In the wake of the Department of Labor’s (DOL) recent flurry of changes to its federal regulations, employers are left trying to navigate a new legal landscape fraught with uncertainty. However, one thing is for certain. These new regulations will mean large-scale changes for both the workplace and employers nationwide.
Faced with major legal implications, employers, and particularly their human resources departments, must act now to familiarize themselves with and implement these new federal requirements, or risk costly litigation. Although there have been several regulation changes in recent months, these four areas demand employers’ immediate attention:
- The U.S. Department of Labor Occupational Safety and Health Administration (OSHA) recently made changes to its injury and illness reporting requirements for employers. These new rules, which take effect January 1, 2017, require large employers with 250 or more employees in industries covered by the recordkeeping regulation to electronically submit information regarding workplace injuries and illnesses. This reported data will then be made publicly available on OSHA’s website. Implementation of the electronic reporting will be phased in over the next two-plus years.
- The Equal Employment Opportunity Commission (EEOC) has recently increased employer penalties for violating its notice posting requirements under Title VII of the Civil Rights Act, the American with Disabilities Act and the Genetic Information Nondiscrimination Act. Failure to post notices about these laws with the proper content and in a proper location can result in penalty fines. These penalties will increase by 150 percent from the current fee of $525 per violation.
- Likely receiving the most attention from employers over the past year are the new overtime exemption regulations from the DOL’s Wage and Hour Division, which will automatically extend overtime pay protections to more than 4 million salaried workers within the first year of implementation. Effective December 1, 2016, these new rules significantly impact employers who take advantage of the “white collar” exemption for compliance with overtime rules under the Fair Labor Standards Act. The salary threshold will double from $23,660 to $47,476 per year, and will be automatically updated every three years — a rate never seen before. Employers can satisfy up to 10 percent of the salary threshold with bonuses and incentive payments, provided they’re paid on at least a quarterly basis.
- The DOL has also increased several reporting and disclosure penalties issued under the Employer Retirement Income Security Act (ERISA). In the past, ERISA penalties have ranged from $10 per violation for certain notice violations to $1,100 per violation when a Form 5500 report was not filed. Under the new regulations, these penalties now range from $28 per violation to as much as $2,063. For example, a failure to file a Form 5500 annual return of an employee benefit plan increases from $1,100 per day to $2,063 per day.
Whether the effective dates for each of the DOL’s new federal regulations are already here or still months away, employers across the nation need to act promptly in order to ensure their compliance. Despite the pending litigation on some of these issues, employers are still expected to comply. Unless a court issues an order preventing implementation of the rule, pending litigation does not excuse non-compliance. As such, it’s critical that special efforts be made by employers and their human resources departments to clearly understand these new requirements and correctly implement them into daily operations.
Jeff Smith is a partner at the Cleveland office of Fisher Phillips, a national labor and employment law firm. A member of the firm’s Employee Benefits Practice Group, he counsels clients on a broad range of retirement and health plan issues, including employee benefits, health and welfare plans, multi-employer pension liability, employment discrimination and harassment, and more.