New Guidance Approves Wellness Program Incentives for COVID-19 Vaccination

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October 4, 2021

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The Departments of Labor (DOL), Health and Human Services (HHS), and the Treasury jointly issued FAQs on how employers can offer incentives for COVID-19 vaccination, or conversely, health plan charges for failure to get vaccinated.

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New COVID-19 Guidance for Federal Contractors and Subcontractors

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Executive Agency Federal Contractors and Subcontractors

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September 24, 2021

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President Biden recently issued the Path Out of the Pandemic Action Plan, which included vaccination requirements for federal contractors and subcontractors pursuant to Executive Order 14042. The Safer Federal Workforce Task Force recently released Guidance for Federal Contractors and Subcontractors implementing those requirements.

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DOL Issues Final Tips Rule for Civil Money Penalties

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All Employers with Tipped Employees

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November 23, 2021

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The U.S. Department of Labor (DOL) recently published a Tips Rule addressing civil money penalties (CMPs) for violations (2021 tips rule). In 2020, the DOL published a tips rule that was later partially delayed in 2021 (2020 tips rule). The three delayed portions are related to the assessment of CMPs under the Fair Labor Standards Act (FLSA) and the application of the FLSA tip credit to tipped employees who perform tipped and non-tipped duties (dual jobs). The remainder of the 2020 tip rule—consisting of those portions addressing the keeping of tips and tip pooling, recordkeeping, and minor technical changes made to update the regulations to reflect the new statutory language and citations added by the CAA amendments—became effective on April 30, 2021.

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Fifth Circuit: Maintaining FLSA Overtime Exemption with a Daily Rate of Pay

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September 9, 2021

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In Hewitt v. Helix Energy Sols. Grp., Inc., the Fifth Circuit Court of Appeal reviewed when a highly compensated employee may be paid a daily rate of pay and still be exempt from overtime under the Fair Labor Standards Act (FLSA). Specifically, even though earnings may be computed on a daily basis, the employee’s pay must also be guaranteed to be at least the minimum weekly required amount paid on a salary basis, regardless of the number of hours, days, or shifts worked, and there must be a reasonable relationship between the guaranteed amount and the amount actually earned. (29 C.F.R. § 541.604(b).)

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California: October is here! New Laws are Coming!

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October in California means preparing for new laws in 2022. The Governor recently signed a new slate of bills into law. The following is a summary of key rules employers should be aware of.

 

OCT 5, 2021 | AB 654 – COVID-19 Safety Rule Update! AB 654 revises and clarifies employers’ COVID-19 workplace exposure notice and reporting requirements under last year’s AB 685.

  • Employer notice requirements for COVID-19-related benefits must be sent to employees who were “on the premises at the same worksite as the qualifying individual within the infectious period.”
  • Employer notice requirements for employees, employers of subcontracted employees, and exclusive representatives (if any) who were “on the premises at the same worksite as the qualifying individual within the infectious period” must include the employer’s cleaning and disinfection plan consistent with CDC guidelines and the employer’s COVID-19 prevention program per the Cal/OSHA COVID-19 Emergency Temporary Standard.
  • Employers must provide notice of COVID-19 outbreaks to local public health agencies “within 48 hours or one business day, whichever is later.”
  • Definitions of “close contact,” “high risk exposure period,” and “worksite” were changed to align with Cal/OSHA’s definitions.
  • COVID-19 notice and reporting requirements were removed for certain healthcare and childcare employers since they are already subject to other requirements specific to their industries.

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California: Joint Employer Liability Revisited

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September 10, 2021

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In Medina v. Equilon Enterprises, LLC, the California Court of Appeal applied the Martinez test, for wage and hour purposes, to determine joint employer status (not the Dynamex test which is specific to independent contractors). The Martinez test looks to the applicable wage order, which there consisted of three alternative standards: (1) to exercise control over wages, hours, or working conditions, directly or indirectly, or through an agent or any other person; (2) to “suffer or permit to work”; or (3) to engage.  “’A proprietor who knows that persons are working in his or her business without having been formally hired, or while being paid less than the minimum wage, clearly suffers or permits that work by failing to prevent it, while having the power to do so.’”

There, the plaintiff was employed by an independent operator of a Shell-owned gas station, and he made a claim for unpaid wages against both his employer and Shell following termination. Because of “Shell’s near-complete control over the employer’s finances, day-to-day operations, facilities, and practices,” “Shell could have stopped plaintiff from working in their stations through a variety of means.” For example, Shell employees reportedly told the plaintiff they had the power to fire him or to have him fired, Shell had contractually-mandated control over the employer’s bank accounts, Shell was able to add or remove individual stations to and from operator clusters at any time and for any reason, and Shell unilaterally set reimbursements for labor costs while mandating hours of operation for their stations. Shell’s indirect control over the employer operator had the “practical effect of controlling plaintiff’s wages.”

Ultimately, the court stated that the facts showed that Shell both indirectly controlled plaintiff’s wages and working conditions and suffered or permitted plaintiff to work at Shell’s stations, either of which was enough to make Shell plaintiff’s joint employer.

Action Items

  1. Review potential joint employer exposure with legal counsel.
  2. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

 


Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2021 ManagEase

Connecticut: 2021 Legislative Updates

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As Indicated

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Salary Wage Range Disclosure. Effective October 1, 2021, employers are required to provide to applicants the wage range for a position upon request or prior to/at the time an offer is made. Additionally, employers must provide wage ranges for an employee’s position at time of hire, when the position changes, or upon the employee’s first request. The FAQ was recently updated as well. Read more

Illinois: Different Statute of Limitations for Certain Biometric Privacy Act Provisions

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All Employers with IL Employees

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September 17, 2021

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In Tim v. Black Horse Motor Carriers, Inc., the Illinois First District Appellate Court stated that different statutes of limitation apply to different provisions of the statewide Biometric Information Privacy Act (BIPA).

Previously, the statewide catch-all five-year statute of limitations was applied to all provisions of BIPA.  With Tim, the court stated that the five-year deadline applies to sections 15(a), 15(b), and 15(e) of BIPA.  These sections require private employers to obtain consent before collection of biometric data and to develop a written policy and data retention schedule.

On the other hand, the court indicated that there is only a one-year statute of limitations for privacy claims involving publication under sections 15(c) and 15(d), which prohibit businesses in possession of biometric data from selling, trading, or disclosing such data to third parties without obtaining the individual’s prior consent.

Action Items

  1. Review BIPA compliance with legal counsel.
  2. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2021 ManagEase

New York: Model HERO Act Updates Face Covering and Social Distancing Requirements

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All Employers with NY Employees

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September 23, 2021

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Earlier this year, New York state issued the NY HERO Act, which implemented new COVID-19 related safety requirements.  On September 23, 2021, the state Department of Labor further updated the requirements for face coverings and social distancing as provided in its model plan.

The previous NY HERO Act model plan required all employees to wear face coverings and did not distinguish between vaccinated and unvaccinated employees.  In the updated model plan, face coverings are recommended but no longer required for employees in workplaces where all individuals on the premises are vaccinated.  It also removed references to face coverings in the paragraph regarding social distancing.

Additionally, the model plan removed specific references to when social distancing must be observed. Instead, it more generally refers to social distancing guidance as advised by the State Department of Health or the Centers for Disease Control and Prevention. However, the model plan must still include the health and safety controls employers will implement when distancing cannot be observed. Notably, COVID-19’s official designation as an “airborne infectious disease” under the HERO Act has been extended through October 31, 2021.

Action Items

  1. Update safety plans accordingly.
  2. Train employees on the topics set forth in the model NY HERO Act plan.
  3. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2021 ManagEase

October Updates

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Varies

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Varies

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Florida: New Hire and Contractor Reporting Expanded

As of October 1, 2021, employers of all sizes are required to report new hires and rehires within 20 days of employment to the State Directory of New Hires, which provides information to the Florida Child Support Program. Previously, only employers of 250 or more employees were subject to reporting. SB 1532 removes the headcount requirement, and additionally requires employers to report independent contractors who are or will be paid more than $600 in a calendar year.

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