Biden Administration Impact on the Workplace

Just one week into his administration, President Biden has signaled that he will take a fresh look at current issues affecting American workers and workplaces. His recent executive orders and memoranda include the following actions:

  • Halt Final Rules governing tip pools and independent contractors: This Executive memorandum stays pending final rules that have been published but which had not yet taken effect to allow the Biden Administration to review their impact. This also directs that any rules which had been sent to the Federal Register but had not yet been published must be immediately withdrawn for review. This results in a stay of the Independent Contract Final Rule and the new Tip Pooling Rule. As a result, the Department of Labor has withdrawn 3 opinion letters related to those rules. See Lake Effect’s previous blogs on the Independent Contractor Final Rule, the Tip Pooling Final Rule, and two of the tip pool opinion letters.
  • Expand COVID-related unemployment benefits: This Executive Order permits employees who refuse work based on COVID health-related concerns to receive unemployment benefits.
  • Promote racial equity: This Executive Order directs the Biden administration to conduct equity assessments of its agencies and reallocate resources to “advanc[e] equity for all, including people of color and others who have been historically underserved, marginalized and adversely affected by persistent poverty and inequality.”
  • Reaffirm gender equity: This Executive Order expands protections against discrimination based on sex in federal agencies to explicitly include sexual orientation, gender identity, and gender expression. This does not have a direct impact on private employers, but does follow the U.S. Supreme Court decision in Bostock v. Clayton County, Georgia (see Lake Effect’s blog here).
  • Enhance COVID-related workplace safety: This Executive Order requires administrative agencies to take “swift action to reduce the risk that workers may contract COVID-19 in the workplace.” This will most likely result in action from OSHA setting forth “science-based guidance to help keep workers safe from COVID-19 exposure, including with respect to mask-wearing; partnering with State and local governments to better protect public employees; enforcing worker health and safety requirements; and pushing for additional resources to help employers protect employees.”

The attorneys and HR professionals at Lake Effect will continue to closely monitor the Biden administration’s executive actions, legislative developments, and their impact on workplaces.

New CDC Guidance Requires Informed Consent for Workplace COVID-19 Testing

On January 21, 2021, the U.S. Center for Disease Control (CDC) issued new guidance for non-healthcare employers who conduct workplace COVID-19 testing. While the CDC previously confirmed that workplace testing is permissible as part of a comprehensive approach to reducing virus transmission, the new guidance clarifies that it should not be conducted without employees’ informed consent. According to the CDC, “informed consent requires disclosure, understanding, and free choice, and is necessary for an employee to act independently and make choices according to their values, goals, and preferences.”

According to the CDC, employers should adopt at least the following measures to promote free decision-making and informed consent to COVID-19 testing in the workplace:

  • Implement safeguards to protect employee privacy and confidentiality.
  • Provide complete and understandable information about how a testing program may impact employees’ lives, such as whether a positive test result or refusal to participate in testing may mean exclusion from work for any period of time.
  • Explain parts of the testing program that would be particularly important to employees as they decide whether to participate (i.e., key reasons that may guide their decision).
  • Inform employees about the testing program in their preferred languages using clear, non-technical terms. Solicit employee input on the readability of the information.
  • Train supervisors and managers on their roles and responsibilities regarding testing and encourage them to avoid pressuring employees to participate in testing.
  • Consider the consent process as an active information-sharing process between the employer and the employee. Throughout the process, encourage and answer employees’ questions, facilitate their understanding, and promote their free choice.

In addition, employers must ensure the disclosures listed below are made to employees:

  • The manufacturer and name of the test.
  • The type of test and its purpose.
  • How the test will be performed.
  • The known and potential risks of harm, discomforts, and benefits of the test.
  • What it means to have a positive or negative test result, including test reliability and limitations and any public health guidance triggered by a particular result.

Many of these are contained in the FDA’s emergency use authorization patient fact sheet for each approved COVID-19 test (scroll down on the linked page to find the test-specific fact sheet), which must be provided to any party receiving that test.

Employers who conduct workplace COVID-19 testing must develop plans to address a host of other testing-related topics and questions, including:

  • Their reasons for testing, frequency of testing, and consequences to employees of testing/non-testing.
  • Locations, scheduling, procedures, and payment for testing.
  • Communication and interpretation of test results, applicable leaves and/or benefit policies.
  • Personal information needed to test and privacy of results.
  • Internal resources for employees who need additional information, assistance, treatment after test procedure.

Given the CDC’s detailed requirements for informed consent and disclosures relating to workplace-based COVID-19 testing, employers in non-healthcare settings should proceed cautiously when considering the implementation of testing programs or protocols. Rather than conduct workplace testing, some employers may be well-advised to minimize administrative burdens and legal exposure by strongly encouraging employees to undergo frequent COVID-19 testing administered by reliable, unrelated third parties.

DOL provides additional guidance on tipped employees

***Update, January 27, 2021***

UPDATED BY EXECUTIVE ORDER – CLICK HERE FOR UPDATED INFORMATION

****

On January 15, 2021, the US Department of Labor’s Wage and Hour Division (WHD) issued two opinion letters relating to tipped employees.

In FLSA2021-4, the WHD considered whether a restaurant may institute a tip pool that includes both servers (for whom the employer takes a tip credit) and hosts/hostesses (for whom a tip credit is not taken). Based upon the information presented, WHD could not conclude that the restaurant’s hosts and hostesses were employed “in an occupation in which employees customarily and regularly receive tips.” Therefore, hosts could not participate in the same traditional tip pool as servers, for whom the restaurant took a tip credit. However, WHD observed that under recently revised regulations scheduled to take effect March 1, 2021, the restaurant could create a nontraditional tip pool to include both tipped (servers) and non-tipped employees (hosts/hostesses). In order to do so, the restaurant would have to pay the full minimum wage to all employees, and it could not take a tip credit for any of the employees. WHD also reiterated that managers and supervisors could not be included in any tip pool. For a complete discussion of WHD’s revised regulations, please see Lake Effect’s prior blog on tip pooling and tip credits.

In FLSA2021-5, the WHD provided guidance on compensating an employee who performs two different jobs in the same week. The WHD specifically addressed how to calculate overtime pay for an employee who earns cash wage plus tips for hours worked as a server and an hourly wage plus automatic service charges for additional hours worked as a bartender during the same week. WHD confirmed that where an employee performs two or more different types of work with different rates of pay in the same workweek, the employee’s regular rate of pay for that week (used to calculate any overtime) is the weighted average of the different rates earned. In this instance, the employer must take the employee’s total compensation from all rates of pay (cash wage plus tip credit for server hours and hourly wage plus service charges for bartender hours) and divide that by the total number of hours worked at all jobs to determine the regular rate of pay. That regular rate of pay is then multiplied by 1.5 to calculate overtime pay for all hours worked in excess of 40.

While WHD opinion letters can provide valuable guidance to covered employers, they are based upon the facts of the specific case presented. Therefore, the scope of their legal impact is often uncertain. Employers who have questions about tip pools or compensating tipped employees should work closely with legal counsel to ensure full compliance with applicable federal and state laws. We continue to closely monitor all developments in this area, and we will provide you with important updates.

Lake Effect is here to answer your questions about federal and state issues affecting employers. We continue to monitor important legal and HR developments, as well as COVID-related updates from federal, state, and local authorities. Please keep watching our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.

Lake Effect HR & Law is in business to maximize each client’s workplace potential with a commitment to kindness, true partnership, and exceptional service. 

Governor Evers Extends Statewide Public Health Emergency and Mask Mandate

On January 19, 2021, Governor Tony Evers issued Executive Order #104 extending the statewide public health emergency for another 60 days, and Emergency Order #1 extending the statewide mask mandate until March 20, 2021. This emergency order maintains the same face mask requirements that were included in the previous mandates. Lake Effect’s summary of the requirements can be found on our website. Current Dane County, Milwaukee, and other local mask mandates remain in effect. However, the Governor’s Emergency Order #1 supersedes any less restrictive local order.

Lake Effect is here to answer your questions about state and local public health orders. We continue to monitor important legal and HR developments, including COVID-related updates from federal, state, and local authorities. Please watch our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.

DOL clarifies FLSA’s “amusement or recreational establishment” exemption

On January 15, 2021, the Wage and Hour Division (WHD) of the US Department of Labor issued opinion letter FLSA2021-3. The letter explores the scope of Section 13 (a)(3) of the Fair Labor Standards Act (FLSA), which creates an exemption from the minimum wage and overtime provisions for “an employee employed by an establishment which is an amusement or recreational establishment, organized camp, or religious or non-profit educational conference center.” In addition to meeting this definition, an entity must satisfy either a “calendar test” or a “receipts test,” designed to limit the exemption to employees of truly seasonal operations.

Examining three different entities, the WHD concluded as follows:

  • In order to be an “establishment” under Section 13 (a)(3) of the FLSA, an entity must have a distinct physical location for its recreational operations. An entity that organizes and leads nature walks, hikes, daytrips, and overnight camping trips for children does not meet this definition. The entity has a recreational character and purpose. However, it maintains an office solely for administrative purposes; its trips do not meet, leave from, or return to that office. Therefore, its recreational operations do not have a “distinct physical location” over which it exerts control as required to satisfy the “establishment” exemption.
  • A non-profit religious ministry that runs a year-round camp/ retreat center and uses an accrual method of accounting cannot satisfy the “receipts” test under Section 13 (a)(3) of the FLSA. To qualify for the exemption, an entity must show that during the preceding calendar year, its average receipts for any six months of the year were not more than 33 ⅓ percent of its average receipts for the other six months of that year (of note, the months need not be consecutive). For purposes of the FLSA exemption, “receipts” means money actually received and does not incorporate accrual accounting principles. Furthermore, “receipts” under Section 13 (a)(3) refers to money received in exchange for goods or services and does not include charitable donations.
  • An entity that plans and produces thousands of events at various locations each year for companies, non-profits, and other organizations is not an “establishment” under Section (a)(3) of the FLSA. While it maintains a warehouse and administrative offices, it does not exert control, even for a limited period, over fixed locations that have amusement or recreational character. It simply helps produce events on premises that are held and controlled by its clients.

While WHD opinion letters can provide valuable guidance to covered employers, they are based upon the facts of the specific case presented. Therefore, the scope of their legal impact is often uncertain. Employers whose seasonal employees may qualify for the “amusement or recreational establishment” exemption should work closely with legal counsel to determine whether the exemption is likely to apply.
We continue to closely monitor developments in this area and will provide you with important updates.

Lake Effect is here to answer your questions about federal and state issues affecting employers. We continue to monitor important legal and HR developments, as well as COVID-related updates from federal, state, and local authorities. Please keep watching our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.

State Employment Laws to Consider with Remote Workers

Employers across the country – from small nonprofits to multi-national corporations – are grappling with whether and how to maintain a remote workforce with employees in multiple states. There are distinct advantages to allowing employees to work from their home, wherever that may be, and opening the applicant pool to a remote workforce. (See our previous blog on how to sustain company culture with a remote workforce.)

When evaluating remote employment plans, it is critical for employers to review the state and local laws that apply to workers outside of Wisconsin. Many of those laws apply even if an employer has only one part-time employee working in the remote location. Below are some of the important legal issues to consider:

  • Paid Sick Leave. States and municipalities across the country have enacted mandatory paid sick leave laws, most of which apply to all employees working in the particular state, county, or city. An employer’s PTO policy generally will comply with the paid sick leave law if the PTO provides a specified minimum level of benefits. However, employers should review the specifics of any relevant paid sick leave laws, including the laws’ required notices to employees. Those notices may need to be included in a handbook and/or with paystubs.
  • Paid Family and Medical Leave. At least nine states and the District of Columbia have also enacted mandatory paid family and medical leave laws that apply to all part-time and full-time employees working in the state or district. The leave programs differ in the amount of leave that must be provided, benefits, eligibility requirements, required notices, and how the programs are funded. Employers should review these laws if applicable and ensure their leave policies comply.
  • Employee agreements. State laws vary dramatically as to the enforceability of non-competition and non-solicitation agreements. Most states require these agreements to include limitations on their geographic scope and length of restriction. Some states also require employers to give the employee something, such as a bonus or promotion, in exchange for signing a non-compete or non-solicitation agreement while others require specific language be included in these agreements. Some states prohibit all non-competes (D.C. is currently considering such legislation) while some prohibit non-competes with employees who are paid below a specified wage threshold. To reduce the risk of an employee agreement being struck down by a court, it is important to review the applicable state laws and incorporate all requirements.
  • Pay history and criminal background checks. When recruiting nationwide, employers should ensure they are complying with the growing number of laws limiting or prohibiting inquiries into an applicant’s pay history or criminal background. These laws were largely enacted to create more opportunities for women and people of color. They also reflect HR best practices. Inquiring into pay history and/or criminal background may unnecessarily limit the applicant pool and hinder efforts to create a more inclusive workplace culture.
  • Anti-harassment training. At least six states, including Illinois, require employers to provide anti-harassment training to employees and supervisors working in their state. Other states encourage, but do not require, anti-harassment training. Even if not legally required or encouraged, we recommend employers provide anti-harassment training at least every other year.
  • Business Expenses. As more employees are working from home, employers should review their business expense policies for compliance with the laws of the state in which employees work. For example, California and Illinois have specific laws on what business expenses must be reimbursed by an employer.
  • Drug testing. Drug testing laws vary from states such as Minnesota, with strict policy and process requirements to states such as Wisconsin where the laws are more lenient. Employers who require drug tests also should take into consideration whether the recreational and/or medicinal use of marijuana has been legalized in the state where the employee works. Over 30 states and municipalities have legalized marijuana in some form.
  • General employment laws. Each state has enacted its own general employment laws covering, for example, minimum wage, other wage and hour requirements, workplace safety, workers’ compensation, unemployment insurance, and anti-discrimination. Employers should review these laws and ensure their employee handbook, policies, trainings, and practices are in compliance.

Lake Effect is here to answer your state and federal employment law and HR questions related to a remote workforce. We continue to monitor important legal and HR developments, as well as COVID-related updates from federal, state, and local authorities. Please keep watching our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.

Dane County Public Health Emergency Order #12

Public Health Madison & Dane County (PHMDC) has issued a new public health order, Emergency Order #12, effective January 13, 2021. The primary changes are summarized below and are outlined by PHMDC in its comparison of Emergency Orders #11 and #12.

Outdoor Gatherings. Outdoor mass gatherings are permitted with up to 50 individuals, not including employees or members of the same household. Individuals must maintain physical distancing.

Low-Risk Sports. Low-risk sports can be played, including games and competitions, if players maintain six feet physical distancing “to the greatest extent possible.” There are no changes to the restrictions on medium- and high-risk sports.

Drive-in Activities. Drive-in theaters and other drive-in activities may offer outdoor seating if they comply with the mass gathering and other applicable requirements.

The other requirements from previous PHMDC emergency orders remain in place. You can find Lake Effect’s summaries of the previous orders here.

Lake Effect is here to answer your questions about how local and state public health orders apply to employers. We continue to monitor important legal and HR developments, as well as COVID-related updates from federal, state, and local authorities. Please keep watching our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.

DOL Issues Final Rule on Independent Contractor Status under FLSA

***Update, January 27, 2021***

UPDATED BY EXECUTIVE ORDER – CLICK HERE FOR UPDATED INFORMATION

****

On January 6, 2021, the US Department of Labor announced a final rule establishing the test for whether a worker will be classified as an independent contractor or an employee under the Fair Labor Standards Act (“FLSA”). The final rule adopts the “economic reality” test, which was set forth in the DOL’s proposed rule published in September 2020. Under that test, the two core factors are the nature and degree of control over the work and the worker’s opportunity for profit or loss. For a full discussion of that test, these key factors, and other relevant considerations, please review Lake Effect’s September 22, 2020 blog on the DOL’s proposed rule. The final rule also reiterates that the actual practice of the employer and the worker will govern the inquiry, not contractual language or theoretical possibilities.

The final rule will be published in the Federal Register on January 7, 2021 and take effect on March 8, 2021.

Keep in mind that DOL’s final rule is unlikely to fully resolve this challenging issue for most employers. Many states have adopted their own tests for independent contractor status, and these can vary widely from state-to-state, and even within a state, depending upon the issue being addressed (i.e., unemployment eligibility, wage and hour, tax liability). Lake Effect continues to monitor federal and state laws and guidance relating to independent contractor status, and we will keep you apprised of developments in this area.

Lake Effect is here to answer your questions about independent contractors, FLSA, and labor laws. We continue to monitor important legal and HR developments, as well as COVID-related updates from federal, state, and local authorities. Please keep watching our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.

Lake Effect HR & Law is in business to maximize each client’s workplace potential with a commitment to kindness, true partnership, and exceptional service.

DOL Issues Timely Wage and Hour Rule and Guidance

***Update, January 27, 2021***

UPDATED BY EXECUTIVE ORDER – CLICK HERE FOR UPDATED INFORMATION

****

Over the last few weeks, the Department of Labor (DOL) has been busy ticking items off its to-do list. We have seen action on everything from tip pooling to employee notices to travel time.

Tip Pooling and Tip Credits
In October, 2019, Lake Effect blogged on the Department of Labor’s (DOL) proposed new Fair Labor Standards Act (FLSA) regulations on tip pooling, tip credit, and payments to tipped employees. The DOL published the Final Rule on December 22, 2020, implementing most of the changes to tip pooling and tip payments that were proposed in 2019. See also a helpful summary and FAQ provided by the DOL. The Final Rule is effective March 1, 2021.

This new rule will be helpful for restaurant, bar, and hospitality employers making plans to expand or resume operations in the coming months. Many hospitality employers have implemented – or may now consider implementing – tip pools to supplement employee compensation, improve morale, and incentivize all workers to maximize performance. In short, tip pooling can be a useful tool to enhance employee recruitment and retention.

The new tip credit and tip pooling regulations include the following:

  • No tips for managers, supervisors, or employers: The regulations expressly prohibit employers from keeping employees’ tips and likewise prohibit managers and supervisors from sharing any employee tips, regardless of whether the employer takes a tip credit and regardless of the type of tip pool implemented. Employers who retain pooled tips or share them with managers or supervisors will be subject to civil penalties under the new regulations.
    • Relying on the FLSA duties test, a manager or supervisor is defined as any employee (1) whose primary duty is managing the enterprise or a customarily recognized department or subdivision of the enterprise; (2) who customarily and regularly directs the work of at least two or more other full-time employees or their equivalent; and (3) who has the authority to hire or fire other employees, or whose suggestions and recommendations as to the hiring or firing are given particular weight.” This also includes any workers “who own at least a bona fide 20 percent equity interest in the enterprise in which they are employed and who are actively engaged in its management.”
  • No 80/20 rule for tip credits: The regulations remove the long-standing 80/20 rule that required employers who take a tip credit (see our prior blog for an overview of tip credits) to carefully track the amount and timing of non-tipped work that employees perform. Under the new regulations, employers may take the tip credit regardless of the amount of non-tipped work an employee is performing provided the normally non-tipped work is performed “contemporaneously with” or “for a reasonable time immediately before or after” their normally tipped work duties.
  • Employers who take a tip credit are limited to a traditional tip pool: Employers who take a tip credit may create only a “traditional tip pool,” which is limited to employees who “customarily and regularly” receive tips.
  • Employers who do not take a tip credit have two tip pool options: Employers who do not take a tip credit now have two options for tip pooling. Employers may create a “traditional tip pool” and/or a “nontraditional tip pool,” which includes employees who do not regularly receive tips, such as cooks and dishwashers.
  • Record-keeping of tip credit and tip pool: Employers who take a tip credit or create tip pools must identify on their payroll records each employee who receives tips and maintain records of the weekly or monthly amount of tips received by employees, as reported by the employee to the employer. Employers can rely on employees’ information tracked on IRS Form 4070.
  • Timing of payment of tip pool tips: Employers must pay their employees the pooled tips no later than the date on which regular wages are paid to employees and, for credit card based tips, “as soon as practicable after the regular payday.” This further supports the requirement that employers must not retain tips.

Electronic Posting of Required Labor Law Posters
Acknowledging that telework will likely continue for the foreseeable future in many workplaces, the DOL provided new guidance regarding labor law posters. In a field assistance bulletin issued on December 29, 2020, the DOL confirmed that employers can satisfy applicable employee notice obligations by providing required labor law postings to employees on the internet or an intranet. Employers also must display hard copies of the posters in the actual workplace for applicants and employees who are unable to telework.

Compensation for Personal Activity Travel Time
Again acknowledging the continuation of telework, the DOL issued a wage and hour opinion letter on December 31, 2020 addressing the issue of travel time to/from work and home when an employee works part of the day remotely and part of the day in the worksite, and engages in personal activities during their travel time. The DOL reiterated that a non-exempt employee does not need to be paid for time the employee is off duty and is not working, nor for commuting time. The DOL also reinforced that the continuous workday doctrine would not apply to the fact patterns presented by the employer because, during the travel time for personal activities, the employee was clearly off duty, could use their time for their own purposes, and could choose when they would resume work at home or at the worksite. Likewise, the employee’s commuting time to and from work, during which time the employee performed no work duties, was not compensable commuting time.

~~~~
For additional information and discussion of DOL rule making, rules, and guidance, please see Lake Effect’s prior blogs on wage and hour issues. We will continue to closely monitor all developments in this area and provide you with important updates.

Lake Effect is here to answer your questions about federal and state issues affecting employers. We continue to monitor important legal and HR developments, as well as COVID-related updates from federal, state, and local authorities. Please keep watching our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.

Lake Effect HR & Law is in business to maximize each client’s workplace potential with a commitment to kindness, true partnership, and exceptional service.

Lake Effect HR & Law, LLC
(844) 333-5253 (LAKE)
info@le-hrlaw.com

LakeEffectWhite-footer2

© 2020 Lake Effect HR & Law, LLC