Recorded live on July 22nd at 1 PM EST
2021 Legislative Updates: New HR and Compliance Laws and Alerts
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MP: Good afternoon, and thank you for joining us today for 2021 legislative updates HR compliance laws and alerts.
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For those of you joining us for the webinar for the first time and P, is a full service human capital management company offering a suite of products and services, including HR payroll benefits administration time and attendance and compliance.
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We support clients with cutting edge technical solutions, as well as proactive reliable service and deep HR and payroll expertise.
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MP is wired for HR and helps clients succeed by aligning their HR strategy with their business goals i’m amy women head of marketing here at amp T and i’m thrilled to introduce your presenter today.
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MP: hall hawker Ellis he’s our VP of client and HR services, Paul has over a decade of experience in HR consulting working with businesses of all sizes and.
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MP: Industries Paul and his team have certified HR professional professionals at MP assist clients with compliance training and full circle HR guidance and support.
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MP: And just before we begin the program if you’d like to submit a question during the program please use the Q amp a feature at the bottom of the screen.
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MP: And also will be sending out a recording of the webinar later today via email, along with the slide presentation.
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MP: And with that i’ll turn the MIC over to Paul Thank you amy, thank you for that, thank you for the introduction welcome everyone to today’s session, this is a favorite of mine to do we do these twice a year once around January, and once around this time of year.
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And when we’re setting out our webinar schedule, we try to plan in advance pretty well and really try to predict what will be relevant.
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And when we were planning, this one, it was probably a few months ago when we were still under a lot of covert restrictions.
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courts were shut down agencies were were mostly shut down, so I was honestly pretty skeptical with what we’d be able to talk about in today’s session.
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MP: But things have our back to normal, by any means and we’ll see what happens with the delta variant and you know, there are any more restrictions that go into play, but.
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MP: Needless to say, the courts, the federal and state agencies and the Federal and State legislators have kind of picked up where they left off pre pandemics, so we do have plenty to discuss here.
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Just a quick legal disclaimer this training is for educational informational purposes, coming from an HR best practices standpoint.
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Fortunately we’re not attorneys please don’t construe anything today as legal advice.
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Everything we talked about today, as long as my fact checking has been accurate should be current as of today, July 22 2021.
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Also, another little disclaimer I like to give here on this topic in particular will be talking about legislation will be maybe make some predictions or guesses in terms of how legislation.
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might go one way or the other.
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But we we try to stay unbiased and not provide any any political color to it, even though we are talking about politics and the law making process.
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So, in terms of what we hope to cover today we’ll do a general legislative overview kind of a temperature check let you know what the landscape looks like.
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MP: As well as some major legislation being tossed around and not in the House and Senate.
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will talk about some recent supreme court rulings that have an impact on employment, as well as what’s up at the couple of the federal agencies and national Labor relations board as well as the Department of Labor.
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I will do a quick update on on stimulus programs and where those currently stand.
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we’ll talk about state laws so we’ll talk about some specific states and new laws that are going into effect this month and those places.
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And even if you don’t have employees in most states it’s always a good idea to stay tuned to that kind of stuff because often what will happen is.
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A few states will sign on to something it’ll start a trend and before you know it, the majority of States will have something similar so it’s just a good idea to have an idea of what the State Law trends are.
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And then we’ll we’ll gaze in our crystal ball, a little bit see what what’s ahead for the rest of this year.
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What we’re seeing a lot of litigation on and then kind of make some some predictions in terms of what laws or rules, we might expect to see in in the year ahead.
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And, as always we’ll leave time for any questions you may have so feel free to to jump on that Q amp a portion of zoom and we’ll get to to those that we can, at the end.
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Alright, so in terms of the legislative overview there’s one really big piece of legislation passed the House earlier this year it’s now in the Senate.
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going through committee and debate and all that fun stuff and.
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Just so you know we’ll talk about everything that’s in the current version of the bill, but I think it’s pretty universally agreed on that it’s very unlikely that the bill, as it stands right now would be passed, as is.
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People have different thoughts in terms of what what pieces of this are likely to pass, either through through the pro act or through other other separate legislation we’ll talk about that in a second but, but this is this is what’s currently being debated.
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Is is a big one it’s all about Labor.
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protecting workers rights, so what it includes first of all, is.
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challenge, a challenge to right to work, states so when right to work, states what that means is even in a Unionized environment and employee can opt out of Union dues.
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The proactive what would change that it would require anyone who is a member of a Labor Union to to participate in terms of dues payment.
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He would also provide workers who are on strikes and protections it would protect them from being permanently replaced by their employer.
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While this proactive and got a ton of coverage, one of the one of the more notarized pieces is the what’s called the ABC test, so you may have heard of this in California, the Assembly bill that that uber and lyft had a huge ballot initiative to.
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compete against, but what the ABC test is really a test that you to determine when somebody is an independent contractor and when they’re an employee so we’ll talk about what the ABC test is on the next slide but just take note of that that is a big piece of this bill.
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The proactive, as currently written would also change the definition of supervisor, so what a lot of that back is is to open up opportunity for employees to be organized and to be part of a Union.
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And in those scenarios management supervisors are typically excluded from from Union membership.
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This bill would change the definition of supervisor so that more people that are currently considered supervisors and currently not included as Unionized workforce would now be part of the Union as well.
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This bill would also loosen the joint employer rules so.
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To state that employers who have direct or indirect control over a worker could potentially be a joint employer this comes into play and in temporary work scenarios work assignments.
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Things like that franchise situations where.
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The temp agency might be sending someone to go work at a warehouse for another company, it might be a corporation, who has franchisees and how the how the franchise treats their employees are what wage and hour laws they’re observing.
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When there’s a joint employer scenario, both parties share some responsibility potentially liability there so.
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It should join employer rules be loosen.
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And you know and let’s say a staffing agency send someone to work at a warehouse if that warehouse is not following Labor Labor laws of some sort, then the staffing agency could partly be held liable as well.
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there’s also a lot in there about the election rules for companies, attempting to unionize it would reintroduce quickie elections which can result in as quick as an eight eight day turnaround time from.
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When the process is started to win the election takes place.
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They would also allow employees to use company email for purposes of.
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Collective bargaining and unionization.
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And it would ban companies employers from holding what’s what are known as captive audience meetings.
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To captive audience meetings are when a company so there’s a mandatory meeting that everyone needs to attend these typically take place.
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During the process of a company considering becoming Unionized and it’ll give the employer, the opportunity to speak to the employees as a mandatory meeting to try to dissuade them from from unionizing so should that piece of a task captive audience meetings would be would be barred.
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Pro act would also.
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limit mandatory arbitration so in those cases when a employee feels wrong or greed.
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or terminated for wrong reasons.
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Some businesses will have mandatory arbitration clauses that say those disputes have to go to arbitration rather than the courts or agencies, this would bar that.
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It would also create required postings for.
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An employee Section seven rights.
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So that has to do with national Labor Relations Act, but those come into play a lot in terms of.
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Employees rights to discuss the conditions of their employment their their rights to organize all that kind of stuff.
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So it would it would just be kind of a new workplace poster.
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And then, finally, the pro Act does introduce some some punitive damages and civil penalties to employers when they violate Labor rules so under the national Labor Relations Act and the national Labor relations board who governs it usually, when when damages or fines or doled out from.
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Any legal employment action in terms of the national Labor Relations Act.
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The damages are usually minimal that just to bring things up to code and get some compliance, this would this would change the game quite a bit and really introduced some big money penalties for employers who violate employees rights under the national Labor Relations Act.
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This piece in particular has a very good chance of passing there’s a lot of talk right now of moving it out of the pro X.
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And, including it in the the budget bill that’s going to reconciliation, right now, so the the budget reconciliation bill is looking very likely to pass and there’s again a lot of talk in Washington, right now, of adding in the.
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Monetary penalties for Labor violations to that so more to come there.
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So just to review the ABC test and a little bit more detail.
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The ABC test is a three prong test and in in states or jurisdictions where it is in effect.
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would have to meet all three of these criteria to be considered an independent contractor if if the worker does not meet all three of these, then they would be considered an employee.
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So the first prong is the worker is free from the control and direction of the hiring entity and connection with with the works performance, both under the.
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contract for the performance of the work and, in fact, so this really has to do with that whole control definition is pretty standard when it comes to the fighting employee versus independent contractor, you know how much.
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MP: How much direction is the worker, given how the work is performed when where would have.
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MP: The second prong is that and, and this is a really important one, and this is what this qualifies.
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MP: Workers from being considered independent contractors in many situations, the work being performed is outside companies usual course of business, so that was a big argument with with uber and lyft is that.
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MP: You know the, the debate was is uber and lyft a a ride sharing service and, if so, you know driving as part of that the course of goober and let’s business, they were more related to being you know, a matching service connecting people who want to ride to people who want to drive.
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But that’s been quite fraud in the courts.
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MP: This this comes up a lot of other situations as well freelancers, that are working for for any sort of company if it’s if the work that they’re doing is related to the company’s main mission, then.
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It would run afoul of the ABC test.
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MP: And then third the worker is customarily engaged independently establish trade occupation or business of the same nature of the work performed.
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MP: So this has a lot to do with economic dependency on on the gig that they’re working so if if they’re a driver and the driver for.
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MP: You know other people other than the person that’s paying them and this arrangement that helps but they’re doing work for this company and solely for that company.
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MP: And they’re not not doing or not able to do, are not allowed to do that same work for other people or other businesses that that would also jeopardize them as an independent contractor in an ABC test scenario.
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So, so these rules are in play, and in California they’re also it’s called a three prong test in Massachusetts but the same test is in place in Massachusetts as well.
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But many other states do not follow this but changes either whether it’s through the proactive department of Labor action that that may follow this will change the game for a lot of a lot of businesses and they’re independent contractors.
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For those of you wondering uber and lyft did succeed in their ballot initiative last November, so they did kind of get a car boat, they were exempted from from this and they are allowed to operate as as they were with some exceptions.
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Okay now for a quick covert update.
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MP: Many of the the stimulus programs that were passed over the last year and a half or so, our sets at sunset or expire September 30 so the end of this quarter that includes the Cobra subsidy Program.
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The American rescue plan code sick leave program as well as the unemployment premium for states that are still in that many states to drop off and stop.
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That unemployment incentive they felt that was hurting the unemployment numbers and the ability for businesses to rehire employees, but those are formally and, as of now, at the end of September again should.
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MP: Should infection rates rise or something like that they could look to extend those but as of right now, those will all be ending 930.
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MP: We get a lot of questions about new rounds of PPP or other grants are fun does it right now we said at the Washington level there haven’t been any serious talks or bills proposed that would create new stimulus money.
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For the business world we’ll keep our eyes peeled for that, and certainly let you know if that changes.
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For those of you who are looking for additional revenue streams or assistance.
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In terms of funding if you haven’t already I do encourage you to look at the employee retention tax credit Program.
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They did change the rules for that if you’re a fan of our webinar series you’ve undoubtedly.
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attended a webinar on this topic, but if not, you can certainly go ahead and look at our our website, we do have a yard QC playbook that’s either just released or soon to be released.
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But we are working with businesses on the rtc and a lot of them are realizing some pretty hefty refundable tax credits so worth looking into if you’re searching out new funding options.
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We do, we will have a webinar on the 30th of September all about kind of code coming out of the pandemic, hopefully, that is still.
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The tone by then we’ll see but just talking about in a little bit more detail the ending of these programs and some strategies for kind of how to enter the next chapter of the business world so that’ll be September 30.
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let’s move on to the Supreme Court and the Federal agency.
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So Supreme Court has been busy over the last few months, and they have had some significant supreme court rulings that to impact best practices and employment law.
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The first of which was a victory for agricultural businesses, there was a case involving.
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Some Union organizers who were kind of coming out announced to to farms and agricultural work site.
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The company challenge that the Supreme Court said, with the company that they aren’t allowed to do that, so there are no restrictions in terms of unionize unionization efforts and agricultural scenarios.
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One interesting one, and it’s important to note that this had to do with a school and a student, but a lot of experts are.
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Also, saying that this could potentially apply to workplaces as well, so there was a student who was expelled or removed from a team because of some vulgar tech talks that she posted on her own time, you know, in her own home.
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Supreme Court found that that was overreach that violated her her protections for free speech.
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So, as you can imagine that does make people wonder and take a look at their social media policies and wonder, you know how much.
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To close, now have given the Supreme Court ruling so.
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My advice generally to clients is let’s play it safe let’s play let’s play conservatively will let someone else spend the legal fees to be the next President case, but this was an interesting ruling and could very well apply to workplaces, as well as schools.
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And the Supreme Court also continues to hammer home.
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religious liberties for religious institutions, so allowing them to kind of make their own rules if they have to do with.
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With that religion and the norms of that religion so requiring employees to teach things a certain way, or to be of a certain denomination.
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Certainly, there was a lot of media coverage of.
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The ability for businesses or religious organizations closely held religious beliefs, to limit or restrict contraceptives from their insurance plans.
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Things like that, so the Supreme Court did rule, and this was specifically.
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For for a religious agency and Adoption Agency and their restrictions on same sex couples as adoptive parents, the Supreme Court did rule in favor of their religious institution so.
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That kind of continues things on on the path of the current court giving more power to religious entities to kind of run run businesses and employment practices as they wish.
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There was also a very interesting case.
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That covered the computer fraud and abuse act so in the case, it has to do with a police department and a sergeant who had access to a system to run license plates and garner information from those license plates, so what he did was he gained information that he shouldn’t have an authorized.
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of people, based on their license plates to kind of do his own little API work or on requests or someone else he he gained personal information about people that didn’t that wasn’t in line with the work that he was doing is as a police sergeant.
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And then somewhat of a surprising move the Supreme Court actually ruled in favor of the employee stating that, when someone has authorization to a to a system that.
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MP: Has not necessarily in terms of the language in the computer fraud and abuse act it’s not necessarily an authorized that they are authorized to to view it and it isn’t criminally illegal.
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For them to do so if there are otherwise authorized if they access information that might not be intended as part of their work so.
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I my interpretation of that and again this isn’t legal advice is that there still would be the opportunity for.
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Employment action and disciplinary action and determination, but in terms of quick criminal liability that’s where the Supreme Court really drew the line in the sand, with this case.
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Okay over at the national Labor relations board a lot of changes over there, so.
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For a while now, there had been a vacancy on the board so it’s typically a five member board it had been operating as a former member board for again quite a while now so.
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They did get deadlocked on something.
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But that is all changing now.
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President Biden has made to two new nominee to the board, so one to fill that vacancy and another to to replace a member of the board, whose turn is up in August.
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once that happens in August control of the national Labor relations board as as it does historically will shift to to democratic power it’ll be a three to two majority in favor of the democrats.
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President by also to get approval on it nominee for general counsel of the national Labor relations board her name is Jennifer abrazo.
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And as we’ve said in previous iterations of this presentation, the that general counsel seat is very, very powerful so that position ultimately decides which cases the board wants to hear, and when you look back historically.
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it’ll be a lot of back and forth so.
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Now the Obama lead national Labor relations board.
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Will to revisit rulings during the George W Bush national Labor relations board and weigh in on those and sometimes reverse the way of thinking.
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The same thing happened when when President trump came into office they selected certain cases that were closer identical to cases that the Obama NLRB had ruled on and and reverse of decisions and some way of thinking there.
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They also released a series of memos to let the country know where they stand on certain issues and how they will rule and how they will judge.
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certain situations in relation to the national Labor Relations Act.
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So what the current board is done so far is they’ve removed 10 of the trump era memos.
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we’ll get those in the second one important note, before I skipped over it, when President Bush took office, he asked the acting general counsel to resign.
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That general counsel refuse so he was terminated, there was a lawsuit around that but I think it was just a week or two ago.
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A District Court ruled in favor of President Biden saying that that termination was lawful so he was okay to proceed with is a bruzzo for for the new general counsel role.
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So some some things to look for, especially in regards to the memos that were rescinded handbooks is a big one, so the national Labor relations board does tend to.
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Like to review handbooks and handbook policies to see if there’s anything in there that could be a violation of an employee’s rights or chilling to their rights under Section seven.
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In terms of their rights to organize their rights to discuss and have concerted protected activity discussing the conditions of their employment and things like that so.
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There was a member, during the previous administration and rb that kind of said hey we’re going to when we review handbooks we’re going to go into them thinking that.
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The businesses is doing those doing these in good faith and they’ll Dieter it’ll really need to ship prove that a policy is.
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is strongly chilling of an employee’s rights or a strong violation employees rights before we take action that has been rescinded so that the two to that may change.
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National Labor relations board is always intertwined with with Union rules so there’ll be no different there i’ll just be different people examining it.
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Another one of the memos that was rescinded had to do a fruit whistleblower protections so the previous memo talked about giving.
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Employers the leeway to kind of give a warning to potential whistleblowers that they could be in trouble if.
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Any footage or evidence that they are coming forth with obtained illegally that’s being removed so.
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There will be stronger whistleblower protections moving forward.
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But this is something to keep an eye on there could be a lot of action at the NLRB starting in August.
00:33:29.820 –> 00:33:41.970
And the other one so despite the four Member board they did vote last week 321 to allow who you see here scabby there at to remain.
00:33:43.230 –> 00:33:43.650
00:33:44.820 –> 00:33:50.220
Work site when there’s a strike going on, so there have been a few court cases over the last year or two.
00:33:52.080 –> 00:33:55.590
To fight having this large inflatable wrap present.
00:33:56.790 –> 00:34:08.760
When there is a workplace dispute, so the you know rb did again recently rule that scabby the rap is an allowable presence at work sites in case you’re curious.
00:34:13.710 –> 00:34:15.060
Over at the Department of Labor.
00:34:16.380 –> 00:34:26.610
It looks like Marty Walsh is going to stick it as a Labor Secretary, there was a little bit of controversy in regards to his time when he was the Mayor of Boston and.
00:34:28.500 –> 00:34:37.770
Some of the activity at the police department and some some of the personnel there, but it does seem like he he will remain in office as the secretary of Labor.
00:34:39.720 –> 00:34:47.910
President Biden did just within the last couple of weeks have the Deputy Secretary and the Solicitor So those are kind of second and third and command.
00:34:48.780 –> 00:35:04.560
Is nominees for those roles have been confirmed, so we do have kind of a a full compartment at the top within the Department of Labor this usually means that once those spots are filled though they’ll start to be a little bit more productive efficient you’ll see more coming from them.
00:35:06.690 –> 00:35:15.180
They have released a few proposed rules so department of Labor observes the federal rulemaking process, they propose a rule.
00:35:15.660 –> 00:35:25.680
there’s an A comment period for the public to make comment on it, they then come up with the final rule and then it’s published in the Federal Register and becomes the rule of the land.
00:35:27.120 –> 00:35:37.020
The most recent proposed rule which came out this month calls for a $15 minimum wage for federal contractors, so that comment period is is going on right now.
00:35:38.760 –> 00:35:45.810
there’s another proposed rule that came out, I believe, last month, which would create changes when it comes to tip to workers.
00:35:47.610 –> 00:35:54.660
And, specifically when an employer can pay the tips minimum wage and when they’re prohibited from doing so.
00:35:56.160 –> 00:36:05.880
So there’s been a lot of back and forth on this federally and again Similarly, this has bounced from administration to administration and the rules have changed depending on who and what party is in power.
00:36:08.280 –> 00:36:13.170
it’s not new but it’s being reintroduced as far as proposed rule you’ll see here the 8020 rule.
00:36:14.190 –> 00:36:15.420
And what that means is that.
00:36:17.610 –> 00:36:32.040
If the employees, please you know waitstaff restaurants things of that nature generally the potato chips minimum wage, which is lower than the stated minimum wage, provided that the tips that they receive make up for that difference.
00:36:35.430 –> 00:36:47.010
For any of you who have worked in the industry or in another tip role, you know that not 100% of your time is spent doing kind of tipped work waiting tables you’re doing prep work, you might be.
00:36:48.300 –> 00:36:49.500
rolling up silverware.
00:36:50.730 –> 00:37:00.810
If you’re a bartender you might be doing some inventory things like that what the 8020 rule says is that if more than 20% of your time is being spent on these non.
00:37:02.280 –> 00:37:12.930
Non tech tasks, or more than 30 consecutive minutes of being spent on these tasks, then that time must be compensated at least the before minimum wage and that.
00:37:13.980 –> 00:37:21.030
Employees cannot pay the tips minimum wage for that time if it’s if it’s go going over that 20%.
00:37:22.560 –> 00:37:26.880
So again, this is in the in the proposal stage open for public comment.
00:37:28.560 –> 00:37:30.930
And then they’ll get to work on the final rule.
00:37:32.700 –> 00:37:43.800
do note here many States have their own rules in terms of tips bit of a wage tipped over time things like that So what if and when that does become a formal final official rule.
00:37:44.940 –> 00:37:51.120
Whichever version state or federal is more friendly to the employees, what will take precedence wherever you’re doing business.
00:37:55.410 –> 00:38:14.340
President by also did announced in his fiscal fiscal year 2022 budget a large increase in in budget, especially for OSHA which is technically a part of the Department of Labor so increasing the budget of OSHA by $70 million most of that year mark towards.
00:38:15.360 –> 00:38:19.800
Building up the staff there, there are currently 188 employees of.
00:38:21.060 –> 00:38:22.830
The federal OSHA department.
00:38:24.390 –> 00:38:28.200
Secretary Walsh is looking to get that as high as 639 employees.
00:38:31.110 –> 00:38:39.900
Part of that will be do will will go towards assisting businesses they’ve got a really nice program if you’ve ever wondered, I wanted to look into it to.
00:38:41.160 –> 00:38:42.450
Have OSHA come in.
00:38:43.710 –> 00:38:57.510
dod as an auditor and not with a not with the ability to find but to to do kind of a pre examination of that you know if there are potential OSHA violation and give you the chance to remedy those without going through any types of fines and penalties.
00:38:58.620 –> 00:39:07.230
But there will certainly be a lot of that staff dedicated to to enforcement and to audits and to the less less likable arm of OSHA.
00:39:09.690 –> 00:39:14.910
OSHA has also introduced their agenda for the remainder of this year, over the next six months.
00:39:16.230 –> 00:39:25.980
And where they want to focus their their efforts there they’re going to be coming out with some more formal to illness prevention procedures and expectations.
00:39:26.820 –> 00:39:35.460
So for workers who are exposed to the elements either indoors or out and what the guidelines and requirements for employers are around that.
00:39:36.930 –> 00:39:44.520
they’re also looking to do expanded and enhanced injury and illness tracking for workplace injuries, so it will be more on that to follow.
00:39:46.290 –> 00:39:59.130
And then also some regulations regarding personal protective equipment or P P, which we all become familiar with during the pandemic but specific to the construction industry and what employee requirements are in terms of providing PP.
00:40:06.060 –> 00:40:10.470
department Labor also did recently released their strategic goals.
00:40:11.820 –> 00:40:20.130
That they hope to accomplish over the next four years, so fiscal year 2022 through 2026 and at a high level, these are what they are.
00:40:21.360 –> 00:40:30.540
The first is to build opportunity and equity for all the second is to ensure safe jobs essential protections and fair workplaces.
00:40:31.980 –> 00:40:36.420
Goal Three is to improve the administration of and strengthen worker safety net programs.
00:40:37.620 –> 00:40:43.770
goal for is to be better at measuring statistics and data.
00:40:45.120 –> 00:40:47.370
And then overall management of the department.
00:40:48.900 –> 00:41:03.300
To be grounded in evidence, innovation and employee engagement, they did release a PDF file that’s kind of a funky looking pictogram where they go into a little bit more detail and have some kind of Sub goals within each of these goals.
00:41:04.470 –> 00:41:15.450
If I can i’ll include that in in the copy of the slides and the recording that we send out later today, just in case anyone’s curious about where the Department of labor’s head is that and where they may look to to create new rules.
00:41:20.820 –> 00:41:23.430
And right let’s take a look at the state what’s going on over there.
00:41:26.190 –> 00:41:36.510
So as many say July, one is the new January one, there are several states and several regulations that did take effect this month, this is a review of some of the most significant.
00:41:38.310 –> 00:41:48.630
Virginia and Pennsylvania have passed living donor leave law so basically if someone is an organ donor they’re given job protected leave to take care of that.
00:41:50.520 –> 00:41:57.090
They have been decriminalization and legalization of marijuana laws that take effect this month in Connecticut and new Mexico.
00:41:59.130 –> 00:42:06.870
there’s a lot going on in terms of pregnancy and childbirth protections whether that’s a requirement for employers to provide reasonable accommodation.
00:42:07.440 –> 00:42:18.600
or a protected leave in cases of pregnancy and childbirth, the state that were active on that taking effect this summer, are Arizona Kentucky Georgia and indiana.
00:42:20.820 –> 00:42:24.390
And then several States have also created do protected class groups.
00:42:26.100 –> 00:42:31.950
So in Colorado gender identity and gender expression during the lucid list of protected classes there.
00:42:33.240 –> 00:42:37.020
Arizona has adopted pregnancy and childbirth as a presented class.
00:42:38.640 –> 00:42:44.310
Virginia has added military membership or being a military spouse as a protected class.
00:42:45.990 –> 00:42:53.460
and new Mexico has expanded their race purchase a class to include hair meaning hair length hair styles.
00:42:54.690 –> 00:42:55.710
And hair texture.
00:42:56.730 –> 00:43:00.090
As potential for a protected class under race.
00:43:02.040 –> 00:43:09.840
MP: And what this means when we talk about protected classes, is when someone can be when someone or something can be the basis of discrimination, harassment.
00:43:10.500 –> 00:43:18.810
MP: So if you’ve attended a previous educational session from us, you know that in order for something to be considered legally discriminatory or legal harassment.
00:43:21.240 –> 00:43:31.290
Among the the qualifiers is that it has to be based on a protected class so now people who fall into these protected classes could potentially have a a case of discrimination, harassment.
00:43:33.570 –> 00:43:46.350
And then also do camps are included as part of their budget that was passed by governor sununu an optional kind of paid family medical leave program, so this is going to be optional for employers to either opt in or not.
00:43:47.670 –> 00:43:52.080
The state and their employees are going to be mandatory participants they’re going to serve as the risk pool.
00:43:53.070 –> 00:44:02.670
But there’ll be more information on this to follow up short but, if you are new Hampshire employer something to look out for, and if you are looking to offer this, they will be an option to you.
00:44:12.300 –> 00:44:25.830
Okay, so oftentimes i’m asked it to gaze into my crystal ball and and predict what the next several months or or your head might look like in terms of employment law and litigation so let’s go ahead and do so.
00:44:31.470 –> 00:44:39.270
So, in terms of litigation trends and what we’re seeing when we we take a look at employment law action that’s that’s hitting the courts.
00:44:40.470 –> 00:44:56.940
MP: These these are what i’m kind of seeing as the most common case topics first of which is coven employees feeling that their employee or put them at risk in some way, by not taking proper safety, safety measures to to protect the workplace.
00:45:04.800 –> 00:45:06.990
we’re also seeing a lot around wage and hour.
00:45:08.280 –> 00:45:18.240
A lot regarding overtime so both litigation and and department of Labor action, there was a pizza restaurant at to location pizza restaurant.
00:45:18.930 –> 00:45:29.820
up in new Hampshire who just got had had to pay $140,000 to delivery drivers and they were paying overtime, they just weren’t paying in at the right rate.
00:45:30.360 –> 00:45:41.190
So it’s important to note that overtime calculations have to be made at their regular rate which which counts most if not all, compensation received not just their their standard.
00:45:42.750 –> 00:45:45.150
driver wage or or tipped rate.
00:45:46.530 –> 00:45:48.090
So it’s important that.
00:45:49.260 –> 00:46:01.320
When you do have tipped over time or other unique overtime situations that you make sure you’re calculating overtime correctly because, again, both the Department of Labor via their actions, as well as employment lawsuits that we’re seeing.
00:46:03.480 –> 00:46:05.640
Do pick apart over time and how it’s handled.
00:46:07.230 –> 00:46:21.750
Also, a lot with misclassification, whether it be a worker, saying that they were paid as an independent contractor when they should have been paid as an employee also employees who are paid and exempt salary workers who feel they should have been entitled to overtime.
00:46:23.040 –> 00:46:35.490
And this ties in with the next bullet point remote work so as businesses went remote as they had workers performing work from home without any direct physical oversight of what they were doing and what they were doing it.
00:46:36.420 –> 00:46:49.020
You seeing a lot of cases pop up where an employee who is either not exempt and paid hourly or should have been paid hourly and eligible for overtime was doing a lot more work.
00:46:50.340 –> 00:46:55.920
You know, working over 40 hours in a week and not being compensated for that overtime so.
00:46:57.240 –> 00:47:05.190
i’m going to be mindful of, especially if you’re continuing in a remote work environment as we kind of move on from the pandemic here that.
00:47:06.060 –> 00:47:17.760
you’re taking all appropriate measures that you reasonably can, to have an idea of what hours your employees are working, especially if they’re not exempt and making sure that you’re following all wage and hour laws, especially with overtime they’re.
00:47:23.190 –> 00:47:37.680
Also, a lot regarding accommodation so things like the Ada and disabled workers and making sure that it’s really important if you perceive or no have an employee that has a disability, that you, you enter was called the interactive process.
00:47:39.180 –> 00:47:48.870
Because there’s a lot of court cases going on right now, where where there are claims that employer did not go through the necessary hoops to provide reasonable accommodation to their employees.
00:47:50.460 –> 00:47:51.660
So be mindful of that.
00:47:54.030 –> 00:48:01.800
And then, then a lot with harassment hostile work environment and where historically a lot of these have been sexual harassment cases.
00:48:02.280 –> 00:48:14.190
we’re seeing a lot more regarding other protected classes so harassment hostile work environment cases having to do with race having to do with disability having to do with gender identity.
00:48:15.570 –> 00:48:21.060
Things like that so So those are are really the the hot topics right now.
00:48:22.530 –> 00:48:27.000
Another thing to be mindful of when it comes to being compliant.
00:48:28.410 –> 00:48:46.110
A lot of businesses, received a pass from the states that they work with and where their employees live when it came to taxation and what state to text employee in most states allowed kind of the status quo, to continue during the pandemic that if I used to work out of an office and.
00:48:47.580 –> 00:48:47.820
00:48:49.980 –> 00:49:03.090
South Carolina but I live in North Carolina and i’ve been working from home out of my home in North Carolina it was generally okay during the state of emergency and during the pandemic for me to be getting you to be treated as a South Carolina employee.
00:49:04.320 –> 00:49:10.680
As states of emergency are expiring are being rescinded as things are quote unquote returning to normal.
00:49:11.580 –> 00:49:20.700
A lot of businesses have found that remote work is a good option for them their employees may really like it, they may want to appease those employees and allow them to continue to work from home.
00:49:21.720 –> 00:49:24.900
But if that works from home is because out of state.
00:49:26.160 –> 00:49:29.940
States are now starting to enforce and reminding businesses that.
00:49:30.960 –> 00:49:33.120
Now that the pandemic is over these.
00:49:35.460 –> 00:49:49.680
You know, there are there aren’t any excuses, I guess, I should say so, if you could do to help employees now working on a state, you probably need to examine that you may have to register for at the very least payroll taxes in those States.
00:49:56.670 –> 00:50:04.440
Okay, so some some things to look for, whether it be government agency action or new laws at the federal or state level.
00:50:05.070 –> 00:50:17.940
definitely expect some action on independent contractors, so if the pro act kind of dies out if that doesn’t end up being passed do look for the Department of Labor to tackle that issue, it might not be until next year, but.
00:50:18.990 –> 00:50:20.760
It does seem like the.
00:50:21.990 –> 00:50:31.050
The current administration is interested in trying to move towards that ABC tests across the country, so they will likely be some movement there.
00:50:33.150 –> 00:50:36.120
More and more states are moving towards legalizing marijuana.
00:50:37.620 –> 00:50:40.860
There is even talk at the federal level of legalizing it across the country.
00:50:41.970 –> 00:50:53.520
So you want to make sure that your your policies are clear when it comes to marijuana usage if it if it is legal in the state that you’re operating in or other states where you do business.
00:50:55.710 –> 00:51:02.940
Especially as a controlled substance will see you in federal legislation does pass what rights that gives to employers to mandate that.
00:51:03.930 –> 00:51:19.380
But, at the very least you even if if the rules are like it might be something that you treat as alcohol so you’re just want to make sure that your employment policies address marijuana in the workplace, if it is legal in your jurisdictions.
00:51:21.060 –> 00:51:31.170
Another interesting one, is there was a recent court ruling I forget what state, it was it was either Idaho or iowa, but they did team CBD oil as a controlled substance.
00:51:31.830 –> 00:51:41.400
So if that’s something you care about and again wish to address and and want to limit usage of CBD in your workplace that’s also something you want to specifically address in your policies.
00:51:45.120 –> 00:51:57.540
Given that the Secretary of the Department of Labor as little as other people in the administration have a Union background there’s going to be a lot more focus on utilization and collective bargaining rights.
00:51:59.610 –> 00:52:09.870
also expect to see new laws and focus on pay equity both you know gender gender equity when it comes to pay practices, as well as other protected classes.
00:52:12.240 –> 00:52:22.530
More and more states are are taking action in terms of the ability for businesses in terms of covert restrictions or looking ahead, other future pandemic restrictions and.
00:52:23.010 –> 00:52:34.860
Vaccination rules and vaccination mandates the eeoc, which is a company we didn’t have an update on this time, but they did recently state that employers may have mandatory vaccination policies that.
00:52:35.910 –> 00:52:46.560
Provided they provide accommodations for those who need it, either for religious or medical exemption that they can otherwise proceed with mandatory vaccination policies.
00:52:48.990 –> 00:53:03.570
And then, more and more States look to limit the power and the jurisdiction of non compete agreements so that’s something that’s kind of evergreen on here, but more States continue to talk about pass legislation restricting or eliminating non compete agreements.
00:53:04.740 –> 00:53:14.520
And I know, especially in the small to mid sized business community those those are common so make sure if you do have a non compete agreement that it is valid in the state you’re operating in.
00:53:28.200 –> 00:53:37.050
In terms of questions, it looks like we’ve got a couple one regarding overtime for protective please so that varies a lot by state.
00:53:38.100 –> 00:53:45.180
Here in Massachusetts they have one of the more unique tipped over time rules which changed a few years ago.
00:53:46.470 –> 00:53:51.000
But it all has to do with the tips and the tip credit that an employer is allowed to take.
00:53:52.350 –> 00:53:58.140
One other thing I can include For those of you, it does look like we do have several people in the hospitality industry and.
00:53:59.730 –> 00:54:07.410
As well as some Massachusetts based or at least with locations in Massachusetts where the where the Massachusetts.
00:54:08.610 –> 00:54:10.350
Get overtime law is so unique.
00:54:11.460 –> 00:54:21.090
I can include in the communication we send out later today with the recording with the slides The message is restaurant association has a really nice kind of breakdown of.
00:54:21.630 –> 00:54:32.430
The minimum wage, what the tip minimum wages and then what the tips minimum overtime, for it is so i’ll be sure to include that for people who are a local here to Massachusetts that could benefit from that.
00:54:33.630 –> 00:54:46.950
But in terms of other states that it really depends on what the minimum wages in that state and what what they allow for a tip credit and then how the overtime works there, but if you do have questions if you are in other states and want to know about tipped over time.
00:54:48.660 –> 00:54:51.480
feel free to reach out to us and we can help out with that.
00:54:56.790 –> 00:54:58.860
Okay, then we have a question here about.
00:55:00.000 –> 00:55:03.390
termination and return of equipment.
00:55:04.560 –> 00:55:06.300
So, so when it comes to that.
00:55:07.950 –> 00:55:13.590
You know whether, and the question here is whether it’s okay to verbally communicate that or if it should be in writing.
00:55:15.540 –> 00:55:23.580
Most states do allow for termination to be completely variable without a termination letter and they can similarly.
00:55:24.150 –> 00:55:31.740
reveley request the return of equipment, hopefully they’re keeping track of their company assets, so those of you who are current MP clients and us.
00:55:32.400 –> 00:55:42.180
I saw there is a the ability to track company assets, down to the serial number within the system by each employee, which is something I always recommend to clients they utilize.
00:55:43.110 –> 00:55:55.620
But, depending on what state it is there are a handful of states that do require written termination letters and do require a reason for the termination and as well as any terms of creating requirements return equipment, but.
00:55:57.090 –> 00:55:58.680
In terms of being compliant.
00:55:59.730 –> 00:56:07.590
Again, and most States doing it verbally as Okay, it is always the best practice and we do always highly encourage employers to document things like that.
00:56:10.380 –> 00:56:13.080
It looks like we do have one other question about.
00:56:14.250 –> 00:56:26.760
The new Hampshire we see family medical leave and if there’s a week period we’re just getting our hands on that it was just included in the budget so we will have a lot of.
00:56:28.710 –> 00:56:40.320
MP: content on that coming out once once the guidelines are a little bit more clearly defined, but unfortunately I don’t know the ins and outs of that that new program just yet.
00:56:43.170 –> 00:56:45.810
So it looks like those are the questions we have.
00:56:47.130 –> 00:56:51.000
Thank you very much, I will hand things back over to amy to close us out.
00:56:51.990 –> 00:57:01.200
Thank you, Paul, that was an abundance of information, and thank you all again for attending this webinar we hope you came were some helpful information on the latest HR legislative updates.
00:57:01.440 –> 00:57:07.800
I want to quickly remind everyone with a link to the recording and the presentation will be sent out an email later this afternoon.
00:57:08.160 –> 00:57:13.800
Please join us next week, we have two really great webinars on the schedule on Tuesday, Paul will be back again.
00:57:14.130 –> 00:57:20.370
With the latest on employee retention tax credits, how to determine if your business is eligible and how to maximize your credits.
00:57:20.760 –> 00:57:30.810
And then, on Thursday, we have sherry Heller another one of our MP HR experts covering mass PF ml, with a focus on avoiding discrimination and retaliation penalties.
00:57:31.080 –> 00:57:40.230
For a complete schedule of all our upcoming webinars visit our website on the resources page thanks again for joining us today and have a terrific rest of your day.
Paul Carelis, SHRM-CP, PHR
VP of HR & Client Services, MP
Need a quick, comprehensive roundup of the HR law updates that will impact your workplace now? In addition to state-level changes, the Biden-Harris administration has already made significant legislative changes via ARPA and the COBRA subsidy that will affect your HR and compliance efforts. MP’s HR services experts share what your team needs to know now to maintain HR compliance.
Register for the webinar to:
- Learn about laws surrounding COVID-19 and related leave scenarios
- Find out how state and federal governments are responding to unemployment concerns
- Get updates on Secretary Marty Walsh and the new Department of Labor’s agenda
- Prepare for the new HR regulatory compliance laws and actions being considered by state legislatures