Posted on September 20, 2021

On Oct. 5, 2021 The 2020 Joint Employer Rule Will Be Removed In Its Entirety

On July 29, 2021, the U.S. Department of Labor (DOL) announced that it is rescinding its 2020 Joint Employer Determination Rule (the Rule), effective Sept. 28, 2021. On Sept. 20, the DOL extended this date to Oct. 5, 2021. 

Joint employment or co-employment situations arise when two or more organizations share the control and supervision of one or more employees. Joint employers are equally and individually responsible for compliance with labor and employment laws, including the Fair Labor Standards Act (FLSA). 

The DOL makes joint employment determinations to prevent scenarios where one employer uses another as a “shield” to avoid compliance obligations. 

Rescinding the 2020 Rule

According to the DOL, rescinding the Rule is necessary because the Rule “improperly narrows the test for vertical joint employment and conflicts with decades of DOL interpretation, the text of the FLSA and Congressional intent.” 

The DOL also considered the fact that in September 2020, a federal court vacated most of the Rule. In that case, the court (1) held that the Rule deviated from prior guidance without explaining why and (2) found that the Rule unlawfully limited test factors by focusing on a control-based test to the exclusion of economic dependence and overlooking the totality-of-the-circumstances economic realities standard that has generally been used by the courts.

Impact on Employers

Employers should continue to comply with the parts of the 2020 Rule that remain in effect until Oct. 5, 2021. After this date, the 2020 Rule will be removed in its entirety, leaving room for previous joint determination guidance to apply. 

© 2021 HR 360, Inc.

Posted on September 17, 2021

New Rates Will Apply To Federal Contractors on Jan. 1 and Jan. 30, 2022

On Sept. 15, 2021, the U.S. Department of Labor (DOL) announced a minimum wage rate of $11.25 per hour for federal contractors. Similarly, the minimum wage rate for federal contractor tipped employees will increase to $7.90 per hour. The new rates become effective Jan. 1, 2022.  

Affected Federal Contractors

Under Executive Order 13658, the minimum wage rate for federal contractors applies to workers performing work on or in connection with covered contracts, which include four major categories of contractual agreements: 

• Procurement contracts for construction covered by the Davis-Bacon Act (DBA);
• Service contracts covered by the Service Contract Act (SCA);
• Concessions contracts, including any concessions contract excluded from the SCA; and
• Contracts in connection with Federal property or lands and related to offering services for Federal employees, their dependents or the general public. 

$15 Minimum Wage Rate

As a reminder, Executive Order 14026 will increase the minimum wage rate for federal contractor employees to $15 per hour ($10.50 for tipped workers) on Jan. 30, 2022. The $15 per hour rate applies to new contracts entered into on or after Jan. 30, 2022, and to contracts that are renewed or extended on or after Jan. 30, 2022. 

The DOL has stated that it expects that not all federal contracts will qualify as “new contracts” under Executive Order 14026. These contracts will then be subject to the minimum wage requirements of Executive Order 13658.

© 2021 HR 360, Inc.

Posted on September 14, 2021

New Requirements May Affect Employers With 100 Or More Employees

On Sept. 9, 2021, President Biden announced that the Occupational Safety and Health Administration (OSHA) is developing an emergency temporary standard (ETS). The new ETS will require private-sector employers with 100 or more employees to ensure their workforce is fully vaccinated or test negative for COVID-19 every week before coming to work. 

This announcement follows the vaccination, masking and social distancing requirements issued by the president in July for the public sector—federal employees and on-site contractors. 

There currently is no time frame as to when the new ETS will be released. The government estimates that the ETS will impact over 80 million private-sector workers.

Current OSHA ETS

OSHA currently has a COVID-19 ETS for the health care and health care support workers. This ETS covers hospitals, nursing homes and assisted living facilities; emergency responders; home health care workers; and employees in ambulatory care settings where suspected or confirmed COVID-19 patients are treated.

OSHA has also issued guidance to help employers and workers not covered by the health care ETS. This guidance is to help employers protect workers who are unvaccinated, otherwise at-risk, or fully vaccinated but in areas of substantial or high community transmission.

Next Steps

Employers should continue to protect at-risk, unvaccinated and fully vaccinated workers. Employers should also monitor OSHA communication channels to become familiar with the expected private sector ETS once it is published.  

© 2021 HR 360, Inc.

Posted on September 14, 2021

Public Comments Due On or Before Nov. 1, 2021

On Sept. 14, 2021, federal agencies announced proposed revisions to the Form 5500 Annual Return/Report. These changes are designed primarily to implement the Setting Every Community Up for Retirement Enhancement Act of 2019 (SECURE Act) and to make other improvements.

Key proposed revisions include consolidating the Form 5500 for defined contribution retirement plans, and expanding the number of defined contribution retirement plans that would be eligible for small plan simplified reporting options.

If adopted, the proposed changes generally would be effective for plan years beginning on or after Jan. 1, 2022. A fact sheet summarizing the changes is available, in addition to the Proposed Rule and the Notice of Proposed Form Revisions.

© 2021 HR 360, Inc.

Posted on September 14, 2021

Expansion of Leave Rights Takes Effect Jan 1.

Illinois has amended the state Victims' Economic Security and Safety Act to provide victims of violent crime the same employee rights to unpaid leave the Act provides to victims of domestic, sexual and gender violence. The changes also expand some of the law’s definitions. The amendments take effect Jan. 1, 2022.

Reasons for Leave
The amendments allow employees who themselves—or whose family or household members—are victims of any crime of violence (as defined by the amendments) to take off work for the reasons already permitted for employee victims of domestic, sexual and gender violence, namely:

• Medical attention for or recovery from physical or psychological injuries;
• Services from a victim services organization;
• Psychological or other counseling;
• Safety planning, relocating or other actions to increase safety or ensure economic security

Leave Amount
The amount of leave required by the Act depends on employer size, as follows:

• 1-14 employees: four weeks of unpaid leave per year
• 15-49 employees: eight weeks of unpaid leave per year
• 50 employees or more: 12 weeks of unpaid leave per year

Definition Changes
The amendments expand the definition of family or household member to add grandparents, grandchildren, others sharing a relationship through a child, parties to civil unions, and family equivalents. In addition, sexual violence is now defined as sexual assault.

© 2021 HR 360, Inc.

Posted on September 10, 2021

Requirements Apply Only to Employers Claiming Tax Credit for Leave

IRS Notice 2021-53, issued Sept. 7, 2021, provides guidance for employers on how to report qualified sick and family leave wages for employee leave taken in 2021 under the Families First Coronavirus Relief Act (FFCRA), as amended by the COVID-Related Tax Relief Act of 2020 and the American Rescue Plan Act of 2021. In July 2020, the IRS issued Notice 2020-54 about reporting for FFCRA leave taken in 2020.

Reporting Requirement
Employers are required to report qualified 2021 FFCRA leave wages to employees on either a 2021 Form W-2 (Box 14) or in a separate statement provided with the Form W-2. The requirement applies only to employers who claim tax credits for the leave wages under the relevant legislation.

According to the notice, there are separate reporting requirements for leave provided from Jan. 1, 2021-March 31, 2021, and for leave provided from April 1, 2021-Sept. 30, 2021. The notice gives additional specific reporting instructions for leave wages that must be entered on Box 1, 3 or 5 of Form W-2.  The guidance also includes model language employers may provide as part of the Form W-2, Box 14 Instructions for Employee, or in a separate statement.

Paid Sick and Family Leave Under FFCRA
The FFCRA, passed in March 2020, required employers with fewer than 500 employees to provide paid sick and family leave for specific COVID-19-related reasons and included employer tax credits to cover leave costs. The leave requirement expired in December 2020. However, the Tax Relief Act of 2020 and the American Rescue Plan Act extended the tax credits for employers who chose to continue to provide FFCRA leave, first through March 31, 2021, and then through Sept. 30, 2021.

© 2021 HR 360, Inc.

Posted on September 07, 2021

Requirement Applies to Employers that Offer Prescription Drug Coverage

Employers who sponsor group health plans that offer prescription drug coverage to Medicare-eligible individuals must provide a Medicare Part D Creditable or Non-Creditable Coverage Notice to those individuals before October 15.

These notices inform Medicare-eligible individuals whether the plan’s prescription drug coverage is expected to pay, on average, as much as the standard Medicare prescription drug coverage (meaning it is "creditable”).

For more information on this notice requirement, including links to downloadable model notices, click here.

© 2021 HR 360, Inc.

Posted on August 27, 2021

The New Poster Provides Employees With Notice of State Job Training and Employment Programs

Nevada has amended its unemployment laws to require employers to display and maintain a new poster published by the state’s Department of Employment, Training and Rehabilitation (DETR). This new poster is available in both English and Spanish. The new law becomes effective on Oct. 1, 2021. 

The new poster provides employees with notice of job training and employment programs conducted by the DETR. The poster names various resources available to employees and includes a number of web addresses employees can use to access more information about each program. This poster will be updated as necessary to provide accurate information.

Like with other required workplace posters, employers must display this new poster in a conspicuous location at the place of employment where notices to employees and employment applicants are customarily posted and read. 

© 2021 HR 360, Inc.

Posted on August 26, 2021

New Rates Become Effective Throughout the State Become Jan. 1, 2022

On Aug. 19, 2021, Minnesota’s Department of Labor and Industry announced the minimum wage rate in the state will increase for 2022. Starting on Jan. 1, 2022, large employers in Minnesota will need to pay their employees at least $10.33 per hour. A lower rate of $8.42 will apply to small employers, some new hires and youth workers. 

Minnesota’s minimum wage rate depends on employer size, though a lower minimum wage rate also applies to employees under the age of 18 and new hires. State law defines the following terms:

• Large employers: Employers with an annual gross revenue of $500,000 or more. The $10.33 per hour rate applies to large employers starting on Jan. 1, 2022. 
• Small employers: Employers with an annual gross revenue that is less than $500,000. The $8.42 per hour rate applies to small employers starting on Jan. 1, 2022.
• Training wage rate: Effective Jan. 1, 2022, employers may pay a wage as low as $8.42 per hour to employees younger than 20 years of age for the first 90 consecutive days of employment.
• Youth wage rate: Effective Jan. 1, 2022, employers may pay a wage as low as $8.42 per hour to employees younger than 18 years of age.

Minnesota law does not allow employers to use an employee’s tips to offset the employee’s minimum wage rate. Tipped employees must be paid at least the general minimum wage rate plus any tips the employee may earn.

© 2021 HR 360, Inc.

Posted on August 24, 2021

Model Notice Available

The American Rescue Plan Act (ARPA) provides COBRA premium assistance to eligible individuals and imposes notice requirements on health plans, including a requirement to notify eligible individuals about when their premium assistance ends.

The notice of premium subsidy expiration must be provided during the 45 - 15-day period before an individual’s subsidy expires. This means that, for individuals whose subsidy is expiring due to the end of the subsidy period, the notice must generally be provided from Aug. 16, 2021, to Sept. 15, 2021. Otherwise, the due date will depend on when an individual’s maximum COBRA coverage period ends.

Plans are not required to issue an expiration notice to individuals whose subsidy is expiring because they became eligible for other group health plan coverage or Medicare.

The U.S. Department of Labor has issued a model notice of expiration of premium assistance (Word / PDF) that can be used to satisfy this requirement. The model is also available in Spanish (Word / PDF).

© 2021 HR 360, Inc.

Posted on August 16, 2021

Measure Is Substantially Similar to Earlier COVID-19 Leave Ordinance

Pittsburgh has enacted a new ordinance requiring paid employee leave for COVID-19-related reasons. The city’s previous COVID-19 paid leave law expired in June after the state’s disaster emergency ended. The new ordinance, substantially similar to the previous one, remains in effect for one year starting on July 29, 2021, after which it may be extended by the city council.

Covered Employers and Employees

Under the ordinance, employers with 50 or more employees are required to provide up to 80 hours of paid sick time for specific COVID-19 reasons (relating to their own or a family member’s illness, exposure or vaccination) that prevent them from working or teleworking. The ordinance covers employees who:

• Have been employed by the employer for 90 days;
• Work within Pittsburgh after July 29, 2021;
• Normally work within Pittsburgh but are currently teleworking from any other location as a result of COVID-19; or
• Work from multiple locations or from mobile locations, if 51% or more of the employee’s time is spent within Pittsburgh.

There is no waiting period. In addition, employers must allow the maximum amount of sick time under the Pittsburgh paid sick time law to employees immediately upon hiring, if the use arises directly from COVID-19.

Interaction With Other Employee Leaves

The leave is in addition to any other paid leave provided by employers, and it may be used before other paid leave, unless otherwise required by law. Leave required under federal or state law may be substituted to the extent the requirements coincide. Leave provided specifically for COVID-19 use may also be substituted, to the extent the employer leave meets the requirements of the ordinance.

© 2021 HR 360, Inc.

Posted on August 10, 2021

The Court Reminded Employers That State Law Can Impose Higher Protections for Employees

On July 21, 2021, Pennsylvania’s Supreme Court ruled in In re Amazon.com, Inc., that “time spent on an employer’s premises waiting to undergo, and undergoing, mandatory security screenings” qualifies as “hours worked” under the Pennsylvania Minimum Wage Act (PMWA). In addition, the court also found that “there is no de minimis exception under the PMWA.” 

Compensable Time 

In reaching its decision, the court reasoned that the PMWA’s objective is to protect employees’ right to be adequately compensated for all their hours of work. The court also clarified that, historically, this objective has led Pennsylvania to enforce stronger wage payment protections than what is required by federal law. 

The court also pointed to the Pennsylvania Department of Labor and Industry publication that states “hours worked” includes “time during which an employee is required by the employer to be on the premises of the employer.”

The De Minimis Doctrine

Federal law allows employers to disregard de minimis—insubstantial or insignificant—periods of time beyond the scheduled working hours when determining how many hours employees have worked during the workweek (some conditions apply). 

However, the court explains that the PMWA does not provide a de minimis exception to “hours worked” and indicates that it could not discern any intent from the state legislature “to allow a de minimis exception to the PMWA’s irreducible requirements.”

As a result of Pennsylvania’s Supreme Court decision in In re Amazon.com, Inc., employers in the state should:   

© 2021 HR 360, Inc.

Posted on August 05, 2021

The Amendments Affect Onboarding and Offboarding Employer Practices

On July 8, 2021, North Carolina amended its labor laws to strengthen wage payment requirements. Specifically, the amendments affect the last wage payment upon separation of employment and employee wage notification requirements.

Last Payment of Wages  

State law requires employers to provide an employee’s last wages upon separation of employment on or before the next regular payday. The amendments provide employers the option of delivering these final wages either through regular pay channels or by trackable mail if requested by the employee in writing.  

Wage Payment Notification  

North Carolina also requires employers to notify their employees of the “promised wages” and the day and place of payment at the time of hiring. Additional notices are also required when “promised wages” change, though wages may be retroactively increased without prior notice.  

The amendments remove the option for employers to give this notice verbally. As a result, employers must now provide this notice in writing. The amendments also alter the notification period. Before July 8, 2021, employers were required to provide a notice of a change in “promised wages” at least 24 hours prior to the change. Now, employers must provide written notice of “promised wages” at least one pay period prior to any change.  

Impact on Employers  

Employers should review their employee onboarding, offboarding and compensation practices and procedures to ensure compliance with these new wage payment requirements. 

© 2021 HR 360, Inc.

Posted on August 05, 2021

The Base Rate For Tipped Employees Is No Longer Proportional to the State's Minimum Wage Rate

On July 23, 2021, New Hampshire adopted a new base rate for tipped employees of $3.27 per hour. This new tipped employee base rate replaces the previous state rate, which was 45% of the state’s minimum wage rate. This new law also indicates that the federal rate for tipped employees will apply whenever the federal rate for tipped employees exceeds the state rate. 

The current minimum wage rate in the state is the federal rate of $7.25 per hour. The federal base rate for tipped employees is $2.13 per hour. 

Tipped Employee Wages

State law allows employers to pay tipped employees a lower minimum wage rate, also known as a cash wage or base rate, because it assumes the employees’ tips and cash wage will be sufficient for them to earn a wage rate at least equal to the state minimum wage rate. 

However, state law also requires employers to subsidize their tipped employees’ wages whenever the combination of base wages and tips is lower than the state minimum wage rate. 

Tipped Employees

New Hampshire defines a “tipped employee” as an individual working for a restaurant, hotel, motel, inn, cabin or ballroom. Tipped employees must also customarily and regularly receive more than $30 per month in tips directly from the customer. 

Employers may not pay their tipped employees a base rate for nontipped work. This prohibition does not apply to duties that are incidental to the regular duties of the tipped employee and generally assigned to the tipped employees.

© 2021 HR 360, Inc.

Posted on August 04, 2021

On July 29, 2021, the U.S. Department of Labor (DOL) announced that it is rescinding its 2020 Joint Employer Determination Rule (the 2020 Rule), effective Sept. 28, 2021. The DOL had previously proposed rescinding the rule in March 2021. 

Joint employment or co-employment situations arise when two or more organizations share the control and supervision of one or more employees. Joint employers are equally and individually responsible for compliance with labor and employment laws, including the Fair Labor Standards Act (FLSA). 

The DOL makes joint employment determinations to prevent scenarios where one employer uses another as a “shield” to avoid compliance obligations. 

Rescinding the 2020 Rule

According to the DOL, rescinding the 2020 Rule was necessary because its tests for joint employment contradict longstanding agency interpretations and court rulings. For example, while the 2020 Rule requires using a 4-part test that focuses on an employer’s exercise of control, “all courts consistently use a totality-of-the-circumstances economic realities approach to determine the scope of joint employment under the FLSA,” according to the DOL. 

The DOL also considered the fact that a federal court had already vacated most of the 2020 Rule in September 2020. In that case, the court held that the rule deviated from prior guidance without explaining why. 

Impact on Employers

Employers should continue to comply with the 2020 Rule until its rescission takes effect on Sept. 28, 2021. After that date, employers should look to agency guidance and court rulings for direction on using the totality of circumstances to determine joint employment status under the FLSA.    

© 2021 HR 360, Inc.

Posted on August 04, 2021

Contributions Will Now Start Jan. 1, 2023

The Oregon legislature has delayed the rollout of the state’s paid family and medical leave (PFML) program, originally scheduled for 2022. Legislation signed July 27, 2021, by Governor Kate Brown changes the start date for employer and employee contributions from Jan. 1, 2022, to Jan. 1, 2023; benefit payments from Jan. 1, 2023, to Sept. 3, 2023; and employer assistance grants from Jan. 1, 2023, to June 30, 2023.

According to the Oregon Employment Department—the agency charged with running the PFML program—the changes were necessary due to the impact on the agency of administering unemployment insurance benefits during the pandemic.

Oregon PFML will provide workers with cash benefits during family, medical or safety-related leave. Employers will pay 40% of PFML contributions and employees will pay 60%. Employers with fewer than 25 employees are exempt from contributing; however, if they choose to contribute, they may apply for a grant to offset leave costs.

© 2021 HR 360, Inc.

Posted on August 03, 2021

Recent Events Prompt Administrative Action

The Oregon Bureau of Labor and Industries issued a temporary rule expanding the permissible uses of employee sick time under state law, stating that it was responding to recent wildfires, evacuation orders, dangerous air quality conditions and a deadly heat event in the state. The rule took effect July 22, 2021, and remains in effect through Jan. 17, 2022.

New Reasons for Leave
The new rule adds to the Oregon Sick Time Law’s public health emergency reasons for leave, allowing employees to take sick leave in the event of:

• An emergency evacuation order of level 2 (SET) or level 3 (GO) issued by a public official with authority to do so, if the area subject to the order includes the employer’s place of business or the employee's home address; or
• A determination by a public official with authority to do so that the air quality index or heat index are at a level where continued exposure would jeopardize the health of the employee.

Oregon Sick Time Law
The Oregon Sick Time Law requires employers to provide one hour of sick leave for every 30 hours worked. Employers with at least 10 employees (six employees in Portland) must compensate employees at their regular pay rate during the leave.

Leave may generally be taken for the employee’s or a family member’s health or medical care; to care for a new baby or child; for bereavement; for reasons related to domestic violence, sexual assault, harassment and stalking; and for specific public health emergencies.

© 2021 HR 360, Inc.

Posted on August 03, 2021

Tax Credits Allowed for Leave to Accompany, Care for Certain People

The IRS has updated its frequently asked questions (FAQs) on employer tax credits for providing paid employee leave under the Families First Coronavirus Response Act (FFCRA) (as amended and extended by the American Recovery Plan Act (ARPA)).

FAQ Updates
The FFCRA/ARPA employee leave credits reimburse eligible employers for providing paid sick and family leave for specific COVID-19-related reasons. The revised FAQs make clear this includes leave taken by employees to:

• Accompany an individual to obtain immunization related to COVID-19, and
• Care for an individual who is recovering from any injury, disability, illness or condition related to the immunization.

“Individual” means an immediate family member, someone who regularly resides in the employee’s home, or a similar person with whom the employee has a relationship that creates an expectation that the employee would care for the person.

FFCRA/ARPA Credits
The FFCRA required small and midsized employers to provide paid employee leave for COVID-19-related reasons through Dec. 31, 2020. Subsequent legislation, including the ARPA, extended the law’s tax credits for employers that continued to offer the leave on a voluntary basis. The credits, taken against employment taxes, are in effect through Sept. 30, 2021.

 

© 2021 HR 360, Inc.

Posted on August 03, 2021

Form Used to Report and Claim COVID-19-related Credits

The IRS has released the latest version of its Form 941, Employer’s Quarterly Federal Tax Return, which must be filed each quarter by employers to report income taxes, Social Security tax or Medicare tax withheld from employees’ paychecks, and to pay the employer’s portion of Social Security or Medicare tax.

The second quarter form reflects changes made by the American Rescue Plan Act (ARPA) and other legislation enacted as a result of COVID-19. These updates include the following:

• New lines for claiming credit for COBRA premium subsidy payments under the ARPA;
• Changes to the way employers report qualified sick and family leave wages and the credit for these wages; 
• Instructions for claiming the employee retention credit for wages paid before July 1, 2021.

The deadline to file Form 941 for the second quarter was August 2, 2021.

© 2021 HR 360, Inc.

Posted on August 03, 2021

Changes Become Effective Oct. 18, 2021 and Jan. 1, 2022

In June 2021, Maine adopted one law that prohibits charging employees direct deposit fees and another that sets new qualifications for the service (or tipped) employee minimum wage exemption.

Prohibition on Direct Deposit Fees

On June 10, 2021, Maine enacted a law that prohibits employers from charging a direct deposit fee when employees opt to receive their wages through direct deposit. This law becomes effective Oct. 18, 2021.

Service Employee Definition

On June 20, 2021, Maine amended its definition for service employee. This definition is important because it indicates the criteria employees need to meet to qualify for the state’s minimum wage rate exemption. 

Service employees in Maine must receive a minimum wage rate that is at least 50% of the state’s minimum wage rate. The 2021 minimum wage rate for employees in Maine is $12.15 per hour. The service employee rate is $6.08. 

Currently, to qualify as a service employee, employees must be engaged in an occupation in which they customarily and regularly receive at least $30 per month in tips. 

However, this monthly tip salary will increase on Jan. 1, 2022, and Jan. 1, 2023, to $100 and $175 per month, respectively. Beginning in 2024 the service employee minimum tip amount will be adjusted annually for inflation.

Impact on Employers

Employers in Maine should review these two new laws and adjust their payroll policies and procedures accordingly.  

© 2021 HR 360, Inc.