Provisions of Final Tip Pool Rule Effective November 23, 2021

The U.S. Department of Labor’s latest final tip pool rule provisions will take effect on November 23, 2021. For further discussion on other provisions of the final rule that were implemented in April 2021, please see Lake Effect’s prior blog on this topic.

The following provisions of the final tip pool rule will take effect on November 23, 2021:

  • Managers and supervisors may keep tips they receive for services provided “solely” by the manager or supervisor and “directly” to customers. This clarification to the traditional prohibition on managers and supervisors receiving tips in a tip pool or tip sharing arrangement recognizes the reality that managers and supervisors are often called upon to perform tipped duties in the course of their workday. This means, for example, when a bar manager is working as a bartender to fill in for an absent bartender or during a slow shift, the bar manager may keep tips received directly from patrons at the bar. Similarly, when a salon manager receives tips from a client for a haircut done by the salon manager, the salon manager may keep the tips.
  • Managers and supervisors may contribute some of their tips received from their “sole” and “direct” work into mandatory tip pools or sharing, but they may not receive any tips from a tip pooling or tip sharing arrangement. Further, an employer may require (or may allow) managers and supervisors to contribute part of their “sole” and “direct” tips into tip pooling or sharing arrangements, but, again, managers and supervisors may not keep or receive employees’ tips, or other managers’ and supervisors’ tips, in any arrangement.
  • Employers may face fines up to $1,100 for each instance that the Department of Labor finds an employer took an employee’s tips, regardless of whether the violation was repeated or willful. This now encompasses employer behavior that is in “reckless disregard” of the FLSA regulations and situations when an employer should have explored if its behavior was compliant but failed to do so.

Lake Effect is here to answer your questions about federal and state wage and hour laws that impact employers across all industries. We continue to monitor important legal and HR developments, as well as 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.

Dane County Face Covering Emergency Order #3

Public Health Madison & Dane County has issued Face Covering Emergency Order #3. The new order is effective October 8, 2021. The only change from the previous order (see Lake Effect’s summary of the previous orders here) is to extend the face covering requirements through November 5, 2021.

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.

Dane County Face Covering Emergency Order #2

Public Health Madison & Dane County (PHMDC) has issued Face Covering Emergency Order #2, effective September 10, 2021 through October 8, 2021.

The new order is substantially the same as the previous order issued last month. The only changes are two exceptions have been added to the situations in which an individual may remove their face covering. Those two additional situations are:

  • While playing a wind instrument that has a cover on it as long as all individuals in the room are spaced six feet apart from one other
  • While presenting or performing a religious, political, media, educational, artistic, cultural, musical, theatrical, or any other type of presentation for an audience as long as
    • everyone at the presentation or performance is fully vaccinated, and
    • the presenters or performers maintain at least six feet from all attendees

All other requirements from the previous order remain in effect, including the requirement that employers develop a policy providing and requiring face masks, and post a sign mandating a face covering indoors.

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.

Employers Take Heed: Deadline is Near for COBRA Premium Assistance Notices

As detailed in Lake Effect's prior blog post, the American Rescue Plan Act of 2021 (ARPA) includes provisions requiring employers to temporarily subsidize the cost of COBRA continuation coverage for certain “Assistance Eligible Employees” from April 1, 2021 through September 30, 2021. Employers or plan issuers must pay premiums on behalf of such individuals and will be reimbursed through a COBRA premium assistance tax credit.
Pursuant to ARPA’s specific requirements, employers and plan issuers are also required to provide Assistance Eligible Individuals with a Notice of Expiration of Premium Assistance 15-45 days before the recipient’s premium assistance expires. For individuals still receiving the premium subsidy, this means that the expiration notice must be provided no later than September 15, 2021. Failure to meet this deadline may result in penalties. Employers should ensure that these notices are sent out in timely manner by internal HR staff, health plan issuers, or COBRA administrators.
Lake Effect is here to answer your questions about COBRA compliance, as well as other state and federal employment law issues. 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.

IL Passes Law Restricting Non-Competes and Non-Solicitation Agreements

On August 13, 2021 Illinois Governor Pritzker signed into law broad restrictions on employee non-competes and non-solicitation agreements. The non-solicit restrictions apply to employer’s customers, as well as other employees.

The new law applies to agreements executed with an employee on or after January 1, 2022. As of that date, the law bans:

  • Non-competes with employees earning $75,000 or less
    • The income threshold increases by $5000 every five years until it reaches $90,000
  • Non-solicitation agreements with employees earning $45,000 or less
    • The income threshold increases by $2500 every five years until it reaches $52,500
  • Non-competes and non-solicitation agreements with an employee who is terminated, laid off, or furloughed due to COVID-19 or “circumstances that are similar to the COVID-19 pandemic”
    • However, a non-compete will be enforceable if the employer includes in the agreement payment to the employee covering the employee’s salary from the date of termination through the period of enforcement minus compensation earned from subsequent employment during that period

In addition, an enforceable non-compete or non-solicitation agreement must:

  • Include a provision advising the employee to consult with an attorney before signing
  • Provide the employee at least 14 days to review the agreement before signing it
  • Offer “professional or financial benefits” or two years of employment as consideration for signing the agreement
    • “Professional or financial benefits” are not defined in the statute but generally include benefits such as a bonus or promotion

Illinois’ new law is part of a national trend to more tightly regulate  the circumstances under which employers can restrict an employee’s  post-termination activities. California bans all non-competes, with limited exceptions, and tightly restricts non-solicitation agreements. Nevada recently enacted legislation banning non-competes with hourly workers. Under Washington law, non-competes are enforceable only if, among other things, the employee earns more than $100,000 per year (adjusted annually). Washington D.C.’s law banning non-competes for virtually all employees will likely become effective some time in 2022. President Biden’s recent Executive Order charging the Federal Trade Commission to explore options to limit the “unfair use” of non-competes also reflects this growing opposition towards these types of agreements.

Employers should work closely with employment law counsel to review  applicable state laws on non-competes and non-solicitation agreements, especially for remote employees working outside of Wisconsin. An advance review may enhance the effectiveness and enforceability of your agreements. See our previous blog on other state law considerations with remote workers.

Lake Effect is here to answer your state and federal employment law and HR questions related to these and other employment agreements. 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.

Updated OSHA Guidance to Continue Workplace Health and Safety Measures

On August 13, 2021, the Occupational Safety and Health Administration (OSHA) updated its guidance for all employers to reflect the CDC’s July 27, 2021 recommendations on masks and testing for fully-vaccinated individuals. As with the prior guidance on COVID-19, this updated OSHA guidance is not a standard or regulation and creates no new legal obligations. However, the guidance is likely to be relied on to measure employer compliance with OSHA’s “General Duty Clause.” That clause requires employers to provide a workplace free from recognized hazards that cause or are likely to cause death or serious harm.

To reduce the risk of spreading COVID-19 among employees, especially the Delta variant, OSHA recommends that employers:

  • Require all employees, including those who are fully vaccinated, to wear a face covering, or other appropriate PPE, when indoors with other people in areas of substantial or high transmission.
  • Encourage or require all customers, visitors, and guests to wear face coverings when indoors in areas of substantial or high transmission.
  • Adopt policies that require employees to get vaccinated or, if they remain unvaccinated, get regularly tested for COVID-19 plus continue wearing a face covering and physical distancing.
  • Require fully vaccinated employees who have been exposed to COVID-19 to be tested three to five days after exposure and wear a face mask when indoors for 14 days unless they test negative.

The above precautions are in addition to measures included in OSHA’s previous guidance. See Lake Effect’s blog on OSHA’s guidance for employers.

Employers should work closely with legal counsel and HR to implement an updated COVID-19 workplace program consistent with this new OSHA guidance and any applicable local guidance and orders. Lake Effect is here to help you through this process.

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 Face Covering Emergency Order

Public Health Madison & Dane County (PHMDC) has issued a new Public Health Order, effective August 19, 2021 through September 16, 2021. The new order requires individuals to wear face masks indoors, employers to develop a policy providing and requiring face masks, and organizations to post a sign mandating face masks indoors.

To address the rise in positive COVID cases, individuals age two years and older must wear face masks when in an enclosed space in Dane County with people outside their household, including while using public transportation. PHMDC defines a face covering as:

a piece of cloth or other material that is worn to cover the nose and mouth completely. A face covering must be secured to the head with ties, ear loops, or elastic bands that go behind the head and must fit snuggly but comfortably against the side of the face. Cloth face coverings must be made with two or more layers of breathable fabric that is tightly woven (i.e., fabrics that do not let light pass through when held up to a light source). A face covering does not include bandanas, single layer neck gaiters, face shields, goggles, scarves, ski masks, balaclavas, shirt or sweater collars pulled up over the mouth and nose, or masks with slits, exhalation valves, or punctures. 

Limited exceptions to the mask requirement are allowed when an individual is eating and drinking, undergoing a service requires temporary removal of the mask (e.g. dental services), communicating with someone who is deaf or hard of hearing and who cannot communicate with a mask, swimming, following safety or security guidelines that require removal of the mask, and other similar circumstances. In addition, individuals with medical or mental health conditions that prevent them from wearing face masks are exempt from the requirement. When addressing such exemptions, employers should put in place other safety precautions to protect the health and safety of employees, customers, and other members of the public .

Employers must develop a written protective measure policy and procedure that provides employees with face masks and requires face masks indoors to comply with the order.

Employers must also post in visible locations signs requiring masks indoors. Employers may use PHMDC’s sign or develop their own.

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.

CDC Issues Updated Guidance on COVID-19

The United States Centers for Disease Control and Prevention (CDC) held a telebriefing (transcript to be uploaded when available) today at 2:00 p.m. CST to provide updated guidance on the COVID-19 pandemic in light of the prevalence of the highly contagious Delta variant. They key points of the CDC’s updated guidance include:

  • New data shows that the COVID-19 Delta variant behaves uniquely differently from the original Alpha variant. Therefore, some vaccinated people who contract the variant can be contagious and spread the disease.
  • The CDC continues to urge all Americans to get vaccinated, emphasizing that increasing the percentage of the population that is fully vaccinated is key to defeating COVID-19 variants.
  • The CDC’s guidance for unvaccinated individuals remains the same: continue masking until you are fully vaccinated.
  • The CDC further recommends that fully vaccinated individuals in areas of high or substantial COVID-19 transmission wear masks indoors and in public spaces.
  • The CDC notes that some fully vaccinated persons may choose to wear masks regardless of level of transmission in their area if they or members of their household are immunocompromised, at increased risk of severe disease, or not fully vaccinated.
  • The CDC recommends that everyone in K-12 school settings (including teachers, staff, students, and visitors) wear masks, regardless of vaccination status. The CDC continues to support in-person learning for all students.
  • Leaders in areas of high or substantial COVID-19 transmission should encourage vaccination and universal mask-wearing.

The CDC will continue to update its guidance as necessary in accordance with scientific data or other relevant developments.

Lake Effect is here to answer your questions about COVID-related guidance. We continue to closely monitor important legal and HR developments in this area, including 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 deeper into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.

Maintaining a Respectful Workplace Post-COVID

While some organizations have been on site through the pandemic, others have returned in recent months. Many others are planning a more robust employee return to office in the coming weeks. As more employees return to work in the office, employers may need to reestablish and remind employees about expectations of workplace conduct to foster and maintain a respectful workplace.

While employees have been working virtually, it is likely that their work clothes have become more casual, morning routines have become less regimented, and communications with coworkers have become more informal as they connected from their homes. Employers may want to review, revise, and remind employees about dress code and attendance policies. Further, employers should grant grace during the return, as employees navigate at-home responsibilities, commute times, new health and safety changes to their work environment, and their own well-being.

While the return may be welcome for some, others may struggle. Employees may experience micro-rejections and awkward moments deciding whether to hug, shake hands, or maintain social distancing with coworkers and others. Office banter may become more casual now that video calls introduced us to our coworkers’ personal lives outside the workplace. At the same time, in-person interactions may be stilted after months of virtual exchanges. This is the time for managers – and coworkers – to refine their empathic leadership and listening skills to understand the needs of others, and be sensitive to their feelings and thoughts.

There may also be times employees become upset with one another, feel hurt, over-share, delve into personal information (including vaccination status and health conditions), or even pass judgment on mask wearing or vaccination status. At its worst, there is a risk that these interactions may be perceived as harassment or discrimination. Consider scheduling your annual respectful workplace training to remind employees of appropriate workplace conduct to prevent harassment and discrimination. Keep in mind that the EEOC recommends employers provide such training on an annual basis, in person, and provided by an experienced trainer.

Lake Effect is here to answer your questions about empathic leadership and respectful workplace training. 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, LLC
(844) 333-5253 (LAKE)
info@le-hrlaw.com

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