What’s New in HR?

DOL Guidance on Posting Requirements for Remote & Hybrid Workplaces

The U.S. Department of Labor (DOL) recently provided guidance on complying with its notices and posting requirements when in a remote work environment.

Posting Guidance:

(1) all of the employer’s employees exclusively work remotely,

(2) all employees customarily receive information from the employer via electronic means, and

(3) all employees have readily available access to the electronic posting at all times. This ensures the electronic posting satisfies the statutory and regulatory requirements that such postings be continuously accessible to employees. Where an employer has employees on-site and other employees teleworking full-time, for example, the employer may supplement a hard-copy posting requirement with electronic posting and the Department would encourage both methods of posting.

If an employer seeks to meet a worksite posting requirement through electronic means, such as on an intranet site, internet website, or shared network drive or file system posting, the electronic notice must be as effective as a hard-copy posting. As a number of the statutory provisions below require that affected individuals be able to readily see a copy of the required postings, where an employer chooses to meet a worksite posting requirement through electronic means, the same requirements apply in the electronic format. As a practical matter, a determination of whether affected individuals can readily see an electronic posting depends on the facts. For instance, the affected individuals must be capable of accessing the electronic posting without having to specifically request permission to view a file or access a computer.

Impacted Federal Posters:

  • Fair Labor Standards Act
  • Family and Medical Leave Act
  • Section 14(c) of the FLSA
  • Employee Polygraph Protection Act
  • Service Contract Act

DOL Guidance

DOL Poster Advisor Link

Additional Recommendations:

  • Design an easily accessible space in your company intranet or employee portal for federal and state posters. “Consider making your company intranet or portal appear automatically on employees’ computers upon logging in,” he said.
  • Use your employee handbook or handbook acknowledgment page to inform employees of the virtual location of postings.
  • Incorporate all required notices in your applicant portal and applicant tracking system if hiring is conducted remotely.

Work with your labor poster provider and seek guidance with any questions or concerns related to remote postings.  Remember, there are local and state requirements as well, with remote workers.  I am happy to answer any questions regarding posting requirements.

Washington Paid Family and Medical Leave poster has been updated to reflect an increase to the cap of weekly benefits by the Washington Employment Security Department.  The maximum allowed for weekly benefits increased from $1,000 to $1,206. This posting appears on the Washington Combination Poster. This is a mandatory change.

California Pregnancy Disability and CFRA Leave poster has been updated to reflect recent amendments to the California Family Rights Act (CFRA).  A new law expands the definition of family member for CFRA purposes and also expands the CFRA to now apply to employers with five or more employees.  This posting appears on the California Combination Poster, Part 2. This is a mandatory change.

California Industrial Welfare Commission Wage (IWC) Industry Wage Orders have been updated to reflect the 2021, 2022 and 2023 increases to the state minimum wage and revised updated meal and lodging credit amounts. The web address for computer software employees overtime exemptions has also been revised. This is a mandatory change.

Alaska Minimum Wage poster has been updated to reflect an increase in the minimum wage. The minimum wage rate will increase from $10.19 per hour to $10.34 per hour effective January 1, 2021. This posting appears on the Alaska Combination Poster. This is a mandatory change.

Oklahoma Workers’ Compensation poster has been updated to reflect a change to the state’s workers’ compensation law adding chiropractic services to allowable medical treatment. This posting appears on the Oklahoma Combination Poster. This is a mandatory change.

California Fair Employment poster has been updated to reflect recent amendments to the California Fair Employment and Housing Act.  A new leave law amendment expands the definition of family member to include grandparent, grandchild, or sibling, and permits leave for certain military exigencies and also expands the law to now apply to employers with five or more employees.  This posting appears on the California Combination Poster, Part 1. This is a mandatory change.

OSHA 300 Recordkeeping Rules & Requirements

Under OSHA’s recordkeeping regulation, certain covered employers are required to prepare and maintain records of serious occupational injuries and illnesses using the OSHA 300 Log. This information is important for employers, workers and OSHA in evaluating the safety of a workplace, understanding industry hazards, and implementing worker protections to reduce and eliminate hazards.

Is your organization required to prepare and maintain records under current rules?

To find out if you are required to prepare and maintain records under the updated rule, first determine your NAICS code by:

  1. Using the search feature at the U.S. Census Bureau NAICS main webpage.  In the search box for the most recent NAICS, enter a keyword that describes your business. Choose the primary business activity that most closely corresponds to you, or refine your search to get more choices.
  2. Viewing the most recent complete NAICS tables on the U.S. Census Bureau NAICS main webpage. Select the two-digit sector code and choose a six-digit industry code to read its definition.
  3. Using an old SIC code to find your NAICS code using the detailed conversion tables on the U.S. Census Bureau Concordances page.
  4. Contacting your nearest OSHA office or State agency for help.

Once you have found your NAICS code, you can use the following table to determine if your industry is exempt from the recordkeeping rule.

NOTE: Establishments in companies with 10 or fewer employees at all times in the previous year continue to be exempt from keeping OSHA records, regardless of their industry classification.  The partial exemption for size is based on the number of employees in the entire company.

Forms Needed for Completion:

The OSHA injury and illness recordkeeping forms are:

  • the Log of Work-Related Injuries and Illnesses (OSHA Form 300),
  • the Summary of Work-Related Injuries and Illnesses (OSHA Form 300A), and
  • the Injury and Illness Incident Report (OSHA Form 301).

Employers must fill out the Log and the Incident Report only if a recordable work-related injury or illness has occurred. Employers must fill out and post the Summary annually, even if no recordable work-related injuries or illnesses occurred during the year.

In place of the OSHA forms, employers may also use equivalent forms (forms that have the same information, are as readable and understandable, and are completed using the same instructions as the OSHA forms they replace). Many employers use an insurance form instead of the Incident Report, or supplement an insurance form by adding information required by OSHA.

Additional Information:

OSHA Fact Sheet

OSHA Exempt Industries FAQ Sheet

OSHA Recordkeeping Forms

OSHA 300 & 300A PDF Forms

Six Thoughts on Destroying Student Loan Debt

Student loan debt is impacting millions of borrowers across the world.  Borrowers throughout the United States currently owe $1.7 Trillion dollars in outstanding debt.  Federally backed loans will become due again in 2021, regardless of the promises made by politicians about eliminating $50,000 of debt from each borrower.  I know many people that owe much more than $50,000 in student loan debt.  I myself have borrowed and repaid over $200,000 of student loans throughout my academic career and will owe close to $20,000 in 2021.  Below are a few thoughts I have on repaying student loan debt quick.

My Thoughts on Destroying Student Loan Debt:

  1. Do not ignore the debt.  Anyone who has borrowed money for student loans should have a general understanding of how much is owed and to which lending houses.  Review all loans and prioritize the loans with the highest levels of interest.
  2. Be prepared to make sacrifices.  Yes, that means not buying $6.00 cups of coffee every morning, going out to eat 4-days per week, taking unnecessary luxury vacations and leasing brand new vehicles.  Sacrifice now for freedom later in life.  Debt freedom is something that profoundly changes your life.
  3. Start payments immediately.  We all have six months to start making payments on student loans after completion of the program.  However, if you receive money for graduation or have money in savings, I highly encourage you to make payments regardless of the amount or how often.  I never wait the six months to start making payments.  It will keep interest accrual at zero, which is the goal for any debt repayment.
  4. Make more than the minimum payment.  Following the advice above, making more than the minimum payment will help knock down the interest accrual, to ensure we are attacking the principal amount of the loan.  Even if the overpayment is $10 or $20 its better than the minimum payment.
  5. Pay more than once per month.  This follows the advice in #3 and #4.  Make additional payments throughout the month if you can.  Continue knocking down the interest and principal.  This is called the snowflake method of repayment.  I keep the interest on my loans a $0, to ensure my payments knock down the principal.  This requires you to review your accounts often as well, which will make the debt a priority.
  6. Reward yourself for successes.  If you are successful at eliminating debt, take time to reward yourself with a nice meal, a short vacation, etc.  I am not encouraging a luxury cruise or vacation to Europe.  Think need vs. want.  Do you really need it, or do you want it?

These are just a few thoughts on destroying student loan debt.  My upcoming book “Slay the Student Loan Dragon Tips and Tricks on How to Conquer the Student Loan Game” will have many more suggestions and tips on knocking out any level of debt.  The release date is scheduled for January 19, 2021.  At the end of the day, it is a simple, we can sit around and complain about the rules and how unfair it is to have student loan debt, or you can beat the game.  Student loan debt is not easy to discharge in bankruptcy courts and the government will garnish everything, including social security.  The financial sacrifices today will set you up for long term financial successes throughout your entire life.

Release date: January 19, 2021. Available for purchase on Amazon in paperback and Kindle versions.

2021 Revised State and Federal Forms Needed in New York State, IRS Mileage Rate, FMLA Updates in the New Year

As we are only a few days into 2021, some of our organizations will be hiring new employees for continued operation and the upcoming seasonal summer months.  New hires require new and legally updated paperwork.  State and federal forms get updated and posted on government websites for all of us to use, in either an electronic or downloadable PDF form.  These forms are not always updated at the beginning or end of the year.  Ensure you have the most current forms. 

Below are the new hire forms needed in New York State:

  1. Form I-9, Eligibility to work in the United States: This form is required in every state for new hires.  Organizations must verify that new employees are legally eligible to work in the United States.  Ensure the form is filled out correctly and signed by the right person in the organization, audits are a great option for an organization to review old I-9 forms.  This form expires 10/31/2022.  We could see changes in 2021.
  2. Form W-4, wage Withholding Allowance Certificate: This form is necessary for federal withholdings.  All employees should complete and sign a Form W-4 prior to starting work.  The 2021 form is now available through the link or an internet search.
  3. Form IT-2104, Employer Allowance Certificate (NYS):This is the New York State withholding form required for all new employees or any revised withholding information. Additional NYS Forms
  4. Pennsylvania Employer Withholding Forms
  5. Wage Prevention Fact Sheet: Organizations are required to provide wage notification forms to all employees, if they do not carve out specific language in the employees offer letter.  See fact sheet and frequently asked question links below to understand specific requirements on offer letters.  The forms vary by hourly, salary and salaried nonexempt.  The link above provides a definition on which form to use based on the classification of the employee.  Reminder, these forms were last updated in early 2017.

Wage Prevention Frequently Asked Questions

Notice of Pay for Hourly Employees

Notice for Exempt Employees

Notice for Employees Paid a Weekly Rate or a Salary for a Fix Number of Hours (40 of Fewer in a Week)

6. 2019 W-9 Form: (Revised October 2018) these forms are utilized for consultants and others that might be working within your organization.  This form was updated in October 2018.  Ensure you have an updated form from any consultants or others that are issued a 1099. No current changes. Additional Information

7. FMLA Forms: “The Family and Medical Leave Act (FMLA) provides certain employees with up to 12 weeks of unpaid, job-protected leave per year. It also requires that their group health benefits be maintained during the leave.

FMLA is designed to help employees balance their work and family responsibilities by allowing them to take reasonable unpaid leave for certain family and medical reasons. It also seeks to accommodate the legitimate interests of employers and promote equal employment opportunity for men and women.

FMLA applies to all public agencies, all public and private elementary and secondary schools, and companies with 50 or more employees. These employers must provide an eligible employee with up to 12 weeks of unpaid leave each year for any of the following reasons:

  • For the birth and care of the newborn child of an employee;
  • For placement with the employee of a child for adoption or foster care;
  • To care for an immediate family member (i.e., spouse, child, or parent) with a serious health condition; or
  • To take medical leave when the employee is unable to work because of a serious health condition.

Employees are eligible for leave if they have worked for their employer at least 12 months, at least 1,250 hours over the past 12 months, and work at a location where the company employs 50 or more employees within 75 miles. Whether an employee has worked the minimum 1,250 hours of service is determined according to FLSA principles for determining compensable hours or work.” (DOL Website)

a. WH-380-E Certification of Health Care Provider for Employee’s Serious Health Condition (PDF)

b. WH-380-F Certification of Health Care Provider for Family Member’s Serious Health Condition (PDF)

c. WH-381 Notice of Eligibility and Rights & Responsibilities (PDF)

d. WH-382 Designation Notice (PDF)

e. WH-384 Certification of Qualifying Exigency For Military Family Leave (PDF)

f. WH-385 Certification for Serious Injury or Illness of Covered Servicemember — for Military Family Leave (PDF)

g. WH-385-V Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave (PDF)

Remember to watch for the FFCRA posting and additional changes to this law as well.

2021 IRS Mileage Rate:

Standard Mileage Rate Website (Additional Information)

Beginning on January 1, 2021, the standard mileage rates for the use of a car (also vans, pickups or panel trucks) will be:

  • 56 cents per mile driven for business use, down 1.5 cents from the rate for 2020,
  • 16 cents per mile driven for medical, or moving purposes for qualified active duty members of the Armed Forces, down 1 cent from the rate for 2020, and
  • 14 cents per mile driven in service of charitable organizations, the rate is set by statute and remains unchanged from 2020.

NY State Posting Requirements (NYC has variations):

Notice to Employees (IA 133)  

Complete this form if you would like to order the Unemployment Insurance Notice to Employees (IA 133) poster. The poster is available in various languages. You are required to display this poster.

Understanding Unemployment for Employers

The federal government has allowed states to change their unemployment benefits laws. It lets them provide unemployment benefits for situations related to the coronavirus (COVID-19).  And, the Coronavirus Aid, Relief, and Economic Security (CARES) Act has expanded benefits further. It authorizes:

  • Self-employed workers and gig workers to receive unemployment benefits
  • All unemployed workers to receive an extra $600 a week for up to six months
  • Unemployed workers to get an extra 13 weeks of benefits beyond the number a state currently provides

As we begin reviewing options to reopen the economy, many of us are wondering how to bring employees back to work, as the unemployment benefits are significant through the end of July 2020.  This is a concern I have addressed over the past few weeks.  Below are a few questions/answers, other options and additional information.

Questions & Answers for Employers:

My employer has remained open because it is essential. I’m not sick, nor is anyone in my household sick. I do not have children or care for someone who cannot care for themselves. However, I’m afraid of getting coronavirus from customers coming to the store, so I quit and filed for unemployment. Can I obtain benefits under the CARES Act?

No. Under the CARES Act, you may be eligible for benefits if you meet one of the circumstances listed in the Act, but none include the scenario described. On these facts, you are not eligible for Pandemic Unemployment Assistance (PUA) because you do not meet any of the qualifying circumstances.

There are, however, circumstances under the CARES Act in which specific, credible health concerns could require an individual to quit his or her job and thereby make the individual eligible for PUA. For example, an individual may be eligible for PUA if he or she was diagnosed with COVID-19 by a qualified medical professional, and although the individual no longer has COVID-19, the illness caused health complications that render the individual objectively unable to perform his or her essential job functions, with or without a reasonable accommodation. However, voluntarily deciding to quit your job out of a general concern about exposure to COVID-19 does not make you eligible for PUA.

I was furloughed by my employer, but they have now reopened and asked me to return to my job. Can I remain on unemployment?

No. As a general matter, individuals receiving regular unemployment compensation must act upon any referral to suitable employment and must accept any offer of suitable employment. Barring unusual circumstances, a request that a furloughed employee return to his or her job very likely constitutes an offer of suitable employment that the employee must accept.

While eligibility for PUA does not turn on whether an individual is actively seeking work, it does require that the individual be unemployed, partially employed, or unable or unavailable to work due to certain circumstances that are a direct result of COVID-19 or the COVID-19 public health emergency. In the situation outlined here, an employee who had been furloughed because his or her employer has closed the place of employment would potentially be eligible for PUA while the employer remained closed, assuming the closure was a direct result of the COVID-19 public health emergency and other qualifying conditions are satisfied. However, as soon as the business reopens and the employee is recalled for work, as in the example above, eligibility for PUA would cease unless the individual could identify some other qualifying circumstance outlined in the CARES Act.

One of my workers quit because he said he would prefer to receive the unemployment compensation benefits under the CARES Act. Is he eligible for unemployment? If not, what can I do?

No, typically that employee would not be eligible for regular unemployment compensation or PUA. Eligibility for regular unemployment compensation varies by state but generally does not include those who voluntarily leave employment. Similarly, to receive PUA, an individual must be ineligible for regular unemployment compensation or extended benefits under state or federal law, or pandemic emergency unemployment compensation, and satisfy one of the eligibility criteria enumerated in the CARES Act, as explained in Unemployment Insurance Program Letter 16-20. There are multiple qualifying circumstances related to COVID-19 that can make an individual eligible for PUA, including if the individual quits his or her job as a direct result of COVID-19. Quitting to access unemployment benefits is not one of them. Individuals who quit their jobs to access higher benefits and are untruthful in their UI application about their reason for quitting, will be considered to have committed fraud.

If desired, employers can contest unemployment insurance claims through their state unemployment insurance agency’s process.

(https://www.dol.gov/coronavirus/unemployment-insurance#faqs)

New York State Shared Work Program:

Shared Work can be used as an option to avoid layoffs and retain the skill sets of a valuable workforce.  The specifics regarding Shared Work are found here and a quick review follows.  As you will see in the hyperlink, also included are related videos, in addition to management and employee testimonials.

  • Flexibility – the employer determines which employees (Shared Work claimants) will be on the plan and how much their hours will be reduced (between 20 and 60 percent).  If the needs of the business change, the plan can be amended.
  • Employee wages and benefits remain intact.
  • Employees included on a plan can be full-time, part-time, temporary, or seasonal.
  • A plan can include as few as two employees.
  • A Shared Work plan can be filed online.  This can be done even after a New York State WARN is submitted.  This option assists the business to meet contracted service fulfillment in the event that the closure date is ultimately extended.
  1. The Shared Work Program FACT Sheet: https://labor.ny.gov/formsdocs/ui/SW1.pdf
  2. How to File for Unemployment Insurance: https://www.labor.ny.gov/formsdocs/factsheets/pdfs/P800.pdf
  3. Rapid Response for Businesses: https://www.labor.ny.gov/formsdocs/factsheets/pdfs/p481BUS.pdf
  4. Rapid Response for Customers: https://labor.ny.gov/formsdocs/factsheets/pdfs/p481WKR.pdf
  5. Business Services: https://labor.ny.gov/formsdocs/factsheets/pdfs/p469.pdf

WARN Act Information:

WARN

False Unemployment Claims & Fighting Unemployment:

  1. Document all conversations with employees in writing and send certified letters. Ensure you have any text messages, phone records and witnesses that listened to the employer offering a return to work option to the employee.
  2. Be proactive in your responses and information submission to the Unemployment Department.
  3. Spend the time needed to prepare for the hearing or dispute the claim.
  4. Offer a Shared Work Option in which employees can take time off during the week and phase back into full-time. This is not the best approach, but it might be a collaborative process to consider.

Fighting unemployment claims is never an easy process to go through.  It can be time consuming and either side can appeal the ruling.  Remember your time is worth money as well, when considering fight these claims.  However, we should not allow unemployment abuse or false unemployment claims. If there is work, hold employees accountable to return to work.  I am happy to offer any guidance related to a phase in process or disputing an unemployment claim for any organization.

Additional Links:

3 Changes to I-9 Regulations & Policy Due to COVID-19

 

3 Changes to I-9 Regulations & Policy Due to COVID-19

As we did see in April 2020, The Department of Homeland Security (DHS) issued temporary changes to the I-9 verification process for virtual verification, the DHS recently issued a temporary policy to allow employers to accept expired List B documents when completing the Form I-9 beginning May 1.

This updated policy is intended to account for the fact that many people are unable to renew their driver’s licenses or state ID cards at this time due to stay-at-home orders. While some states have extended the expiration of drivers’ licenses and state identification cards, which are common List B documents, others have not. The temporary policy addresses both situations.

New York State DMV Information

In response to the global emergency, Governor Cuomo issued Executive Order No. 202.8: Continuing Temporary Suspension and Modification of Laws Relating to the Disaster Emergency. In accordance with this Order, DMV field offices, road test sites, and Traffic Violations Bureaus are closed, and certain DMV services are temporarily unavailable. Many expiration dates have been extended. Please see below for more information on impacted services.

Pennsylvania Information

Department of Homeland Security has postponed the enforcement date for REAL ID from October 1, 2020, to October 1, 2021, in response to COVID-19 and the national emergency declaration. PennDOT made the decision to pause REAL ID issuance in the Commonwealth out of an abundance of caution and in the interest of public health. All Driver License Centers and Photo License Centers in Pennsylvania will be closed until further notice.

Temporary Extension for Expired List B Documents That Have Not Been Extended
List B documents that expire on or after March 1, 2020 and have not been extended by the state may be treated the same as if the employee presented a valid receipt for an acceptable document for Form I-9 purposes.

If an employee presents their driver’s license that expired on or after March 1 and it was not extended by the state, employers should:

· Record the documentation information in Section 2 under List B, as applicable; and

· Enter the word “COVID-19” in the Additional Information field.

When the DHS ends this temporary policy, employers must require the employee to provide a valid unexpired document within 90 days. (The replacement for the expired document is preferred, but employees may choose to present a different document or documents to satisfy the I-9 requirements.) At that time, in the Section 2 Additional Information field, employers must:

· Record the number and other required document information from the actual document presented; and

· Initial and date the change.

Procedure for List B Documents That Have Been Extended
If the employee’s List B identity document expired on or after March 1, 2020, and the issuing authority has extended the document expiration date because of COVID-19, the document is acceptable as a List B document for Form I-9 (not as a receipt) during the extension timeframe specified by the issuing authority. In that case, the employer must:

· Enter the document’s expiration date in Section 2; and

· Enter “COVID-19 EXT” in the Additional Information field.

Employers may also attach a copy of a webpage or other notice indicating that the issuing authority has extended the documents. Employers can confirm that their state has auto-extended the expiration date of state IDs and driver’s licenses by checking the state Motor Vehicle Administration or Department of Motor Vehicles website.

The employee is not required to present a valid unexpired List B document later.

E-Verify
Employers participating in E-Verify should use the employee’s expired List B document number from Section 2 of the Form I-9 to create an E-Verify case as usual within three days of the date of hire. Even if a state has automatically extended the employee’s driver’s license because of COVID-19, employers should enter the expiration date as printed on the employee’s document when creating the E-Verify case.

Reminders
Employers are required to complete an employee’s Form I-9 within three days of their first day of work. The HR Support Center has various resources regarding I-9 requirements, including the revised Form I-9 (dated 10/21/19), which became mandatory on May 1.

The DHS has temporarily suspended the physical presence requirement for fully remote workplaces. Additional information is available in the HR Support Center by searching for “In-Person I-9.”

Additional Link What’s New USCIS

Ensure your organization is following all laws and regulations related to I-9 and E-Verify verification processes.  More than likely we will see additional changes and easing of in-person verification of documentation during the pandemic.  Auditing these records is necessary to ensure legal compliance.  I’m happy to work with any organization in auditing I-9’s or offering guidance on how to correct mistakes.

EEOC DELAYS EEO DATA COLLECTIONS DUE TO COVID-19 PUBLIC HEALTH EMERGENCY

“WASHINGTON — The U.S. Equal Employment Opportunity Commission (EEOC) will delay the anticipated opening of the 2019 EEO-1 Component 1 data collection and the 2020 EEO-3 and EEO-5 data collections because of the Coronavirus Disease 2019 (COVID-19) public health emergency, the agency announced today in a Federal Register notice.

The EEO (equal employment opportunity) surveys collect data from employers in different sectors of the workforce. The EEOC was planning to open the following EEO surveys in 2020: the 2019 EEO-1 Component 1 (Employer Information Report); the 2020 EEO-3 (Local Report); and the 2020 EEO-5 (Elementary-Secondary Staff Information Report).

The EEOC recognizes the impact that the current public health emergency is having on workplaces across America and the challenges that both employers and employees alike are now facing. Filers of the EEO-1, EEO-3 and EEO-5, which include private sector employers, local referral unions, and public elementary and secondary school districts, are dealing with unique and urgent issues. Delaying the collections until 2021 will ensure that EEO filers are better positioned to provide accurate, valid and reliable data in a timely manner.

EEO-1, EEO-3 and EEO-5 filers should begin preparing to submit data in 2021. Pending approval from the Office of Management and Budget under the Paperwork Reduction Act (PRA) the EEOC would expect to begin collecting the 2019 and 2020 EEO-1 Component 1 in March 2021 and will notify filers of the precise date the surveys will open as soon as it is available. The EEOC would expect to begin collecting the 2020 EEO-3 and the 2020 EEO-5 in January 2021 and will notify filers of the precise date the surveys will open as soon as it is available.

In addition to updates to the agency website, the EEOC will be reaching out directly to EEO-1, 3, and 5 filers regarding the delayed opening of the surveys.” (EEOC Email)

Nevada Annual Daily Overtime Bulletin

Updated to reflect an increase to the hourly daily overtime wage rates for employees with and without qualifying health benefits effective July 1, 2020. The daily overtime wage will increase to $12.00 per hour for employees offered qualifying health benefits. The daily overtime wage will increase to $13.50 for those employees not offered qualifying health benefits. This posting appears on the Nevada Combination Poster. This is a mandatory change.

Statutory language regarding this posting: The Nevada Office of the Labor Commissioner, Department of Business and Industry has increased the daily overtime wage from $10.875 per hour to $12.00 per hour for employees offered qualifying health benefits and from $12.375 per hour to $13.50 per hour for employees not offered qualifying health benefits.

Nevada Annual Minimum Wage Bulletin has been updated to reflect the minimum wage effective July 1, 2020. The minimum wage will increase from $7.25 per hour to $8.00 per hour for employees to whom qualifying health benefits have been offered or made available. The minimum wage will increase from $8.25 per hour to $9.00 per hour for all other employees. This posting appears on the Nevada Combination Poster. This is a mandatory change.

Statutory language regarding this posting: The Nevada Office of the Labor Commissioner, Department of Business and Industry has increased the minimum wage from $7.25 per hour to $8.00 per hour for employees to whom qualifying health benefits have been offered or made available. The minimum wage will increase from $8.25 per hour to $9.00 per hour for all other employees.

Additional resources:

Financial Budgeting and Fiscal Responsibility During a Crisis

Budgeting and fiscal responsibility are difficult during the good times, but even more challenging during a crisis. The Coronavirus has impacted millions of people across the world in a variety of ways. Many aspects of life are out of our control, the one thing we can control is our fiscal responsibility and become disciplined on our personal and small business budgets.

Recommendations on Budgeting & Fiscal Responsibility:

1.     Budget, Budget, Budget:  We all have time to review our finances during the continued month of social distancing and remote work. Take the time to review where your money is being spent and how much is being spent per day. It is never a fun process to undertake, but one that is necessary to truly understand.

2.     Making Hard Choices: Where can you make cuts? If your gym has not stopped charging you for the monthly membership, it might be time to cancel the membership for a while. Is there any opportunity to reduce your monthly cellphone bill? Does your organization offer a discount you have never taken advantage of? What about an online defensive driving course to reduce your car insurance payments? Is there opportunity to renegotiate interest rates on car, mortgage, credit cards? Look for creative opportunities to cut costs, when it starts to hurt, cut more. Not a bad time to look for coupons and other discount options.

3.     Food & Grocery Lists: Shop for only the necessities and find ways to reduce costs in the grocery stores. Healthier options are more expensive; however, we should be focusing on physical wellness as well. Look for discount options and only shop once per week if possible. Make a list and stick to only what is on that list.

4.     Student Loans: The federal government has suspended payments and interest accrual on all federally backed student loans through the end of September 2020. Now is the time to check with private lenders to ask about suspended payments during the same time period. Remember one thing, payments are not going away, and they will be due in the future. I recommend paying down as much as possible when no interest is accruing if you can afford to pay.

5.     Retirement & Savings: If you can maintain the match contribution for retirement, I highly encourage anyone to do so. Do not leave free money on the table, if the organization is matching, ensure you maxing out the match. Liquid savings is there for situations such as this. If you do not need to use the savings, do not touch it. If you can make contributions to savings, as little as it might be, continue to save. Look for high interest online accounts, it makes it hard to dip into the savings account, which maintains fiscal discipline.

6.     Ask for Help: Setup time with your financial advisor or retirement planner. Most retirement providers are offering virtual sessions. Look for additional resources, aps, webinars, tools, budget spreadsheets, etc.

Set challenging goals and reward yourself when you do meet one of these goals. Thoroughly understand need versus want during. Do you really need, or do you just want it? Once you embrace this mindset, you can make significant changes in your financial health. Financial discipline is something I have practiced for many years. Embrace the challenge and evolve your thinking about finances. Look for opportunities to reduce waste and change to a lean approach to budgeting, both personally and professionally.

Federal and State Labor Poster Changes 2020

Updated Optional New York State COVID-19 Postings for Paid Sick Leave

New York State COVID-19 Paid Sick Leave Employers (Optional Poster)

New York State COVID-19 Paid Sick Leave Employees (Optional Poster)

Federal and State Labor Poster Changes 2020

Federal Contractor Posters:

  • Are displaying the 2020 Worker Rights Under Executive Order 13658 (federal contractor minimum wage) poster, if their contract indicates that they are covered by the executive order.
  • Are also displaying the most recent version of the Employee Rights under the National Labor Relations Act poster. This posting was updated in May with contact information for hearing impaired callers.

A number of new laws with posting requirements took effect. These include laws and posters relating to:

  • Servicemember Rights (Illinois)
  • Paid Sick Leave (Michigan)
  • Paid Family and Medical Leave (Massachusetts)
  • Notice of Employee’s Sickness or Injury (Nevada)
  • Paid Family Leave (Washington)
  • Workplace Accommodation (Oregon)

These new laws with posting requirements show that having a physical posting on the wall still carries clout as a way to make employees aware of their rights.  Reminder, the combined poster does not always contain the required posting information.  Confirm with your poster provider on new posters and posting requirements.  Information can also be downloaded on state websites or provided by an insurance broker or payroll company.

Additional Changes Across the Country:

Discrimination: New employee protections brought mandatory changes to two states.

  • In California, laws prohibiting discrimination based on hairstyle and extending the window for filing a complaint brought a mandatory change to the Discrimination & Harassment posting. The Transgender Rights posting was also updated with information on the new filing deadline.
  • In New York, a number of new laws are reflected on the state’s revised discrimination posting released in December. These include laws prohibiting discrimination against individuals based on religious garb, facial hair, reproductive choices, or domestic violence. Protections now cover domestic workers and independent contractors.

Pregnancy Accommodation: In Oregon, a law requiring employers to provide accommodations for pregnant employees has brought a new Workplace Accommodations posting requirement to the state.

Paid Family Leave: In Washington state and the District of Columbia, paid family leave laws have a posting requirement. In Washington, it took effect on January 1, and in the District of Columbia, it’s effective on February 1.

Potential Federal & State Future Changes:

Federal FLSA — New DOL enforcement authority for tipped wage violations has been proposed and could bring a mandatory posting change.

State

  • Colorado — Minimum Wage
  • Connecticut — Minimum Wage
  • Louisiana — Earned Income Credit
  • Virginia — Earned Income Credit Local
  • New Mexico: Santa Fe Minimum Wage
  • Pennsylvania: Philadelphia Fair Workweek (retail, hospitality, and food service employers)

poster

*(JJ Keller & Associates)

We can see how quickly posting requirements evolve across the country.  During audits I do find mistakes with most organizations.  It is imperative we have accurate and up-to-date posting requirements throughout the organization.  I am happy to assist any organization that as questions regarding posting requirements.

Recent New York State Posters Released:

· Workers’ Compensation Disability Benefits Wage Information
· Human Rights Law
· Workers’ Compensation Statement of Rights
· Workers’ Compensation Disability of Rights

New York State Labor Poster Website

State of Pennsylvania Labor Poster Website

Federal Labor Poster Website

OSHA Posting

Injury & Illness Recordkeeping Forms – 300, 300A, 301

2020 Labor Poster Fines:

  • The maximum penalty for violating the Occupational Safety and Health Administration (OSHA) posting requirement is $13,494.
  • An employer who violates any provision of the federal Employee Polygraph Protection Act of 1988, including the posting requirement, faces a fine of up to $21,410.
  • The penalty for failing to display the Equal Employment Opportunity is the Law posting (required for employers with 15 or more workers) increased to $559 (anticipated to increase in April)
  • Employers with 50 or more workers are required to display the Family and Medical Leave Act (FMLA) notice, and the penalty for willful refusal to display it is $176.
  • State posting requirements can also carry penalties. For example, failure to display the Cal/OSHA safety and health protection poster could bring a $1,000 fine.

“At the federal level, combined fines for the six mandatory postings (five include businesses with fewer than 50 employees) could add up to more than $35,000 per location. Additionally, state and local government posting fines are typically between $100 and $1,000 per violation. (Each posting carries its own fines because every agency and posting law is different.)” Poster Guard

Virginia Earned Income Tax Credit Poster

Updated to reflect general information on who qualifies for EITC. The Virginia Department of Social Services updated the EITC poster with general information on qualifications for EITC rather than previous versions which included income limits. This posting appears on the Virginia Combination Poster. This is a mandatory change.

Louisiana Earned Income Credit Poster

Updated to reflect the 2020 income limits for earned income tax credit. This posting appears on the Louisiana Combination Poster. This is a mandatory change.

Illinois ISERRA poster

Updated to clarify the rights, benefits and obligations under ISERRA. The poster clarifies that employers maintain the right to provide greater benefits at their discretion. This posting appears on the Illinois Combination Poster. This is a mandatory change.

Utah OSHA Poster

Updated to reflect that employees now have the right to request and participate in a UOSH inspection when there are unsafe or unhealthful conditions in the workplace. Employers and employees may also file a complaint about the state program administration with the Occupational Safety and Health Administration. This posting appears on the Utah Combination Poster. This is a mandatory change.

New York City’s Pre-Employment Marijuana Testing Legislation

In April 2019, New York City passed local laws prohibiting employers from conducting pre-employment drug testing for marijuana.  The law is no scheduled to go into effect on May 10, 2020.  This legislation will impact the majority of employers in New York City and prohibits employers from requiring “a prospective employee to submit to testing for the presence of THC or marijuana in such prospective employee’s system as a condition of employment.”

Local Law Exclusions:

  1. Law enforcement
  2. Any position requiring a commercial driver’s license
  3. Any position requiring the supervision or care of children, medical patients, or vulnerable individuals
  4. Any position with the potential to significantly impact the health or safety of employees or the public as identified by the City of New York
  5. Certain positions requiring compliance with §3321 of the NYC Building Code or §220-h of the NYS Labor Law

Other Employer Carveouts:

  1. US Department of Transportation standards or similar requirements imposed by NYS or NYC law
  2. Any contract between an employer or the federal government that requires drug testing
  3. Any federal grant an employer may have that requires drug testing
  4. Any state or federal law, regulation, or order that requires drug testing of prospective employees for security or safety purposes
  5. Any applicant whose prospective employer is a party to a valid collective bargaining agreement that specifically requires the testing of an applicant for THC

Why should we watch these changes in NYC, if we only have employees throughout the “Remainder of New York State?”  As NYC goes, so goes the rest of the state.  New York State Assembly has introduced similar legislation, if passed at the state level, the same prohibitions would apply to organizations statewide.  The state of Nevada is also introducing similar legislation statewide.  More than likely we will see these changes throughout the state.  Be prepared and start reviewing all information sooner than later.

Considerations for Potential Changes:

  • Update any policies, procedures and handbook language
  • Employment Application Updates
  • Offer Letter Templates
  • Training for Leadership
  • Review Exempt Status (your organization might be able to test)
  • Will this impact workers compensation or other insurance rates if this testing is not performed?
  • Communication with occupational medicine providers

All organizations should begin planning for this change at the state level.  As I wrote last week, as NYC goes, the domino falls on legislation throughout the remainder of the state.  If you are unclear on the laws and regulations, seek guidance, this is a complex evolving area of legislation.

NY State Employee Handbook Considerations:

Crime Victim Leave Policy Update

Employees who are victims of a crime, a victim’s representative, or who have been subpoenaed as a witness in a criminal proceeding will be granted time off to appear as a witness, consult with the district attorney, or exercise their rights under the law. Employees should provide at least one days’ notice and more when possible. Employees may use any available paid time off. If paid leave is not available, non-exempt employees will be granted unpaid time off; exempt employees will be paid in accordance with the Fair Labor Standards Act.

What You Should Know About the ADA, the Rehabilitation Act, and COVID-19

  • “The EEOC enforces workplace anti-discrimination laws including the Americans with Disabilities Act (ADA) and the Rehabilitation Act, including the requirement for reasonable accommodation and rules about medical examinations and inquiries.
  • The ADA and Rehabilitation Act rules continue to apply, but they do not interfere with or prevent employers from following the guidelines and suggestions made by the CDC or state/local public health authorities about steps employers should take regarding COVID-19. Employers should remember that guidance from public health authorities is likely to change as the COVID-19 pandemic evolves. Therefore, employers should continue to follow the most current information on maintaining workplace safety.
  • The EEOC has provided guidance (a publication entitled Pandemic Preparedness in the Workplace and the Americans With Disabilities Act), consistent with these workplace protections and rules, that can help employers implement strategies to navigate the impact of COVID-19 in the workplace. This pandemic publication, which was written during the prior H1N1 outbreak, is still relevant today and identifies established ADA and Rehabilitation Act principles to answer questions frequently asked about the workplace during a pandemic.
  • The World Health Organization (WHO) has declared COVID-19 to be an international pandemic. The EEOC pandemic publication includes a separate section that answers common employer questions about what to do after a pandemic has been declared. Applying these principles to the COVID-19 pandemic, the following may be useful:
    • How much information may an employer request from an employee who calls in sick, in order to protect the rest of its workforce during the COVID-19 pandemic?
      • During a pandemic, ADA-covered employers may ask such employees if they are experiencing symptoms of the pandemic virus. For COVID-19, these include symptoms such as fever, chills, cough, shortness of breath, or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.
    • When may an ADA-covered employer take the body temperature of employees during the COVID-19 pandemic?
      • Generally, measuring an employee’s body temperature is a medical examination. Because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees’ body temperature. However, employers should be aware that some people with COVID-19 do not have a fever.
    • Does the ADA allow employers to require employees to stay home if they have symptoms of the COVID-19?
      • Yes. The CDC states that employees who become ill with symptoms of COVID-19 should leave the workplace. The ADA does not interfere with employers following this advice.
    • When employees return to work, does the ADA allow employers to require doctors’ notes certifying their fitness for duty? 
      • Yes. Such inquiries are permitted under the ADA either because they would not be disability-related or, if the pandemic influenza were truly severe, they would be justified under the ADA standards for disability-related inquiries of employees. As a practical matter, however, doctors and other health care professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation. Therefore, new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have the pandemic virus.
    • If an employer is hiring, may it screen applicants for symptoms of COVID-19?
      • Yes. An employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as it does so for all entering employees in the same type of job.  This ADA rule applies whether or not the applicant has a disability.
    • May an employer take an applicant’s temperature as part of a post-offer, pre-employment medical exam?
      • Yes.  Any medical exams are permitted after an employer has made a conditional offer of employment.  However, employers should be aware that some people with COVID-19 do not have a fever.
    • May an employer delay the start date of an applicant who has COVID-19 or symptoms associated with it? 
      • Yes.  According to current CDC guidance, an individual who has COVID-19 or symptoms associated with it should not be in the workplace.
    • May an employer withdraw a job offer when it needs the applicant to start immediately but the individual has COVID-19 or symptoms of it?
      • Based on current CDC guidance, this individual cannot safely enter the workplace, and therefore the employer may withdraw the job offer.” (EEOC)

Responding to the Coronavirus

We haven’t seen enough written, presented or recorded regarding the Coronavirus.  I guess its my turn to write an article about questions and response considerations, as we see a domino impact across the world.  At this point we should be reviewing business continuity and contingency plans.  We should also be reviewing options for employees and addressing any issues and fears we have throughout the organization.

Questions to Consider When Responding:

1.     Have we communicated a policy and procedure to the organization to mitigate the spread of infectious diseases?  This should include volunteers, vendors, customers, the general public, etc.

2.     Do we have the cleaning supplies and disinfectants available to ensure a clean workplace?

3.     Do we have a policy or procedure in place regarding FMLA, Paid Family Leave, or DBL?

4.     What about telecommuting and remote work?  Exempt versus nonexempt?  What positions can work remotely?  Do we reimburse for expenses?

5.     Workers compensation considerations related to remote work.  Working in New York State but living in Pennsylvania.  An area I would encourage any to review with the comp provider.

6.     A restricted travel policy.

7.     Layoff procedure.

8.     Reduced workweek procedure.

9.     Salary or hourly rate continuation.

10.  Benefit continuation.

These are just a few questions to consider as leaders when addressing the current Coronavirus situation.  We have an obligation to not only answer these questions but to continuously close the loop on communication both in and outside of our organizations.  Not having an answer and having that conversation is better than just simply ignoring the questions.  Treat people how you want to be treated.  Assess and reassess areas of strength and recognize areas of improvement.  This situation will test the fabric of society and many of our organizational response systems.  I’m happy to work with any organization on communication, policy and other legal considerations.