DOL Civil & Criminal Penalties Increased

On January 2, 2018, the Department of Labor (DOL) entered into the Federal Registry and issued a final rule that increases the civil monetary penalties for a wide range of benefits-related violations that may be imposed on employers under various federal laws. In 2015, legislation enacted the Federal Civil Penalties Inflation Adjustment Act which requires annual adjustments to certain penalty amounts by January 15 of each year. The new 2018 adjustments are effective for penalties assessed after January 2, 2018, with respect to violations occurring after November 2, 2015.

Here are a few of the key penalty increases:

  • IRS Form 5500
    The maximum penalty for failing to file Form 5500 increases from $2,097 to $2,140 per day that the Form 5500 is late. This form must be filed annually for most ERISA plans. 
  • Group Health Plans
    The maximum penalty for failing to provide the summary of benefits and coverage (SBC) required under health care reform increases from $1,105 to $1,128 per failure.
  • GINA
    Violations of the Genetic Information Nondiscrimination Act (GINA), such as establishing eligibility rules based on genetic information or requesting genetic information for underwriting purposes, may result in penalties of $114 per participant per day, up from $112. 
  • Employer CHIP Notice
    Failures relating to disclosures regarding the availability of Medicaid or children’s health insurance program (CHIP) assistance.
  • FLSA Requirements
    Violations of the FLSA's minimum wage or overtime pay requirements are subject to penalty increases from $1925 up to $1,964 per violation.
  • FMLA Posting
    Violations of the FMLA's posting requirement are subject to a penalty not to exceed $169 for each separate offense. This is an increase from the former penalty of $166. It is important to remember that covered employers must post this general notice even if no employees are eligible for FMLA leave.

Adjustments have also been made to other benefits-related penalties, including those for failure to provide certain information requested by the DOL and for certain defined benefit plan compliance failures.

It is important for employers to become familiar with the new penalty amounts and review their benefits plan administration, pay practices and safety protocols to ensure compliance with federal requirements.  

Read the entire final rule which features additional penalty adjustments that became effective on January 2, 2018.  

Does your company recognize the importance of Sexual Harassment Training?

Sexual harassment in the workplace is becoming more recognized. Attorneys suggest that employers take a look at their sexual harassment policies, complaint and investigation procedures, and training programs. 

Sexual harassment training helps employees recognize what sexual harassment is, why it is important to prevent sexual harassment in the workplace, the company's policy and procedure on sexual harassment and the employee’s responsibilities in regards to sexual harassment. 

Currently, California and Connecticut require businesses with 50 or more employees to provide sexual harassment training to supervisors. In Maine, businesses with 15 or more employees must provide training to all workers at the start of their employment. In other states, such as Massachusetts, Rhode Island and Vermont, employers are encouraged—but not required—to provide training. More state and local governments are expected to adopt mandatory training programs that will require in-person, annual training for all employees.

For more information on workplace legal trends for 2018, click here

Lyons HCM can provide training for your business. Please contact us at lyonshcm@lyonsinsurance.com or 844.LyonsHCM (844.596.6742) for more information. 

 

Lyons HCM Compliance Workshop: HIPAA and ERISA

Employees working with HIPAA protected information should be trained on an annual basis to ensure proper handling of information.  Protected information is most often found when handling employee benefits, leaves of absence and personnel records.

Please plan on attending our training session on January, 11th from 9-11 am. Diane Campanile, SHRM-SCP, Lyons Companies - Director of Human Capital Management will provide an overview of the Health Insurance Portability and Accountability Act of 1996 (HIPAA).

Sarah Ivy, FisherBroyles will also provide a brief overview of the Employee Retirement Income Security Act of 1974 (ERISA). 

This session is being offered at our Wilmington office and via webinar.

For more information and to register click here

Minimum Wage Increases will Affect Numerous States Across the Country in January 2018

Under the Fair Labor Standards Act (FLSA), the current federal minimum wage is $7.25 per hour. However if a state or municipality has a minimum wage that is higher than the federal minimum, employers subject to the state or local minimum wage law are obligated to pay the higher rate to employees working there. 

Please click here to view which states will be increasing their minimum wages 

Addressing Sexual Harassment in the Workplace

When it comes to addressing sexual harassment in the office there are two schools of thought.

1. Ignore the subject, hope it goes away and discourage addressing the subject.        2. Hit the issue head on, insure proper policies and procedures including training for managers and employees.

Ask yourself which school of thought will your organization subscribe? Do you want to address the risk before a lawsuit is filed?

Lyons HCM provides customized training for your industry and your organization. Let’s discuss why this topic AND customizing the solution matters, call us at 302-472-2941. We look forward to hearing from you!

Off-Duty Conduct Protections

We were recently asked our opinion on offering additional PTO days for non-smoking employees to offset the time that smokers take in “smoke breaks”.  You may have heard about the Japanese company that has instituted this policy.  

From an HR Perspective:

Existing anti-discrimination laws do not prohibit employers from discriminating based on whether or not the person is a smoker--even the PPACA has allowed for premium contribution differences based on smoking.

Then to consider protections under the ADA and while not explicitly addressed, most courts (at this time) have ruled that ADA protections do not extend to tobacco or nicotine addicts. 

29 states do prohibit discrimination based on legal activities outside the workplace, which includes smoking tobacco.  

We have not seen any clients implement or consider such a policy and would caution against such a practice at this time.  It may ‘fly’ but I would not want to be the first.

From a Legal Perspective:

We then posed the same question to an attorney that we work with.  Here's her input:

Bad idea in certain states.  As you noted already there are a number of states which prohibit discrimination due to off-duty legal conduct which includes smoking.  For example, in NJ the law provides:
No employer shall refuse to hire or employ any person or shall discharge from employment or take any adverse action against any employee with respect to compensation, terms, conditions or other privileges of employment because that person does or does not smoke or use other tobacco products, unless the employer has a rational basis for doing so which is reasonably related to the employment, including the responsibilities of the employee or prospective employee.

In these states, a plaintiff’s attorney will easily take the position that giving non-smokers addition leave time is discriminatory towards non-smokers. 

Of course not all states have these laws such as in PA.  In the states that do not have the laws regarding off-duty conduct, it would be permissible as there would be no such legal protection for smokers v. non-smokers.  However, I would think such a policy may not do much for employee morale and there would be an easier way such as regulating breaks and permitting the same number of breaks for all employees, etc.   

A Federal Government Policy that Protected Transgender Workers from Discrimination is now Reversed.

A federal government policy, under a 1964 civil rights law, interpreted that transgender workers were protected from discrimination has been reversed by Jeff Sessions, US Attorney General. Title VII’s prohibition on sex discrimination includes discrimination between men and women, but does not include discrimination based on gender identity, including transgender status.

Sessions stated that, "although federal law, including Title VII, provides various protections to transgender individuals, Title VII does not prohibit discrimination based on gender identity per se. This is a conclusion of law, not policy. As a law enforcement agency, the Department of Justice must interpret Title VII as written by Congress."

However, the Equal Employment Opportunity Commission found that sex discrimination does include discrimination on the basis of gender identity and sex stereotyping and that Title VII does ban anti-transgender discrimination as well.

A spokesperson for the Justice Department explained that the Department of Justice cannot expand the law beyond what Congress has provided. The Department of Justice will remain committed to protecting the civil and constitutional rights of all individuals, and will continue to enforce the laws that Congress has enacted that prohibit discrimination on the basis of sexual orientation.

For more information, click here.