Laborsphere

Special Rules Apply To Documents With Employee Protected Health Information

Editor’s Note: The following post by Heather Abrigo, Counsel in the Los Angeles office, appears in the latest issue of the California HR Newsletter.

Special Rules Apply To Documents With Employee Protected Health Information

The Issue: Must an employer safeguard documents containing employee protected health information (PHI) in any special way?

The Solution: Yes. An employer must adopt privacy policies or procedures related to employee PHI. These policies should include controls over who has access to the documents (physically and electronically).

Analysis: Under the Health Insurance Portability and Accountability Act of 1996 (HIPAA), employers must prevent the unauthorized disclosure of protected health information (PHI). This will primarily affect those employers that sponsor self-insured health plans, cafeteria plans with a flexible health spending account component, offer on-site health clinics, and/or that offer significant hands-on help to employees in connection with their group health plans (e.g., handling benefit claims).

Employers subject to the HIPAA privacy rules should have written privacy procedures in effect that safeguard all documents with PHI. This includes the administration of the PHI (e.g., who needs access to such information to administer the health plan, entering into business associate agreements with any third-parties who might handle, and training employees who may handle, PHI as part of their duties). The written privacy procedures should also address other safeguards of PHI (whether in paper or electronic form) including physical safeguards (e.g., workstation use/security) as well as technical safeguards (e.g., person authentication and transmission security).

If you are unsure whether these rules apply and you sponsor any of the aforementioned plans, please contact your benefits lawyer.

New Jersey Raises State Minimum Wage

By: Meredith R. Murphy

This past November the voters of New Jersey approved a ballot question both raising the state minimum wage and amending the State Constitution to tie future increases to inflation. Here is what employers need to know:

1. Effective January 1 the state minimum wage for almost all employees has increased from $7.25 per hour to $8.25.

2. Going forward, the state minimum wage will be increased every January 1 in accordance with an increase in the federal government’s consumer price index for all urban wage earners and clerical workers (commonly referred to as the CPI-W) as of the preceding September 30.

Employers should also be aware that if at any time the federal minimum wage should surpass that which is provided by the State Constitution’s formula, the state minimum wage will be automatically increased to match the federal wage rate. Employers with employees in New Jersey should replace their New Jersey State Wage and Hour Law Abstract poster with the new poster [click here to download] that reflects the change.

Risk Management: What to Include In A Personnel File

Editor’s Note: The following post by Los Angeles Partner Pascal Benyamini appears in the latest issue of the California HR Newsletter. To sign-up to receive the California HR Newsletter click here.

Risk Management: What to Include In A Personnel File

By: Pascal Benyamini

The Issue: Can employers reduce risks of potential claims of discrimination and retaliation by employees through thoughtful management of personnel files?

The Solution: Yes. One of the many steps that employers can take to reduce risk of litigation is to ensure that documents that do not belong in a personnel file are kept in separate files and locked up.

Analysis: Discrimination claims come in many forms, including, race, gender, sex, sexual orientation, national origin, religion, mental or physical disability, or pregnancy. One of the most effective ways to reduce legitimate employment discrimination cases is for employers to expend the necessary resources to properly train their workforce, starting with management level employees. As part of that training, employers should be mindful of the types of documents that should be in personnel files and those that should not, but should be maintained separately. The rule of thumb is that employers should keep documents containing subjective information separate. This is because when managers make personnel decisions about an employee and the file contains information about protected characteristics of that employee, such as race, age, medical condition etc., the file may serve as circumstantial evidence in a discrimination claim against the employer.

Documents That Belong In A Personnel File: Any objective information related to the hiring, promotion, demotion, compensation, discipline or discharge of an employee, including, but not limited to: application; resume; offer letter; performance reviews; disciplinary notices; termination letter; resignation letter; compensation and deduction information; acknowledgment of receipt of handbooks; attendance records / receipt of vacation and personal leaves; change in name, address, telephone number; beneficiary regarding insurance provided by company; emergency contact information; and training records.

Documents That Do Not Belong In A Personnel File But Kept Separate: Any subjective information regarding the employee, including, but not limited to: subjective notes about the employee during the interview process, on application, resume etc.; reference checks or letters of reference; documents pertaining to criminal or
other investigation of the employee; credit reports; immigration and naturalization information (I-9 Forms); medical files of any records informing of a medical condition, including drug test results; wage garnishments; any
photos of employee, including photo of driver’s license, passport etc.; and EEO forms.

The file should not be available to supervisors who have no legitimate need for it.

Adhering to these simple guidelines will help the company reduce unnecessary claims.

New Jersey Gender Equity in Pay – Notice and Posting Requirements Effective January 6, 2014

By: Marion B. Cooper

Governor Chris Christie signed Assembly Bill 2647 (the “Gender Equity Notice and Posting Law,” N.J.S.A. 34:11-56.12) into law, effective November 21, 2012 requiring New Jersey employers with 50 or more employees to conspicuously post a notice, where it would be accessible to all workers in each of the employer’s workplaces, informing employees of their “right to be free of gender inequity or bias in pay, compensation, benefits, or other terms or conditions of employment” under the New Jersey Law Against Discrimination, other New Jersey State law, Title VII of the Civil Rights Act of 1964 and the federal Equal Pay Act of 1963. (http://www.njleg.state.nj.us/2012/Bills/PL12/57_.PDF)

Under the Gender Equity Notice and Posting Law, employers have 30 days from December 9, 2013, the date the New Jersey Division of Labor and Workforce Development (“NJDLWD”) issued the “notice” to comply. The gender equity notice is now available for download from the NJDLWD at: http://lwd.state.nj.us/labor/forms_pdfs/EmployerPosterPacket/genderequityposter.pdf

Here is what “covered” employers (those employers with 50 or more employees, whether they work inside or outside of New Jersey) must do:

Beginning January 6, 2014, conspicuously post the gender equity notice where it is accessible to all employees in each of the employer’s workplaces. If the covered employer has an internet or intranet site for its employees’ exclusive use to which all employees have access, posting of the notice on such a site will satisfy the conspicuous posting requirement.
By February 5, 2014, provide each employee hired on or before January 6, 2014 with a written copy of the gender equity notice.
After January 6, 2014, provide each employee with a written copy of the gender equity notice at the time of the employee’s hiring.
Beginning January 6, 2014, and on or before December 31 of each subsequent year, provide each employee a written copy of the gender equity notice.
At any time, upon the first request of the worker, provide each employee a written copy of the gender equity notice.

Covered employers may distribute the gender equity notice as follows:

By email;
Via printed materials, including, but not limited to, a paycheck insert, brochure or similar informational packet provided to new hires, an attachment to an employee manual or policy book, or flyer distributed at an employee meeting; or
By way of an internet or intranet site, so long as it is accessible by all employees, for employees’ exclusive use and the employer provides notice to workers of its posting.

Covered employers must ensure that the gender equity notice contains an acknowledgment, indicating that the worker has received the notification and has read and understands its terms. The acknowledgment must be signed by the employee, in writing or electronically verified form, and returned to the employer within 30 days of receipt. The notice must be posted in English, Spanish, and any other language the employer reasonably believes is the first language of a significant number of workers in the covered employer’s workforce, provided that the NJDLWD has issued a form notice in that language.

New Jersey employers (with 10 employees or more) are reminded of the similar, annual posting and distribution requirements of the New Jersey Conscientious Employee Protection Act (“CEPA”) and of the new posting requirement of the New Jersey SAFE Act, which provides unpaid leave for victims of domestic violence. As the end of 2013 rapidly approaches, New Jersey employers are encouraged to take time out to make sure that all postings are current for the new year, that all distribution requirements are or will be satisfied, and that handbooks are updated to reflect these new laws.

California Employers: What You Need to Know for 2014 – Everything Else

A new year means new legislation and regulations for employers with operations in California. This four-part series will take a look at some of the new laws and regulation affecting private employers doing business in California. Today’s final post in this series takes a look at the other changes for 2014 that California employers should be aware of and were not already covered in the first three posts (Wage and Hour Laws and Penalties, Discrimination and Retaliation and Immigrant Protections & Leaves, Accommodations, and Benefits) of this series.

Miscellaneous

Criminal conviction history. Existing law prohibits all employers from asking job applicants to disclose, orally or in writing, any information related to an arrest or detention that did not result in a conviction. Effective July 1, 2014, AB 218 will further prohibit any state or local agency from asking an applicant to disclose information regarding a criminal conviction until after determining that the applicant meets minimum employment qualifications. Positions for which a criminal background check is otherwise required by law are exempt.

Business mileage deduction. The IRS has issued new optional standard mileage rates which may be used to calculate the deductible costs of operating an automobile for business, charitable, medical, or moving purposes. The standard mileage rates for 2014 for business driving is $.56 per mile. Of course, taxpayers still have the alternative option of calculating the actual costs of using a business vehicle.

Labor Commissioner liens on real property. Under current law, the Labor Commissioner is authorized to issue orders, decisions, or awards in connection with employee complaints governed by the Labor Code. AB 1386 provides that the amount due under a final Labor Commissioner order, decision, or award shall create a lien upon the employer’s real property, recordable by the Labor Commissioner.

Garment manufacturer registrations. AB 1384 creates a civil penalty for a garment manufacturer’s failure to display its name, address, and registration number at the front entrance of the premises. The penalty for an initial citation is $100 per calendar day of non-compliance, and the fine increases to $200 per calendar day for subsequent violations.

California Employers: What You Need to Know for 2014 – Immigrant Protections & Leaves, Accommodations, and Benefits

A new year means new legislation and regulations for employers with operations in California. This four-part series will take a look at some of the new laws and regulation affecting private employers doing business in California. Today we look at new laws and regulations in California dealing with immigrant protections & leaves, accommodations and benefits.

Immigrant Protections

Retaliation. AB 263 prohibits an employer from using immigration law to retaliate against employees who assert protected rights under the Labor Code. Employers who do so, e.g., by contacting or threatening to contact immigration authorities about the immigration status of a current, former, or prospective employee or their family members, will face various penalties, including suspension of certain business licenses, and may face civil action from affected employees.

Extortion. Similarly, AB 524 clarifies that any person that threatens to report the known or suspected immigration status of an individual may be guilty of criminal extortion.

Despite both laws however, employers may still require employees to verify eligibility for employment under Form I-9 without becoming subject to any penalties.

Leaves, Accommodations, and Benefits

Leave for serious crime victims. Under SB 288, an employee who has been a victim of certain serious crimes may not be discriminated or retaliated against for taking time off from work to appear in any legal proceeding in which his or her right as a victim is at issue. The law defines “victim” to include any person who “suffers direct or threatened physical, psychological, or financial harm as a result of the commission or attempted commission of a crime or delinquent act,” as well as that person’s spouse, parent, child, sibling, or guardian. Employees must, however, comply with specific requirements for requesting the leave.

Leave for stalking victims. SB 400 extends existing leave protections for victims of domestic violence or sexual assault to victims of stalking. All employers must provide time off to these victims to appear at legal proceedings, and employers with 25 or more employees must also provide time off to deal with medical/psychological treatment, including safety planning.

Leave for volunteer firefighters, peace officers, and rescue personnel. Existing law requires an employer with 50 or more employees to permit an employee who is a volunteer firefighter to take temporary leaves of absence, not to exceed an aggregate of 14 days per calendar year, for the purpose of engaging in firefighting or law enforcement training. AB 11 extends these leave provisions to reserve peace officers or emergency rescue personnel pursuing firefighting, law enforcement, or emergency rescue training.

Wage replacement. Effective July 1, 2014, SB 770 extends paid family leave benefits to employees taking time off to care for a seriously ill grandparent, grandchild, sibling, or parent-in-law. The law previously only covered time spent caring for a seriously ill child, spouse, domestic partner, or parent or to bond with a child within one year of birth, adoption, or foster care placement. Note, however, that the law does not create the right to a leave of absence, but only to compensation/wage replacement during a qualifying absence.

“Family friendly” work arrangements in San Francisco. According to the Family-Friendly Workplace Ordinance, employers with twenty or more full and part-time employees working within the geographic boundaries of San Francisco must consider employee requests for “flexible or predictable working arrangements to assist with care giving responsibilities,” provided that the employee has worked more than six months for the employer, works at least eight hours per week on a regular basis, and complies with guidelines set by the San Francisco Office of Labor Standards Enforcement in making the request. The ordinance also requires applicable employers to post a notice on the premises informing employees of their rights, and protects employees from retaliation for making a request or from adverse action based on “caregiver” status.

Small business health insurance. Small business owners with one to fifty eligible employees may now enroll for health care coverage online at the Small Business Health Options (“SHOP”) segment of the Covered California website. In fact, beginning on January 1, purchasing insurance through SHOP will be the only way for small business owners to access federal tax credits helping to offset contributions toward employee premiums. Small businesses will be eligible for such tax credits if they have fewer than twenty-five full-time-equivalent employees for the tax year, pay employees an average of less than $50,000 per year and contribute at least fifty percent of their employees’ premium cost. Maximum tax credits will go to employers with ten or fewer full-time-equivalent employees with wages averaging $25,000 or less per year.

Make sure to check out the first two posts in this series on new Wage and Hour Laws and Penalties and Discrimination and Retaliation.