Wisconsin Issues Emergency Order #12: Safer at Home

Effective 3/25/2020 at 8am

The Evers Administration signs Emergency Order (EO) #12, Safer at Home. A summary of the EO follows:

  • Directs people to stay safe at home, residence, or place of shelter, leaving only for “Essential Activities” (Section 11), “Essential Governmental Functions” (Section 12), to operate “Essential Businesses and Operations” (Section 13), to perform non-essential “Minimum Basic Operations” (Section 14), conduct “Essential Travel” (Section 15), and “Special Situations” (Section 8, 9, and 10).
  • “Essential Activities” (Section 11) include tending to their health and safety, obtaining necessary supplies for self and family, outdoor activity, performing work at Essential Businesses of Operations, carrying out Minimum Basic Operations (Section 14), and take care of others. At all times, people must comply with social distancing.
  • Defines Special Situations for Healthcare and Public Health Operations (Section 8), Human Service Operations (Section 9), and Essential Infrastructure (Section 10)
  • Defines Essential Businesses and Operations (see detailed definitions in section 13):
    • CISA agencies and businesses
    • Stores that sell groceries and/or medicine
    • Food and beverage production, transport and agriculture
    • Restaurants for carry out or delivery service only
    • Bars for carry out service only
    • Childcare settings are subject to Emergency Order #6, and now must prioritize care for children of employees in two specifically defined categories
    • Organizations that provide charitable and social services
    • Weddings, funeral, and religious entities and such gatherings are limited to fewer than 10 people
    • Funeral establishments and such gatherings are limited to fewer than 10 people
    • Media
    • Gas stations and businesses needed for transportation
    • Financial institutions and services
    • Hardware and supplies stores
    • Critical trades, including Building and Construction Tradespeople “who provide services that are necessary to maintaining the safety, sanitation, and essential operation of residences, Essential Activities, Essential Governmental Functions, and Essential Businesses and Operations”
    • Mail, post, shipping, logistics, delivery and pick-up services
    • Laundry services
    • Businesses that sell, manufacture, or supply products needed for people to work from home
    • Businesses that sell, manufacture, or supply other Essential Businesses and Operations and Essential Governmental Functions with the support or supplies to operate
    • Private, public and commercial transportation and logistics providers
    • Home-based care and services
    • Professional services, to the extent possible to work remotely
    • Manufacturing, distribution, and supply chain companies
    • Critical labor union functions
    • Hotels and motels
    • Higher educational institutions to facilitate distance learning
    • WEDC designated businesses
  • Directs all non-essential businesses and operations to close their physical workplaces and work remotely.

See the full Emergency Order here: https://evers.wi.gov/Documents/COVID19/EMO12-SaferAtHome.pdf. Please contact us if you have questions about the status of your organization under this Emergency Order.

If you have employees in other states, please consult this helpful guide which provides updated information on which states have stay at home orders: https://www.cnn.com/2020/03/23/us/coronavirus-which-states-stay-at-home-order-trnd/index.html.

The legal and HR team at Lake Effect is closely monitoring the impact of COVID-19 on the workplace. Keep watching for blogs and emails from your Lake Effect team for important legal updates and HR best practices. The attorneys and HR professionals at Lake Effect HR & Law are ready and willing to help. Contact us at info@le-hrlaw.com or 1-844-333-5253.

Families First Coronavirus Response Act – Effective April 1, 2020

The Families First Coronavirus Response Act (FFCRA) stated an effective date of “not later than 15 days after the date of the enactment of this Act.” The Act was enacted on March 18, 2020. The Department of Labor has directed that the Act will take effect on April 1, 2020, as stated on the employee poster released by the Department of Labor on March 25, 2020.

On March 18, 2020, President Trump signed into law the “Families First Coronavirus Response Act” (“FFCRA”). Two major provisions of the FFCRA address paid leaves designed to assist American workers and families facing challenges presented by the COVID-19 pandemic. Generally, the leave provisions cover employers with fewer than 500 employees. However, the Secretary of Labor is authorized to issue regulations exempting employers with fewer than 50 employees if the law’s requirements will jeopardize the ongoing viability of a business.

The Emergency Paid Sick Leave Act requires covered employers to provide up to two weeks of paid sick leave for full and part-time employees to deal with their own or a child’s COVID-19 illness or quarantine, or to care for a child whose school or daycare provider is closed due to COVID-19.

The Emergency Family and Medical Leave Expansion Act requires covered employers to provide up to 12 weeks of partially paid emergency family leave to an employee whose minor child’s school or daycare is closed or unavailable due to the COVID-19 pandemic.
Employers will receive quarterly payroll tax credits for amounts paid to their employees under these leave provisions, but those credits are capped per employee at specified levels.

A more comprehensive summary of the “Families First Coronavirus Response Act” can be found here.

This appears to be the first step in a Congressional effort to ease the impact of the COVID-19 pandemic. Congress is currently working on a more comprehensive economic package to put money directly in the hands of Americans. We at Lake Effect will continue to monitor the situation as it evolves.

The legal and HR team at Lake Effect is closely monitoring the impact of COVID-19 on the workplace. Keep watching for new blogs  or subscribe to our mailing list for important legal updates and HR best practices. If you have any questions regarding our quick tips, the attorneys and HR professionals at Lake Effect HR & Law are ready and willing to help. Contact us at info@le-hrlaw.com or 1-844-333-5253.

Legal Tips for Managing Hourly, Non-Exempt Employees Working Remotely

As employers are responding to the COVID-19 outbreak, many are mandating or allowing employees to work from home (WFH). It is crucial that employers take steps to prevent their non-exempt employees from working off the clock or working overtime without approval or being compensated. Below are some legal tips for employers as you navigate what might be unchartered waters for managing non-exempt staff.

Non-exempt employees WFH must still be paid at least minimum wage and compensated appropriately for all hours worked, including overtime. All of the federal, state, and local laws still apply!

Employers need to provide their employees with a reliable system to accurately track and submit their actual hours worked. Your remote non-exempt employees must be “clocking in” and “clocking out” during the work day. Keep in mind that federal and state laws requiring meal and rest breaks still apply to employees WFH. In Wisconsin, any break less than 30 minutes must be paid. This is a great time to review your policies and share them with your employees as a reminder.

Make sure your non-exempt employees WFH have a clear understanding of their scheduled work hours or the number of hours they are expected to work during a day, and that they must not work outside those hours unless requested to do so or get approval to do so.

Remind non-exempt employees that checking, reading, and responding to work-related emails or texts is “work” and must be recorded as time on the clock! Better to err on the side of paying people even for de minimus time. Now is not the time to unnecessarily reduce employee’s time or pay.

Make sure your managers are aware of their team members’ regularly scheduled work hours or the number of hours they are expected to work, and reinforce the expectation that non-exempt team members are not working outside those hours. If employees do work outside of their normally scheduled hours, they must track those hours and communicate that to their manager. The key is that employees are generally available during core hours of operation.

Review your process for submitting, reviewing, and approving requests for overtime to make sure it will work effectively with a remote workforce.

Under federal and Wisconsin law, employers are only required to pay non-exempt workers for their actual time worked. Employers may reduce non-exempt employees’ regularly scheduled hours due to closures, decreased demand, etc. However, if you have employees outside of Wisconsin, be aware that some states and cities require employers to pay workers for a certain number of hours if they have started their day or their scheduled workweek.

Employees cannot “volunteer” their services to their employer, even if an employee asks to do so! Federal, state, and local laws require employers to compensate non-exempt employees for all time worked and any time an employer suffered or permit an employee to work, whether with or without your approval.

Generally, employers must pay for the expenses non-exempt employees incur to work remotely—such as buying a laptop or a different smart phone plan—if requiring the employee to pay for it would result in the employee’s wages falling below the required minimum wage. However, some states outside of Wisconsin require employers to pay for employees’ business related expenses incurred when working remotely. Best practice is to ask employees what they may need and provide any paper, ink, files, etc that they may need, or permit them to expense any incurred costs.

For HR tips, see our blog on sustaining your culture with a remote workforce.

The attorneys and HR professionals at Lake Effect HR & Law are ready and willing to assist and advise if you have questions related to employee classifications, remote working options, or general Fair Labor Standards Act matters. Contact us at info@le-hrlaw.com or 1-844-333-5253.

Have an Informed and Measured Response to COVID-19

Clients and partners:

On behalf of your partners at Lake Effect HR & Law, we hope that your team continues to be safe and healthy amidst the threat of COVID-19. We want to share with you our recommendations for having an informed and measured response to COVID-19 as employers and co-workers.

Communicate: Throughout the next few weeks and months, it will be critical that leadership provides ongoing communication to employees and key stakeholders. Ensure that all communication about the topic is both empathetic and accurate. Use CDC COVID-19 resources.

This includes maintaining a focus on engaging and boosting morale of in-person and remote employees in this time of crisis and stress. Coach your supervisory staff in how best to manage and engage remote and/or socially distanced employees. Conduct regular well-being checks on employees. Have frequent online 1:1 check-ins, plus online group meetings. Retain your workplace culture traditions virtually, such as video conferenced brown bag lunches and happy hours.

Educate: Educate your employees to recognize the symptoms of COVID-19 (fever, cough, shortness of breath) and encourage sick employees to stay home until they are symptom-free. Use CDC educational posters.

Preserve Privacy: Remember to ensure the privacy of affected employees’ health information. Quell the rumor mill as much as possible.

Clean: Coordinate with your cleaning company and your own employees to implement  CDC recommended enhanced cleaning and safety precautions throughout your worksiteSee CDC recommended enhanced cleaning and safety precautions.

Protect: To protect he health and wellbeing of your employees and members of the larger community, consider the following:

  • Review your sick and leave of absence policies
  • Decide if you will temporarily revise or suspend normal policies and compensate employees who are affected by COVID-19 (themselves or family members) without using PTO, sick, FMLA or personal leave time. Consider that: 
    • You may need to temporarily stop requiring doctor’s notes due to inability to get into clinics
    • Unlike many viruses, the manifestation of COVID-19 illness may meet FMLA tests for a “serious health condition”
  • Use discretion when asking about employee’s health conditions or where employees have traveled– there is a risk that questions like these can be discriminatory or perceived as discriminatory
  • Consider enhanced cross-training of employees so that other employees can step in to perform job duties for employees who might be off work due to illness/quarantine (their own or a family member’s)
  • Determine which job positions can properly telecommute and which cannot
  • Implement social distancing of employees throughout the worksite, workday, and workweek
  • Update or verify that your computer systems enable employees telecommuting. Verify employees have appropriate internet access and technology knowledge to work remotely . Stress test your technology in advance. 
  • Keep up to date on travel restrictions and review the necessity for travel outside the office
  • Consider rescheduling social activities and large group meetings
  • Convert group meetings to video, rather than in person, format
  • Limit non-essential visitors to the worksite
  • Require telecommuting employee to keep all work on a network or shared drives

The attorneys and HR professionals at Lake Effect HR & Law are ready and willing to assist and advise if you have questions related to managing the threat of COVID-19 in your workplace. Contact us at info@le-hrlaw.com or 1-844-333-5253.

Employers: Include NYC Independent Contractors in Your Anti-Harassment Training

Under the recently expanded New York City Human Rights Law (NYCHRL), employers must include independent contractors in their sexual harassment training. This is a major shift in how independent contractors are generally treated. Employers should include an appropriate disclaimer before providing anti-harassment training to an independent contractor to clarify that the training does not change their independent contractor status.

This training requirement applies to all New York employers with 15 or more total workers. “Workers” includes employees who work outside of New York City and independent contractors. This means that if a Wisconsin based employer has 14 employees in Wisconsin and 1 employee or independent contractor in New York City, that employer must provide the required sexual harassment training to the worker in New York City, and comply with the other applicable New York State and New York City laws. Note that as of February 8, 2020, the New York State Human Right Law will apply to all employers with at least 1 employee in New York.

The attorneys and HR professionals at Lake Effect HR & Law are ready and willing to assist and advise if you have questions related to mandatory anti-harassment training or independent contractors in Wisconsin or other states. Contact us at info@LE-hrlaw.com or 1-844-333-5253.

The ADA: Understanding Your Obligations

As HR professionals, we take a lead role in making sure our workplace policies and practices are both compliant and ethical. We need to make sure our managers are operating under the same guidelines. One area where a high level of risk may be lurking is in responding to employee performance issues, concerns and requests for accommodations in situations where the word “disability” is not used. Even if an employee does not say the word “disability,” the employer may still be on notice that the Americans with Disabilities Act (“ADA”) and its related legal obligations are implicated.

Here’s a scenario:
John works for a small manufacturing company and has struggled in his role. John’s manager, Dan, documents all of John’s performance related issues. John is worried about losing his job and anxious about what is going to happen next. John has a disability but does not explicitly use that word when talking to Dan. John asks to change his shift “to help his nerves” and to help address his performance related issues. Because John did not use the word “disability,” Dan does not consider this a formal accommodation request, nor does he bring this up to HR. After one final performance issue, Dan terminates John. John then files a claim against the employer for failing to accommodate his disability.

HR should train managers to be on the lookout for language that may trigger an accommodation under the ADA. This should include educating managers about physical and mental impairments that can constitute disabilities under ADA and the interplay of ADA, FMLA and Worker’s Compensation. Rather than have managers assess such requests, they should be coached to raise potential disability-related issues with HR. HR can then meet with the affected employee to determine if the ADA interactive dialog process needs to commence, or if this is simply a performance or behavior issue.

The experienced HR professionals and attorneys at Lake Effect HR & Law are ready to assist and advise if you have questions regarding ADA related issues in your organization. We are here to help you navigate this complex area. Contact us at info@le-hrlaw.com or 1-844-333-5253.

Upcoming Changes to Illinois Employment Laws

Over the summer, Illinois enacted several amendments to the state’s employment laws that will take effect January 1, 2020.

Sexual Harassment Training

All employers with Illinois employees must provide sexual harassment prevention training to their employees at least annually. The Illinois Department of Human Rights has advised that it will create a model training program for employers, but at the time of this article, it is not yet available. Alternatively, employers can use their own sexual harassment training program as long as it meets the state’s legal requirements. We can also create a training program for you that complies with Illinois’ legal requirements and is tailored to fit your industry, workplace culture, and mission.

Legalization of Recreational Marijuana

Organizations with employees in Illinois will confront a new legal landscape under the Cannabis Regulation and Tax Act, which declares marijuana a “lawful product” under Illinois state law. Under the new law, the use, possession, and cultivation of marijuana for medical or recreational purposes will be legal for adults age 21 and older. There are now 11 states that allow recreational use of marijuana and 33 states that allow marijuana use for medical purposes.

The expansion of marijuana legalization in Illinois dramatically affects employer drug-free workplace and testing policies. Under the new law, employers can still prohibit the use, storage, buying, and selling of marijuana at work; they can likewise prohibit employees from being impaired or under the influence of marijuana at work. If an employer has a good faith belief that an employee is impaired at work or while on call, the employee can be disciplined only if that belief is based on specific, objective symptoms. An employee must also be given an opportunity to contest the basis of the determination of impairment. Employers cannot take an adverse action against an employee for merely testing positive for marijuana while at work. Employers should be wary of pre-employment drug testing, employment testing without reasonable suspicion and zero tolerance policies. It is not yet clear if Illinois employers can terminate employees who refuse to submit to a drug test that is based on a good faith belief of impairment.

Please contact your partners at Lake Effect Human Resources & Law if you would like to discuss a customized sexual harassment training program for your organization, or if you would like us to review your workplace and drug testing policies to ensure they comply with Illinois’ new laws.

Coming Soon…Clarity on Tip Pools, Tip Credit, and Wages Paid to Tipped Employees

It feels right to share tips with those who support the servers, but is it legal? Currently, you cannot mandate that your tipped staff share their tips with other staff, such as hosts, dishwashers and bussers. But that may change soon for some hospitality employers. Last week, the federal Department of Labor (DOL) proposed a new regulation that, if enacted, will allow employers that pay their tipped employees the full minimum wage to include all staff in mandatory tip pools.

Under federal law, employers may pay tipped employees a reduced minimum wage of $2.13/hour, instead of $7.25/hour, by counting up to $5.12/hour of the employee’s tips toward the minimum wage requirement. This is a “tip credit.” If the DOL’s new rule on tip pooling is enacted, employers who do not claim a tip credit may include non-tipped workers, such as cooks and dishwashers, in mandatory tip pools. Tips must be re-distributed at least as often as wages are normally paid. The proposed new rule will continue to prohibit employers, including managers and supervisors, from keeping any portion of an employee’s tips, including from a tip pool.

The proposed rule will also effectively end the 80/20 rule, often called the 20% rule, and provide much needed clarity to employers about when they are required to pay the standard federal minimum wage of $7.25/hour to tipped employees. In 2011, the DOL enacted the 80/20 rule, under which employers are prohibited from taking the tip credit if the employee spends 20% or more time on non-tipped tasks, e.g. clearing tables, completing side work, making coffee, cleaning floors. The 80/20 rule has been difficult to administer and enforce, as is evidenced by the numerous lawsuits filed across the country challenging the rule.

In 2018, the DOL attempted to abandon the rigid 80/20 rule, however, courts have disagreed on whether it was effectively rescinded. The DOL’s regulations proposed last week will address the ambiguity. Under the proposed new rule, an employer may take the tip credit for any amount of time a tipped employee spends on non-tipped duties so long as those non-tipped duties are (1) related to the tipped duties and (2) are done at the same time as the tipped duties or within a reasonable amount of time before or after the tipped duties. The intent is to create a much more flexible system for calculating wages for tipped employees than the 80/20 rule.

The proposed rules are not yet final. They are open to public comment until December 9, 2019, at which time the DOL will analyze comments and proceed with the final rule-making process. The DOL does seem to be fast-tracking major initiatives in advance of the November 2020 election. We will continue to monitor the proposed regulations and keep you informed.

The attorneys and HR professionals at Lake Effect HR & Law are ready to assist and advise if you have questions related to federal or state labor regulations or your employee pay policies. Contact us at info@LE-hrlaw.com or 1-844-333-5253.

Be Careful What You Ask For!

Over the years, most employers have become accustomed to asking for salary history during the interview or pre-screening process to determine if an applicant should move forward in the hiring process. Most employment applications also inquire about an applicant’s prior convictions. However, more and more state and local governments are adopting bans on employer inquiries into a job applicant’s pay and criminal history. Employers need to ensure their hiring practices are compliant, especially as recruiting crosses state lines.

Over 20 state and local governments have adopted pay history bans. Pay history bans are frequently rolled into a state or local government’s overarching equal pay laws. Such bans are aimed at addressing existing pay disparities – especially those adversely affecting women and people of color – by ensuring that employers base compensation decisions on employees’ qualifications, duties and responsibilities.

Pay history bans prohibit employers from inquiring about an applicant’s prior pay during the pre-employment process or considering that information when making interview, hiring, or compensation decisions. Other facets of the laws are designed to eliminate secrecy and promote transparency by prohibiting employers from restricting their own employees from disclosing their current pay to applicants or to one another in the workplace. Some of the new pay history bans also require employers to provide the applicable pay range upon request by an applicant or include the pay range with any job posting.

There has also been an expansion of criminal history bans, often called “ban the box” or “fair chance” laws. These bans, adopted by over 30 state and local governments to date, are meant to even the playing field and provide a second chance for individuals with an arrest or conviction record. Criminal history bans prohibit employers from requiring applicants to disclose if they have been convicted of a crime. The laws generally permit employers to inquire into a prospective employee’s criminal history after subsequent steps in the hiring process: after an initial screening but before an interview, after an interview, or after a conditional job offer.

These bans have not yet been adopted in Wisconsin, but they impact employers recruiting with national searches or for locations outside of Wisconsin, and they aren’t going away. It’s a good time to review your hiring policies and procedures to make sure that they comply with these legal requirements and reflect your organization’s culture, mission, and values.

The attorneys and HR professionals at Lake Effect HR & Law are ready to assist and advise if you have questions related to your recruiting and hiring policies and procedures in Wisconsin or other states. Contact us at info@LE-hrlaw.com or 1-844-333-5253.

Department of Labor Releases Overtime Final Rule

On September 24, 2019, the Department of Labor (DOL) announced the long-awaited final rule on overtime and the salary level threshold for exempt workers. This final rule will become effective on January 1, 2020. Under the new rule, an estimated 1.3 million additional workers will be eligible for an estimated $298.8 million in overtime pay.

The DOL’s final rule:

  • raises the standard salary level from the currently enforced level of $455 per week to $684 per week (equivalent to $35,568 per year for a full-time worker);
  • allows employers to use nondiscretionary bonuses and incentive payments (including commissions) paid at least annually to satisfy up to 10% of the standard salary level;
  • raises the total annual compensation requirement for “highly compensated employees” (HCEs) from the currently enforced level of $100,000 per year to $107,432 per year (NOTE: Wisconsin does not recognize this exemption); and
  • adjusts the special salary levels for workers in U.S. territories and the motion picture industry.

The DOL also noted that, while it did not incorporate automatic updates to the salary level, it intends to update the standard salary and HCEs total annual compensation levels on a more frequent basis in the future.

Please see the DOL’s Fact Sheet on the final rule here.

Notably, the DOL made no changes to the duties tests for exempt workers and HCEs. Please keep in mind that, to be exempt, employees must satisfy both the salaried basis test and one of the exempt duties tests.

The attorneys and HR professionals at Lake Effect HR & Law are ready and willing to assist and advise if you have questions about how this final rule may impact your workforce and pay practices. Contact us at info@le-hrlaw.com or 1-844-333-5253.

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