2022 Semiannual Legislative Update: HR Compliance and Employment Law

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MP: Good afternoon, and thank you for joining us for an MP webinar covering the 2022 semi annual legislative update HR compliance and employment law.

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MP: i’m katie crater marketing specialist here at MP For those of you joining us on a webinar for the first time MP, is a full service human capital management company.

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MP: We offer a complete suite of products and services to support organizations, through the entire employee lifecycle.

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MP: Including recruiting HR payroll benefits administration time and attendance and compliance assistance.

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MP: We support our clients with cutting a cutting edge technical solutions, as well as proactive reliable service and deep HR and payroll expertise.

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MP: At Mt we’re we are wired for HR and help our clients succeed by aligning their people strategy with their business goals.

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MP: i’m excited to introduce your presenter for today’s program Paul corrals Paul is the VP of HR services here at MP.

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MP: He is sure and phr certified and has over a decade of experience in the HR consulting space.

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MP: Working with businesses of all sizes and industries, Paul and his team have certified HR professionals assist clients with compliance training and full circle HR guidance and support.

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MP: Just a few housekeeping issues before we get started, today, if you would 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: We will be sending out the recording of the webinar later today, along with the slides and with that i’m going to hand the MIC off to Paul.

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Paul Carelis: awesome Thank you so much.

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Paul Carelis: really looking forward to the session everybody Thank you and welcome.

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Paul Carelis: really ready to dive in here so without further ado.

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Paul Carelis: Just a quick legal disclaimer before we dig in.

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Paul Carelis: This is information coming from an HR best practices standpoint, please don’t construe anything today as legal advice, also in case you’re watching a rebroadcast or a recording of this webinar this information is current as of January 13 2022.

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Paul Carelis: And I guess more specifically with everything as late breaking as it is as of 1pm Eastern on January 13.

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Paul Carelis: So, in terms of what we plan to cover in today’s session we’re going to do a legislative overview in terms of what things are looking like in the House and Senate.

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Paul Carelis: also provide a kuvan 19 update a lot of news around that lately will take a deeper dive and know what’s going on at some of the federal agencies, I believe in this session will cover the Department of Labor the national Labor relations board as well as the irs.

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Paul Carelis: will talk about some trends that we’re seeing in terms of state laws and how those may affect states in which you employee workers.

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Paul Carelis: are also just to get an idea for what some of the trends are as oftentimes some of our what we consider our influence or states.

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Paul Carelis: States like Massachusetts California New York sometimes some of the new laws and regulations that they introduce and get picked up by other States as well, so just so you’re you’re mindful of what some of those trends are looking like.

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Paul Carelis: And we’ll do a general outlook of of employment trends, as well as litigation trends and finish up with a Q amp a and hopefully get to any questions you may have so again.

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Paul Carelis: As mentioned before, please do utilize the Q amp a feature at the bottom of the screen and we’ll we’ll get to as many questions as time allows.

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Paul Carelis: Okay, so first First things first a quick covert update, we were really planning on having a decision by the Supreme Court on the validity of the.

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Paul Carelis: Private employer coven 19 vaccine mandates by today the rumors were that the Supreme Court was going to release a decision on that they did hold their session earlier today and did not release an opinion on that at this time.

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Paul Carelis: So I will I will read check before we before we conclude today’s session, but as of right now, it looks like we’re going to have to wait a little bit longer for a decision there so.

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Paul Carelis: If you were with us last week you’ll know that we did a pretty deep dive into the mandate and the requirements and the expectations for employers.

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Paul Carelis: as of right now that isn’t effective as of this past Monday real enforcement isn’t set to really start until February, so we are expecting a decision from the Supreme Court any day now but.

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Paul Carelis: As an employer, you should be prepared to.

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Paul Carelis: To comply, if needed, if not, then you can decide whether you want to do it it’ll obviously be optional at that point, but we are still waiting for the up and down on that, but that will be pretty definitive once that’s released.

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Paul Carelis: In terms of subject matter experts that I spoke with.

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Paul Carelis: There is.

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Paul Carelis: There is some speculation that the overall private employer mandate will will be either delete or halted and that won’t be put into effect, at least not immediately, but that the mandate.

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Paul Carelis: That applies to the healthcare industry medicare medicaid funded businesses.

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Paul Carelis: That that will be, in effect, so that there would be a mandate in the healthcare space, but other private employers would.

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Paul Carelis: would not have that requirement again that’s not not for certain by any means, we do need to wait for the Supreme Court to formally weigh in and they haven’t done so as of yet.

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Paul Carelis: In terms of other code related news.

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Paul Carelis: As of this time, at least at the federal level there really aren’t many or any federal relief programs to speak of those all ended at the end of third quarter 2020.

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Paul Carelis: we’ll see what happens with the mandate if it’s completely struck down a piece of it do stay if the mandate is found to be valid and continued, there is a requirement for providing some time for employees to get vaccinated.

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Paul Carelis: So, so that that could come into play, but as of right now there’s no no additional round of PPP loans, etc, which we’ll talk about in a second ended as of 930, at least for current wages.

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Paul Carelis: And the other federal kind of mandated reimburse double covert sickly even all that arpa arpu believe and all those fun things those all ended at the end of third quarter as well.

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Paul Carelis: It is really important to familiarize yourself with the rules in the states that you operate in.

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Paul Carelis: Several States Massachusetts New York among them, as well as some others do you have coven related sickly programs, many of which do reimburse employers for for those wages, so you just want to familiarize yourself with the programs and the stage you operate in.

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Paul Carelis: Speaking of the rtc so wanted to clarify some things there, while the program did and as of September 30 and kind of with the, at least at this point failure of the build back better reconciliation bill.

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Paul Carelis: etc was not extended or it was taken away and not brought back for fourth quarter of 2020 but, that being said, you do still have time to file retroactive employee retention tax credits.

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Paul Carelis: For 2020 in the first three quarters of 2021 so it isn’t too late to decline, those credits if you’re eligible.

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Paul Carelis: it’s just that the time period in which to measure wages ended on September 30 So if you are interested, please let us know that as a service we provide and.

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Paul Carelis: we’ve had a lot of success, helping businesses discover thousands and, in some cases, millions of dollars in in refundable tax credits through the rotc Program.

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Paul Carelis: And one one final kind of best practice piece here there’s a lot going on in terms of reasonable accommodations and reasonable accommodation requests.

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Paul Carelis: Medical exemptions religious exemptions, especially for businesses who have decided to have a vaccine mandate outside of what’s what’s required by this pending federal law.

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Paul Carelis: And to just kind of give a view of of how agencies and how courts of view those so far it’s it can be a real struggle with the business has taken the time and effort to put in a vaccine mandate, and they have people claiming exemptions are looking for reasonable accommodations.

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Paul Carelis: There is a process, you have to go through went through it in last week seminar So if you if you missed last week’s please reach out and we can get you a copy of the recording.

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Paul Carelis: It was all about the vaccine mandate, but one thing to keep in mind whether it’s the mandate or whether it’s a policy that you put in place.

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Paul Carelis: Generally speaking, the goal of that is to have a safe and healthy workplace and really free of direct threats that go with 19 compose.

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Paul Carelis: So when there is a reasonable accommodation that’s fine, we do have to treat it the right way and go sometimes go through the the process and and really determine what the accommodation is requested and whether that’s reasonable or not.

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Paul Carelis: But, should you go through that interactive process and determine that.

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Paul Carelis: Someone has a exemption from being vaccinated someone has an exemption from wearing a mask whatever it may be.

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Paul Carelis: Just because they have a valid exemption doesn’t mean that a reasonable accommodation is having them in the workplace, so, thus far, at least when employees have challenged.

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Paul Carelis: Their employers, whether it be not wanting to comply with a mandate or having an exemption and being basically being told that there they can’t be in.

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Paul Carelis: They can’t report to work they’re either put on a leave apart on some sort of duty that’s away from co workers, the general public, because of the of the guidance and.

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Paul Carelis: Industry information that states that coven 19 poses a direct threat and as a as a real hazard businesses have been allowed to remove those workers from from the workplace, so the most landmark cases so far have been through the airline industry.

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Paul Carelis: So several airlines that have imposed vaccine mandates have told employees who have received a medical or religious exemption.

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Paul Carelis: That if they’re in roles that deal with the public, whether that’d be on airplanes or in airports or wherever that they’re going to be placed on leave until.

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Paul Carelis: Until the pandemic subsides so and so far the courts have held those up so just something to keep in mind as as an employer and as you’re dealing with request for accommodations or.

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Paul Carelis: push back on vaccine mandates masking rules, whatever your policy may be that should you be able to make a business case and in the vein of.

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Paul Carelis: Reducing that direct threat to to your fellow employees or to the general public, or whatever, whoever your business may serve that you do have a leg to stand on there, and in many cases.

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Paul Carelis: So, in terms of what’s going on over in Washington.

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Paul Carelis: quite a bit, but.

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Paul Carelis: Quite a lot of infighting I should say, and not a whole lot of progress, so if you tuned in I believe in July was our most recent legislative update, we talked a lot about the pro Act, which was, if passed, it did pass the House and it kind of stalled out in the Senate.

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Paul Carelis: But it would have provided a lot more ammunition for unionization efforts, a lot of.

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Paul Carelis: traction in terms of reducing the number of workers who could legally be considered independent contractors it push a lot more of those workers to w two employee status.

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Paul Carelis: And also create a lot more penalizing and financial mechanism for the national Labor relations board to to charge employers financially when when they violate the rules of the national Labor Relations Act.

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Paul Carelis: So, as I said, most of that styled a lot of it will go to agencies, one thing that they did try to put in the build back better bill, which has also stalled to date was that punitive damage and civil penalties piece.

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Paul Carelis: they’re really pushing for that, because as of right now, aside from back wages liquidated damages things like that directly to employees.

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Paul Carelis: The national Labor relations board doesn’t really have a mechanism to levy big fines or penalties on employers, they can simply correctly action get those affected workers they’re.

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Paul Carelis: lost wages back and a little bit more, but they don’t have the capability of really doling out huge fines and penalties to these employers who are violating the national Labor Relations Act, so there, they are looking to do so, they did put it in the bill back better.

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Paul Carelis: People are pretty pessimistic about that getting ultimately passed so you could see some legislation hit the floor regarding that ability and those civil and punitive penalties.

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Paul Carelis: At this point, unless something is very bipartisan we do have midterms midterm elections coming this fall and while that seems like a far away away in terms of the political new cycle and spin cycle.

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Paul Carelis: The legislators are going to start getting a little bit.

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Paul Carelis: more conservative in terms of their ambitions and what they’re looking to pass and then depending on how the midterm elections go, it could create quite a bit of gridlock in Washington and and even more frustration in terms of getting things done.

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Paul Carelis: So, should that be the case again what will likely see is much more action at the Agency level, as well as executive orders put into place.

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Paul Carelis: So if the House and Senate fail to act on some of the initiatives that the administration was really looking for.

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Paul Carelis: They will turn to the Agency so for employment login that will be the Department of Labor that’ll be the national Labor relations board and then executive orders as well to to kind of move their agenda along.

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Paul Carelis: One piece of legislation that that does seem to have bipartisan support and we will expect to see past this year is the pregnant workers fairness act up to wf a.

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Paul Carelis: So what that will be, it will be similar to a lot of state laws that are that are relatively new but in existence to basically create.

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Paul Carelis: Fairness for pregnant workers and not just those who are having difficult pregnancies or high risk pregnancies are.

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Paul Carelis: things that need a tremendous amount of accommodation, it does, it will put the onus on employers to provide accommodations to pregnant workers and to avoid anything that could be considered discriminatory.

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Paul Carelis: So you want to keep your eyes peeled for that will have much more on it once it does come closer to passage and once we know the ins and outs of it, but do look for some legislation at the federal level protecting pregnant workers.

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Paul Carelis: The government did permanently extend the deadline so if you are an employer with 50 or more full time equivalent employees you’re probably used to.

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Paul Carelis: The various deadlines and having a handout 1095 C forms for all of your insurance eligible employees under the affordable care act.

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Paul Carelis: So when the ACTA was first pass the original deadline to distribute those 1095 to the workers matched up with the same deadline to distribute w tues, which is the end of January.

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Paul Carelis: But every year and think the ACS been in effect for well over five years now, every year, they keep extending that deadline usually to march so recognizing this.

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Paul Carelis: The government has no permanently push back the 88 to 95 deadline to the end of March.

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Paul Carelis: So give you give yourselves a little bit of breathing room there if you are under the gun for for affordable care act.

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Paul Carelis: And then, as recently as this week, the White House is speaking with several tech companies because they’re recognizing that there is an issue regarding open source software that you use to build many platforms and many technologies that businesses use and that their customers use.

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Paul Carelis: A lot of the recent hacking problems that some large businesses have been victim of has been as a result of hacks and security issues within open source software.

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Paul Carelis: problem is a lot of open source software is maintained by by volunteers, so it can be difficult to really have it kept the same standards that more secure technology is.

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Paul Carelis: So the White House is meeting with several technology firms this week to try to figure out a plan to have open source software, be a little bit more secure and not be a liability to to the business world and really to our entire infrastructure.

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Paul Carelis: Right.

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Paul Carelis: So while everyone is really, really, anticipating the Supreme Court ruling on the vaccine mandate.

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Paul Carelis: It is business as usual over at the Supreme Court, they are still hearing cases and issuing decisions, some of the upcoming cases that they will be hearing that could affect employment law are as follows.

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Paul Carelis: An interesting one, with the airline industry where they’re fighting to not be bound by state wage and hour laws.

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Paul Carelis: For airline flight attendants just the based on where those attendance are are housed or where their main base of operations is because they spend so much time in the air, and most of their work isn’t done in that in their home location so.

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Paul Carelis: we’ll see how that case gets sorted out, but it could have impact on other industries as well for employees who traveled to the several states or don’t really have a solid base of operations.

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Paul Carelis: they’re also going to hear a case about mandatory arbitration and whether it’s lawful for employers to force employees into mandatory mandatory arbitration scenarios to resolve workplace disputes and.

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Paul Carelis: Usually it’ll be something around determination, whether the termination was awful or what money is maybe due to an ongoing employee so it’ll be pretty landmark to see how they rule on the manager mandatory arbitration case.

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Paul Carelis: they’re also going to hear a case regarding the power of federal agencies and their interpretation of laws and the ability for employers and employees to challenge an agency’s interpretation of a of a law.

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Paul Carelis: So that obviously there’s a lot of weight in terms of the ability for for business to challenge an employment law that they or a mandate from from an agency that they feel is unjust.

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Paul Carelis: And then, finally, the Supreme Court is also soon going to be hearing a case regarding retirement plan fees and whether.

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Paul Carelis: When those fees or excessive whether it.

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Paul Carelis: violates any of the erisa marissa codes so that’ll be interesting to follow as well and and could be quite a bit of a shake up in the financial sector when it comes to retirement plans.

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Paul Carelis: So the irs isn’t typically an agency, we touch on in this session we usually stick to stuff that’s more more involving employee relations issues and things like that, but.

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Paul Carelis: There was a pretty startling report released, it was either yesterday or the day before about kind of the crisis that the irs is going through right now so as of the end of 2021.

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Paul Carelis: They had a backlog of over 6 million paper returns and over 2 million amended returns that they’re trying to get through and and by a combination of some some budget cuts, a couple of years ago, combined with.

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Paul Carelis: and hiring issues and absenteeism right now, their staffing is basically at 1970 levels.

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Paul Carelis: So there’s a whole bunch of people dealing with a mountain of paperwork and then the phones are also ringing off the hook so as things get delayed that creates more inquiries into people calling in and wondering what the status of the return is or.

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Paul Carelis: kind of follow up on on some correspondence things like that so as of right now the irs has 15,000 call Center employees who are left to deal with 240 million calls that came in last year.

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Paul Carelis: As a result, based on extreme hold times and things like that only 9% of calls in the irs were actually answered last year.

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Paul Carelis: There are some some tech resources as well.

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Paul Carelis: For individuals looking for the status of their refund there is where’s my refund page that received over 630 million visits last year, so.

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Paul Carelis: they’re getting hit hard they are kind of bracing people telling them to expect for the delays as the tax season formally launches later this month.

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Paul Carelis: Best best practice here is really to.

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Paul Carelis: E file, whenever possible, also request the direct deposit whenever possible, rather than waiting for a paper check to be produced for any sort of refund or credit.

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Paul Carelis: that’s that’s the best way you can streamline things we’ve seen that ourselves that things that can be filed turnaround in weeks.

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Paul Carelis: Whereas paper returns and amendments turn around in a matter of several months and the original windows that we’ve seen are now being exceeded so when it comes to e rtc the tough news there is that.

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Paul Carelis: The irs doesn’t currently have a method for.

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Paul Carelis: For businesses to submit amended returns and claim employee retention tax credits electronically there isn’t an e file option at this time, so, unfortunately, those have to be added to the paper backlog.

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Paul Carelis: Working closely doing our best to help them realize quicker turnaround times, but the if you are thinking about the rtc the faster, you can get that in the better in terms of getting those credits to you, sooner rather than later.

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Paul Carelis: Okay over at the national Labor relations board if there’s one agency to keep your eye on in terms of the latest and greatest with employment law and moving and shaking.

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Paul Carelis: Look at the NLRB they are getting really busy right now so they’re moving quite aggressively they’re hearing cases they’re inviting cases they’re kind of soliciting for cases on on topics that they want to rule on.

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Paul Carelis: Right now, I believe, on December 27 they made a statement really looking for cases to help clarify independent contractor rules and in which instances they feel it’s appropriate for a worker to be classified as an independent contractor in which cases.

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Paul Carelis: are really more of an employee employer scenario so depending on how what case they accept and what kind of precedent and asset, based on the details of those cases.

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Paul Carelis: It could be really landmark and it could create a huge take up in the business world in terms of who can legitimately be considered an independent contractor and who is really needs to be a w two employee.

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Paul Carelis: they’ve also been dealing a lot with unionization cases and attempts for workforces to be collectively bargained.

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Paul Carelis: Some of the the big ones that they’ve been been ruling on recently have been Google, the New York Times and Amazon.

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Paul Carelis: Google just lost the hearing with the national Labor relations board, I think, earlier this week where they were trying to withhold some information, but are now being forced to provide it to the NLRB.

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Paul Carelis: They also said that the New York Times acted unlawfully in terms of how they treated I believe some of their tech calmness and journalists from from forming a Union.

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Paul Carelis: And then there’s been a lot of back and forth of the Amazon, and the way that they’ve handled unionization efforts at different.

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Paul Carelis: locations there so there’s a ton of scrutiny on on utilization efforts and something to be really mindful of you really if you are of an industry that.

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Paul Carelis: is at risk, for being Unionized or things start to look like there’s some some movement going on, you really want to make sure that you’re up on what the latest and greatest rules are in terms of what you’re allowed to do and what you’re not.

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Paul Carelis: You really don’t want to run afoul of those rules and they kind of are constantly changing between.

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Paul Carelis: timelines for elections what meetings you’re allowed to hold what you’re allowed to say, to try to dissuade employees from unionizing while you’re not allowed to say so.

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Paul Carelis: It is quite a minefield so you just want to make sure you’re up to date on what you can and cannot do in that in that arena.

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Paul Carelis: They are also weighing what can be allowed in severance agreement and this could be huge as well, so.

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Paul Carelis: There is some likelihood that they’re going to disallow the following and severance agreement so confidentiality, especially around the amount of us have a severance payment, so a lot of times service agreements will say.

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Paul Carelis: You agree to keep the amount, you know the terms and the amount of this severance payment confidential.

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Paul Carelis: And you also promised not to disparage the company in any way sometimes it’ll be a mutual non disparagement clause.

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Paul Carelis: it’s looking very likely that those will get thrown out and not be deemed lawful and sovereigns agreements so.

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Paul Carelis: And those previously had been enforceable I don’t know if you remember, I remember a few years ago, there was someone who.

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Paul Carelis: had signed a severance agreement, I want to say they were a judge or something or maybe a an attorney but.

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Paul Carelis: One of their children went on social media to brag about the amount of the the severance and then ended up costing them quite a bit of money, because there was this confidentiality piece in the severance agreement itself.

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Paul Carelis: But we’ll see where that goes, but it is looking fairly likely that those will get get thrown out.

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Paul Carelis: And then another big case that could affect employers and effect handbook policies quite a bit.

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Paul Carelis: Is regarding whole foods and and some of their policies regarding masks and and kind of uniform and dress code, so you may or may not remember but early on in the pandemic when masking was really mandated and emphasized.

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Paul Carelis: There was a brouhaha over at whole foods, because.

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Paul Carelis: Some of their employees wanted to wear masks with black lives matters logos and and black lives matter statements and whole foods did not allow that they prohibited it from the store so.

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Paul Carelis: It was a lot of back and forth they eventually figured something out I think whole foods ended up providing some some approved a tire.

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Paul Carelis: But the national Labor relations board just recently weighed in a couple weeks ago that they’re going to be going after whole foods and saying that.

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Paul Carelis: By by banning the blacks lived black lives matters mass that they violated those employees, Section seven rights and their ability to.

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Paul Carelis: discuss the conditions of their work, stating that you know racism was a potential condition at their workplace, so the black lives matter mask was in in conjunction with their Section seven rights under the national Labor Relations Act so we’ll see how that case goes but.

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Paul Carelis: Should it should it go a certain way, and may require employers to kind of carefully word their their handbook policies, when it comes to appropriate attire to leave some wiggle room in there for.

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Paul Carelis: For a tire that could be in protection of their rights under the national Labor Relations Act.

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Paul Carelis: So, along with the national Labor relations board the federal department of Labor is also keeping quite busy.

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Paul Carelis: In preparation for the presentation today i’d like to look through some of the press releases and some of the action and some of the rulings that the Department of Labor.

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Paul Carelis: conducts and a lot of times they will release a press release, especially when it’s a fairly sizable outcome against our ruling against the employer.

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Paul Carelis: And just looking through at what’s come out just this year alone, just this month and we’re not even two weeks into the first month of the year here but they’re already 20 nearly 20 different press releases with with various fines and penalties for businesses, everything.

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Paul Carelis: ranging from overtime violations not paying overtime correctly.

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Paul Carelis: There, there was something where they found some systematic wage in our issues at cotton cotton gin facilities and the southern us.

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Paul Carelis: There were some regarding retaliation so they’re they’re hard at work and there they must be staffed appropriately to deal with complaints coming in, because they are, they are going, after quite a few different businesses out there, so.

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Paul Carelis: It is something to be mindful of you do want to really double check triple check quadruped quadruple check that your wage in our practices and policies are up to snuff because the Department of Labor isn’t fooling around right now.

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Paul Carelis: Among those press releases and not counted towards the ones with financial penalties associated with them.

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Paul Carelis: They did earlier this month announced an official partnership and Info sharing agreement with the national Labor relations board so as busy as both companies are both agencies are independently.

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Paul Carelis: They are now working together as well and sharing information, so if something’s found to be in violation of one or maybe they know what it would be in violation of the other.

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Paul Carelis: They do not have a formal agreement to share that information so again just something to be mindful of their.

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Paul Carelis: Then there was a really interesting case you may have heard about it made some of the news just because of the nature of it.

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Paul Carelis: But they did find against an employer.

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Paul Carelis: Is auto body or a mechanic shop.

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Paul Carelis: They had an employee who got in a fight an argument with the owner and the employee quit.

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Paul Carelis: The employee then demanded their their final pay $931 and change that they were owed.

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Paul Carelis: The owner of the business.

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Paul Carelis: Really felt that things ended on a sour note was not happy with the employee and not happy about their demands for their final pay so instead of sending him a check.

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Paul Carelis: The employer either themselves or hired someone to drive over $931 in dirty oily pennies and dump them on the employees driveway.

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Paul Carelis: Not only that, so that obstructed their driveway create a huge mess.

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Paul Carelis: I guess it took seven hours for the for the pennies to be cleaned up.

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Paul Carelis: And then, on top of that, they also included a I believe a handwritten paste up that included some expletives about the employee and then also made some defamatory statements on the company’s website about that employee so.

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Paul Carelis: It was, it was quite a spiteful action and, ultimately, the Department of Labor did did side with the employee and found and rule that the employers retaliated against by their employer based on these actions I don’t know if anyone more than the other, but they did feel that this was.

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Paul Carelis: retaliatory and as as I often warn when there is an issue with one employee that can oftentimes open up the books to everything you have going on, so it was part of this complaint.

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Paul Carelis: That hardly ever did a more formal audit on all of their pay wage in our practices and found several other wage violations our violations I believe they weren’t paying overtime correctly, they were just paying.

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Paul Carelis: a flat rate rather than actually counting the overtime hours and some other stuff so at the end of the day.

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Paul Carelis: company has to pay 36,000 and wage back wages and damages, as a result of of dumping, all these pennies on this employees driveway.

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Paul Carelis: What some people may or may not realize is that OSHA occupational safe safety and hazard administration is an arm of the Department of Labor so in terms of what they have going on, obviously, a lot of this hinges on on the vaccine mandate, because they will be the.

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Paul Carelis: They will be the body that’s in charge of enforcing that rule, so should the mandate stay in place or she will be.

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Paul Carelis: Pretty busy and spread pretty thin when it comes to their day to day work as they’ll have to be enforcement effects the mandate.

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Paul Carelis: always seen so far, I guess, similar to the safety situations and probably a little bit different where they will be short staffed should there be a vaccine mandate.

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Paul Carelis: osha’s kind of acting in a in a reactive way at this point sure they’ll always be audits here, there and everywhere.

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Paul Carelis: But in terms of timeliness right now and as of late they’ve really been responding to complain, so if an employee complains about workplace safety or that a company is is creating a unsafe workplace, whether that be occupational hazards and not.

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Paul Carelis: Not having proper safety equipment, having a truly dangerous workplace or you know also that extends to covert protocols if employees complain that a business is not operating in a safe manner in terms of contagions and.

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Paul Carelis: Keeping the virus at bay.

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Paul Carelis: Then, those are creating OSHA complaints as well and and OSHA is responding to those pretty quickly so.

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Paul Carelis: If you do have employees complaining about safety or how safe they feel in terms of covert 19 related safety as well, you do want to do what you can to respond to that in House make sure that you know the measures that you’re taking.

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Paul Carelis: understand what the requirements are of you as a business and show that you’re meeting those the hopefully stephanie o’shea interaction.

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Paul Carelis: So this slide is the same as as our last go around but department of Labor is working off of their four years strategic goal kicking off this month.

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Paul Carelis: Is a four part goal to build opportunity and equity for all so they’re they’re looking really carefully at pay equity.

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Paul Carelis: any type of racial discrimination or systematic racism or other forms of discrimination in the workplace.

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Paul Carelis: They are really wanting to have OSHA more of a focus as well for for safe workplaces.

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Paul Carelis: They do want to look into in the administration of worker safety net programs will be the family medical leave act or anything else that might be born under this administration for parental leave, or anything else that might come about.

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Paul Carelis: And then, they also want to be better in terms of their data collection and ability to have statistics and data that both federal agencies state agencies and the general public and can lean on to understand what’s going on out there and in the working world.

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Paul Carelis: Another arm of the Department of Labor is do FCC P, which oversees federal contractors, so a couple pretty important new things for federal contractors and 2022.

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Paul Carelis: First, of which is a $15 minimum wage, there are some exceptions, depending on the work that’s being done in some other certain situations, but by and large, there is now a $15 minimum wage, and please for federal contractors and those employees.

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Paul Carelis: And perhaps more more so, and something else that really keep in mind is there’s always been a requirement for federal contractors to have affirmative action plans and historically they’ve just kind of been spot checked and spot audited.

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Paul Carelis: But as of this year, there is going to be mandatory reporting of each federal contractors affirmative action plan so there’s going to be a website set up.

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Paul Carelis: It looks like it was just just started up and just launched where federal contractors are going to be required to submit and report their affirmative action plans.

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Paul Carelis: The window for doing so is going to be march 31 is going to be when the reporting window opens and those will all be due by the end of June this year.

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Paul Carelis: The thinking, there is that there will be some level overview of those affirmative action plan so rather than just random audits where.

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Paul Carelis: they’re kind of looking blind, they will be reviewing the data and ones that seem to be troublesome or potentially problematic, though, then audit the practices at those organizations those federal contractor so.

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Paul Carelis: If you are a federal contractor and you don’t yet have affirmative action plan in place, you will want you will want to get right on that because you will be required to report that later this year.

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Paul Carelis: Do FCC P is also doing a collaboration collaboration with the equal employment opportunity Commission to really encourage.

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Paul Carelis: Pay equity and.

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Paul Carelis: More inclusion amongst federal contractors and working with businesses to.

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Paul Carelis: Have a more inclusive program for for their hires.

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Paul Carelis: And they’re also toying with the idea of.

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Paul Carelis: A notification requirement whenever a federal contractor brings in subcontractors so that.

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Paul Carelis: They can keep on the up and up about which Subcontractors are being used and making sure that all applicable laws and regulations are being being adhered to.

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Paul Carelis: Over on the State side some interesting trends that we’re seeing a ton of states are enacting further restrictions or completely eliminating the validity of non compete agreements.

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Paul Carelis: Believe Oregon is the latest, so their version of the legislation.

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Paul Carelis: Bands any non compete agreement that’s more than 12 months in length so in terms of the non compete period it can’t be longer than 12 months.

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Paul Carelis: Along with some other restrictions so that’s something to be mindful of, especially if you’re hiring across the country and hiring employees and in different states.

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Paul Carelis: You want to make sure you’re not having them sign a non compete agreement if it isn’t lawful or if there are certain certain rules and requirements for those non competes in the state that they’re going to be working.

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Paul Carelis: we’re also seeing a growing number of states, adding natural hairstyles to their list of protected classes.

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Paul Carelis: North Carolina was one, and there was another state, I think Illinois also added this to their list this year.

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Paul Carelis: Another thing that the Illinois has done, which.

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Paul Carelis: sounds may science sound kind of odd and may be wondering what the what the applicability of it is, but, in addition, in addition to standard protections for disabled people Illinois has now extended.

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Paul Carelis: Disability predictions to people associated with disabled people so where this can sometimes come up is or the onus of employers and we’ll have to see how this really goes when it comes to being challenged and going into litigation in Illinois.

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Paul Carelis: But I believe the thinking is is that if you have an employee who may have a spouse or something like that is who is disabled and you know what are the expectations are requirements for employers to accommodate that employee.

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Paul Carelis: Or are we discriminating and not hiring someone because we know that the situation at home they’re associated with someone who has a disability that.

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Paul Carelis: We made concerned about their ability to do the job for us so it’ll be really interesting to see how that plays out, but that is in effect as of this year.

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Paul Carelis: Another interesting one, is it over in California, so there there’s a fairly long standing it’s been around for a while now, but basically a requirement California, that if employees miss a mandatory break or lunch break that they’re paid an hour hour of pay.

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Paul Carelis: And the interpretation of that our pay has always been at their kind of their regular rate or their standard rate, so what they normally make each hour.

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Paul Carelis: But the state isn’t has now for the clarify for this year that their definition of regular rate is the same regulatory definition is as it comes for overtime purposes.

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Paul Carelis: So, for those of you familiar regular rate in terms of the fair Labor standards act means not just their regular hourly rate, but also need to include.

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Paul Carelis: And factor in commissions and other incentives and other pay that they’re receiving.

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Paul Carelis: to determine what their actual regular rate is so on top of that California has also made this clarification retroactive.

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Paul Carelis: So for employers who isn’t just enough to be doing that correctly going forward and making sure and instances where you’re paying the the hour for the for the break time.

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Paul Carelis: That, in the past, you did it incorrectly and weren’t weren’t factoring in the entire FSA definition of regular rate, you could you could also employee some money.

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Paul Carelis: We are also seeing various States deal with coven and either mandated coover leave or the availability of coven leave in different ways, again allow these do have reimbursements available.

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Paul Carelis: And, based on what was passed we we kind of say California Oregon and Illinois where the most active So if you do have employees in those States make sure you do a bit of a deeper dive and make sure you you’ve got a good handle on all the new laws and regulations in effect for 2022.

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Paul Carelis: So, looking ahead in terms of what we’re seeing in the courts kind of what what’s going on in terms of litigation.

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Paul Carelis: We are seeing covert cases again a lot of challenges to employee policy employer policies employer mandate, but today, as I mentioned earlier in the broadcast.

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Paul Carelis: The course so far have generally sided with with the employers in the name of public safety, so.

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Paul Carelis: As long as employer can make a business case as to why that employee poses a direct threat if they’re not master not vaccinated or what have you the employer has has generally one of those cases to date.

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Paul Carelis: Also, seeing a lot of litigation around civil rights violations discrimination in the workplace on equal treatment, it can be really challenging when.

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Paul Carelis: You feel it’s okay for certain segments of the employee population to maybe work remotely I have modified hours and and not so much for.

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Paul Carelis: Other other groups so it’s really important that you have a non discriminatory business based case when you make decisions on on certain things like that and be able to communicate that effectively, so that if people.

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Paul Carelis: Are employees tend to think the worst and just assume they’re being discriminated against because of their disability or their race or their gender or other protected class that you’ve got it kind of an ironclad paper trail of your reasons for making your your business decisions.

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Paul Carelis: Also, seeing a ton of litigation around overtime again that regular rate rearing its ugly head in terms of proper compensation to employees you do really want to make sure if you do have employees who do work overtime that their regular rate is calculated correctly.

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Paul Carelis: Also, a lot of challenges to miss classifications, whether that be.

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Paul Carelis: Employee versus independent contractor or exempt versus non exempt so employees being paid on a salary basis when they feel they should be hourly and eligible for overtime.

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Paul Carelis: Something to really keep a keen eye on will be if you do have employees who were perhaps legitimately exempt salaried.

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Paul Carelis: To having exempt job duties before the pandemic, but since then, and because of staffing shortages, or whatever it may be that their role and their responsibilities have changed somewhat and they’re doing a lot more.

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Paul Carelis: What would be considered non exempt tasks he made need to temporarily or maybe even permanently reclassify their positions if.

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Paul Carelis: they’re primarily focus of their job is has shifted from exempt work to non exempt work so definitely something to take a look at.

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Paul Carelis: Also, a lot of kind of wage and hour on remote work it’s really hard as an employer to monitor when your employees are working or not, and when they may be going over into overtime scenario so.

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Paul Carelis: it’s a really delicate topic and something that needs to be handled carefully but.

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Paul Carelis: Remote work is becoming an issue with with wage and hour, and on top of that, not just the actual we just an hours but.

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Paul Carelis: For remote workers which which data is in play here, which which wage in our Rules do you need to go by, is it where the employee had been working previously in your corporate office or now that the they’re working from home and that’s in another state.

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Paul Carelis: Or maybe they’re working some of the time in the office and some of the time at their home which dates rules come into play so.

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Paul Carelis: Unfortunately, the answer on that is it depends, but again something you want to really analyze and have a have some confidence that you’re doing it the right way.

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Paul Carelis: And then also again litigation around accommodations and what’s what’s reasonable versus what pleases, an undue hardship.

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Paul Carelis: On a business so again when it comes to go over 19 the courts are really started with employers in the name of public safety, but other other accommodation request not so much in terms of.

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Paul Carelis: The bar that set that we’re an accommodation really causes an undue hardship on a business that bar can sometimes be pretty high it does depend on the size of the business and the accommodation request itself, but it is something you have to carefully scrutinize.

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Paul Carelis: We will also likely see some more wage in our litigation or regarding what’s called the 8020 rule, so I failed to mention it my department of Labor update we kind of had a full slide there but.

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Paul Carelis: The Department of Labor just recently reenacted that what’s called the 20 8020 rule this largely pertains to restaurants, but other tip positions as well, and so the 8020 rule basically states that when an employee is spending more than 20% of their time on non tipped type duties.

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Paul Carelis: So not waiting tables but doing some of the other work that wouldn’t be subject to tips if that creeps more than 20% then.

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Paul Carelis: The tip to rate is not appropriate for those hours, so if you do have tipped employees in your industry, you want to be mindful and make sure that they’re non tip duties are not exceeding 20% of their hours.

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Paul Carelis: At least, at least if you’re paying the tip rate for all of it.

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Paul Carelis: Okay, and finally, before we see what we have for questions some things to look for and keep your tabs on and definitely subscribe to our news updates, as were always calming the latest and the greatest of the courts and at the agencies.

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Paul Carelis: As I mentioned earlier, there are going to be a lot of fights over jurisdiction.

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Paul Carelis: What what employment laws are valid in terms of employees specific working situation, and then on top of that which which employment taxes do they need to pay in terms of withholding and unemployment and all that so.

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Paul Carelis: No one cases the same with these we are already seeing some States start to fight over.

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Paul Carelis: Who should be the state of record for tax purposes, but that will also extend to employment laws, because, as you probably know, if you’re a multi state employer, the rules can vary dramatically from state to state.

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Paul Carelis: So expect to see some clarification and and some more stern rulings over that topic.

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Paul Carelis: Also, like to like to see some more action independent contractor so that could come from a number of different areas.

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Paul Carelis: A lot of states and moving towards more strict rules on independent contractors a lot are adopting that ABC test that California and other States adopt where unless all three prongs are met the worker really needs to be classified as an employee.

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Paul Carelis: we’ll see what happens there, it could come at the state level department of Labor is dedicated themselves to addressing and as well as the national Labor relations board so expect some movement there.

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Paul Carelis: And again, as I mentioned before, just make sure you’re keeping on top of of unionization rules and what their rights are of employees attempting to unionize and what their rights are of employers in terms of how to handle that in their workplace and when they can and cannot do.

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Paul Carelis: National Labor relations board is looking at that very aggressively so expect the rule to be modified in 2022 to some extent.

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Paul Carelis: Speaking of the NLRB as they rule on different cases you’re going to want to make sure that your handbook and your handbook policies are up to date.

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Paul Carelis: One of the one of the things that the Obama era, or the Obama Administration national Labor relations Board was very famous for was really analyzing and.

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Paul Carelis: deeply analyzing handbook policies and picking out language.

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Paul Carelis: That may have seen innocent innocent on the surface, but they found to be chilling to employee right so.

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Paul Carelis: Based on what we know, right now, there could be further scrutiny on handbooks and employee handbook policy so as rulings come out and as decisions are made you’re going to want to make sure that you’re updating your handbooks accordingly to not be in violation.

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Paul Carelis: Alright, so let’s see what we have for questions got a couple minutes.

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Paul Carelis: Is there an OSHA vaccine mandate time that’s being issued for staff to get vaccinated so.

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Paul Carelis: Great question as of right now the OSHA emergency temporary standards is called, which is the vaccine mandate.

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Paul Carelis: would only if it if it stays as drafted and as released, it would only apply to businesses with 100 or more employees, so if you’re under that unless there’s something at the state level where you are now there’s at the federal level there’s not a vaccine mandate for smaller employers.

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Paul Carelis: Should the should be over 100 employee vaccine mandates stand at the Supreme Court supports it and keeps it going that technically went into effect as of this past Monday.

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Paul Carelis: Enforcement won’t really start until next month, but should it should it stay in place then you’re you’re really going to want to make sure you’ve got your ducks in a row, and that you get into into compliance this month.

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Paul Carelis: Okay, a lot of what a request for last week’s webinar so we’ll make sure to get that to everybody, it was a really good session.

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Paul Carelis: Alright, review the rules what’s considered the State of employment if someone’s working remotely do the pandemic or being moved towards a hybrid situation.

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Paul Carelis: So this can vary state by state what what many so in terms of temporary nature if someone’s been working at home because of the pandemic most states have kind of abolish that.

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Paul Carelis: That grace period, so if you have someone who’s still working remotely and working remotely hundred percent of the time it’s safe to say that, wherever they’re performing the work that that’s going to be the state of record and if you’re not already you a need to be paying.

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Paul Carelis: State withholding tax for that state, as well as most likely unemployment insurance tax in that state and there may be other requirements as a business because you do not have an employee in that state if they’re still working remotely, especially if it’s 100% of the time out of state.

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Paul Carelis: I don’t know of any increase periods still standing in any state.

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Paul Carelis: That was allowing i’d kind of temporary treatment of the employee where they were normally working when they were working on site, so if it is 100% in one place you do you want to consider that employee an employee of wherever they’re working from right now.

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Paul Carelis: In terms of the hybrid situation again, it can vary it’s really a patchwork from State to State in terms of what they consider.

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Paul Carelis: Employment sometimes they some many will follow the the first day rule, others will have a certain hours or or payment threshold, but if you have someone regularly working between a couple of states.

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Paul Carelis: Most states will will just ask for the the primary place of work so whichever whichever has the highest percentage sometimes it’ll be three states, so if you have someone working in let’s say Massachusetts maine and new Hampshire.

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Paul Carelis: And they work 40% in Massachusetts 30% new Hampshire and 30% in maine 40% in Massachusetts is the highest highest of those percentages so they’d be considered a Massachusetts employee.

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Paul Carelis: So in that case they’d be eligible for paid family medical leave here in Massachusetts.

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Paul Carelis: But similar rules apply in other states as well, you generally want to see where is the majority of the work being performed and whichever has that that higher share would be the state of record in terms of employment.

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Paul Carelis: Does the opposite of credit, reduce the amount of payroll taxes, yes, but just to be clear arpa did end on on September 30 so opera is not in play anymore.

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Paul Carelis: You would not want to apply our belief to any wages paid after September 30.

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Paul Carelis: With the one exception of an employee who started their leave on her before September 30 and carried over into fourth quarter, those are allowed, other than that you shouldn’t have any arpa.

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Paul Carelis: arpu believe listed or any tax credits claimed for fourth quarter of last year, or first quarter of this year, if you are in a state that has a coven sick leave, that would be, it would be separate and the States have different ways for being reimbursed and credited for those.

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Paul Carelis: But just to be clear, though, the Federal opera program did end on September 30.

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Paul Carelis: In terms of signing up for future webinars if you registered for this one, you should be good to go, you should get invites to the future webinars.

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Paul Carelis: Are employers required to maintain documentation of vaccination status for remote employees, so if you are subject to the emergency temporary standard, and it is kept in place.

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Paul Carelis: it’s not a requirement for the remote employees if they’re 100% remote and never coming into the office, but if there is going to be a time where you’re going to call them in or they’re going to need or want to come into to a physical work location.

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Paul Carelis: Then they will either need to have you will either need to have that vaccination status on record, or they would be subject to the testing requirement if you allow that so.

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Paul Carelis: For the week that they’re coming into the office, they will have to have a negative test and be masked.

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Paul Carelis: discussion about tracking vaccinations status.

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Paul Carelis: yeah so definitely HR systems.

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Paul Carelis: Ours included can can be set up to track vaccination status, it is a good idea, especially if if whether this mandate passes or fails, or something else comes of it.

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Paul Carelis: it’s good to have a record of that for for many purposes, it also can, if you do end up having a positive case and you’re falling CDC guidelines someone’s vaccination status could play into what actions you need to take how long they need to be away.

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Paul Carelis: When they should be tested so on and so forth, so it’s a best practice and it’s also compliant in terms of keeping vaccinations that’s on record as long as you’re keeping it confidential.

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Paul Carelis: Our boosters now required no not at this point, at least at the federal level fully vaccinated is still defined as.

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Paul Carelis: Two weeks after the second dose of a Madonna or Pfizer shot or two weeks after the Johnson and Johnson shot, they have not yet modified the definition of fully vaccinated beyond.

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Paul Carelis: To to include boosters at this time.

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Paul Carelis: Getting some questions about Colorado emergency six, I will try to to.

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Paul Carelis: include some information about that.

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Paul Carelis: Can an entire company be exempt because of religious reasons I know I don’t believe so.

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Paul Carelis: looks like we’re.

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Paul Carelis: Coming up on time we’re right at two o’clock so thank you so much for your time today, thank you for all your great questions I will hand things back over to close us up.

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MP: Lots of great information on a complex topic any questions that were not able to be answered on today’s program will receive a response via email within five to seven business days.

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MP: The MP HR team is here to guide your organization on any HR compliance issues and they are especially well versed in the policies related to the legislative updates.

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MP: You would like to learn more about how we can assist your organization, please visit our website to set up a short 15 minute call.

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MP: Be sure to join us next week on the same day in time for a webinar when the great resignation to learn the best practices to retain your workforce.

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MP: visit our website to register and to see the full calendar of upcoming events and available resources, we will be sending out a recording of today’s webinar.

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MP: With the presentation slides, along with the recording from last week’s vaccine webinar this afternoon thanks for joining us today and have a terrific day.