January 2020 Employment Law and Regulations Update
Welcome back to the Reflexis Employment Law and Regulations Update! In this month’s article, we’ve included notable changes in United States regulations from January 2020 onward.
As I’ve mentioned, this list of new laws and regulations is not exhaustive, nor is it intended as legal advice. Reflexis strongly recommends you consult with your legal counsel regarding any substantive employment law and regulation changes that may affect your organization.
Effective January 1, 2020
The Fair Labor Standards Act “salary basis” threshold increases from $455 to $684 per week (equivalent to $35,568 per year for a full-year worker). For the “highly compensated employee” exemption from FLSA’s minimum wage and overtime requirements, the total annual compensation level increases from $100,000 to $107,432 per year.
Employers may use nondiscretionary bonuses and incentive payments (including commissions) that are paid at least annually to satisfy up to 10% of the standard salary level.
All new hires must complete the new, re-designed Form W-4.
Minimum salary to be paid to certain “exempt” employees increases to $49,920 per year for employers with 25 or fewer employees; and $54,080 per year for employers with 26 or more employees.
Organ Donation Leave Law amended to provide an additional 30 days of paid leave to employees who take leave for organ donation. This is in addition to the 30 days of paid leave already granted under the law.
Employers are prohibited from requiring or requesting that employees vote by mail or vote by mail ballot instead of taking paid voting time off. Employers who violate this new law may be subject to a civil fine of up to $10,000 per election.
Employers who allow employees who are paid less than $80,000 in wages to take paid leave for organ donation are allowed an income tax credit equal to 35% of the employer’s expenses incurred for (a) up to 10 days’ pay to the employee during such leave; and (b) the cost of temporary replacement employees during the employee’s organ donation leave.
Sunday and holiday premium pay rate decreases to 1.3 times the employee’s regular hourly rate of pay.
Minnesota – Duluth
Earned Sick and Safe Time Ordinance requires employers with 5 or more employees to provide earned paid sick leave, accrued at a rate of 1 hour for every 50 hours worked, with maximum annual accrual of 64 hours and maximum annual use of earned paid sick leave of 40 hours. Earned paid sick leave accrues from an employee’s first day of employment, but employers may prohibit use of earned paid sick leave until after 90 days of employment have been completed.
Minnesota – Minneapolis
Employers are required to provide notice to employees at the commencement of employment which includes, among other things, a statement that the sharing of gratuities is voluntary (if applicable to the position), rights under the Minneapolis Sick and Safe Time Ordinance, and any applicable overtime policy.
An employer who pays the state’s lower minimum wage because it provides health benefits to its employees must include in those health benefits, for the employee and the employee’s dependents:
- Ambulatory patient services;
- Emergency services;
- Maternity and newborn care;
- Mental health and substance use disorder services (including without limitation behavioral health treatment);
- Prescription drugs;
- Rehabilitative and habilitative services and devices;
- Laboratory services;
- Preventive and wellness services and chronic disease management;
- Pediatric services (not required to include oral and vision care); and
- Any other health care service or coverage level required to be included in an individual or group health benefit plan pursuant to any applicable provision of title 57 of NRS, which includes the substantive requirements of NRS Chapters 689A and 689B.
An employer with 50 or more employee in Nevada is required to allow an employee to accrue at least 0.01923 hours of paid leave for each hour worked for any use. An employee may begin using the accrued time on the 90th calendar day of employment.
An employer may: (1) limit the use of the paid leave to 40 hours per benefit year; (2) limit the amount of paid leave that an employee may carry over to another benefit year to a maximum of 40 hours per benefit year; and (3) set a minimum increment that an employee may use the accrued leave at any one time, not to exceed 4 hours.
Paid Family Leave benefits rate increases to 60% of the employee’s average weekly wage, up to the 60% of the NYS average weekly wage.
Employers with 6 or more employees are required to provide reasonable accommodations to employees and job applicants who have limitations related to pregnancy, unless doing so would impose an undue hardship. Reasonable accommodation include, but are not limited to: (a) acquisition or modification of equipment or devices; (b) more frequent or longer break periods or periodic rest; (c) assistance with manual labor; or modification of work schedules or job assignments. Notices must be provided to existing employees by January 1, 2020 and within 10 days after the employee has informed the employer of a pregnancy; and to new hires, upon hire.
Organ and tissue donation are specifically added as reasons for taking job-protected leave under the Oregon Family Leave Act.
A retail, hospitality or food service business which employs 250 or more employees and has 30 or more locations worldwide regardless of where those employees perform work, including but not limited to chain establishments or franchises associated with a franchisor or network of franchises that employ more than 250 employees in aggregate must provide its employees with the following:
- At the time of hire, a written good faith estimate of the employee’s work schedule, including average no. of weekly work hours in a typical 90 day period, whether any on-call shifts are requires;
- On or before the commencement of employment, a written work schedule that runs through the last date of the currently posted schedule.
- Opportunity to make requests and changes to proposed work schedule at or before the commencement of employment.
- Posted notice of the employees’ work schedules, 10 days ahead of the first day of the applicable work schedule (increases to 14 days’ advance notice effective January 1, 2020).
- Posted notice of any changes to the work schedule as promptly as possible and prior to the change taking effect.
- Pay half-pay for any decrease in work hours resulting from a change made more than 24 hours after the deadline for providing notice of the work schedule; and one hour of pay for any increase or neutral change made more than 24 hours after the deadline for providing notice of the work schedule.
- 9 hours break between shifts, which the employee can voluntarily waive, in which case, the employees must be paid $40 for each shift for which the employee waives the rest period.
- Offer work shifts to existing employees, before offering to new employees or using a staffing agency.
- Post available shifts for existing employees for at least 72 hours.
Paid sick leave total annual accrual increases to 40 hours per year, from 32 hours per year.
Employers are required to deposit withholding taxes on a weekly basis.
Employers are required to submit a withholding return (new Form RI-941) on a quarterly basis, regardless of deposit frequency.
Employers required to withhold RI income tax and had an average monthly tax amount of $200 or more during the previous calendar year must file tax returns electronically and make payments using electronic funds transfer (EFT).
Employers are required to provide a written statement, by a paystub or online accounting, that shows the name and address of the employer, the number of hours worked, the rate of pay, the gross amount earned by the employee and the amount and purpose of any deductions made.
Eligible employees must have access to paid family and medical leave benefits either through WA Paid Family & Medical Leave (or through an employer-funded program). Benefits include up to 12 weeks per year of leave if the employee:
- Welcomes a child into their family.
- Experiences a serious illness or injury.
- Needs to care for a seriously ill or injured relative.
- Needs time to prepare for a family member’s pre- and post- deployment activities, as well as time for childcare issues related to a family member’s military deployment.
If the employee faces multiple events in a year, then the employee may be eligible to receive up to 16 weeks of paid leave. If the employee faces a serious health condition during pregnancy that results in incapacity, then the employee may be eligible to receive up to 18 weeks of paid leave.
Washington – Seattle
Employers with 20 or more employees worldwide are required to offer employees who work at least 10 hours per week a pretax payroll deduction based on the allowable amount set by the Internal Revenue Services, for transit options other than a single occupancy vehicle. Employers may subsidize all or part of a transit pass for eligible employees. Employers must offer an eligible employee the pre-tax payroll deduction within 60 days of the employee’s employment start date and, if the employee elects it, must provide the deduction within 30 days after election. Enforcement will not begin until January 1, 2021.
Tipped employee payroll must be prepared by a third party payroll processer.
Effective January 15, 2020
In its Final Rule, at 84 FR 68736, the U.S. Department of Labor included the following updates and clarifications to 29 CFR §778 with respect to the calculation of the “regular rate of pay” for overtime calculations:
- Clarification on the types of benefits to be excluded from “regular rate” calculations:
- the cost of providing certain parking benefits, wellness programs, onsite specialist treatment, gym access and fitness classes, employee discounts on retail goods and services, certain tuition benefits (whether paid to an employee, an education provider, or a student-loan program), and adoption assistance;
- payments for unused paid leave, including paid sick leave or paid time off;
- payments of certain penalties required under state and local scheduling laws;
- reimbursed expenses including cellphone plans, credentialing exam fees, organization membership dues, and travel, even if not incurred “solely” for the employer’s benefit; and clarifies that reimbursements that do not exceed the maximum travel reimbursement under the Federal Travel Regulation System or the optional IRS substantiation amounts for travel expenses are per se “reasonable payments”;
- certain sign-on bonuses and certain longevity bonuses;
- the cost of office coffee and snacks to employees as gifts;
- discretionary bonuses, by clarifying that the label given a bonus does not determine whether it is discretionary and providing additional examples and;
- contributions to benefit plans for accident, unemployment, legal services, or other events that could cause future financial hardship or expense.
The Final Rule eliminated the requirement that “call back pay” be “infrequent and sporadic” in order to be excluded from the “regular rate” calculation and clarified that employers using an authorized basic rate may exclude any additional payment that would not increase total overtime compensation by more than 40 percent of the higher of the applicable local, state, or federal minimum wage a week on average for the overtime workweeks in which the employer makes the payment.
Effective January 28, 2020
New York – Westchester County
Employers must provide employees working in Westchester County with notice of leave for covered purposes relating to the employee’s being a victim of domestic violence or human trafficking. If an employee’s start date is after January 28, 2020, the notice must be provided on the employee’s first day of employment. The law entitles employees who have worked more than 90 days in a calendar year to use up to 40 hours of paid leave per year for covered purposes relating to the employee being a victim of domestic violence or human trafficking.
Effective January 31, 2020
Employers are required to submit quarterly reports for purposes of Paid Family & Medical Leave for Q4 of 2019. (Future quarterly reporting deadlines will not be included in this summary.)
Effective February 29, 2020
Employers with 20 or more employees must give their employees a pre-tax transportation fringe benefit (except for those employees in a current collective bargaining agreement), which allows employees to deduct commuter highway vehicle and transit benefits, consistent with the provisions and limits of I.R.C. § 132(f)(1) at the maximum benefit levels allowable under federal law, from their gross pay.
Effective June 17, 2020
Temporary Disability Insurance benefits are available to an employee who is able to return to work on a reduced basis, if the employee was totally unable to perform duties of employment due to disability and was receiving full TDI benefits for at least 7 consecutive days before claiming partial TDI benefits. The amount of partial benefits will be equal to the amount of full TDI benefits less any amounts the employee received from working. The maximum duration of partial TDI benefits is 8 weeks, unless the NJ Division of Temporary Disability and Family Leave grants an extension, provided the total duration of partial TDI benefits shall not exceed 12 weeks.
Effective July 1, 2020
The maximum duration of Paid Family Leave benefits increases from 6 weeks to 8 weeks.
Illinois – Chicago
Any employer who (a) employs, (i) globally, 100 or more employees, or in the case of not-for-profit corporations, 250 or more employees, (ii) 50 of whom are Covered Employees; and (b) is primarily engaged in a Covered Industry must provide, with limited exceptions:
(a) An initial, good faith estimate in writing, prior to or at the start of employment, of the Covered Employee’s projected days and hours of work for the first 90 days of employment. The estimate must include the average number of weekly work hours, whether there are any on-call shifts, the days of the week and times or shifts the Covered Employee can expect to work or those that the Covered Employee will not be scheduled to work. A Covered Employee may request a change in the projected days and hours of work, and the Employer must notify the Covered Employee of its decision about the request within 3 days of the request.
(b) For existing Covered Employees, a written notice of work hours, no later than 10 days (from July 1, 2020 to June 30, 2022) or 14 days (after July 1, 2022) before the first day of any new schedule, including the shifts and on-call status of all current Covered Employees at that worksite. If the schedule is changed after these deadlines, unless the Covered Employee affected by the change and the Employer mutually agree to the change, the Employer, in addition to pay for actual working time, will be subject to payment of: (i)1 hour of Predictability Pay for each shift where the Employer: (A) adds hours of work, (B) changes the date or time of a work shift with no loss of hours, or (C) with more than 24 hours’ notice, cancels or subtract hours from a regular or on-call shift; and (ii) no less than 50% of the Covered Employee’s regular rate of pay for any scheduled hours the Covered Employee does not work because the Employer, with less than 24 ours’ notice, subtracts hours from a regular or on-call shift or cancels a regular or on-call shift, including while the Covered Employee is working on a shift.
Employer will also be subject to a fine of anywhere from $300 to $500 for each offense. For definitions and additional provisions not described here, with respect to no retaliation, notice and postings, and the like see the ordinance at: https://chicago.legistar.com/LegislationDetail.aspx?ID=3964374&GUID=52BA6EC6-9561-4581-87E2-51C8F279DE2D&Options=Advanced&Search=&FullText=1
Maximum amount of Family Leave Insurance benefits increases from 6 weeks to 12 weeks for any FLI leave that commences after July 1, 2020
New Mexico – Bernalillo County
The Employee Wellness Act entitles employees to accrue a minimum of one hour of earned time off for every 32 hours worked, up to a cap of 24 hours of earned paid time off in a year. The cap increases to 40 hours on July 1, 2021, and to 56 hours on July 1, 2022. Accrual commences on the employee’s 90th day of employment, or immediately for employees who have already been employed for 90 days with the employer. Exempt employees will be deemed to have worked 40 hours in each work week for purposes of earned paid time off accrual.
Unused accrued earned paid time shall be carried over to the following year, up to the annual accrual cap.
Earned paid time may be used for any use, but cannot be used until the employee has worked 56 hours in the applicable earned paid time benefit year.
Employers are required to provide notice about earned paid time to the employee upon commencement of employment and are prohibited from retaliating against an employee for using earned paid time or for having alleged in good faith a violation of the ordinance.
Predictive Scheduling law requires notice of schedules 14 days in advance (change from notice 7 days in advance).
Amendments to the TN Employment Security Law require that:
- The application for a seasonal employer determination must be made on forms prescribed by the Department of Employment Security and must be received between September 1 and October 31 each year;
- A seasonal employer conspicuously display on its premises the seasonal employer determination; and
Prior to the beginning of each active seasonal period, a seasonal employer provide seasonal workers with written notice that their seasonal wages are potentially excludable for unemployment benefits purposes.
The salary threshold to be considered “exempt” from WA state overtime requirements increases from $250 per week to $675 per week (which is equal to $35,100 on an annual basis). Because the federal “salary basis” amount is higher than the WA state salary threshold amount, the federal law will trump the WA state amount initially. The WA state salary threshold is slated to exceed the federal “salary basis” amount in 2021.
The job duties to qualify as “exempt” from WA state overtime requirements will also be aligned with the job duties for exempt employees under the federal law.
Paid Family Leave benefits become available to eligible workers.
Effective August 1, 2020
In an amendment to the School Visitation Rights Act, employers must grant employees up to a total of 8 hours during any school year, and up to 4 hours of which may be taken on any given day, to attend school conferences, behavioral meetings, or academic meetings related to the employee’s child if the conference or meeting cannot be scheduled during nonwork hours.
Effective January 1, 2021
Employers are required to start collecting payroll deductions for paid family and medical leave benefits. Amounts to be withheld are likely to change before January 1, 2021, as rules and regulations for CPFML are being developed.
Sunday and holiday premium pay rate decreases to 1.2 times the employee’s regular hourly rate of pay.
Eligible employees may receive Paid Family and Medical Leave benefits.
Employers with at least 10 employees who work more than 120 hours in a calendar year are required to allow employees to earn up to 40 hours of paid leave time annually, at a rate of 1 hour of paid leave for every 40 hours worked. Employees being accruing paid leave upon commencement of employment, and are allowed to use accrued paid leave after 120 days of employment. During the leave, the employee must be paid the same base rate they were receiving prior to the leave and receive the same benefits provided to employees taking other types of paid leave.
This does not apply to seasonal employees or employees subject to a collective bargaining agreement.
Paid Family Leave benefits rate increases to 67% of the employee’s average weekly wage, up to 67% of the NYS average weekly wage. The duration of the leave also increases to 12 weeks total leave.
To learn more, stay tuned for me – Andrew Ngo, Senior Corporate Counsel – to give my next update in February! Visit www.reflexisinc.com for more information on how Reflexis can help you increase compliance rates and stay on top of new labor laws and regulations.