RWHRMA Quarterly Employment Law and Legislative Update –
December 2017
Happy holidays! We are pleased to bring you the final Employment Law and Legislative Update of 2017 recapping some of the key developments in employment law and legislation that have emerged in the fourth quarter of 2017. As we get ready to welcome in a New Year, we would like to wish all of you a safe and happy holiday season on behalf of RWHRMA!
By: Holly Hammer and Ashley Pittman, attorneys, Hutchison PLLC
Washington, D.C. │Federal Law
Overtime Rule Struck Down
As you may recall, we provided a great deal of coverage to the proposed revisions to the overtime rule proposed by the DOL last year, which would have doubled the minimum annual salary for FLSA’s “white collar” exemption. On August 31, 2017, the rule was permanently blocked by U.S. District Judge Amos Mazzant. As such, the existing overtime regulations are still in effect. However, the DOL recently announced its fall regulatory agenda, revealing that a new overtime rule proposal may be coming in October 2018. Watch this space for more updates on the future of FLSA overtime rules.
Pending Tax Bill Could Impact Your Workplace
The Tax Cuts and Jobs Act, expected to become effective January 1, 2018, aims to implement many changes to the U.S. tax code. The bill has the potential to impact the workplace in many ways: (i) the bill would end the individual health coverage mandate, though the Affordable Care Act employer mandate remains in place, (ii) eligible employers will receive a tax credit equal to a percentage of the wages paid to qualified employees on FMLA leave, if the employee receives at least 50% of their normal wages, (iii) employers will no longer be entitled to a deduction for qualified mass transit and parking benefits, (iv) commission- and performance-based pay will no longer be exempt from §162(m), the statute prohibiting public companies from deducting more than $1M per year in compensation to senior executive officers, and the statute’s scope will widen; (v) both tax exclusion and deduction for employee moving expenses have been suspended until 2025, and instead will be treated as taxable income; and (vi) employers will no longer be able to claim a deduction for expenses of employee meals, though employees can still exclude them from taxable income. For more information on the coming changes and current status of the legislation, visit SHRM’s resource here.
Scam Is Requesting I-9s from Employers – Be on the Lookout!
It appears that there is a scam targeting employers that may be coming your way! Employers have reported receiving scam emails from the email address asking for copies of I-9s. Don’t be fooled. The U.S. Citizenship & Immigration Services (USCIS) does not ask for I-9s in this fashion. For more information on how to avoid common scams or report suspicious emails like this, see USCIS’s website here.
North Carolina │State Law
Reminder – North Carolina’s New Employee Misclassification Law is effective December 31, 2017
Have you reviewed your employee classifications recently? Are you sure that your independent contractors are independent contractors and not employees? If you haven’t done a workplace audit of independent contractors recently, consider adding this as an action item in 2018. North Carolina’s Employee Fair Classification Act takes effect December 31, 2017, and creates a new Section in North Carolina’s Industrial Commission that is dedicated to receiving and investing reports by employees claiming to be misclassified as independent contractors. For more information or a refresher, consider reviewing Department of Labor or IRS information on this topic.
Harassment Policies are increasingly important following the Harvey Weinstein scandal…
The Harvey Weinstein scandal and the #MeToo social media campaign has put sexual harassment on the radar. When is the last time your company reviewed its harassment policy or Employee Handbook? Now is a good time to do so, as having a well drafted Employee Handbook with an anti-harassment policy can help insulate you from some sexual harassment claims. EEOC information on how to draft a complaint anti-harassment policy is available here.
Fourth Circuit Holds Allegedly Sexist Remarks Fail to Support Title VII Claims
Decisions from the Fourth Circuit Court of Appeals are binding on North Carolina district courts. In the unpublished decision of Melendez v. Board of Education for Montgomery County (4th Cir. Oct. 10, 2017), the court held that statements by a male supervisor that he did not “want women working in the morning” and did not “want the three women on his schedule” were insufficient to support a cause of action for discrimination on the basis of gender because the comments were isolated and there was a lack of temporal proximity between the comments and the allegedly adverse employment action taken. While unpublished decisions are not binding, the Melendez decision is an employer-favorable decision that stands for the proposition that while derogatory comments may in some instances constitute direct evidence of harassment or discrimination, the materiality of “stray or isolated remarks” is reduced. The full Melendez decision is available at:
https://law.justia.com/cases/federal/appellate-courts/ca4/17-1116/17-1116-2017-10-10.html
2018 SHRM Employment Law and Legislative Conference is coming March 12-14, 2018!!!
Registration is now open for the SHRM 2018 Employment Law and Legislative Conference, which will be held in Washington, D.C., on March 12-14, 2018. This is a great event you don’t want to miss! You will have the opportunity to earn credits at the two-day seminar, meet members of the HR community from all over the country and participate in Advocacy Day on Capitol Hill with SHRM’s Governmental Affairs team on March 14, 2018. This is truly a once in a lifetime opportunity- check out the link above or contact Holly Hammer for more information.
If you have a question, are interested in joining RWHRMA’s Governmental Affairs team or have a topic you would like to see covered in the future, please contact Holly Hammer, Governmental Affairs director, or another member of the RWHRMA Governmental Affairs team, all of whom are practicing employment law attorneys in the Raleigh-Wake community:
· Holly Hammer, Hutchison PLLC
· Ashley Pittman, Hutchison PLLC
· Ashley Felton, Felton Banks PLLC