Monthly Compliance Calendar Alert – Keep Your Company Compliant in May: Hiring Practices

• _{Not applicable to HUB100 or GHR Hotline Clients}

Holidays

• Memorial Day – Last Monday in May (May 27)

Important Dates and Deadlines for this Month

• May 8 (California Employers)

  California Pay Data Reporting Deadline, see https://calcivilrights.ca.gov/paydatareporting/ for filing.

Upcoming Dates –

• The 2023 EEO-1 Component 1 data collection opened on Tuesday, April 30, 2024. The deadline for submitting and certifying 2023 EEO-1 Component 1 reports is Tuesday, June 4, 2024. To meet this deadline, the EEOC strongly encourages eligible filers to begin the filing process as soon as possible.
• Filers should visit the dedicated EEO-1 Component 1 website at www.eeocdata.org/eeo1 to access the EEO-1 Component 1 Online Filing System (OFS), to find supplementary resource materials such as the 2023 EEO-1 Component 1 Instruction Booklet and 2023 EEO-1 Component 1 Data File Upload Specifications, and to get the latest updates. 

Topics to Discuss and/or Review

1. Review and revise hiring practices and policies: For clients with access to the Forms Library, references to this section can be found in the folder, “Hiring.”
   • Have staffing needs changed?
   • Do you need to change benefits or pay to become more competitive?
   • If you are recalling only some workers that were laid-off or furloughed, ensure your practices for determining who to recall do not discriminate against any group of employees.
   • Are there any specific recall/retention rights in your cities/states?
   • Review rehire/reinstate provisions for your benefit policies (eligibility/waiting periods).
   • Review I-9 process for in-house and remote employees.

2. Review Employee Applications for current laws. (Certain states have restrictions on requesting certain protected information). For clients with access to the Forms Library, references to this section can be found in the folders/documents:

See the documents:

• “Blacklisting and Job References by State” in the Forms Library > “Hiring” Folder.
• “Salary History Inquiry Restrictions by State and Municipality” in the Forms Library > “Compensation & Payroll” Folder.
• “Ban the Box Laws by State and Municipality” and “Credit Check Limitations by State and Municipality” in the Forms Library > “Hiring” > “Background Check” Folder. Ask your dedicated HR Manager for assistance reviewing your applications for State specific requirements.
  • Be sure to check for ban the box and salary history inquiry laws
  • What should not be on an employment application?
  • Does the Company ask for references on an application?
  • What can we ask a prior employer?

3. Review and edit Offer Letters. Review Job Descriptions. For clients with access to the Forms Library, references to this section can be found in the folder, “Hiring,” and in the subfolders, “Offer”, “Job description.” Ask your dedicated HR Manager for assistance reviewing job descriptions and offer letters.

4. Discuss with appropriate management and implement strategies for Talent Acquisition and any updates to the recruitment process. For clients with access to the Forms Library, references to this section can be found in the folder, “Hiring” click the “Talent Acquisition” subfolder.

• • See Webinar, “Hiring Best Practices and Performance Management” in the Forms Library > “Hiring” Folder.

5. Review request forms and medical certification forms for specific leaves. For clients with access to the Forms Library, references to this section can be found in the folders “Americans with Disabilities Act (ADA)”, “Leaves of Absence” and the folder “Sick Leave.”

6. Audit the Company’s process for conducting Background Checks keeping in mind any State or local preemployment screening restrictions or requirements. For clients with access to the Forms Library, references to this section can be found in the folder, “Hiring” click the “Background Check” > “State Specific Guidance” subfolder. See the documents: “Ban the Box Laws by State and Municipality” and “Credit Check Limitations by State and Municipality.

• • Some positions require a background check (for example various states require mandatory background checks for positions of Law Enforcement, certain health professions and positions involving the care of children, the elderly or the disabled). Please be sure to check State/local law for mandatory background checks.
  • If conducting background checks yourself or through a third party you must be aware of any applicable laws at the Federal, State or local levels. Be mindful of required Fair Credit Reporting Act and State disclosures and authorizations. For example, California's fair credit reporting statute also requires a separate, stand-alone disclosure, which cannot be combined with the FCRA disclosure.
  • Also, your Company must be aware of State/local laws for criminal history inquiries like ban the box laws and the adverse action process.

7. Review on-boarding or new employee orientation process. For clients with access to the Forms Library, references to this section can be found in the folder, “Hiring” and “New Hire Packs & Documents.”

• • Go through New Hire Checklist
  • Make sure all new hire paperwork is given, signed, returned, and sent to the appropriate agency or stored in the appropriate retention location.
  • Distribute Employee Handbook, the Acknowledgement forms, Arbitration Agreements, or any other contractual agreements, allow new hire time to read it in its entirety and sign and return acknowledgements and/or contractual agreements.
  • Distribute any required notices.
  • Confirm that all W-4s are sent to the IRS and new hires are reported in a timely matter.
  • Ensure new employee training is scheduled including any discrimination or harassment training, and general work policies, rules, and job duties. See available harassment training, we have State specific or USA general harassment training on GHR Website in Membership Services Box > “Online Training Library.”
  • Confirm the Company’s Introductory Period. (i.e. 30, 60, 90 days) and whether employees are entitled to certain voluntary benefits (vacation, holiday pay, health plans, life insurance, etc.) , or paid/unpaid sick leave.
  • Plan time for periodic check-in and training meetings for HR or managers to conduct with new hires making sure they are fitting into their new role and sorting out potential any performance issues.

8. Review Agreements for non-compete language.

• • On April 23, 2024 the U.S. Federal Trade Commission (FTC) approved a proposed final rule banning most new noncompete clauses in employment contracts.
  • The rule goes into effect 120 days following its publication in the Federal Register - not after the FTC's public announcement. Enforcement could be further delayed by likely legal challenges. The U.S. Chamber of Commerce has already pledged to sue the agency over the rule.
  • Should this new rule remain intact, all current state laws limiting non-competes would be preempted unless they provide greater worker protection than the FTC rule.
  • The rule defines “noncompete clause” to mean a contractual term that blocks a worker from working for a competing employer, or starting a competing business, within a certain geographic area and period of time after the worker’s employment ends.
  • The ban covers all non-competes for U.S. workers (including employees and independent contractors) with limited carve-outs, and is subject to certain exceptions based on the FTC’s statutory authority. The rule also applies in some cases to agreements that require employees to pay back the employer for training costs if the worker’s employment terminates within a specified time period.
  • Exceptions** - The FTC indicates that there are industry-specific exceptions based on certain industries excepted from the Federal Trade Commission Act (“the FTC Act”). Specifically, the rule does not apply to banks, savings and loan institutions, federal credit unions, common carriers, air carriers and foreign air carriers, and persons and businesses subject to the Packers and Stockyards Act. Outside of those industries, the major exceptions include (1) existing agreements for “senior executives”, (2) non-competes entered into in connection with the bona fide sale of a business, and (3) non-competes enforced where the cause of action accrued prior to the rule’s effective date.
  • The FTC defines the term “senior executive” to refer to workers earning more than $151,164 annually who are in a “policy-making position.”
  • Notice of Non-Enforcement:
    1. The Final Rule requires an employer to provide clear and conspicuous notice to workers subject to a prohibited non-compete, in an individualized communication, that the worker’s non-compete clause will not be, and cannot legally be, enforced against the worker.
    2. The employer must provide notice by the Final Rule’s Effective Date by hand-delivery, by mail at the worker’s last known street address, by email, or by text message.

Tips

More information in reference to the topics discussed in this month’s compliance calendar can be found in our comprehensive online Forms Library, which is available to members 24/7.