Tag: Federal Labor Law Updates

Employment Law Updates: May 2021

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Employment Law Updates: May 2021

Three Federal and six State Law Updates have been issued this month.  Our HR Advisors are versed and ready to answer your toughest HR questions to help your company through working remotely, coming back to work and all year long.

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Federal Labor Law Updates for May 2021

1

OSHA Endorses CDC Guidance for Fully Vaccinated Workers and Masks

According to the Occupational Safety and Health Administration’s (OSHA) website providing information about protecting workers against COVID-19 in the workplace, “The Centers for Disease Control and Prevention (CDC) issued new guidance relating to recommended precautions for people who are fully vaccinated, which is applicable to activities outside of healthcare and a few other environments. OSHA is reviewing the recent CDC guidance and will update its materials on its website accordingly. Until those updates are complete, please refer to the CDC guidance for information on measures appropriate to protect fully vaccinated workers.” According to the CDC’s guidance updated on May 13, 2021, fully vaccinated people no longer need to wear a mask or physically distance in any setting, except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance.

Fully Vaccinated People and Masks

On May 13, 2021, the Centers for Disease Control and Prevention announced that people who are fully vaccinated against COVID-19 can:

  • Resume activities that they did prior to the pandemic; and
  • Do so without wearing a mask or physically distancing, except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance.

According to the CDC, people are generally considered fully vaccinated:

  • Two weeks after their second dose in a two-dose series, such as the Pfizer or Moderna vaccines; or
  • Two weeks after a single-dose vaccine, such as Johnson & Johnson’s Janssen vaccine.

Some states have enacted strict laws requiring face masks, but they may be lifted in the near future. For instance, according to a California Department of Public Health press release from May 3, 2021, the state continues to require the use of face coverings, regardless of vaccination status, in indoor settings outside of one’s home.

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2

HHS and Protections Against Sexual Orientation and Gender Identity Discrimination in Health Care

On May 10, 2021, the U.S. Department of Health and Human Services (HHS) announced that the Office for Civil Rights (OCR) will interpret and enforce Section 1557 of the Affordable Care Act (Section 1557) to prohibit discrimination based on sexual orientation and gender identity. Section 1557 prohibits discrimination based on race, color, national origin, sex (this now includes sexual orientation and gender identity), age, or disability in covered health programs or activities. Additionally, covered entities are prohibited from discriminating against consumers based on sexual orientation or gender identity.

This announcement was made in consideration of a 2020 Supreme Court of the United States (SCOTUS) decision in Bostock v. Clayton County that held Title VII’s prohibition on sex discrimination in employment necessarily included discrimination when it is based on sexual orientation and gender identity. This ruling conflicted with the former administration’s narrow approach to the definition of discrimination based on sex. According to HHS Secretary Xavier Becerra,

“[T]he Supreme Court has made clear that people have a right not to be discriminated against on the basis of sex and receive equal treatment under the law, no matter their gender identity or sexual orientation. That’s why today HHS announced it will act on related reports of discrimination. Fear of discrimination can lead individuals to forgo care, which can have serious negative health consequences. It is the position of the Department of Health and Human Services that everyone—including LGBTQ people—should be able to access health care, free from discrimination or interference, period.

The OCR enforces Section 1557 to protect the civil rights of individuals who access (or seek to access) covered health programs or activities and, “[d]iscrimination in health care impacts health outcomes. Research shows that one quarter of LGBTQ people who faced discrimination postponed or avoided receiving needed medical care for fear of further discrimination.”

“The mission of our Department is to enhance the health and well-being of all Americans, no matter their gender identity or sexual orientation. All people need access to health care services to fix a broken bone, protect their heart health, and screen for cancer risk,” said Dr. Rachel Levine, Assistant Secretary for Health.  “No one should be discriminated against when seeking medical services because of who they are.”  

“OCR’s mission is to protect people from all forms of discrimination,” said Robinsue Frohboese, Acting OCR Director. “The OCR will follow Supreme Court precedent and federal law, and ensure that the law’s protections extend to those individuals who are discriminated against based on sexual orientation and gender identity.” Therefore, beginning May 10, 2021, and consistent with Bostock, the OCR will interpret Section 1557’s prohibition on discrimination based on sex to include discrimination based on sexual orientation and gender identity. 

3

DOL Withdraws Independent Contractor Rule from Previous Administration

On May 5, 2021, the U.S. Department of Labor (DOL) announced a final rule withdrawing the Independent Contractor Status Under the Fair Labor Standards Act final rule (Independent Contractor Rule) that was set to take effect in March 2021 but was postponed. According to the DOL, it is withdrawing the Independent Contractor Rule for several reasons, including:

  • The rule conflicted with the FLSA’s text and purpose, as well as relevant judicial precedent.
  • The two core factors the rule prioritized for determining employee status under the FLSA undermined the economic realities test and court decisions requiring analysis of the totality of the circumstances related to the employment relationship.
  • Application of the rule narrowed the facts and considerations that would be used when analyzing whether a worker is an employee or an independent contractor. This would result in workers losing FLSA protections. The FLSA includes provisions that require covered employers to pay employees at least the federal minimum wage for every hour they work and overtime compensation at not less than one-and-one-half times their regular rate of pay for every hour over 40 in a workweek. FLSA protections do not apply to independent contractors.

 

The withdrawal is effective May 6, 2021, its Federal Register publish date, resulting in there being no new rule that will currently take effect and the DOL will continue to use its previously established standards. The DOL also provides an FLSA Advisor that further discusses independent contractors.

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Individual state labor laws

State Specific Labor Law Updates:

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Employment Law Updates: April 2021

Posted on by AllMyHR

Employment Law Updates: April 2021

Three Federal, along with D.C., and ten State Law Updates have been issued this month.  Our HR Advisors are versed and ready to answer your toughest HR questions to help your company through working remotely, coming back to work and all year long.

Download All Updates

Federal Labor Law Updates for April 2021

1

Employer Tax Credits, American Rescue Plan, and Paid Leave for Employees to Get Vaccinated

On April 21, 2021, the Internal Revenue Service (IRS) released a fact sheet about the American Rescue Plan Act of 2021 (ARP), employers that are eligible for tax credits for the paid leave granted to employees for COVID-19 vaccinations, and how to claim them. The ARP allows small and midsize employers to claim refundable tax credits that reimburse them for the cost of providing paid sick and family leave to their employees due to COVID-19, including leave taken by employees to receive or recover from COVID-19 vaccinations.

The ARP tax credits are available to eligible employers that pay sick and family leave for leave from April 1, 2021, through September 30, 2021.

Tax Credits and Paid Sick and Family Leave

Eligible employers are entitled to tax credits for wages paid for leave taken by employees who are not able to work or telework due to reasons related to COVID-19, including leave taken to receive COVID–19 vaccinations or to recover from any injury, disability, illness or condition related to the vaccinations. These tax credits are available for wages paid for leave from April 1, 2021, through September 30, 2021.

Tax Credit Amount and Calculation

The paid leave credits under the ARP are tax credits against the employer’s share of the Medicare tax. The tax credits are refundable, which means that the employer is entitled to payment of the full amount of the credits if it exceeds the employer’s share of the Medicare tax.

The tax credit for paid sick leave wages is equal to the sick leave wages paid for COVID-19 related reasons for up to two weeks (80 hours), limited to $511 per day and $5,110 in the aggregate, at 100 percent of the employee’s regular rate of pay.  The tax credit for paid family leave wages is equal to the family leave wages paid for up to twelve weeks, limited to $200 per day and $12,000 in the aggregate, at 2/3rds of the employee’s regular rate of pay.

The amount of these tax credits is increased by allocable health plan expenses and contributions for certain collectively bargained benefits, as well as the employer’s share of social security and Medicare taxes paid on the wages (up to the respective daily and total caps).

Claiming the Credit

Eligible employers may claim tax credits for sick and family leave paid to employees, including leave taken to receive or recover from COVID-19 vaccinations, for leave from April 1, 2021, through September 30, 2021.

Eligible employers report their total paid sick and family leave wages (plus the eligible health plan expenses and collectively bargained contributions and the eligible employer’s share of social security and Medicare taxes on the paid leave wages) for each quarter on their federal employment tax return, usually Form 941, Employer’s Quarterly Federal Tax Return  Form 941 is used by most employers to report income tax and social security and Medicare taxes withheld from employee wages, as well as the employer’s own share of social security and Medicare taxes.

In anticipation of claiming the credits on the Form 941, eligible employers can keep the federal employment taxes that they otherwise would have deposited, including federal income tax withheld from employees, the employees’ share of social security and Medicare taxes and the eligible employer’s share of social security and Medicare taxes with respect to all employees up to the amount of credit for which they are eligible. The Form 941 instructions explain how to reflect the reduced liabilities for the quarter related to the deposit schedule.

If an eligible employer does not have enough federal employment taxes set aside for deposit to cover amounts provided as paid sick and family leave wages (plus the eligible health plan expenses and collectively bargained contributions and the eligible employer’s share of social security and Medicare taxes on the paid leave wages), the eligible employer may request an advance of the credits by filing Form 7200, Advance Payment of Employer Credits Due to COVID-19. The eligible employer will account for the amounts received as an advance when it files its Form 941, Employer’s Quarterly Federal Tax Return, for the relevant quarter.

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2

EBISA Releases Cybersecurity Guidance

On April 14, 2021, the U.S. Department of Labor (DOL) announced the following new guidance for plan sponsors, plan fiduciaries, recordkeepers and plan participants on best practices for maintaining cybersecurity:


This is the first time the DOL’s Employee Benefits Security Administration has issued cybersecurity guidance and it is designed for use by plan sponsors and fiduciaries regulated by the Employee Retirement Income Security Act, plan participants, and beneficiaries.

3

COBRA Premium Assistance FAQs and the American Rescue Plan Act of 2021

On April 7, 2021, the U.S. Department of Labor’s (DOL), Employee Benefits Security Administration (EBSA) released frequently asked questions (FAQs) addressing how certain provisions of the American Rescue Plan Act of 2021 (ARP) apply to the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA). The FAQs provide answers to general questions, inquiries about premiums, notices, and more.

More information is provided on the COBRA Premium Subsidy website and EBSA also released the following model notices:


COBRA continuation coverage provides certain group health plan continuation coverage rights for participants and beneficiaries covered by a group health plan. In general, under COBRA, an individual who was covered by a group health plan on the day before the occurrence of a qualifying event (such as getting fired or a reduction in hours that causes loss of coverage under the plan) may be able to elect COBRA continuation coverage when that qualifying event occurs. These individuals are referred to as qualified beneficiaries. Under COBRA, group health plans must provide covered employees and their families with certain notices explaining their COBRA rights.

Section 9501 of the ARP provides for COBRA premium assistance to help assistance eligible individuals continue their health benefits. The premium assistance is also available for continuation coverage under certain state laws. Assistance eligible individuals are not required to pay their COBRA continuation coverage premiums. The premium assistance applies to periods of health coverage on or after April 1, 2021 through September 30, 2021. An employer or plan to whom COBRA premiums are payable is entitled to a tax credit for the amount of the premium assistance.

The DOL also provides more information about the COBRA Premium Subsidy on its website.

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Individual state labor laws

State Specific Labor Law Updates:

Compliance can weigh down even the most experienced professionals. Our HR Advisors, one click compliance Handbook, Compliance Database, HR Tools and Employee Training are ready to help navigate HR all year long. Everything included with your AllMyHR Solutions. 

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Employment Law Updates: January 2020

Posted on by try HRIS

Let the 2020 Federal Labor Law updates commence! 

It’s a brand new decade and if hindsight is 2020 (pun intended) we’re in for heavy employment law updates. Our tryHRIS HR Advisors are ready to help you navigate HR all year long.

States with 2020 Federal Labor law updates

Employment Law Updates: January 2020

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1

Penalty Increases

The increased Federal Minimum Wage for Contractors and Tipped Employees became effective January 1, 2020. 

On January 15, 2020, the U.S. Department of Labor published a final rule announcing an adjustment, per the Inflation Adjustment Act, to civil monetary penalties that it assesses under certain federal laws.

Some of these increases are as follows:

Employee Retirement Income Security Act (ERISA):

  • Failure to furnish reports: $31 per plan year.
  • Failure/refusal to properly file plan annual report: $2,233 per day.
  • Failure to disclose certain documents: $1,767 per day.
  • Failure to fine annual report for MEWAs: $1,625 per day.

 

Occupational Safety and Health Act:

  • Serious violation: $13,494.
  • Other-than-serious violation: $13,494.
  • Willful violation: $134,937.
  • Repeat violation: $134,937.
  • Violation of posting requirement: $13,494.
  • Failure to abate: $13,494 per day.

 

Family and Medical Leave Act:

  • Willful violation of posting requirement: $176.

 

Fair Labor Standards Act:

  • Repeated or willful violation of minimum wage or overtime: $2,050.
  • Willful violations of wages under child labor laws: $2,050.
  • Child labor violations that cause serious injury or death: $59,413.
  • Willful or repeated child labor violations that cause serious injury or death: $118,826.

 

The final rule also increases penalties for the following federal laws:

  • Migrant and Seasonal Agricultural Worker Protection Act
  • Immigration and Nationality Act
  • Walsh-Healey Public Contracts Act
  • Employee Polygraph Protection Act
  • Longshore and Harbor Workers’ Compensation Act
  • Black Lung Benefits Act

 

The final rule is effective on January 15, 2020 and the increased penalties apply to those assessed after that date.

Read the final rule.

2

Joint Employer Final Rule

A joint employer situation occurs when an employee has two or more employers who are jointly and severally (separately) liable for wages due to the employee under the FLSA.

On January 12, 2020, the U.S. Department of Labor announced its final rule revising joint employer status under the Fair Labor Standards Act (FLSA) and adoption of a four-factor balancing test to determine joint employer status when another person benefits from an employee’s work. 

Under the following four-factor balancing test, to be jointly liable the potential joint employer must actually exercise — directly or indirectly — one or more of the following control factors:

  1. Hire or fire the employee;
  2. Supervise and control the employee’s work schedule or conditions of employment to a substantial degree;
  3. Determine the employee’s rate and method of payment; and
  4. Maintain the employee’s employment records. (However, satisfaction of the maintenance of employment records factor alone does not demonstrate joint employer status.)

No single factor alone may determine whether an entity is a joint employer. Instead, the appropriate weight is given to each factor and varies depending on the circumstances.

The final rule also:

  • Clarifies that an employee’s economic dependence on a potential joint employer does not determine whether it is a joint employer under the FLSA;
  • Provides additional guidance on how to apply the four-factor test. For example, the other person’s ability, power, or reserved right (ability) to act in relation to the employee may be relevant for determining joint employer status, but such ability alone does not demonstrate joint employer status without some actual exercise of control (to be a joint employer the other person must actually exercise — directly or indirectly — one or more of the four control factors); and
  • Specifies that an employer’s franchisor, brand and supply, or similar business model and certain contractual agreements or business practices do not make joint employer status under the FLSA more or less likely.

The final rule publishes in the Federal Register on January 16, 2020 and is effective March 16, 2020.

Read more about the final rule.

3

Federal Minimum Wage for Contractors Poster

The increased Federal Minimum Wage for Contractors and Tipped Employees became effective January 1, 2020. 

In January 2020, the Federal Minimum Wage for Contractors poster was updated to reflect the minimum wage increase to $10.80 per hour that became effective on January 1, 2020. This minimum wage rate, established under Executive Order 13658, must be paid to workers performing work on or in connection with covered contracts. The poster also shows the rate, established January 1, 2019, for tipped employees performing work on or in connection with covered contracts, which is $7.55 per hour.

Employers must display this poster where employees may easily see it.

See the new official wage poster.

4

DOL Releases New Opinion Letters (FLSA and FMLA)

Three new opinion letters addressing compliance issues with both the Fair Labor Standards Act and the Family and Medical Leave Act.

On January 7, 2020, the U.S. Department of Labor (DOL) announced that it issued the following three new opinion letters that address compliance issues related to the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA):

  • FLSA2020-1: Addressing calculating overtime pay for a non-discretionary lump sum bonus paid at the end of a multi-week training period. 
  • FMLA2020-1-A: Addressing whether a combined general health district must count the employees of the county in which the health district is located for the purpose of determining FMLA eligibility for its employees. 
  • FLSA2020-2: Addressing whether per-project payments satisfy the salary basis test for exemption.

What is an Opinion Letter?

An opinion letter is an official, written opinion by the DOL’s Wage and Hour Division (WHD) regarding how a particular law applies in specific circumstances presented by the person or entity that requested the letter.

Read about these new opinion letters.

5

Fair Chance to Compete for Jobs Act of 2019

Prohibits Federal Contractors from dismissing a civil service applicant solely due to criminal history, prior to a conditional employment offer, with exceptions. 

On December 20, 2019, President Trump signed legislation S. 1790, enacting the Fair Chance to Compete for Jobs Act of 2019 (Fair Chance Act). Under the act, federal contractors are prohibited from requiring that an applicant for an appointment to a position in the civil service disclose their criminal history record information before the appointing authority extends a conditional employment offer. This does not apply if consideration of an applicant’s criminal history is otherwise required by law. The act also provides other exceptions. (For example, if the applicant is applying to a federal law enforcement officer position.)

The act is effective December 20, 2021.

Read US S. 1790.

6

Final 2020 W-4 Released

The final 2020 W4 Form was released on December 5, 2019. 

On December 5, 2019, the Internal Revenue Service released a final Form W-4 for use in 2020. Employees complete the Form W-4 so that their employers can withhold the correct federal tax from their paycheck. 

Significant Changes from the W4 Form 2019:

A significant change for the 2020 form is that it does not have withholding allowances because employees may no longer claim personal exemptions or dependency exemptions. Previously, the value of a withholding allowance was tied to the amount of the personal exemption.

For the new form, the following five steps (as opposed to allowances) are completed by the employee to determine their withholding:

  • Step 1: Personal information (including marital status).
  • Step 2: Multiple jobs (employee), or whether the employee’s spouse works. This step is completed if the employee holds more than one job at a time or is married filing jointly and their spouse also works. The correct amount of withholding depends on income earned from all of these jobs.
  • Steps 3 and 4: Claim dependents and (optional) other adjustments (specifically (a) other income that is not from jobs, (b) deductions, and (c) extra withholding). Steps 3 – 4(b) are completed on Form W-4 for only one job, and these steps are left blank for the other jobs. (Withholding is most accurate if an employee completes Steps 3 – 4(b) on the Form W-4 for the highest paying job.)
  • Step 5: Employee signature and date (signifying that all information is true and accurate under penalty of perjury)
  • Publication 15-T (still in draft form) assists employers in determining the amount of federal income tax to withhold from their employees’ wages.

Employee W-4 Requirements

Employees who have submitted Form W-4 in any year before 2020 are not required to submit a new form merely because of the redesign. Employers will continue to compute withholding based on the information from the employee’s most recently submitted Form W-4.

Read about the Form W-4, and FAQs about the form. Download the W4 Form 2020, and read about Publication 15-T.

7

Read the Remaining Five Federal Labor Law Updates

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Individual State Labor Laws

State Specific Labor Law Updates:

Compliance can weigh down even the most experienced professionals. Our tryHRIS HR Advisors, one click compliance Handbook ,Compliance Database, HR Tools and Employee Training are ready to help navigate HR all year long. All for less than a latte a day.

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