revision date of 7/17/17. The I-9 form can be found here or on the HR Support Center.

You can visit USCIS’s I-9 Central or the News Desk section of the Support Center to learn more about the changes.

September 6, 2017

Employment Law Updates

EEO-1 Pay Data Reporting Suspended Indefinitely

Last week, the Office of Management and Budget put an indefinite hold on the pay data collection portion of the EEO-1 form that was revised on September 29, 2016. The version in effect prior to September 2016, which collects data on race, ethnicity, and gender by occupational category, remains in effect.

The EEO-1 form only applies to private employers with 100 or more employees and public contractors with 50 or more employees. Affected employers should plan to submit the earlier-approved EEO-1 by the previously-set filing date of March 2018.

Overtime Rule Doubling Minimum Salary for While Collar Workers Officially Dead

On August 29th, Judge Mazzant in the Eastern District of Texas issued his ruling on the Department of Labor’s overtime rule changes. The rules, which were slated to go into effect on December 1, 2016, have been on hold since he issued an injunction last November. As anticipated, the Judge ruled in favor of the Plaintiffs, finding that the DOL had overstepped its authority by making the new minimum salary so high.

The DOL will not be appealing the decision, but labor or employees’ rights groups could theoretically take their place in the lawsuit. However, the DOL has said they would not enforce the 2016 rules, so any further action toward implementation will ultimately be ineffective.

The DOL has, however, put out a Request For Information (RFI), seeking public comment that will presumably help it formulate an all-new set of rule changes. To view the RFI in full and leave a comment, go here.

Fair Work Week Legislation: Is Predictive Scheduling the Future?

The state of Oregon and New York City have joined San Francisco, Emeryville, and Seattle in passing predictive scheduling laws, which require certain employers to give employees a minimum amount of advance notice of their work schedule.

A number of other states and municipalities have considered similar regulations, and we anticipate that more laws like these will be offered up in state legislatures and in city councils across the nation. Employers in Oregon or New York City can find the most essential requirements for their location below.

New York City – Effective November 26, 2017
Retail employers with 20 or more employees will be required to do the following:

  • Provide employees with a written work schedule at least 72 hours in advance of the first shift on the schedule.
  • Give employees at least 72 hours’ notice before scheduling or cancelling a shift; employees who are interested in more work may consent in writing to the scheduling of a new shift.
  • Directly notify employees of any schedule changes (employees cannot be expected to come in or call in just to check for changes).
  • Keep records of work schedules for the previous three years and provide them upon request.

Fast food establishments that are part of a chain (30+ stores nationally, whether franchised or not) are subject to different rules. They must do the following:

  • Provide new employees with written, good faith estimates of their schedule, including dates, times, and locations, for the duration of their employment.
  • Provide employees with a week’s worth of scheduling at least 14 days in advance.
  • Pay a “schedule change premium” of $10 to $75 if schedule changes are made on short notice; the greater the notice, the lesser the premium.
  • Pay employees an extra $100 for “clopening” shifts (a closing shift followed by an opening shift) that are less than 11 hours apart.
  • When looking to fill additional shifts, offer the work to current employees before transferring employees from other locations or hiring new workers.

Oregon State – Effective January 1, 2018
Employers who provide services in retail, hospitality, or food service, and have 500 or more employees worldwide, will be required to do the following for their workers in Oregon:

  • Provide new employees with written, good faith estimates of their schedule in advance of their first day of employment.
  • Provide 10-hour breaks between shifts; if 10 hours are not provided, the portion of the shift that was worked before the 10 hours were up must be paid at 1.5x the employee’s regular rate of pay.
  • Give employees their schedules in writing at least 7 days in advance (beginning in 2020, 14 days’ notice will be required).
  • Pay a premium if shifts are added, changed, or cancelled without the prescribed notice.

Employers in Oregon and New York City should begin to plan for these laws to take effect. Many employers will need to make drastic changes to the way they formulate and distribute schedules.

Although the laws are clearly intended to reduce last minute schedule changes by imposing penalties and premium pay, some employers may find that they would rather pay the penalty or premium to have the convenience of scheduling “clopening” shifts or making last minute changes. We recommend, however, that employers do the math prior to deciding to just take the financial hit. These penalties are likely to pile up fast, and since employees will no doubt be discussing the changes with one another, it’s unlikely that violations will go unnoticed.

July 14, 2017

A New I-9 Form Will Be Released on July 17

The United States Citizenship and Immigration Services (USCIS) will release a new Form I-9, Employment Eligibility Verification, on Monday, July 17. The new Form I-9 will be available on the HR Support Center shortly after it is released.

Employers will be able to use this revised version immediately, but may continue using the Form I-9 with a revision date of 11/14/16 through September 17, 2017. Beginning September 18, employers must use the revised form with a revision date of 07/17/17 for all new employees.

The revisions to the Form I-9 are minor and employers will not need to change their processes.

Revisions to the Form I-9 Instructions:

  • The name of the Office of Special Counsel for Immigration-Related Unfair Employment Practices has been changed to its new name, Immigrant and Employee Rights Section.
  • The words “the end of” have been removed from the phrase “the first day of employment.”

Revisions related to the List of Acceptable Documents on Form I-9:

  • The Consular Report of Birth Abroad (Form FS-240) has been added to List C.
  • All the certifications of report of birth issued by the Department of State (Form FS-545, Form DS-1350, and Form FS-240) have been combined into selection C#2 in List C.
  • All List C documents except the Social Security card have been renumbered.

Employers can visit USCIS’s “I-9 Central” to get more details about the changes.

July 3, 2017

Creating an Engaging Workplace

Most employees are not engaged at work—70% according to Gallup. This is no new trend. The combined number of unengaged and actively disengaged employees remains high from year to year. Poor engagement results in less productivity, less creativity, higher absenteeism, and higher turnover.

Employee engagement is basically a measure of your employees’ commitment to their work and the success of your organization. Think of it as their work ethic within your company. It includes their emotional investment in the work they do for you, but it’s not simply an emotional state. You might have employees who are grumpy and frustrated, yet strive to do their best work and make a difference.

Fortunately, low engagement isn’t inevitable. Some companies have great employee engagement. Their employees consciously and consistently work for the good of their organization. They’re committed, innovative, and driven to help their co-workers and organization thrive.

You can’t force an employee to be engaged—engagement is ultimately their choice. But you can create working conditions that inspire and empower employees to make that choice. What you want is an engaging culture—a workplace culture that prompts and rewards engagement. Here’s how you create it:

  • Define the specific purpose of your organization. What do you do? What’s your style? How are you different from the competition? Employees can’t be engaged unless they have something to be engaged in. Engagement needs direction, focus. And employees need to know how their role contributes to the organization’s purpose.
  • Commit to the success of your employees. If you want employees to work for your organization’s success, you must work for theirs. Coach them. Train them. Help them develop their skills and abilities. They’ll see that you care about their present and future success, and they’ll know that you trust them. And knowing you’re committed to them, they’ll be more committed to you.
  • Recognize employees who go above and beyond. In a culture of engagement, just getting the job done isn’t enough. Encourage extra effort by rewarding it. Formal recognition programs are a great way to do this. And by recognizing employees for their efforts, you show them that their work is valued and meaningful.
  • Encourage criticism, feedback, and innovation. Every organization could use improvement. Solicit your employees’ ideas. Be open to their suggestions. By giving your employees a say in the organization’s operations and working conditions, you provide them with a sense of ownership. Policies, procedures, and practices shouldn’t all be dictated from above.
  • Allow for a healthy work-life balance. Your employees have other commitment they need to attend to. Give them the time to see to those commitments and have a life outside of work, and you’ll get more from them when they’re on the job.

hr tips

June 28, 2017

California Law Update

Minimum Wage Increases

Seven municipalities in California have passed minimum wages that are higher than the state rate and will go into effect or increase on July 1, 2017.


For employers with 56 or more employees: increase from $14.82 to $15.20 per hour

For employers with 55 or fewer employees: increase from $13.00 to $14.00 per hour

Los Angeles City and unincorporated areas of LA County

For employers with 26 or more employees: increase from $10.50 to $12.00 per hour

For employers with 25 or fewer employees: increase from $10.00 to $10.50 per hour


For employers with 26 or more employees: increase from $10.50 to $12.00 per hour

For employers with 25 or fewer employees: increase from $10.00 to $10.50 per hour


For employers with 26 or more employees: increase from $10.50 to $12.00 per hour

For employers with 25 or fewer employees: increase from $10.00 to $10.50 per hour

San Francisco

Increase from $13.00 to $14.00 per hour
San Leandro

Increase from $10.00 to $12.00 per hour
Santa Monica

For employers with 26 or more employees: increase from $10.50 to $12.00 per hour

For employers with 25 or fewer employees: increase from $10.00 to $10.50 per hour

Domestic Violence Victim Leave Notice

The California Department of Industrial Relations recently released a new notice regarding California’s Domestic Violence Leave Law. Employers with 25 or more employees must provide this notice to all new hires (as part of a new hire packet is acceptable) and to any employee upon request. The notice is available for download on the HR Support Center by searching California Domestic Violence Notice.

Expanded Protections for Transgender Employees

Under the Fair Employment and Housing Act (FEHA), California already protects transgender employees from employment discrimination with respect to hiring, firing, and other terms and conditions of employment. New regulations going into effect July 1 extend those protections by requiring that employers take affirmative steps to acknowledge and respect an employee’s gender identity. Here are the key provisions of the new regulations:

  1. Names and Pronouns: Employers must use an employee’s preferred name and pronoun and may only use a different name indicated on government-issued identification (e.g., birth certificate or passport) if required to do so by law.
  2. Gender/Sex Inquiries: Employers may not require or request proof of an individual’s sex or gender, gender identity, or gender expression.
  3. Transitioning: The new regulations make it clear that FEHA protections extend to people in transition, perceived to be transitioning, or post-transition. The process of transitioning may include changes in name and pronoun usage, facility usage, participation in employer-sponsored activities (e.g., sports teams), or undergoing hormone therapy, surgeries, or other medical procedures.
  4. Grooming and Dress: Employers may not enforce dress codes or grooming standards or requirements that conflict with an employee’s gender identity.
  5. Facilities: Employees must be allowed to use the restroom, locker room, or other gendered facility that corresponds with their own gender identity.

There are no required notices, but employers should ensure that all levels of management are familiar with the new regulations and take appropriate steps to comply.

Further Restrictions on Use of Criminal Histories

The Fair Employment and Housing Council released new rules related to the use of criminal histories in employment decisions, which take effect July 1.

The new rules are in line with the guidance that the Equal Employment Opportunity Commission has provided since 2012, and require that employers consider whether their use of criminal histories will have an adverse impact on any protected class. If an applicant or employee claims that the policy or practice of using criminal histories has an adverse impact on a protected class, the employer will have to show that the policy was job-related and consistent with business necessity. This is a test we have long advised employers to use as a best practice (particularly those in California).

Under the new regulations, even if an employer can show job-relatedness and business necessity, it must also prove that there was no less discriminatory policy or practice that could have been used to achieve the same result. Employer policies should also specifically allow for individual assessment, which should consider the nature of the offense, how long ago it took place, and how it relates to the position, if at all.

The new rules also include a notice requirement. Applicants or employees must be notified if an adverse action will be taken because of their criminal history and given an opportunity to address any factual inaccuracies. If a record is shown to be inaccurate, it must not be considered.

As a reminder, the following criminal records should not be considered in California:

  • Arrests that did not result in conviction (unless trial is pending)
  • Detentions that did not result in conviction
  • Sealed records
  • Convictions that have been judicially dismissed, including through expungement
  • Misdemeanor marijuana convictions more than two years old
  • Participation in pre-trial or post-trial diversions programs
  • Proceedings in juvenile court

May 23, 2017

OSHA Delays Electronic Record-Keeping Rule Compliance Date

Back in August, we reported on the new OSHA rule, which would require certain employers to submit injury and illness data electronically. The new reporting requirement was scheduled to go into effect on July 1st of this year. However, OSHA just announced that the requirement has been delayed indefinitely. OSHA has not given the reason for the delay or provided any information about a future effective date. We will provide updates if and when they are available.

May 5, 2017

Legislative Update: Comp Time and Health Care

House Passes Comp Time Bill

On Tuesday, the House passed the Working Families Flexibility Act. The Act would amend the Fair Labor Standards Act to allow employees who work more than 40 hours in a workweek to choose between overtime pay in the applicable pay period, as the law requires now, or time off in the future. That time off in the future (comp time) would be banked at the rate of 1.5 hours for each overtime hour worked. For example, an employee who works 44 hours in a workweek could choose between 4 hours of pay at 1.5x their regular rate, or 6 hours of paid time off in their comp time bank.

If it becomes law, it will only apply to states that do not currently have their own overtime laws requiring premium pay for hours over 40 in a workweek.

In states where comp time becomes legal – if it becomes legal at all – it may be used only if the employee chooses comp time instead of overtime pay. Employers will not be able to make comp time a standard practice or in any way coerce employees to choose comp time instead of overtime wages. Additionally, employees will have the option of asking for payout of their unused comp time at any time with 30 days’ notice, and unused comp time will have to be paid out at the end of each year. Other limits and worker protections are included as well. Employers will not be required to offer a comp time option.

This bill still needs to pass in the Senate – where it faces an uphill battle – and be signed by the President before it becomes a law.

House Passes New Healthcare Bill

Yesterday the House narrowly passed a revised version the American Health Care Act (AHCA) – the GOP’s bill to repeal and replace the Affordable Care Act. The Senate has the next move. Rather than vote on the House bill, the Senate Republicans plan to write their own version and incorporate elements of the House bill into it.

At present, there are no action items for employers. In its current form, the AHCA keeps the employer mandate requiring employers with 50 or more full-time equivalent employees to offer minimum essential coverage. However, it reduces the employer penalties to zero. So, employer reporting requirements would remain in effect, but there would be no financial penalties for failure to offer minimal essential coverage.

If the AHCA becomes law, dropping coverage could still be financially risky according to some experts. Employers who simply drop coverage once the law goes into effect could, under some limited circumstances, potentially face lawsuits for impermissible reduction in benefits under the Employee Retirement Income Security Act (ERISA). There is some debate about this, however.

Much remains unknown at this time. The Congressional Budget Office has yet to assess the House bill, and the Senate version of the bill could turn out to be very different, in which case the differences would need to be resolved in a conference committee.

We will be watching closely as this process continues and will keep you apprised of important updates. If a final version the AHCA passes both the House and Senate and is signed by President Trump, we will notify you and explain your options going forward.

Calculating Overtime

Make sure you’re calculating overtime on workweek basis, not a pay period basis. Non-exempt employees must be paid time and a half for all hours worked over 40 in a workweek, regardless of total hours worked in the pay period.

The workweek is the 7-day, 168-hour period during which you track employee time to see if anyone has worked more than 40 hours and is therefore entitled to overtime. For instance, many companies set their workweek to begin at 12:00 am Sunday morning and end the following Saturday at midnight. Your workweek shouldn’t fluctuate, and your employees should be aware of when it starts and ends (hopefully, that’s in your handbook!).

The most common error we see here is employers on a 2-week payroll cycle thinking that they don’t have to pay overtime if the employee didn’t work more than 80 hours in the pay period. That’s not the case. If an employee worked 50 hours in week 1, and 30 hours in week 2, they’d be entitled to 70 hours of straight time and 10 hours of overtime during that pay period. In week 1 they did 10 hours of work above and beyond 40 in the workweek and are therefore entitled to overtime, regardless of how many hours they worked during the rest of the pay period.

April 5, 2017

Sexual Orientation Protected in Employment, According to Seventh Circuit Court of Appeals

Yesterday the Seventh Circuit Court of Appeals became the first federal Appellate Court to rule that under Title VII of the Civil Rights Act of 1964, sex includes sexual orientation. The Court’s ruling creates law only in Indiana, Illinois, and Wisconsin.

Every other Circuit Court of Appeals, except for the Ninth Circuit, has ruled that the term sex in Title VII does not include sexual orientation; these rulings were issued between 1979 and 2012. Federal Courts of Appeal often try to align their rulings with the decisions of the other Circuits. However, the Seventh Circuit decided that it was time to take a fresh look at this question in light of the Supreme Court’s 2015 decision in Obergefell (legalizing same-sex marriage) and the general shift in societal norms.

The fact that the federal Courts of Appeal have issued conflicting decisions means that the question is more likely to be picked up by the Supreme Court should other litigants appeal their cases to the highest level. The defendants in this case, Hively v. Ivy Tech Community College, have said they will not appeal.

Illinois and Wisconsin already have state laws that create employment protections based on sexual orientation, so there are no action items for employers in those states. Employers in Indiana, however, should ensure that their policies and practices do not allow for discrimination based on sexual orientation.

November 15, 2016

New Form I-9 Released

The new I-9 form was released yesterday, November 14. It may now be used, although the old form will remain valid through January 21, 2017. After that date, you must use the new form. We recommend you train all employees who are responsible for completing the I-9 and start to use it for new hires as soon as possible.

A few important notes about this new form:

  1. While the new I-9 is intended to be completed as a fillable PDF to reduce errors, it should not be confused with an electronic I-9. An employer must still print the completed I-9, obtain the appropriate signatures (which are not fillable via PDF), monitor reverifications, and retain the form for the proper retention period. Employers and employees may choose to complete any or all of the form by typing into the fillable PDF or using a pen to fill out sections after the document has been printed. Documents that are partly printed and partly handwritten are acceptable. If using an electronic version of the I-9, employers must still comply with the U.S. Citizenship and Immigration Services’ criteria to be certain of the integrity of the electronic system.
  2. Do not reverify current employees due to the new form. Use the new I-9 only for newly hired employees and when you are required to reverify temporary work authorization. Additionally, all previous forms must still be retained for the proper retention period. The form must be retained for as long as the employee works for you, plus three years after their hire date or one year after their termination date, whichever is later.
  3. To download the form from the USCIS website (, right click on the link to the new form—“Form I-9 (PDF, 535 KB)” – and select the “Save link as” option. This will allow you to save the PDF and open it in a PDF reader. Clicking to open it in a web browser (as you would with most links) will result in an error page.

Notable changes to the form itself include the following:

  • When completed electronically, there are prompts to ensure information is entered correctly. For example, the form will validate that the correct number of digits are entered for an employee’s Social Security number and various expiration dates. Calendars and drop-down lists also include electronic assistance.
  • The form includes on-screen instructions for each field as well as easy access to the full instructions.
  • In Section 1, employees must only provide other last names used, as opposed to all other names used.
  • Below an employee’s signature line, they must indicate via checkbox whether a Preparer and/or Translator was used to complete Section 1. Multiple preparers/translators can now be entered into Section 1 if needed.
  • There is a dedicated area for including additional information (when required) rather than having to add it in the margins.
  • In Section 2, employers will find a new “Citizenship/Immigration Status” field in the first line with numbers one through four. These numbers correlate directly to the employee’s selected citizenship or immigration status entered in Section 1. If you use the fillable version of the form, the corresponding digit will pre-populate. If you use a paper version, enter the corresponding digit in this field. These fields (the top line of Section 2) help to ensure that the two pages of an employee’s Form I-9 remain together.

The USCIS has yet to release a new Handbook for Employers (M-274) and advises employers to follow the new form instructions for the most up-to-date information. The updated instructions are also available for download on

November 14, 2016

Overtime Rules Go Into Effect on Dec. 1

The new federal overtime rules go into effect on December 1, 2016—just over two weeks from now. There are four major changes of which employers should be aware.

  1. The new minimum salary for most exempt Executive, Administrative, Professional, and Computer employees will be $913 per week ($47,476 per year).
  2. Up to 10% of this income may come in the form of non-discretionary bonuses, incentive pay, or commissions. That portion of the compensation must be paid at least quarterly. If an employee does not earn enough in bonuses and commissions to be on track to make $47,476 per year (measured at the time of the quarterly payment is made) the employer has two options. They can pay the difference to keep the exemption (even though it was not earned), or they can retroactively reclassify the employee as non-exempt and pay all overtime that was worked during the previous quarter.
  3. The new minimum salary level for “Highly Compensated Employees” will be $134.004 per year. This exemption may be used when an employee carries out a limited number of executive, administrative, or professional duties, but is very well-compensated. It is rarely used and not allowed in all states.
  4. The salary threshold will increase every three years. The next change, which will be effective January 1, 2020, is expected to increase the minimum salary to approximately $51,168 per year.

Prior to December 1, employers should send each employee who will be reclassified written notice of their change in classification and rate of pay. Employers should also ensure that newly non-exempt employees are made aware of policies that now apply to them, such as overtime, timekeeping, and meal and rest breaks. While there have been legal challenges and attempts by Congress to delay implementation, we do not foresee any changes to the rules until 2017, if at all. Employers should therefore be in compliance by December 1.