Virginia: Overtime Changes Boomerang Back to Federal Standard

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APPLIES TO

All Employers with VA Employees

EFFECTIVE

July 1, 2022

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In 2021, Virginia enacted the Virginia Overtime Wage Act (VOWA), changing employer overtime requirements in the state. However, overtime rules are about to change back to following the federal Fair Labor Standards Act (FLSA) rules. Specifically, HB 1173 rolls back the VOWA changes and states that employers must comply with FLSA overtime requirements.

 

Notably, historical provisions for allowing employees to bring claims in court and increased damages and penalties will remain in effect. Additionally, the statute of limitations for bringing claims under state law will be three years, rather than the two-year time period under the FLSA. Finally, the “derivative carrier” exemption under the FLSA will not be allowed under state law for subsidiary or affiliates of air carriers. Employers should start planning to adjust payroll processes to realign with federal overtime rules.

 

Action Items

  1. Update payroll processes for overtime compliance.
  2. Have overtime policies updated.
  3. Have appropriate personnel trained on the new requirements.
  4. 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. © 2022 ManagEase

Washington: Paid Family and Medical Leave Act Amended

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All Employers with WA Employees

EFFECTIVE

June 9, 2022

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(888) 378-2456

Washington recently amended its Paid Family and Medical Leave Act (PFML) to include new reasons for eligible leave, to require Washington’s Employment Security Department (ESD) to publish a current list of all employers that have an ESD-approved voluntary plan, and to end a collective bargaining agreement exception to the law.

SB 5649 added the first six weeks of postnatal leave for an incapacitated employee and bereavement to the list of reasons a covered employee can take eligible leave. The first six weeks of postnatal leave for an incapacitated employee is not presumptively considered medical leave. However, the employee may choose to substitute paid family leave. Employees taking leave for this reason cannot be required to submit a certification of a serious health condition.

Eligible employees may take bereavement leave during the seven calendar days after the death of a qualifying family member. A qualified family member is any family member for whom the employee would have qualified for medical leave for the birth of their child or to bond with their child following their birth or placement.

The bill also ends the collective bargaining agreement exception, effective December 31, 2023. Prior to this amendment, PFML did not apply to an employee covered by a collective bargaining agreement that was in existence on October 19, 2017; however, CBA-covered employees would be covered by the law if the CBA expired or was renegotiated.

Finally, ESD must publish a current list of all employers that have an ESD-approved voluntary plan. The list will be found on the ESD website.

Action Items

  1. Review the bill here.
  2. Have PFML policies updated.
  3. Update leave procedures, as applicable.
  4. Have appropriate personnel trained on the new requirements.
  5. 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. © 2022 ManagEase

Washington: Employers Required to Post Salary Information in Job Postings

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APPLIES TO

All Employers with 15+ Employees Advertising Hiring in WA

EFFECTIVE

January 1, 2023

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(888) 378-2456

In 2023, employers with 15 or more employees will need to include salary and benefits information in all job postings when advertising hiring in Washington. According to SB 5671, external job advertisements will need to include:

  • A wage scale or salary range for each job posting;
  • A description of all benefits and compensation offered in the posting; and
  • A public advertisement of these disclosures.

The law applies to all methods used to attract applicants, including printed announcements, online postings, and jobs posted via recruiters and other third parties.

Notably, internal job postings do not have to comply with these requirements. Instead, internal job postings must continue to comply with 2019 rules that came from the state’s Equal Pay and Opportunities Act. For internal postings, employers must only provide a salary range or wage scale on request.

 

Action Items

  1. Review the bill here.
  2. Have recruiting and hiring processes updated for compliance.
  3. Implement pay scale and salary ranges for all positions.
  4. Confirm with third-party recruiting vendors that they are in compliance.
  5. Conduct an equal pay audit.
  6. 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.

© 2022 ManagEase

May Updates

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APPLIES TO

Varies

EFFECTIVE

Varies

QUESTIONS?

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(888) 378-2456

IMPORTANT! California: Statewide Minimum Wage Increase January 1st

On January 1, 2023, the minimum wage in California will increase to $15.50 for all employers, regardless of size. Specifically, a 2016 minimum wage bill allows for increases following the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W). Employers should prepare to make wage increases at the beginning of the year. Note that the minimum wage increase will also increase the required salary threshold for overtime exempt employees in California, which is set at two times the state minimum wage.

 

REMINDER! California: Next CalSavers Deadline Approaching June 30th

All employers with 5 or more employees must register with CalSavers by June 30, 2022, regardless of whether they offer retirement programs (e.g., 401(k) plan). Employers who do offer retirement programs may register as exempt. Employers with 50 or more employees should have already been registered by June 30, 2021. Employers should visit www.calsavers.com for more information.

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Department of Labor Issues Guidance on Cryptocurrency and ERISA retirement plans

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APPLIES TO

All ERISA retirement plans

EFFECTIVE

March 10, 2022

QUESTIONS?

Contact HR On-Call

(888) 378-2456

The Department of Labor recently released long awaited guidance on the use of cryptocurrency in retirement plans governed by ERISA. The guidance used an expansive definition of cryptocurrency, including crypto-tokens, coins, and assets, along with any derivatives.

 

The guidance spelled out the concerns the DOL has about a plan fiduciary’s allowance of cryptocurrency in a retirement plan. Specifically, the DOL is worried about the high risk of fraud, theft, and loss that currently accompanies cryptocurrency. Additional concerns from the guidance include:

 

  • The SEC’s determination that cryptocurrency investments are highly speculative and volatile.
  • That cryptocurrency is not held in a trust or custodial account like most plan assets.
  • The difficulty in accurately accessing cryptocurrency value.
  • The lack of rules and regulations surrounding cryptocurrency markets.
  • The hurdles plan participants must overcome to make informed decisions.

 

Fiduciaries have the responsibility to evaluate the investments offered to participants and that duty extends to evaluation of cryptocurrency as an investment option in the plan. According to the DOL, including cryptocurrency in the plan could be considered a signal to plan participants that investment experts consider cryptocurrency a prudent investment option. A plan sponsor’s failure to remove irresponsible investments is considered a breach of fiduciary duty.

 

The DOL essentially ended the guidance with a warning to plan sponsors that they plan to “conduct an investigative program aimed at plans that offer participant investments in cryptocurrencies.” Plan sponsors are now on notice that including cryptocurrency in their retirement plans could increase the chances of being audited.

 

Action Items

  1. If considering including cryptocurrency options in retirement benefits, review fiduciary obligations 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.

© 2022 ManagEase

2nd Circuit: Common Law Joint Employer Standard Applies to Title VII

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APPLIES TO

All Employers with CT, NY, and VT Employees

EFFECTIVE

March 7, 2022

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(888) 378-2456

For the first time, in Felder v. United States Tennis Association, the Second Circuit Court of Appeals identified a specific test for determining who is considered a “joint employer” under Title VII of the Civil Rights Act of 1964. The court aligned with other Circuit Courts stating that a joint employer relationship exists when two or more entities, according to common law principles, share significant control of the same employee, such as control over an employee’s hiring, firing, training, promotion, discipline, supervision, including handling of records, insurance, and payroll. Because exercise of control is the guiding indicator, factors indicating a joint-employment relationship may vary depending on the case. However, all aspects of the relationship must be assessed and weighed with no one factor being decisive.

 

There, an African-American security guard was assigned to work at a tennis tournament who refused to issue him security credentials; he alleged discrimination against the tournament association. The court stated that an entity can only be liable under Title VII as a joint employer for rejecting the temporary assignment of a contractor’s employee if the entity would have been the employee’s joint employer had it accepted his assignment. More specifically, an employee must allege that the entity would have exercised significant control over the terms and conditions of his employment.

 

Action Items

  1. Review vendor contracts and joint employer relationships 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.

© 2022 ManagEase

11th Circuit: Mandatory Service Charges Are Not Tips

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All Employers with AL, FL, and GA Employees

EFFECTIVE

March 18, 2022

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(888) 378-2456

In Compere v. Nusret Miami, LLC, the Eleventh Circuit Court of Appeals stated that mandatory service charges included on a customer’s bill do not constitute a “gratuity” or tip under the Fair Labor Standards Act (FLSA) and therefore can be used toward the employer’s minimum wage obligations. Generally, federal law prohibits restaurants from using tips to pay minimum and overtime wages to employees, but establishments may apply non-tip charges toward employee wages.

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San Francisco, CA: New Guidance on San Francisco Paid Sick Leave for COVID-19

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APPLIES TO

All Employers with San Francisco, CA Employees

EFFECTIVE

February 22, 2022

QUESTIONS?

Contact HR On-Call

(888) 378-2456

San Francisco recently provided updated guidance on its Paid Sick Leave Ordinance (PSL). The PSL applies to any employer that has employees who perform work in San Francisco, including part-time and temporary employees. The guidance clarified that PSL is only available to current employees, not individuals who were laid off.

Employees can use time under the PSL for the following reasons:

  • Public health officials or healthcare providers require or recommend an employee isolate or quarantine to prevent the spread of disease.
  • Attending a COVID-19 vaccination appointment or recovering from vaccination side effects.
  • An employee’s business or work location temporarily ceases operations because of a public health or other public official’s recommendation.
  • Providing care for a family member who is attending a COVID-19 vaccination appointment, experiencing side effects from a vaccination, or is under quarantine because of a public health official or healthcare provider’s recommendation.
  • Providing care for a family member whose school, childcare provider, senior care provider, or work temporarily ceases operation in response to a public health or other public official’s recommendation.

The guidance also extended the amount of time an employee may be out on PSL before an employer can request documentation that substantiates the need for time off. Previously, employers had to wait until the employee missed three or more consecutive days of work. The guidance now requires that employers wait until the employee has missed at least five consecutive days and is not under a doctor’s care. The five consecutive days can be full or partial workdays.

Action Items

  1. Have applicable paid sick leave policies updated for compliance.
  2. Have appropriate personnel trained on leave requirements.
  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.

© 2022 ManagEase

Indiana: New Restrictions on Employer Vaccination Mandates

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APPLIES TO

All Employers with IN Employees

EFFECTIVE

March 3, 2022

QUESTIONS?

Contact HR On-Call

(888) 378-2456

Indiana now prohibits all Indiana employers from imposing COVID-19 vaccination mandates unless those mandates include exemptions for medical or religious reasons and natural immunity from prior infection. The law applies to nearly all Indiana based employees, including independent contractors, subcontractors, and interns. However, the law does not apply to employees working in another state. Employers with federal contracts that have vaccination requirements as a condition to receive funds and healthcare facilities required to comply with the federal CMS mandate are also exempt. Finally, professional sports and entertainment venues do not have to comply so long as they provide accommodations that comply with federal law.

 

Employers that grant exemptions can still require employees to submit to COVID-19 testing, but not more than twice per week. The law is silent on whether the employer or employee would have to pay for these tests. Employers should consult applicable state and local laws, as well as collective bargaining agreements, to determine who is legally responsible for payment.

 

Employees may seek a medical exemption by submitting a statement in writing from a licensed physician, physician’s assistant, or advanced practiced medical nurse. The statement must say that the COVID-19 vaccine would be detrimental to the employee’s health or is medically contraindicated. Employees seeking a religious exemption simply need to submit a statement saying they will not be vaccinated because of a sincerely held religious belief. Natural immunity exemptions must be granted if the employee submits the results of an FDA approved lab test taken within the last three months. Employers can require that employees submit new test results every three months thereafter. If desired, employers can waive these requirements and just grant exemptions without employee submissions.

 

Action Items

  1. Review HB 1001 here.
  2. Have vaccination polices updated for compliance where applicable.
  3. Have appropriate employees trained on the new requirements.
  4. 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.

© 2022 ManagEase

Massachusetts: State Independent Contractor Test Applies to Franchises

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APPLIES TO

All MA Franchisor-Franchisee Relationships

EFFECTIVE

March 24, 2022

QUESTIONS?

Contact HR On-Call

(888) 378-2456

In Patel v. 7-Eleven, Inc., the Massachusetts Supreme Judicial Court stated that the state test for determining independent contractor status applies to the relationship between a franchisor and its franchises. Specifically, unless an individual satisfies the statutory ABC test for determining independent contractor status, an individual performing any service for an employer is an employee for purposes of wage laws. Thus, regardless of the FTC Franchise Rule, a franchisee providing services to a franchisor under the terms of a franchise agreement may still be classified as an “employee” of the franchisor under state wage-and-hour law.

 

There, the question was whether owner/operators of 7-11 franchises were employees of the national franchisor under state wage-and-hour law. The court stated, “[t]he FTC Franchise Rule ‘is a pre-sale disclosure rule[,]’” and “[c]ompliance with [its] disclosure requirements does not mandate that a franchisor exercise any particular degree of control over a franchisee.” Moreover, as indicated by the FTC itself, the FTC Franchise Rule does not conflict with state independent contractor rules. The court further acknowledged that this ruling does not “render every franchisee an employee” under state law. Nonetheless, franchises should immediately review their relationship status with legal counsel for compliance.

 

Action Items

  1. Have franchise agreements reviewed by legal counsel.
  2. Evaluate independent contractor status with legal counsel for compliance.
  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.

© 2022 ManagEase