Exempt employees receive the same amount of predetermined compensation each pay period; weekly, biweekly, semi-monthly or monthly, depending on the payroll processing cycles within our organizations.  The predetermined amount cannot be reduced because of variations in the quality or quantity of the employee’s work.  Exempt employees do not need to be paid for any workweek in which they perform no work.  The exceptions/circumstances listed below are the only reasons an exempt employee does not receive full pay, regardless of the number of hours and days worked in the week.  Before implementing such practices, review state and local law to ensure all is legal.

Below are 5 circumstances for deductions in exempt employee’s pay:

1. “Deductions from pay are permissible when an exempt employee: is absent from work for one or more full days for personal reasons other than sickness or disability; for absences of one or more full days due to sickness or disability if the deduction is made in accordance with a bona fide plan, policy or practice of providing compensation for salary lost due to illness;

2. to offset amounts employees, receive as jury or witness fees, or for military pay;

3. for penalties imposed in good faith for infractions of safety rules of major significance; or for unpaid disciplinary suspensions of one or more full days imposed in good faith for workplace conduct rule infractions.

4. Also, an employer is not required to pay the full salary in the initial or terminal week of employment,

5. or for weeks in which an exempt employee takes unpaid leave under the Family and Medical Leave Act.”[i]

The employer will lose the exemption if it has an “actual practice” of making improper deductions from salaried exempt level employees.  There are safe harbor provisions within the U.S. Department of Labor rule, which recommends having policies in place to ensure improper deductions are not taken and good faith efforts are made to address any improper deduction errors or mistakes.  Prior to deducting from an exempt employee’s pay, ensure you have reviewed state and local laws and regulations, as mentioned above.  These deductions should be made on a consistent basis throughout the organization.  I have rarely seen deductions from exempt employee’s pay except for FMLA days and terminal weeks of employment.

Additional Resources:

NY State Opinion Letter

NY State Deduction from Wages

Fact Sheet #17G: Salary Basis Requirement and the Part 541 Exemptions Under the Fair Labor Standards Act (FLSA)

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[i] https://www.dol.gov/whd/overtime/fs17g_salary.pdf

Across the board increase

A general raise in wages applied at one time to the pay tables of employees in a bargaining unit, also referred to as a “general wage increase.”

Arbitration

A method of settling a labor-management disputes by having an impartial third party hold a formal hearing, take testimony, and render a final and binding decision.

Bargaining unit

A group of employees that the Public Employment Relations Commission (PERC) has certified as appropriate to be represented by a union for the purposes of collective bargaining.

Collective bargaining

The process by which management and union representatives negotiate the employment conditions for a bargaining unit for a designated period of time. The parties have a mutual obligation to bargain in good faith in an effort to reach agreement with respect to wages, hours, and working conditions. This obligation does not compel either party to agree to a proposal or to make a concession. Commonly referred to as “negotiations” or “contract bargaining.”

Collective bargaining agreement (CBA)

The contract that embodies the results of the negotiations between the employer and the union, and sets forth their agreements.

Community of interest

A group of factors, such as duties, skills, working conditions, reporting lines, and other job-related issues, to be considered in determining whether a group of employees should be grouped together as an appropriate bargaining unit.

Concerted activity

Action taken by an employee or employees (generally on behalf of fellow workers) in order to improve working conditions or benefits. Bargaining law considers this type of activity protected from retaliation or reprisal.

Counter-proposal

An offer made by one party in collective bargaining negotiations in response to a proposal by the other party.

Decertification

A vote by members of a collective bargaining unit to dissociate from the union that represents them. In Washington, employee decertification petitions and proceedings are handled by the Public Employment Relations Commission (PERC).

Dues (a.k.a. Union Dues, Membership Fee)

Union dues are the basic fees that employees pay on a monthly basis to the union in order to obtain full rights of membership. The amount of dues is set by the union and may be a flat fee and/or a percentage of pay.

Dues deduction

The withholding, by the employer, of union dues and fees from employees’ salary payments and the transmittal of these funds to the union. In the state of Washington, employees must provide written authorization in order for the dues and fees to be withheld from their paychecks.

Duty of fair representation

The legal obligation for a union to fairly represent all employees in the bargaining unit without regard to factors such as union membership or membership in a protected class.

Duty to bargain

The legally enforceable obligation of each party in a collective bargaining relationship to meet at reasonable times and places and negotiate in good faith with respect to wages, hours, and terms and conditions of employment.

Exclusive bargaining representative

An employee organization identified by the Public Employment Relations Commission (PERC) as the sole, official representative to bargain collectively for the employees in a bargaining unit. The exclusive bargaining representative is usually referred to as the “union.”

Federal mediation and conciliation services (FMCS)

An independent, federal agency that provides mediation, conflict resolution, training, and arbitration services to the private sector and governmental agencies.

Good faith bargaining

The legal requirement that two parties in a collective bargaining relationship meet and negotiate at reasonable times and places, with a willingness to reach an agreement on the terms of a collective bargaining agreement.

Grievance

Generally, this is a formal complaint filed by the union alleging a violation, misapplication, or misinterpretation of one or more terms of the parties’ collective bargaining agreement. Collective bargaining agreements vary and may define this term differently.

Illegal (prohibited) subjects of bargaining

Topics that the parties are forbidden to bargain over. These include proposals for bargaining that would violate state or federal laws. Under RCW 41.80.040, state retirement plans and retirement benefits are illegal subjects of bargaining. Other bargaining laws have different illegal subjects.

Impasse

The point in collective bargaining negotiations at which either party determines that no further progress can be made toward reaching an agreement.

Joint labor-management/conference committee

A forum for communication between the union and management to deal with matters of general concern between the parties.  Such committees typically function in an advisory capacity, and do not include any decision-making or collective bargaining authority. At the UW, this is commonly referred to as a joint labor-management (or JLM), union-management, or conference committee, depending on the union.

Just cause

Referenced in many collective bargaining agreements, a widely-used term that requires the employer to use good and sufficient reasons to discipline employees. There are generally accepted elements of just cause that an employer must prove to an arbitrator in order for a disciplinary action to be upheld.

Management rights

The inherent rights of an employer to make decisions regarding its business. These may be expressly reserved to management in a collective bargaining agreement, or, as in RCW 41.80, they may be removed from the scope of collective bargaining by law.

Mandatory subjects of bargaining

Bargaining issues that neither party may refuse to negotiate. They include wages, hours, and other terms and conditions of employment.

Mediation

During negotiations, one or both parties may call in a mediator, who is a neutral third party. The mediator has no power to force a settlement, but works with the parties to help them arrive at a mutually acceptable agreement.

Memorandum of understanding (MOU)

A formal, signed agreement that serves as an addendum to the collective bargaining agreement. An MOU usually addresses a significant issue that emerged during the term of the agreement, and it represents the mutual understanding between the parties on that issue. An MOU can also be referred to as a memorandum of agreement (MOA), a letter of understanding (LOU), or a letter of agreement (LOA).

Past practice

The history of the way parties have behaved toward one another in the past that bears upon the expectations the parties have regarding negotiations in the future. Such practices, sanctioned by use and acceptance, are not specifically included in the collective bargaining agreement. To constitute a past practice the issue must be: 1) clear to the parties; 2) consistent in its application over a period of time; and 3) condoned by the parties. Arbitrators use past practice to interpret ambiguous language in the collective bargaining agreement.

Permissive subject of bargaining

Issues that are neither mandatory nor prohibited. Parties may agree to negotiate them, but neither party may insist upon its positions on a permissive topic to the point of impasse.

Shop steward/delegate

A bargaining unit member selected by a group of fellow members and/or appointed by union officials to carry out union representational duties in the workplace. Many union contracts at UW call these individuals stewards or delegates. Shop stewards are typically UW employees, unlike union representatives who are paid employees of the union.

Strike

A temporary stoppage of work by a group of employees, not necessarily union members, to express a complaint, enforce a demand for changes in conditions of employment, obtain recognition, or resolve a dispute with management. The right to strike is not granted to employees of the state of Washington, per RCW 41.80.060 and RCW 41.56.120.

Tentative agreement (TA)

The agreement reached through bargaining prior to its ratification or final approval by the negotiators’ constituencies.

Unfair labor practice (ULP)

A violation of collective bargaining law by either party, which could include refusal to engage in collective bargaining or interfering with, restraining, or coercing employees in the exercise of their collective bargaining rights granted by statute. These illegal practices are specifically defined in RCW 41.80.110 and RCW 41.56.140 and 150.

Union representative/agent

A union staff member responsible for carrying out union representational duties in the workplace. At UW these are commonly called union representatives, labor advocates, or union business agents. A union representative is typically a paid employee of the union, (unlike a shop steward, who is usually a UW employee who is involved with the union).

Union security provision

The part of the collective bargaining agreement that addresses union membership, which directly affects union dues and fees.

RCW 41.56 contains a similar provision for other groups of UW employees who are not covered by RCW 41.80.

(HR Washington University)

As we review compliance requirements within our organizations, it is a great opportunity to understand which posting is required.  Federal contractor postings are different than non-federal contractors.  Below are the mandatory postings if you are a federal contractor. Remember, state and local posters are required across the country and throughout industries as well.  I recommend a poster service and audit to ensure compliance with local, state and federal law.  I find poster errors in every audit.

The 15 Mandatory Federal Contractor Postings:

1. “National Labor Relations Act (NLRA)
   1. Informs employees of their rights under the National Labor Relations Act to form, join, and support a union and to bargain collectively with their employer
   1. Must be posted in English and any language common to a significant portion of workers if they are not fluent in English
   1. Posting requirement does not apply to contracts of less than $100,000
   1. Enforced by the U.S. Department of Labor – Office of Labor-Management Standards and Office of Federal Contract Compliance Programs
      1. There has been some confusion recently on whether this is a required poster. The National Labor Relations Board previously required private employers to post a similar notice, but a recent case has put that requirement on hold until further notice. That decision has no impact on federal contractors who are still required to post this poster.
2. Walsh-Healey Public Contracts Act/Service Contract Act
   1. Notifies employees of the minimum wage rate, overtime requirements and safety and health requirements
   1. Must be posted by federal contractors and subcontractors with contracts in excess of $10,000 for the manufacturing or furnishing of materials, supplies, and equipment to the federal government or federal contractors who provide services to the federal government using service employees whose contract exceeds $2,500
   1. Enforced by the U.S. Department of Labor – Employment Standards Administration – Wage and Hour Division
3. American Recovery and Reinvestment Act (ARRA) Whistleblower Rights
   1. Informs employees of their whistleblower rights under the American Recovery and Reinvestment Act
   1. Must be posted by federal contractors who received funds under the ARRA
   1. Enforced by the Recovery Accountability and Transparency Board
4. Department of Defense (DOD) Fraud Hotline
   1. Informs employees of the Department of Defense Fraud Hotline number for reporting fraud, waste and abuse
   1. Must be posted by federal contractors who have contracts with the Department of Defense that exceed $5,000,000
   1. Enforced by the U.S. Department of Defense
5. Department of Defense (DOD) Whistleblower Hotline
   1. Informs employees of their whistleblower rights
   1. Must be posted by federal contractors who have contracts with the Department of Defense that exceed $5,000,000
   1. Enforced by the U.S. Department of Defense

• Department of Homeland Security (DHS) Fraud Hotline
  • Informs employees of the Department of Homeland Security Hotline number for reporting suspected criminal violations, misconduct and wasteful activities
  • Must be posted by federal contractors who have contracts with the Department of Defense that exceed $5,000,000 and if the DOD contract is funded, in whole or in part, by DHS disaster relief funds
  • Enforced by the U.S. Department of Homeland Security – Office of the Inspector General
• Notice to Workers with Disabilities/Special Minimum Wage
  • Informs employees the conditions under which special minimum wages may be paid
  • Must be posted by federal contractors who employ disabled employees paid at a special minimum wage
  • Enforced by the U.S. Department of Labor – Employment Standards Administration – Wage and Hour Division
• E-Verify
  • Notifies applicant and employees of their rights under the E-Verify program
  • Must be posted by federal contractors in English and Spanish and posted near entrance
  • Enforced by the U.S. Department of Homeland Security
• Right to Work
  • Notifies applicants and employees of their discrimination rights under the E-Verify program
  • Must be posted by federal contractors in English and Spanish and posted near entrance
  • Enforced by the U.S. Department of Homeland Security 2
• Federal Contractor Minimum Wage
  • Informs employees of the federal minimum wage for contractors
  • Must be posted by federal contractors and subcontractors that have FLSA-covered workers performing work in connection with a covered Service Contract Act or Davis-Bacon Act contract, as well as those with concessions contracts or contracts offering services to federal employees or the public on federal property
  • Enforced by the U.S. Department of Labor – Employment Standards Administration – Wage and Hour Division
• “EEO is the Law” Supplement
  • Informs applicants and employees of federal nondiscrimination laws and procedures for filling complaints with the Office of Federal Contract Compliance Programs
  • Must be posted by federal contractors and subcontractors with contracts in excess of $10,000
  • Enforced by the U.S. Department of Labor – Office of Federal Contract Compliance Programs
• Pay Transparency Policy Statement
  • Informs applicants and employees of their pay transparency rights
  • Must be posted by federal contractors and subcontractors with contracts in excess of $10,000
  • Enforced by the U.S. Department of Labor – Office of Federal Contractor Compliance Programs
• Federal Contractor Paid Sick Leave
  • Informs employees of their paid sick leave rights
  • Must be posted by federal contractors and subcontractors that have FLSA-covered workers performing work in connection with a covered Service Contract Act or Davis-Bacon Act contract, as well as those with concessions contracts or contracts offering services to federal employees or the public on federal property
  • Enforced by the U.S. Department of Labor – Employment Standards Administration
• Davis-Bacon Act
  • Notifies employees of prevailing wage requirements and overtime pay under the Davis-Bacon Act
  • Must be posted by federal contractors and subcontractors performing on federally funded construction projects in excess of $2,000 for the actual construction, alteration/repair of public buildings or public works
  • Enforced by the U.S. Department of Labor – Employment Standards Administration – Wage and Hour Division
• Department of Transportation (DOT) Federal Highway Construction
  • Informs employees to report any false statement, false reports or false claims made to the character, quality, quantity, or cost of any work performed on the contract
  • Must be posted by federal contractors who work on federally funded highway construction projects
  • Enforced by the U.S. Department of Transportation” (Poster Guard)

“Enacted at the end of 2022 included an expansion of the ability for a section 401(k) or 403(b) plan, or a governmental section 457(b) plan, to provide matching contributions on participants’ student loan payments.  Effective for plan years starting after December 31, 2023, the change can help employees who might otherwise forgo matching contributions to pay off student debt.

Prior to SECURE 2.0, IRS guidance allowed employers to make contributions to a section 401(k) plan on account of student loan payments, but participating employees had to opt out of the regular match and the contributions had to be treated as “non-elective” contributions. This meant that the student loan benefit could not be offered under a safe harbor plan and employees receiving the student loan contribution had to be counted as zeroes for nondiscrimination testing of the regular 401(k) match. These requirements made the benefit unattractive for many employers. SECURE 2.0 solves that problem by allowing qualified student loan payments to be treated like elective deferrals for purposes of a plan’s matching contribution provisions.

The statute specifies the following conditions for employer matching contributions based on qualified student loan payments:

• The student loan payment must be made by an employee to repay a qualified education loan that the employee incurred to pay for qualified higher education expenses (i.e., the cost of attendance at an eligible education institution). Unlike the student loan benefit under section 127 of the Internal Revenue Code (the “Code”), the SECURE 2.0 rule does not specify that the loan be for the employee’s own education. Although not entirely clear, this suggests that a match could be provided on repayments of loans taken by an employee for the education of the employee’s child or grandchild.
• All employees who are eligible for the plan’s regular match must also be eligible for the match on qualified student loan payments, and vice versa.
• The rate of match on qualified student loan payments must be the same as the rate of match on elective deferrals.
• The vesting rules for the match on qualified student loan payments must be the same as for matching contributions on elective deferrals.
• Matched student loan payments count toward the limit on elective deferrals under section 402(g) of the Code (the “Elective Deferral Limit”). Employees may choose to make elective deferrals (pre-tax and/or Roth), qualified student loan payments, or a combination of both, as long as the combined total does not exceed the Elective Deferral Limit.

Procedural Options.  The statute contemplates two types of procedural flexibility for the new match:

• The match on qualified student loan payments may be made at the same frequency as the match on elective deferrals or at a different frequency, as long as the match on qualified student loan payments is provided at least once per year.
• Employers may rely on employees’ certification that eligible payments were made.

Although the new rules will allow qualified student loan payments to be treated as elective deferrals for matching purposes, they generally may not be treated as elective deferrals for other purposes. For example, qualified student loan payments will not be treated as elective deferrals for purposes of the average deferral percentage (“ADP”) test. This means that employees who make student loan payments in lieu of elective deferrals would count as zeroes for purposes of the ADP test. However, the rules will allow separate testing for employees who receive the match on qualified student loan payments, and ADP testing still will not be required for safe harbor plans.” (National Review)

Creating a Student Loan Assistance Policy in Any Organization

“Employers are aware of the effects of student loan debt, according to HR consultancy Buck’s annual Financial Wellbeing and Voluntary Benefits Survey Report, based on input from 164 employers with 500 or more employees, polled from late 2019 through February 2020. Some key findings:

• 41 percent of employers—compared to 23 percent in 2017—said that student loan debt was a top motivator for their financial wellness offerings.
• Student loan repayment contributions were viewed as one of the best solutions for addressing financial stress, ranking just behind financial coaching and supplemental medical plans.” (SHRM)

Additional Information on Current Legislation:

Employer-provided student loan repayment. The CARES Act temporarily allowed employers to provide student loan repayment as a benefit to employees through Dec. 31, 2020. Under the provision, an employer may contribute up to $5,250 annually toward an employee’s student loans, and such payment would be excluded from the employee’s income. The $5,250 cap applies to both the new student loan repayment benefit as well as other educational assistance (e.g., tuition, fees, and books) provided by the employer under current law. The provision is extended through Dec. 31, 2025.

Developing the Policy:

Objective

The objective of this policy is to assist in repaying student loan debt to further the financial well-being of employees.

Policy

The student loan assistance program provides eligible employees up to [$] per month paid directly to the employee’s student loan servicer. Employees are expected to continue to make minimum monthly payments to the loan servicer in addition to the assistance provided under this policy. Student loan assistance is limited to [$] per year with a [$] cap and is reported as taxable income on the employee’s W-2.

Eligibility (Ensure this is Consistent)

Eligible employees include full-time employees who have received a graduate or undergraduate degree within [amount of time] of the date the employee first applies for assistance under this policy. New employees are eligible after [amount of time] of continuous employment with [Company Name].

Student loan assistance payments will continue for employees on an unpaid leave of absence for up to [amount of time].

Loans eligible for repayment assistance include U.S.-based education loans borrowed by the employee for the employee’s own education.

Procedures

Eligible employees must complete a student loan assistance application and provide proof of graduation documentation and loan documentation. Loan documentation must include:

• Employee’s name.
• Loan servicer’s name.
• Loan account number.
• Current balance.
• Required monthly payment amount.
• Monthly payment due date.

The amount of student loan assistance paid to the loan servicer each month will be the employee’s minimum monthly payment or [$], whichever is less.

Student loan assistance payments will begin on the [date] of the month following receipt and approval of a completed application. Employees will receive written notice of approval or denial of the loan assistance application.

Termination

Loan assistance payments will cease immediately upon an employee’s voluntary or involuntary termination from employment with [Company Name] or change in eligibility status, such as a reduction to part-time hours.  Does the employee have to repay any amount paid by the organization if they do not fulfill a certain time with the organization?  Similar to relocation or bonuses.

Create a policy and program that fits the organization and the culture of the organization.  Very few organizations are taking advantage of student loan assistance for employees.  This is a great opportunity to create a unique perk, while recruiting and retaining top talent.  Survey the workforce to understand the financial wellness needs of employees.  Communicate the results and develop programs that will make a positive impact on employees.   

Originally published in 2018

11 Student Loan Repayment Perks Offered by Organizations

Below are 11 of the perks now being offered by organizations throughout the country:

• “Price Waterhouse Coopers (PwC) launched its Student Loan Paydown program in 2016. Forty-five percent of the firm’s 46,000 junior employees (with six years’ experience or less) signed up to receive up to $1,200 annually for six years. The firm has found that this program has become a contributing factor in the job acceptance rate among applicants.
  • Starting this summer, PWC will give employees $100 a month (amounting to $1,200 each year) to help pay down student loans.  The company’s offer is good for up to six years.  That is a big draw for the company, which recruits 11,000 new employees from college on campuses each year.
• Fidelity’s holistic approach to addressing employee student loan debt includes a Student Loan Repayment Program (SLRP) (that pays $2,000 per year with a $10,000 cap), and financial counseling and education for employees at all career and life stages. In the development of the program, Fidelity leaders often heard employees express regret that they wish they had known more when they were in high school and making decisions about how to finance their college education.  In response, Fidelity Labs, an in-house product incubator, created an online education platform called the Student Debt Tool to help employees better understand their situation and their options. The tool includes a student loan refinancing platform to help consolidate loans to achieve lower lending rates. It also offers tools and advice to help employees save for future college costs for themselves and their children.”[i]
• “Freedom 2 Save program works at Abbott, a research and development company headquartered in Lake Bluff, Ill. Full- and part-time employees who qualify for the company’s 401(k) and are also contributing 2 percent of their eligible pay toward their student loans through payroll deductions receive an amount equivalent to the company’s traditional 5 percent 401(k) match, deposited to their 401(k) accounts. The twist is that program recipients will receive the match without being required to make any 401(k) contributions of their own, allowing them to use more of their earnings to pay off student debt.  Abbott’s approach avoids the taxes triggered when an employer directly gives employees funds to help pay off their student loans.”[ii]
• “New York Life recently launched a student-loan repayment program offering up to $10,200 over five years for eligible employees—which tops out at $170 a month.
• Rise Interactive launched its program by offering a loan-repayment contribution of $50 per month.”[iii]
• “Startup lenders CommonBond and LendEDU both pledges to pay off your entire student loan balance, regardless of how much debt you have, if you’re an employee. Common Bond will provide $100 a month and LendEDU $200 a month until your debt is settled. Unfortunately, the odds of being an employee at either company are slim: Common Bond has less than 100 employees and LendEDU has just six.
• Natixis Global Asset Management, the Boston-based division of French investment bank Natixis, rewards loyalty with $5,000 put toward employees’ student loan balance after their five-year work anniversary. They also receive $1,000 a year for the next five years.
• Online homework helper Chegg offers employees a $1,000 annual contribution, after taxes, toward their student loan balance. It also provides an online student loan management tool to help workers maximize their payments.
• Nevada’s Moonlite Bunny Ranch will match their employees’ student loan payments 100% for two months.  When you consider that employees reportedly make about $3,000 a week at the brothel, the program could work out to be a lucrative offer.”[iv]
• “The American Bankers Association said that next month it would begin helping employees with their college-related debts.  The ABA will pay up to $1,200 per year per eligible employee toward student loans, above and beyond salary and any other benefits. The organization, which represents banks that employ more than 2 million people, said it is encouraging each member bank to take a similar step.”[v]

Below are relocation options, currently being offered or being developed: 

• “Rural Opportunity Zones consists of 77 counties in Kansas offer tax waivers and or a student loan payment program up to $15,000.
  • http://www.kansascommerce.com/index.aspx?NID=320
• Niagara Falls, New York is developing a program that could save a student up to $7,000.00 in student loan debt.”[vi]
• Memphis, Tennessee, the first City Government to offer the student loan program.
  • “The 20th largest city in the country, Memphis will contribute $50 a month to the student loan account of any employee who’s worked for the city for at least a year.”[vii]
• “Relocating to Saskatchewan, Canada could save a student up to $20,000.00 in student loan debt if you graduated after 2010.
  • http://www.saskatchewan.ca/residents/education-and-learning/graduate-retention-program/about-the-graduate-retention-program”[viii]

Currently, only 4% of employers are now offering perks outlined above.  As the war for talent continues to increase and turnover continues to be a driving concern in organizations, these perks will grow in popularity.  Will these perks work for your organization?  Maybe or maybe not.  However, 44+ million people with student loan debt is a tremendous labor pool.  Before implementing a program such as this, benchmark options, know the tax advantages and disadvantages and ask your current workforce.  I personally believe there is value in programs such as this and would be happy to work with any organization in implementing a student loan repayment option for the workforce.  It will separate you from your competitors.

“On Aug. 17, the IRS made public its Private Letter Ruling (PLR) 201833012, which was issued to the requesting company on May 22. The letter responds to an unnamed employer that proposed amending its 401(k) plan to offer a student-loan benefit program under which it would make special 401(k) contributions into the accounts of employees who are making student loan repayments.”[ix]

IRS Letter Amending 401(k)

20 Companies that Help Employees Pay Off Their Student Loans (Student Loan Hero)

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[i] https://www.shrm.org/resourcesandtools/hr-topics/benefits/pages/employers-explore-repaying-student-loan-debt.aspx

[ii] https://www.shrm.org/resourcesandtools/hr-topics/benefits/pages/401k-twist-on-student-loan-aid.aspx

[iii] https://www.shrm.org/ResourcesAndTools/hr-topics/benefits/Pages/launching-student-loan-repayment-benefit.aspx

[iv] http://time.com/money/4261054/employee-student-loan-repayment-programs/

[v] http://time.com/money/4555841/student-loans-employer-benefit/

[vi] “Student Loan Repayment Assistance.”  Burr Consulting, LLC Article. March 2016

[vii] http://time.com/money/4810605/memphis-employee-benefit-student-loans/

[viii] “Student Loan Repayment Assistance.”  Burr Consulting, LLC Article. March 2016

[ix] https://www.shrm.org/ResourcesAndTools/hr-topics/benefits/Pages/IRS-allows-401k-match-for-student-loan-payments.aspx

There are a variety of insurance policies and coverage on the market today for organizations; worker’s compensation, business, employee’s, vehicles, etc.  You can insure just about anything (within reason).  What about business insurance for a what if situation related to discrimination?  Does insurance like this exist?  What is employment practice liability insurance (EPLI)?  EPLI is a specialized insurance designed for organizations to protect against losses incurred in litigating and settling wrongful employment practice liability claims.  This insurance provides protection against a what if scenario; discrimination, breach of contract and wrongful discharge lawsuits.  Many times, these lawsuits are not covered under general business liability insurance.  EPLI is generally structured as gap insurance for the organization.  “Directors’ and officers’ liability insurance only protects the individual and not the company itself. EPLI is most commonly designed to fill this gap in coverage. It generally provides reimbursement for the costs incurred in defending a lawsuit but does not cover reimbursement for any penalties suffered.” [i]

The four factors of employment practice liability insurance:

1. Cost of EPLI:  This will be dependent upon the size of the organization, type of industry/business and other risk factors; previous issues, employment practices, etc. 
2. Relevancy to Organizations: EPLI continues to grow in popularity as employment lawsuits have also grown in popularity and filing charges with agencies has become much easier with the advent of the Internet and through social media communications.  Organizations are not prepared to absorb the risk of loss from such lawsuits, claims and settlements.  Don’t assume, “this can never happen to our organization.”
3. Evaluation of Policies: Organizations should work with current insurance providers to review the scope of coverage and adequacy of limits.  “They should understand who controls the claims handling process-the insured or insurer.  Selection of an appropriate policy for your company’s needs can be difficult and should be carefully considered.”[ii]  Do your homework and be prepared to ask questions and fully understand the EPLI policy and processes involved, if a claim is filed.  Your organization will be paying the premium, you need to fully understand what you are paying for and how this insurance will impact the organization in relation to a what if scenario. 
4. What Will Insurance Companies Look For: Many insurance companies will not insure a company unless there are basic and sound employment practices in place.  “Employee handbooks, post-incident investigation practices, and arbitration or mediation policies are some of the major items that insurance companies expect an employer to have when applying for an EPLI policy. You should be prepared for the insurance company to scrutinize all of the HR functions. Also, recent employment lawsuits, size of company, geographic location, and type of business or industry all affect the availability and cost of insurance.”[iii]

Insurance is there, in the event we have a need or a claim.  Is it worth taking a risk and not having Employment Practice Liability Insurance?  Our goal as leaders should be to eliminate the need for the EPLI.  This does not mean not purchasing an insurance policy; simply put, we need sound employment practices and consistency throughout the organizations.  Do your research and fully understand what your organization needs in EPLI coverage.  Look at more than one insurance provider and seek out multiple quotes.  Work with a team and/or board of directors to ensure the best decision is made.  If you have questions, seek guidance.  Insurance is complex and employment lawsuits/settlements can have a major impact on organizations of any size.

Recognizing that smaller companies now need this kind of protection, some insurers provide this coverage as an endorsement to their Businessowners Policy (BOP). An endorsement changes the terms and conditions of the policy. Other companies offer EPLI as a stand-alone coverage.

EPLI provides protection against many kinds of employee lawsuits, including claims of:

• Sexual harassment
• Discrimination
• Wrongful termination
• Breach of employment contract
• Negligent evaluation
• Failure to employ or promote
• Wrongful discipline
• Deprivation of career opportunity
• Wrongful infliction of emotional distress
• Mismanagement of employee benefit plans

 

10 Important Facts about Employment Practices Liability Insurance

1. Wrongful acts (as defined by the policy) are typically included for coverage. Intentional acts are generally excluded from EPLI coverage.

2. Wage and hour damages are excluded from EPLI unless they are explicitly endorsed for inclusion. Even so, there is a sub-limit for defense cost coverage for wage and hour claims, which is usually not more than $100,000.

3. Punitive damages, which generally exceed simple compensation and is awarded to punish the defendant, can be considered as part of optional coverage under EPLI. However, it is important to note that coverage of punitive damages is subject to state law. In states such as California, for example, EPLI insurance does not typically cover punitive damages. It is important to review the exact policy wording to be used.

4. The insurance company is usually responsible for selecting the attorney who will defend the lawsuit on behalf of the employer. The attorney is typically chosen from a pre-selected panel of approved attorneys, all of whom specialize in employment law, specifically liability insurance (EPLI). In some cases, the employer’s counsel may be selected if the choice of counsel was approved by the carrier beforehand.

5. EPLI policies typically include self-insured retention (SIR) instead of a deductible. A SIR is an amount that the policyholder will have to pay out-of-pocket for defense costs and losses during the early stages of an employment liability insurance claim before the insurer is required to pay anything. The SIR differs from the deductible. A deductible is subtracted by the insurer from its total claim payment, which then becomes the responsibility of the policyholder.

6. An EPLI claim is usually initiated by a written demand for relief, or when charges are brought before an agency such as the EEOC. Claims may also be initiated by the serving of a summons or a lawsuit, or as part of a regulatory investigation. If a claim is not reported when it is first initiated–or within the time frame specified in the policy–there may be a denial of the claim for coverage.

7. Employment practices liability insurance policies often include a provision known as a “hammer clause”. This clause states that if the insured does not agree to the first settlement opportunity recommended by the carrier, the carrier’s liability may be capped at the amount for which the claim could have been settled. The defense costs up to the date of the settlement opportunity will also be included in the liability.

8. Breach of contract is usually excluded from coverage unless it is related to other allegations. The reason for this is that there is an assumption that the terms will be carried out if and when the insured enters into a contract. If the terms are not carried out, the assumption is that the company violated the contract intentionally.

9. The policy form will indicate “claims made” instead of “occurrence”. This means that the policyholder is only eligible to receive benefits if they are covered at the time the claim is filed with the insurance carrier.

10. It is advisable to notify the carrier of any facts that have surfaced that may require the filing of a future practices liability insurance (EPLI) claim, but for which no claim currently exists. Putting the carrier on notice of an unrealized possibility of a claim does not typically affect the cost of the policy renewal. However, such a notice can secure important protections under the policy in the event that an employment practices liability insurance (EPLI) claim is made at a future date. (Vantreo)

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[i] https://www.shrm.org/resourcesandtools/tools-and-samples/hr-qa/pages/whatisemploymentpracticesliabilityinsurance.aspx

[ii] https://www.shrm.org/resourcesandtools/tools-and-samples/hr-qa/pages/whatisemploymentpracticesliabilityinsurance.aspx

[iii] https://www.shrm.org/resourcesandtools/tools-and-samples/hr-qa/pages/whatisemploymentpracticesliabilityinsurance.aspx

The WARN Act protects workers, families and communities if an organization has a foreseen or unforeseen plant closure or mass layoff.  The goal for all of our organizations is to never be in a position for mass layoffs however, understanding the difference in Federal vs. New York State specific laws is necessary, to ensure legal compliance.  New York State is one of the few states that has a “Mini-WARN” Act with stricter regulations than federal law.

Federal:

Requiring employers with 100 or more employees (generally not counting those who have worked less than six months in the last 12 months and those who work an average of less than 20 hours a week) to provide at least 60 calendar days advance written notice of a plant closing and mass layoff affecting 50 or more employees at a single site of employment. WARN makes certain exceptions to the requirements when layoffs occur due to unforeseeable business circumstances, faltering companies, and natural disasters. Advance notice gives workers and their families some transition time to adjust to the prospective loss of employment, to seek and obtain other jobs, and if necessary, to enter skill training or retraining that will allow these workers to compete successfully in the job market. Regular federal, state, local, and federally recognized Indian Tribal government entities that provide public services are not covered. (DOL)

State:

The WARN Act applies to private businesses with 50 or more full time workers in New York State. It covers:

• Closings affecting 25 or more workers
• Mass layoffs involving 25 or more full-time workers (if the 25 or more workers make up at least 33% of all the workers at the site)
• Mass layoffs involving 250 or more full-time workers
• Certain other relocations and covered reductions in work hours

This means that covered businesses must provide all employees with notice 90 days prior to a:

• Plant closing
• Mass layoff
• Relocation
• Other covered reduction in work hours

Businesses that do not provide notice may be required to:

• Pay back wages and benefits to workers
• Pay a civil penalty

Early warning gives the DOL and the LWIB the chance to work with the business early on and provide employees with information about:

• Unemployment Insurance (UI)
• Workforce Programs
• Resources designed to get employees back to work quickly

Early warning also benefits the business. It can shorten the time that workers are on UI. It therefore may lower the UI charges associated with the layoff or closing. (NYS DOL)

Federal additional Links & Information:

o   Federal WARN ACT Plant Closings and Layoffs

o   Worker Adjustment and Retraining Notification Act Compliance Assistance Materials

o   WARN EMPLOYER GUIDE

State Additional Links & Information:

o   NYS DOL WARN Website

o   NYS Worker Adjustment and Retraining Notification Act PDF

o   NYC Information

Older Workers Benefit Protection Act (OWBPA)

“An amendment to the Age Discrimination in Employment Act (ADEA), the OWBPA is a federal law that requires employers to offer older workers (those who are at least 40 years old) benefits that are equal to or, in some cases, cost the employer as much as, the benefits it offers to younger workers. The OWBPA also sets minimum standards for an employee waiver of the right to sue for age discrimination, designed to ensure that the waiver is knowing and voluntary.” (Cornell Legal Information Institute)

The purposes of the Older Workers Benefit Protection Act (OWBPA) are to make it illegal for an employer to:

• use an employee’s age as the basis for discrimination in benefits
• target older workers for their staff-cutting programs, and
• require older workers to waive their rights without observing certain safeguards.

Congressional Website

Additional Link

Additional State Mini-WARN Laws:

“California’s WARN Act (Cal WARN) takes an approach to counting employees and layoffs that differs from the federal WARN Act, Hathaway noted. Cal WARN applies to “facilities” that have employed 75 or more people within the past 12 months. If 50 employees—employed for at least six months—are let go within a 30-day period, Cal WARN is triggered. Also, any closing of a covered facility triggers Cal WARN, even if fewer than 50 employees are let go, he explained.

The Iowa, New Hampshire, New York and Wisconsin WARN laws apply to layoffs involving as few as 25 employees, Hathaway said.

“New York requires 90 days’ notice, and New Jersey has a revision to its WARN law that has not yet gone into effect that also requires 90 days’ notice, plus separation pay equal to one week of pay per year of service,” he noted.

The mini-WARN Act in Illinois applies to employers with 75 or more full-time employees when: 1) 25 or more full-time employees are laid off if they constitute one-third or more of the full-time employees at the site or 2) 250 or more full-time employees are laid off, Hollis said.

Wisconsin’s mini-WARN Act applies to employers with at least 50 employees, he added.

“States continue to pass WARN-like requirements,” Hathaway said. “Be sure to know which states have done so.”

A city also can have a mini-WARN law. “As an example, Philadelphia has such a law, which can be surprising to employers.” (SHRM)

On December 9, 2022, Governor Hochul signed into law amendments to the Nursing Mothers in the Workplace Act (New York Labor Law Section 206-c), which implements new written policy requirements and mandatory specifications for lactation rooms that will go into effect on June 7.

There are several key amendments that employers should be aware of.

The law will require employers to provide a location for employees to express milk that is

(1) close to the work area;

(2) well lit;

(3) shielded from view; and

(4) free from intrusion from other persons in the workplace or from the public.

The designated location cannot be a restroom or toilet stall.

In addition, the designated location must include, at a minimum, the following: (1) a chair; (2) a working surface; (3) nearby access to clean running water; and (4) if the workplace has electricity, an electrical outlet.

The law requires the New York Labor Commissioner to develop and publish a written policy setting forth the rights of nursing employees to express breast milk in the workplace.

Employers will be required to distribute such written policy to each employee upon hire, annually and upon returning to work following the birth of a child.

In addition to informing employees of their rights, the written policy will set forth how a request may be submitted to the employer for a location that an employee can use to express breast milk, and it will require the employer to respond to such requests in a reasonable time frame, not to exceed five business days.

The law also prohibits employers from retaliating against employees for exercising their rights under the law. (Pitney)

 

Existing Lactation Accommodation Requirements

Since 2007, New York State has required that employers either provide reasonable unpaid break time or allow employees to use paid rest periods or meal breaks to express milk up to three years following the birth of a child.²  Employers must also provide a room or alternative location for employees to express milk in private. 

How often and for how long may employees take breaks to express milk?

Under the state’s existing guidance, employers are required to give employees at least 20 minutes at a time to pump breast milk and additional time if needed.³  Employees can take breaks at least once every three hours to pump breast milk and can also take breaks right before or after scheduled paid rest periods or meal breaks.  The amended law now provides that employees may take breaks “each time such employee has reasonable need to express breast milk” for up to three years following childbirth.

What will change under the new amendments?

Employers already must provide a lactation room or location in close proximity to an employee’s work area.  Under the new law, employers must provide a location for employees to express milk that is: (1) in close proximity to the work area; (2) well lit; (3) shielded from view; and (4) free from intrusion from other persons.  The designated room or location cannot be a restroom or toilet stall.

The designated location must include the following: (1) a chair; (2) a working surface; (3) nearby access to clean running water; and, if the workplace has electricity, (4) an electrical outlet.  Additionally, if the employer’s workplace has access to refrigeration, employees must be allowed access to refrigeration to store pumped milk.  Under the pre-amendment act, the New York State Department of Labor “encourage[d]” but did not require access to clean water, an electrical outlet, or refrigeration.

May an employer designate a room for lactation that serves other purposes?

Yes.  However, if the designated room or location is not reserved solely for lactation, employers must prioritize lactation and make the location available whenever an employee needs to use it to express milk; that room or location cannot be used for any other purpose while an employee is there to express milk.

Employers must also provide notice to all employees as soon as practicable when a lactation room or location has been designated.

Are there exceptions to the new requirements for lactation accommodations?

If the lactation room requirement imposes an undue hardship on an employer, i.e., “significant difficulty or expense when considered in relation to the size, financial resources, nature or structure of the employer’s business,” the employer must make reasonable efforts to provide a room or location, other than a restroom or toilet stall, that is in close proximity to the work area where an employee can express milk in private. Employers concerned that the state requirements may impose an undue burden should seek advice before denying accommodations. New York City employers should also take note of their obligations under the New York City Administrative Code to provide lactation accommodations and to engage in the cooperate dialogue process with an employee.

What lactation policy must employers implement?

The amended law requires employers to adopt a lactation accommodation policy, which must be distributed to each employee upon hire and to employees returning to work following childbirth.  Employers must also distribute the policy to all employees annually.

The policy must inform employees of their rights under the Act, specify the means and/or procedures by which employees may request a room or location to pump breast milk, and require employers to respond within five business days to an employee’s request for a room or location to express milk.

The amendments also expressly prohibit employers from retaliating against employees for exercising their rights under the statute.

Finally, the amendments require the New York State Department of Labor to develop a model written policy.  Employers should plan to review that model policy once it becomes available and adopt it or update any existing policies to conform to the new requirements. (Littler)

New York State Legislation

NYS Nursing Mothers in the Workplace Website

New York City Lactation Accommodation Website

FLSA Protections to Pump at Work Website

By State:

Arkansas

Ark. Stat. Ann. § 11-5-116 (2009) requires an employer to provide reasonable unpaid break time each day to an employee who needs to express breast milk for her child and requires an employer to make a reasonable effort to provide a private, secure and sanitary room or other location other than a toilet stall where an employee can express her breast milk.

California

Cal. Government Code§ 12920-12923 (1980) and § 12926(2012) make it unlawful to engage in specified discriminatory practices on the basis of sex, which includes breastfeeding or medical conditions related to breastfeeding, in the opportunity to seek, obtain and hold employment or housing.

Cal. Labor Code § 1030 et seq. (2001) provides that employers need to allow a break and provide a room for a mother who desires to express milk in private. AB 1976 (2018) requires an employer to make reasonable efforts to provide an employee with the use of a room or a location other than a bathroom, for these purposes. 

SB 142(2019) requires the room or location other than a bathroom to have prescribed features. Features an employer, among other things, to provide access to a sink and refrigerator in close proximity to the employee’s workspace.

Colorado

Colo. Rev. Stat. § 8-13.5-102 and § 8-13.5-104 (2008) acknowledge the benefits of breastfeeding and require an employer to provide reasonable break time for an employee to express breast milk for her nursing child for up to two years after the child’s birth. 

The employer must make reasonable efforts to provide a place, other than a toilet stall, for the employee to express breast milk in privacy. The law also requires the Department of Labor and Employment to provide, on its website, information, and links to other websites where employers can access information regarding methods to accommodate nursing mothers in the workplace.

Connecticut

Conn. Gen. Stat. § 31-40w (2001) requires employers to provide a reasonable amount of time each day to an employee who needs to express breast milk for her infant child and to provide accommodations where an employee can express her milk in private. CT HB 5158 (2021) specifies certain parameters for a room or other location in the workplace that accommodates employee breastfeeding.

Delaware

Del. Code Ann. tit. 19 § 710(1997)exceeds the federal Fair Labor Standards Act (FLSA) because it applies to all working mothers (not just hourly).

Del. Code Ann. tit. 19, § 710and 711 (2013) defines reasonable accommodation to include the provision of break time and appropriate facilities for expressing breast milk. The law also makes it an unlawful practice for an employer to fail or refuse to make reasonable accommodation or deny employment opportunities to a job applicant or employee because of their need for reasonable accommodations.

District of Columbia

D.C. Code Ann. § 2-1402.81 et seq. (2007) amend the Human Rights Act of 1977 to include breastfeeding as part of the definition of discrimination on the basis of sex, to ensure a woman’s right to breastfeed her child in any location, public or private, where she has the right to be with her child. The law provides that breastfeeding is not a violation of indecent exposure laws. 

The law also specifies that an employer shall provide reasonable daily unpaid break periods, as required by the employee, so that the employee may express breast milk for her child. These break periods shall run concurrently with any break periods that may already be provided to the employee. 

Requires that an employer make reasonable efforts to provide a sanitary room or other location, other than a bathroom or toilet stall, where an employee can express her breast milk in privacy and security. The location may include a childcare facility in close proximity to the employee’s work location.

D.C. Code Ann. § 32–1231.03(2015) prohibits an employer from refusing to make reasonable accommodations for a breastfeeding employee unless the employer can show that the accommodation would impose an undue hardship.

Georgia

Ga. Code § 34-1-6 (1999, 2020) requires employers to provide break time of reasonable duration to an employee who desires to express breast milk at the worksite during work hours, this break time shall be paid at the employee’s regular rate of compensation. 

Employers are also required to provide a private location, other than a restroom, for this activity. The law also prohibits the employer from requiring a salaried employee to use paid leave during any break time or reducing the employee’s salary because the salaried employee takes a break to express breast milk during the workday.

Hawaii

Hawaii Rev. Stat. § 367-3 (1999) requires the Hawaii Civil Rights Commission to collect, assemble, and publish data concerning instances of discrimination involving breastfeeding or expressing breast milk in the workplace. The law prohibits employers to forbid an employee from expressing breast milk during any meal period or other break period.

Hawaii Rev. Stat. § 378-2 (2000) provides that it is unlawful discriminatory practice for any employer or labor organization to refuse to hire or employ, bar or discharge from employment, withhold pay from, demote or penalize a lactating employee because an employee breastfeeds or expresses milk at the workplace.

Hawaii Sess. Laws. Act. 249 (2013) requires specified employers to provide reasonable break time for an employee to express milk for a nursing child in a location, other than a bathroom, that is sanitary, shielded from view and free from intrusion. The law also requires employers to post notice of the application of this law in a conspicuous place accessible to employees.

Illinois

Ill. Rev. Stat. ch. 820 § 260 (2001) creates the Nursing Mothers in the Workplace Act. Requires that employers provide reasonable unpaid break time each day to employees who need to express breast milk. The law also requires employers to make reasonable efforts to provide a room or other location, other than a toilet stall, where an employee can express her milk in privacy. IL HB 1595 (2018) prohibits employers from reducing an employee’s compensation for time used to express milk or to nurse a baby.

Ill. Rev. Stat. ch. 68 § 5/2-102 (2017) states that “reasonable accommodations” means reasonable modifications or adjustments to the job application process or work environment that enable an applicant or employee affected by pregnancy, childbirth, or medical or common conditions related to pregnancy or childbirth to be considered for the position the applicant desires or to perform the essential functions of that position.

Indiana

Ind. Code § 5-10-6-2 and § 22-2-14-2 (2008) provide that state and political subdivisions shall provide for reasonable paid breaks for an employee to express breast milk for her infant, make reasonable efforts to provide a room or other location, other than a toilet stall, where the employee can express breast milk in private and make reasonable efforts to provide for a refrigerator to keep breast milk that has been expressed. The law also provides that employers with more than 25 employees must provide a private location, other than a toilet stall, where an employee can express the employee’s breast milk in private and if possible to provide a refrigerator for storing breast milk that has been expressed.

Kentucky

Ky. Rev. Stat. § 344.040 (2019) makes it unlawful for an employer to fail to make reasonable accommodations for an employee with limitations related to pregnancy, childbirth, or a related condition, including but not limited to the need to express breastmilk (SB 18).

Louisiana

La. Rev. Stat. Ann. § 17:81 (2013) requires public school boards to adopt a policy to require each school to provide an appropriate, private room, other than a restroom, that may be used by an employee to express breast milk. The school must also provide a reasonable amount of break time to accommodate an employee needing to express breast milk for up to one year following the birth of her child.

LA SB 215 (2021) provides for the reasonable accommodations of certain employees, including for scheduled and more frequent or longer break periods and a private place other than a bathroom for the purpose of expressing breast milk. 

Maine

Me. Rev. Stat. Ann. tit. 26, § 604 (2009) requires an employer to provide adequate unpaid or paid break time to express breast milk for up to 3 years following childbirth. The employer must make reasonable efforts to provide a clean place, other than a bathroom, where an employee may express breast milk in privacy. The employer may not discriminate against an employee who chooses to express breast milk in the workplace.

ME HB 487 (2019) provides that it is unlawful employment discrimination for an employer to fail to provide a reasonable accommodation for an employee’s pregnancy-related condition, including lactation, unless provision of an accommodation would impose an undue hardship on the employer.

Maryland

Md. State Personnel and Pensions Code Ann. § 2-310 (2018) requires the State, through its appropriate officers and employees, to provide a reasonable break time for employees to express breast milk and, on notice, to provide a certain place that may be used by an employee to express breast milk, prohibits the State from being required to compensate an employee receiving reasonable break time for any time spent expressing breast milk at work (HB 306).

Massachusetts

Mass. Gen. Laws Ann. ch. 151B § 4 (2018) provides that it is unlawful discrimination for an employer to deny reasonable accommodation for an employee’s pregnancy or any condition related to the employee’s pregnancy including, but not limited to, lactation or the need to express breast milk. (HB 3680).

Minnesota

Minn. Stat. § 181.939 (1998) (2022) All employers, even those with one employee, have to give all breastfeeding employees (not just those who are hourly workers like the FLSA), time to pump and a private space to do it. (2022) An amendment to the existing law prohibits employers from reducing an employee’s compensation for time used to express milk. The amendment also limits an employer’s obligation to provide break time to one year. 

Mississippi

Miss. Code Ann. Ch. 1 § 71-1-55 (2006) prohibits against discrimination towards breastfeeding mothers who use lawful break time to express milk.

Montana

Mont. Code Ann. § 39-2-215 et seq. (2007) specifies that employers must not discriminate against breastfeeding mothers and must encourage and accommodate breastfeeding. Requires employers to provide daily unpaid break time for a mother to express breast milk for her infant child, if breaks are currently allowed, and facilities for storage of the expressed milk. Employers are also required to make a reasonable effort to provide a private location, other than a toilet stall, in close proximity to the work place for this activity.

Nebraska

Neb. Rev. Stat. § 48-1102-11 (2015) The Nebraska Fair Employment Practices Act requires that reasonable accommodation shall include break time and appropriate facilities for breastfeeding or expressing breast milk.

Nevada

Nev. Rev. Stat § 608.0193 (2017) Each employer shall provide an employee who is the mother of a child under 1 year of age with: reasonable break time, with or without compensation, for the employee to express breast milk as needed; and a place, other than a bathroom, to express breast milk. Does not apply to employers of less than 50 employees if such would impose undue hardship.

New Jersey

N.J. Rev. Stat. § 10:5-12 (2018) makes it an unlawful employment practice to discriminate based on pregnancy or breastfeeding in compensation or financial terms of employment.

New Mexico

N.M. Stat. Ann. § 28-20-2 (2007) requires employers to provide a clean, private place, not a bathroom, for employees who are breastfeeding to pump. Also requires that the employee be given breaks to express milk, but does not require that she be paid for this time.

New York

N.Y. Labor Law i kn§ 206-C (2007) states that employers must allow breastfeeding mothers reasonable, unpaid break times to express milk and make a reasonable attempt to provide a private location for her to do so. Prohibits discrimination against breastfeeding mothers.

Oklahoma

Oklahoma Senate Bill 121 (2021) requires school district boards of education to adopt a policy to allow nursing school employees to take paid breaks to maintain their milk supply.

Okla. Stat. tit. 40, § 435 (2006) requires that an employer provide reasonable unpaid break time each day to an employee who needs to breastfeed or express breast milk for her child. The law requires the Department of Health to issue periodic reports on breastfeeding rates, complaints received and benefits reported by both working breastfeeding mothers and employers.

OK SB 285 (2020), state agencies will be required to give nursing mothers “reasonable” paid break time each workday to privately pump breast milk.

Oregon

Or. Rev. Stat. § 653.075, § 653.077 and § 653.256 (2007) allow women to have unpaid 30-minute breaks during each four-hour shift to breastfeed or pump. Allows certain exemptions for employers.

OR HB 2341 (2019) makes unlawful employment practice for employer to deny reasonable accommodation to known limitations related to pregnancy, childbirth or related medical condition, including lactation.

OR HB 2593 (2019) conforms state law related to expression of milk in the workplace to federal law, eliminates the exemption from providing rest periods for expression of milk in the workplace if granting rest period imposes undue hardship.

Puerto Rico

3 L.P.R.A. § 1466 and 29 L.P.R.A. § 478a et seq. provide that breastfeeding mothers have the opportunity to breastfeed their babies for half an hour within the full-time working day for a maximum duration of 12 months.

Rhode Island

R.I. Gen. Laws § 23-13.2-1 (2003) specifies that an employer may provide reasonable unpaid break time each day to an employee who needs to breastfeed or express breast milk for her infant child. The law requires the department of health to issue periodic reports on breastfeeding rates, complaints received and benefits reported by both working breastfeeding mothers and employers, and provides definitions.

South Carolina

S.C. Code Ann. § 1-13-80 (2018) enacts the Pregnancy Accommodations Act, relates to definitions under the human affairs laws, revises the terms because of sex or on the basis of sex used in the context of equal treatment for women affected by pregnancy, childbirth or related medical conditions, relates to unlawful employment practices of an employer and lactation, provides for certain other unlawful employment practices in regard to failure to provide reasonable accommodations for an applicant for employment or employee (HB 3865).

S.C. Code Ann. § 41-1-130  (2020) enacts the Lactation Support Act; provides that employers shall provide employees with reasonable unpaid break time daily or shall permit employees to use paid break time or meal time to express breast milk; provides that employers shall make reasonable efforts to provide certain areas where employees may express breast milk; provides that employers may not discriminate against employees for choosing to express breast milk in the workplace.

Tennessee

Tenn. Code Ann. § 50-1-305 (1999) requires employers to provide daily unpaid break time for a mother to express breast milk for her infant child. Employers are also required to make a reasonable effort to provide a private location, other than a toilet stall, in close proximity to the workplace for this activity.

Tenn. Code Ann. § 50-10-101 et seq. (2020) enacts the Pregnant Workers Fairness Act; sets forth fair employment practices and protections for pregnant workers. Employers with at least 15 employees will be required to make reasonable workplace accommodations for pregnancy, childbirth, or related medical conditions, including lactation. 

Texas

Tex. Health Code Ann. § 165.003 (1995) provides for the use of a “mother-friendly” designation for businesses who have policies supporting worksite breastfeeding.

Texas Government Code§ 619.004 (2015) Public employers are required to provide breastfeeding employees with reasonable accommodations including break time and a private location other than a restroom, and cannot discriminate against breastfeeding employees.

Utah

Utah HJR 4 (2012) encourages employers to recognize the benefits of breastfeeding and to provide unpaid break time and an appropriate space for employees who need to breastfeed or express their milk for their infant children.

Utah Code Ann. § 34-49-101 et. seq. (2015) requires a public employer to provide reasonable breaks for a mother who needs to express breast milk and a room or other location in close proximity to the employee’s work area that is not a bathroom, is private, and has an electrical outlet. The employer shall also provide access to a clean refrigerator or freezer for the storage of breast milk.

Utah Code Ann. § 34A-5-106 (2016) states that it is a discriminatory and prohibited practice for an employer to refuse to provide reasonable accommodations for an employee related to pregnancy, childbirth, breastfeeding or related conditions if the employee requests it and unless the employer demonstrates the accommodation would create an undue hardship. An employer also may not require an employee to terminate employment or deny employment opportunities based on the need for an employer to make reasonable accommodations.

Vermont

Vt. Stat. Ann. tit. 21, § 305 (2008) requires employers to provide reasonable time throughout the day for nursing mothers to express breast milk for three years after the birth of a child. Also requires employers to make a reasonable accommodation to provide appropriate private space that is not a bathroom stall, and prohibits discrimination against an employee who exercises or attempts to exercise the rights provided under this act.

Virginia

Va. HJR 145 (2002) encourages employers to recognize the benefits of breastfeeding and to provide unpaid break time and appropriate space for employees to breastfeed or express milk.

Va. Code § 2.2-3903 (2002) states that no employer with more than five but less than 15 employees shall discharge an employee on the basis of certain factors, including pregnancy, childbirth or related medical conditions, including lactation.

Va. Code § 22.1-79.6 (2014) Directs each local school board to adopt a policy to set aside, in each school in the school division, a non-restroom location that is shielded from the public view to be designated as an area in which any mother who is employed by the local school board or enrolled as a student may take breaks of reasonable length during the school day to express milk to feed her child until the child reaches the age of one.

VA HB 827 (2020) relates to the Virginia Human Rights Act; prohibits discrimination on the basis of pregnancy, childbirth, or related medical conditions, including lactation; requires employers to make reasonable accommodation for the known limitations of a person related to pregnancy, childbirth, or related medical conditions, including lactation, if such accommodation is necessary; sets forth prohibited actions by employers; provides for actions against employers in violation of the Act.

VA SB 868 (2020) relates to prohibited discrimination on the basis of several factors, including lactation; relates to public accommodations, employment, credit, and housing; creates explicit causes of action for unlawful discrimination in public accommodations and employment in the Human Rights Act.

VA Code § 22.1-79.6 (2021) Employee lactation support policy. Each local school board shall adopt a policy to set aside, in each school in the school division, a non-restroom location that is shielded from the public view to be designated as an area in which any mother who is employed by the local school board or enrolled as a student may take breaks of reasonable length during the school day to express milk to feed her child until the child reaches the age of one.

Washington

Wash. Rev. Code § 43.70.640 (2001) allows any employer, governmental and private, to use the designation of “infant-friendly” on its promotional materials if the employer has an approved workplace breastfeeding policy with certain requirements, including flexible work scheduling with breaks to express breast milk and a location other than a restroom for breastfeeding.

Wash. Rev. Code 43.10.005 (2019) revises provisions related to the expression of breast milk in the workplace, expands the definition of reasonable accommodation to provide reasonable break times for an employee to express breast milk for a certain number of years after a child’s birth and to provide a private location, other than a bathroom, for such purpose. (HB 1930)

National Conference of State Legislatures. “Breastfeeding State Laws.”

http://www.ncsl.org/research/health/breastfeeding-state-laws.aspx. National Conference of State Legislatures. 26 Aug. 2021. Web. 20 Jan. 2022

U.S. Department of Labor. “Employment Protections for Workers Who Are Pregnant or Nursing.” https://www.dol.gov/agencies/wb/pregnant-nursing-employment-protections. 2020. Web. 20 Jan. 2022

(Healthy Horizons January 2022)

Workers’ compensation is a benefit mandated by laws in all 50 states, the District of Columbia, Puerto Rico and the Virgin Islands for most employers. Regardless of how safe an employer may try to make its workplace, on-the-job accidents and job-related illnesses occur.

When and what are these laws designed for:

Workers’ compensation is a system of state laws that originated in 1911.

These laws provide medical care and compensation to injured workers on a no-faultbasis.

The purpose of workers’ compensation laws is to provide:

• Coverage of medical expenses for treatment of injuries or occupational illness.
  • Income protection for employees who must be absent from work because of occupational illness or injury.
  • Limited compensation for serious permanent injury such as loss of limb or loss of life.

These laws also contain anti-retaliation provisions, which prohibit employers from retaliating against any employee because he or she has filed a claim or received benefits under the law.

Reviewing and Reducing Workers Compensation Costs:

1. Promptly provide first aid, and if the employee requires emergency medical treatment, accompany the employee to a health care provider.
2. Obtain facts from the employee about the accident.
3. Inform the employee of his or her workers’ compensation coverage for job-related injuries.
4. Investigate and document the accident as soon as possible and the steps to follow to prevent similar accidents, as relevant.
5. Direct the immediate supervisor to stay in touch with the employee and/or a family member of the employee.
6. Develop and implement an employee safety culture.
7. Establish and empower a safety management committee that is in charge of your accident prevention program.
8. Educate managers about the cost and impact of workers’ compensation and hold them accountable for prevention of injuries.
9. Report workers’ compensation injuries as soon as possible and decide on appropriate steps to take to prevent similar injuries.
10. Have a light-duty/return-to-work program.
11. Maintain frequent contact with the injured employee and the workers’ compensation case manager.
12. Dispute claims that might not be related to a workplace injury.
13. Work with insurance provider to truly understand open claims, costs associated with claims and settlement options.
14. If you are disputing, ensure you understand the legal hearing process, this can add tremendous costs if trials are delayed or rescheduled.  Guess what, you pay for the legal fees associated with this.
15. Settle ongoing claims so the injury is off your books.
16. Change insurance providers.  If your organizations rates continue to rise, it might be time to review other compensation companies.  I recently spoke to a client, small business with 20-30 employees, the comp company raised the rates $10,000 per year.  The small business switched insurance providers and found immediate savings.

Who needs workers compensation insurance (New York State):

• Workers in all for-profit businesses and most nonprofits
• Domestic workers, sitters, companions and live-in maids employed 40 hours per week in a residence
• Farm workers whose employer paid $1,200 or more for farm labor in the preceding year
• (catch all in NYS) Any other worker the Workers’ Compensation Board determines is an employee (Uber, might be an example of this)

New York State Workers’ Compensation Website

Pennsylvania Worker’s Compensation Website

INCIDENT/NEAR MISS REPORT

(Check one):

___An incident is an event that caused injury to a person or damage to equipment, building or materials.

___A near miss is an event that could have caused injury to a person or damage to equipment, building or materials.

Person completing this form: _________________________  Date: __________________

Name and job title of the employee involved in the incident/near miss: ____________________

____________________________________________________________________________

Witness(es):__________________________________________________

Date of incident/near miss: ________________Time of incident/near miss: _______a.m./p.m.

Department and location where the incident/near miss occurred: _________________________________________________________

Employee’s shift on the day of the incident/near miss (from) _____________ a.m./p.m. (to) _____________ a.m./p.m.

Did an injury occur?  _____ Yes  _____ No

Nature of the injury (strain, cut, bruise, etc.): ______________________________________
__________________________________________________________________________

Body part(s) affected: ________________________________________________________

Medical treatment required? _____ Yes  _____ No
If yes, what type?  _____ First aid on-site _____ Express care _____ Doctor _____ Hospital

Name of the facility, hospital or physician: _________________________________________

Was the employee hospitalized overnight as a patient? _____ Yes _____ No

Did the employee leave work early due to the injury? _____ Yes _____ No
If yes, what time? __________ a.m./p.m.

Date the employee returned to regular duty: ____________________

Date the employee returned with light duty restrictions: _________________

Describe the incident fully: (use back page if necessary or sketch on back if needed to clarify):

_____________________________________________________________________

_____________________________________________________________________

List all equipment, machinery, materials or chemicals the employee was using when the event occurred:

_____________________________________________________________________

_____________________________________________________________________

Identify the factors that you believe contributed to or caused the incident: ____________________________________________________________________

_____________________________________________________________________

Complete this section if an injury occurred or there was damage to equipment.

Were proper procedures being followed when the incident occurred? ____ Yes ____ No

If no explain: _______________________________________________________________

Was the employee wearing proper personal protective equipment? ____ N/A ____ Yes ____ No

If no explain: _______________________________________________________________

Are changes in equipment necessary to prevent reoccurrence? ____ Yes ____ No

If yes explain: _______________________________________________________________

Employee signature: _____________________________  Date: ____________________

Supervisor signature: ____________________________  Date: ____________________

Forward this form to the Human Resources Department as soon as possible following the incident or near miss.

Note: If an employee receives medical treatment from a doctor or hospital, additional forms will need to be filled out and forwarded to the HR Dept. along with the incident report so a workers’ compensation claimed can be filed.

401(k) Plan Limits

Defined Contribution Plans	2023	2022	Change
Maximum employee elective deferral (age 49 or younger) 1	$22,500	$20,500	+$2,000
Employee catch-up contribution (age 50 or older by year-end) 2	$7,500	$6,500	+$1,000
Maximum employee elective deferral plus catch-up contribution (age 50 or older)	$30,000	$27,000	+$3,000
Defined contribution maximum limit, employee + employer (age 49 or younger) 3	$66,000	$61,000	+$5,000
Defined contribution maximum limit (age 50 or older), all sources + catch-up	$73,500	$67,500	+$6,000
Employee compensation limit for calculating contributions	$330,000	$305,000	+$25,000
Key employees’ compensation threshold for top-heavy plan testing 4	$215,000	$200,000	+$15,000
Highly compensated employees’ threshold for nondiscrimination testing	$150,000	$135,000	+$15,000

¹ The $22,500 elective deferral limit is also known as the 402(g) limit, after the relevant tax code section. Participants’ annual contributions may not exceed 100% of their compensation.

² The $7,500 catch-up contribution limit for participants age 50 or older applies from the start of the year for those turning 50 at any time during the year.

³ Total contributions from all sources may not exceed 100% of a participant’s compensation.

⁴ Includes officers of the company sponsoring the plan.

​Source: IRS Notice 2022-55.


View For 2023, 401(k) Contribution Limit Rises to $22,500 with $7,500 ‘Catch-Up’

HAS and HDHP Limits

Health Savings Accounts (HSAs) and High-Deductible Health Plans (HDHPs)	2023	2022	Change
HAS contribution limit (employer + employee)	Self-only: $3,850 Family: $7,750	Self-only: $3,650 Family: $7,300	Self-only: +$200 Family: +$450
HAS catch-up contributions (age 55 or older)	$1,000	$1,000	no change (not indexed)
HDHP minimum deductibles	Self-only: $1,500 Family: $3,000	Self-only: 1,400 Family: $2,800	Self-only: +100 Family: +200
HDHP maximum out-of-pocket amounts (deductibles, co-payments and other amounts, but not premiums)	Self-only: $7,500 Family: $15,000	Self-only: $7,050 Family: $14,100	Self-only: +450 Family: +$900

Source: IRS Revenue Procedure 2022-24.

View IRS Announces Spike in 2023 Limits for HSAs and High-Deductible Health Plans.

Health FSA Limits

Health Care Flexible Spending Accounts (Health FSAs) and Limited-Scope (Vision/Dental) FSAs	2023	2022	Change
Maximum salary deferral	$3,050	$2,850	+$200
Maximum rollover amount	$610	$570	+$40

Ssource: IRS Revenue Procedure 2022-38.

View 2023 Health FSA Contribution Cap Rises to $3,050.

Dependent Care FSA Limits

Dependent Care FSAs (DC-FSAs) also called Dependent Care Assistance Plans (DCAPs)	2023	2022	Change
Maximum salary deferral (single taxpayers and married couples filing jointly)	$5,000	$5,000	no change (not indexed)
Maximum salary deferral (married couples filing separately)	$2,500	$2,500	no change (not indexed)

Source: IRS Revenue Procedure 2022-38.

View 2023 Health FSA Contribution Cap Rises to $3,050.

QSEHRA Limits

Qualified Small Employer Health Reimbursement Arrangements (QSEHRAs)	2023	2022	Change
Maximum payments and reimbursements through the QSEHRA	Self-only: $5,850 Family: $11,800	Self-only: $5,450 Family: $11,050	Self-only: +$400 Family: +$750

Source: IRS Revenue Procedure 2022-38.

View Higher ACA Subsidies Expand Options for Small Employers and Retiree Plan Sponsors.

Commuter Transit and Parking Limits

Qualified Transportation Benefit  (monthly limits)	2023	2022	Change
Transit passes and van pool services (employer + employee)	$300	$280	+$20
Qualified parking	$300	$280	+$20

Source: IRS Revenue Procedure 2022-38.

View Rethinking Commuter Benefits for a Hybrid-Work World.

Adoption Assistance

Adoption Benefits (Annual limits)	2023	2022	Change
Excludable Amount	$15,950	$14,890	+$1,060
Phase-out income thresholds:
Phase-out begins	$239,230	$223,410	+$15,820
Phase-out complete	$279,230	$263,410	+$15,820

Source: IRS Revenue Procedure 202-38.

View Managing Adoption Assistance Benefits.

Earnings Subject to Social Security Payroll Tax

Social Security (FICA) Payroll Tax	2023	2022	Change
Maximum earnings subject to Social Security 12.4% FICA payroll tax (6.2% paid by employer and 6.2% paid by employee)	$160,200	$147,000	+$13,200

Source: Social Security Administration.

View 2023 Social Security Wage Cap Jumps to $160,200 for Payroll Taxes. For more on tax withholding, view 2023 Tax Bracket Changes Could Increase Workers’ Take-Home Pay.

The NYS Department of Labor is proceeding with scheduled increases to the state’s minimum wage effective December 31, 2022. While there is no change for New York City employers, Long Island, or Westchester employers, the remainder of upstate New York will see increases. As you know, this will also impact the minimum salary levels to be paid to Executive and Administrative exempt employees. The new minimum wage and minimum salary levels can be found below. Things to keep in mind:

• A new poster. You will be required to post a new minimum wage poster. You will be able to find the new poster here. Remember, there could be corresponding increases in the tipped wage and wages paid for fast food employees in your area. 
• The minimum salary level to be considered exempt from overtime under NYS law for Executive and Administrative employees is tied to the minimum wage and may also be increasing for your industry and area. Remember, there is no NYS minimum salary level for Professional exemptions. For Professional employees you would be subject to the Federal minimum salary level. 

*Future increases will be based on an indexed schedule to be set by the Director of the Division of the Budget in consultation with the Department of Labor following an annual review of the impact.

Minimum Salary Level – NYS Executive and Administrative Exemptions

Location Effective 12/31/2022 NYC-Large Employers (11 or more) $1,125/week ($58,500 annualized) NYC-Small Employers (10 or less) $1,125/week ($58,500 annualized) Long Island & Westchester $1,125/week ($58,500 annualized) Remainder of the NY State $1,065/week ($55,380 annualized)

NYS Reduces Overtime Threshold for Farm Workers to 40 hours Per Week

New York State Department of Labor (NYSDOL) Commissioner Roberta Reardon issued an order accepting the recommendation of the Farm Laborers Wage Board to lower the current 60-hour threshold for overtime pay to 40 hours per week by January 1, 2032, allowing 10 years to phase in the new threshold. NYSDOL will now be undergoing a rule making process which will include a 60-day public comment period. This applies to certain agricultural employers and employees only.

Under proposed language, an employer shall pay an employee for overtime at a wage rate of one- and one-half times the employee’s regular rate of pay for hours worked in excess of the following number of hours in one workweek:

(a) 60 hours on or after January 1, 2020;
(b) 56 hours on or after January 1, 2024;
(c) 52 hours on or after January 1, 2026;
(d) 48 hours on or after January 1, 2028;
(e) 44 hours on or after January 1, 2030;
(f) 40 hours on or after January 1, 2032.

Minimum Wage for Tipped Employees in the Hospitality Industry

New York State has separate minimum wage rules for employees in the hospitality industry. These rules apply to businesses running a restaurant or hotel.

The minimum wage rates for most non-tipped employees in the hospitality industry are set as per the schedule above. However, employers may count a portion of certain tipped employees’ gratuities toward the minimum wage requirements. This is known as a “tip credit.”

New York State has two separate cash wage and tip credit schedules for tipped hospitality employees who qualify as “food service workers” and “service employees.”

Food Service Workers

A food service worker is any employee who is primarily engaged in serving food or beverages to guests, patrons, or customers in the hospitality industry who regularly receive tips. This includes wait staff, bartenders, captains, and busing personnel. It does not include delivery workers.

Hospitality Industry Tipped Minimum Wage Rate Schedule (Food Service Workers)
Location	12/31/21	12/31/22
NYC – Large Employers (of 11 or more)	$10.00 Cash $5.00 Tip	$10.00 Cash $5.00 Tip
NYC – Small Employers (10 or less)	$10.00 Cash $5.00 Tip	$10.00 Cash $5.00 Tip
Long Island & Westchester	$10.00 Cash $5.00 Tip	$10.00 Cash $5.00 Tip
Remainder of New York State	$8.80 Cash $4.40 Tip	$9.45 Cash $4.75 Tip

Service Employees

The next schedule applies to other service employees. A service employee is one who is not a food service worker or fast food employee who customarily receives tips above an applicable tip threshold (which also follows schedules, not shown here).

Hospitality Industry Tipped Minimum Wage Rate Schedule (Service Employees)
Location	12/31/21	12/31/22
NYC – Large Employers (of 11 or more)	$12.50 Cash $2.50 Tip	$12.50 Cash $2.50 Tip
NYC – Small Employers (10 or less)	$12.50 Cash $2.50 Tip	$12.50 Cash $2.50 Tip
Long Island & Westchester	$12.50 Cash $2.50 Tip	$12.50 Cash $2.50 Tip
Remainder of New York State	$11.00 Cash $2.20 Tip	$11.85 Cash $2.35 Tip

Minimum Wage for Fast Food Employees
The minimum wage for fast food employees working outside of New York City will increase to $14.50 per hour. The final scheduled increase to $15.00 per hour will take effect on July 1, 2021.

Tompkins County Living Wage Information

2021 Living Wage Report