HR Legislation Decisions to Watch

Inside Sales Exemption Error

In September of 2011, New Jersey adopted the federal exemption definitions for executive, administrative, professional and outside sales personnel in the private sector. This decision inadvertently eliminated the state’s inside sales employees exemption, which was part of the state’s administrative exemption, but is not included in the federal administrative exemption. While the state admits the change was inadvertent and its labor agency is working on a solution, it remains to be seen if the faux pas will create new lawsuits until the mistake is rectified.

California Hiring – Credit Reports

Effective January 1, 2012, California businesses will be prohibited, except in limited circumstances, from using consumer credit reports in hiring decisions. California joins seven other states, including Maryland, Connecticut and Oregon, that have enacted similar legislation.

California – Commission Agreements

In 2013, businesses based or that operate in California will be required to use written commission agreements with their employees.

National Labor Relations Act: New Requirement.

HR Departments Take Notice.
Starting November 14, 2011 to you will be required to notify employees of their rights under the National Labor Relations Act. This new requirement will require you to post these employees rights with the 11×17 in notice.

What does this new notice state?

The notice states that employees have the right:

To act together to improve wages and working conditions;
To form, join and assist a union;
To bargain collectively with their employer; and
To choose not to participate in any of the preceding activities.

The notice also provides examples of unlawful employer and union conduct and instructs employees how to contact the NLRB with questions or complaints.

How to get the poster:

The NLRB will send this poster to any employer for free before Nov. 1, 2011. Just contact your NLRB regional office. Or employers can download the notice from the NLRB website and print it out themselves. Translated versions will be available, and must be posted at workplaces where at least 20% of employees are not proficient in English.

The NLRB has provided a fact sheet with further information about the rule that may be viewed by clicking here. You may also read the final rule in its entirety here.

Only private-sector employers who fall under the National Labor Relations Act (union or not) are required to post this notice where other workplace notices are typically kept.

Not all employers are required to post this new requirement. Find out who.

EEOC Issues Final Regulations for the ADA Amendments Act

The U.S. Equal Employment Opportunity Commission (EEOC) has issued its final regulations to implement the ADA Amendments Act (ADAAA). Like the law they implement, the regulations are designed to simplify the determination of who has a “disability” and make it easier for people to establish that they are protected by the Americans with Disabilities Act (ADA). The regulations are effective as of March 25, 2011.

The ADA Amendments Act

The ADAAA overturned several Supreme Court decisions that Congress believed had interpreted the definition of “disability” too narrowly, resulting in a denial of protection for many individuals with impairments such as cancer, diabetes or epilepsy. The ADAAA states that the definition of disability should be interpreted in favor of broad coverage of individuals. The effect of these changes is to make it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the ADA. The ADAAA went into effect on Jan. 1, 2009.

Definition of “Disability” Remains the Same

The ADAAA and the final regulations keep the ADA’s definition of the term “disability” as a physical or mental impairment that substantially limits one or more major life activities; a record (or past history) of such an impairment; or being regarded as having a disability. But the law made significant changes in how those terms are interpreted, and the regulations implement those changes.

Changes to Interpretation of “Disability”

The regulations provide a list of principles to guide the determination of whether a person has a disability.

For example, to be considered a disability, an impairment may not necessarily prevent or severely or significantly restrict performance of a major life activity.

Additionally, whether an impairment is a disability should be interpreted broadly, to the maximum extent allowable under the law.

The principles also provide that, with one exception (ordinary eyeglasses or contact lenses), “mitigating measures,” such as medication and assistive devices like hearing aids, must not be considered when determining whether someone has a disability.

Impairments that are episodic (such as epilepsy) or in remission (such as cancer) are disabilities if they would be substantially limiting when active.

The regulations clarify that the term “major life activities” includes “major bodily functions,” such as:

Functions of the immune system,
Normal cell growth, and
Brain, neurological, and endocrine functions.

The regulations also make clear that not every impairment will constitute a disability. The regulations include examples of impairments that should easily be considered disabilities, such as:

HIV infection,
Diabetes,
Epilepsy, and
Bipolar disorder

The regulations also make it easier for individuals to establish that they are “regarded as” having a disability. Under the new law, the focus is on how the person is treated rather than on what an employer believes about the nature of the person’s impairment.

Additional information

To To read more about the ADA Amendments Act, please click on the EEOC links below:

EEOC’s Notice Concerning the Americans With Disabilities Act (ADA) Amendments Act of 2008
Final Regulations Implementing the ADAAA
Q&As on the Final Rule Implementing the ADA Amendments Act of 2008
Q&As for Small Businesses: The Final Rule Implementing the ADA Amendments Act of 2008
Fact Sheet on the EEOC’s Final Regulations Implementing the ADAAA

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IRS Announces 2011 Standard Mileage Rates

The Internal Revenue Service has announced the 2011 optional standard mileage rates used to calculate the deductible costs of operating an automobile for business, charitable, medical or moving purposes.

Beginning on Jan. 1, 2011, the standard mileage rates for the use of a car (also vans, pickups or panel trucks) are:

51 cents per mile for business miles driven
19 cents per mile driven for medical or moving purposes
14 cents per mile driven in service of charitable organizations

A taxpayer may not use the business standard mileage rate for a vehicle after using any depreciation method under the Modified Accelerated Cost Recovery System (MACRS) or after claiming a Section 179 deduction for that vehicle. In addition, the business standard mileage rate cannot be used for more than four vehicles used simultaneously. The IRS is requesting public comments on whether taxpayers should be allowed to use the business standard mileage rate in this circumstance.

Other Changes Regarding Standard Mileage Rates in 2011

Beginning in 2011, a taxpayer may use the business standard mileage rate for vehicles used for hire, such as taxicabs.

Also beginning in 2011, the standard mileage rates are announced in a separate notice, which also provides the amount a taxpayer must use in calculating reductions to basis for depreciation taken under the business standard mileage rate and the maximum standard automobile cost for automobiles under a fixed and variable rate (FAVR) allowance. The IRS plans to discontinue publishing the standard mileage rate revenue procedure annually but will publish modifications as required.

Taxpayers always have the option of calculating the actual costs of using their vehicle rather than using the standard mileage rates.

For Additional Information

Revenue Procedure 2010-51 and Notice 2010-88 contain additional details regarding the standard mileage rates.