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May Updates

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This Short List addresses the following topics:
  1. EEO-1 Deadline Delayed to June 1, 2018
  2. IRS Issues Guidance on Family and Medical Leave Tax Credit
  3. Veteran Hiring Benchmark Lowered for 2018
  4. IRS Rolls Back 2018 HSA Contribution Limit Change
  5. U.S. DOL Launches Payroll Audit Pilot Program
  6. U.S. Supreme Court Settles FLSA Status of Car Dealership Service Advisors
  7. California: Staffing Agencies Need Not Police Meal Periods
  8. Emeryville, California: Minimum Wage Update
  9. Michigan: Local Governments Prohibited from Limiting Employer Interview Inquiries
  10. Nevada: Minimum Wage Will Not Change in 2018
  11. Pennsylvania: State Supreme Court Says “Actual Damages” Include Non-Economic Damages Under Whistleblower Law
  12. West Virginia: Employers May Not Prohibit Firearm Storage in Personal Vehicles

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U.S. DOL Announces New Payroll Audit Pilot Program

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On March 6, 2018, the U.S. Department of Labor (“DOL”) announced a new pilot program: the Payroll Audit Independent Determination (“PAID”) program.  The PAID program’s primary objectives are to expedite resolution of wage and hour claims, improve employer FLSA compliance, and facilitate payment of back wages owed to employees. The PAID program will be administered by the DOL’s Wage and Hour Division (“WHD”) and will be implemented for a trial period of six months.  At the end of the trial period, the WHD will evaluate the effectiveness of the program and determine if modifications are needed. The WHD has not yet announced when the program will start.

All FLSA-covered employers may voluntarily participate in the program, except those who are currently under investigation or engaged in litigation, acting in bad faith, or have committed repeat violations.  The PAID program is intended to help employers self-identify and correct non-compliant federal pay practices, such as misclassification issues, off-the-clock work, and failure to pay minimum wage or overtime. The PAID program may not resolve wage and hour violations of state law. If compensation issues are identified and employees voluntarily agree to resolve and release the specific wage and hour claims, employers must pay 100% of back pay owed, and may avoid liquidated damages, civil monetary damages, attorney’s fees, and other costs associated with litigation.

Employers interested in the PAID program can learn about how the program works and sign up for e-mail updates by visiting the WHD’s webpage.

Action Items

  1. Visit the DOL’s wage page on the PAID program here.
  2. Consult with legal counsel on how the PAID program may affect wage and hour violations.

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.

© 2018 ManagEase

Fourth Circuit: FLSA Lodging Credit Still Applies to Hours-Worked Agreements

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January 25, 2018

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The FLSA requires employees to be paid for all hours worked, and permits employers and employees to agree on the number of hours worked when the employee lives on the employer’s premises, provided that the FLSA’s wage and hour requirements are followed (e.g., minimum wage, overtime paid, etc.). In Balbed v. Eden Park Guest House, LLC, the Fourth Circuit Court of Appeal stated that even when an employer and employee enter into a reasonable agreement of hours worked, the FLSA’s requirements for calculating the lodging credit are still enforceable.

California: State Supreme Court Sets Formula to Calculate Overtime on Flat, Non-Production Bonuses

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March 5, 2018

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In Alvarado v. Dart Container Corp., the California Supreme Court stated that when calculating the per-hour value of a flat, non-production bonus for purposes of overtime, the total compensation must be divided by the number of non-overtime hours the employee actually worked during the pay period.

U.S. DOL Adopts “Primary Beneficiary” Test in Determining Status of Unpaid Interns

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January 5, 2018

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On January 5, 2018, the U.S. Department of Labor (“DOL”) issued Field Assistance Bulletin No. 2018-2, adopting the “Primary Beneficiary” test used to determine whether or not unpaid interns should actually be classified as employees under the Fair Labor Standards Act (“FLSA”). Several federal circuit courts have used the primary beneficiary test to determine whether an unpaid intern is in fact an employee, and rejected the DOL’s prior six-factor test as being too rigid.

New Jersey: New Breastfeeding Anti-Discrimination Measures

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January 8, 2018

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Governor Chris Christie recently signed Senate Bill S-2709, amending the New Jersey Law Against Discrimination to include breastfeeding and expressing milk as a protected class.  This amendment implements anti-discrimination measures for breastfeeding employees and requires employers to provide reasonable accommodations to breastfeeding employees.

February Updates

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This Short List addresses the following topics:
  1. REMINDER: Post OSHA 300A Summary
  2. Civil Money Penalties for 2018 Increased
  3. Second Circuit: FLSA Claims are Subject to Arbitration
  4. California: Attorney General Emphasizes Intent to Prosecute Employers Who Help Immigration Sweeps
  5. Connecticut: Pregnancy Discrimination and Accommodation Posting Required
  6. Massachusetts:  Supreme Judicial Court Limits Wage Act Liability
  7. New York City, NY: Fair Workweek Deductions Law Put on Ice—For Now

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Revised EEO-1 Pay Data Reporting Requirement Blocked Indefinitely

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All Employers of 100+ Employees

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August 29, 2017

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Last year, the U.S. Equal Employment Opportunity Commission (“EEOC”) announced that it would revise the EEO-1 form large employers must use to report demographic data about the workforce.  These changes manifested in the revision of “Component 2” of the form, which would have required employers to report employee FLSA classification and pay data based upon W-2s.  This information was originally intended to identify discriminatory pay practices.

On August 29, 2017, the Office of Information and Regulatory Affairs (“OIRA”) announced that it was suspending the Component 2 of the EEO-1 report indefinitely. For the time being, the Acting Chair of the EEOC announced that employers should use the EEO-1 survey form used in previous years to meet the filing deadline of March 31, 2018.

Action Items

  1. Be prepared to record EEO-1 related data on the previous years’ EEO-1 form.
  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.

© 2017 ManagEase, Incorporated.

U.S. DOL Announces Intent to Repeal Rule Restricting an Employer’s Use of Tips Where No Tip Credit is Taken

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July 20, 2017

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On July 20, 2017, the Wage and Hour Division (“WHD”) of the U.S. Department of Labor (“DOL”) announced its intention to repeal a 2011 rule stating that customer tips are always the property of an employee, regardless of whether or not the employer takes a tip credit, and that employers were prohibited from using tip pooling to subsidize the hourly wages of untipped employees. Further, a DOL spokesperson reportedly told Bloomberg BNA that DOL investigators are forbidden from enforcing the 2011 regulation ahead of the proposed rule.  Once the rule is rescinded, employers who do not apply a tip credit against a tipped employees’ wages will be able to keep or distribute gratuities in any way the employer sees fit.

Ninth Circuit: An Employer’s Attorney is Subject to FLSA Anti-Retaliation Rules

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All Employers with AK, AZ, CA, GU, HI, ID, MT, NV, OR and WA Employees

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June 22, 2017

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In Arias v. Raimondo, the U.S. Court of Appeals for the Ninth Circuit stated that the anti-retaliation provisions of the Fair Labor Standards Act (“FLSA”) apply not only to employers, but to “any person,” including an employer’s attorney.