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.

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 >>

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.

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

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.

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.

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

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

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

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 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

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

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

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

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

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

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 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.

April 1, 2022

Connecticut employers must register for state-sponsored retirement plan

Background

Connecticut is the latest addition to a handful of states implementing state-sponsored retirement programs for private sector employers. MyCTSavings is the offering created by the Connecticut Retirement Savings Authority (CRSA) to provide a retirement vehicle for private sector employees whose employers do not already offer a qualified retirement savings plan for their employees. As explanation for the new requirement, the CRSA estimates that approximately 600,000 Connecticut employees do not have access to employer-sponsored retirement plans.

The program administrator is Vestwell State Savings, LLC, dba Sumday Administration.

Which employers are subject to this new program?

Through MyCTSavings, all private sector employers in the state with five (5) or more employees (each of whom has been paid more than $5,000 in the calendar year) are required to register and facilitate the program, unless they qualify for an exemption.

The CRSA has stated that it will be contacting all private Connecticut employers when it is time to register and will provide a MyCTSavings Access Code with the notification. Employers will require this Access Code along with their federal EIN in order to register. Employers can access the link for registration here.

Employers who already offer a qualified retirement savings plan, can apply for an exemption using this same Access Code. Eligible employer-sponsored plans include: “plan[s] qualified under Internal Revenue Code sections 401(a) (including a 401(k) plan), qualified annuity plan under section 403(a), tax-sheltered annuity plan under section 403(b), Simplified Employee Pension plan under section 408(k), a SIMPLE IRA plan under section 408(p), or governmental deferred compensation plan under section 457(b). It does not include payroll deduction IRAs.” Employers can access the link to certify their exemption here.

While registration for all eligible private sector employers in Connecticut commences April 1, 2022, the deadlines for registration will be implemented gradually in three waves based on the size of the employer as shown in the graphic[1] below provided by the CRSA.

Notably, in a March 31, 2022 article about the program from CBIA (Connecticut Business & Industry Association), there were reports that “Numerous employers report receiving mailings from the state with incorrect or misleading information, including notices warning they have missed the registration deadline.” Employers should review the materials from the CRSA carefully when received. The first registration deadline occurs on June 30, 2022, and is applicable to employers with 100 or more employees.

Are there financial costs for employers associated with the program?

There are no fees associated with employer facilitation of the program, and employers are not required nor permitted to contribute to the program. However, if an employer fails to register, or fails to timely remit payroll deductions on behalf of its employees, there is the possibility that they could be assessed penalties.

While employer facilitation of the program is mandatory (in the absence of an exemption), employee participation is voluntary. Employees are automatically enrolled during the employer registration process and must choose to remain enrolled or to opt out within 30 days. Should they opt-out during this initial period, then their account will not be activated, and no payroll deductions will be taken.

The financial costs for employees (in addition to contribution amounts) include an annual asset-based fee of 0.22% for investment management, as well as an account fee of $26.00 charged and payable in $6.50 installments per quarter.

Employer Responsibilities

Once registered, employers must connect their company bank account, provide a list of employees and enter payroll information. After 30 days have passed, employers will update employee contribution rates within their payroll, and contributions will begin automatically with the next payroll. Employers will be required to maintain current and up-to-date contribution rates and employee rosters. For employees who opt-out of the program after the 30-day notification period, the employer will be notified by the CRSA to stop payroll deductions, and any deductions that may have been made may be withdrawn by the employee.

An Employer Registration Checklist can be found here.

After employers have registered, they can provide notice to their workforce of the program, its benefits, and an employee’s ability to opt-out of participation in the program with the following Auto-Enrollment Notification.

The CRSA will monitor each employee account and notify employers when to stop contributions when an employee is nearing his/her contribution limit. The CRSA will track only the contributions made through the program, and will not have contribution information to another Roth or traditional IRA that the employee participates in. Employees must monitor their contribution limits across all retirement accounts to ensure IRS annual limit compliance and should consult a tax expert or financial advisor relative to their specific circumstances.

Employers do not report employee contributions on Form W-2. Per the MyCTSavings Employer FAQs, “the IRA trustee for the MyCTSavings program will file “Form 5498, IRA Contributions Information” with the IRS (as needed for your employees) and will send employees a copy for their records, no later than May 31.”

What type of retirement plan is MyCTSavings?

MyCTSavings is a Roth IRA, which means that contributions are made with post-tax dollars. The default employee contribution rate is 3% of an employee’s gross wages, up to the annual maximum set by the IRS based on the employee’s modified adjusted gross income (AGI). If an employee’s modified AGI exceeds certain IRS maximum thresholds, with consideration for filing status, then an employee’s maximum contribution may be reduced, or the ability to contribute may be eliminated. Employees have the ability to adjust or change their contribution amounts and investment options, in accordance with the program rules. More information on investment options and contributions can be found here and here.

Employees must be at least nineteen (19) years of age, be paid in Connecticut by their employer, and have been employed for at least 120 days. There is no waiting period, but if an employee works for an employer for less than 120 days, an employer may not enroll him/her. Business owners or shareholders are permitted to participate in the program as Savers if they meet the definition of employee for tax purposes.

The MyCTSavings website has a multitude of information for employers and employees alike and employers are encouraged to continuously check back periodically for updates.

[1] https://myctsavings.com/employers/program-details

March 1, 2022

NY employers must provide notice to employees regarding electronic monitoring

On May 7, 2022, an amendment to the New York Civil Rights law takes effect requiring New York employers to provide notice to their employees regarding electronic monitoring in the workplace.

Notice requirement

The new law requires employers to provide notice at the time of hiring and once annually to all employees informing them of the types of electronic monitoring which occurs at the workplace. Electronic monitoring as used in the statute generally refers to the monitoring or interception of telephone conversations or transmissions, electronic mail or transmissions, or internet access or usage of or by an employee by any electronic device including, but not limited to, computer, telephone, wire, and radio, among others. The notice must be in writing, in an electronic record, or in another electronic form and acknowledged by the employee either in writing or electronically. Employers are also required to post the notice of electronic monitoring in a conspicuous place that is readily available for viewing by employees.

Applies to all businesses in New York state

The law applies to any private individual, corporation, partnership, firm or association with a place of business in the state. The law does not apply to New York State or any political subdivision thereof. The electronic activities exempted from application of the law include processes:

“designed to manage the type or volume of incoming or outgoing electronic mail or telephone voice mail or internet usage;
that are not targeted to monitor or intercept the electronic mail or telephone voice mail or internet usage of a particular individual; and
that are performed solely for the purpose of computer system maintenance and/or protection.”

Violations of the new law are enforced by the state attorney general’s office. Employers found in violation of the statute may be subject to a civil penalty up to $500.00 for the first offense, $1,000.00 for the second offense, and $3,000.00 for a third and each subsequent offense.

Employers who have electronic monitoring in place at their workplaces should commence compiling the notice and posting requirements in advance of the May 7, 2022, start date. Employers should also develop a process for informing all newly hired and existing employees of their monitoring practices, as well as a process for obtaining written or electronic acknowledgement of same. For more information regarding electronic monitoring considerations in the workplace please visit Checkwriters’ previous compliance blog linked here.

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.

February 28, 2022

State consumer privacy and data security laws gain momentum

As patchwork consumer privacy and data security legislation spreads across the country, is it enough to finally move the line towards a uniform federal standard?

What is consumer privacy and data security?

Consumer privacy broadly refers to the collection and handling of personal identifying information in the course of everyday consumer transactions for products and services. Data security relates to how that personal information is safeguarded against unauthorized access, use or disclosure.

In 2018, California passed the California Consumer Privacy Act (“CCPA”), subsequently amended by the California Privacy Rights Act in 2020 (“CPRA”). Together they represent the most expansive consumer data privacy and security legislation in the United States. Virginia and Colorado have both since passed their own consumer privacy and data security legislation, effective January 1, 2023, and July 1, 2023, respectively.

Several other states have also introduced comprehensive consumer privacy and data security legislation in 2021 and in 2022. The IAPP (International Association of Privacy Professionals) has compiled a state privacy law comparison tracker to assist businesses in tracing the many bills circulating throughout state legislatures. States with pending comprehensive consumer privacy legislation include Alaska, Florida, Georgia, Hawaii, Indiana, Kentucky, Massachusetts, New York, Oklahoma and Washington to name a few.

Common compliance considerations for HR

While the specific provisions of the various bills can vary amongst the states, there are some common compliance considerations for business featured in many of them. These include conducting a risk or data security assessment of the subject organization, determining how to facilitate the exercise of consumer rights including a right to access, a right to opt out of data collection and/or processing, a right to correct data, and a right to delete data; and providing notice and transparency as to the data collected, how it will be processed, for what purpose, and for what duration of time.

State laws

Of the three newly enacted laws, Virginia and Colorado depart from California on a key issue- the extension of regulation to employee HR data. Under the CPRA, effective January 1, 2023, employee HR data will no longer be exempted from application of the Act, and employers will have to begin to navigate how to reconcile the CPRA’s requirements relative to employee HR data, with those requirements already in place under existing California employment law.

While employee HR data is not included in Virginia and Colorado’s enacted laws, employers should not assume that employee HR data will remain in the background as consumer privacy laws continue to progress and evolve, especially in the realm of biometric information. Biometric information can be used as part of multifactor authentication for employees to gain access to secure systems, networks, and files; for employee timekeeping through a retinal scan or fingerprint scan on a timeclock, and for physical security purposes, such as face or palm recognition into a building. Biometric information is a subset or category of personal information, and is subject to collection, use, and privacy regulation as is other personal information.

Three states have passed legislation relative to the collection and use of biometric information: Illinois, Texas, and Washington State. Bryan Cave Leighton Paisner LLP has published a state biometric laws and bills tracker, which employers can use as a reference tool to help monitor developments in their home state.

Enforcement and potential remedies for violations

Another consideration for employers relative to the privacy law flurry, is enforcement and potential remedies for violations. Proposed legislation in several states provides for enforcement of violations by the state attorney general only, with no private right of action. However, there are some states in which a private right of action is available generally or in limited circumstances. For example, SB 2687 pending before the Massachusetts legislature provides for a private right of action for any individual whose personal information is the subject of a breach of security as a result of the controller’s failure to implement and maintain reasonable cybersecurity controls. Aggrieved individuals may institute a civil action for damages up to $500 per individual per incident or actual damages (whichever is greater); injunctive relief, or any other relief the court deems proper. However, the proposed legislation also contains a safe harbor against punitive damages available to controllers in any civil tort action who create, maintain and comply with a written cybersecurity program that conforms to an industry recognized cybersecurity framework. Please see Checkwriters compliance post regarding a similar data security safe harbor in Connecticut.

A federal standard?

All this state momentum has increased the pressure on the federal government to finally provide a uniform federal standard which has been elusive for approximately twenty years. A significant contributor to this momentum can be attributed to the rapid digitization of life during the height of the pandemic. In July 2021, Senators Wicker (R-Miss.) and Blackburn (R-Tenn.), and Representatives McMorris Rodgers, (R-Wash.) and Bilirakis, (R-Fla.) wrote a letter to President Biden urging him to enact nationwide consumer data privacy legislation. In support, the letter cited the shift in daily activities to the digital frontier on a scale never before seen, as well as the associated risks from operating online including increased cyberattacks and identity theft. Several bills have been introduced in Congress which may provide a comprehensive solution, ideally preempting the patchwork of existing state policy, and establishing one universal standard for businesses to comply with. A universal federal standard would ease the compliance burden on businesses, especially those operating in multiple states, and would help establish a uniform consumer expectation as well. Employers are advised to continue to monitor the legislative developments at the federal level as they occur.

In sum, increased regulation of consumer data privacy and security for businesses is more than a trend- it is an inevitability. Even in the absence of imminent state legislation on the subject, employers who deal with significant personal and sensitive information of consumers and employees would be wise to take stock of how they collect, process, store, and delete consumer data, and remedy any vulnerabilities which may exist.

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.

January 26, 2022

OSHA withdraws vaccine or test mandate

Key takeaways:

Effective January 26, 2022, the Occupational Safety and Health Administration (OSHA) has withdrawn its vaccine-or-test Emergency Temporary Standard (ETS) for employers with 100 or more employees. This is the official end of the ETS—employers do not need to comply with it.
OSHA is still proceeding with a permanent COVID standard via the regular (slower) rulemaking process, and that standard will have similar requirements if finalized. We will let you know if and when that happens. We expect a permanent rule would likely run into many of the same legal hurdles as the ETS.
Employers should continue to comply with all other federal, state, and local requirements. If you’re in a state with an OSHA State Plan, you should check with your state agency for state OSHA requirements.
The below information is background for informational purposes.

OSHA Emergency Temporary Standard (ETS)

On January 13, 2022, the United States Supreme Court stayed enforcement of OSHA’s Vaccine or Testing Emergency Temporary Standard (ETS), pending disposition of the underlying applications in the United States Court of Appeals for the Sixth Circuit. The OSHA ETS requires private employers with one hundred (100) or more employees to mandate COVID-19 vaccination for their employees or require unvaccinated employees to submit to weekly testing and masking requirements, at their own expense. Under the ETS, Employers are not required to offer a testing option and could enforce a company-wide vaccine mandate if they so choose.

The Supreme Court’s decision only halts enforcement of the ETS, and is not an adjudication of the legality of the ETS or whether it should be struck down permanently. In a per curiam decision, the Court ruled that the “[a]pplicants are likely to succeed on the merits of their claim that the Secretary lacked authority to impose the mandate,” as the Secretary’s authority was confined to setting workplace safety standards, and not implementing “broad public health measures.”

The Court goes on to discuss the limitations of OSHA’s ability to regulate work-related dangers, stating:

“Although COVID– 19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases. Permitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization.”

Further, the Court commented that unlike more broad regulations imposed by OSHA such as fire or sanitation regulations “a vaccination, after all, ‘cannot be undone at the end of the workday.’”

Also persuasive to the Court was the Senate’s majority vote on December 8, 2021, disapproving of the mandate, and the “lack of historical precedent” for the mandate in OSHA’s half-century existence, in addressing a “threat that is untethered, in any causal sense, from the workplace.”

The Court describes the regulation as “a blunt instrument. It draws no distinctions based on industry or risk of exposure to COVID–19.” Further, the narrow exemptions for certain classifications of employees are largely illusory, such as those who work exclusively outside. Under the regulation, it is estimated that only nine percent of landscapers and groundskeepers qualify as working exclusively outside.

While the Supreme Court’s remarks are not a final adjudication on the merits, employers should take heed that similar reasoning may be adopted by the Sixth Circuit. Employers who may have initially been inclined towards a more “wait and see approach” may find reassurance in the Supreme Court’s decision to stay enforcement.

Notably, stay of the OSHA ETS has no effect on existing state or local vaccine mandates such as the employer vaccine mandate in New York City. Effective December 27, 2021, all workers in New York City who perform in person work or interact with the public in the course of business must show proof of at least one dose of a COVID-19 vaccine, with forty-five (45) days to provide proof of a second dose. Businesses are prohibited from permitting unvaccinated workers from entering their workplaces (including vehicles) where at least one other person is also present. For more information on New York City’s vaccine mandate for employers, please visit the link here.

Centers for Medicare & Medicaid Services (CMS)

In a separate per curiam decision, the Supreme Court lifted two injunctions previously blocking enforcement of the Centers for Medicare & Medicaid Services (CMS) Rule requiring COVID-19 vaccination for healthcare employees of Medicare- and Medicaid-certified providers and suppliers.

In that decision, and in permitting the CMS Rule to proceed, the Court reasoned that, “[h]ealthcare workers around the country are ordinarily required to be vaccinated for diseases such as hepatitis B, influenza, and measles, mumps, and rubella[,]” and that state-required vaccination against these diseases explained the lack of agency mandate by CMS in the past as a condition of participation in funding. The Court also noted that while the Secretary has never had to address infection problems of this scale in the past, implementing “all kinds of infection control measures at these facilities” was certainly within the Secretary’s authority. CMS vaccination requirements may be enforced pending final disposition of the Government’s appeals in the Fifth and Eighth Circuit Courts of Appeal.

CMS released interpretive guidance on Friday, January 14, 2022, for those states affected by the Supreme Court decision including: Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Utah, West Virginia and Wyoming.

States that are not identified above are expected to continue under the timeframes and parameters identified in the December 28, 2021 memorandum (QSO-22-07-ALL).

For additional information, please also review a press release by CMS Administrator Chiquita Brooks-LaSure issued in response to the Supreme Court’s ruling on January 13, 2022.

Employers who fail to meet CMS vaccination requirements in accordance with the published guidance, will be subject to various enforcement remedies (depending on the type of provider) which may include civil monetary penalties, denial of payments, and termination of participation from the Medicare and Medicaid programs. CMS has stated that its objective is to bring those subject to the Rule into compliance, with termination generally occurring only after an opportunity to make corrections and come into compliance has been provided to a facility.

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.

January 12, 2022

EEO-1 Component-1 Tentative Data Collection and Filing Deadlines Announced

On January 3, 2022, the Equal Employment Opportunity Commission (EEOC) announced that EEO-1 Component 1 data collection for 2021 is scheduled to tentatively open on Tuesday, April 12, 2022. A tentative deadline for submission of the EEO-1 Component 1 Report is set for Tuesday, May 17, 2022.

Just as in the past, updates, resources, and additional information regarding the data collection and submission process will be posted to the EEO-1 website as they become available.

Additionally, on January 6, 2022, the EEOC announced that effective for the 2021 collection year, it will be discontinuing the EEO-1 Component 1 Type 6 Establishment List Report (“Type 6 Report”) in “continuing efforts to modernize the agency’s EEO data collections and to improve the quality of data collected.”

For those filers that submitted Type 6 Reports for the 2019 and 2020 EEO-1 Component 1 data collection and reporting, notifications via email have been sent to alert those filers of the discontinuation of the use of Type 6 Reports. Those filers will be required to use the Type 8 Reports going forward.

For more information on the various report types utilized in the EEO-1 Component 1 data collection process and discontinuation of the Type 6 Report, please review the EEO-1 Component 1 Fact Sheet: Report Types prepared by the EEOC.

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.

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