It's a best practice to review your policies, posters, and forms periodically to ensure that they're up to date and adhere to all applicable laws. Since the New Year typically brings a host of new laws, now is a good time to conduct this review. Here is a checklist to help you with your 2020 review:
#1: W-4 Form
The Internal Revenue Service (IRS) has released the final version of the 2020 Form W-4. All new employees first paid after 2019 must use the new form. If existing employees wish to adjust their withholding after 2019, they must use the redesigned form. Learn more.
#2: Annual Notices
A number of states require employers to distribute certain notices or policies to employees annually. For instance, Massachusetts and Maine require employers to distribute their sexual harassment policy to employees annually. New York requires that a notice be furnished during annual sexual harassment training. Other states require employers to provide notices about the state and/or federal Earned Income Tax Credit (EITC), state-run retirement programs, pay equity, and/or whistleblower protections. A few local jurisdictions also have their own annual notice requirements. The EITC notices are typically due at the beginning of the year, but as a best practice and for administrative ease, consider distributing other annual notices at the beginning of the year as well unless required at another time.
#3: Minimum Wage Posters
Many states and local jurisdictions have new minimum wages that took effect at the start of the year. Some additional jurisdictions will see increases at other times throughout 2020. Most jurisdictions require employers to post a minimum wage notice in the workplace. If you're required to post a notice, make sure it's the most up-to-date version.
#4: Sexual Harassment Policies
Several state and local jurisdictions have expanded their sexual harassment prevention laws to require employers to have a written policy against harassment and/or provide anti-harassment training. Some have expanded their laws to protect independent contractors and/or cover smaller employers. Even if your sexual harassment law didn't change recently, consider reviewing your policy to ensure that it is effective in preventing and responding to harassment. In general, policies should:
- Clearly state that sexual (and other forms of) harassment and retaliation are prohibited.
- Define sexual (and other forms of) harassment and include examples of prohibited conduct.
- State that the policy applies to employees at every level of the organization, as well as to applicants, clients, customers, and other third parties.
- Address consequences for violating the policy.
- Provide clear procedures for employee complaints and offer employees multiple avenues to report potential violations.
- Encourage employees to report inappropriate conduct, without fear of reprisal, whether they are a victim or a witness.
- Assure employees that complaints will be taken seriously, and the company will conduct a prompt, impartial, and thorough investigation.
- Indicate the company will maintain confidentiality to the extent possible.
- Encourage employees to respond to questions or participate in investigations.
- State that the company will take immediate and proportionate corrective action if it determines that a violation of the policy has occurred.
Keep in mind that your state or local law may require specific information to be included, such as how employees may file complaints with the state or local agency.
#5: Equal Employment Opportunity Policies and Posters
Federal, state, and local laws prohibit employers from discriminating and retaliating against applicants and employees on the basis of certain protected characteristics, including, but not limited to, age, race, sex, and religion. This list of protected characteristics is often more expansive at the state and local level. For example, some states have recently enacted protections against hairstyle discrimination and/or prohibit discrimination based on reproductive health decisions. Some have also expanded their laws to cover smaller employers and/or non-employees, such as independent contractors and interns. When reviewing your equal employment opportunity policy, make sure it:
- Includes all characteristics protected under federal, state, and local laws that apply to your business.
- Prohibits retaliation against employees for filing a complaint or participating in an investigation.
- Stresses that all employment decisions are based upon qualifications and capabilities to perform the essential functions of the job, without regard to protected characteristics.
- States that the policy governs all aspects of employment, including, but not limited to, hiring, selection, training, benefits, promotions, compensation, discipline, and termination.
- Urges the reporting of all instances of discrimination, harassment and misconduct.
- States that appropriate disciplinary action, up to and including immediate termination, will be taken against any employee who violates the policy.
Nondiscrimination laws generally require employers to post notices in the workplace about employees' rights. When these laws change, an updated poster may be required. Make sure you have posted all required notices and that they're the most up-to-date version.
#6: Leave Policies
States and local jurisdictions continue to pass paid family leave and paid sick leave laws that, depending on the law, provide employees with partial wage replacement or require employers to give employees time off for covered absences. Recently, some states have enacted laws that require employers to offer all-purpose leave. For example, both Maine and Nevada have enacted laws that require employers to provide their employees with paid time off that can be used for any reason. In Maine, the requirement will apply to employers with more than 10 employees and takes effect January 1, 2021. In Nevada, the requirement will apply to employers with 50 or more employees and took effect on January 1, 2020. Some leave laws also require employers to have written policies outlining the leave entitlement. In general, your leave policies should address:
- Who is eligible (include all requirements for eligibility, such as length of service and status as a full-time or part-time employee).
- How much leave is available and how it accrues (if applicable) and whether and how much leave can be carried over. Note: Leave laws often require employers to include sick leave accruals and balances on employee pay statements.
- Whether the leave is paid or unpaid.
- The types of absences covered by the policy.
- How employees can request leave.
- Employee notice about the need for leave (many leave laws restrict the amount of notice employers may require).
- Benefits continuation (leave laws typically require employers to continue health and other benefits while the employee is on leave).
- Documentation (many leave laws have rules on what documentation employers may require to confirm the absence is covered).
- Job reinstatement (under most leave laws, employees must be reinstated to the position they held prior to the start of leave or to a comparable position).
- How the policy interacts with other leave policies.
- Anti-retaliation statement (many leave laws prohibit any adverse action against an employee for taking leave or inquiring about their rights under the law).
Leave laws also typically require employers to provide and/or post a notice about employees' rights.
#7: Pregnancy Accommodations Policies
Many states have enacted laws requiring employers to provide reasonable accommodations for pregnancy, childbirth, and related medical conditions. A reasonable accommodation is generally a change to the work environment or way work is typically done in order to enable an employee to perform the essential functions of their role. If you're subject to a pregnancy accommodation law, you may be required to have a written policy (although it is a best practice even if it isn't required), and that policy may need to be in your employee handbook if you have one. Make sure the policy complies with your state law, including the types of accommodations that are available to eligible employees. These laws may also require employers to provide and/or post a notice about employees' rights.
#8: Application Forms
Several states and local jurisdictions have enacted laws limiting the information employers may seek on application forms. For example, several state and local jurisdictions have laws that restrict employers from making inquiries into an applicant's pay history during the hiring process. Some have enacted laws prohibiting employers from asking about criminal history on application forms (some make employers wait until after a job offer has been extended). Make sure your application forms avoid any questions that are prohibited under applicable laws.
Note: Even if your jurisdiction doesn't expressly prohibit questions about criminal history on application forms, the Equal Employment Opportunity Commission recommends that employers avoid such inquiries. If you do decide to ask about convictions later in the selection process, the inquiries should be job related and consistent with business necessity.
Ensure that your policies, posters, and forms comply with all applicable laws and are updated as laws or company policies change. When you update your policies, include a revision date and make clear that the current version supersedes all previous versions. It's also a best practice to obtain signed acknowledgments from employees whenever you issue new or updated policies.