Author: Megan Butz

Megan joined Checkwriters in 2020 and is responsible for reviewing, revising, and implementing internal policies of the company, advising on human resource, employment, and labor matters, and monitoring and publishing state and federal legal updates to the Checkwriters News and Compliance Center for distribution to thousands of clients around the country. Before joining Checkwriters, Megan served as a judicial law clerk for the justices of the Massachusetts Probate and Family Court performing legal research and writing, followed by private practice in Cape Cod.

April 3, 2023

Coming Soon: New DOL Overtime Rules

According to its Fall 2022 Regulatory Agenda, the Department of Labor/Wage and Hour Division (the (“Department”) anticipates new proposed overtime rules will be released in May 2023. The agenda discusses that the Department is currently reviewing the implementing federal regulations regarding the white-collar exemptions under the FLSA’s minimum wage and overtime requirements, for bona fide executive, administrative, and professional employees. A primary goal of the new proposed rulemaking would be to update and increase the salary level requirement, which is a requirement to meet any of the exemptions previously mentioned. The current salary level requirement for employees to be exempt from both minimum wage and overtime for employees employed as bona fide executive, administrative, and professional employees is $684.00 per week.

What are the FLSA white-collar exemptions?

Section 13(a)(1) of the FLSA provides an exemption from both minimum wage and overtime pay for employees employed as bona fide executive, administrative, professional and outside sales employees*. The exemptions apply only to white-collar employees who satisfy both the salary basis* and duties requirements prescribed by the regulations. It does not apply to “blue-collar” positions which typically feature manual labor, physical skill, and repetitive operations requiring use of the hands.

The current salary level requirement for employees to be exempt from both minimum wage and overtime for employees employed as bona fide executive, administrative, and professional employees is $684.00 per week. *The salary basis requirements do not apply to outside sales employees.

The salary level requirement was last updated in 2020 to its current level of $684.00 per week. Prior to that, the last time the Department had set the salary level basis was in 2004 at $455.00 per week. Per the agenda, and as a rationale for the Department’s proposed rulemaking, the Department asserts that, “[r]egular updates promote greater stability, avoid disruptive salary level increases that can result from lengthy gaps between updates and provide appropriate wage protection.”

What should employers expect?

When the notice of proposed rulemaking is released in May, there will be an opportunity for public comment before the rules are finalized and go into effect. The amount of the salary increase anticipated for May is unknown, but looking at recent history could provide employers with an indication of what to expect.

In 2016 under then President Obama, the Department of Labor issued a final rule raising the salary level from $455.00 per week to $913.00 per week, and also incorporated automatic increases every three (3) years indexed to inflation or wage growth. The rule was challenged however by a number of businesses, trade organizations and several states, with all cases being consolidated in the U.S. District Court for the Eastern District of Texas. Ultimately in August 2017, the Court declared the overtime rules invalid.

Employers should review their pay practices in advance of the Department’s anticipated May rule release, including being prepared for a potential increase in line with the Department’s previous attempt under President Obama.

April 2, 2023

Michigan Paid Medical Leave and Minimum Wage: Update

Reminder: Michigan Appeals Court halted changes to Michigan’s paid sick leave and state minimum wage laws which were set to go into effect on February 19, 2023. Employers are not presently required to comply with any changes to state-mandated paid sick leave, or increased state minimum wage.

Background

On January 26, 2023, the Michigan Court of Appeals unanimously reversed the decision of the Michigan Court of Claims which held that the process of “adopt and amend” by the Michigan legislature in enacting amended versions of voter initiatives regarding paid sick time and increased state minimum wage was unconstitutional. In doing so, the Michigan Court of Appeals reinstated the provisions of the Paid Medical Leave Act (formerly the Earned Sick Time Act) and the Improved Workforce Opportunity Wage Act as adopted and amended by the Michigan legislature.

Michigan Paid Medical Leave Act

Under the Paid Medical Leave Act, employers with fifty (50) or more employees are required to provide up to forty (40) hours of paid medical leave annually for eligible employees to exercise based on the following circumstances:

Physical or mental illness, injury, or health condition of the employee or his or her family member.
Medical diagnosis, care, or treatment of the employee or employee’s family member
Preventative care of the employee or his or her family member.
Closure of the employee’s primary workplace by order of a public official due to a public health emergency.
The care of his or her child whose school or place of care has been closed by order of a public official due to a public health emergency.
The employee’s or his or her family member’s exposure to a communicable disease that would jeopardize the health of others as determined by health authorities or a health care provider.
For domestic violence and sexual assault situations, employees may use paid medical leave for any of the following:
– Medical care or psychological or other counseling.
– Receiving services from a victim services organization.
– Relocation and obtaining legal services.
– Participation in civil or criminal proceedings related to or resulting from the domestic violence or sexual assault.

Paid medical leave accrues at a rate of one (1) hour for every thirty-five (35) hours worked, though employers may make the full forty (40) hours available at once at the onset of the benefit year or on the date that the individual becomes eligible during the benefit year on a prorated basis.

Eligible employees under the Act may carry-over up to forty (40) hours of accrued, unused paid medical leave from one benefit year to the next. However, an employer who provides the full allotment of paid medical leave at the beginning of the benefit year is not required to permit employees to carry over unused leave to the next benefit year.

What is an Eligible Employee under the Michigan Paid Medical Leave Act?

An eligible employee under the Paid Medical Leave Act is defined as an “individual engaged in service to an employer in the business of the employer and from whom an employer is required to withhold for federal income tax purposes.”

There are a number of classes of employees or types of employment that are excluded under the Act, however, including the following: “executive, administrative, and professional overtime exempt employees (emphasis added), employees covered by a private collective bargaining agreement that is in effect, employees of the United States government, another state, or a political subdivision of another state, individuals whose primary work location is not in this state, individuals 16-19 years of age being paid the youth training wage in accordance with the Improved Workforce Opportunity Wage Act, temporary employees as described in the Michigan Employment Security Act, variable hour employees as defined by 26 CFR 54.4980H-1, employees covered by the Railway Labor Act and Railroad Unemployment Insurance Act, individuals employed by an employer for 25 weeks or fewer in a calendar year for a job scheduled for 25 weeks or fewer, individuals who worked, on average, fewer than 25 hours per week during the immediately preceding calendar year.”

Michigan Minimum Wage

The Michigan minimum wage is $10.10 per hour (effective January 1, 2023) and will steadily increase to $12.05 per hour effective for calendar year 2030.

The Michigan Department of Labor and Economic Development maintains a Litigation on Minimum Wage and Paid Medical Leave Page for employers to utilize in keeping abreast of any developments.

Disclaimer: The information contained herein is not intended to be construed as legal advice, nor should it be relied on as such. Employers should closely monitor the rules and regulations specific to their jurisdiction(s) and should seek advice from counsel relative to their rights and responsibilities.

March 20, 2023

New York State Pay Transparency Law Amended

On March 3, 2023, New York State Governor Kathy Hochul signed an amendment to the New York state pay transparency law.

Background: What is the New York State Pay Transparency Law?

Under the originally enacted New York pay transparency law, all private sector New York employers with four (4) or more employees are required to list compensation or a range of compensation for all advertised job postings.

Specifically, any advertisement for a job, promotion, or transfer opportunity that can or will be performed at least in part in New York, must contain: the compensation or range of compensation and the job description if such description exists. For jobs paid solely on commission, advertisements and postings must include a general statement that the position is commission based.

Under the original law, employers were also required to maintain necessary records including the history of compensation ranges for each job, promotion or transfer opportunity and the job descriptions for such positions if such descriptions exist. Range of compensation is defined under the law as the “minimum and maximum annual salary or hourly range of compensation for a job, promotion, or transfer opportunity that the employer in good faith believes to be accurate at the time of the posting of an advertisement for such opportunity.”

Employers are prohibited from refusing to interview, hire, promote, employ or otherwise retaliate against an applicant or current employee for exercising any rights under the law.

When Does the New York Pay Transparency Law Take Effect?

The New York pay transparency law takes effect on September 17, 2023, along with recent amendments which address issues relative to remote employees, record keeping requirements and definitions.

What Are the Recent Amendments to the New York Pay Transparency Law?

The amendments signed by Governor Hochul on March 3, 2023 made the following changes to the law:

Narrowed the scope of application of the law to jobs, promotions, or transfer opportunities that will “physically be performed, at least in part, in the state of New York, including a job, promotion, or transfer opportunity that will physically be performed outside of New York but reports to a supervisor, office, or other work site in New York.” By placing a physical performance or reporting requirement to a supervisor, office or other worksite in the state of New York, the law therefore does not apply to fully remote positions which do not feature a reporting requirement in New York as referenced above.
Removed the employer record keeping requirement.
Inserted a definition of “advertise” which shall mean “to make available to a pool of potential applicants for internal or public viewing, including electronically, a written description of an employment opportunity,” thereby explicitly including internal postings within the law’s scope as well as external postings.

Employer Takeaway

While the record keeping requirement has been removed, employers are advised to maintain sufficient documentation of their compliance with the law in the event that they are required to defend any actions which may implicate the law’s transparency requirements.

Violations of the law will result in the imposition of a civil penalty in an amount not to exceed $1,000.00 for a first violation, $2,000.00 for a second violation or $3,000.00 for a third or subsequent violation.

Employers should review their current posting and compensation practices with their human resource departments to ensure compliance with the law in advance of the September 17, 2023 effective date.

March 20, 2023

Illinois Paid Leave Act

On Monday, March 13, 2023, Governor JB Pritzker of Illinois signed into law SB208, the Paid Leave for Workers Act (“the Act”). Illinois is now the third state to require paid time off for any reason (not just medical reasons). Employees are not required to provide documentation or certification as proof or in support of a request for paid leave.

When Does Illinois Paid Leave Take Effect?

Illinois Paid Leave takes effect January 1, 2024 at which time employees also begin accruing leave. Employees can start using accrued paid leave on March 31, 2024, or ninety (90) days following commencement of employment (whichever is later).

Employers should take advantage of this extra time to review time off policies and practices to ensure compliance with the Act by 2024.

Who is Covered by Illinois Paid Leave?

Employees (including domestic workers) working for an employer in Illinois are covered by the Act.

There are some individuals and employers excluded from coverage including independent contractors, employees covered by a collective bargaining agreement in certain industries including construction and parcel delivery, and school and park districts.

In addition, the Act does not apply to employers that are covered by a municipal or county ordinance that requires employers to provide any form of paid leave to their employees – as long as that ordinance is in effect on January 1, 2024. However, any local ordinance providing for paid leave which is enacted or amended after January 1, 2024 must comply with the requirements of the Act.

Accrual and Use of Illinois Paid Leave

Under the Act, employees accrue paid leave at the rate of one (1) hour per every forty (40) hours worked. Employees receive their full wage during any period of paid leave, with tipped employees receiving the full minimum wage in their respective location.

Employers cannot require employees to find coverage for their absence, and may set a minimum increment for use of paid leave, not to exceed two (2) hours per day.

Illinois Paid Leave Notice Requirements

Illinois Paid Leave is provided following an employee’s oral or written request in accordance with the employer’s reasonable paid leave policy notification requirements including: 7 days’ advance notice if the employee’s use of paid leave is foreseeable, or notice as soon as is practicable after the employee is aware of the necessity for leave, if such leave was not foreseeable. Where notice is required for an unforeseeable use of paid leave, the employer must provide a written policy detailing the procedures for the employee to follow in order to provide notice.

Employer Responsibilities Under Illinois Paid Leave

Employers are required to post in a conspicuous place on the premises where notices to employees are customarily posted, as well as include in a written employee manual or policy, a notice to be prepared by the Illinois Department of Labor summarizing the requirements of the Act. Employers who violate this requirement are subject to a civil penalty of $500.00 for the first audit violation, and $1,000.00 for any subsequent audit violation.

Employers also have record keeping requirements under the Act, requiring them to maintain records of hours worked, paid leave which has accrued and which has been taken, and any remaining paid leave balance. These records must be retained for at least three (3) years, and must be made available to the Department at reasonable times during business hours to monitor employer compliance with the Act.

Employers with existing paid leave policies with the minimum paid leave required under the Act, and which permit employers to take paid leave for any reason, are not required to change their existing paid leave policies. Nothing in the Act prohibits employers from adopting a paid leave policy which is more generous than that provided under the Act.

Employers are prohibited from interfering, denying or changing their employees’ work hours to avoid providing eligible paid leave, as well as retaliating against any employee who exercises or attempts to exercise his/her rights under the Act, opposes practices in violation of the Act, or for supporting another individual’s exercise of his/her rights under the Act.

Employers are not required to pay an employee for any accrued, but unused paid leave at the time of termination, resignation, retirement or other separation from employment. However, if the employer decides to credit the accrued paid leave provided under the Act to an employee’s PTO or vacation account, then any unused paid leave would be payable to the employee upon the employee’s separation from employment in accordance with Illinois’s existing rules regarding vacation time.

Penalties and Enforcement

Employers who violate the Act are subject to a civil penalty of $2,500.00 for each separate offense, with some exceptions. All penalties collected will be deposited into the Paid Leave Workers Fund which was created in the Illinois state treasury and which shall be dedicated to enforcing the Act.

Press Release: Gov. Pritzker Signs Historic Legislation Guaranteeing 40 Hours of Paid Leave
Full Text of the Act

December 7, 2022

Tipped Minimum Wage by State

Employees who receive the majority of their compensation from tips are typically paid a tipped minimum wage, rather than standard minimum wage.

While the federal tipped minimum wage stands at $2.13 per hour, many states set rates that are higher and have varying requirements. To find out the tipped minimum wage by state, review the chart below:

State	2023 Tipped Minimum Wage Effective date is noted. (If no date, in effect currently.)
Alabama	$2.13 for tipped employees.
Alaska	No tip credit. State minimum wage applies.
Arizona	$10.85 ($3 below state minimum wage rate of $13.85) for tipped employees. Effective January 1, 2023.
Arkansas	$2.63 for tipped employees. Applies to employers with four or more employees.
California*	No tip credit. State minimum wage applies.
Colorado	$10.63 ($3.02 max tip credit allowed on state minimum wage which is $13.65). Effective January 1, 2023.
Connecticut	$6.38 for tipped employees and $8.23 for bartenders.
Delaware	$2.23 for tipped employees.
District of Columbia	$5.35 for tipped employees.[1]
Florida	$8.98 for tipped employees. (Effective 9/30/23)
Georgia	$2.13 for tipped employees.
Hawaii	Maximum tip credit is $1.00 per hour bringing minimum cash wage to $11.00 per hour (state minimum wage is $12.00 per hour).
Idaho	$3.35 for tipped employees.
Illinois	$7.80 for tipped employees (60% of state minimum wage) and $10.50 for minors under the age of 18 working fewer than 650 hours per calendar year. January 1, 2023.
Indiana	$2.13 for tipped employees.
Iowa	$4.35 for tipped employees.
Kansas	$2.13 for tipped employees.
Kentucky	$2.13 for tipped employees.
Louisiana	$2.13 for tipped employees.
Maine	$6.90 for tipped employees. (Tip credit up to 50% of state minimum wage of $13.80) Effective January 1, 2023
Maryland	$3.63 for tipped employees.
Massachusetts	$6.75 for tipped employees.
Michigan	$9.60 for tipped employees (80% of state minimum wage) (effective 2/19/23)[2]
Minnesota**	No tip credit. State minimum wage applies.
Mississippi	$2.13 for tipped employees.
Missouri	$6.00 for tipped employees (50% of state minimum wage)
Montana	No tip credit. State minimum wage applies.
Nebraska	$2.13 for tipped employees
Nevada	No tip credit. State minimum wage applies.
New Hampshire	$3.26 (45% of applicable minimum wage)
New Jersey***	$5.26 for tipped employees Effective January 1, 2023
New Mexico	$3.00 for tipped employees Effective January 1, 2023
New York****	$9.45/$10.00 for food service tipped employees, and $11.85/$12.50 for service employees Effective December 31, 2022
North Carolina	$2.13 for tipped employees
North Dakota	$4.86 for tipped employees.
Ohio[3]	$5.05 for tipped employees. Effective January 1, 2023.
Oklahoma	$2.13 for tipped employees.
Oregon*****	No tip credit. State minimum wage applies.
Pennsylvania	$2.83 for tipped employees (if employee earns at least $135.00 in tips per month)
Puerto Rico	Federal minimum wage of $7.25 plus tips to equal Puerto Rico minimum wage.
Rhode Island	$3.89 for tipped employees.
South Carolina	$2.13 for tipped employees.
South Dakota	No less than $5.40 per hour, which will be no less than 50% of the state minimum wage. Effective January 1, 2023
Tennessee	$2.13 for tipped employees.
Texas	$2.13 for tipped employees.
Utah	$2.13 for tipped employees.
Vermont	$6.59 for tipped employees (50% of the state minimum wage).
Virginia	$2.13 for tipped employees.
Washington	No tip credit-state minimum wage applies.
West Virginia	$2.62 for tipped employees (tip credit of up to 70% of state minimum wage [$6.13] for employers with 6 or more employees.)
Wisconsin	$2.33 for tipped employees.
Wyoming	$2.13 for tipped employees.

[1]On November 8, 2022, Washington DC voters approved a ballot initiative (82) phasing out tipped minimum wage by 2027. Initiative 82 will eliminate the city’s tipped minimum wage by increasing the minimum wage for tipped workers from $5.35 per hour to $16.10 per hour by 2027, bringing tipped workers up to the same DC minimum wage.

[2] Litigation is ongoing in Michigan relative to the state minimum wage, so please be advised that additional information and/or changes may be forthcoming.

[3] Ohio Minimum wage will apply to businesses with annual gross receipts of $342,000.00 or more per year. For businesses with annual receipts less than $371,000.00 per year after January 1, 2023, the state minimum wage is $7.25 per hour.

November 3, 2022

State Minimum Wage List 2023

Did you know that failure to pay your employees at least the state minimum wage is one of the most common wage and hour violations? Employers can be subject to significant penalties due to this basic oversight.

As the new year approaches, now is the time to review minimum wage rate increases by state for 2023. Be sure to review if and when your state’s minimum wage is increasing by checking our 2023 minimum wage chart.

Even if your state did not technically announce a new minimum wage rate for 2023, some states have their minimum wage rate indexed to inflation, which triggers an automatic increase in the state minimum wage.

The below information reflects minimum wage rates set at the state level, and includes rate increases effective January 1, 2023 unless otherwise noted. Please be aware that your particular city or county may set minimum wage rates that differ from the state level, and that your particular state, city, or county may have increases set for later in 2023 which will be noted next to the anticipated rate if applicable. Please also note the below reflects the minimum wage for non-tipped employees.

State	2022	2023
Alabama	$7.25	$7.25
Alaska	$10.34	$10.85
Arizona	$12.80	$13.85
Arkansas	$11.00	$11.00
California*	$15.00	$15.50
Colorado	$12.56	$13.65
Connecticut	$14.00	$15.00 (effective 6/1/23)
Delaware	$10.50	$11.75
District of Columbia	$15.20	$15.20
Florida	$11.00	$12.00 (effective 9/30/23)
Georgia	$7.25	$7.25
Hawaii	$10.10	$12.00 (effective 10/1/22)
Idaho	$7.25	$7.25
Illinois	$12.00	$13.00
Indiana	$7.25	$7.25
Iowa	$7.25	$7.25
Kansas	$7.25	$7.25
Kentucky	$7.25	$7.25
Louisiana	$7.25	$7.25
Maine	$12.75	$13.80
Maryland	$12.50	$13.25
Massachusetts	$14.25	$15.00
Michigan	$9.87	$12.00 (effective 2/19/23)
Minnesota**	$10.33	$10.59
Mississippi	$7.25	$7.25
Missouri	$11.15	$12.00
Montana	$9.20	$9.95
Nebraska	$9.00	$10.50
Nevada	$9.50	$10.50 (if offer specialized health benefits) $11.25 (all others) (effective 07/01/23)
New Hampshire	$7.25	$7.25
New Jersey***	$13.00	$14.13
New Mexico	$11.50	$12.00
New York****	$13.20	$14.20
North Carolina	$7.25	$7.25
North Dakota	$7.25	$7.25
Ohio	$9.30	$10.10
Oklahoma	$7.25	$7.25
Oregon*****	$13.50	$13.50
Pennsylvania	$7.25	$7.25
Puerto Rico	$8.50	$9.50 (effective 07/01/23)
Rhode Island	$12.25	$13.00
South Carolina	$7.25	$7.25
South Dakota	$9.95	$10.80
Tennessee	$7.25	$7.25
Texas	$7.25	$7.25
Utah	$7.25	$7.25
Vermont	$12.55	$13.18
Virginia	$11.00	$12.00
Washington	$14.49	$15.74
West Virginia	$8.75	$8.75
Wisconsin	$7.25	$7.25
Wyoming	$7.25	$7.25

* CALIFORNIA: $15.50 rate in 2023 applies to all employers in California regardless of employee count (rate in 2022 applied only to employers with 26 or more employees).
^**MINNESOTA: Listed rate is for large employers. Small employers will have a minimum wage of $8.63 per hour.

*** NEW JERSEY: Listed rate is for employers with 7 or more employees; employers with 6 or fewer employees or seasonal employees will have a minimum wage of $12.70. Also, seasonal and small employers were given until 2026 to pay their workers $15 per hour to lessen the impact on their businesses. The minimum hourly wage for these employees will increase to $12.93/hour on Jan. 1, up from $11.90.
^****NEW YORK: Listed rate is for most employers in New York State. New York City and Long Island and Westchester Counties have a minimum wage of $15.00.
***** OREGON: Listed rate is the standard state wage of $13.50 per hour. The minimum wage in the Portland Metro Area is $14.75 per hour and the minimum wage in Nonurban counties is $12.50 per hour. More info >>

October 18, 2022

Connecticut Adds CT FMLA Notice Requirements

Connecticut has adopted new family and medical leave (CT FMLA) regulations. While the updated regulations primarily incorporate the changes to the law that took effect on January 1, 2022, they also create new notice requirements, described below.

According to the Connecticut Department of Labor (CT DOL) website, the regulations will be retroactive to January 1, 2022. If an employee took CT FMLA leave since January 1, 2022, it’s reccommended to provide the notices now. You can review the regulations here.

Note that CT FMLA is distinct from CT paid family and medical leave, although the two will often run concurrently.

General Notice

Employers must provide employees with written notice of their rights and obligations under CT FMLA upon hire. This notice can be distributed electronically, and the CT DOL provides a sample notice here.

Eligibility and Rights and Responsibilities Notice

Employers must provide an employee with a written notice regarding their eligibility and their rights and responsibilities. This must be provided within five business days of when the employee requests CT FMLA leave or when the employer has enough information to know that the employee’s leave might be for a qualifying reason under CT FMLA. The CT DOL has provided a template form here.

Designation Notice

Employers must also provide an employee with written notice of whether a leave will be designated as CT FMLA leave within five business days of knowing whether the leave qualifies. The CT DOL has provided a template form here.

Action Items

Add a CT FMLA notice to your new-hire paperwork.
Revise your leave administration process to ensure that you provide the Eligibility Notice and Designation Notice to employees within the required timeframes.
If 10 percent or more of your workforce can’t read English, provide the notices in a language the employee can read, as required by the regulations.

October 13, 2022

New York Paid Family Leave Changes

New York state implemented a Paid Family Leave (PFL) program in 2018. New York PFL provides up to 12 weeks of paid leave for the following:

Bonding with a new child.
Caring for a family member with a serious health condition.
Assisting loved ones due to deployment abroad of an active-duty service member.

New York recently announced two changes to the program – decreasing the contribution rate and increasing the maximum weekly benefit.

What is the Contribution Rate for New York Paid Family Leave for 2023?

The contribution rate for New York Paid Family Leave for 2023 is .455% of an employee’s wages each pay period. The amount cannot exceed $399.43. This new rate is a 10% reduction from the premium rate for 2022, which was 0.511% with a maximum employee contribution of $423.71.

If an employee’s contributions reach the new maximum of $399.43 before the end of the calendar year, then the employee will not be liable for any contributions in excess of this threshold. The change also provides that the 0.005% surcharge included in the rates for 2021 and 2022 to cover COVID-19 claims paid under the New York COVID-19 paid sick leave law will not be included in the 2023 rate.

What is the Maximum Weekly Benefit for New York Paid Family Leave for 2023?

The maximum weekly benefit for New York Paid Family Leave for 2023 is $1,131.08 per week. This is based on an increased New York State Average Weekly Wage (NYSAWW) of $1,688.19 (the maximum benefit under the program is calculated as 67% of the NYSAWW). This new rate is a $62.72 increase over 2022.

For more information, please visit the New York Paid Family Leave website.

October 13, 2022

Key Dates: New Hampshire Paid Family and Medical Leave

New Hampshire Paid Family and Medical Leave (NH PFML) plan coverage begins January 1, 2023, and employer open enrollment begins December 1, 2022. New Hampshire has selected Metropolitan Life (MetLife) as the state insurance partner. The NH PFML plan is the first voluntary, state-sponsored plan in the country and is available to all New Hampshire employers and employees.

New Hampshire Paid Family and Medical Leave Qualifying Events

Employers and employees (if the employer does not provide NH PFML or an equivalent benefit) may purchase insurance to provide wage replacement benefits up to 60% of an employee’s wages (up to the Social Security wage cap) for up to six (6) weeks per year for absences from work due to qualifying life events. The qualifying events for New Hampshire paid Family and Medical Leave include:

Serious health condition not covered by disability (includes childbirth)
Bonding with a child during its first year (includes adoption, fostering)
Caring for a family member with a serious health condition
Demands or needs regarding an active duty spouse, child, or parent
Caring for a covered service member with a serious injury or illness if spouse, child, parent, or next of kin

New Hampshire Paid Family and Medical Leave Tax Credits

Employers who participate and purchase plan coverage through MetLife are eligible for a Business Enterprise Tax Credit (BET) equal to 50% of the NH PFML insurance premium that they pay. While employers can choose to offer a plan duration of twelve (12) weeks of paid leave, the BET credit will only be calculated on the premiums payable by the employer for the 6-week plan duration.

Employers may fully fund the premium cost, assign the full cost to the employee, or allocate the cost between the employer and employee in the configuration of its choosing. According to the NH PFML website, the cost of the plan for employers will be determined by “work[ing] directly with MetLife to customize NH PFML Insurance and premium to meet their business needs within regulatory parameters set by the state.” The BET credit is not applied to premiums payable by employees.

Is New Hampshire Paid Family and Medical Leave Mandatory?

New Hampshire Paid Family and Medical Leave is a voluntary program. Employers are not obligated to participate in the plan. However, employers are required to support the NH PFML insurance claims process.

However, even if employers choose not to participate, they still need to support the claims process for their covered workers by providing wage and leave information, work schedules, and other benefit information as requested by MetLife.

New Hampshire Paid Family and Medical Leave Alternatives

If employers want to provide paid family and medical leave benefits to their employees, but do not want to purchase coverage from MetLife, then they can provide other paid family and medical insurance leave plans approved by the NH Department of Insurance or provide self-insured equivalent benefit coverage. However, if employers elect not to purchase coverage through MetLife, they’re not eligible for the BET credit.

New Hampshire Paid Family and Medical Leave Payroll Deductions

For employers with 50 or more employees, worker premium payments must be collected via payroll deduction, even if workers purchase coverage under a NH PFML individual plan. If the employer assumes the total cost of the premiums for its employees, then payroll deduction is not required. Employers with 50 or more employees are required to restore workers to the position they held or its equivalent (pre-leave) when such leave is over, and must continue to provide health insurance during periods of leave, with employees continuing to meet their share of costs associated with such coverage.

Employers with less than 50 employees are not required to utilize payroll deductions to collect worker premium payments, and can make payment arrangements directly through MetLife. If smaller employers choose not to offer coverage and their employees enroll in individual coverage, then these employees will be responsible for their own premium payments.

Under the NH PFML plan, there is an unpaid waiting period of one week prior to benefits being paid, and a seven (7) month waiting period before an employee becomes eligible to submit a claim for benefits. Under the plan, premiums cannot exceed $5.00 per week, and leave may be taken on either a continuous or intermittent basis, in at least four (4) hour increments.

For more information, please visit the NH PFML website for employers.

October 3, 2022

Maryland HR Compliance Updates: Fall 2022

There are several new pieces of legislation in Maryland that went into effect October 1, 2022:

The first new Maryland legislation (SB450) alters the definition of harassment as it pertains to employment discrimination.
The second (SB451) tolls the statute of limitations for an employee to file a civil action alleging an unlawful employment practice while an administrative charge is pending.
The third (HB78) extends disability accommodations to job applicants.

Maryland Definition of Employment Harassment Altered

SB450 alters the definition of harassment to include unwelcome and offensive conduct which need not be severe or pervasive and the “conduct is based on race, color, religion, ancestry or national origin, sex, age, marital status, sexual orientation, gender identity, or disability.” The new definition also defines sexual harassment as “conduct, which need not be severe or pervasive, that consists of unwelcome sexual advances, requests for sexual favors, or other conduct of a sexual nature.” To constitute harassment, including sexual harassment, “(1) submission to the conduct is made either explicitly or implicitly a term or condition of employment of an individual; (2) submission to or rejection of the conduct is used as a basis for employment decisions affecting the individual; or (3) based on the totality of the circumstances, the conduct unreasonably creates a working environment that a reasonable person would perceive to be abusive or hostile.” By removing the requirement that conduct be severe or pervasive, complainants enjoy a decreased burden of establishing a claim for harassment in the employment context, potentially increasing the number of claims that employers may be subjected to.

Maryland Statute of Limitations Tolled for Unlawful Employment Practice Suits

Under existing Maryland law, a complainant may bring a civil action alleging an unlawful employment practice if the complainant initially filed a timely administrative charge or a complaint under federal, State, or local law; at least 180 days have elapsed since the filing of the administrative charge or complaint; and the complaint was filed within the applicable statute of limitations. The statute of limitations for a plaintiff to file a civil action on the basis of an unlawful employment practice is “two (2) years after the alleged unlawful employment practice occurred; or if the complaint is alleging harassment, the civil action is filed within 3 years after the alleged harassment occurred.” SB451 tolls the statute of limitations for a complainant to file a civil action alleging an unlawful employment practice while an administrative charge or complaint is pending, thereby providing complainants with additional time to initiate a lawsuit. Delays in the disposition and processing of an administrative charge or proceeding could significantly expand the time period for employees to commence a civil action, delaying finality for employers as well as potentially impeding their ability to defend against claims due to the passage of time.

Disability Accommodations Extended to Applicants for Employment

Lastly, HB78, extends an employer’s existing obligation to reasonably accommodate an employee’s disability to applicants for employment as well, unless such accommodation would cause “undue hardship on the conduct of the employer’s business”. This requirement is also effective October 1, 2022, and is applicable to employers with fifteen (15) or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year.

October 3, 2022

How to Improve Your Performance Reviews Process

The below is a post by Felicia Corbeil, Human Resources Manager at Checkwriters. Her particular areas of focus include hiring, benefits administration, and, more recently, the design, development, and launch of comprehensive performance review processes.

Performance Reviews are effective, mainly because employees want feedback about their job. However, organizations often run into difficulties building a process that works for their managers and employees. When performance reviews are done correctly, they’re a huge benefit to the entire team!

The secret to building an effective performance review process is by keeping the focus on individual employee growth. HR leaders can use a mix of formal and informal reviews to achieve this.

The rest of this article will detail several best practices HR leaders can use to create an effective performance review process that will benefit employees, managers, and the organization.

How To Keep the Performance Review Focus on Individual Employee Growth

While the frequency of performance reviews depends on various factors like industry, size, and culture, it’s widely understood that one formal review per year is not sufficient for a process focused on employee growth.

Rather, managers should meet with their team at a pace that makes sense for their department and utilize a mix of formal and informal conversations regarding an employee’s performance and goals.

For example, if an employee finds a solution to a long-standing problem, they absolutely deserve praise in the moment – not at a formal review process months later! Alternatively, an employee making the same mistake regularly should be corrected quickly.

While these suggestions may seem obvious, employees can fail or seek work elsewhere when HR and/or individual managers neglect to treat performance reviews as an ongoing process, and instead fall back on the formal scheduled performance review as a catch-all for both praise and correction.

What an Informal Review Should Look Like

Informal reviews with a team should be regularly occurring – even weekly. A manager’s job is to run their team effectively, and a team cannot run effectively without communication and coaching. These types of reviews can be quick five-minute conversations regarding current workload, time-sensitive issues, and individual employee goals.

Informal reviews are the perfect opportunity to raise potential issues and discuss and present ways to make improvements. When appropriate, these informal check-ins can serve as opportunities to get to know employees on a more personal level, which can help in understanding how they receive and respond to praise and criticism.

Following these informal conversations, compose and date a quick note consisting of conversation highlights. This will provide you with a log of highs and lows of individual employee performance for the time periods between formal reviews. Then, when it comes time for formal reviews, raises, promotions, or even a termination, you have all the information necessary to suggest appropriate action.

What a Formal Review Should Look Like

Formal reviews should also be conversational in tone. The significant difference, however, should be a focus on the future rather than the immediate: where do employees see themselves between now and the next formal review? What goal(s) do employees have for themselves, the team, and the company as a whole?

During the formal review, all those informal reviews and conversations come into play, as the manager has had the opportunity to build a relationship with members of the team and should understand individual strengths and struggles. Armed with this knowledge, managers can work with individual employees to build a roadmap to individual, team, and company goals.

Again, formal reviews should focus on employee improvement for the future. Examples include obtaining relevant certifications, tackling problems within the team or company they can be tasked with solving, or additional leadership opportunities or project ownership.

As stated earlier, part of those informal reviews should be asking and coaching that employee through the goals set in this formal review. An employee’s ability to meet these established goals is almost equal parts employee and manager responsibility.

Conclusion

Performance reviews are effective, and both informal and formal reviews are important to a manager’s relationship with their employees. When managers have an open line of communication – during good times and bad – it makes for a better work experience for everyone. Most employees want to grow and improve, and managers are the leaders who can help make that happen!

October 3, 2022

What is the FUTA tax rate for 2022?

Employers pay a variety of federal, state, and local taxes. One of these taxes is Federal Unemployment Tax – more commonly referred to in payroll parlance as “FUTA.”

All employers must pay FUTA, which funds the Federal Unemployment Trust Fund administered by the Department of Labor (DOL). The FUTA tax rate is 6%, and employers can usually receive a FUTA tax credit of 5.4%. Employers in some states may owe more tax due to what’s known as a FUTA tax credit reduction.

This article will provide some background on FUTA and the FUTA tax credit, and then review which states are considered FUTA tax credit reduction states in 2022.

What is the FUTA tax?

Under the Federal Unemployment Insurance Tax Act (FUTA), the federal government levies a tax on employers covered by a state’s unemployment insurance program to fund the Federal Unemployment Trust Fund administered by DOL.

The fund is used to supplement the cost of extended unemployment benefits during times of high unemployment. It also serves as a loan resource which states may borrow from to pay unemployment insurance benefits to their residents. The FUTA tax covers the administration costs for all unemployment insurance and job service programs in all states.

The standard FUTA tax rate levied on employers is 6% applied to the first $7,000.00 in wages paid by the employer to the employee (FUTA wage base). However, employers may receive a FUTA tax credit of 5.4% when they file their annual Form 940 Return if they pay their state unemployment taxes in full, on time, and the state is not determined to be a credit reduction state.

What is a FUTA credit reduction?

Depending on which state you operate in, you may end up with a higher FUTA tax.

This is because some states have outstanding balances on loans taken from the Federal Unemployment Trust Fund. If that’s the case, the 5.4% FUTA tax credit employers typically enjoy is reduced.

Specifically, if states have outstanding loan balances on January 1 for two consecutive years, and do not pay the full balance by November 10 of the second year, then the FUTA tax credit is reduced until the loan is repaid in full. This results in a higher tax due from the employer on its annual Form 940 return.

What is the amount of the FUTA credit reduction?

The amount the credit is reduced is .3% per year, for each year the loan remains unpaid. So, that means that most states subject to a credit reduction will only get a credit of 5.1 rather than the standard 5.4.

Which states/jurisdictions have a FUTA credit reduction in 2022?

There are four states with a FUTA credit reduction in 2022: California, Connecticut, Illinois, and New York.

Nine states and one jurisdiction faced a potential FUTA credit reduction in 2022. However, five of these states repaid their loan balance before November 10, 2022 thereby avoiding a FUTA credit reduction. Four states – California, Connecticut, Illinois, and New York – had an outstanding loan balance on each January 1 from 2021 through 2022, and did not repay all their advances before November 10, 2022. Therefore employers in these states face a 0.3% credit reduction. The US Virgin Islands had an outstanding advance on each January 1 from 2010 through 2022, and did not repay all outstanding advances before November 10, 2022. The US Virgin Islands applied for a waiver of the fifth year (BCR) add-on and was determined to be eligible for the waiver, therefore employers in the US Virgin Islands will face a 3.6% credit reduction.

Employers in these states and the U.S. Virgin Islands should plan accordingly for the higher FUTA tax liability for 2022. Remember, increased FUTA tax liability is assessed in Quarter Four and due by January 31 of the following year.

Additional resources for employers subject to the FUTA tax credit reduction can be found on the IRS website as well as the U.S. Department of Labor website.

October 3, 2022

Oregon Equal Pay Act

The Oregon Equal Pay Act (OEPA) was enacted in 2017, and prohibits employers from engaging in pay discrimination for comparable work on the basis of certain protected characteristics. Compensation is broadly defined under the OEPA, but this definition was narrowed temporarily in response to hiring and retention obstacles facing employers as a result of COVID-19.

In order to provide flexibility to employers navigating hiring and worker retention challenges which arose during the pandemic, the OEPA was amended to include time-limited exceptions for certain forms of compensation which employers could provide to employees without adhering to OEPA’s strict equal pay requirements. These exceptions included vaccine incentives, hiring bonuses, and retention bonuses. However, these exceptions expired on September 28, 2022, the 180^th day following expiration of Oregon’s state of emergency on April 1, 2022, per the terms of the legislation.

Employers should review their practices for vaccine incentives, hiring bonuses, and retention bonuses and evaluate whether such practices comport with the law’s pay equity requirements following September 28, 2022.

Background on the Oregon Equal Pay Act (OEPA)

The Oregon Equal Pay Act (OEPA) was enacted in 2017, and became generally enforceable by the Oregon Bureau of Labor and Industries in 2019.* Here are some of the highlights of the law you should be aware of:

The OEPA prohibits employers from engaging in pay discrimination for comparable work on the basis of race, color, religion, sex, sexual orientation, national origin, marital status, veteran status, disability, or age.
Employers are prohibited from reducing employee compensation in order to equalize pay amongst employees to comply with the law.
Differential pay for comparable work is permitted in limited circumstances, if the pay structure is consistent and verifiable, and the reason for the difference in pay is based on one or more of the following bona fide factors: “a seniority system, a merit system, a system that measures earnings by quantity or quality of production, including piece-rate work, workplace location, travel, education, training, or experience.”
Compensation is broadly defined under the OEPA and includes wages, salary, bonuses, benefits, fringe benefits and equity-based compensation.
Employers are required to post pay equity workplace posters.
Employers are prohibited from retaliating against an employee and/or discriminating against an employee who makes a complaint under the law or who cooperates with an investigation related to the law.
Employers may not screen potential candidates based upon their previous earnings history, nor may employers determine compensation for a job based on the current or past compensation of a prospective new employee, excluding internal transfers. *Employers who violate the Act’s ban on salary history inquiries may not be subject to a civil action by employees until January 1, 2024.

Additional information for employers may be found on the Oregon Bureau of Labor and Industries website.

Disclaimer: The information contained herein is not intended to be construed as legal advice, nor should it be relied on as such. Employers should closely monitor the rules and regulations specific to their jurisdiction(s) and should seek advice from counsel relative to their rights and responsibilities.

June 30, 2022

Connecticut expands workplace notice and protections for those affected by domestic violence

On May 24, 2022, Connecticut passed Public Act No. 22-82 which provides for enhanced protection for victims of domestic violence. Effective October 1, 2022, an employer with 3 or more employees must post in a prominent place information concerning domestic violence and the resources available to victims of domestic violence in Connecticut. Additionally, victims of domestic violence are protected from discrimination by current or future employers, and reasonable accommodations must be made available for employees who are the victims of domestic violence. Employers must provide a reasonable leave of absence for employees to seek attention for injuries sustained as a result of domestic violence, including for a child; to obtain safety planning or counseling; and to obtain legal services regarding an incident of domestic violence. In order to receive these enhanced protections, an employee who is absent from work as a result of the above must provide certification when requested by an employer of the reason for leave within a reasonable amount of time. Certification includes a police report; court order of protection from the domestic violence perpetrator; other evidence that the employee appeared in court; or documentation from a medical provider, domestic violence counselor, or other health care provider that the employee or child of the employee was receiving services as a result of victimization from an act of domestic violence. To the extent permitted by law, employers are required to maintain the confidentiality of any information they receive about an employee’s status as a victim of domestic violence.

June 30, 2022

Virginia revised overtime standards

Starting July 1, 2022, revised overtime standards will become effective in Virginia, which align more closely with the overtime standards and requirements of the FLSA. Virginia enacted the Virginia Overtime Wage Act (VOWA) in March 2021 which created new state overtime pay requirements including a different calculation of the regular rate of pay for non-exempt salaried workers, heightened damage awards and penalties for employers who violate the Act, and expansion of the statute of limitations on claims from two years to three years. On April 11, 2022, Governor Youngkin signed into law a bill which substantially revises and repeals the amendments created by VOWA in 2021.These changes become effective on July 1, 2022. However, employers should be mindful that enhanced liquidated damages and prejudgment interest for overtime violations remain available to plaintiffs as does the expanded statute of limitations period of three years under legislation which pre-dates VOWA.

June 30, 2022

Nevada minimum wage update

Nevada state-wide minimum wage will increase as follows effective July 1, 2022:Employer offering qualified health insurance benefits: $8.75 to $9.50 per hour.Employer not offering qualified health insurance benefits: $9.75 to $10.50 per hour.
Employer offering qualified health insurance benefits: $8.75 to $9.50 per hour.
Employer not offering qualified health insurance benefits: $9.75 to $10.50 per hour.
There is no tip-credit recognized in Nevada.

June 30, 2022

Washington, D.C. minimum wage update

Washington, D.C. District-wide minimum wage will increase from $15.20 to $16.10 per hour effective July 1, 2022.
Service rate for tipped employees will increase from $5.05 to $5.35 per hour.

June 30, 2022

Connecticut minimum wage update

The Connecticut State-wide minimum wage will increase from $13.00 to $14.00 per hour effective July 1, 2022.
The service rate for tipped service employees and bartenders will remain at $6.38 and $8.23, respectively.While the employer’s share for tipped employees remains fixed at the values above for the current time, the value of the employer tip credit will increase with each minimum wage increase as the delta between the fixed employer share and the updated state minimum wage also increases.
While the employer’s share for tipped employees remains fixed at the values above for the current time, the value of the employer tip credit will increase with each minimum wage increase as the delta between the fixed employer share and the updated state minimum wage also increases.

June 30, 2022

Oregon minimum wage update

Oregon state-wide minimum wage will increase from $12.75 to $13.50 per hour effective July 1, 2022.Minimum wage in the Portland-metro area will increase from $14.00 to $14.75 per hour.Minimum wage in non-urban counties will increase from $12.00 to $12.50 per hour.
Minimum wage in the Portland-metro area will increase from $14.00 to $14.75 per hour.
Minimum wage in non-urban counties will increase from $12.00 to $12.50 per hour.
There is no tip-credit recognized in Oregon.

June 30, 2022

Florida minimum wage update

Florida state-wide minimum wage will increase from $10.00 to $11.00 per hour effective September 30, 2022. Florida traces the FLSA requirements as to tipped employees, utilizing the federal tip credit of $3.02 per hour. The direct wage or service rate for tipped employees will therefore increase from $6.98 per hour to $7.98 per hour based on Florida’s increased minimum wage.

June 30, 2022

IRS increases standard mileage rate for remainder of 2022

EFFECTIVE JULY 1, 2022: The Internal Revenue Service announced an increase in the optional standard mileage rate for the final 6 months of 2022. Taxpayers may use the optional standard mileage rates to calculate the deductible costs of operating an automobile for business and certain other purposes.

For the final 6 months of 2022, the standard mileage rate for business travel will be 62.5 cents per mile, up 4 cents from the rate effective at the start of the year. The new rate for deductible medical or moving expenses (available for active-duty members of the military) will be 22 cents for the remainder of 2022, up 4 cents from the rate effective at the start of 2022. These new rates become effective July 1, 2022. READ MORE >>

June 30, 2022

Alabama extends FMLA leave to adoptive parents

In April 2022, the Alabama legislature passed the Adoption Promotion Act, requiring employers concurrently with federal law, to offer 12 weeks of family leave to eligible employees for the birth and care of a child during the first year following birth, as well as for an adopted child within one year of placement. For employers that provide additional maternity benefits to female employees, the new law would require employers to extend those same benefits to adoptive parents as well. Additionally, the law would permit state employees and members of the Teachers’ Retirement System to purchase service credit for up to one year for the purpose of family leave. The new leave requirements go into effect on July 1, 2022.

June 30, 2022

Illinois DOL issues guidance on equal pay act

The Illinois Equal Pay Act was amended in 2021 to include new requirements for private employers with 100 or more employees in the state of Illinois who are required to file an annual Employer Information Report EEO-1 with the Equal Employment Opportunity Commission. These requirements include equal pay registration certification, pay data and other demographic reporting, and certification of compliance with the Act’s equal pay provisions as well as other applicable state and federal laws regarding equal pay. Every business that is authorized to transact business in the state after March 23, 2021, and which is subject to the Act’s requirements must submit an application to obtain an Equal Pay Registration Certificate (EPRC) and must recertify every two years thereafter. Businesses must have current contact information with the Illinois Department of Labor (IDOL). This information will be used by the IDOL to assign each business a date by which it must submit an application to obtain an EPRC; this due date will be issued at least 120 calendar days prior to when the application is due according to the latest guidance released by the IDOL.

The recently- issued guidance and compliance resources for employers from the IDOL include:

Businesses should closely review the Frequently Asked Questions for guidance and examples including how and when businesses are to determine total number of employees, how new businesses should contact the IDOL to commence the registration process, how to apply for an EPRC, whether remote employees should be included in the total employee count for reporting purposes, and information on penalties and consequences for non-compliance.

June 30, 2022

UPDATE: Florida’s DE&I prohibitions blocked by federal judge

UPDATE: Florida’s Prohibition on Certain DE&I Trainings as Condition of Employment blocked by Federal Judge.

On July 1, 2022, House Bill 7, went into effect in Florida prohibiting employers with fifteen (15) or more employees from requiring some types of diversity, equity and inclusion training for their employees which endorse eight specific concepts about discrimination. A lawsuit, together with a motion for preliminary injunction was filed by Honeyfund.com, Inc. and others (including diversity and inclusion training consultants) alleging that the Act violates their right to freedom of speech under the First Amendment. On August 18, 2022, Chief Judge for the US District Court for the Northern District of Florida Mark E. Walker granted the motion for a preliminary injunction, prohibiting enforcement of the law until further notice, citing that the law violates freedom of speech protected by the First Amendment. A copy of the 44-page opinion can be found here, where Chief Judge Walker refers to Florida as the “First Amendment upside down”, citing Netflix’s hit streaming show Stranger Things, and states that the Court is once again called upon to pull Florida back from the brink.

Employers should continue to monitor the situation as it develops and consult legal counsel with any questions or concerns as to their specific situation.

June 30, 2022

Pennsylvania new regs for tipped employees and O/T calculation for nonexempt salaried employees

Effective August 5, 2022, new regulations governing tipped employees and nonexempt salaried employees will become effective in Pennsylvania. The final rules were published in the May 7, 2022 edition of the Pennsylvania Bulletin.

These new regulations include:

Raising the salary threshold for tipped employees from $30.00 per month to $135.00 per month;
Rules for when an employer may use a tip credit for an employee’s non-tip producing work;
Rules on tip-pooling and prohibitions on deductions from tips for fees that are charged to the employer such as credit card fees;
Rule formally prohibiting the use of the Fluctuating Work Week method of calculation for a nonexempt salaried employee’s overtime pay under the FLSA. Instead, the final rule provides that “’the regular rate’ in all cases for salaried workers should be calculated based on a regular, 40-hour workweek and not the total hours worked including overtime, which may be irregular and inconsistent from week to week.”

In prohibiting the FWW methodology in favor of a calculation on a regular, 40-hour week, PDLI found that that this calculation was “in the public interest because it will assure that employees who are compensated under the fluctuating workweek method are not paid less because they work more hours . . . and is in accordance with the purpose of the act which is to protect workers from unreasonably low wages.”

The final regulations also include notice and recordkeeping requirements for tip-pool arrangements. Employers are required to provide notice to affected employees at or before the time the employer makes an employment offer or at least one pay period before tip pooling arrangement takes place.

June 30, 2022

Data security breach notification: Arizona and Indiana

Arizona and Indiana have both enacted legislation imposing new notice requirements in the event of a data security breach. Effective July 23, 2022, Arizona passed HB 2146 which provides that businesses in the state which own, maintain, or license unencrypted and unredacted computerized personal information must additionally notify the Director of the Arizona Department of Homeland Security in the event of a data security breach which requires notification of more than 1000 individuals. Effective July 1, 2022, Indiana passed HB 1351 which provides a timeline for disclosure of a data security breach. The new law states that any person required to make a disclosure or notification under Indiana’s data security breach statute must do so without “unreasonably delay”, but not more than 45 days after the discovery of the breach. Arizona already has an existing 45-day notice requirement.

June 30, 2022

Maine updates PTO payout requirements upon termination for employers with 11 or more employees

On April 7, 2022, H.P. 160 – L.D. 225 was approved by Governor Mills, which requires that all unused paid vacation time pursuant to an employer’s vacation policy on or after January 1, 2023, must be paid to the employee on cessation of employment unless the employee is employed by an employer with 10 or fewer employees or by a public employer. Employers found in violation of this requirement may be liable for the amount of all accrued vacation pay that must be paid to the employee, in addition to a reasonable rate of interest and an additional amount equal to twice the amount of accrued vacation pay as liquidated damages and the cost of suit, including attorney’s fees. The effective date of the legislation is August 8, 2022.

June 28, 2022

New Mexico paid sick leave begins July 1

UPDATE: New Mexico Sick Leave begins July 1. Employers should familiarize themselves with the specifics of the program, which can be found below.

Background

On April 8, 2021, Governor Lujan Grisham signed into law the Healthy Workplaces Act (HB 20) which requires private employers to provide paid sick leave to their workforces. Effective July 1, 2022, private employers in the state of New Mexico who employ at least one employee at any time, must provide all their employees with one (1) hour of paid sick leave for every thirty (30) hours worked, up to a maximum of sixty-four (64) hours of paid sick leave per year. For purposes of meeting the “one employee” requirement, employees include those who are full-time, part-time, seasonal, and temporary.

An employer has the discretion to define what constitutes a “year” (calendar, fiscal, employee’s anniversary, or twelve months from the employee’s first request for leave) in calculating an employee’s maximum accrual. Employers also have the discretion to provide the full sixty-four (64) hours of paid sick leave for the upcoming year on January 1 of each year or, for employees whose employment begins after January 1 of a given year, a pro rata portion of the sixty-four hours for use in the remainder of that year. Employers may provide greater than the sixty-four (64) hour maximum sick leave to its employees as provided by statute, but are not required to do so.

Accrued, but unused paid sick leave may carry over from year to year, but an employer is not required to provide greater than sixty-four (64) hours of paid sick leave during a twelve-month period. Notably, the statute explicitly does not require that accrued, but unused sick leave be paid out upon an employee’s termination, resignation, or retirement. However, an employee who is rehired within twelve months from the date of separation is entitled to the accrued, but unused sick leave then existing at the time of the employee’s separation.

Employees may use paid sick leave for any of the following reasons:

For the employee’s:mental or physical illness, injury, or health condition;medical diagnosis, care or treatment of a mental or physical illness, injury or health condition; orpreventive medical care.
mental or physical illness, injury, or health condition;
medical diagnosis, care or treatment of a mental or physical illness, injury or health condition; or
preventive medical care.
For care of family members of the employee for:mental or physical illness, injury or health condition;medical diagnosis, care or treatment of a mental or physical illness, injury or health condition; orpreventive medical care.
mental or physical illness, injury or health condition;
medical diagnosis, care or treatment of a mental or physical illness, injury or health condition; or
preventive medical care.
For meetings at the employee’s child’s school or place of care related to the child’s health or disability.
For absence necessary due to domestic abuse, sexual assault or stalking suffered by the employee or a family member of the employee; provided that the leave is

for the employee to:

Obtain medical or psychological treatment or other counseling;
Relocate;
Prepare for or participate in legal proceedings; or
Obtain services or assist a family member of the employee with any of the activities set forth above.

Employers must provide notice to their employees of their rights and benefits under the new law at the time of hiring, and must display a poster summarizing employee rights under the law in a conspicuous place at each establishment where employees report.

The law also provides for anti-retaliation provisions to prevent employers from discouraging or otherwise taking adverse action against employees who exercise or attempt to exercise their rights under the law. Employers are also required to retain all documentation of hours worked and paid sick leave taken by their employees for a period of four years.

April 15, 2022

EEO-1 reporting now open: deadline May 17

The Employer Information Report EEO-1 Component 1, or the EEO -1 Component 1 Report, is OPEN. The deadline to submit and certify the EEO-1 Component 1 Report is Tuesday, May 17th, 2022. Employers can file their information through the EEO-1 Component 1 Online Filing System (OFS).

Who needs to file?

Employers subject to the EEO-1 Component 1 Data Reporting include private employers subject to Title VII of the Civil Rights Act of 1964 with 100 or more employees including non-profits and not for profit organizations, among others. Full-time and part-time employees are includable in the Report.

Additional information

The best place to review all relevant information regarding EEO-1 is on this EEOC information page >>

EEO-1 Component 1 filers can now access helpful resources, including the 2021 EEO-1 Component 1 Instruction Booklet and frequently asked questions (FAQs), by visiting the Filer Support Center at https://eeocdata.org/eeo1/support.

By logging in to the enhanced EEO-1 Component 1 Online Filing System (OFS), returning users can also complete select self-service functions, such as adding or changing EEO-1 Component 1 contact(s) associated with their companies and inviting registered users to link their accounts to your company. Returning users may sign in to the EEO-1 Component 1 OFS by visiting https://eeocdata.org/eeo1/signin and using the email address and password they established for the 2019/20 EEO-1 Component 1 data collection. Returning users will be prompted to reset their password before proceeding. If you do not know your password, select “Forgot Password.”

New users may create an individual user account to access the EEO-1 Component 1 OFS. This can be done by visiting https://eeocdata.org/eeo1/signin and selecting “Create an Account.” After creating an account and signing in to the EEO-1 Component 1 OFS, new users can link their individual user account to an existing company record by selecting “Add Company to Your List” on the Home screen and:

entering certain information about their company, such as the company EIN and number of employees entered during the 2020 EEO-1 Component 1 Report, or
entering their Company ID and PIN, sent via postal mail in early April.

April 11, 2022

“Why do my employees owe money to the IRS?” New Form W4 could be the culprit

As a payroll and tax service provider, Checkwriters occasionally receives calls from employers forwarding questions they’ve had from their employees regarding tax withholding and potential money owed to the IRS. Of course, this situation can quickly become a burden for business owners, payroll and HR departments, and business offices – especially if the answer isn’t immediately clear.

The answer is often found in how dependents are calculated on the new Form W4.

Beginning in 2020, the IRS rolled out a new Form W4 that allows an employee to claim dependents differently than in years prior. On Forms W4 for years 2019 and prior, an employee would claim dependents using a number (e.g. Four [4] dependents). On Forms W4 for years 2020 and forward, an employee has the option to claim dependents using a dollar amount.

In prior years, employees would get a larger tax credit after filing taxes. However, this new W4 calculation process allows for more employees to retain a larger amount of their paycheck throughout the year, and therefore less of a tax credit after filing taxes.

Checkwriters cannot advise an employee on how to fill out the Form W4. However, we can certainly provide information to assist employers in explaining to their employees how and why certain items are calculated.

The below information should help both you and your employees.

Resources:

FITW IRS tax calculator >>

IRS Publication 15 >> (Note the wage bracket method on pages 8-21, which is a reliable estimator of what a given employee will have taken from their checks)

Example:

Joe Smith is paid weekly and has $1,500.00 in taxable wages for Federal Income Tax (FIT). His Form W4 states he files “Married” and claims $2,000.00 for his dependents.

The $2,000.00 is what the IRS sees Joe Smith should receive for a tax credit for claiming a dependent.

Take the dependent amount and divide by the number demonstrating employer pay frequency (weekly, bi-weekly, etc.).

$2,000.00 / 52 (weekly) = $38.46 << this is the amount of a tax credit he should receive each week

Next, take a look at IRS publication 15 – wage bracket method, based on his taxable income, pay frequency, and filing status.

Based on the table below, approximately $114 should be withheld each pay period
*this does not account for the $38.46 credit above*

Take the $114 less the $38.46 and Joe Smith should have approximately $75.54.
*this amount is solely based on his taxable wages of $1,500.00*

If we plug these same numbers for Joe Smith into the IRS calculator, the difference is merely $1.46.

Recruit & Hire

Manage & Engage

What are the FLSA white-collar exemptions?

What should employers expect?

Background

Michigan Paid Medical Leave Act

What is an Eligible Employee under the Michigan Paid Medical Leave Act?

Michigan Minimum Wage

Background: What is the New York State Pay Transparency Law?

When Does the New York Pay Transparency Law Take Effect?

What Are the Recent Amendments to the New York Pay Transparency Law?

Employer Takeaway

When Does Illinois Paid Leave Take Effect?

Who is Covered by Illinois Paid Leave?

Accrual and Use of Illinois Paid Leave

Illinois Paid Leave Notice Requirements

Employer Responsibilities Under Illinois Paid Leave

Penalties and Enforcement

General Notice

Eligibility and Rights and Responsibilities Notice

Designation Notice

Action Items

What is the Contribution Rate for New York Paid Family Leave for 2023?

What is the Maximum Weekly Benefit for New York Paid Family Leave for 2023?

New Hampshire Paid Family and Medical Leave Qualifying Events

New Hampshire Paid Family and Medical Leave Tax Credits

Is New Hampshire Paid Family and Medical Leave Mandatory?

New Hampshire Paid Family and Medical Leave Alternatives

New Hampshire Paid Family and Medical Leave Payroll Deductions

Maryland Definition of Employment Harassment Altered

Maryland Statute of Limitations Tolled for Unlawful Employment Practice Suits

Disability Accommodations Extended to Applicants for Employment

How To Keep the Performance Review Focus on Individual Employee Growth

What an Informal Review Should Look Like

What a Formal Review Should Look Like

Conclusion

What is the FUTA tax?

What is a FUTA credit reduction?

What is the amount of the FUTA credit reduction?

Which states/jurisdictions have a FUTA credit reduction in 2022?

Background on the Oregon Equal Pay Act (OEPA)

Background

Who needs to file?

Additional information

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