12 Jun

May 2020 Federal HR Updates

Posted at

11:10pm

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Fluctuating Workweek

What happened?
On May 20, 2020, the Department of Labor (DOL) announced a change to the rules governing overtime for fluctuating workweek salaried workers. This will take effect on July 20, 2020.

What are the details?
This applies to employees who are overtime-eligible but are paid a flat salary for hours worked and additional pay if they work overtime. Employers can now pay bonuses to salaried non-exempt workers who are paid with a fluctuating workweek without violating the DOL rule. The title of the regulation also changed to “Fluctuating Workweek Method of Computing Overtime.”

What do employers need to do?
Review how you are paying staff with your HR provider if you have questions about this process.

Resources
https://www.lexblog.com/2020/05/20/dol-amends-regulation-on-fluctuating-workweek-method-of- pay/

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Inside Sales Exemption

What happened?
Effective May 19, 2020, the DOL will evaluate inside sales representatives on a case-by-case basis and no longer limited to only retail establishments.

What are the details?
The DOL withdrew the “partial list of establishments,” which were previously designated as having no retail concept. This limited list has not been removed, which opens up the ability to claim an inside sales exemption in other industries outside of retail. Additional information and opinion letters may be forthcoming from the DOL.

What do employers need to do?
Review staff positions with HR provider to determine if staff may be eligible for the inside sales exemption.

Resources
https://www.jdsupra.com/legalnews/dol-withdraws-flsa-inside-sales-40363/; https://www.federalregister.gov/documents/2020/05/19/2020-10250/partial-lists-of-establishments- that-lack-or-may-have-a-retail-concept-under-the-fair-labor

Election Rule Changes

What happened?
Effective June 1, 2020, the National Labor Relations Board (NLRB) could implement changes to timelines.

 What are the details?

  • Posting the Initial Notice of Petition for Election need to be posted until five business days after the Notice of Hearing;
  • Pre-election hearing will be set 14 business days after the Notice of Hearing;
  • A region may postpone pre-election hearing for “good cause”;
  • Non-petitioning parties must file their Statement of Position by noon, eight business days after the Notice of Hearing;
  • Non-petitioning parties must file a Responsive Statement of Position three business days before pre-election hearing;
  • Parties are entitled with Post-Hearing Briefs within five business days after the close of the hearing; and
  • Parties may file a Request for Review within 10 business days after the final disposition.

What do employers need to do?
Do not take any actions that could have a chilling effect on unions and adhere with the guidelines.

Resources
https://www.littler.com/publication-press/publication/nlrb-moves-forward-bulk-final-election-rule- changes-despite-blow-dealt; https://www.employerlaborrelations.com/2020/06/01/court-strikes-down- parts-of-nlrb-representation-election-rules-in-eleventh-hour-decision/

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Construction Industry

What happened?
OSHA issued additional guidance for the construction industry in relation to COVID-19.

What are the details?
As construction workers return to work, employers must assess the worksite, identify tasks which could lead to exposure to COVID-19, and implement a plan to protect staff. The summary below provides a few highlights, but full review of the OSHA guidance is highly recommended.

 Risk Level

  1. Lower – Tasks which allow employees to remain at least six feet apart and involve little contact with public, visitors, or customers;
  2. Medium – Tasks which require employees to be within six feet of each other or public, visitors, or customers;
  3. High – Entering an indoor worksite occupied by others (workers, customers, residents, etc.) who are suspected, or may have, COVID-19.

 A review of all worksites must be completed to determine which risk level employees will face. Engineering Controls

If work is essential or urgent and a person is suspected of having COVID-19, the following steps should be implemented:

  • Use physical barriers to protect workers who need to come at least six feet away from each other;
  • Consider electing plastic sheeting barriers; and
  • Re-assess on a regular basis and make adjustments.

Administrative Controls

  • Follow CDC Guidelines;
  • Train employees on spread of disease and to stay home if sick; and
  • Assess indoor construction work to determine risk before worker entry.

Personal Protective Equipment (PPE) 

  • Cloth face coverings are recommended by the CDC and does not meet the OSHA definition of PPE.

What do employers need to do?
Review all OSHA Guidance to ensure compliance with all regulations.

Resources
https://www.littler.com/publication-press/publication/osha-clarifies-safety-requirements-construction- industry-and-those; https://www.osha.gov/SLTC/covid-19/construction.html

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Recordkeeping

What happened?
OSHA requires that positive cases of COVID-19 may be deemed recordable illnesses.

What are the details?
Positive COVID-19 cases in the workplace may be recordable if:

  • It is confirmed to be a coronavirus illness;
  • Is work-related; and
  • Involves one or more of the general recording criteria, such as medical treatment beyond first aid or days away from work.

This guidance is far from perfect and leaves a lot of grey areas for employers. However, OSHA did state that they will use the following standards when conducting a review:

  • Reasonableness used by the employer when investigating if the illness was related to work;
  • Extensive medical inquiries are not expected of businesses (especially small businesses); and
  • An employer may ask an employee the following questions:
    • How they believe they were infected;
    • Discuss ways the employee may have been infected off- or on-duty – but be careful of privacy laws; and
    • Review the employee’s work area for potential COVID-19 exposure.

If the employer conducts a good-faith effort and cannot determine if exposure in the workplace caused the worker to contract COVID-19, it is not a recordable illness.

What do employers need to do?
Notify your HR provider if an employee tests positive for COVID-19 and comply with local and state requirements.

Resources
https://www.environmentalsafetyupdate.com/public-outbreaks/osha-issues-revised-enforcement- guidance-for-recordingkeeping-of-covid-19-cases/

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Paycheck Protection Program Flexibility Act

What happened?
Congress passed the Paycheck Protection Program Flexibility Act, which creates substantial changes to the PPP loan program. This bill is not yet signed into law as of June 4, 2020.

What are the details?

  • The coverage period is extended from February 15, 2020 through December 31, 2020;
  • The reduction in the amount of loan forgiveness is avoided if all employees are who were laid off between February 15, 2020 and April 26, 2020, or increases reduced wages, no later than December 31, 2020;
  • Can document if there is an inability to rehire previous employees or unable to hire qualified individuals by December 31, 2020;
  • Can also document the inability to return to the previous level of business prior to February 15, 2020 due to compliance with governmental COVID-19 requirements; and
  • Finally, 60% of the loan may be used for payroll costs and 40% used for non-payroll costs.

What do employers need to do?
Keep an eye on the news to find out when the President signs the bill into law.

Resources
https://www.fisherphillips.com/resources-alerts-paycheck-protection-program-flexibility-act-provides- employers

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