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APRIL 2018

 

In This Issue:

6th Cir. Holds that Title VII Protects Gender Identity

By Ryan Orr, JD, HR and Compliance Consultant
Cascade Employers Association
[email protected]

For the first time, a United States Court of Appeals Court has held that Title VII protects employees from discrimination on the basis of gender identity because it is a type of sex stereotyping – as well as a type of outright sex discrimination. This is a big deal in terms of the effect it has on discrimination and harassment lawsuits in the 6th circuit. And depending on whether the losing party appeals, this case could also provide an opportunity for the United States Supreme Court to decide whether these characteristics are protected under federal law.

The case (EEOC v. R.G. & G.R. Harris Funeral Homes, Inc.) involved a funeral home employee who was born male and presented as male until July 2013. Around that time, she informed her employer that she intended to live and work as a woman for one year before eventually undergoing sex reassignment surgery. Two weeks later, the funeral home fired her for dressing like a woman in violation of the company’s sex-specific dress code policy.

The court held that not only did the employer engage in impermissible sex stereotyping by firing her based on the employer’s perception of how someone of a particular sex should dress, but also that a termination for transgender status necessarily is a type of sex discrimination regardless of whether it is based on preconceived notions of how a person of a particular sex should look or act.

This decision doesn’t have much impact in Oregon. Sexual orientation and gender identity are already protected classes in Oregon, and at the federal level, Oregon resides in the 9th circuit – not the 6th. However, it does affect organizations with employees in states that do not have state-level protection of sexual orientation and gender identity.

For questions about how discrimination law affects your organization, give us a call.

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Cascade Adds Membership Development Manager

By Gayle Klampe, President
Cascade Employers Association
[email protected]

Sheryl Kelsh ImageI’m pleased to introduce Sheryl Kelsh as Cascade’s new Membership Development Manager. Sheryl is the person behind the Cascade membership curtain, helping members fully engage in the programs and services that will generate the most value for their membership investment and identifying the greatest needs of prospective members who haven’t yet discovered why nearly 450 employers rely on our expertise.

With 20 years’ experience working with organizations of all sizes and industries, Sheryl is skilled at linking employers to the resources that advance workplace success. She’s truly an exceptional find for Cascade and its members. Sheryl comes to us as the former Executive Director of Chehalem Valley Chamber of Commerce in Newberg, where she focused a majority of her 12-year tenure on creating and maintaining a successful membership program. Prior to the Chamber, she managed two professional staffing agencies. As a former Cascade member herself, Sheryl understands human resource management and the myriad challenges (and opportunities) associated with it.

While you’ll be hearing from her in various ways over the coming months, I encourage you to reach out to Sheryl for a phone conversation or invite her to your workplace for an orientation of the value of membership. And since it’s an organization-wide membership, feel free to include others on your team so they too can reap the benefits. We want to make sure you get every penny’s worth of your membership investment.

What Comes With Membership?

  • AnswerSource Helpline – Call or email us for quick and reliable answers to your general employment-related questions or to request a sample policy or form. Up to 15 minutes of free consultation per issue.
  • HR Assessment – A review of your current HR programs/practices to help you get and stay in compliance. We come to you to conduct the assessment, discuss challenges, and help you set goals for areas identified.
  • Total Cash Pay Assessment (NEW) – Select one job within your organization and our compensation team will review pay and bonus data from multiple market survey sources, recommend pay and bonus levels, and include a comparison of your specific position versus your competitive market.
  • Quick Pulse Employee Survey – With just three questions, this quick online survey helps you discover what matters most to your employees and what they feel is in most need of improvement.
  • Leadership Engagement Essentials – Receive one annual registration to this two day program (offered three times a year) for insightful strategies that promote consistent leadership practices, better productivity, increased morale, greater profitability and overall improved organizational performance.
  • Preferred Training Rates – Keep your supervisors, managers and executives on track with professional development training at substantial savings. And any of our training programs can be brought to you on-site to specifically meet the needs of your company.
  • SalaryTrends® Subscription – Enter your organization’s pay data and get free access to fresh, local pay information to help you recruit and retain the right people. We’re always happy to add job titles to our surveys if you don’t find the jobs you’re looking for.
  • Online Member-Only Area – Take advantage of this information-rich area of our Web site, including an online tool called HR AnswersNow. It brings you hundreds of sample forms, checklists, policies; a rich FAQ section on HR and benefits topics; government forms; employment laws for all 50 states; and much more.
  • Critical Compliance News and Workplace Information – Stay compliant and keep informed through updates in monthly newsletters and late breaking e-alerts.
  • Special Rates on all Professional Services – Rely on Cascade for in-depth consultation on specific employee situations, such as discipline/discharge and the more complicated family leave issues; for projects like employee handbook development and compensation plan design.
  • Access to Partnered Programs at Special Rates – We’ve established alliances with outstanding providers, allowing you access to unsurpassed services such as 401(k) retirement plan, employee assistance program, drug & alcohol testing, background screening, and safety & health services.

As you can see, there’s a lot to talk about. Please contact Sheryl any time.

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Hot Compliance Question

By Ryan Orr, JD, HR and Compliance Consultant
Cascade Employers Association
[email protected]

Question: We require certain employees to hold special licenses. As part of maintaining those licenses, our employees are required to take continuing education courses. Am I required to pay my employees for the time spent in these trainings?

Answer:  It depends. Time spent training must be paid unless all of the following are met:

  1. Attendance is outside of the employee’s regular working hours;
  2. Attendance is voluntary;
  3. The course, lecture, or meeting is not directly related to the employee’s job; and
  4. The employee does not perform any productive work during such attendance.

Continuing education is an interesting subject because – while it seems job-related – the Department of Labor has taken the position that it is not directly related to the employee’s job “when it provides instruction of general applicability that enables an individual to gain or continue employment with any [employer.]”

So to avoid paying training time for these classes, you must ensure that they are taken outside of regular working hours, that the employee voluntarily chooses which classes they want to take, and that the employee does not perform any productive work during attendance.

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DACA Revisited

By Ryan Orr, JD, HR and Compliance Consultant
Cascade Employers Association
[email protected]

You may remember that several months ago, President Trump issued an order that the DACA (or Dreamer) program, which grants children of illegal immigrants authorization to work in the United States, would end on March 5, 2018. You may have also heard in the news recently that the US Supreme Court declined to hear a challenge to the President’s DACA order at this time, saying it must first be heard by the circuit appeals court.

What does that mean?

After the President issued the order ending the program, the order was immediately challenged in federal district courts, and two judges issued injunctions putting the order on hold. That meant that Dreamers could still apply for renewals of their DACA work authorizations while the legality of the order was litigated.

The Supreme Court’s decision to not hear the case means that Dreamers will continue to be able to apply for renewals of their work authorizations – most likely well beyond the March 5, 2018 deadline given the glacial pace with which most litigation progresses.

What does this mean for your organization?

It means nothing has changed from where we have been for the last several months. Any current DACA authorizations are still valid, and those employees may continue to apply for renewals if their authorization is expiring. Dreamers cannot be treated differently from other employees in any way, although if a Dreamer’s authorization to work expires without renewal, you would be required to terminate the employee for not having valid work authorization.

We’ll continue to monitor the status of DACA as it moves its way through the court systems. If you have any questions in the meantime, let us know!

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IRS Released New W-4 and Withholding Calculator

By Diane McBride, Director of Finance and Accounting
Cascade Employers Association
[email protected]

The new IRS W-4 form and an online withholding calculator to assist in filling out the form are now available on the IRS website.

Employees are not required to change their W-4 withholdings, but the IRS is encouraging them to take a look and use the online tool as early as possible to avoid any year-end surprises. If changes are needed, the calculator will give your employees the information needed to fill out a new W-4.

You can learn about IRS recommendations, access the calculator, or download a new W-4 form here, on the IRS website.

Remember, this change is due to the federal tax law recently implemented and only affects the federal tax situation. For the many employees who fill out one W-4 that covers both federal and state withholdings with the same withholding calculation, and who wish to keep their state withholdings as they currently are and only change the federal withholdings, two W-4s need to be filled out and a written note at the bottom of each declaring “federal only” or “state only.”

As always, we are here to help with any questions.

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HR Stats You Should Know

By Jenna Reed, JD, General Counsel and Director, Compliance Services
Cascade Employers Association
[email protected]

Did you know in 2017, the Wage and Hour Division of the Department of Labor recovered the equivalent of $740,000 in back pay per day, for a total of over $270 Million? The most common reason for back pay was unpaid overtime. With so many wage and hour laws (both state and federal) it’s hard to keep up.

Oregon has new overtime rules for manufacturing establishments and new predictive scheduling rules for large employers in certain industries such as retail. Because back wages and penalties can add up quickly, now might be a good time to conduct a wage and hour audit to make sure you’re not at risk for a wage and hour claim. This type of audit might even save you some money. How, you say?

The Department of Labor recently launched a pilot program called the Payroll Audit Independent Determination (PAID) program which helps provide a resolution to potential minimum wage and overtime violations under the FLSA. In a nutshell, a company conducts an audit, self-reports potential violations to the DOL, pays back wages to employees and avoids liquidated damages and attorney fees.

There are some limitations on the PAID program and it might not protect against violations under state wage and hour laws. Even if the PAID program isn’t right for you, a wage and hour audit probably is, especially if you’re in a high-risk industry.

If you want to discuss your options, just give us a call and we’re happy to help.

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Washington Governor Signs Ban-the-Box Bill into Law

By Ryan Orr, JD, HR and Compliance Consultant
Cascade Employers Association
[email protected]

On March 13, 2018, Washington’s governor signed a ban-the-box bill into law, effective June 6, 2018. The new law prohibits employers from inquiring about an applicant’s criminal history or performing a criminal background check until the applicant has been evaluated on qualifications and a conditional offer has been made. Employers cannot state in job postings that individuals with criminal histories are excluded from employment, and they cannot have policies or practices that automatically exclude people with criminal histories.

The law does not apply to:

  • Any employer hiring a person who will or may have unsupervised access to children under the age of 18, or a vulnerable adult or person;
  • Any employer, including a financial institution, that is expressly permitted or required under any federal or state law to inquire into, consider, or rely on information about an applicant's or employee's criminal record for employment purposes;
  • Employment by a general or limited authority Washington law enforcement agency or by a criminal justice agency;
  • An employer seeking a nonemployee volunteer; or
  • Any entity required to comply with the rules or regulations of a self-regulatory organization, as defined in section 3(a)(26) of 36 the Securities and Exchange Act of 1934, 15 U.S.C. 78c(a)(26).

For questions about how ban-the-box laws affect your business, give us a call.

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Consumer Price Index (CPI)

Consumer Price Indexes listed were issued March 13, 2018 for February data. 1982-84 = 100, unless otherwise noted.

In January 2018, the Bureau of Labor Statistics introduced a new geographic area sample for the Consumer Price Index (CPI). This sample is being revised to reflect data from the most recent Decennial Census. As part of the revision, indexes for some areas were added, some were discontinued and indexes for other areas were renamed. Portland is among the areas discontinued. For additional information on the geographic revision, contact this information office or go to: www.bls.gov/cpi/additional-resources/geographic-revision-2018.htm.

  CPI-W
United
States
2017

237.477
2018

242.988
Change

2.3%
  CPI-U
United
States
2017

243.603
2018

248.991
Change

2.2%

Note: The Consumer Price Index (CPI) program produces monthly data on changes in the prices paid by urban consumers for a representative basket of certain retail goods and services. CPI-W consists of urban households whose primary source of income is derived from the employment of wage earners and clerical workers. CPI-U includes wage earners and clerical workers, salaried workers, the self-employed, retirees, and the unemployed.

US Department of Labor Historical CPI Data

 


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