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Uniform Law in Colorado

For employees and employers covered by the Colorado Minimum Wage Order the following applies:

  • Where the wearing of a particular uniform or special apparel is a condition of employment, the employer shall pay the cost of purchases, maintenance, and cleaning of the uniforms or special apparel.
  • If the uniform furnished by the employer is plain and washable and does not need or require special care such as ironing, dry cleaning, pressing, etc., the employer need not maintain or pay for cleaning.
  • An employer may require a reasonable deposit (up to one-half of actual cost) as security for the return of each uniform furnished to employees upon issuance of a receipt to the employee for such deposit. The entire deposit shall be returned to the employee when the uniform is returned. The cost of ordinary wear and tear of a uniform or special apparel shall not be deducted from the employee’s wages or deposit.
  • Clothing accepted as ordinary street wear and the ordinary white or any light colored plain and washable uniform need not be furnished by the employer. If a special color, make, pattern, logo or material is required, the employer must furnish the uniform.
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California update – National Origin Discrimination Protection

On July 1, new regulations that clarify protections from national origin discrimination will go into effect in California. The new regulations are extensive and include clarifications on the definitions of “national origin” and “national origin groups,” the permissible and prohibited types of employer policies governing language restrictions in the workplace, the permissible and prohibited inquiries regarding immigration status, and the permissible and prohibited types of height and weight requirements for work.  

Definitions

The new regulations clarify that the definition of “national origin” includes an individual’s actual or perceived:

  • Physical, cultural, or linguistic characteristics associated with a national origin group.
  • Marriage to or association with persons of a national origin group.
  • Tribal affiliation;  
  • Membership in or association with an organization identified with or seeking to promote the interests of a national origin group;
  • Attendance or participation in schools, churches, temples, mosques, or other religious institutions generally used by persons of national origin group; and
  • Name that is associated with a national origin group.

The Equal Employment Opportunity Commission (EEOC) and various courts have provided the following examples of the types of associational and perception-based harassment and discrimination based on national origin that are prohibited:

  • Harassment of an employee whose husband is from Afghanistan.
  • Refusal to promote an employee because he attends a mosque.
  • Harassment of a Hispanic person by a harasser who perceived that the individual was Pakistani.
  • Co-workers repeatedly referring to an employee of Indian descent as “Taliban” or “Arab.”
  • Harassment of a Sikh man wearing a turban because the harasser perceived him to be Muslim.

The regulations also provide that “national origin groups” include “ethnic groups, geographic places of origin, and countries that are not presently in existence.” In other guidance from the EEOC, the commission has explained that a geographic region may include “a region that never was a country but nevertheless is closely associated with a particular national origin group, for example, Kurdistan or Acadia.”

Language Restrictions

Since 2001, California has prohibited employers from adopting or enforcing a policy that limits or prohibits the use of any language in the workplace, unless a business necessity justified the restriction and the employer met certain notice requirements. According to the new regulations, if an employer has a policy limiting or prohibiting the use of a language, the employer now has to meet a third requirement and also show that the restriction is “narrowly tailored.” Also, a language restriction that “merely promotes business convenience or is due to customer or co-worker preference” will not pass the test. Colorado has a similar law.

The new regulations also specifically target “English-only rules,” stating that they are presumptively illegal unless the employer can meet the three-part test by proving that the rule is justified by business necessity, is narrowly tailored, and was effectively explained to employees.

“Business necessity” is defined as an overriding legitimate business purpose, such that “(A) [t]he language restriction is necessary to the safe and efficient operation of the business; (B) [t]he language restriction effectively fulfills the business purpose it is supposed to serve; and (C) [t]here is no alternative practice to the language restriction that would accomplish the business purpose equally well with a lesser discriminatory impact.”

The new regulations also state that “English-only rules are never lawful during an employee’s nonwork time,” such as breaks, lunch, and unpaid employer-sponsored events. The FEHC further commented in the regulation making process that an employer’s attempt to restrict language use during nonworking hours may involve sufficient employer “control” over that time to make it compensable. 

Immigration-Related Practices

The new regulations also place several restrictions on immigration-related practices. For example, an employer cannot make inquiries into an employee’s immigration status “unless the person seeking discovery or making the inquiry has shown by clear and convincing evidence that such inquiry is necessary to comply with federal immigration law.” It is also unlawful for an employer to discriminate or retaliate against an employee because of the employee’s immigration status, “unless the employer has shown by clear and convincing evidence that it is required to do so in order to comply with federal immigration law.”

Height and Weight Requirements

The new regulations expressly state that height and weight requirements may be unlawful because they may have the effect of discriminating based on national origin. Where an employee shows that a height or weight requirement has an adverse impact, the requirement is unlawful unless it is job related and justified by business necessity, and its purpose cannot be achieved as effectively through other means. 

Ensure that your policies and practices comply with these regulations by contacting InTANDEM HR.

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New ID Theft Protection

InTANDEM HR is excited to announce a new, enhanced identity theft protection product, LifeLock. We are replacing our current “ID Watchdog” benefit with LifeLock effective July 1, 2019.

LifeLock has two levels of protection against identity theft, the “LifeLock Benefit Elite Plus” and “LifeLock Benefit Elite Premium” plans. Pricing for the Elite Plus plan is just $5.99 per month for employee only coverage, and $11.98 for employee plus family.  The Elite Premium plan is a low monthly charge of $12.49 for employee or $24.98 for employee plus family.   These benefits are a post-tax employee payroll deduction. Please see the attached flyer which explains the benefit differences and what the coverage can do for you and your family members to thwart would be and actual identity theft criminals.

What does this mean to you? If you are currently enrolled in ID Watchdog you have the option of cancelling your identity protection entirely, or enrolling in either of the new LifeLock Benefit plans. Please email lharper@intandemhr.com no later than June 30, 2019 with your decision to cancel, enroll, and at which coverage level (employee only or employee + 1 or more family member). If you do not respond by June 30 you will be automatically enrolled in LifeLock Benefit Elite Premium plan at the same coverage level. You will not be able to modify this election until open enrollment (January 1st effective date year year).

We will no longer offer the ID Watchdog product after June 30, 2019. We trust you will find the improved LifeLock product to be a more robust option for protecting against and restoring any actual stolen identity theft.

Please contact InTANDEM HR at 303.955.7615 if you have any questions.

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HSA Limits increase for 2020

Health savings account (HSA) contribution limits for 2020 are going up $50 for self-only coverage and $100 for family coverage, the IRS announced May 28th.

The annual limit on HSA contributions will be $3,550 for self-only and $7,100 for family coverage (versus the current $3,500/7,000 in 2019).

In Revenue Procedure 2019-25, the IRS confirmed HSA contribution limits effective for calendar year 2020, along with minimum deductible and maximum out-of-pocket expenses for the HDHPs with which HSAs are paired. InTANDEM HR will post the new limits in our open enrollment materials for the 2020 year.

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New Legislation in Colorado

Governor Polis has recently signed two pieces of legislation in to law.

“Ban the box”. Colorado has now become the 12th state to prohibit employers in the public and private sector from asking about criminal history on job applications. Any reference that asks an employee about criminal history – felonies, misdemeanors, arrests, etc. must be removed from any employment application that is being used, electronic or otherwise. Employers can still run background checks if they customarily do so on all prospective hires that they are offering employment to on a contingent basis.

“The Equal Pay for Equal Work Act”  provides protections and promotes equity for workers of all genders to attempt to equalize pay protections. This is a good reminder for all employers to review each of their workers’ wages to ensure that similar workers are being paid for similar work.

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Prevent office security Breaches

51% of security breaches occur inside an organization due to employee error or system glitches from business process failures.1 One of the easiest ways to avoid a breach is to tightly manage how paper documents are handled in the workplace. Clutter and disorganization can quickly lead to the loss of confidential information.

Quick tips for a clean desk policy:

-Make sure you have locked consoles and IT support.

-Ensure that when confidential information is in the workplace, it remains secure. Have up-to-date security software and that IT initiates screen locking on all computers.

-Train and educate your staff about the policy and why it is so important for everyone to follow it.

-Post small reminders about the policy throughout the office where paper is produced.

-Remind employees of the importance of consistently following the policy.

-Sensitive information should be protected at all times from anyone who may pass by, including other employees, cleaners and office visitors.

-A quick audit from time to time makes sure your employees are following your new policy and reinforces its importance, refreshes memories, and is a great way to get everyone involved.

Use findings to update your policy. If you notice that certain employees or departments are not following the Clean Desk Policy, there may be very simple reasons they are not complying. Or, they may not truly understand the risks associated with an information security breach for the company and everyone employed. Make sure everyone is on board to keep everyone safe from data breaches.

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EEO Data will Require Pay Data for 2017 and 2018

The Equal Employment Opportunity Commission (EEOC) affirmed employers must report pay data, broken down by race, sex and ethnicity, from BOTH 2017 and 2018 payrolls. The pay data reports are due Sept. 30.

The portal will be available to employers by mid-July, with training available prior to that date

Employers still must submit their 2018 data for “Component 1” (non-pay inclusive) of the EEO-1 form by May 31.

Component 1 asks for the number of employees who work for the business by job category, race, ethnicity and sex. Component 2 data—which includes hours worked and pay information from employees’ W-2 forms by race, ethnicity.

Businesses with at least 100 employees and federal contractors with at least 50 employees and a contract with the federal government of $50,000 or more must file the EEO-1 form. The EEOC uses information about the number of women and minorities companies employ to support civil rights enforcement and analyze employment patterns, according to the agency.

The revised EEO-1 form will require employers to report wage information from Box 1 of the W-2 form and total hours worked for all employees by race, ethnicity and sex within 12 proposed pay bands.

InTANDEM HR complies with all EEO requirements and will submit the EEO-1 as required on our client’s behalf. We are working with our HRIS system to ensure a smooth upload.

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“No match” letters make a Comeback

For several years, starting in 1993, the Social Security Administration sent employers no-match letters when an employer’s W-2 records didn’t match the administration’s records on employee names and SSNs. The letters ceased seven years ago, and as of very recently the practice has started back up again.

The letters don’t include the names and Social Security numbers of employees with mismatched SSNs, as they had in the past. Employers must register online with the Social Security Administration’s Business Services Online (BSO) to find out whose SSNs are mismatched.

If an employer learns of SSN mismatches and does nothing, then U.S. Immigrations and Customs Enforcement (ICE) may consider the employer to have “constructive knowledge”—a fact an entity should have known—that it has an unauthorized worker. But if employers take adverse action against an employee based solely on no-match letters, they may be sued for discriminating against the worker based on citizenship.

The Trump administration began sending the letters again this spring to strengthen the enforcement of immigration laws.

What to Do After Receiving a No-Match Letter

After receiving a no-match letter, employers should:

Check their records for a clerical error.
Notify the employee of the mismatch.
Give the employee a reasonable period of time to resolve the mismatch with the Social Security Administration.
If the employee doesn’t respond within the time frame given by the Social Security Administration (60 days), the Social Security Administration can be notified.

Cause of Mismatch Letters

The cause of mismatch letters may be falsification, name change due to marriage or divorce, identity theft, a data entry error, or a completely fabricated SSN.

One way to avoid most SSN mismatches is to use E-Verify. E-Verify checks the names, dates of birth and SSNs of new hires against the Social Security Administration’s database. E-Verify can’t, however, catch cases of identity theft when someone steals someone else’s name, date of birth and SSN to obtain unemployment and disability benefits.

InTANDEM will work directly with our clients for any no-match letters we receive to ensure that proper protocol is followed.

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States with Paid Sick Leave

Michigan’s new Paid Medical Leave Act (“Act”) will go into effect on March 29, 2019. The Act only applies to employers who employ 50 or more employees. Exempt are FLSA exempt employees, private sector employees covered by a collective bargaining agreement, temporary workers, employees who work in other states, ICs, variable hour employees, certain part-time and seasonal employees and flight deck, cabin crew and railroad workers.

Michigan joins the following states who currently require paid sick leave:

  • Arizona
  • California
  • Connecticut
  • Maryland
  • Massachusetts
  • New Jersey
  • Oregon
  • Rhode Island
  • Vermont
  • Washington
  • Washington D.C.

The cities and counties with paid sick days laws that include paid “safe” days, which provide time for survivors of domestic violence, sexual assault, and stalking to seek services related to these incidents, include: San Francisco, Emeryville, San Diego, Los Angeles, Berkeley and Santa Monica (Calif.); Washington, D.C.; Seattle, Tacoma and Spokane (Wash.); Philadelphia (Pa.); Montgomery County (Md.); Chicago and Cook County (Ill).; Minneapolis, St. Paul and Duluth (Minn.); New Brunswick (N.J.); and Austin (Texas).

Colorado does not require any paid sick leave to any employee. There are no federal statutes requiring paid sick leave.

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H-1B Visas explained

Occasionally at InTANDEM HR we receive an inquiry about H-1B visas.

The H-1B visa provisions authorize the employment of select qualified individuals who are not otherwise authorized to work in the United States. The intent of this program is to help employers that cannot otherwise obtain needed business skills and abilities from the U.S. workforce for certain “specialty occupations”. Specialty occupation as defined by the U.S. Citizen and Immigration Services (USCIS) is one that requires the application of a body of specialized knowledge and a bachelor’s degree or the equivalent in the specific specialty (e.g., sciences, medicine, health care, education, biotechnology, business specialties).

Current laws limit the annual number of qualifying foreign workers who may be issued a visa or otherwise be provided H-1B status to 65,000, with an additional 20,000 under the H-1B advanced degree exemption.

The job qualifications must meet one of the following criteria to qualify as a specialty occupation:

  • Bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position.
  • The degree requirement for the job is common to the industry, or the job is so complex or unique that it can be performed only by an individual with a degree.
  • The employer normally requires a degree or its equivalent for the position.
  • The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.

When recruiting for such a position, employers must ensure their applicants meet one of the following criteria:

  • Have a U.S. bachelor’s or higher degree required by the specific specialty occupation from an accredited college or university.
  • Hold a foreign degree that is the equivalent to a U.S. bachelor’s or higher degree in the specialty occupation.
  • Hold an unrestricted state license, registration or certification that authorizes them to fully practice the specialty occupation and be engaged in that specialty in the state of intended employment.
  • Have education, training or progressively responsible experience in the specialty that is equivalent to the completion of such a degree and recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.

The H-1B employer must pay its H-1B workers at least the “required” wage – the higher of the prevailing wage or the employer’s actual wage for similarly employed workers. This wage rate must be reported on the labor condition application (LCA) to the U.S. Department of Labor (DOL).

Notice must be given to U.S. workers on or within 30 days before the date the employer files the LCA with the DOL. Required information includes:

  • The number of H-1B nonimmigrants the employer seeks to employ.
  • The occupational classifications in which the H-1B nonimmigrants will be employed.
  • Wage
  • The period of employment.
  • Location they will be employed.
  • Mandatory complaint statement.

The employer must apply for and receive DOL certification of an LCA no more than six months before the initial date of intended employment.

Various fees are associated with filing Form I-129, some of which apply only to certain employers.